Justice Breyer Retires: Initial Considerations

Legal Sidebari

Justice Breyer Retires: Initial Considerations

January 28, 2022

On January 27, 2022, Justice Stephen G. Breyer announced that he would retire from active service as an

Associate Justice of the Supreme Court at the end of the Court’s current Term, “assuming that by then

[his] successor has been nominated and confirmed.” This Legal Sidebar provides an overview of key legal

issues that Congress (and particularly the Senate, through its advice-and-consent role) may consider as it

reflects on Justice Breyer’s tenure on the Court and how his successor might shape the Court’s future

jurisprudence.

The discussion below summarizes Justice Breyer’s approach to judging generally before highlighting

several areas where Justice Breyer staked out significant legal positions, both through majority opinions

and dissents that he authored and through his votes. As the decisions cited below illustrate, Justice

Breyer’s pragmatic approach has generally led him to prefer standards, which would allow judges to

consider all the relevant circumstances, over strict rules. He has frequently taken fact-specific approaches

to resolving cases and interpreting statutes by looking to their context and operation.

Nominated to replace Justice Harry Blackmun in 1994, Justice Breyer came to the Court with a broad

range of experiences. In the preceding decades, Justice Breyer served in all three branches of the federal

government—including as an attorney at the Department of Justice, as Chief Counsel of the Senate

Committee on the Judiciary, and as a judge on the U.S. Court of Appeals for the First Circuit. Justice

Breyer also had a lengthy academic career, teaching at Harvard Law School and Harvard’s Kennedy

School of Government. He has authored works on many issues, not always exclusively legal in scope. His

various writings on the “administrative state,” which explore the legal, political, economic, and

behavioral consequences of governmental regulation, proved particularly influential. From that

experience, Justice Breyer brought to the Court a keen interest in the practical elements of governance.

Justice Breyer’s Approach to Judging

Justice Breyer has written that “[l]aw is tied to life,” and that “an overly literal reading of a text can too

often stand in the way” of achieving a law’s intended benefits. This statement is borne out by his

approaches both to constitutional and statutory interpretation.

In his 2005 book, Active Liberty: Interpreting Our Democratic Constitution, Justice Breyer outlined the

foundation of his constitutional interpretation. He described U.S. constitutional history as “a quest for

workable democratic government protective of individual personal liberty.” Reflecting his pragmatic

attitude toward legal questions, Justice Breyer emphasized that active liberty “operates in the real world,”

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and that “institutions and methods of interpretation must be designed in a way such that this form of

liberty is sustainable over time and capable of translating the people’s will into sound policies.” He

differentiated this interpretive philosophy from constitutional originalism, which he believed did not serve

this conception of active liberty.

In his approach to statutory interpretation, Justice Breyer has been described as “the quintessential Legal

Process judge,” referring to a relatively holistic, purposive mode of interpretation that “long held sway on

the Court.” Justice Breyer’s legal analysis flows from the premise that Congress consists of “reasonable

persons pursuing reasonable purposes reasonably,” and his opinions look to Congress’s objectives. He has

called on the Court to “take account of, and place weight on, why Congress enacted a particular” statutory

provision, using whatever tools might reveal that purpose. For example, he favors the use of legislative

history to understand a statute’s context and purpose. By his own description, this approach contrasts with

the textualist mode of interpretation championed by Justice Antonin Scalia, which was ascendant on the

Court during Justice Breyer’s tenure.

Justice Breyer has also often been described as an institutionalist, in that he has voiced his concern for the

Supreme Court’s reputation and legitimacy. In a 2021 speech, Justice Breyer rejected the notion that the

Court decides cases on political grounds and asserted that the Court’s authority rests on “a trust that the

court is guided by legal principle, not politics.” In Active Liberty, he describes the differences between

judges as “differences of emphasis,” rather than “a radical disagreement about the general nature of the

Constitution or its basic objectives.” He has also strongly defended stare decisis—the principle that the

Court should adhere to its own prior decisions—and he wrote that the Court should have a “special

justification” for overruling its precedents.

Justice Breyer’s Jurisprudence

During his more than quarter-century on the Supreme Court, Justice Breyer has encountered nearly every

major debate within modern American law. While Justice Breyer’s influence on the Court’s decision is

apparent in a wide variety of areas, including on such topics as antitrust and intellectual property, this

Sidebar focuses on those issues that have traditionally resulted in a closely divided Court or that may be

of particular interest to Congress.

Abortion: During his tenure on the Supreme Court, Justice Breyer has been a consistent opponent of

measures that he viewed as unduly restricting abortion access. Justice Breyer authored the lead opinions

in June Medical Services LLC v. Russo (2020) and Whole Woman’s Health v. Hellerstedt (2016), in which

bare majorities of the Court struck down state laws regulating abortion providers. He also authored the

opinion of a five-Justice majority striking down a state law banning late-term abortion in Stenberg v.

Carhart (2000). In Whole Woman’s Health v. Jackson (2021), Justice Breyer dissented from the Court’s

decision not to block a Texas abortion law temporarily from taking effect. He later joined the separate

opinions of Chief Justice John Roberts and Justice Sonia Sotomayor arguing that the Texas law

effectively nullified the constitutional right to abortion and that challenges to the law should be able to

proceed against additional state officials. During the October 2021 Term, Justice Breyer heard oral

argument in Dobbs v. Jackson Women’s Health Organization, a case concerning the constitutionality of

pre-viability prohibitions on elective abortions. A decision in Dobbs is expected before Justice Breyer’s

retirement.

Administrative Law: Justice Breyer has generally been deferential to the efforts of administrative

agencies to solve the problems that Congress has committed to them. This tendency is most evident in

decisions involving the statutory authority of federal agencies. Some Justices have called for the Court to

narrow the degree of judicial deference given to agencies’ interpretations of the statutes and regulations

they administer. In contrast, Justice Breyer wrote for the Court in Barnhart v. Walton (2002) that such

deference was appropriate even for agency actions less formal than notice-and-comment rulemaking.

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Further, he was part of the five-Justice majority in Kisor v. Wilkie (2019), which affirmed that courts may

defer in many cases to agencies’ reasonable constructions of ambiguous regulatory language. Although

the Court has sometimes questioned whether it should interpret statutory language to grant agencies broad

authority on questions of “economic and political significance,” Justice Breyer voted in favor of broad

grants of authority to agencies when he believed the statutory text supported that result. For example, he

recently voted to uphold the Biden Administration’s Coronavirus Disease 2019 (COVID-19) vaccinerelated mandates both for health-care facilities (as part of a Court majority) and for large employers (in

dissent).

Justice Breyer has been less deferential to federal agencies on questions of administrative procedure,

voting in several cases to require agencies to disclose and explain more carefully the basis for their

decisions. These cases include Department of Commerce v. New York (2019), rejecting the Commerce

Secretary’s attempt to include a citizenship question on the 2020 census, and Department of Homeland

Security v. Regents of the University of California (2020), ruling that the government acted improperly

when it rescinded the Deferred Action for Childhood Arrivals initiative.

Affirmative Action: The Supreme Court considered several significant cases involving race-conscious

policies during Justice Breyer’s tenure. Justice Breyer authored or joined a number of opinions arguing

that the government has wide latitude to address historical and systemic discrimination against racial

minorities. For example, he dissented from the Court’s ruling in Adarand Constructors, Inc. v.

Peña (1995), which held that even “benign” race-based classifications by the federal government intended

to help disadvantaged groups are subject to strict scrutiny from courts. Justice Breyer also joined bare

majorities to uphold race-conscious school admission policies in Grutter v. Bollinger (2003) and Fisher v.

University of Texas at Austin (2016), although he also voted in Gratz v. Bollinger (2003) to hold invalid a

policy that did not allow for sufficiently individualized review of applicants. He authored the dissenting

opinion on behalf of four Justices in Parents Involved in Community Schools v. Seattle School District

No. 1, in which a fractured Court invalidated two school districts’ plans that sought to improve racial

diversity by considering a student’s race as a factor in determining which school the child could attend.

He also wrote a separate opinion concurring in the Court’s judgment in Schuette v. Coalition to Defend

Affirmative Action (2014), where he concluded that a state constitutional amendment prohibiting

preferential treatment on the basis of membership in specific protected classes did not violate the Equal

Protection Clause.

Criminal Law & Procedure: Criminal law is an area in which the Supreme Court often does not divide

along perceived political lines, and Justice Breyer’s jurisprudence reflects that tendency. For instance, in

Mont v. United States (2019), Justice Breyer joined Justices Sotomayor, Kagan, and Gorsuch in dissenting

from the majority’s holding that a period of supervised release may be tolled if the defendant is charged

with another crime and placed in pretrial detention. And, in Maryland v. King (2013), Justice Breyer

joined four of the Court’s conservative members in holding that states may collect and analyze DNA from

people arrested for serious crimes.

Before his elevation to the Supreme Court, Justice Breyer served on the U.S. Sentencing Commission. He

dissented from the Court’s ruling in Apprendi v. New Jersey (2000) that certain criminal-sentence

enhancements could be imposed only if they were supported by jury findings. Reflecting his pragmatic

approach to the law, Justice Breyer expressed concern that the majority’s ruling would impede the fair

operation of the criminal justice system as a whole. He also dissented in part in United States v. Booker

(2005), arguing that judges should be allowed to make sentencing determinations about “the manner or

way in which the offender carried out the crime of which he was convicted.” However, he acknowledged

(in a separate opinion for the Court in Booker) that the Court’s sentencing jurisprudence rendered the

Federal Sentencing Guidelines “effectively advisory.”

Justice Breyer authored a dissenting opinion in Glossip v. Gross (2015) arguing that the death penalty was

incompatible with the Eighth Amendment’s prohibition on cruel and unusual punishment, a position that

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he further discussed in a book he published the following year. He joined majority opinions prohibiting

the imposition of capital punishment against juvenile offenders and the cognitively disabled. In Miller v.

Alabama (2012), he joined a majority of the Court in holding that the Eighth Amendment forbids

mandatory life without parole sentences for juvenile offenders. In a separate concurrence in Miller,

Justice Breyer argued that a juvenile homicide offender should only face life without parole if he “kills or

intends to kill the victim.”

On Fourth Amendment matters, Justice Breyer joined controlling or concurring opinions that recognized

technology-assisted surveillance as posing unique threats to privacy expectations. In other cases, however,

he authored or joined dissents that would have allowed the government more expansive search and

seizure powers.

Elections & Voting Rights: Justice Breyer joined a number of dissents in high-profile cases relating to

elections and voting rights, including Bush v. Gore (2000), in which the Supreme Court rejected an equal

protection challenge related to the 2000 presidential election; Citizens United v. Federal Election

Commission (2010), in which the Court struck down federal campaign finance laws prohibiting

independent expenditures and electioneering communications by corporations and unions; and Shelby

County v. Holder (2013), in which the Court struck down the coverage formula for preclearance in the

Voting Rights Act of 1965 (VRA). In Alabama Legislative Black Caucus v. Alabama (2015), Justice

Breyer’s opinion for the Court established a new standard for judicial review of redistricting decisions by

state legislatures. He also joined a bare majority of the Court to hold that a North Carolina redistricting

map violated equal protection principles.

Justice Breyer has written of the need for courts to balance carefully the governmental interest of

increasing fairness in the electoral debate by limiting campaign contributions against the free speech

rights of contributors. He authored the Court’s opinion in Federal Election Commission v. Akins (1998),

holding that Congress broadly defined “political committee” in federal election law and intended to allow

groups of voters to sue for certain informational injuries directly related to voting. Similarly, Justice

Breyer wrote a concurring opinion that created a majority allowing a VRA claim to proceed in Morse v.

Republican Party of Virginia (1996). His concurrence looked to the VRA’s history to conclude that

Congress did not intend to enact a law excluding all suits challenging political party activity.

Environmental Law: Consistent with his general approach to administrative law, Justice Breyer has

frequently voted to uphold federal agencies’ authority to take action protecting the environment. Where

possible, he has favored interpreting statutes to allow agencies the flexibility to consider factors such as

regulatory costs and benefits or the relative contributions of multiple causes to a problem. Justice Breyer

would have recognized the authority of federal agencies to apply the Clean Water Act to a broad array of

waters, an issue that appears set to return to the Court soon after he retires. Most notably, he was one of

five Justices in the majority in Massachusetts v. Environmental Protection Agency (2007) to hold that EPA

has authority under the Clean Air Act to regulate greenhouse gases as an “air pollutant.” Justice Breyer—

the last Justice from that majority remaining on the Court—is expected to hear a new case about the

regulation of greenhouse gases at one of his last Court sessions.

First Amendment: Justice Breyer has played a significant role as a median vote in a few cases involving

the First Amendment’s Religion Clauses. His opinions in this area reflected his general preference for

standards over rules, as he advocated for totality-of-the-circumstances approaches to assess the

constitutionality of specific government practices. For instance, in Van Orden v. Perry (2005), Justice

Breyer provided the fifth vote to reject an Establishment Clause challenge to a Ten Commandments

display on the grounds of the Texas State Capitol. A plurality of the Justices argued that the Court should

address such monuments with a view to the “Nation’s history.” Justice Breyer’s decisive concurring

opinion expressed his belief that there could be “no test-related substitute for the exercise of legal

judgment” that looked to all the relevant factual circumstances. Justice Breyer similarly joined a majority

of the Court to uphold a World War I monument known as the “Peace Cross” in American Legion v.

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American Humanist Association (2019), again writing separately to state that there “is no single formula

for resolving Establishment Clause challenges.” He believes a similar “fact-sensitive” approach should

govern in cases evaluating Free Exercise Clause claims, using a narrow analysis that looked only to the

circumstances before the Court rather than attempting to make broad pronouncements.

Justice Breyer’s pragmatic approach disfavoring rigid tests also prevailed in his separate opinions

interpreting the First Amendment’s Free Speech Clause. For instance, his concurring opinion in United

States v. Alvarez (2012), which created a Court majority to rule the federal Stolen Valor Act

unconstitutional, eschewed any “strict categorical analysis.” Justice Breyer also wrote opinions ruling for

the government that emphasized the state’s regulatory authority, even in areas with free speech

implications. For instance, he wrote a number of separate opinions in which he stated he would have

upheld various laws as economic regulations, and would not have applied any heightened level of scrutiny

to review otherwise lawful efforts to regulate commercial enterprises. This approach has led him to depart

from the majority when the Court appeared to define new, heightened standards for certain categories of

speech.

National Security: In recent decades, the Supreme Court has considered numerous cases involving

executive branch authority in the areas of immigration and national security. While these cases often

closely divided the Court, Justice Breyer has advocated for less deference to executive branch judgments.

In Trump v. Hawaii (2018), a five-Justice majority afforded broad deference to presidential security

determinations in upholding the Trump Administration’s “travel ban” barring foreign nationals from

certain countries from entering the United States. Justice Breyer dissented, finding evidence that the

policy was based on anti-Muslim bias. He also dissented from several Court opinions that effectively

foreclosed lawsuits related to counterterrorism policies in the aftermath of the September 11, 2001,

terrorist attacks.

With regard to the President’s war powers, in Hamdi v. Rumsfeld (2004), Justice Breyer joined a majority

holding that due process requires a U.S. citizen held in the United States as an enemy combatant to be

given a meaningful opportunity to contest the factual basis for his detention. He later joined the Court in

Hamdan v. Rumsfeld (2006) in ruling that military tribunals established by presidential order to try enemy

combatants could not proceed because they provided inadequate procedural protections. Justice Breyer

also joined the majority in Boumediene v. Bush (2008), which held that the constitutional writ of habeas

corpus extended to foreign nationals held as enemy combatants at the Guantanamo Bay detention facility.

Powers of Congress: Justice Breyer has consistently employed a broad conception of congressional

authority. That approach left him outside the majority in important cases in which the Rehnquist and

Roberts Courts limited the reach of congressional power. Justice Breyer authored dissents in two key

decisions of the Rehnquist Court that established parameters on the exercise of Congress’s commerce

power: United States v. Lopez (1995) and United States v. Morrison (2000). He dissented from the

Roberts Court’s holding that the Affordable Care Act was not supported by the Commerce Clause in

National Federation of Independent Business v. Sebelius (2012). He likewise dissented in two major

decisions that limited Congress’s powers under the Reconstruction-era amendments, City of Boerne v.

Flores (1997) and Shelby County v. Holder (2013). In Printz v. United States (1997), Justice Breyer also

dissented from a Court ruling that barred congressional directives to state executive officials.

Justice Breyer has also applied this broad conception of legislative authority to cases at the intersection of

Congress’s powers and executive-branch appointments. Justice Breyer dissented in several narrowly

divided cases where the Court recognized constitutional limits to Congress’s ability to shield certain

executive officials from at-will removal by the President or a superior officer, including in Free

Enterprise Fund v. Public Co. Accounting Oversight Board (2010). In his Free Enterprise Fund dissent,

Justice Breyer explained at length how the Court’s holding would “disrupt severely the fair and efficient

administration of the laws.” A similar pragmatic attitude is evident in his opinion for the Court in

National Labor Relations Board v. Noel Canning (2014), holding that the President has the power to

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make executive appointments during an intra-session recess of Congress, but only when that recess is “of

substantial length.”

Justice Breyer appears to be less deferential to Congress when he believes a law infringes upon the

constitutional rights of individuals. For example, in the immigration field—where congressional power is

substantial—Justice Breyer authored the majority opinion in Zadvydas v. Davis (2001), where a closely

divided Court recognized that substantive due process considerations prevent immigration authorities

from indefinitely detaining a deportable alien.

Second Amendment: In District of Columbia v. Heller (2008), the Supreme Court held that a law

prohibiting the possession of handguns in the home violated the Second Amendment. Justice Breyer

authored a dissent arguing that “the Second Amendment protects militia-related, not self-defense-related,

interests,” and that the law at issue fell “within the zone that the Second Amendment leaves open to

regulation by legislatures.” He also authored a dissent two years later in McDonald v. City of Chicago

(2010), where the Court held that the Second Amendment applies to state and local governments through

the Fourteenth Amendment.

Nomination and Confirmation Process

As Justice Byron White once noted, “every time a new justice comes to the Supreme Court, it’s a

different court.” In recent years, the composition of the Supreme Court has changed significantly: Justice

Breyer’s retirement will cause the fourth vacancy in the past five years. The previous vacancy, caused by

the death of Justice Ruth Bader Ginsburg in September 2020, resulted in the confirmation of Justice Amy

Coney Barrett to fill the seat the following month.

It is difficult to predict how any nominee to replace Justice Breyer might change how the Court decides

future cases. Following Justice Barrett’s confirmation, some commentators predicted that many Supreme

Court cases would be decided by 6-3 votes, with the three Justices nominated by Democratic presidents in

dissent. In practice, however, the Court has not consistently split along perceived partisan lines. During

the October 2020 Term, the most common outcome was for the Justices to reach a decision unanimously;

less than a quarter of cases were divided 6-3 or 5-3. In cases where the Court divided, Justice Breyer was

in the majority 58% of the time, which was slightly less often than in prior years.

As with past vacancies on the Court, forthcoming CRS products will examine the vacancy created by

Justice Breyer’s retirement and provide information about any nominee to fill his seat. CRS has also

published products reviewing procedural issues caused by vacancies and products related to congressional

hearings on judicial nominees, including the appointment process and the questioning of nominees.

Author Information

Valerie C. Brannon

Legislative Attorney

David Gunter

Section Research Manager

Michael John Garcia

Section Research Manager

Joanna R. Lampe

Legislative Attorney

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