by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Justice Stephen Breyer’s influence on the Supreme Court is hitting its apex just as many on the left are clamoring for him to step down in favor of a younger, more progressive successor.
Breyer, 82, has been a powerful force for consensus this term, delivering the majority opinion in three major cases that commanded lopsided majorities. It remains to be seen whether his banner run is the first part of a historic final act, or the swan song to a 26-year tenure that could end once the Court adjourns for the summer, when outgoing justices usually announce their retirement.
“It’s supremely ironic that Justice Breyer is being pushed to retire just as he’s reaching the apogee of his influence,” said Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. “He’s never had the high profile of many colleagues—he’s typically the justice the least number of people can name—but this term he’s emerged not just as the ‘leader of the opposition’ but as someone who’s joined with Chief Justice Roberts to craft grand coalitions and compromises.”
Though he has always been an effective emissary between competing wings of the Court, this heightened profile is new for Breyer, who had a near-record 11-year run as the junior justice. He has mostly been an understated presence serving alongside the biggest judicial personalities of modern history. Yet at the twilight of his career, Breyer’s measured and technocratic judicial approach is welcome on a Court which in the last year has run a gauntlet of confirmations, COVID appeals, long-shot challenges to the presidential election, and political attacks on its integrity.
Breyer handed down one of the most consequential decisions of his tenure on June 17, when he led a seven-justice majority that dismissed a third constitutional challenge to the Affordable Care Act on technical grounds.