WASHINGTON (AP) — In the nearly 30 years Justice Stephen Breyer served on the Supreme Court, she was conservative, then more conservative, and now much more conservative.
The court’s rapid shift to the right in recent years has been a game changer for the liberal jurist, who early in his career sat with the same group of eight other justices for more than a decade. But Breyer, who announced his retirement on Thursday, has repeatedly said the court should not be seen as political. Judges, he liked to say, are not “junior politicians”.
In recent years, as his more moderate colleagues were replaced by more conservative ones, Breyer seemed in public to retain his good humor. But there were occasional glimpses of frustration that he couldn’t get the Tories to see things from his perspective and that the court was moving too quickly to the right.
Those frustrations surfaced in 2007. That was a year after the departure of Justice Sandra Day O’Connor, the court’s first female judge and a moderate who was replaced by the more conservative Justice Samuel Alito. Breyer had found himself on the losing end of a 5-4 decision streak during the term. He was sinister.
“It’s not often in the law that so little has changed so quickly,” Breyer said while summarizing his dissent from a ruling that invalidated public school integration plans.
In short, Breyer missed the moderate influence of O’Connor.
In 2018, when she announced she had been diagnosed with the early stages of dementia, he wrote in a tribute that the years they served together were “so happy for me”.
Breyer had a period of incredible stability in his first decade on the pitch without any change in the composition of the field.
At this time, O’Connor was at the ideological center of the court, and it was often his opinions that controlled outcomes in closed cases. But the conservative majority at the time also included Anthony Kennedy, another moderate, as well as Clarence Thomas, Antonin Scalia and Chief Justice William Rehnquist. Breyer’s most liberal colleagues were John Paul Stevens, David Souter, and Ruth Bader Ginsburg, who, like Breyer, were appointed by President Bill Clinton.
Jonathan Molot, Breyer’s clerk during his first year on the Supreme Court, said the court then may have been split between five conservatives and four liberals, but there was still “a little more fluidity.”
It was a court where being “optimistic about human nature, being able to see the other side’s point of view, being able to communicate on good terms with everyone, I think, made a real difference” , did he declare. It was Breyer, he said, who was liked by his colleagues, regardless of their judicial philosophy.
The composition of the court began to change in 2005, however, when O’Connor announced his retirement. Shortly after, Rehnquist died of cancer, leading to confirmation by Chief Justice John Roberts. Kennedy became the new ideological center of the court.
While Kennedy was more conservative than O’Connor, there were still times when he was willing to join his more liberal peers in forming a majority. And even Roberts has occasionally joined the court’s four liberals, voting in 2012 to uphold President Barack Obama’s health care law, for example. Liberals have also won major gay rights cases thanks to Kennedy votes, culminating in the 2015 case in which the court ruled that gay couples have the right to marry nationwide.
But the deaths and retirements over the past six years have transformed the court more fundamentally.
First, the unexpected death of Scalia in Texas in 2016. One might have expected the replacement of a conservative judge during Obama’s presidency to make the court less conservative. But Republican senators kept the seat open until after the 2016 presidential election. And instead of a Democrat choosing Scalia’s successor, a Republican, Donald Trump, chose conservative Neil Gorsuch.
Gorsuch’s confirmation didn’t change the balance of the court, but Kennedy’s retirement in 2018 did, when he was replaced by the more conservative Brett Kavanaugh. Even more consequential was the death of Breyer’s friend Ginsburg in 2020. The Liberal justice was replaced by Amy Coney Barrett, giving the Conservatives a 6-3 home court advantage.
Already in recent months, conservatives on the court have let a restrictive abortion law into effect in Texas and blocked Biden from enforcing the requirement that employees of big companies get a COVID-19 shot or regularly test or wear a mask at work. Breyer opposed both results. Ahead of his departure at the end of his term, the court also signaled that he could strike down the nation’s abortion law that has existed for nearly 50 years.
The American public has an increasingly negative view of the court. In September, a Gallup poll found that 54% said they had “a lot” or “somewhat” confidence in the Supreme Court, down from 67% in 2020. Only once in five decades has that confidence fallen below 60%. .
In remarks Thursday at the White House, Breyer described America as a “complicated country” and an “ongoing experiment.” He said future generations “will determine if the experiment still works. And of course, I’m an optimist, and I’m pretty sure that will be the case.
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