WASHINGTON – Associate Justice Stephen Breyer is expected to step down this year after nearly three decades on the Supreme Court, opening a rare opportunity for President Joe Biden to name a replacement who could influence the court for a generation.
Breyer, who usually votes with the high court’s liberals, has had a profound impact on the American legal system, crafting landmark opinions on abortion rights, the First Amendment and the inner-workings of government. He has also written biting dissents on the death penalty, campaign finance and Second Amendment issues.
Here’s a look at some of his more memorable opinions:
Mahanoy Area School Dist. v. B. L. (2021): Held that a Pennsylvania school district violated the First Amendment when it punished a student for a vulgar social media post written off-campus. Writing for an 8-1 majority, Breyer rejected the idea that schools may never regulate off-campus speech but said the school’s interests were not sufficiently implicated to justify penalizing the student’s speech in this case.
“It might be tempting to dismiss (the student’s) words as unworthy of the robust First Amendment protections discussed herein,” Breyer wrote. “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
June Medical Services v. Russo (2020): Struck down a Louisiana law that required doctors performing abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic. Writing for the plurality, Breyer found the law placed burdens on women without providing any “significant health-related benefits,” and he laid out the burdens in detail.
“A Shreveport resident seeking an abortion who might previously have obtained care at one of that city’s local clinics would either have to spend nearly 20 hours driving back and forth to (a) clinic twice, or else find overnight lodging in New Orleans,” he wrote. “Both experts and laypersons testified that the burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them.”
Whole Woman’s Health v. Hellerstedt (2016): In a precursor to June Medical dealing with similar circumstances, the court struck down a Texas law that required abortion providers to have admitting privileges at nearby hospitals. Writing for a 5-3 majority, Breyer said that courts must balance the ostensible benefit of abortion restrictions against the burdens the law imposes on access to abortion.
“We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a ‘working arrangement’ with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health,” he wrote.
Stenberg v. Carhart (2000): Years earlier, Breyer wrote for a 5-4 court striking down a Nebraska law banning late-term abortions. Physicians who performed the procedure could have their medical licenses pulled and face prosecution. Breyer wrote that the law was unconstitutional under Roe v. Wade and other cases because it put an undue burden on a woman’s right to choose whether to have an abortion. Specifically, the majority concluded the law also could be used to prosecute doctors who also performed second-trimester abortions using the most common method to terminate a pregnancy.
“All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment,” Breyer wrote. “The result is an undue burden upon a woman’s right to make an abortion decision.”
Read:Stenberg v. Carhart
Denver Area Educational Telecommunications Consortium v. FCC (1996): Writing for a 6-3 majority, Breyer struck down a provision of a 1992 federal law allowing cable companies to ban offensive or indecent programming on public access channels. The court upheld another provision allowing cable providers to restrict the transmission of “patently offensive” programming on leased-access channels.
“The upshot, in respect to the public access channels, is a law that could radically change present programming-related relationships,” Breyer wrote. “In doing so, it would not significantly restore editorial rights of cable operators, but would greatly increase the risk that certain categories of programming (say, borderline offensive programs) will not appear.”
Dissents written by Breyer
Dissenting opinions may reflect the losing side of a case but that doesn’t mean they’re unimportant. Well-crafted dissents are often cited in future litigation. And the Supreme Court’s history is replete with situations where a majority of the justices revisited an old controversy and found an earlier dissent influential in arriving at their decision.
Dissenting and concurring opinions can also signal a justice’s thinking on a given issue to astute lawyers who may craft future challenges to address that approach.
NFIB v. Occupational Safety and Health Administration (2022):
Breyer wrote a dissent, joined by the court’s other liberals, in the recent challenge to Biden’s COVID-19 vaccine-or-testing mandate for large employers. In an unsigned opinion, the court ruled that OSHA likely didn’t have the authority under a 1970 law that authorizes the agency to impose those requirements and it blocked the mandate’s enforcement. Breyer argued the text of the law, while broad, seemed to give OSHA the power to impose the requirements. And he asserted that the court’s opinion could have longstanding effects on the government’s ability to respond to emergencies.
“It stymies the federal government’s ability to counter the unparalleled threat that COVID-19 poses to our nation’s workers,” Breyer wrote. “Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies.”
Read:NFIB v. OSHA
Cedar Point Nursery v. Hassid (2021): In a 6-3 ruling, the majority concluded that a California law that permitted labor unions to organize on private farms was a taking of private property without just compensation in violation of the Fifth Amendment. Writing for court’s liberals, Breyer asserted there was no “physical appropriation” of property and raised concerns about the decision’s impact on safety inspections.
“I do not believe that the court has made matters clearer or better,” Breyer wrote. “Rather than adopt a new broad rule and indeterminate exceptions, I would stick with the approach that I believe the court’s case law sets forth. ‘Better the devil we know…'”
Glossip v. Gross (2015): A 5-4 majority of the court held that Oklahoma could use midazolam as an initial drug to administer a death sentence, despite some evidence that it risked subjecting a death row inmate to pain. In an often cited dissent, Breyer called for a broader reexamination of the death penalty.
“Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: Whether the death penalty violates the Constitution,” he wrote. “At the very least, the court should call for full briefing on the basic question.”
Read: Glossip v. Gross
Parents Involved in Community Schools v. Seattle School District No. 1 (2007): A divided court struck down an effort in Seattle to use race as one factor in deciding which schools students would attend to promote racial diversity. Breyer wrote an impassioned dissent asserting the plurality opinion worked against the vision laid out in the court’s landmark 1954 case Brown v. Board of Education, which ended school segregation.
“What of the hope and promise of Brown?” Breyer wrote. “In this court’s finest hour, Brown v. Board of Education challenged this history and helped to change it….The plurality’s position, I fear, would break that promise. This is a decision that the court and the nation will come to regret.”
Clinton v. New York (1998): Having worked in all three branches of government, Breyer seemed to enjoy delving into intergovernmental disputes. In this case, a 6-3 court struck down a president’s ability to veto certain provisions of legislation approved by Congress, known as the line item veto. Breyer wrote in dissent that nothing in the Constitution prohibited the power.
“In a sense, it skirts a constitutional edge. But that edge has to do with means, not ends. The means chosen do not amount literally to the enactment, repeal, or amendment of a law,” he wrote. “Those means do not violate any basic separation-of-powers principle. They do not improperly shift the constitutionally foreseen balance of power from Congress to the president.”
Read:Clinton v. New York