'Tone matters': Some predict Justice Breyer's exit will deepen polarization on Supreme Court
WASHINGTON – Associate Justice Stephen Breyer’s decision to retire this year won’t change the number of conservative or liberal justices on the Supreme Court, but some experts predict his departure could drive a deeper wedge between them.
Breyer will step down this summer after nearly three decades on the nation's highest bench. Though a reliable liberal vote in culture war disputes that draw headlines and public attention, the 83-year-old justice is also a conciliatory figure, more centrist than some of his colleagues on the left or right – and perhaps more willing to strike a compromise.
Even though President Joe Biden will nominate a successor who will similarly side with the court’s liberals in big cases, observers said a new member can change the tenor of the dynamics between the nine justices. The interaction between them can help or hurt Chief Justice John Roberts' efforts to insulate the court from the political rancor pervasive elsewhere.
"I think Roberts is going to have fewer people on the liberal wing to work with," said Michael McConnell, director of the constitutional law center at Stanford Law School and a former federal appeals court judge. “And so I think it's quite possible that it's going to lead to a more polarized court.”
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President Donald Trump’s three nominees gave conservatives a six-member supermajority on the high court, tilting it the furthest to the right in decades.
That majority has signaled it is prepared to undermine the court's landmark 1973 Roe v. Wade decision on abortion in coming months while limiting the ability of states to regulate handguns. The court announced this month that the justices will soon reconsider affirmative action and a 2016 decision that allows universities to consider the race of prospective students as one factor in admissions.
None of that will change with Breyer’s retirement.
One thing that will be different is that Associate Justice Sonia Sotomayor, the court’s most outspoken progressive voice, will take over as its most senior liberal justice.
Sotomayor has been far more direct than Breyer in calling out what she sees as the "stench" of the appearance of politics in the court’s rightward lurch.
The dynamic will also change in the conference room, where the justices meet to discuss cases in order of seniority. Roberts speaks first, then Associate Justice Clarence Thomas, then Breyer – who can signal early whether there’s room for compromise with the liberals. Once Breyer is gone, that initial order of remarks on cases will be tilted more toward conservative views: Roberts, Thomas, Associate Justice Samuel Alito, then Sotomayor.
Breyer's replacement will speak last in this pecking order because she'll be the court's most junior justice.
"One of the hallmarks of Justice Breyer’s legacy, and I think something he worked very hard on, was trying to forge consensus across the at least seemingly partisan divide," said Stephen Vladeck, a law professor at the University of Texas at Austin and a close observer of the Supreme Court.
"Depending upon who the nominee is, I don't know if it's going to be the same kind of relationship," Vladeck said. "It’s not hard to imagine a greater gulf between the two perceived ideological wings of the court."
Roberts has staked his own legacy on trying to steer the court away from the politics of the moment, and in that sense, he often had an ally in Breyer, who has been sitting next to the chief justice in the ornate courtroom since the death of Associate Justice Ruth Bader Ginsburg in 2020. Breyer has been the court’s most vocal proponent of the notion that the court isn’t a political entity. In his opinions – even when dealing with divisive issues such as abortion – Breyer’s writing is often fact-bound, without high-flown rhetoric.
"That is deeply him, and it's how he thinks of himself as a judge," said Aziz Huq, a University of Chicago law professor.
There has been considerable debate about how fruitful those efforts at compromise have been, particularly since the retirement in 2018 of Associate Justice Anthony Kennedy, a swing vote in his final years on the court. And they may be even less certain moving forward.
Because there are six conservatives, Roberts' vote is no longer needed to forge a majority among them. The environment outside the court – not just in Congress but also in the conservative and liberal legal movements – trends toward more polarization, Huq said. Biden’s new Supreme Court justice, Huq predicted, would probably "gain very little by trying to engage in the strategy of conciliation."
When a majority of the court in October temporarily allowed Texas’ ban on most abortions after six weeks of pregnancy to stand, Sotomayor wrote a stinging dissent. Neither Breyer nor Associate Justice Elena Kagan signed that dissent, a possible signal the two were working toward some middle ground with Roberts.
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When the Texas case returned in December, a splintered court ruled against the state’s abortion clinics on most of their claims, the three liberal justices departing from the six conservatives for much of the opinion. Breyer, Sotomayor and Kagan joined a concurring opinion by Roberts that kept a narrow part of the lawsuit alive.
In June, a unanimous court ruled that a Catholic foster care agency in Philadelphia could turn away gay and lesbian couples as prospective parents. The decision by Breyer and the court’s other liberal justices to join that opinion may have headed off a more sweeping loss for LGBTQ rights.
Biden is considering more than a dozen candidates for Breyer’s seat, though the White House has not said specifically how many. A White House spokesman confirmed the president is considering U.S. District Court Judge J. Michelle Childs of South Carolina, whom the administration nominated for the federal appeals court in Washington.
Judge Ketanji Brown Jackson, confirmed to the D.C. appeals court last year, and Leondra Kruger, an associate justice on California's Supreme Court, are among the candidates.
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Early efforts to assess the most-discussed candidates suggest Biden is looking at jurists who are relatively aligned with Breyer. Research from Washington University in St. Louis and the University of Michigan suggests the "potential nominees are ideologically fairly close to Breyer and Kagan."
What's less easy to assess is whether those candidates would look for compromise, assuming they could find willing partners among the conservatives. Roberts, Kagan, Breyer and Associate Justice Brett Kavanaugh have sometimes been part of a centrist presence on the high court.
"I think it's made a real difference in some cases, and I think it's made a difference in the tone of the court, as well," McConnell said. "And tone matters."