Stephen Breyer's civility has never been more needed in the US

Harvard Law School professor, Watergate assistant special prosecutor and counsel to the US Senate Committee on the Judiciary, Mr Breyer was chosen to the serve on the US Court of Appeals in the dying days of Jimmy Carter’s presidency. Mr Clinton elevated him to America’s highest court 14 years later in the hope that – after a long stretch of Republican control of the White House – he would buttress its weakened liberal wing.

Mr Breyer did not disappoint. Up until his final days in office, he has been a reliable vote in favour of abortion rights and tougher environmental standards. He has joined fellow liberals such as Ms Kagan, Ruth Bader Ginsburg and Sonia Sotomayor in resisting efforts to gut Obamacare and affirmative action programmes and use racial gerrymandering to clip the electoral power of heavily Democratic minority groups. He also cast critical votes in favour of legalising same-sex marriage throughout the US and striking down bans on gay sex, while upholding Americans’ First Amendment free speech rights.

At the time of his retirement, Mr Breyer was one of six justices to have first cut his legal teeth as a prestigious Supreme Court law clerk. However, as a historian of the court, Linda Greenhouse, has noted, as the oldest justice he was the only one of his colleagues to have served under Chief Justice Earl Warren. Mr Warren’s 16 years at the head of the court in the 1950s and 1960s saw a string of liberal rulings which barred segregation in schools and state laws which criminalised interracial marriage, upheld the pivotal 1964 Civil Rights Act, legalised contraception throughout the US, and handed new rights to criminal suspects. By contrast, Mr Breyer’s fellow justices served as law clerks after the Supreme Court began its rightward tilt in the 1970s and 1980s.

However, Mr Breyer was no dyed-in-the-wool liberal but a pragmatist. A report this year, for instance, found he cast the lowest number of liberal votes among the justices appointed by Democrat presidents. He tended to break with fellow liberals on matters of criminal procedure. In 2013, for instance, he voted with conservative justices to allow the police to take DNA samples from people arrested for serious offences.

While being willing to hand more powers to law-enforcement agencies, Mr Breyer also showed a long-standing unease with America’s death penalty laws, urging in 2015 that the court look again at their constitutionality (a nationwide moratorium imposed by the courts on executions in 1972 was lifted four years later). Mr Breyer wrote at the time that he believed the death penalty breached the constitution’s eighth amendment which bars “cruel and unusual punishment”. “The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary,” he argued. “From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning.”

Mr Breyer’s pragmatic approach was evident earlier this year when the court was faced with a challenge to the Biden administration’s regulations surrounding covid vaccinations in businesses employing more than 100 people. “There were three-quarters of a million new cases yesterday,” the justice said as those opposed to the regulations made their case before the court. “New cases … The hospitals are today, yesterday, full, almost to the point of the maximum they’ve ever been in this disease, OK?” He continued by noting that the standard for granting an injunction against the administration’s rules required proof that the court’s intervention was in the public interest. “Is that what you’re doing now, to say it’s in the public interest in this situation to stop this vaccination rule, with nearly a million people — let me not exaggerate — nearly three-quarters of a million people, new cases every day? I mean, to me, I would find that unbelievable.” As the Washington Post’s legal affairs correspondent, Ann Marimow, suggested, Mr Breyer often found “himself on the losing side of contentious issues but managed to cultivate collegiality as a centrist problem-solver, concerned about the real-world implications of the court’s decisions and protecting its reputation”.

Mr Breyer’s time on the court has nonetheless been anchored in a judicial philosophy which holds that justices should check in their partisan baggage when they step onto the bench and act as neutral interpreters of the law. “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote in a book published last year. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.” Hadn’t one of Donald Trump’s nominees, Neil Gorsuch, voted with liberals to ban workplace discrimination against gay employees in a 2020 ruling, Mr Breyer asked a sceptical interviewer last year.

To some, such arguments are “an idyllic notion, naïve, even”, but historian Jeff Shesol believes Mr Breyer has been cannily seeking to hold a mirror up to the court. “It seems possible that what he has been doing all these years is sending his recalcitrant colleagues a message about the nature of a truly judicial temperament,” Shesol argued. “By giving them the benefit of the doubt, vouching for their good faith and expressing his belief that they can rise above bias, he is identifying — and modeling — the qualities he wishes them to possess.”

It is thus tone and temperament – rather than the actual substance of his rulings – that have been among Mr Breyer’s greatest qualities. Even as he vigorously defended abortion rights, for instance, he also attempted to show he understands and acknowledges why the issue is so painful and divisive. “Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child,” he wrote in one ruling on the topic. “Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”

“His tone is resolutely measured,” argued one admirer of Mr Breyer’s approach. “No assertion goes unqualified. Often he couches statements in phrases like ‘in my opinion’ or ‘by no means is this absolutely right’.” 

In oral arguments before the court, Mr Breyer’s lengthy questions and “wild flights of fancy” also frequently brought a measure of humour. In 2010, for instance, he intervened in a debate about whether burglary is always a crime of violence. No, it wasn’t, suggested Mr Breyer. “You’ve heard of cat burglars,” he told the court. “Well, this gentleman is called the Pussycat Burglar, and the reason is he’s never harmed a soul. He only carries soft pillows as weapons. If he sees a child, he gives them ice cream.”

Mr Breyer also strove to practice the principles of comity and courtesy he preached. In 2000, as the presidential election rested on a knife-edge, the Supreme Court delivered a controversial 5-4 decision which stopped the state of Florida counting its ballots thus effectively handing George W Bush the keys to the White House. In the bitter aftermath, young clerks working for liberal and conservative justices stopped speaking to one another. Mr Breyer attempted to heal the breach: walking into the clerks’ dining room – itself highly unusual – he idled up to the conservative clerks and began chatting to them.

Mr Breyer’s search – if not for consensus, then for civility and the right to disagree without being disagreeable – may look quaint and old-fashioned in America’s polarised public square. But it’s never been more needed.