Much of the Supreme Court landscape has changed since Justice Breyer joined the Supreme Court in 1994. Breyer is currently the second longest-tenured justice on the Court after Justice Thomas. The ideological balance has changed from a 5-4 conservative/liberal composition with the occasional swing vote from Justice Kennedy in the middle. With the three Trump-appointed justices the Court now has a clear 6-3 split in favor of conservative justices.
While the more liberal justices once had a chance to assign cases because they had a senior justice in the majority when Chief Justices Rehnquist or Roberts were in dissent, this has almost entirely abated and has severely limited Justice Breyer in playing this role. This is evident as since the 1994 term Justice Stevens assigned 182 majority opinions, Justice Ginsburg assigned eight majority opinions, and Justice Breyer has only assigned one (Van Buren v. United States – a 6-3 decision he assigned to Justice Barrett with Justices Roberts, Thomas, and Alito in dissent) after completing his only full term without Justice Ginsburg.
Much of Justice Breyer’s liberal posture can be traced from his allies on the Court as well as from the ideological valence of many of his decisions. An example of this trend is the three hotly contested abortion decisions Breyer rendered with Stenberg v. Carhart, Whole Woman’s Health v. Hellerstedt, and June Medical v. Russo. All three decisions came down to 5-4 votes with the more liberal justices in the majority (O’Connor was the swing vote in Stenberg, Kennedy in Whole Woman’s Health, and Roberts in June Medical). Justice Breyer is also a frequent dissenting companion of Justice Sotomayor’s in decisions where the Court has denied applications to stay death penalty decisions as was the case in the recent instance of United States v. Higgs.
Agreement and Opinions
Along with these individual decisions, Breyer’s history on the Court illustrates much of the same trajectory. His highest agreement levels with other justices show the liberal/conservative divide in his closest counterparts (Justice Barrett was removed because the number of observations was so small).
There is a clear distinction between Breyer’s agreement with the more liberal justices (Kagan, Sotomayor, Ginsburg, Souter, and Stevens), the swing justices (O’Connor and Kennedy), and the more conservative justices who make up the remainder of this graph. The difference is a steady decline without a huge dip in agreement levels between any of the previously described groups of justices. Larger scale differences are evident when we subset the cases though. One way to do this is to simply line up Breyer’s agreement only in dissent with other justices. The previous overall agreement chart looked at both similar majority and dissenting votes.
Here we see this large dip after Stevens to O’Connor and then to the remaining justices. We see a similar drop when looking at Breyer’s agreement with other justices in cases decided by five-vote majorities.
Here we see the same dip after Kagan to O’Connor. The difference between the dissent graph and the five-vote majority graph though can be seen with the slight variability in agreement with the other liberal justices in the dissent chart compared to the similarity in agreement across liberal justices in five-vote majorities. This should make sense though since Breyer’s main allies in five-vote majorities were his fellow liberal justices while his dissent compositions did not necessarily include all the remaining liberal justices.
When we focus on Justice Breyer as an opinion author, we can trace several aspects of his workload over time. The following shows Breyer’s authorship of majority, concurring, and dissenting opinions across his career on the Court through the 2020 term (so far in the 2021 term in the Court’s slip opinions he only authored a dissent in NFIB v. OSHA).
Over his career on the Supreme Court, Justice Breyer authored a total of 213 majority or plurality opinions, 215 dissents (including the one so far in the 2021 term), and 128 concurrences on the Court’s merits docket.
Breyer authored the most total opinions in the 2009 term with 29. He authored the fewest opinions in 2013, 2019, and 2020 with 13 opinions in each of these terms. Breyer had the most dissents in the 2008 and 2009 terms with 14 dissents in each. The height in his number of concurrences was in the 2005 term when he wrote 11.
Siding with the Other Side
While this post has mainly focused on Breyer as a predictable liberal vote there are several exceptions worth highlighting. These exceptions are few in number compared to Breyer’s statistical trends, but they show that he occasionally sided with his conservative counterparts as well. In Breyer’s early years on the Court, he never was in a four-justice dissent along with Justices Scalia, Thomas, and Rehnquist. On the majority opinion side, he did author a 5-4 split decision in United States v. Home Concrete & Supply (2012) joined by Justices Roberts, Scalia, Thomas, and Alito and in Midland Funding v. Johnson (2017) which was joined by Justices Roberts, Kennedy, Thomas, and Alito.
Some of his interesting dissent coalitions include the following examples:
- He authored the dissent in the First Amendment case of United States v. Playboy (2000) and was joined by Justices Rehnquist, Scalia, and O’Connor.
- He was joined in dissent by Justices Rehnquist, Scalia, and Kennedy in Sims v. Apfel (2000) which dealt administrative regulations on Social Security claims (the majority was composed of Justices Thomas who was the author along with Justices Stevens, Souter, and Ginsburg).
- Breyer joined Roberts’ dissent along with Justice Alito in the Fourth Amendment case Missouri v. McNeely (2013).
- Breyer joined Justice Kennedy’s dissent in the Confrontation Clause case of Bullcoming v. New Mexico (2011) along with Justices Roberts and Alito.
- Breyer joined Justice Alito’s dissent along with Justices Roberts and Kennedy in the Fourth Amendment case Florida v. Jardines (2013).
- Breyer also joined Justice Alito’s dissent along with Justices Roberts and Kavanaugh in the gerrymandering case of Virginia House of Delegates v. Bethune Hill (2019).
Flipping to majority opinions, while Justice Breyer joined several five justice majorities along with the more conservative justices, he only authored such majority opinions in the two examples above.
- Breyer concurred with Justice Rehnquist’s opinion in the seminal First Amendment case Van Orden v. Perry (2005) which was joined by Justices Scalia, Kennedy, and Thomas.
- He also concurred with Justice Thomas’ opinion in the Fourth Amendment case of Board of Education of Independent School District No. 92 v. Earls (2002). Thomas’ decision was also joined by Justices Rehnquist, Scalia, and Kennedy.
Some other interesting majority coalitions that Breyer joined include:
- Justices O’Connor, Rehnquist, Scalia, and Thomas in Florida Bar v. Blakely (1995)
- Justices Scalia, Roberts, Thomas, and Alito in Armstrong v. Exceptional Child Center (2015)
- Justices Alito, Roberts, Kavanaugh, and Thomas in Mitchell v. Wisconsin (2019)
- Justices Thomas, Alito, Gorsuch, and Kavanaugh in Stokeling v. United States (2019)
These exceptions to rule show that Breyer, like the other liberals on the Court, did in limited instances agree with the conservative justices and in the same instances disagreed with the liberals on the Court. While these examples show that Breyer wasn’t unwavering in his ideological decisions, they also point to only a limited set of cases. Breyer should be recognized for his liberal decision making along with his attempt to bring consensus to an otherwise ideologically fractured Court. Since President Biden will most likely replace Breyer with another liberal justice, we should not expect an ideological swing from the post-Breyer Court. With this lack of change, the next justice should carry on his legacy, at least for the foreseeable future.
The Supreme Court Database was used for historical data in this post.
On Twitter @AdamSFeldman