Courts

Everyone's Got Something To Say About Justice Stephen Breyer's Retirement

The soon-to-be former justice is the talk of the town.

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Justice Stephen Breyer At Harvard

(Photo by Paul Marotta/Getty Images,)

With the news of Justice Stephen Breyer’s decision to retire from the Supreme Court came a tsunami of statements from partners at some of America’s most elite firms, professors at top law schools, leaders of nonprofits of all stripes, politicians from both sides of the aisle, and some of Breyer’s own former clerks. Here are a select few that we received here at Above the Law. We will provide updates throughout the day.

CONSTITUTIONAL ACCOUNTABILITY CENTER

“We are indebted to Justice Breyer for his decades of service to the Supreme Court, the Constitution and laws of the United States. His service to the Constitution led him to uphold the equal citizenship of women, sharply question the constitutionality of capital punishment, reaffirm the fundamental right to vote, defend the constitutionality of affirmative action, and underscore the power of the federal government to protect our environment. Even though others on the Court would more readily embrace the label of originalist, Justice Breyer frequently and powerfully rooted his defense of fundamental rights in the text and history of the Constitution.

“We urge President Biden to nominate as Justice Breyer’s successor a justice who will honor and extend Justice Breyer’s legacy of fidelity to the Constitution and its arc of progress, and look forward to the fulfillment of his promise to nominate the first Black woman in our nation’s history to serve on the Court.” — CAC President Elizabeth Wydra

“Justice Breyer’s legacy will be defined in large part by his broad ideas about our system of government. He is a pragmatist who believes deeply that our Constitution and our government should work for the American people, and those beliefs in turn have shaped the way he thinks about the role of the courts in our system of government.

“Because he thinks the law should work for people, Justice Breyer cares deeply about the real-world context in which the Court is operating, as well as the consequences of the Court’s decisions. Those concerns are clearly evident in many of the opinions he has written over the years in cases ranging from reproductive rights to school desegregation to the scope of congressional power.

“While he was frequently in dissent over the course of his time on the Court, he always remained optimistic, confident that in the end our government will work, and the courts will play an important role in making that happen. That optimism and confidence will also be an important part of his legacy.” — CAC Chief Counsel Brianne Gorod, a former Breyer clerk

FIX THE COURT

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“Justice Breyer’s retirement will be the latest in the modern trend of politically timed retirements at the Supreme Court. While we know Breyer is a true believer that the Court is an independent, apolitical institution, the nomination and confirmation scheme as it currently exists makes that an impossibility.

“Until we move to regularized appointments and term limits, the only logical choice for Supreme Court justices truly committed to their life’s work is to time their retirements so a like-minded successor can hold the seat for the ensuing 30-plus years. That’s partly what makes SCOTUS the most powerful, least accountable body of Washington.

“To depoliticize the Court and take power away from its nine self-styled philosopher-kings, Congress should remove the decision of when to step down from each individual justice.

“Justice Breyer will have served an honorable 28 years at the Supreme Court. Much like his questions at oral argument, that will be about twice as long as it should have been.” — FTC Executive Director Gabe Roth

JUDICIAL CRISIS NETWORK

“The Left bullied Justice Breyer into retirement and now it will demand a justice who rubber stamps its liberal political agenda. And that’s what the Democrats will give them, because they’re beholden to the dark money supporters who helped elect them.” — JCN President Carrie Severino

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PEOPLE’S PARITY PROJECT

“We applaud Justice Stephen Breyer for making the decision to retire and allow President Biden the opportunity to carry out his promise of nominating the first Black woman to the Supreme Court. While his retirement won’t be the ultimate solution to repairing a Court committed to dismantling democracy, it is an historic moment that will allow us to move one step closer to a Court that represents the diversity and experiences of people throughout the country.

“However, it remains critical that Congress expand the Court to move us to a place where the legal system is not beholden to far-right and pro-corporate interests and priorities. We implore President Biden, as we have since the start of his presidency, to prioritize professional diversity as he selects Justice Breyer’s successor. It is imperative that we normalize having public interest attorneys on the bench; that eperience is woefully missing on the highest court of the land. We look forward to President Biden moving to correct that.” — People’s Parity Project’s Policy & Program Director Tristin Brown

PAUL WEISS

“Justice Breyer is the perfect combination of brilliance about the law, optimism about our institutions, and pragmatism about the world around him – all of which may have led to his decision today. It was an honor to clerk for him – the bench will not be the same without him but even in his retirement he will be contributing to the strength of the Court.” — Karen Dunn, Partner at Paul, Weiss LLP, a former Breyer clerk

HUMAN RIGHTS CAMPAIGN

“With Justice Stephen Breyer’s retirement, the Supreme Court is losing a brilliant legal mind and a champion of liberty and equality. Justice Breyer’s tenure on the Court established him as a defender of LGBTQ+ civil rights and his decisions delivered important progress toward our country’s founding ideal of a more perfect union that is inclusive and equitable for all. The Human Rights Campaign is deeply grateful for Justice Breyer’s impact.

“The stakes could not be higher for LGBTQ+ people, women, and Black and brown communities when it comes to the next Supreme Court Justice. President Biden’s first nominee has big shoes to fill, as they will shape the future of progress on LGBTQ+ equality and play an outsized role in defending the rights and protections that have already been won. President Biden has the opportunity to help shape a court that reflects the beautiful diversity of our country.” — HRC Interim President Joni Madison

LAMBDA LEGAL

“During his nearly three decades on the Court, Justice Breyer has been a reliable defender of the civil rights of LGBTQ+ people, having helped secure majority decisions in the Supreme Court’s five landmark LGBTQ+ rulings – Romer v. Evans, Lawrence v. Texas, U.S. v. Windsor, Obergefell v. Hodges, and most recently, Bostock v. Clayton County. And just last term, Justice Breyer has authored a number of decisions of tremendous significance to the LGBTQ community, including California v. Texas, rebuffing the latest attack on the constitutionality of the Affordable Care Act, and Mahanoy Area School District v. B.L., which affirmed the free speech rights of students while emphasizing the duty of schools to address harassment and bullying.

“We strongly urge President Biden to select a nominee whose commitment to equal justice under law is beyond question, and whose record demonstrates their understanding that LGBTQ+ people are entitled to the full protection of the Constitution’s guarantees of equality and liberty. We also note that this retirement presents President Biden with a historic opportunity to address the fact that, for too long, our Supreme Court has not adequately reflected the diversity of the legal profession or our country as a whole. We look forward to the President honoring his campaign commitment to nominate a Black woman to the Supreme Court, achieving a long overdue “first” for that institution.

“While we recognize that there will be significant energy devoted to filling this Supreme Court vacancy in the coming weeks and months, we urge the President and the Senate not to lose sight of the importance of filling vacancies in the lower courts, which also fail to reflect the diversity of our country. As noted in our recent report assessing the first year of the Biden administration, the lack of representation is particularly acute with respect to LGBTQ+ judges on the federal bench, with only 14 openly lesbian or gay federal judges out of 870, a mere 1.6%, and no openly transgender, nonbinary or bisexual judges. The credibility of our entire judicial system turns in significant part on whether the public can have confidence that all who seek justice will be treated as having equal dignity and worth in the eyes of the law, and for that reason, representation matters as much on the bench as it does in other spheres of life.

“After 50 years of struggle and sacrifice since Stonewall, our country has come to know LGBTQ+ people and most now recognize our right to equal protection under law. And yet we know that the forces seeking to rollback those rights are more emboldened than ever before. All people, including but not limited to those of us who are LGBTQ+, need and deserve judges who will uphold the Constitution, apply its principles fairly, and protect the rights of everyone, not just those with power. The lives of LGBTQ+ people and their families hang in the balance.” — Lambda Legal Chief Strategy Officer and Legal Director Sharon McGowan

STAND UP AMERICA

“With Justice Breyer’s retirement, President Biden has an opportunity to secure a seat on the bench for a justice committed to protecting our democracy and the constitutional rights of all Americans, including the freedom to vote.

“President Biden promised to appoint the country’s first-ever Black woman Supreme Court justice, and he must make good on that promise. The president and vice president’s voters are watching eagerly to see that he follows through and makes history with his first Supreme Court nomination.

“The Supreme Court is dangerously imbalanced, with a 6-3 conservative supermajority actively eroding voting rights, abortion rights, environmental and worker protections, and more. While this is a critical appointment, Congress must still act to restore balance to the court by passing the Judiciary Act, which adds four seats to the bench.” — SUA Founder & President Sean Eldridge

NORTHWESTERN LAW

“Stephen Breyer served on the Supreme Court with a steady moderation and pragmatism. He was a liberal justice who sided with conservatives on some issues, notably criminal justice cases, where he searched for practical solutions to difficult questions. But he was a strong protector of fundamental rights and freedoms. He stood out most for his unusually self-deprecating humor — in an environment that emphasizes hierarchy, he did not mind making jokes about his own technological amateurism or his sometimes-meandering questions at oral argument.

“He may have learned the lesson of his long-time colleague, Justice Ginsburg, to not leave his retirement too late; though at 83, he had a long and storied term on the Bench.” — Tonja Jacobi, Stanford Clinton Sr. and Zylpha Kilbride Clinton Research Professor of Law, Northwestern Law

“The Supreme Court is already dangerously skewed to the right, and Breyer’s reluctance to retire made the danger worse. This was a good decision. If Ruth Ginsburg had done the same thing early in Obama’s first term, we would be living in a different world.” — Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern Law

SOUTH TEXAS COLLEGE OF LAW

“Justice Breyer has announced his retirement much earlier than his predecessors. Justice Souter announced on May 1, 2009, and Justice Stevens announced on April 9, 2010. Given this early notice, we could have a confirmation hearing in April or May. Usually, a Justice steps down upon the confirmation of their replacement. But given this early notice, a replacement could be confirmed before June.

“In all likelihood, the Supreme Court will have added four new members in the span of six years. Justice Gorsuch was confirmed in April 2017, Kavanaugh in October 2018, Barrett in October 2020, and now Breyer’s replacement in 2022.

“The last time the Supreme Court saw such a rapid turnover was during President Nixon’s tenure. Chief Justice Burger was confirmed in 1969, Justice Blackmun in 1970, and Powell/Rehnquist were confirmed in 1971.” — Josh Blackman, associate professor, South Texas College of Law

AMERICAN CIVIL LIBERTIES UNION

“Justice Breyer has long been a voice and a vote for civil liberties, human dignity, the right to vote, and good governance. In the best tradition of a justice, he has paid careful attention to the implications of the court’s rulings for ordinary people and for the administration of justice. From protecting abortion rights to indicting the death penalty to safeguarding free speech and civil rights, Justice Breyer has demonstrated his commitment to the Constitution’s highest ideals. Justice Breyer hasn’t always ruled for us, but he has always earned our respect.

“The next justice will help determine the course of our nation’s future, and in particular, the freedoms and rights of its people. We call on the president and the Congress to appoint a nominee who will respect and defend the Constitution, the fundamental institutions of our democracy, and the rights of the most vulnerable among us.” — ACLU National Legal Director David Cole

COOLEY

“As both a Justice and a boss, Justice Breyer has been the embodiment of reasonableness and collegiality. When I clerked for him, he always listened with an open mind, and however strongly he disagreed on the merits, he only spoke kindly in disagreement. On one particular case, after quite a lot of research, I encouraged him to take a certain position that, after a significant amount of back and forth, he ultimately declined. His response? ‘Thank you for this. I learned a lot, and you didn’t waste your time.’ He was also a consummate consensus builder, enjoying warm relations with all his colleagues around the building. Indeed, he discouraged us from worrying about taking credit for something, calling credit a weapon: ‘if you succeed, there will be enough credit to go around, and if you don’t, who wants the credit?’ The world would be better if we all comported ourselves a bit more like Stephen G. Breyer. His influence on the Court is hard to overstate, and the Court as an institution will not be the same without him.” — David Louk, associate at Cooley, a former Breyer clerk

JENNER & BLOCK

“Justice Breyer believes passionately in the importance of the Court’s role in stabilizing and fostering democracy, and in the importance of the Court’s credibility as an institution committed to rule of law. He approaches each case with an open mind, tries hard to understand the strongest points of each side, and has a deep commitment to the power of ideas and dialogue, both to persuade and be persuaded.

“Justice Breyer is known in the Court for his humorous and creative hypothetical questions in arguments intended to test the limits of an advocate’s position; it was always fun to hear what scenario might occur to him during argument.

“Justice Breyer’s legacy is his commitment to public dialogue, in the court and in our democracy, and to the Court’s credibility as an impartial institution that protects the rule of law. He also helped Americans understand the role of the Court and what it does – both from his role on the bench and in the books he wrote.” — Matthew Price, Partner at Jenner & Block, a former Breyer clerk

NATIONAL ASIAN PACIFIC AMERICAN WOMEN’S FORUM

“We thank Justice Breyer for his decades of service, defending the right to abortion, health care, and our civil liberties. Justice Breyer’s opinions in Whole Woman’s Health v. Jackson and June Medical Services LLC. v. Russo helped fend off attacks on abortion access, which continue to intensify.

It is long past time that those who sit on the Supreme Court reflect the make-up of our country. The stakes are high and we look forward to President Biden honoring his commitment to appoint a Black woman to the Supreme Court.

We need a justice system that is committed to equality so that communities of color, including Asian American and Pacific Islander (AAPI) women and girls, can live free from discrimination and violence.” — National Asian Pacific American Women’s Forum Executive Director Sung Yeon Choimorrow

PLANNED PARENTHOOD

“Justice Breyer has been one of our strongest defenders of reproductive freedom, and we at Planned Parenthood thank him for his decades of service to the nation. His retirement comes at a time when access to abortion and other fundamental rights are under attack like never before, in no small part because the federal courts have allowed states to severely restrict the constitutional right to abortion. These threats show no signs of slowing down, and our Supreme Court should reflect our values and defend our constitutional rights. We’re calling on President Biden to swiftly nominate a qualified candidate who knows that the Constitution protects individual liberty and our right to make decisions about our own bodies. They must also be a bold force working to end our country’s two very different, racially-divided, systems of justice.” — Planned Parenthood Federation of America President and CEO Alexis McGill Johnson

Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

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