Comment: With his retirement, Breyer avoids Ginsburg’s mistake

By Leah Litman / Special To The Washington Post

While Justice Stephen G. Breyer has not given his reasons for leaving the court, he may have learned some lessons from Justice Ruth Bader Ginsburg’s fateful decision to remain on the bench into President Donald Trump’s term. Despite his desire that the court not be viewed as a political body, Breyer appears to have bowed, in the end, to political reality.

Ginsburg reportedly said in her last days — in 2020 — that it was her “most fervent wish” that Trump’s successor, not Trump, select her replacement. Among other reasons, Ginsburg may have had in mind Trump’s promise to appoint justices who would overrule Roe v. Wade. While Ginsburg had nuanced thoughts about Roe, in a dissent in a 2007 case she wrote that women’s “ability to realize their full potential … is intimately connected to their ability to control their reproductive lives.”

But Ginsburg chose not to retire while President Barack Obama was in office despite frequent calls for her to do so. So, when Ginsburg died in September 2020, Trump got to nominate Amy Coney Barrett to replace her, and Republican senators quickly confirmed Barrett (even as absentee ballots were being cast in the presidential race). Sure enough, with Barrett on the court, the court allowed Texas to effectively nullify the right to an abortion. The court left in place — and continues to leave in place — a law that makes it impossible for women in the national’s second most populous state to obtain abortions more than six weeks after their last period.

Breyer had a front-row seat at that tragedy. He saw firsthand the vigor with which a Republican-chosen successor (and her fellow conservative justices) quickly undid so much jurisprudence that Ginsburg held dear in ways that went well beyond women’s reproductive autonomy. Consider voting rights. In 2013, when the Supreme Court invalidated a key piece of the Voting Rights Act, the so-called preclearance requirement (which required certain states with histories of racial discrimination to obtain permission before changing their voting laws), Ginsburg warned about a resurgence of “second-generation barriers” to minority voting, such as voter identification requirements or discriminatory legislative districting. Sure enough, after the dismantling of the preclearance requirement, states enacted a host of voting restrictions. Then, with Barrett in the majority, the Supreme Court made it easier for states to keep those restrictions in place by watering down the remaining protections in the Voting Rights Act.

Breyer’s judicial philosophy overlaps considerably with Ginsburg’s, and he has watched as his conservative colleagues have set about tearing down legal structures he helped to build. He, too, has written opinions protecting women’s ability to procure an abortion. But he also has his own areas of special interest. Before he arrived on the bench, he was a scholar of the administrative state and federal agencies. Breyer believes that the political branches — that is, Congress and the president — should be the ones to decide how policies are made, including through federal agencies, and that courts should largely get out of their way. As a justice, he has defended agencies’ authority to enact rules and regulations regarding health, safety and the environment, arguing that Congress’ choice to give agencies decision-making authority reflects the reality that agencies, not Congress, often have the relevant expertise. They are also often the institutions best placed to act quickly and deftly in response to changing circumstances.

Yet the newly appointed Republican justices appear interested in dismantling the modern administrative state. Earlier this month, the Republican-appointed justices invalidated a Occupational Safety and Health Administration’s policy designed to contain the spread of the coronavirus in the workplace (a mandate that employees be vaccinated or tested regularly). At the beginning of this term, the Republican-appointed justices invalidated another federal policy created in response to the pandemic: the Center for Disease Control’s moratorium on evictions. And the court is slated to hear a major case that will determine whether the Environmental Protection Agency has the authority to regulate greenhouse gases to address the looming threat of climate change.

Breyer has also written impassioned dissents arguing that the government has the constitutional authority to consider race when it seeks to address the persistent effects of racial discrimination in this country. He believes that universities may consider an applicant’s race in admissions decisions and that school districts may consider race in assigning children to schools, describing these issues as touching on the “nature of a democracy that must work for all Americans.” Yet last week, the court ominously said it would hear two cases addressing the question of whether universities may consider an applicant’s race as part of an holistic admissions decision. The court may be preparing to rule that public and private universities are forbidden to consider race even when trying to rectify past racial discrimination.

As Ginsburg did, Breyer has resisted calls for him to retire. But he’s surely seen the writing on the wall: Any Republican-selected successor would enthusiastically reverse decisions Breyer believes in, and undermine aspects of our government that he thinks helps it to function.

Granted, Breyer’s retirement will not stop the Supreme Court from destroying the administrative state, as Breyer understands it, or curtailing reproductive rights or outlawing race-conscious remedies for racial discrimination. But the timing of his decision ensures that he won’t be replaced by someone who rejects ideals and legal values that he stands for. It ensures that he won’t repeat the error of his friend Ruth Bader Ginsburg.

Leah Litman is an assistant professor of law at the University of Michigan and host of the Supreme Court podcast “Strict Scrutiny.”