Conservatives may not agree with liberal Supreme Court Justice Stephen G. Breyer on much. But they should celebrate his legacy as he retires later this year, because he has stood up for judicial independence — something Democrats now oppose.
It was Breyer who wrote the majority opinion in National Labor Relations Board v. Noel Canning (2014), in which then-President Barack Obama tried to declare the Senate in recess so he could appoint left-wing board members to the NLRB.
The Court smacked Obama down with a 9-0 unanimous opinion that included Obama’s own appointees, Justices Sonia Sotomayor and Elena Kagan. Breyer delivered a careful rebuke to Obama’s attempt to exceed his constitutional powers.
Breyer also joined a part of the majority opinion in NFIB v. Sebelius (2012), the Obamacare case, in which he agreed efforts to force the states to accept the Medicaid expansion violated the Tenth Amendment — an argument Democrats had ridiculed.
And Breyer respected religious liberty, to the extent that he wrote a concurring opinion in American Legion v. American Humanist Association (2019), agreeing that a cross mounted at a World War I memorial did not violate the First Amendment.
Similarly, in Trinity Lutheran v. Comer (2016), he wrote a concurring opinion in a First Amendment case in which the Court struck down a Missouri state government policy of denying public funds for resurfacing playgrounds to religious schools.
Perhaps Breyer’s greatest opinion was his partial dissent in Bush v. Gore, the case in which the U.S. Supreme Court halted the Florida recount, essentially handing the state’s 25 Electoral College votes — and the 2000 election — to George W. Bush.
The case was widely misconstrued by Democrats, who accused the Court’s majority of Republican appointees of seizing power on behalf of their political patrons. (In fact, the per curiam decision to stop the “standardless” Florida recount was a lopsided 7-2 decision, though the judges did split 5-4 on whether another method to continue the recount could be found.)
But Breyer’s opinion was prescient: he argued that the Supreme Court should not have taken up the case at all, but rather should have let the election, if still undecided in the Electoral College, be decided by the U.S. House of Representatives, according to the Twelfth Amendment. The winner would likely have been the same, given the Republican majority in the House at the time, but the Court would not have been sullied by the perception of meddling in a Democratic election.
Breyer wrote (original emphasis):
[T]he Twelfth Amendment commits to Congress the authority and responsibility to count electoral votes. A federal statute, the Electoral Count Act, enacted after the close 1876 Hayes-Tilden Presidential election, specifies that, after States have tried to resolve disputes (through “judicial” or other means), Congress is the body primarily authorized to resolve remaining disputes.
However awkward or difficult it may be for Congress to resolve difficult electoral disputes, Congress, being a political body, expresses the people’s will far more accurately than does an unelected Court. And the people’s will is what elections are about rather than the courts.
…
[I]n this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. … [W]e do risk a self-inflicted wound — a wound that may harm not just the Court, but the Nation.
…
I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary “check upon our own exercise of power,” “our own sense of self-restraint.” United States v. Butler, 297 U. S. 1, 79 (1936) (Stone, J., dissenting). Justice Brandeis once said of the Court, “The most important thing we do is not doing.” Bickel, supra, at 71. What it does today, the Court should have left undone.
His warning was on target. Democrats considered the Court to have become just another political body, and launched renewed efforts to appoint highly partisan judges to the federal bench, as well as to filibuster Republican nominees — and, later, to begin to dismantle the Senate filibuster on judicial nominees when a Democrat occupied the Oval Office.
Arguably, the Court might have intervened in some of the cases involving the 2020 election, creating clarity for the public and resolving serious constitutional questions, if not for the unpleasant experience of the Bush v. Gore case and its aftermath.
In recent months, Breyer has again been a powerful voice against politicizing the judiciary, speaking out publicly against Democrats’ effort to pack the Supreme Court by adding seats and filling the subsequent vacancies with liberal nominee.
In a 2021 speech to Harvard Law School, Breyer warned court-packing advocates to “think long and hard” about the risks.
In sum, Justice Stephen Breyer has been a liberal — but a moderate one, vigilant about protecting judicial independence, including against efforts by left-wing partisans to cancel religious liberty and weaken the Constitution’s separation of powers.
As President Joe Biden considers candidates to replace Breyer, conservatives — despite having little leverage to stop a confirmation — should insist any nominee live up to Breyer’s example of moderate liberalism and loyalty to the Constitution.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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