Stanford Law Faculty on Justice Breyer’s Retirement

On Thursday, January 27, Supreme Court Justice Stephen Breyer (BA ’59) announced his plan to retire when the Court begins its summer recess this year, “assuming that by then my successor has been nominated and confirmed.” Here, Stanford Law faculty members discuss his legacy.

Mills Legal Clinic Test 2
Stanford Law Professor Jeff Fisher

From Jeffrey L. Fisher, Professor of Law and Co-Director of Stanford’s Supreme Court Litigation Clinic:

I first met Justice Breyer in 1998, when I had the privilege of serving as a law clerk to Justice John Paul Stevens.  At the time, Justice Breyer was the junior Justice on the Court, in just his fourth year on the bench. It probably comes as no surprise, therefore, that he was extremely energetic, bubbling over with ideas, and eager to learn from his colleagues and even the lawyers who appeared before him.

What is perhaps more remarkable, however, is that Justice Breyer never really changed.  The Justice has now served nearly 30 years on the Court.  He is the senior Justice in what some describe as the liberal wing of the Court. Yet in all of the recent arguments in which I have participated or observed, he has displayed the same ebullient, engaged, and searching mind that he brought to the bench all of those years ago.  When Justice Breyer asks a lawyer a question, he really wants to know the answer. Instead of grandstanding or making rhetorical points, he almost seems to hope that his assumptions will be proven wrong—that he will uncover some unexpected fact, insight, or solution to the problem at hand.  That sort of openness to ideas and information is rare indeed.

In terms of his substantive approach to cases, Justice Breyer has continually urged the Court to consider the practical consequences of its decisions.  He also seeks to nurture the Court’s role in our constitutional democracy, and to display humility in areas in which the Court lacks expertise.  In short, Justice Breyer has been an invaluable asset to the Court—and to the country.  We should celebrate his service, and we will miss the man who his clerks have called the “happy warrior.”

From Jenny Martinez, the Richard E. Lang Professor of Law and Dean of Stanford Law School and former Breyer law clerk:

Stanford Law School Dean Jenny Martinez

When I was a law clerk for Breyer, he had a rule that his opinions should have no footnotes (legal citations in the text were permitted). This was a fairly shocking policy. Most lawyers love footnotes, the perfect place to tuck in random caveats and muddy the waters.

But Breyer didn’t write just for the lawyers, or at least not the ones who love footnotes. His approach was driven by a belief that the Constitution belongs to “we the people,” as stated in its preamble — and that the people ought to be able to understand what the Supreme Court is saying.

(Continue reading the opinion essay on The Washington Post’s page here.)

From Michael McConnell, Richard and Frances Mallery Professor of Law and Director of Stanford’s Constitutional Law Center:

A More or Less Perfect Union: Preview of forthcoming PBS Documentary and Conversation between Michael McConnell and Judge Doug Ginsburg
Stanford Law Professor Michael McConnell

With Justice Stephen Breyer’s retirement, the Court will lose an important voice from the moderate left, and the Court’s sharpest mind in the fields of administrative law and regulation. He is a pragmatic, non-dogmatic Justice, empirically minded and open to sensible arguments from a variety of perspectives.