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Some Thoughts as Justice Breyer Leaves the Court

By Robert C. Montgomery

Much has been written about the soon-to-be newest justice on the United States Supreme Court, Ketanji Brown Jackson. And much probably will be written about Justice Stephen Breyer as he leaves the Court. I was thinking about Justice Breyer’s legacy and how his departure will change the Court. While the replacement of one left-of-center justice with another will not change the ideological balance on the Court, we will have to wait to see if Judge Jackson moves the needle a little farther to the left than did Breyer. And it appears certain that one great intellect is being replaced with another. From a jurisprudential standpoint, time will tell how the Court changes. But one thing is certain: without Justice Breyer, it won’t be the same.

With apologies to the remaining members of the Court, the retirement of Justice Breyer is likely to continue one trend at the Court as it loses one of its most interesting members: it will become more boring. And I don’t mean that in the legal sense–after all, there are plenty of important and interesting cases at the Court–but really in a much more basic sense.

Some may find being more boring a good thing for the Court. After all, there were critics of the celebrities that justices like Antonin Scalia and Ruth Bader Ginsburg had become. But no one can argue that they weren’t the rock stars of the Court. After their deaths and now with the departure of Justice Breyer, exactly who are the rock stars of the Court? Justice Sotomayor perhaps as she is noted for asking tough questions of the advocates? Justice Kagan, recognized as the most interesting writer of the Court? Notwithstanding their abilities as justices, it is hard to say that at this point the most recent three appointments have spiced anything up on the Court. To the extent that the justices should just be umpires calling balls and strikes, anonymity generally has been the hallmark of a good umpire.

Even though being a good justice means different things to different people, being entertaining is not one of the required abilities. That being said, it sure was fun to have Justice Breyer on the Court.

Justice Breyer’s loss means the loss of a number of interesting qualities:

  1. Hypothetical questions. — No one asks more hypotheticals, better hypotheticals, complex hypotheticals, confusing hypotheticals than he does. It just won’t be the same without them.
  2. Wit, sometimes intentional and sometimes not. — When Justice Scalia was on the Court, Justice Breyer was right behind him in terms of garnering the most laughter during oral arguments. My personal favorite was when he discussed someone having a “pet oyster.”
  3. His love for the Federal Sentencing Commission and the Federal Sentencing Guidelines. — Justice Breyer was an ardent defender of the Federal Sentencing Guidelines. Indeed, he was considered by some to be one of the “parents” of the guidelines, having served on the first Sentencing Commission that created them. He liked to discuss the Commission and mentioned it in an oral argument as recently as January.