Justice Stephen Breyer, Pragmatic Jurist Who Doubted Constitutionality of Capital Punishment, to Retire from Supreme Court

U.S. Supreme Court Justice Stephen Breyer (pic­tured), whose grow­ing doubts about cap­i­tal pun­ish­ment led him to ques­tion its con­sti­tu­tion­al­i­ty, is retir­ing after 28 years on the Court. The 83-year-old jus­tice for­mal­ly announced his retire­ment in a January 27, 2022 let­ter to President Joe Biden, say­ing that he will step down ​“when the Court ris­es for the sum­mer recess this year … assum­ing that by then my suc­ces­sor has been nom­i­nat­ed and con­firmed.” Biden said the same day that he intends to announce a nom­i­nee by the end of February, and that he will ful­fill his cam­paign promise to nom­i­nate the first Black woman to serve on the Court.

Throughout his near­ly three-decade tenure on the Supreme Court, Breyer has main­tained a rep­u­ta­tion as a cen­trist jurist. In news cov­er­age of his retire­ment, Supreme Court reporters Adam Liptak of the New York Times and Nina Totenberg of NPR both described him as ​“mod­er­ate­ly lib­er­al.” SCOTUSblog’s Amy Howe described him as ​“a devot­ed prag­ma­tist.” A study released just days before his retire­ment announce­ment found that his vot­ing record has been slight­ly more con­ser­v­a­tive than his fel­low jus­tices appoint­ed by Democratic presidents. 

In remarks on Breyer’s retire­ment, President Biden said, ​“I think he’s a mod­el pub­lic ser­vant in a time of great divi­sion in this coun­try. Justice Breyer’s been every­thing his coun­try could have asked of him.” Breyer’s retire­ment comes at a time when Democrats have a bare major­i­ty in the Senate. In an effort to pre­vent polit­i­cal manip­u­la­tion of the con­fir­ma­tion process, he spec­i­fied that he will not retire until a suc­ces­sor is confirmed.

Like many of his cen­trist pre­de­ces­sors on the Court, includ­ing Justices Harry Blackmun, Lewis Powell Jr., and John Paul Stevens, Breyer once believed that the death penal­ty was con­sti­tu­tion­al. His time on the Court changed his view. Breyer’s most notable death penal­ty opin­ion — one that many Court observers say will be a defin­ing fea­ture of his lega­cy — was his dis­sent in the 2015 lethal-injec­tion case Glossip v. Gross. In a sweep­ing analy­sis of more than four decades of evi­dence, he pre­sent­ed ​“three fun­da­men­tal con­sti­tu­tion­al defects” that he said ​“lead me to believe that the death penal­ty, in and of itself, now like­ly con­sti­tutes a legal­ly pro­hib­it­ed ​‘cru­el and unusu­al punishmen[t].’” Those defects, he said, were its ​“seri­ous unre­li­a­bil­i­ty,” includ­ing ​“con­vinc­ing evi­dence … that inno­cent peo­ple have been exe­cut­ed”; its arbi­trary and dis­crim­i­na­to­ry appli­ca­tion; and ​“uncon­scionably long delays that under­mine the death penalty’s penological purpose.”

Columnist David von Drehle wrote in the Washington Post that, ​“If the day comes when the Supreme Court ends cap­i­tal pun­ish­ment in the United States, Breyer will have paved the way.” He com­pared Breyer’s Glossip dis­sent to Justice John Marshall Harlan’s dis­sent­ing opin­ion in Plessy v. Ferguson, writ­ing that ​“some­times a his­toric win arrives decades after the fact.” New Republic staff writer Matt Ford sim­i­lar­ly wrote: ​“dis­sents are not mere­ly an expres­sion of dis­ap­proval or a vain shout into the void. They speak to future gen­er­a­tions, and if the Supreme Court ever reach­es the same con­clu­sion as Breyer did in 2015, those jus­tices will point to his dis­sent to get there.”