Examining Justice Breyer’s legacy and how his retirement may change the court

Justice Stephen Breyer leaves a storied legacy as he prepares to step down after more than 27 years on the bench. To reflect on what his absence will mean for the future of the Supreme Court, Judy Woodruff is joined by legal veterans Gregory Garre, a former U.S. Solicitor General who has argued in front of the court, and Neal Katyal, former acting U.S. solicitor general, who clerked for Breyer.

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  • Judy Woodruff:

    Supreme Court Justice Breyer will leave behind a storied legacy, as he prepares to step down after more than 27 years on the bench.

    To reflect on what his absence will mean for the future of the court, I'm joined by two legal veterans, Gregory Garre, a former U.S. solicitor general who has argued several cases in front of the court, and former acting U.S. Solicitor General Neal Katyal, who clerked for Justice Breyer.

  • Judy Woodruff:

    Welcome to the program to both of you.

    Neal Katyal, I'm going to ask you, what was it like to argue a case before Justice Breyer?

  • Neal Katyal, Former Acting U.S. Solicitor General:

    It was always tough.

    I have done 45 before him. And he is able to get to the heart of the issue, at least in the way he sees it, with usually a long hypothetical. The advantage of that would be that you would have time to think about the hypothetical before answering it, unlike, say, Justice Kagan, who has more staccato questioning style.

    And it allowed a conversation between justice and advocate. So, I thought he was just phenomenal at oral argument, was always a delight. And his written opinions are really works to behold.

  • Judy Woodruff:

    Gregory Garre, what about you? You also argued before Justice Breyer. How is he different from the other justices?

  • Gregory Garre, Former U.S. Solicitor General:

    He's a real delight to appear before, and I think, as Neal said, is — what's most distinctive about his style at oral argument is, he would ask very long questions, and would immediately bring you back as a law student, and you are trying to keep up with his questions and answer them.

    And it was a great challenge, but also a great — a lot of fun during oral argument.

  • Judy Woodruff:

    This is kind of a big question, Neal Katyal, but what would you say his main contributions were over the course of his career on the court? And it's not ended. He's there until the summer.

  • Neal Katyal:

    Yes, I would say the president today singled out a line that Justice Breyer said in his confirmation hearings back in the 1990s, that he believed government should work for the people.

    And that was really his mantra both when I was clerking for him, and you see it in the written opinions that he's — that he's authored. And it means really listening to experts on things like COVID regulation, or greenhouse gas regulations, or affordable health care, things like that, all of which he fought hard for and was often successful in winning those battles at the court.

    He really does, to my mind, to carry on Chief Justice John Marshall's legacy of trying to interpret a Constitution in a flexible way that's adapted to the crises of human affairs.

  • Judy Woodruff:

    What is your perspective on that, Gregory Garre? How do you see what difference he's made as a justice?

  • Gregory Garre:

    I think that's right.

    I mean, the one thing that was really different about Justice Breyer is, he was very much a pragmatist, very much a consensus-builder. And you could see that in his opinions. He was in favor of multifactored tests and balancing inquiries, which, in some sense, could frustrate people looking for a clear rule, but, in another sense, was easy to adapt to the particular facts before him.

    And I think that's an important part of his legacy. And I also think that, more recently, he's been very outspoken in defending the court as an institution, including against attacks and suggestions of court packing and the like.

    And I think that that will end up being an important part of his legacy as well, his defense of the court.

  • Judy Woodruff:

    And I wanted to ask the two of you about that, because it seems Justice Breyer has gone out of his way recent — in recent months, years, even, to talk about the importance of a court that is not seen as partisan.

    I saw today that even Senate Republican Leader Mitch McConnell, in his statement, praised Justice Breyer for what he said was his commitment to the importance of a nonpartisan, nonpoliticized judiciary. He said it's been especially admirable.

    Neal Katyal, is that something we can expect to see continue on the court, this push for the court to remain in some way nonpartisan?

  • Neal Katyal:

    Well, I hope so.

    But I think it's tough, because I think that losing Justice Breyer is losing the most solid, most reliable vote for civility and apolitical interpretation of the law. I mean, that's what his career stood for. I mean, as law clerks, we're 26 years old or so. We get upset when we see our boss attacked.

    Justice Scalia, for example, attacked him in some written opinions. And we wanted him to say something back. And that was never what he did, never once, because he believed so much in civility. And I think you saw it also in his speech today that Justice Breyer gave at the White House, in which he started by talking about, what is the majesty of the law?

    It's that 330 million Americans who are far-flung, of every religion and race and political ideology, they agree to resolve their differences through the rule of law. That's something he really celebrated. And I hope that the other justices will take that up in the same way as he does.

    I think the chief justice has been a very strong part of that. And I expect that to continue.

  • Judy Woodruff:

    Gregory Garre, how do you see the court in the future when it comes to any effort to keep it from appearing driven by partisanship?

  • Gregory Garre:

    I think all the justices will rally around that, because they will see it as so important to the future and functioning of the institution.

    But I do think this is a very important point, and that the replacement, although may not move the court in terms of ideologically, because it will still only be three more liberal members, but the tone that the person takes could be quite important in terms of how the court is perceived. And whether or not that person is going to be as ardent defender of the institution as Justice Breyer remains to be seen.

  • Judy Woodruff:

    And, Neal Katyal, let's talk about, how different could the court become?

    We presume — we know who the — some of the names are who've been suggested. President Biden has made it clear he's going to appoint a Black woman. How do we expect the court is going to change in the future with another justice?

  • Neal Katyal:

    Well, the Supreme Court is really quite conservative at this point, far more so than the American public.

    And you just flashed, Judy, on the screen a statistic which showed that Republicans have nominated 15 justices over the last 30 or 40 years. Democrats have nominated four. And so that's really changed the matrix of the court a lot.

    And I think Greg is absolutely right to say that whoever replaces Justice Breyer is probably not going to change the ideology of the court very much, because it's maybe one relatively liberal justice being replaced by another one. So, it's — in that sense, this vote is not quite as important.

    I do think some of the names that are being floated around, like Ketanji Jackson and Leondra Kruger, these are spectacular, spectacular names. And we're so lucky to have people like that on the so-called short list.

  • Judy Woodruff:

    Gregory Garre, how do you see the court changing, given some of the names that are now out there?

  • Gregory Garre:

    I think that's right.

    I mean, I don't think we're going to see a big change in the replacement, like we saw with Justice Barrett replace Justice Ginsburg, which was a complete flip in the seat.

    But I do think that the tenor and tone that the new justice takes will be important. And the other thing that's going to happen is that Justice Sotomayor is going to become the senior justice in the liberal bloc, and so can decide when to take the lead on dissents or opinions where she's in the majority. And that could have a significant impact on the tone of the court's opinions as well.

  • Judy Woodruff:

    What do you mean by that?

  • Gregory Garre:

    Well, she's been a little bit more outspoken, and we have seen it more recently in some of her comments, for example, during the Texas case that was argued a month or so ago, in really sort of calling out the conservative bloc for perhaps moving more quickly than she thinks that the court should.

    And so I think, if she takes the role as the senior justice on the more liberal side and begins writing more frequently, I think we may see a more aggressive tone on the left.

  • Judy Woodruff:

    Well, we are all certainly going to be watching this process as it moves ahead.

    Gregory Garre, Neal Katyal, thank you both very much for joining us. Thank you.

  • Neal Katyal:

    Thank you. Thank you.

  • Gregory Garre:

    Thanks, Judy.

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