U.S. Justice Breyer fortified abortion rights, doubted death penalty

[January 27, 2022]  By Lawrence Hurley

WASHINGTON (Reuters) -U.S. Supreme Court Justice Stephen Breyer has authored pivotal rulings bolstering abortion rights and safeguarding a landmark healthcare law while questioning the death penalty during 27 years as a liberal on a bench often dominated by conservatives.

Breyer, who U.S. lawmakers on Wednesday said would retire at the end of the court's current term, will leave a legacy as a moderating influence and a pragmatist on a court that has moved rightward during his tenure and currently has a commanding 6-3 conservative majority. At age 83, Breyer is the oldest of the current justices on the top U.S. judicial body.

He was appointed to the lifetime job in 1994 by Democratic President Bill Clinton. Only conservative Justice Clarence Thomas, who joined the court in 1991, has served longer among its current members. Breyer's retirement will not alter the court's ideological balance but will give Democratic President Joe Biden the chance to name a liberal replacement young enough to serve for decades.

In a speech last year, Breyer expressed faith in the court as an institution and defended it against accusations that its rightward shift had rendered it more politicized. Breyer noted among other things that the justices had turned away former President Donald Trump's efforts, based on false claims of widespread voting fraud, to overturn his 2020 election loss.
 

"These considerations convince me that it is wrong to think of the court as another political institution," Breyer said.

The court's conservatives have become increasingly bold during its current nine-month term, with rulings due by the end of June that could gut abortion rights and widen gun rights.

Senate Majority Leader Chuck Schumer, a Democrat, called Breyer a "model jurist" who "embodies the best qualities and highest ideals of American justice: knowledge, wisdom, fairness, humility, restraint." Senate Judiciary Committee Chairman Dick Durbin, a Democrat, praised Breyer as "a trusted voice on the bench with a first-rate legal mind." Republican Senator Lindsey Graham added, "He has always been a scholar and a gentleman whose record on the Supreme Court is solidly in the liberal camp."

As a member of the court's liberal wing, Breyer helped advance LGBT rights including joining the landmark 2015 decision legalizing gay marriage nationwide and the 2020 decision protecting gay and transgender employees from workplace discrimination.

Breyer authored two high-profile rulings defending abortion rights. In one of them, the court in 2016, on a 5-3 vote, struck down a Republican-backed Texas law that sought to impose restrictions on clinics and doctors who perform abortions, provisions that had caused some clinics to close. The other one, a 5-4 decision in 2020, struck down a Republican-backed Louisiana law with similar physician restrictions.

Breyer last year authored a ruling rejecting a Republican bid to invalidate the Affordable Care Act, former President Barack Obama's signature domestic policy achievement that has helped millions of Americans obtain healthcare coverage. The 7-2 ruling preserved the law, dubbed Obamacare, for the third time since its 2010 enactment.

Breyer also wrote a ruling last year in a major free speech case that sided with a cheerleader who had been punished by her high school for a profanity-laced social media post.

Liberal activists had urged Breyer to retire before Republicans could regain control of the Senate and thus block his replacement. 

'CRUEL AND UNUSUAL PUNISHMENT'

In 2015, Breyer questioned capital punishment's constitutionality. In a 41-page dissent joined by fellow liberal Justice Ruth Bader Ginsburg, Breyer wrote that "the death penalty, in and of itself, now likely constitutes a legally prohibited cruel and unusual punishment" under the U.S. Constitution's Eighth Amendment.

Breyer said innocent people have been put the death, capital punishment has been marred by racial discrimination and politics, its use varies wildly from place to place, there have been excessively long delays between sentencing and execution and it has been imposed arbitrarily.

Breyer dissented in major victories for the court's conservatives such as the 2000 ruling that halted ballot recounts in Florida, effectively handing the U.S. presidency to Republican George W. Bush over Democrat Al Gore after a disputed election.

He pursued compromises when possible.

Breyer was the swing vote when the court in 2005 ruled on a pair of cases questioning whether religious displays on public property violated the Constitution's First Amendment, which bars governmental endorsement of religion. Breyer was the only justice in the majority in both. The justices allowed a large monument of the biblical Ten Commandments on the grounds of the Texas Capitol but found that framed copies of the Ten Commandments could not be displayed inside two Kentucky courthouses.

Questioned last year during a session with school students about U.S. political fractures and polarization, Breyer said he remains "basically optimistic ." For all of its flaws, Breyer said, American democracy is, on balance, "better than the alternatives."

Breyer replaced liberal Justice Harry Blackmun on the court, securing Senate confirmation on an 87-9 vote. Breyer previously had been appointed in 1980 by Democratic President Jimmy Carter to the Boston-based 1st U.S. Circuit Court of Appeals.

Breyer was born in San Francisco on Aug. 15, 1938. He graduated from Stanford University in 1959 and two years later earned a degree from the University of Oxford. He graduated in 1964 from Harvard Law School, where he later served as a professor and lecturer.
 

He got his first taste of the Supreme Court as a clerk for Justice Arthur Goldberg. After a stint in the Justice Department's antitrust division, he worked under his former professor Archibald Cox, special prosecutor in the Watergate scandal that led President Richard Nixon to resign in 1974. Breyer also served as an aide to Massachusetts Democratic Senator Edward Kennedy.

Breyer married Joanna Hare, the British-born daughter of Lord John Blakenham, a former Cabinet minister and member of Britain's House of Lords. They had three children.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

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