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Justice Breyer's retirement gives Biden his first opportunity for a high court pick


Supreme Court Justice Stephen Breyer is expected to announce his retirement today. At 83, he has written many of the court's less glamorous but legally important decisions. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: If Stephen Breyer hadn't been a justice, Hollywood might have made him up. Deeply intellectual, fluent in not just law but philosophy, art and culture, he was also absent-minded, geeky, self-deprecatingly funny, physically fit, but so preoccupied that he, three times, suffered serious injuries when knocked off his bicycle. Among Breyer's most publicly well-known decisions was the one he wrote in 2016, striking down a Texas law that closed nearly half the clinics in the state without any demonstrable safety justification. The decision had no majestic language, but its effect was profound in reaffirming, at the time, the rights of women to terminate pregnancies.


STEPHEN BREYER: The closures mean fewer doctors, longer waiting times, increased crowding and significantly greater travel distances, all of which, when taken together, burden a woman's right to choose.

TOTENBERG: For the most part, though, Breyer's monuments were not so much the decisions that he authored, as the decisions that he influenced. Behind the scenes, he pushed and prodded his fellow justices for consensus on everything from Obamacare to affirmative action. In 2013, when the court's conservatives seemed poised to invalidate all affirmative action programs in higher education, the justices instead punted on the issue by a 7-to-1 vote. Justice Anthony Kennedy wrote the decision, but Breyer's hidden hand was said to be behind the compromised ruling. And three years later, Kennedy would, for the first time, embrace affirmative action in higher education.

Sunny in disposition, naturally optimistic, Breyer believed in persuasion and viewed a dissent as a failed opinion. But he did dissent, and sometimes passionately, as he did in 2007, when a five-justice majority struck down voluntary school desegregation plans in Louisville, Ky., where the schools had once been segregated by law, and in Seattle, where they'd been segregated in practice. As Breyer noted, the court had long allowed local school districts considerable leeway to prevent resegregation. But now it was striking down the same sorts of plans because of the votes of five justices, two of them new to the court.


BREYER: It is not often in the law that so few have so quickly changed so much.

TOTENBERG: It was hardly the only time that Breyer would see the court's handiwork, even his own work, quickly undone by a dramatically more conservative new court majority. Breyer, for instance, was one of the justices who wrote the court's majority opinion upholding a 2002 federal law aimed at limiting the influence of big money in campaigns, only to see the law gutted by a different and more conservative majority seven years later. Briefly despondent, he ultimately returned to his optimistic ways, always hoping to persuade and sometimes succeeding. But this year, faced with a 6-to-3 conservative supermajority apparently determined to reverse some longtime legal precedents that he cared deeply about, including abortion, Breyer decided it was time to go.

Stephen Gerald Breyer was born in San Francisco, where his father was a lawyer for the city's public schools. An academic star at Stanford, Harvard Law School and Oxford, Breyer would go on to spend decades as a professor at Harvard Law School but with several stints in Washington, in the Justice Department, then as an assistant prosecutor in the investigation of the Watergate scandal and as chief counsel for the Senate Judiciary Committee, then chaired by Senator Edward Kennedy. It was Kennedy's example that taught Breyer important lessons on how to forge consensus.


BREYER: He'd tell us, don't worry so much about credit. Credit is something where if you succeed, there will be plenty of credit to go around. And if you fail, who wants the credit?

TOTENBERG: While on the committee, Breyer helped enact legislation that deregulated the airline industry and legislation to make federal criminal sentencing more uniform. He was so successful that when President Carter nominated him to the federal appeals court based in Boston just days after Ronald Reagan was elected in 1980, Republicans let the appointment go through, an act of cooperation that is simply unimaginable today. Breyer served as an appeals court judge for 14 years, eventually becoming chief judge. And in 1994, President Clinton named him to the Supreme Court.

Once there, he proved a moderate liberal who worked well with moderate conservatives like Sandra Day O'Connor. When she retired and conservatives of a new brand began to populate the court, Breyer sought to make the public case against the conservative doctrine of originalism, often debating conservative Justice Antonin Scalia, now deceased. While Scalia argued that the Constitution must be interpreted as the Founding Fathers would have at the time it was written, Breyer countered that the founders understood perfectly well that nothing is static, citing, for example, the Constitution's ban on cruel and unusual punishment.


BREYER: Flogging as a punishment might have been fine in the 18th century. That doesn't mean that it would be OK and not cruel and unusual today.

TOTENBERG: What's more, he observed in an NPR interview, even historians don't agree on what the founders meant at the time they wrote the Constitution.


BREYER: History is very often, in these matters, a blank slate or a confused slate. And if you want to govern the country by means of that history, then you better select nine historians, and not nine judges, to be on the court. And I'll tell you, those nine historians will very often disagree with each other.

TOTENBERG: The job of a Supreme Court Justice, Breyer said, is to apply the Constitution's values to modern circumstances, using the tools of judging, precedent, text, and the purpose of the constitutional provision at issue. You can think of the Constitution as laying down certain frontiers or borders, he said.


BREYER: And we're the Border Patrol. Life on the border is sometimes tough, and whether a particular matter - abortion or gerrymandering or school prayer - whether that's inside the boundary and permitted or outside the boundary and forbidden is often a very, very difficult and close question.

TOTENBERG: Nina Totenberg, NPR News, Washington.


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