Minority report: How justices from Harlan to Breyer shaped legal opinion

With Justice Stephen Breyer announcing his retirement Thursday, his replacement will follow in the footsteps of every justice before them by taking their place on the lowest rung of the highest court in the land.

This new justice – early favorites include federal appellate Judge Ketanji Brown Jackson, U.S. District Judge J. Michelle Childs, and California Supreme Court Justice Leondra Kruger – will join a court where they will have even less influence than most, at least when it comes to shaping the law.

The Supreme Court has had a conservative lean for almost 50 years, but it’s now perhaps the most conservative it’s been since the 1930s. Six Republican-appointed justices sit on the court, and three of them are in their 50s. Not only does the court seem poised to roll back key liberal precedents on abortion and affirmative action, but those conservative justices will likely shape the law for decades to come.

President Joe Biden reiterated his pledge today to nominate a Black woman to replace Justice Breyer, and while this nominee won’t change the court’s ideological balance – and will likely be in its minority for some time – she will still have a significant influence on the country in a variety of ways. It just may take some time for that influence to be felt.

“Having a Democratic nominee replace Justice Breyer is not going to change anything that we are immediately looking at. But the politics of the judiciary change over time,” says Lori Ringhand, a professor at the University of Georgia School of Law.

“Even within what appears to be a solid block, you can see shifts over time,” she adds. “It would not surprise me if [in] what looks right now like a kind of ideological, lockstep conservative block of justices, we’re going to start to see where they differ among themselves.”

The court’s “lone rangers”

It takes about five years to learn the job, justices often say.

Seniority dictates much at the high court, so the newest justices typically have few responsibilities and little influence. The most senior justices decide who writes opinions, and the newest justice is typically assigned a few, often unanimous and uncontroversial, cases. Their colleagues need time to get a feel for their views on different areas of the law, and – unless they’re Justice Neil Gorsuch on his first day – they are rarely vocal questioners during oral arguments.

There’s a long history of justices in the minority entrenching their positions as a “committee of one,” says Barbara Perry, director of presidential studies at the University of Virginia’s Miller Center. Chief Justice William Rehnquist, for a time, was nicknamed the Lone Ranger, propping up a small cowboy doll in his chambers. The Supreme Court always plays the long game, she adds. “It is not lost forever to the liberals.”

The quintessential example is Justice John Marshall Harlan’s solo dissent in Plessy v. Ferguson, the 1896 case in which the Supreme Court ruled that racial segregation was constitutional so long as facilities were “separate but equal.” Sixty years later, in Brown v. Board of Education, Harlan’s dissent provided the legal foundation for the court to unanimously overturn Plessy.

An earlier solo dissent resonated deeply with writer and abolitionist Frederick Douglass. In a letter to Harlan about the Civil Rights Cases of 1883, Douglass wrote that his dissent “should be scattered like the leaves of Autumn over the whole country.” “I have nothing bitter to say of your Brothers on the Supreme [Court], though I am amazed and distressed by what they have done,” he added. “I wish to assure you if you are alone on the bench, you are not alone in the country.”

Other justices have had similar long-term influence on the law through their separate opinions, including conservative justices. Justice Antonin Scalia spent his early years on the court writing separately to expound the virtues of originalism and textualism. Today, those approaches to constitutional and statutory interpretation dominate both the high court and the judiciary as a whole.

Justice Clarence Thomas, now the court’s most senior member, has also seen that kind of labor bear fruit. After years of solo opinions arguing that, for example, political donors should be able to give anonymously and that the Second Amendment protects an individual right to bear arms, those opinions have now become the law of the land.

Justice Breyer could have a similar long-term impact on the law – as could his replacement.

“Breyer famously brought a practical, pragmatic approach to his jurisprudence that undoubtedly helped shape the direction of the court,” says Steven Schwinn, a professor at the University of Illinois, Chicago, School of Law.

“A new justice is going to have to find their own place.”

How Breyer negotiated his role

Justice Breyer, for example, has argued for years – to no avail – that the death penalty is unconstitutional. It’s not unthinkable that decades from now, his dissents form the basis for the Supreme Court outlawing capital punishment.

But he’s also exemplified another way a justice can shape the law from a minority position: negotiating and working with his colleagues on the bench.

In the 2012 case in which the Supreme Court voted to uphold the Affordable Care Act for the first time, Justice Breyer was reportedly pivotal in crafting a compromise with Chief Justice John Roberts that upheld the act’s individual mandate but struck down its Medicaid expansion provision. He reportedly played a similar role, this time with Justice Anthony Kennedy, in brokering a compromise around an affirmative action case a year later.

Justice Elena Kagan appears to also favor that “bridge-builder” approach, but her colleague in the court’s liberal wing, Justice Sonia Sotomayor, favors what is sometimes called the “bomb-throwing” approach: writing fiery dissents aimed at shaming colleagues and laying out arguments for perhaps overturning the majority in the future.

What approach Justice Breyer’s replacement takes will not be clear for several years. But given that she will be the first Black woman to serve on the high court, she is likely to have a different and more immediate influence on the country.

“Just by virtue of her presence, she will encourage others to be more ambitious in their lives,” says Neal Devins, a professor at the William & Mary Law School.

She will also become the second Black member of the court, joining Justice Thomas, one of the bastions of the conservative supermajority. This could lead to interesting exchanges, says Melissa Murray, a professor at New York University School of Law.

“Right now the person on the court who often sort of presents the African American experience is [Justice] Thomas, and he presents it a particular way,” she adds. 

“It runs the risk of presenting the Black experience as monolithic, [that] Clarence Thomas’ experience is the Black experience for all Americans,” she continues. “It would be useful ... to have a Black woman providing her own view of how these issues will hit.”

The nomination could also be especially timely after the court decided this week to hear a case challenging the affirmative action admission policies at two universities. With the case likely to be argued next term, the new justice will be in place to take part.

“When Justice Thomas makes the point that affirmative action, in his view, harms racial minorities,” says Professor Murray, “it will be really important and interesting to watch a Black woman go toe to toe with him and present perhaps an alternative perspective.”