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Breyer Doesn’t Leave Clear ‘Liberal’ Criminal Law Legacy

Jan. 26, 2022, 6:55 PM

Justice Stephen Breyer will be remembered for speaking out against the death penalty, but when it comes to criminal law across the board, don’t call him a liberal.

Breyer’s tendency to defer to the government means he sometimes sides with the authorities in close cases, including on matters of search and seizure, trial rights, and sentencing.

“Although usually labeled ‘liberal,’ Justice Breyer has not been predictably so in the criminal justice area,” said Christopher Slobogin, director of the criminal justice program at Vanderbilt Law School in Nashville.

“More often than not he has sided with criminal defendants, but nowhere near as consistently as his once and present colleagues Justices Stevens, Sotomayor, Ginsburg, Kagan or even Souter, normally thought of as solidly middle-road,” Slobogin said.

Breyer is retiring, according to a person familiar with the justice’s thinking.

With six Republican appointees on the court, whomever President Joe Biden picks to replace Breyer wouldn’t alter the balance on hot-button issues like capital punishment. The federal death penalty resumed during the Trump administration over dissent from the Democratic-appointed justices, including Breyer, who reiterated his previous questioning of the punishment’s constitutionality.

But Breyer’s successor could give defendants better odds in some criminal appeals, as shown by his siding with the government in a series of 5-4 cases during his career.

Biden has pledged to nominate a Black woman to the high court, with D.C. Circuit Judge Ketanji Brown Jackson, a former Breyer clerk who worked in public defense, seen as a potential front-runner.

“Justice Breyer’s retirement gives President Biden an opportunity to appoint someone who could bring much-needed diversity of background and perspectives to the Supreme Court,” said Devi Rao, Supreme Court and Appellate Counsel at the MacArthur Justice Center.

Government Votes in 5-4 Cases

While maintaining that Breyer “has been a mostly reliable vote in the cases that matter most for defendants and for privacy,” University of Utah criminal law professor Matthew Tokson said the retiring justice’s “pro-government votes tend to be in favor of precedent and doctrinal clarity, or in cases that may have a limited direct practical impact.”

On the precedent and doctrinal-clarity point, Tokson, a search and seizure expert and former clerk to the late Ruth Bader Ginsburg, cited Fourth Amendment cases Arizona v. Gant and Florida v. Jardines.

In Gant, a 2009 vehicle search ruling for the defendant, Breyer was among the four dissenters from the 5-4 decision. He thought the majority wrongly broke with precedent. In Jardines, another 5-4 case, he dissented from the majority’s 2013 decision that using a drug-sniffing dog on a homeowner’s porch to investigate the home is a Fourth Amendment search.

On the limited-impact point, Tokson, a former Ginsburg clerk, cited Bullcoming v. New Mexico and Maryland v. King. Those were both 5-4, too.

In Bullcoming, Breyer dissented from the ruling that said admitting a blood-alcohol test without the testimony of the person who prepared the results violates the Sixth Amendment’s Confrontation Clause. In King, he was in the majority that said states can collect and analyze DNA from people arrested for, but not convicted of, serious crimes.

Unique Role

Rory Little, a former Supreme Court clerk who worked for several justices and now teaches criminal and constitutional law at UC Hastings in San Francisco, noted that Breyer “has consistently been against the Apprendi idea that due process requires that certain facts relevant to sentencing have to be found by the jury and proven beyond a reasonable doubt.”

That’s a reference to Apprendi v. New Jersey, a landmark 2000 case and another 5-4 criminal split for a defendant with Breyer in dissent.

A more recent case citing Apprendi shows the idiosyncratic role Breyer played on the court—and may foreshadow what’s to come.

In that more recent case, 2019’s United States v. Haymond, which struck down a law that allowed imprisonment without jury findings for violating supervised release, Breyer was once again pivotal in a 5-4 breakdown.

Justice Neil Gorsuch wrote a sweeping plurality opinion siding with the defendant, Andre Haymond, joined by Ginsburg and Justices Sonia Sotomayor and Elena Kagan. Breyer’s separate concurrence agreed the law was unconstitutional but on narrower grounds.

Writing for the dissent, Justice Samuel Alito said Breyer’s opinion “has saved our jurisprudence from the consequences of the plurality opinion,” which, Alito said, “sports rhetoric with potentially revolutionary implications.”

Gorsuch’s opinion, Alito said, “appears to have been carefully crafted for the purpose of laying the groundwork for later decisions of much broader scope.”

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Tom P. Taylor at; Seth Stern at; John Crawley at