For 25 years, Justice Stephen Breyer's careful mind and humility have shaped the Supreme Court and American law. His departure leaves a major gap
uring the quarter-century year career on the Supreme Court, Justice Stephen Breyer constantly cultivated two judicial virtues now increasingly absent from the federal bench. The first is a careful, empirical cast of mind, constantly alive to the lived experience of litigants, institutions, and the world. The second is a humility about the limits of his own knowledge. These led him as a profound respect for other, more democratic bodies such as Congress, federal agencies. and state legislatures.
Justice Breyer’s opinions are characterized by detailed consideration of the many factors that legitimately bite on a legal questions, coupled with close attention to factual detail. His dissent in the last week, as well as the careful and modulated dissent from the wrecking-ball abortion decision, show as much. His opinions are often accompanied by voluminous appendices, listing in exhaustive detail the facts behind a specific point.
Sometimes, this exacting attention to the world drove Breyer to progressive conclusions. In a 2015 dissenting, for example, he painted a comprehensive empirical portrait of a capricious, oft-lawless, and racially tainted capital justice system. His relentless and powerful catalog of racialized caprice and malice should lay to rest any thought that the American death penalty can avoid being “cruel” and “unusual” in violation of the Eighth Amendment, let alone even-handed across the color line.
Justice Breyer’s solicitude for the facts has not been mere code for ‘liberal’ outcomes. Instead, respect for facts also led him often to conservative, even illiberal, opinions. In 2011, for example, he dissented from the Court’s
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