He played a starring role in the court’s last term, writing majority opinions rejecting a challenge to the Affordable Care Act and protecting the free speech rights of a high school student. That Chief Justice John G. Roberts Jr. assigned those opinions to him was a reflection of Justice Breyer’s seniority, his willingness to write narrow decisions to achieve broad majorities and, perhaps, an attempt to keep him on the court a little longer.
Other members of the court also turned to Justice Breyer to execute delicate tasks. In 2016, for instance, Justice Anthony M. Kennedy, as the senior justice in the majority, assigned an important abortion opinion to Justice Breyer rather than Justice Ginsburg, probably calculating that the resulting opinion would more likely be modest, technical and acceptable to five justices.
In an interview in August, Justice Breyer said he was struggling with the question of when to step down.
“There are many things that go into a retirement decision,” he said.
He recalled approvingly something Justice Antonin Scalia, who died in 2016, had told him.
“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer recalled. “That will inevitably be in the psychology” of his decision, he said.
“I don’t think I’m going to stay there till I die — hope not,” he said.
Over the years, Justice Breyer bristled at the accusation that judges act politically. “My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said in April in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”
On the bench, his demeanor was professorial, and his rambling questions, often studded with colorful hypotheticals, could be charming or exasperating. But they demonstrated a lively curiosity and an open mind.
