When Justice Stephen Breyer celebrated his twentieth year on the U.S. Supreme Court, his former clerks applauded his eternal optimism. They had gathered to mark the anniversary for the "raging pragmatist," as USA Today called him. He was a problem-solver, perhaps more willing to compromise than argue with his colleagues. His dissents, by number, were in the middle of the pack.
Five years later, things have changed at the Supreme Court. Breyer, once the optimist, is not so sure about the future of the law anymore.
It came out in a recent decision, Franchise Tax Board of California v. Hyatt. The 5-4 decision held that states can't be sued by private parties in the courts of another state. It was significant because the Supreme Court overruled its own precedent in Nevada v. Hall.
But Breyer's dissent got more attention than the majority opinion. "When a decision is not obviously wrong," he wrote, "a court is obviously wrong to overrule it." Overturning well reasoned decisions undermines the stability of the law and "can only cause one to wonder which cases the court will overrule next," he added. Joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, Breyer struck a nerve in a divided nation. Court-watchers said the liberal justices are warning us that Roe v. Wade is in real danger. Mark Joseph Stern, who covers the courts and the law for Slate, made his case in the court of public opinion. It wasn't just Breyer's comments about overturning precedent.
"And if there were any doubt which cases Breyer was alluding to in this dark denouement, he cited the portion of Planned Parenthood v. Casey that explained why Roe should be upheld," Stern wrote. "The justice has hoisted a red flag, alerting the country that the court's conservative majority is preparing an assault on the right to abortion access."
That's not exactly what Breyer said, but he did leave some breadcrumbs. "To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay," Breyer wrote. He did not say the court will overrule Roe v. Wade. But the question is still out there, and Breyer left it for anybody to an answer. Which cases will the court overrule next?
Five years ago, Breyer probably would not have been so pessimistic. He was the "raging pragmatist" in those days. For now and the future, maybe not so much.