![handle is hein.crs/govefeo0001 and id is 1 raw text is: Congressional ______
*Research Service
Informing the Iegistative debate since 1914___________________
Justice Breyer Retires: Initial Considerations
January 28, 2022
On January 27, 2022, Justice Stephen G. Breyer announced that he would retire from active service as an
Associate Justice of the Supreme Court at the end of the Court's current Term, assuming that by then
[his] successor has been nominated and confirmed. This Legal Sidebar provides an overview of key legal
issues that Congress (and particularly the Senate, through its advice-and-consent role) may consider as it
reflects on Justice Breyer's tenure on the Court and how his successor might shape the Court's future
jurisprudence.
The discussion below summarizes Justice Breyer's approach to judging generally before highlighting
several areas where Justice Breyer staked out significant legal positions, both through majority opinions
and dissents that he authored and through his votes. As the decisions cited below illustrate, Justice
Breyer's pragmatic approach has generally led him to prefer standards, which would allow judges to
consider all the relevant circumstances, over strict rules. He has frequently taken fact-specific approaches
to resolving cases and interpreting statutes by looking to their context and operation.
Nominated to replace Justice Harry Blackmun in 1994, Justice Breyer came to the Court with a broad
range of experiences. In the preceding decades, Justice Breyer served in all three branches of the federal
government-including as an attorney at the Department of Justice, as Chief Counsel of the Senate
Committee on the Judiciary, and as a judge on the U.S. Court of Appeals for the First Circuit. Justice
Breyer also had a lengthy academic career, teaching at Harvard Law School and Harvard's Kennedy
School of Government. He has authored works on many issues, not always exclusively legal in scope. His
various writings on the administrative state, which explore the legal, political, economic, and
behavioral consequences of governmental regulation, proved particularly influential. From that
experience, Justice Breyer brought to the Court a keen interest in the practical elements of governance.
Justice Breyer's Approach to Judging
Justice Breyer has written that [l]aw is tied to life, and that an overly literal reading of a text can too
often stand in the way of achieving a law's intended benefits. This statement is borne out by his
approaches both to constitutional and statutory interpretation.
In his 2005 book, Active Liberty: Interpreting Our Democratic Constitution, Justice Breyer outlined the
foundation of his constitutional interpretation. He described U.S. constitutional history as a quest for
workable democratic government protective of individual personal liberty. Reflecting his pragmatic
attitude toward legal questions, Justice Breyer emphasized that active liberty operates in the real world,
Congressional Research Service
https://crsreports.congress.gov
LSB10691
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govefeo0001&div=1&collection=&method=preview&ext=.png&size=3)
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