Justice Stephen Breyer

  • July 1, 2015
    Guest Post

    by Brandon L. Garrett, Professor of Law at the University of Virginia, and Lee KovarskyProfessor of Law at the University of Maryland Carey School of Law.

    *This post originally appeared at The Huffington Post.

    Monday, the Supreme Court Justices delivered their oral opinion summaries in the Term's high-profile death penalty decision, Glossip v. Gross. Rather than reading from his concurring opinion or from a prepared statement, Justice Antonin Scalia -- still frazzled from release of the same-sex marriage cases -- appeared to be improvising. He accused Justice Stephen Breyer and Justice Ruth Bader Ginsburg of expressing personal "policy preferences," and added that the "two justices are willing to kill the death penalty outright rather than just pecking it to death." Why the defensiveness and outrage?

    Glossip was a 5-4 victory for death penalty states, which retained leeway to use new and untested lethal-injection "cocktails." Scalia was part of the majority but he sounded strangely like he was uttering last words. Justice Samuel Alito's presentation of the majority opinion was also unusually defensive and hostile to the dissenters. Justice Alito insists it is "settled that the death penalty is constitutional." In a career-defining dissent, Justice Breyer showed just how unsettled the American death penalty remains.

    The precise legal question in Glossip was whether states could use midazolam as the anesthetic in a three-drug legal-injection cocktail. For years, states used sodium thiopental, until suppliers stopped selling it for use in executions. Many states turned to pentobarbital, which also became difficult to obtain. Oklahoma turned to midazolam, considered more of an anti-anxiety medication than an anesthetic. After several "botched" executions, the Supreme Court agreed to hear whether improvements to Oklahoma's cocktail -- including a 400 percent increase the midazolam dosage -- satisfied the Eighth Amendment. Holding that it did, the Court seemed to announce a rule that an execution could not be Cruel and Unusual under the Eighth Amendment unless there is a "known and available alternative method of execution that entails a lesser risk of pain." Justice Sotomayor dissented, calling this a "surreal" endorsement of inhumane "human experimentation."

    Justice Breyer did more. Joined by Justice Ginsburg, he wrote a dissent arguing that the death penalty is flat out unconstitutional, and he characteristically loaded his opinion with empirical data. In doing so, Breyer and Ginsburg joined the ranks of predecessors such as John Paul Stevens and Harry Blackmun who, in their later years on the Court, declared they no longer believed that there exists a constitutional way to administer capital sentences. In 1994, an 85 year-old Blackmun penned a memorable single-Justice dissent swearing off his participation in capital process: "From this day forward, I no longer shall tinker with the machinery of death." For Justices Breyer and Ginsburg, the death penalty cannot escape a dilemma's horns -- the procedural protections necessary to make the penalty reliable mean that the process takes so long that it no longer serves its retributive or deterrent purposes.

  • May 14, 2015

    by Caroline Cox

    Linda Greenhouse considers in The New York Times what will happen after the Supreme Court announces its decision in Obergefell v. Hodges.

    At Buzzfeed, Chris McDaniel reports that the Oklahoma Attorney General misled the Supreme Court about a letter on the availability of drugs for lethal injection.

    Edward Blum argues in the Los Angeles Times that the Supreme Court should grant review in a case that examines how Texas created its state Senate districts” and could “reestablish electoral fairness in dozens of voting districts.”

    Martin Kaste of NPR explains that police are reforming common practices and tactics in light of growing social pressure and new technologies.

    Gina Barton discusses in the Milwaukee Journal Sentinel how the Tony Robison investigation illustrates the changes to investigations of police accountability.

    At SCOTUSblog, Kali Borkoski writes about Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer presiding over a mock trial of Don Quixote at the Shakespeare Theatre.

  • March 17, 2015

    by Caroline Cox

    The Editorial Board of The New York Times argues against the “last-minute political mischief” that is delaying the confirmation of Loretta Lynch.

    At The Hill, Ralph S. Tyler predicts that the federal government will win in King v. Burwell.

    Conor Friedersdorf writes in The Atlantic that some conservatives are beginning to recognize the importance and implications of the Justice Department’s report on Ferguson.

    At The New Republic, Cristian Farias discusses Justice Stephen Breyer’s recent remarks on “government institutions, constitutional structures, and the administrative state” as well as his reluctance to comment on the national Ferguson debate.

    Steven Benen reports for MSNBC that the Affordable Care Act has cut the national uninsured rate by more than a third.

  • November 11, 2014

    by Caroline Cox

    Paul Krugman of The New York Times criticizes the new Supreme Court challenge to the Affordable Care Act and argues that the challenge is based on an “obvious typo.”

    In The Wall Street Journal, Jess Bravin discusses Justice Stephen Breyer’s comments at on his faith the Jewish Federations of North America convention.

    Jeffrey Rosen argues in The New Republic that this term may decide the legacy of Chief Justice John Roberts.

    In Slate, Richard L. Hasen previews the upcoming oral argument for the Alabama redistricting cases in which the Supreme Court will consider whether gerrymandering in the state was an attempt to disenfranchise black voters. 

  • October 15, 2014

    by Katie O’Connor

    This past spring, McCutcheon v. FEC dealt the latest in a series of blows to campaign finance reform, striking down aggregate limits on the total amount of money a person can contribute to all candidates, parties, and PACs. Chief Justice Roberts wrote the opinion for the majority of the Court and Justice Breyer dissented. In this ACS Issue Brief, Alan Morrison asserts that while “the Chief Justice is right that the prior decisions of the current Court, as well as some of its predecessors dating back to Buckley v. Valeo, almost certainly support his conclusion on the invalidity of aggregate limits…Justice Breyer has by far the better argument that our democracy and the Constitution permit campaign finance laws that prevent more than what the majority will allow.”

    By the time the Court considered the aggregate limits in McCutcheon, most of the arguments in defense of such limits and other campaign finance reforms had been gradually eroded by the Court’s previous cases. The only defense to aggregate limits in McCutcheon was an argument that, without such limits, donors would be able to circumvent limits on contributions to parties, candidates, and PACs. However, there were a number of weaknesses in this defense, and given the Court’s decision in Buckley v. Valeo, it could hardly withstand scrutiny. Thus, the Court struck the aggregate limits as unconstitutional.