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With pragmatism, Breyer brought real-world justice to the high court

In choosing a replacement, President Biden should keep front of mind the legacy that Breyer leaves on the court as his tenure nears its end.

At the US Supreme Court, Justice Stephen Breyer has been the dean of pragmatism.Bill O'Leary/The Washington Post

One of the most important virtues of a just and functional judicial branch is pragmatism — the ability to look beyond just the letter of laws and constitutional text to consider how the decisions courts make impact each one of us individually and as a society. At the US Supreme Court, Justice Stephen Breyer has been the dean of pragmatism.

That pragmatism certainly played a role in Breyer’s reported decision to make this term his last. While he’s spent recent years rejecting the notion that the court be viewed in political terms, he is also a student of politics, having worked as counsel on the Senate Judiciary Committee alongside Senator Edward Kennedy. With the Senate that will be tasked with confirming his replacement by the slimmest of margins, and a looming midterm election that could change the Senate’s dynamics, pragmatism dictated that his time on the high court come to an end.


From here on, the focus will mostly be on President Biden’s choice of whom to replace Breyer on the bench, and the increasingly bitterly partisan Senate judicial confirmation process. But in that process, it’s important to keep front of mind the legacy that Breyer leaves on the court as his tenure nears its end.

On the bench, Breyer is known for his professorial style of questioning during oral arguments, marked by the long and usually complex hypotheticals he poses. But in that approach, he has pressed not only the litigators who argue before the court, but also his fellow justices, to consider more than just the legal foundation of their positions, but their broad impact on the nation.

And that impact was seen in Breyer’s opinions on some of the most consequential decisions of a generation — particularly on the issue of abortion access.


Not only was he the author of several key opinions striking down restrictive abortion laws, but he was also a staunch defender of stare decisis — the principle that when the court makes defining rulings, like that in Roe v. Wade, they ought to be respected, followed, and upheld.

In an NPR interview in December, he called the court’s refusal to block the most restrictive abortion law — a Texas law that bans abortions performed as early as six weeks into the pregnancy by empowering anyone to bring bounty-hunting lawsuits — while the case is challenged “very, very, very wrong — I’ll add one more very.”

He also was author of one the opinions upholding the Affordable Care Act from a flurry of Republican-led challenges, and has been one of the court’s most vocal opponents of the death penalty.

Breyer is also a hometown hero. The San Francisco native came to the Boston area as a student at Harvard, and then as a professor there. He solidified the Hub as his home during his tenure on the Boston-based federal appellate court — even overseeing the design and construction of the Moakley Courthouse, where as a former Chief Judge of the First Circuit Court of Appeals, he still has an office.

He continues to make his home in the Bay State, and has even been known to bicycle around Cambridge and to don his Red Sox cap for ceremonial pitches at Fenway Park.


Above all, he has remained dedicated to protecting the rule of law, and underscored the need for Americans to believe in the court’s authority as an institution, and the belief that the judiciary is not made up of “politicians in robes.” But he also acknowledges that that is a reputation the justices have to earn. He closes his most recent book, “The Authority of the Court and the Peril of Politics,” on that point.

“There are no shortcuts to trust,” he wrote. “Trust in the court, without which our system cannot function, requires knowledge, it requires understanding, it requires engagement — in a word, it requires work, work on the part of all citizens. And we must undertake that work together.”

Let’s hope his successor, and the fellow justices he leaves behind, honor his legacy by living up to that ideal.

Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.