Abstract

[Excerpt] "Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by a Democratic president (Bill Clinton), whereas the majority is “conservative,” having been appointed by three different Republican presidents (George H.W. Bush, George W. Bush, and Donald Trump).

The use of partisan labels to describe the different approaches to judging employed by the court’s two principal voting blocs is both understandable and fair, given the highly politicized nature of the Supreme Court confirmation process; the rhetoric used by President Trump (who frequently made sneering references to “Obama judges”); and the party-line outcomes that characterize many of the court’s recent, high-profile cases. Yet, partisan descriptors can obscure more than they clarify. I therefore am going to reflect on the difference between Justice Breyer’s philosophy and that of the court’s majority in jurisprudential rather than partisan terms. And in a series of follow-up commentaries, I will use this same framework to try to supply additional context for thinking about important developments at the court."

Department

Law

Publication Date

2-23-2022

Journal Title

New Hampshire Bulletin

Publisher

New Hampshire Bulletin

Document Type

Commentary

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