As we await President Joe Biden's nomination to fill the Supreme Court seat that Stephen Breyer will vacate this summer, many commentators are saying the nominee will not alter the ideological balance of the court. The 6-to-3 split in favor of the right-wingers will not change. But each new member transforms the dynamics of the court.
"The Court changes every time there's a new face. The dynamics are different" when a new justice joins the court; "that is the way the system works," Justice Harry Blackmun told Professor Philippa Strum in a 1993 interview. Biden has a golden opportunity to replace Breyer with a progressive justice one who could help lay the foundation for a political shift in the future.
An examination of Breyer's voting record in the areas of criminal justice and civil rights reveals that he has been out of step with his fellow liberals on the court.
Breyer cast a smaller percentage of liberal votes than any other Democratic appointee with whom he served on the court (Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan), according to a Jan. 24, 2022, report by professors Lee Epstein, Andrew Martin, and Kevin Quinn.
This divide between Breyer and his liberal colleagues is particularly apparent in cases involving defendants' rights and civil rights litigation.
Pro-Police Record in Search & Seizure Cases
Breyer's disproportionately pro-police votes were most prevalent in search and seizure cases.
In 2013, Breyer cast the deciding vote to reach a 5-to-4 majority in Maryland v. King, joining John Roberts, Clarence Thomas and Samuel Alito. They held that police could take DNA samples without specific suspicion of criminal activity or consent from anyone arrested for a serious offense, just for the purpose of investigating other crimes.
Breyer once again cast the fifth vote for police in the 2016 case of Utah v. Strieff. Edward Strieff was stopped with no probable cause or reasonable suspicion after which police discovered he had an outstanding warrant. The court said the prosecution could use the evidence against Strieff because the warrant was independent of the illegal stop. This case gives the police an incentive to violate the Fourth Amendment because they know illegally seized evidence will still be admissible in court.
Likewise, Breyer provided the fifth vote in favor of police in Navarette v. California, a 2014 case in which the court held that an anonymous tip that a person was driving erratically would support a traffic stop by the police.
Votes Against Affirmative Action & Gay Rights
In affirmative action cases, Breyer's votes also often differed from those cast by his liberal colleagues.
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