“Breyer prizes compromise, and as the court has become more ideologically polarized, he’s tried to find points of common ground with the conservative justices, even on relatively high-profile issues, like religious liberty. That pragmatic streak was on display in 2005, when he served as the pivotal vote in two separate cases about public displays of the Ten Commandments. In one of the cases, he voted with the conservatives to uphold the display; in the other, he voted with the liberals to strike it down. Over the years, he joined the conservatives in a variety of other important religion cases, including a dispute over a 40-foot cross that was displayed on public property in Maryland and a fight over whether Missouri could exclude a church from a public grant program for playground resurfacing.
In those cases, he often stressed the need to avoid religious disagreements — which sometimes led to outcomes that upset liberals. In the 2005 case where he voted to uphold a Ten Commandments display in Texas, for instance, he wrote that although it was a “borderline case,” ruling that it was unconstitutional could lead to the removal of similar displays around the country and “thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”
And his breaks with his liberal colleagues haven’t been on religion alone. According to a recent analysis by political scientists Lee Epstein, Andrew Martin and Kevin Quinn, Breyer cast the lowest percentage of liberal votes of any of the three Democratic appointees who served with him. Epstein, Martin and Quinn found that most of those disagreements were in the area of criminal procedure, particularly in cases related to search and seizure.
Of course, Breyer has been an outspoken liberal voice on other issues, including reproductive rights and the death penalty.”
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“Breyer plainly became concerned about the court’s reputation, particularly after Ginsburg died and was replaced by Justice Amy Coney Barrett, which gave the conservative majority even more power. He’s spent the years since then trying to convince Americans that the court was fundamentally a nonideological institution, even publishing a short book where he argued that the court — despite its clear conservative tilt — was not a political institution.
That commitment to preserving the judiciary’s nonpartisan image — and staying mostly in line with public opinion — put Breyer increasingly out of step with the court’s trajectory. This year’s term isn’t over yet, but at least some of the Supreme Court conservatives seem ready to veer sharply outside the mainstream on abortion, gun rights and other high-profile issues. Justice Sonia Sotomayor, meanwhile, shows no desire to make nice with the conservatives — in a recent dissent, she called the court’s decision to leave a highly restrictive Texas abortion law in place a “disaster” and a “grave disservice to women in Texas.”
In a 2020 interview, Breyer told reporter Dahlia Lithwick, “The best is the enemy of the good. … But if you have a choice between achieving 20 or 30 percent of what you’d like or being the hero of all your friends, choose the first.” That attitude seems unlikely to be especially popular at the Supreme Court going forward — among liberals or conservatives.”