Supreme Court’s Stephen Breyer still ‘optimist’ post-abortion case

Retired Supreme Court Justice Stephen Breyer — who left the High Court days after the ruling that ended abortion protections — told a crowd of lawyers in Chicago Saturday evening that he remains hopeful about the American legal system.

“Over long periods of time, we’ve had an America a system that has adjusted, with its drawbacks, with its going the wrong way from time to time … but overall, I’m still an optimist,” said Breyer, who dissented in the abortion ruling.

Touted as one of his first speeches since his retirement in June, Breyer quipped, “Why is the world in such a mess?” — a line that got a big laugh at the American Bar Association event — after he was reminded that he’d written 525 legal opinions.

Breyer, 83, did not directly speak about the abortion ruling that overturned Roe v. Wade, nor did he address other controversial decisions the High Court handed down this spring with its sharp turn to the right in recent years.

But — in a nod to the pragmatism for which he’s known — he spoke broadly about the importance lawyers and law professors analyzing legal rulings, so that when the issues come back before judges, they “have a much better idea of what it is they’ve done. And they can adjust accordingly.”

Over time, he said, “you have a growing body of doctrine … which we hope, as Martin Luther King (said), arcs towards justice. It doesn’t always, but we hope. And those parts of the profession working together, I think, in general, do reach in that direction, at least some of the time and not always.”

Breyer also noted: “This is not a country of sheer ups. I mean, there was a Civil War. There was 200 years of slavery, if not more, and it was 80 years of Jim Crow segregation in this country.”

Breyer joined Justices Sonia Sotomayor and Elena Kagan on the dissenting side of the June ruling that ended constitutional protection for abortion — a stunning reversal of a half-century legal standard that jolted the nation, even though a draft had already emerged publicly in an unprecedented leak.

“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” they wrote.

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Breyer’s retirement took effect June 30, just days after the abortion ruling was announced. The departing justice swore in his successor, federal appellate court judge Katanji Brown Jackson,a nominee of President Joe Biden.

Breyer, nominated by then-President Bill Clinton in 1994, spent almost 28 years on the court in the court’s liberal wing, though he bristled at such labels. One of his most-referenced opinions was in 2015, when the court’s majority upheld lethal injection. Breyer dissented and questioned the constitutionality of the death penalty.

“For 28 years when I sat on that court, I see in front of me people of every race, every religion and every point of view possible,” he said Saturday.

The same week as the late June abortion ruling, the Supreme Court also expanded gun rights, striking down a New York law that required people to demonstrate a need to carry a concealed weapon. Breyer again dissented, writing that there had been 277 reported mass shootings year to date and said his fellow justices in the majority acted “without considering the potentially deadly consequences.” He said the ruling would make it more difficult for states to pass laws that limit firearms sales and use.

Breyer was the lead author of Supreme Court opinions that upheld reproductive rights in 2000 and 2016, acknowledging in the earlier one that the views of those who see abortion as murder and those who support it being legal are “virtually irreconcilable.” But said the High Court “has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose.”

Saturday Breyer was awarded the ABA Medal, the Chicago-based bar association’s highest honor, given to judges and attorneys. Several Supreme Court justices have received the honor, including Oliver Wendell Holmes in 1931, Thurgood Marshall in 1992 and Ruth Bader Ginsburg in 2010.

Associated Press contributed.