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January 26, 2022

Justice Breyer indicates plan to retire ... and first big legacy review ignores landmark Booker ruling to focus on capital dissent

Major outlets are today a buzz with news that US Supreme Court Justice Stephen Breyer has told Prez Biden that he plans to retire soon.  Speculation about who Prez Biden might nominate as his replacement is already well underway, but I will save that discussion (with a sentencing spin) for future posts.  Here I want to start a discussion of Justice Breyer's sentencing and criminal justice legacy.

 I suspect all readers of this blog know that, in the sentencing universe, Justice Breyer's authorship of the advisory guideline remedy in Booker (and getting later Justice Ginsburg to sign on to it) has impacted many millions of criminal defendants.  And, of course, as a staffer and judge, Breyer helped write the legislation leading to the federal sentencing guidelines and then helped write those guidelines. But, frustratingly and tellingly, this big Vox piece providing a huge sweep of Breyer's career entirely ignores his work on the US Sentencing Commission, Booker and all sorts of other truly consequential criminal justice work by Justice Breyer and only talks about one dissent of his in a capital case:

Breyer’s commitment to democracy is profound, but it is not absolute. And the retiring justice did feel a special obligation to police arbitrary governmental practices.

In recent years, for example, Breyer became the Court’s most outspoken opponent of the death penalty — in large part because of his belief that it cannot be fairly administered. “Death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Breyer wrote in his dissenting opinion in Glossip v. Gross (2015), quoting from a 1972 opinion by Justice Potter Stewart.  Rather than handing down death sentences exclusively to the worst criminals, such sentences are doled out to a “capriciously selected random handful” of the most serious offenders.

Breyer bolstered this argument with empirical studies showing that an offender is far more likely to be sentenced to die if their victim is white. Or if their victim is a woman. Or if the offender is merely unfortunate enough to be tried in the wrong location. “Within a death penalty State,” Breyer wrote in his Glossip dissent, “the imposition of the death penalty heavily depends on the county in which a defendant is tried.”

For these and other reasons, Breyer concluded that it is “highly likely that the death penalty violates the Eighth Amendment,” and he called upon his Court to receive full briefing on whether the death penalty should be allowed to exist at all.

Sigh.  Oh well, I am hopeful some other outlets will give some attention to his sentencing and criminal justice legacy.  Perhaps readers can start in the comments.

January 26, 2022 at 02:01 PM | Permalink


I agree that he had a profound criminal justice legacy but I tend to see it as mostly negative. He's been a weak supporter of Crawford, he's mostly responsible for the qualified immunity mess, and the sentencing commission has overall been a major public policy disaster.

So I for one am glad to see him go but whether Biden will get anyone better passed through this Senate? Who knows?

Posted by: Daniel | Jan 26, 2022 2:14:40 PM

Zadvydas v Davis, he was a critical fifth vote for that abomination—he should be pilloried for that vote and the innocent American lives taken as a result.

Posted by: Federalist | Jan 26, 2022 2:15:00 PM

The advisory guideline remedy in Booker is (BullSh!t) it allows Judges to use the Preponderance of Evidence standard to overrule a jury verdict. Your found guilty of excess 100 grams but your sentence for 5 kilos, where is the fairness in that.

Posted by: steve | Jan 26, 2022 6:11:35 PM

steve --

The preponderance standard was used for sentencing well before Booker, and well before the guidelines for that matter. It allows the court to sentence the defendant based on the whole of his conduct and experience, just as the defense bar routinely says it wants.

I agree that the better Booker remedy was to require proof BRD for factors that take the sentence above the statutory max, but no serious (and non-ideological) person thinks that we should trash the preponderance standard for run of the mill sentencing.

Posted by: Bill Otis | Jan 26, 2022 6:39:23 PM


“[Breyer]'s mostly responsible for the qualified immunity mess”

How exactly?

Posted by: kotodama | Jan 26, 2022 7:40:38 PM

I would also disagree that being struck by lightning is "cruel". To be cruel an action requires being intentional in a way that storms simply lack.

Posted by: Soronel Haetir | Jan 26, 2022 7:43:14 PM

Daniel --

Qualified immunity is not that hard to research. If you had, you would know that the modern version got its start in a 1967 case, Pierson v. Ray, and was more fully eneunciated in 1982 in Harlow v. Fitzgerald, which still governs. Both cases long predated Justice Breyer's appointment to the Court.

Posted by: Bill Otis | Jan 26, 2022 11:40:50 PM

Perhaps the most noteworthy aspect of Justice Breyer's departure is that it will leave the Supreme Court without a categorical opponent of capital punishment for the first time since the Eisenhower Administration. See my note here: https://www.crimeandconsequences.blog/?p=5728

Posted by: Bill Otis | Jan 26, 2022 11:53:37 PM

Bill, Justice Breyer has never dissented as a matter of course in all capital cases as did Justices Brennan and Marshall, as a vote yesterday reminds us: https://www.supremecourt.gov/orders/courtorders/012622zr_8759.pdf As you note in your post, Justice Sotomayor tends to speak out most regularly in capital cases, though Justice Breyer's work in Glossip was the most full statement by a modern Justice of a willingness to deem capital punishment categorically unconstitutional notwithstanding clear constitutional text to the contrary.

It will be interesting to see if Justice Breyer's replacement proves more supportive of capital punishment or other forms of state police power than he was. I doubt she will, but one never knows. And, as my main post was means to highlight, SCOTUS views on capital punishment now impact only a few dozen cases a year; SCOTUS views on other criminal justice matters impact hundreds of thousands of cases every month.

Posted by: Doug B. | Jan 27, 2022 10:33:56 AM

Doug --

I'll be interested to see if the Republicans try to pin the nominee down the way they pinned Justice Kagan down on the DP, and get the same answer Kagan gave (the DP is "settled law going forward"). Biden is never going to put up a nominee friendly to the DP; I think Kagan's answer is the best the Republicans can expect, and should satisfy them. If the nominee becomes evasive, that's a pretty good sign she will be pretty doctrinaire, as Sotomayor is. Although as you suggest, I would be surprised if the nominee were as doctrinaire as Brennan, et al.

Posted by: Bill Otis | Jan 27, 2022 10:51:13 PM

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