Justice Breyer’s legacy goes beyond one case; it’s about America’s place in the world

When a United States Supreme Court justice retires, it is tempting to define him or her by a major 5–4 decision or a stirring dissent. Doing so as Justice Stephen Breyer completes his distinguished career in public service (but does not leave law or teaching) would miss out on his true significance. Beyond his opinions, Justice Breyer has found other ways to have a profound influence on the Court, our democracy and the United States’ place in the world. Amidst a landscape of tattered institutions, it is up to citizens and community members of all walks of life — not just lawyers, judges or public officials — to carry on Justice Breyer’s legacy.

While I write with some pride as a fellow Lowell High School alum, Justice Breyer’s stature, here and around the world, needs no validators. It transcends centuries and borders. While President Clinton, who nominated Justice Breyer to the Court in 1994, campaigned as “the bridge to the 21st century,” it could well be said that Justice Breyer’s philosophy propelled that view into the judicial branch.

Scholars debate whether the original intent of the Constitution’s framers should govern legal decisions or whether the Constitution is a living document. Justice Breyer remains a forceful voice to adapt Constitutional principles to today’s world and today’s technology.

One area in which he led the Court and national thinking is reexamining the death penalty. In his dissent to the Court’s 2015 decision in Glossip v. Gross, he described the ways in which Oklahoma’s death penalty law may violate present-day standards of cruel and unusual punishment, irrespective of what was the norm in the 1700s or since. Outlining the actual circumstances and experiences of the death penalty from that time to today, he characterized the death penalty as irreversible, unreliable, arbitrary, lacking penological purpose and subject to long delays. Many believe his dissent will one day become the law of the land.

Justice Breyer has afforded great respect — but not deference — to international standards of justice and has felt it strengthens, not weakens, America’s standing in the world and commitment to basic principles. In the death penalty case, for example, he reminded the Court and the nation how unusual the death penalty has become — only 22 countries executed anyone in 2013; the U.S. was alone among countries of Europe and the Americas to do so; and 80% of all executions took place in Iraq, Iran and Saudi Arabia. In Justice Breyer’s writings and speeches, our legal system and constitutional philosophy are stronger models and more likely followed when we acknowledge other systems and cultures and the impact of our decisions on the world.

Justice Breyer joined the U.S. Supreme Court when there were just five million Americans on line. E-commerce was just getting started and, unlike today, not omnipresent in the lives of consumers and businesses, from neighborhoods to international. Internet law had obviously not been taught in law schools to legal practitioners. Struggles among local, state, federal and international regulatory agencies, legislators and judges developed regularly.

Justice Breyer’s legal opinions brought traditional areas of law such as copyright and antitrust into the technological age and he brought legal practitioners and technologists with him. His opinion last year in Google LLC v. Oracle America about corporate copying of software is notable not just for what it permits but as an educational resource for computer engineers to understand the legal implications of their advancements. Equally, it is an instructional tool for lawyers who must guide their clients in an unfamiliar and often hard to grasp sector of the economy and knowledge.

Today, COVID, climate change, trade, technology and immigration make even the most basic decisions about our daily lives dependent upon decisions made miles or nations away from us. Justice Breyer’s judicial writings enable legal practitioners and the law to more easily and effectively navigate these and other new challenges yet to be explored. At his remarks with President Biden announcing his retirement, Justice Breyer spoke directly to young people to implore them to carry on our constitutional and democratic principles and responsibilities. He likely will continue to speak out and his message of education and action is one for all of us.