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Justice Breyer Urges His Colleagues To Respect Precedent


The third-longest-serving justice on the U.S. Supreme Court is issuing a warning. Stephen Breyer was nominated by President Bill Clinton. He took his seat on the court in 1994 and is now part of the court's liberal minority. He wrote an unusual opinion released yesterday. In it, Justice Breyer appeared to send a message to his conservative colleagues on the bench, urging them to respect precedent and only overrule it when the circumstances demand it. His comments came in a dissent, after the Supreme Court ruled that a state cannot be sued in the courts of a different state by a private party unless it gives its permission.

Amy Howe is in studio with us this morning. She's co-founder of the SCOTUSblog. Amy, thanks for coming in.

AMY HOWE: Thanks for having me.

MARTIN: So can you flesh out the context of this warning? I said it came in a dissent. What more can you tell us about what led Justice Breyer to do this?

HOWE: This was a case in which the Supreme Court overturned a 40-year-old precedent. And there's a concept called stare decisis, and you hear a lot about it at Supreme Court confirmation hearings, actually, in which nominees pledge to adhere to prior precedent. The idea behind stare decisis is that even if you disagree with an earlier ruling, you stick by it unless there's a really good reason not to. And so the Supreme Court, in issuing this decision yesterday, overturned this 40-year-old precedent, and in Breyer's view, there wasn't a good reason to do so, other than that the five members of the majority, who are all conservatives, didn't like the earlier decision. And...

MARTIN: But that's the gray matter, right? Like, that's the subjective part - if you think it demands it.

HOWE: Right. And so there's a debate about it. And this is an interesting constitutional issue, but it's something that really only a law professor could love. But Breyer is looking down the road at what other old precedents might come before the court and that the court could potentially overturn in the future.

MARTIN: Like what? What do you think he's staring towards?

HOWE: You know, I think that the first one that came to mind for everyone was obviously abortion and Roe v. Wade, particularly with the movement - lately, we have the Georgia heartbeat bill, the idea that - the law in Georgia that was recently passed that, after six weeks, once a heartbeat has been detected, women can no longer get an abortion in Georgia. And supporters of the bill and others like it have said that this is designed to get to the Supreme Court and to try to get them to overturn Roe vs. Wade.

MARTIN: I mean, President Trump's nominees to the bench include Neil Gorsuch and Brett Kavanaugh, obviously conservative justices. How did they respond in their hearings on that issue about precedents, specifically to Roe v. Wade?

HOWE: They both said that they would adhere - that Roe vs. Wade was settled law. And I believe that Brett Kavanaugh called it sort of precedent on precedent.

MARTIN: But Stephen Breyer isn't convinced or at least is seeing signs that that could be fragile?

HOWE: That's right. And this is something that the more liberal justices have been concerned about for a while. There was a decision last term in a case that overturned another 40-year-old precedent involving union fees, and Justice Elena Kagan wrote the dissent in that case. It wasn't as impassioned. It didn't have this sense of urgency that Breyer's dissent yesterday did, including - because, at that point, Justice Anthony Kennedy was still on the bench, but now he's retired and has been replaced by Brett Kavanaugh.

MARTIN: All right. Amy Howe is a co-founder of the SCOTUSblog, talking about this warning coming from Justice Breyer. Thank you so much for coming in, Amy. We appreciate it.

HOWE: Thanks for inviting me. Transcript provided by NPR, Copyright NPR.