Skip to content

Here’s a look at Justice Stephen Breyer’s legacy on Texas cases

By Reese Oxner, The Texas Tribune

Here’s a look at Justice Stephen Breyer’s legacy on Texas cases” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

Supreme Court Justice Stephen Breyer is reportedly planning to retire after 27 years on the nation’s highest court. During that time, he’s made numerous contributions that helped determine the course of many of the nation’s highest-profile cases — including some that started in Texas.

Breyer, 83, is the oldest member of the court. Supreme Court justices serve until retirement, death or impeachment — and replacements are appointed by the president. This means the timing of their departure can often dictate whether a conservative or liberal-leaning justice fills the spot, affecting the ideological balance on the nation’s highest court.

Supreme Court justices do not have official party affiliations but are generally assessed as more liberal or conservative based on their past decisions — and on the party affiliation of the president who appoints them. The composition of the court often determines its final determination on the cases before it.

Supreme Court decisions have shifted rightward as conservative justices have become the majority on the court. Six of the justices are considered conservative, while the remaining three are considered liberal. Three of the conservative justices were nominated by former President Donald Trump, including Justice Amy Coney Barrett who filled Justice Ruth Bader Ginsburg’s seat after her death. As Breyer is almost certainly going to be replaced by a liberal judge, the court’s current ideological makeup won’t be shaken up.

Many liberal organizations had previously called for Breyer to retire during Biden’s presidency so the president can appoint a liberal justice. Biden has pledged to appoint a Black woman on the court, “to make sure we, in fact, get everyone represented.” Several Supreme Court experts said they do not expect a Texan to be in the running.

Here are several of the Texas cases that Breyer had a hand in.

Affordable Care Act

The Supreme Court struck down a legal challenge to the Affordable Care Act last year, which was led by Texas.

Instead, it tossed the challenge after finding that Texas and the other plaintiffs didn’t have any standing to sue over the individual mandate, the key provision of the Affordable Care Act that requires Americans to purchase health insurance and had originally included a financial penalty for those who chose to remain uninsured.

Texas Attorney General Ken Paxton, a Republican, set out in 2018 to achieve through the courts what his party tried and failed for years to achieve in legislation: the end of President Barack Obama’s landmark health care law. He led a team of 17 other red states in the lawsuit, arguing that after Congress effectively neutered the individual mandate with the passage of the GOP’s 2017 tax plan, that provision had become unconstitutional and the rest of the law had to fall as well.

Breyer was the author of the 7-2 ruling, one of the highest-profile cases handled by the court during its 2020-21 term.

“The state plaintiffs have failed to show that the challenged minimum essential coverage provision, without any prospect of penalty, will harm them by leading more individuals to enroll in these programs,” Breyer wrote in the opinion.

Texas abortion rights

Breyer has been a supporter of abortion rights throughout his career.

In 2016, Breyer wrote for the majority in a major ruling on abortion, Whole Woman’s Health v. Hellerstedt, in which he dismissed Texas’ claim that it was seeking to protect women’s health and safety with restrictions on the procedure that were approved by the Texas Legislature in 2013. The restrictions required all Texas facilities performing abortions to meet hospital-like standards — which include minimum sizes for rooms and doorways, plus pipelines for anesthesia.

The restrictions “vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny,” Breyer wrote.

The Supreme Court ruled that Texas’ restrictions placed an undue burden on a woman’s constitutional right to an abortion.

Breyer noted that Texas abortions were much safer than many other medical procedures and said the law meant “fewer doctors, longer waiting times, increased crowding and significantly greater travel distances, all of which, when taken together, burden a woman’s right to choose.”

Additionally, Breyer has stood against Texas in suits challenging the state’s most recent law restricting abortions.

Breyer called the Supreme Court’s refusal to block Texas’ law in September “very, very, very wrong” during an interview with NPR. Breyer also wrote a dissent to that decision.

After the case winded through federal courts another time, the Supreme Court last week again declined to intervene in the challenge to Texas’ law. The court’s ruling means the case’s journey through the court system will likely be long and could delay the final word on the standing of Texas’ controversial abortion law for months.

Breyer condemned the court’s most recent decision as well. He argued the case should have continued in U.S. district court. Instead, the case was sent to the Texas Supreme Court, which could delay the case further. The Texas Supreme Court is now set to hear arguments Feb. 24, nearly six months after the law came into effect.

“I had thought that the Court of Appeals would quickly remand the case to the District Court so that it could reach the merits and enter relief consistent with our ruling,” Breyer wrote in a dissent. “Instead, the Court of Appeals ignored our judgment.”

Texas Capitol monument 

Another one of Breyer’s notable opinions was during the court’s handling of the 2005 Van Orden v. Perry case, in which he agreed that a Texas Capitol monument inscribed with the Ten Commandments should stay — despite voting the opposite way in a similar Kentucky case earlier that year.

He argued for several reasons that the Texas monument should be considered secular, including that the statue sat for 40 years on Capitol grounds before its place there was challenged.

“Breyer explained that the Texas monument had been there for many years, apparently without bothering anyone. And it would cause a huge controversy to tear it down. By contrast, the Kentucky display was new, and could be removed easily,” Joshua Blackman, a professor at the South Texas College of Law, said in an email. “Here, he was seen as splitting his votes to achieve a more moderate outcome.”

Breyer was the swing vote in both cases — leaving the Texas monument in place and ruling that the Kentucky displays were unconstitutional.

The death penalty

Breyer is arguably the court’s biggest critic of the death penalty, and Texas has by far the most active execution chamber in the nation. There are currently 197 inmates on Texas’ death row. Texas has executed 573 people since 1982, the year in which the death penalty was again made legal after a pause by the U.S. Supreme Court.

In a 2015 decision in an Oklahoma case over lethal injections, Breyer argued that the practice should be discontinued under the Constitution.

“The death penalty, in and of itself, now likely constitutes a legally prohibited cruel and unusual punishment,” Breyer wrote in his dissent.

Blackman said Breyer was particularly adamant about this position in the past six years or so.

“He expected the Court to move in his direction,” Blackman said. “It hasn’t.”

Breyer pointed to botched executions, executed people later thought to be innocent, lengthy appeals processes and the inconsistencies in using the punishment. A large majority of the U.S. has since abandoned capital punishment, either in law or practice.

In a 2017 Texas case, Breyer argued that death row inmate Erick Davila’s appeal should be reviewed, in part pointing to the large portion of capital cases that end up being overturned. The court majority denied Davila’s appeal, and he was later executed.

“The fact that, according to Department of Justice statistics, nearly a third of convictions or sentences in capital cases are overturned at some stage of review suggests the practical importance of the appeal right,” Breyer wrote. “Particularly in a capital case such as this one.”

This article originally appeared in The Texas Tribune at

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at

Leave a Comment