As you surely know, Justice Breyer recently announced that he would be stepping down at the end of this term, setting another Supreme Court confirmation process in motion. However, you may not know how to further research Breyer’s legacy and SCOTUS confirmations.
Justice Breyer was well-liked by his colleagues and had a reputation for asking colorful hypotheticals from the bench. SCOTUSBlog has great coverage of his overall legacy, including many reminiscences from former clerks. Before his nomination to the federal bench, Breyer taught admin law, and some of the best scholarship on his SCOTUS tenure focuses on this subject, such as this Justice Stephen Breyer’s Contribution to Administrative Law symposium. During his nearly three decades on the Supreme Court, he (of course) wrote important opinions on a wide array of topics, often crafting compromises and creating nuanced balanced tests: the Congressional Research Service (CRS for short—you’ll be seeing a whole lot more of them in this post) recently published a nice overview of his jurisprudence.
To this writer, his most memorable opinion was in dissent, issued in Parents Involved in Community Schools v. Seattle School District No. 1, a case that sharply limited desegregation efforts in public schools. I would encourage anyone who’s ever dismissed Justice Breyer as a bloodless technocrat to listen to him read what Justice Stevens called his “eloquent and unanswerable dissent” from the bench, asking “what happened to stare decisis?”
With Breyer’s imminent retirement, the appointment process for his successor begins. If you’d like to further explore that process, HeinOnline’s History of Supreme Court Nominations collects an impressive array of primary and secondary sources. Those sources include this excellent CRS report on what goes into the President’s selection of a nominee. There are also helpful CRS reports on the rest of the process, including one on the nominee’s consideration by the Senate Judiciary Committee and another discussing the limitations and customs surrounding the questions Senators ask judicial nominees during confirmation hearings.
As you might expect, there is a plethora of scholarship on the appointment process. For a data-based deep-dive into nominations and confirmations from the institutional perspective of SCOTUS, you can’t beat The Supreme Court Compendium‘s chapter on the topic. The legal scholarship on this topic is voluminous, with law review articles exploring the original meaning of ‘advice and consent’ and analyzing SCOTUS confirmations from a historical perspective. Another major strain of scholarship analyzes the role of ideology or politics in the process, as well as the desirability of obscuring that role. Tackling the politics from another perspective, there are also quite a few articles discussing nominations within the context of the Court’s antidemocratic or countermajoritarian characteristics. Other legal scholarship approaches the topic from more oblique angles, with intriguing articles looking at confirmation hearings as “a valuable form of cultural expression” and elaborating on martial metaphors for the confirmation process.
In addition to the legal scholarship discussed above, there is a veritable ton of academic work on SCOTUS appointments taking place in other disciplines, especially political science. Scholars in that field have written interesting articles on topics such as the timing of nominations, the President’s constraints in choosing a nominee, the role of interest groups in nominations, the role of shared identity in public support for a nominee, and how contested nominations contribute to public polarization.
For a deeper dive, there are some great research guides out there that provide a more in-depth treatment of the many, many resources available on these topics. And, of course, if there are any resources on Justice Breyer’s retirement, or on SCOTUS appointments more generally, that you have found to be especially useful or interesting, be sure to let us know in the comments.