Former Supreme Court Justice Stephen Breyer says he has “theories” about who leaked the 2022 court opinion that overturned Roe v. Wade but that he would “be amazed if it was a judge.”
In a March 24 interview with “Meet the Press” host Kristen Welker on NBC, Justice Breyer, 85, was asked if he had a theory about the leak incident, including whether the leaker “wanted to sound the alarm about Roe being overturned or wanted the draft opinion to be locked in place?”
“Do I have my theories about it? Yes,” Justice Breyer replied.
Asked if the Dobbs precedent, like Roe v. Wade, could be reversed someday, the justice said it was “possible” but didn’t elaborate on his belief.
The leak in mid-2022 shattered the image of the Supreme Court, which has long prided itself on maintaining decorum and keeping confidential the deliberations of the justices.
The Supreme Court ruled on June 24, 2022, in Dobbs v. Jackson Women’s Health Organization that there was no constitutional right to abortion, overturning Roe v. Wade, the 1973 precedent that legalized abortion nationwide. The Dobbs ruling returned the regulation of abortion to the states.
In Dobbs, five conservative justices voted to reverse Roe. Chief Justice John Roberts, also considered a conservative, voted to uphold a restrictive Mississippi abortion law in the case but wrote that he would have stopped short of overturning Roe. Three liberal justices, including Justice Breyer, issued a strongly worded joint dissent.
Somehow, an early version of the draft majority opinion in Dobbs made its way to the media, a first-of-its-kind leak of a full high court opinion. Politico published the draft document, dated Feb. 10, 2022, on May 2, 2022, without disclosing its source.
Supreme Court justices, including Justice Samuel Alito, who wrote both the draft and published versions of the opinion, described the leak as a “grave betrayal.”
A report issued on Jan. 19, 2023, by Supreme Court Marshal Gail Curley failed to identify a culprit.
Term Limits?
The former justice also criticized conservatives and expressed support for term limits on Supreme Court justices.After a pressure campaign from left-leaning groups urged him to leave office to give President Joe Biden an opportunity to replace him with a younger liberal justice, Justice Breyer stepped down at the end of June 2022.
President Biden replaced him with another liberal, Justice Ketanji Brown Jackson, who is now 53.
In the “Meet the Press” interview, Justice Breyer also said it wouldn’t be “harmful” to impose limits on the service of Supreme Court justices.
Justices could still serve “long terms,” he said.
“Why long? Because I don’t think you want someone who’s appointed to the Supreme Court to be thinking about his next job,” he said.
“And so, a 20-year term? I don’t know, 18? Long term? Fine. Fine.”
Term limits would have helped him sidestep “difficult decisions” in considering when it was time for him to retire.
“You’ve been there for quite a while, and other people also should have a chance at these jobs. And at some point, you’re just not going to be able to do it,” he said.
A Pew Research Center poll in September 2023 stated that 74 percent of Americans support age limits for Supreme Court justices, Axios reported. Support for age limits was 82 percent among Democrats and 68 percent among Republicans.
In a separate interview with CBS News’ Jan Crawford Greenburg, Justice Breyer criticized conservatives’ approach to the law at the Supreme Court.
“You overrule too many cases, and law will turn into chaos. And before you know it, you won’t know what the law is,” he said.
Ms. Greenberg said, “You say it’s unprincipled.”
“Well, what is the principle?” he replied. “Is the principle that you think those cases decided then were really wrong? Egregiously wrong? Totally wrong? And how are you going to decide that?”
Justice Breyer also said that having a conservative majority on the court made it difficult in 2022 to arrive at a compromise ruling in the Dobbs case.
Justice Roberts wanted to seek a middle path in an effort to preserve Roe v. Wade, banning abortions after 15 weeks of gestation, Ms. Greenburg said.
“I certainly would have considered it,” Justice Breyer said.
Justice Breyer isn’t sympathetic to originalism, the idea that the U.S. Constitution should be interpreted according to what the words in the text meant at the time they were written.
But he denies the court is political.
“The political people desperately want to say that the judges are deciding on political bases. ... I don’t think that’s true,” he said.
Behind closed doors, the justices are civil to each other.
“Nobody speaks twice until everybody’s spoken once,” he said.
“It’s important because then everyone feels that they’ve participated. Everyone feels that the others have a chance to listen to them. In 28 years, I have never heard a voice raised in anger—I don’t think ever.”
Justice Breyer has been making the rounds in the media, promoting his memoir, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” which Simon and Schuster is scheduled to publish on March 26.
