Retiring Justice Stephen Breyer's 28 years on the Supreme Court, explained

Contributing sentiments towards policy:

63% : A similar drama played out in National Federation of Independent Business v. Sebelius (2012), the first major challenge to the Affordable Care Act to reach the Supreme Court.
49% : Though the Court's second Fisher decision didn't invalidate affirmative action altogether, it placed a very high burden on universities that wish to consider race in their admissions policies -- a high enough burden that many universities are likely to decide that it's not worth the expense.
48% : It is likely, for example, that affirmative action survived its first two encounters with the Roberts Court because of an unplanned but successful good cop-bad cop routine that Breyer and Sotomayor used to sway the Court's longtime swing vote, Justice Anthony Kennedy.
48% : Roberts, meanwhile, voted to uphold the individual mandate as a valid exercise of Congress's power to levy taxes, saving protections for people with preexisting conditions in the process.
46% : He was the Court's staunchest defender of the right of legislative majorities to legislate, believing that judges should be very reluctant to strike down laws under debatable readings of the Constitution -- though this broad trust of legislatures did not stop him from rejecting laws that sought to infringe on abortion rights, or from becoming the Court's most outspoken opponent of the death penalty.
46% : Similarly, while NFIB did not gut the Affordable Care Act, it took a significant bite out of it.
45% : In an even more surprising development, when the Fisher case reached the justices again in 2016, Kennedy drafted another opinion, joined again by Breyer and Sotomayor, which weakened affirmative action but did not kill it -- leaving an outmaneuvered Justice Samuel Alito to complain in dissent that "something strange has happened since our prior decision in this case."
43% : Sotomayor's dissent, which was never published, unnerved many of her colleagues, who, according to Biskupic, were "anxious about how Sotomayor's personal defense of affirmative action and indictment of the majority would ultimately play to the public."
39% : Within a death penalty State," Breyer wrote in his Glossip dissent, "the imposition of the death penalty heavily depends on the county in which a defendant is tried."
39% : Ginsburg, for her part, grounded her support for abortion rights in the democratic principle that women should be able to "participate equally in the economic and social life of the Nation" -- a principle that is undermined if women do not have full control over their own bodies -- but Breyer never made a similar attempt to reconcile his willingness to overturn a legislature's decision to restrict abortion with his overarching view that judges should protect democracy.
38% : For these and other reasons, Breyer concluded that it is "highly likely that the death penalty violates the Eighth Amendment," and he called upon his Court to receive full briefing on whether the death penalty should be allowed to exist at all.
37% : Kennedy is conservative -- he dissented in a 2003 case upholding a race-conscious admissions program at the University of Michigan's law school -- but he broke with his fellow Republicans on issues such as abortion, race, and LGBTQ rights just often enough to give liberals hope that his vote could be swayed.
35% : In recent years, for example, Breyer became the Court's most outspoken opponent of the death penalty -- in large part because of his belief that it cannot be fairly administered.

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