Editing Stephen Breyer (section)

== Supreme Court (1994–2022) ==
[[File:The World Affairs Council presents Supreme Court Justice Stephen G. Breyer (cropped).jpg|thumb|Breyer speaking in [[Philadelphia, Pennsylvania]], in 2011]]
In 1993, on the recommendation of [[Orrin Hatch]], President [[Bill Clinton]] considered both Breyer and [[Ruth Bader Ginsburg]] for the seat vacated by [[Byron White]].<ref>{{Cite news |last=Burr |first=Thomas |date=July 29, 2018 |title=Sen. Orrin Hatch's impact on the Supreme Court: How a one-time lawyer from Pittsburgh shaped the highest court in the land |url=https://www.sltrib.com/news/politics/2018/07/29/sen-orrin-hatchs-impact/ |archive-url=https://web.archive.org/web/20231215021454/https://www.sltrib.com/news/politics/2018/07/29/sen-orrin-hatchs-impact/ |archive-date=December 15, 2023 |access-date=March 18, 2024 |work=The Salt Lake Tribune}}</ref> Clinton ultimately appointed Ginsburg.<ref>{{Cite news |last=Berke |first=Richard |date=June 15, 1993 |title=The Overview; Clinton Names Ruth Ginsburg, Advocate for Women, to Court |url=https://query.nytimes.com/gst/fullpage.html?res=9F0CE7DB163EF936A25755C0A965958260 |url-status=live |archive-url=https://web.archive.org/web/20201105022355/https://www.nytimes.com/1993/06/15/us/supreme-court-overview-clinton-names-ruth-ginsburg-advocate-for-women-court.html |archive-date=November 5, 2020 |access-date=February 18, 2017 |work=The New York Times}}</ref> 

After [[Harry Blackmun]] retired in 1994, Clinton initially offered the nomination to [[George J. Mitchell|George Mitchell]], the [[Senate Majority Leader]], who was retiring. Mitchell declined. Former [[governor of Arizona]] [[Bruce Babbitt]], who ran for president in 1988 and was serving as [[United States Secretary of the Interior|Secretary of the Interior]], was then offered the nomination, but also declined, saying he was looking forward to spending more time with his wife, [[Harriet C. Babbitt]]. She was serving as the 12th [[United States Ambassador to the Organization of American States]]. Babbitt later said that had he been confirmed to the court, she would have been compelled to resign and that he did not want to cause that. Both served in their positions to the end of Clinton's presidency in January 2001. Clinton next offered the nomination to [[Harriett Woods]], a former [[Lieutenant Governor of Missouri|lieutenant governor of Missouri]] and two-time Democratic nominee for U.S. Senate. Woods was serving as president of the [[National Women's Political Caucus]]. She also declined, and recommended Breyer and U.S. representative [[Barbara Jordan]].<ref>Toobin, Jeffrey (2007). The Nine: Inside the Secret World of the Supreme Court</ref>

Clinton then turned to [[Richard S. Arnold]], a former Arkansas state representative and [[chief of staff]] to Arkansas Governor [[Dale Bumpers]]. President [[Jimmy Carter]] had nominated Arnold to the [[United States Court of Appeals for the Eighth Circuit]], and the Senate confirmed him on February 20, 1980. He served till 1990. After that, he was serving as [[Chief judge (United States)|chief judge]] and a member of the [[Judicial Conference of the United States]]. Clinton had almost nominated Arnold before; he was the runner-up to Ginsburg.<ref>John Paul Frank; A. Leon Higginbotham Jr. (1993). "A Brief Biography of Judge Richard S. Arnold"</ref> Arnold told Clinton the day before the planned announcement of his nomination that due to serious "health concerns", he had to "defer this honorable nomination".<ref>Toobin, Jeffrey (2007). The Nine: Inside the Secret World of the Supreme Court</ref>

Initially, Clinton had felt Breyer lacked "soul and passion". But after heavy lobbying by Senators [[Ted Kennedy]] and [[Tom Harkin]], Clinton met with Breyer again and proceeded to nominate him as an [[associate justice]] of the [[United States Supreme Court]] on May 17, 1994.<ref>Toobin, Jeffrey (2007). The Nine: Inside the Secret World of the Supreme Court</ref> Breyer was confirmed by the Senate on July 29, 1994, by an 87 to 9 vote, and received his commission on August 3.

In 2015, Breyer broke a federal law that bans judges from hearing cases when they or their spouses or minor children have a financial interest in a company involved. His wife sold about $33,000 worth of stock in [[Johnson Controls]] a day after Breyer participated in the oral argument. This brought him back into compliance and he joined the majority in ruling in favor of the interests of a Johnson Controls subsidiary which was party to ''[[FERC v. Electric Power Supply Ass'n]]''.<ref>{{Cite news |last=Hananel |first=Sam |date=October 16, 2015 |title=Supreme Court justice took part in case despite wife's stock ownership |url=https://www.pbs.org/newshour/economy/conflict-interest-supreme-court-justices-stocks |work=[[PBS NewsHour]]}} {{cite court |url = https://supreme.justia.com/cases/federal/us/577/14-840/ |litigants = Fed. Energy Regulatory Comm'n v. Elec. Power Supply Ass'n |vol = 577 |reporter = U.S. |opinion = ___ |year = 2016 |via = Justia.com }}</ref>

Breyer wrote 551 opinions during his 28-year career, not counting those relating to orders or in the "[[shadow docket]]".<ref>{{Cite web |title=Stephen Breyer |url=https://ballotpedia.org/Stephen_Breyer |url-status=live |archive-url=https://web.archive.org/web/20210502164600/https://ballotpedia.org/Stephen_Breyer |archive-date=May 2, 2021 |access-date=May 7, 2021 |website=Ballotpedia}}</ref>

===Abortion===
In 2000, Breyer wrote the majority opinion in ''[[Stenberg v. Carhart]]'', which struck down a Nebraska law banning [[partial-birth abortion]].<ref>{{Cite news |date=June 2003 |title=The Women of Roe v. Wade |url=https://www.firstthings.com/article/2003/06/the-women-of-roe-v-wade |work=First Things}}</ref><ref name="stenberg" /> On June 29, 2020, he wrote the plurality opinion in ''[[June Medical Services v. Russo]]''.<ref>{{Cite web |date=June 29, 2020 |title=June Medical Services L. L. C. et al. v. Russo, Interim Secretary, Louisiana Department Of Health And Hospitals |url=https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf |archive-url=https://web.archive.org/web/20210214231318/https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf |archive-date=February 14, 2021 |access-date=February 14, 2021}}</ref> The ruling struck down Louisiana's abortion law requiring any doctor who performed abortions to have admitting privileges at a hospital within 30 miles. Breyer reaffirmed the "benefits and burdens" test he had created in ''[[Whole Woman's Health v. Hellerstedt]]'', which struck down a nearly identical abortion law in Texas. In 2022, he dissented in ''[[Dobbs v. Jackson Women's Health Organization]]'', which overturned ''[[Roe v. Wade]]''.

===Census===
In ''[[Department of Commerce v. New York]]'' (2019), Breyer was in the 5–4 majority that ruled that the Census Bureau had not followed proper procedure in its implementation of a citizenship question. He was also one of four justices who would have held the citizenship question unconstitutional in itself. In a mostly concurring opinion, he wrote: "Yet the decision was ill considered in a number of critically important respects. The Secretary did not give adequate consideration to issues that should have been central to his judgment, such as the high likelihood of an undercount, the low likelihood that a question would yield more accurate citizenship data, and the apparent lack of any need for more accurate citizenship data to begin with. The Secretary's failures in considering those critical issues make his decision unreasonable".<ref>{{Cite web |date=June 27, 2019 |title=Department of Commerce v. New York |url=https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf |url-status=live |archive-url=https://web.archive.org/web/20200823075819/https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf |archive-date=August 23, 2020 |access-date=May 22, 2021 |website=supremecourt.gov}}</ref>

On December 18, 2020, Breyer was one of three dissenters in ''[[Trump v. New York]]''. In a 20-page dissent, he argued that the Court should not have sidestepped the case and should have ruled in favor of the challengers, who wanted the Court to block the Trump administration's last-minute attempts to exclude undocumented immigrants from the census.<ref>{{Cite web |date=December 18, 2020 |title=Trump v. New York |url=https://www.supremecourt.gov/opinions/20pdf/20-366_7647.pdf |url-status=live |archive-url=https://web.archive.org/web/20210428190828/https://www.supremecourt.gov/opinions/20pdf/20-366_7647.pdf |archive-date=April 28, 2021 |access-date=May 22, 2021 |website=supremecourt.gov}}</ref> The census ultimately did not exclude undocumented immigrants, due to a lack of time and the subsequent issuance of [[Executive Order 13986]].

===Copyright===
In ''[[Eldred v. Ashcroft]]'', decided on January 15, 2003, Breyer and Justice [[John Paul Stevens]] filed separate dissenting opinions. In his 28-page dissent, Breyer argued that the 20-year retroactive extension of existing copyright granted by the [[Copyright Term Extension Act]] (CTEA) amounted effectively to a grant of perpetual copyright that violated the [[Copyright Clause]] of the Constitution, read in light of the [[First Amendment to the United States Constitution|First Amendment]]. He argued that the extension would produce a period of protection worth more than 99.8% of protection in perpetuity and that few artists would be more inclined to produce work knowing that their great-grandchildren would receive royalties. He also wrote that the [[fair use]] defense came to no avail either, as it could not help "those who wish to obtain from electronic databases material that is not there", e.g. teachers who can find from online no ideal material to be used in the class as it has been deleted.<ref>{{Cite web |title=Supreme Court Decision on Eldred v Ashcroft - Breyer J., dissenting |url=http://www.copyright.gov/docs/eldredd1.pdf |access-date=November 22, 2010}}</ref> In 2012, he expressed a similar idea in his dissent in ''[[Golan v. Holder]]'', which affirmed the constitutionality of the application of Section 514 of the [[Uruguay Round Agreements Act]] of 1994.<ref>{{Cite web |title=Supreme Court Decision on Golan v Holder |url=https://supreme.justia.com/cases/federal/us/565/302/#tab-opinion-1963687 |access-date=July 6, 2022}}</ref>

In 2005, while joining a unanimous Court in ''[[MGM Studios, Inc. v. Grokster, Ltd.]]'' against [[peer-to-peer file sharing]] companies [[Grokster]] and [[Streamcast]] on the ground of inducement liability, Breyer wrote a concurrence that the companies would be protected under the [[Sony Corp. of America v. Universal City Studios, Inc.|''Sony'' doctrine]] without evidence of inducement.<ref>{{Cite web |title=Supreme Court Decision on ''Grokster'' |url=https://supreme.justia.com/cases/federal/us/545/913 |access-date=July 6, 2022}}</ref>

On March 20, 2012, Breyer wrote for a unanimous court in ''[[Mayo v. Prometheus]]'' that patent claims relating to new diagnostic methods of natural phenomena were not patentable as they did not add an "inventive concept to application of the natural laws".<ref>{{cite web |last=Denniston |first=Lyle | url=https://www.scotusblog.com/2012/03/opinion-recap-freeing-doctors-to-practice/ | title=Making Sense of Opinion recap: Freeing doctors to practice | website=[[Scotusblog]] | date=June 20, 2012 }}</ref> The patent, which was related to a patient's metabolization of a drug resulting from a determination of effective dosage, was analyzed to determine whether it was of an applied "law of nature" or merely an instruction on applying a [[natural law]].<ref>{{cite web |last=Patel |first=Sailesh | url=https://natlawreview.com/article/supreme-court-s-mayo-v-prometheus-decision-implications-biotechnology | title=The Supreme Court's Mayo v. Prometheus Decision The Implications for Biotechnology | website=[[The National Law Review]] | date=March 23, 2012 }}</ref> In Breyer's analysis, a doctor's administration of an already known drug related only to an identification of an "intended audience" to carry out the practice rather than a transformation of the subject.<ref>{{cite journal |last=Dorn |first=Brian | title=Mayo v. Prometheus: A Year Later |journal=ACS Medicinal Chemistry Letters | date=June 27, 2013 |volume=4 |issue=7 |pages=572–573 |doi=10.1021/ml400230u |pmid=24900711 |pmc=4027457 }}</ref><ref>{{cite web |last1=Harmon Arner |first1=Erika |last2=Bianco |first2=Krista | url=https://www.finnegan.com/en/insights/ip-updates/a-summary-of-the-supreme-court-s-prometheus-decision.html | title=MA Summary of the Supreme Court's Prometheus Decision | website=[[Finnegan, Henderson, Farabow, Garrett & Dunner]] | date=June 21, 2012 }}</ref> Breyer added, "If a law of nature is not patentable, then neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself."<ref>{{cite web |last=Mann |first=Ronald | url=https://www.scotusblog.com/2012/03/court%e2%80%99s-biotech-case-sends-stern-warning-to-federal-circuit-and-software-designers/ | title=Court's biotech case sends stern warning to Federal Circuit and software designers | website=[[SCOTUSblog]] | date=March 21, 2012 }}</ref>

In ''[[American Broadcasting Cos., Inc. v. Aereo, Inc.]]'', decided on June 25, 2014, Breyer delivered the majority opinion, ruling that [[Aereo]], allowing subscribers to view near-live streams of over-the-air television on Internet-connected devices, operated so overwhelmingly similar to the cable companies that it violated the right of public performance of the networks' copyrighted work.<ref>{{Cite web |title=Supreme Court Decision on ''Aereo'' |url=https://supreme.justia.com/cases/federal/us/573/431 |access-date=July 6, 2022}}</ref>

In ''[[Google v. Oracle]]'', decided on April 5, 2021, Breyer wrote the 38-page majority opinion, holding that Google's copying of 11,500 lines of Java declaring code (0.4% of all Java code) constituted fair use because "three of these packages were ... fundamental to being able to use the Java language at all". Breyer explained, "By using the same declaring code for those packages, programmers using the Android platform can rely on the method calls that they are already familiar with to call up particular tasks (e.g., determining which of two integers is the greater); but Google's own implementing programs carry out those tasks. Without that copying, programmers would need to learn an entirely new system to call up the same tasks."<ref>{{Cite web |date=April 5, 2021 |title=Google v. Oracle |url=https://www.supremecourt.gov/opinions/20pdf/18-956diff_2024.pdf |access-date=May 22, 2021 |website=supremecourt.gov}}</ref>

===Death penalty===
In 2015, Breyer dissented in ''[[Glossip v. Gross]]'', which held by a 5–4 vote that prisoners challenging their executions must provide a "known and available" execution method before challenging their method of execution. In a dissent joined by Ginsburg, Breyer questioned the constitutionality of the death penalty itself. He wrote, "For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question."<ref>{{Cite web |date=June 29, 2015 |title=GLOSSIP ET AL. v. GROSS ET AL. |url=https://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf |archive-url=https://web.archive.org/web/20210204093238/https://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf |archive-date=February 4, 2021 |access-date=February 14, 2021}}</ref> In July 2020, Breyer reiterated this position, writing, "As I have previously written, the solution may be for this Court to directly examine the question whether the death penalty violates the Constitution."<ref>{{Cite web |date=July 14, 2020 |title=WILLIAM P. BARR, ATTORNEY GENERAL, ET AL. v. DANIEL LEWIS LEE, ET AL. |url=https://www.supremecourt.gov/opinions/19pdf/20a8_970e.pdf |archive-url=https://web.archive.org/web/20210204043107/https://www.supremecourt.gov/opinions/19pdf/20a8_970e.pdf |archive-date=February 4, 2021 |access-date=February 14, 2021}}</ref>

===Free speech===
On June 18, 2015, Breyer wrote the majority opinion in ''[[Walker v. Texas Division, Sons of Confederate Veterans]]''. He wrote that [[vehicle registration plates of the United States|license plates]] are considered [[government speech|governmental speech]] and are more subject to regulation than private speech.<ref>{{cite web |last=Denniston |first=Lyle | url=https://www.scotusblog.com/2015/06/opinion-analysis-the-message-determines-the-right/ | title=Opinion analysis: The message determines the right | website=[[Scotusblog]] | date=June 18, 2015 }}</ref><ref>{{cite web |last=Liptak |first=Adam | url=https://www.nytimes.com/2015/06/19/us/supreme-court-says-texas-can-reject-confederate-flag-license-plates.html | title=Supreme Court Says Texas Can Reject Confederate Flag License Plates | website=[[The New York Times]] | date=June 18, 2015 }}</ref> In doing so, he noted that States have historically used license plates to convey governmental messages and that speech appearing on "what is essentially a government-issued ID" could reasonably assumed to be associated with the State.<ref>{{cite web |last=Walsh |first=Mark | url=https://www.scotusblog.com/2015/06/a-view-from-the-courtroom-a-bonus-day-for-opinions/ | title=A "view" from the Courtroom: A bonus day for opinions | website=[[Scotusblog]] | date=June 18, 2015 }}</ref> Breyer also commented on the differences between the government and private citizens, saying that government speech "is not barred by the Free Speech Clause from determining the content of what it says. […] Were the Free Speech Clause interpreted otherwise, government would not work".<ref>{{cite web |last=Lithwick |first=Dahlia | url=https://slate.com/news-and-politics/2015/06/walker-v-sons-of-confederate-veterans-the-supreme-court-confronts-the-ugly-power-of-the-confederate-flag.html | title=Reality Strikes the Supreme Court | website=[[Slate (magazine)|Slate]] | date=June 18, 2015 }}</ref>

On June 23, 2021, Breyer authored the majority opinion in ''[[Mahanoy Area School District v. B.L.]]'', relating to the role of school regulation of off-campus [[student speech]].<ref>{{cite news |last=Walsh |first=Mark | url=https://www.edweek.org/policy-politics/u-s-supreme-court-rules-for-student-on-regulation-of-off-campus-speech/2021/06 | title=U.S. Supreme Court Rules for Cheerleader Who Posted Vulgar Snapchat Message | website=[[Education Week]] | date=June 23, 2021 }}</ref> In his opinion he noted the importance of potential regulation of such speech by school authorities but acknowledged that such regulation was diminished due to the potential implication of a 24-hour restriction on student speech if fully realized, its traditional role under parental supervision, and the interest of schools in safeguarding the [[marketplace of ideas]].<ref>{{cite web |last=Taticci |first=Mark | url=https://www.faegredrinker.com/en/insights/publications/2021/6/supreme-court-decides-mahanoy-area-school-district-v-bl | title=Supreme Court Decides Mahanoy Area School District v. B.L. | website=[[Faegre Drinker]] | date=June 23, 2021 }}</ref><ref>{{cite web |last=Howe |first=Amy | url=https://www.scotusblog.com/2021/06/court-rules-for-high-school-cheerleader-in-first-amendment-dispute-over-snapchat-profanity/ | title=Court rules for high school cheerleader in First Amendment dispute over Snapchat profanity | website=[[SCOTUSblog]] | date=June 23, 2021 }}</ref> Despite this, Breyer stipulated that the utterance of profanity on social media did not constitute "substantial disruptance" of a school activity or threaten harm to others, writing, "the justifications offered for punishing Levy's speech were simply insufficient […] were she an adult, the First Amendment would provide strong protection".<ref>{{cite web |last=Totenberg |first=Nina | url=https://www.npr.org/2021/06/23/1001382019/supreme-court-rules-cheerleaders-f-bombs-are-protected-by-the-first-amendment | title=Supreme Court Rules Cheerleader's F-Bombs Are Protected By The 1st Amendment | website=[[NPR]] | date=June 23, 2021 }}</ref><ref>{{cite web |last=Millhiser |first=Ian | url=https://www.vox.com/2021/6/23/22547040/supreme-court-cursing-cheerleader-stephen-breyer-free-speech-mahanoy-bl-brandi-levy | title=The Supreme Court's "cursing cheerleader" case is its biggest student free speech case in 14 years | website=[[Vox (website)|Vox]] | date=June 23, 2021 }}</ref>

===Defendant protections===
On June 21, 2011, Breyer wrote for the majority in ''[[Turner v. Rogers]]'' on the requirement of [[counsel]] or some other safeguard in [[civil contempt]] cases.<ref>{{cite web |last=Liptak |first=Adam | url=https://www.nytimes.com/2011/06/21/us/politics/21contempt.html | title=Court Issues Split Ruling on Poor's Right to Counsel | website=[[The New York Times]] | date=June 20, 2011 }}</ref> In his opinion, he acknowledged that a [[right to counsel]] does not exist in all matters relating to incarceration, as in civil contempt cases the defendant's opponent is also often unrepresented, the arguments typically center on straightforward questions, and substitute safeguards are available.<ref>{{cite web |last=Diller |first=Rebekah | url=https://www.brennancenter.org/our-work/analysis-opinion/turner-v-rogers-what-court-did-and-didnt-say | title=Turner v. Rogers: What the Court Did and Didn't Say | website=[[Brennan Center for Justice]] | date=June 21, 2011 }}</ref> These safeguards, such as soliciting financial information or informing the defendant of the legal significance of payment, were required to have been provided by the state on pain of an erroneous deprivation of liberty.<ref>{{cite web |last=Van Oort |first=Aaron | url=https://www.faegredrinker.com/en/insights/publications/2011/6/supreme-court-decides-turner-v-rogers | title=Supreme Court Decides Turner v. Rogers | website=[[Faegre Drinker]] | date=June 20, 2011 }}</ref><ref>{{cite web |last=Schultz |first=Evan | url=https://www.scotusblog.com/2011/06/opinion-analysis-no-right-to-lawyer-for-deadbeat-dad/ | title=Opinion analysis: No right to lawyer for deadbeat dad | website=[[SCOTUSblog]] | date=June 21, 2011 }}</ref>

On June 22, 2015, Breyer wrote for the majority in ''[[Kingsley v. Hendrickson]]'' that a pretrial detainee must prove that [[Police brutality|excessive police force]] was excessive only by an objective standard, not a subjective standard.<ref>{{cite web |last=Panditharatne |first=Mekela | url=https://www.theatlantic.com/politics/archive/2015/07/police-force-supreme-court-kingsley/398861/ | title=When Is the Use of Force by Police Reasonable? | website=[[The Atlantic]] | date=July 17, 2015 }}</ref> In his opinion, he wrote that the [[Due Process Clause]] protects pretrial detainees from "objectively unreasonable" force by a state actor.<ref>{{cite web |last=Walsh |first=Mark | url=https://www.scotusblog.com/2015/06/a-view-from-the-courtroom-a-web-of-intrigue-as-the-term-winds-down/ | title=A "view" from the Courtroom: A web of intrigue as the Term winds down | website=[[SCOTUSblog]] | date=June 22, 2015 }}</ref><ref>{{cite web | author-link=Mark Joseph Stern | last = Stern |first=Mark Joseph |url=https://www.slate.com/articles/news_and_politics/jurisprudence/2015/06/supreme_court_kingsley_v_hendrickson_a_new_protection_against_police_abuse.html | title=After Freddie Gray | website=[[Slate (magazine)|Slate]] | date=June 22, 2015 }}</ref> He concluded, "in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not 'rationally related to a legitimate non-punitive governmental purpose' or that the actions 'appear excessive in relation to that purpose.'"<ref>{{cite web |last=Re |first=Richard | url=https://www.scotusblog.com/2015/06/opinion-analysis-supporting-excessive-force-claims-in-jails-and-prisons/ | title=Opinion analysis: Supporting excessive force claims in jails – and prisons? | website=[[SCOTUSblog]] | date=June 22, 2015 }}</ref><ref>{{cite web |last=Gilna |first=Derek | url=https://www.prisonlegalnews.org/news/2015/jul/7/supreme-court-clarifies-legal-standard-pre-trial-detainee-excessive-force-claims/ | title=Supreme Court Clarifies Legal Standard for Pre-Trial Detainee Excessive Force Claims | website=[[Prison Legal News]] | date=July 7, 2015 }}</ref>

On February 21, 2018, Breyer wrote for the majority in ''[[Class v. United States]]'' on whether some who has already pleaded guilty may challenge a federal law's constitutionality.<ref>{{cite web |last=Scarinci |first=Donald | url=https://constitutionallawreporter.com/2018/03/01/class-v-united-states-2018/ | title=CLASS V UNITED STATES (2018) GUILTY PLEA DOES NOT BAR FEDERAL CRIMINAL DEFENDANT FROM CHALLENGING CONSTITUTIONALITY OF STATUTE OF CONVICTION | website=Constitutionallawreporter.com | date=2018 }}</ref> In his opinion, he distinguished ''Class'' from past cases where appeal was denied, such as ''[[United States v. Broce]]'' and ''[[Menna v. New York]]'', as Class's admission of guilt resulted in his ability to appeal the questioned indictments that his record would otherwise have contradicted.<ref>{{cite web |last=Lucian |first=Dervan | url=https://www.cato.org/sites/cato.org/files/serials/files/supreme-court-review/2018/9/2018-cato-supreme-court-review-5.pdf | title=Class v. United States: Bargained Justice and a System of Efficiencies | website=[[The Cato Institute]] | date=2018 }}</ref> He concluded, "the claims at issue here do not fall within any of the categories of claims that Class's plea agreement forbids him to raise on direct appeal. They challenge the Government's power to criminalize Class's (admitted) conduct. They thereby call into question the Government's power to 'constitutionally prosecute' him. A guilty plea does not bar a direct appeal in these circumstances.”<ref>{{cite web |last=Sample |first=Brandon | url=https://www.criminallegalnews.org/news/2018/apr/19/guilty-plea-does-not-foreclose-challenge-constitutionality-conviction-us-supreme-court-decides/ | title=Guilty Plea Does Not Foreclose Challenge To Constitutionality Of Conviction, U.S. Supreme Court Decides | website=Criminal Legal News | date=April 19, 2018 }}</ref><ref>{{cite web |last=Little |first=Rory | url=https://www.scotusblog.com/2018/02/opinion-analysis-appellate-constitutional-attacks-offense-conviction-not-waived-absent-explicit-waiver/ | title=Opinion analysis: Appellate constitutional attacks on the offense of conviction are not waived absent explicit waiver (Corrected)| website=[[SCOTUSblog]] | date=February 23, 2018 }}</ref>

===Native American law===
On November 27, 2001, Breyer wrote the majority opinion in ''[[Chickasaw Nation v. United States]]'', relating to whether tribes are liable for taxes on gambling operations.<ref>{{cite web |last=Jackson |first=George | url=https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1200&context=ailr | title=Chickasaw Nation v. United States and the Potential Demise of the Indian Canon of Construction | website=[[American Indian Law Review]] | date=January 1, 2003 }}</ref> In his opinion, he stipulated that [[Internal Revenue Code|IRC]] chapter 35, which affords state governmental lotteries an exemption from federal excise taxes, does not provide the same tax exemption to tribal pull-tab operations that act as lotteries under the IRC.<ref name=SCOTUS>{{ussc|name=Chickasaw Nation v. United States|534|84|2001}}.</ref> Breyer wrote that a straightforward reading of the code, which stipulated that the "reporting and withholding of taxes" on gambling operations applied equally to both the states and tribes, was "included inadvertently. The presence of a bad example in a statute does not warrant rewriting the remainder of the statute's language. Nor does it necessarily mean that the statute is ambiguous." Chapter 35, according to Breyer, "simply imposes taxes […] from which it exempts certain state-controlled gambling activities".<ref>{{cite web |last=Dean Luthrey |first=Grayden | url=https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1205&context=ailr | title=Chickasaw Nation v. United States: The Beginning of the End of the Indian-Law Canons in Statutory Cases and the Start of the Judicial Assault on the Trust Relationships? | website=[[American Indian Law Review]] | date=January 1, 2003 }}</ref>
 
On April 19, 2004, Breyer wrote the majority opinion in ''[[United States v. Lara]]'', holding that both tribal governments and the federal government may prosecute non-member Native Americans for the same charges without violating the [[Double Jeopardy Clause]], as Native Nations are separate [[Tribal sovereignty in the United States|sovereigns]].<ref>{{cite web |last=Berger |first=Bethany | url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=687356 | title=United States v. Lara as a Story of Native Agency | website=[[Tulsa Law Review]] | date=November 5, 2004 |ssrn=687356 }}</ref> He reiterated this question in the context of the tribe's sovereignty as "Whether Congress has the constitutional power to relax restrictions that the political branches have, over time, placed on the exercise of a tribe's inherent legal authority".<ref>{{cite web | url=https://www.everycrsreport.com/files/20040421_RL32361_e91afd8c75fdd6c7f17e2ceaad8498197156fa07.pdf | title=Tribal Sovereignty Over Nonmember Indians: United States v. Billy Jo Lara | website=[[Congressional Research Service]] | date=April 21, 2004 }}</ref> Breyer concluded that the [[Indian Commerce Clause]] gives Congress the authority to legislate with respect to tribes and that Congress's amendments to the [[Indian Civil Rights Act]] constitute a deference to tribal sovereignty ensuring double jeopardy does not apply.<ref>{{cite web |last=Fletcher |first=Matthew | url=https://www.michbar.org/file/barjournal/article/documents/pdf4article717.pdf | title=United States v. Lara: Affirmation of Tribal Criminal Jurisdiction over Nonmember Indians | website=[[Michigan Bar Journal]] | date=July 2004 }}</ref><ref>{{cite web |last=Batzer |first=Mackenzie | url=https://digitalcommons.chapman.edu/cgi/viewcontent.cgi?httpsredir=1&article=1080&context=chapman-law-review | title=Trapped in a Tangled Web United States v. Lara: The Trouble With Tribes and the Sovereignty Debacle | website=Chapman Law Review | date=2005 }}</ref>

===Environment===
In ''[[Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.]]'' (2000), Breyer was in the 7–2 majority that held that people who use the North Tyger River for recreational purposes but could not do so due to pollution had standing to sue industrial polluters.

On April 23, 2020, Breyer wrote the majority opinion in ''[[County of Maui v. Hawaii Wildlife Fund]]''.<ref>{{Cite web |date=April 23, 2020 |title=COUNTY OF MAUI, HAWAII v. HAWAII WILDLIFE FUND ET AL. |url=https://www.supremecourt.gov/opinions/19pdf/18-260_jifl.pdf |archive-url=https://web.archive.org/web/20210126011944/https://www.supremecourt.gov/opinions/19pdf/18-260_jifl.pdf |archive-date=January 26, 2021 |access-date=February 14, 2021}}</ref> The Court ruled that the County of Maui must have a permit under the [[Clean Water Act]] in order to release [[groundwater pollution]] into the ocean. Although the ruling was less broad than the 9th Circuit's ruling, environmentalist groups saw the ruling as a win and an affirmation of the Clean Water Act.<ref>{{Cite news |date=April 23, 2020 |title=Supreme Court says Clean Water Act applies to some groundwater pollution |url=https://www.cnn.com/2020/04/23/politics/supreme-court-clean-water-act-maui/index.html |archive-url=https://web.archive.org/web/20210302061215/https://www.cnn.com/2020/04/23/politics/supreme-court-clean-water-act-maui/index.html |archive-date=March 2, 2021 |access-date=February 14, 2021 |publisher=CNN}}</ref>

On July 31, 2020, Breyer dissented when the Supreme Court, in a 5–4 decision, refused to lift a stay on the 9th Circuit ruling that halted construction of the wall at the U.S.-Mexico border. The Sierra Club argued that the wall would harm the environment unduly, including threatening wildlife and changing the flow of water in the Sonoran Desert.<ref>{{Cite web |date=October 21, 2019 |title=The Destruction Caused by the Border Wall Is Worse Than You Think |url=https://www.sierraclub.org/sierra/2020-1-january-february/protect/destruction-caused-border-wall-worse-you-think |archive-url=https://web.archive.org/web/20210121175206/https://www.sierraclub.org/sierra/2020-1-january-february/protect/destruction-caused-border-wall-worse-you-think |archive-date=January 21, 2021 |access-date=February 14, 2021 |publisher=Sierra Club}}</ref> Breyer wrote, "The Court's decision to let construction continue nevertheless, I fear, may 'operat[e], in effect, as a final judgment.'" Ginsburg, Sotomayor, and Kagan joined his dissent.<ref>{{Cite web |date=July 31, 2020 |title=DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. SIERRA CLUB, ET AL. |url=https://www.supremecourt.gov/opinions/19pdf/19a60_bqm1.pdf |archive-url=https://web.archive.org/web/20210309193041/https://www.supremecourt.gov/opinions/19pdf/19a60_bqm1.pdf |archive-date=March 9, 2021 |access-date=February 14, 2021}}</ref>

On March 4, 2021, Breyer dissented in ''[[United States Fish and Wildlife Serv. v. Sierra Club, Inc.]]'', joined only by Sotomayor. The case concerned the Sierra Club's request under the [[Freedom of Information Act (United States)|Freedom of Information Act]] (FOIA) for "draft opinions" concerning rules governing underwater structures that are used to cool industrial equipment. The Sierra Club argued that it had the right to access the documents.<ref>{{Cite news |date=March 4, 2021 |title=Breaking Away from Norms and Traditions, Justice Breyer Does Not 'Respectfully' Dissent Against Justice Barrett's First Majority Opinion |url=https://www.msn.com/en-us/news/us/breaking-away-from-norms-and-traditions-justice-breyer-does-not-e2-80-98respectfully-e2-80-99-dissent-against-justice-barrett-e2-80-99s-first-majority-opinion/ar-BB1efi0M |archive-url=https://web.archive.org/web/20210414223704/https://www.msn.com/en-us/news/us/breaking-away-from-norms-and-traditions-justice-breyer-does-not-e2-80-98respectfully-e2-80-99-dissent-against-justice-barrett-e2-80-99s-first-majority-opinion/ar-BB1efi0M |archive-date=April 14, 2021 |access-date=March 4, 2021 |publisher=MSN}}</ref> The majority opinion limits environmental groups' ability to obtain government documents under FOIA.<ref>{{Cite web |date=March 4, 2021 |title=Barrett Rejects Sierra Club in First Opinion for Supreme Court |url=https://www.msn.com/en-us/money/markets/barrett-rejects-sierra-club-in-first-opinion-for-supreme-court/ar-BB1efbUk |archive-url=https://web.archive.org/web/20210305123308/http://www.msn.com/en-us/money/markets/barrett-rejects-sierra-club-in-first-opinion-for-supreme-court/ar-BB1efbUk |archive-date=March 5, 2021 |access-date=March 4, 2021 |publisher=MSN}}</ref> Breyer wrote in his dissent, "Agency practice shows that the Draft Biological Opinion, not the Final Biological Opinion, is the document that informs the EPA of the Services' conclusions about jeopardy and alternatives and triggers within the EPA the process of deciding what to do about those conclusions. If a Final Biological Opinion is discoverable under FOIA, as all seem to agree it is, why would a Draft Biological Opinion, embodying the same Service conclusions (and leaving the EPA with the same four choices), not be?"<ref>{{Cite web |date=March 4, 2021 |title=UNITED STATES FISH AND WILDLIFE SERVICE ET AL. v. SIERRA CLUB, INC. |url=https://www.supremecourt.gov/opinions/20pdf/19-547_08m1.pdf |access-date=March 4, 2021}}</ref>

In ''Hollyfrontier Cheyenne Refining v. Renewable Fuels Association'', Breyer ruled for oil refineries, joining the majority opinion, which held that oil refineries struggling financially did not need a continuous exemption every year since 2011 in order to be granted an exemption from federal renewable fuels policy.<ref>{{Cite web |date=June 25, 2021 |title=Oil refineries win battle over renewable-fuel exemptions |url=https://www.scotusblog.com/2021/06/oil-refineries-win-battle-over-renewable-fuel-exemptions/ |url-status=live |archive-url=https://web.archive.org/web/20210629222957/https://www.scotusblog.com/2021/06/oil-refineries-win-battle-over-renewable-fuel-exemptions/ |archive-date=June 29, 2021 |access-date=June 25, 2021 |website=SCOTUSblog}}</ref>

===Health care===
Breyer generally voted to uphold the [[Affordable Care Act]] since its passage in 2010. He wrote the 7-2 majority opinion in ''[[California v. Texas]]'', a decision on June 17, 2021, holding that Texas and other states lacked standing to sue against the Affordable Care Act's individual mandate. Breyer wrote, "It is consequently not surprising that the plaintiffs cannot point to cases that support them. To the contrary, our cases have consistently spoken of the need to assert an injury that is the result of a statute's actual or threatened enforcement, whether today or in the future."<ref>{{Cite web |date=June 17, 2021 |title=19-840 California v. Texas (06/17/2021) |url=https://www.supremecourt.gov/opinions/20pdf/19-840_6jfm.pdf |url-status=live |archive-url=https://web.archive.org/web/20210617140242/https://www.supremecourt.gov/opinions/20pdf/19-840_6jfm.pdf |archive-date=June 17, 2021 |access-date=June 17, 2021 |website=supremecourt.gov}}</ref>

===Partisan gerrymandering===
On April 28, 2004, Breyer dissented in ''[[Vieth v. Jubelirer]]'', in which the Court held that partisan [[gerrymandering]] is a non-justiciable claim. Breyer wrote in his dissent, "Sometimes purely political 'gerrymandering' will fail to advance any plausible democratic objective while simultaneously threatening serious democratic harm. And sometimes when that is so, courts can identify an equal protection violation and provide a remedy."<ref>{{Cite web |date=April 28, 2004 |title=Vieth et al. v. Jubelirer, President Of The Pennsylvania Senate, et al. |url=http://www.supremecourt.gov/opinions/03pdf/02-1580.pdf |archive-url=https://web.archive.org/web/20140508180353/http://www.supremecourt.gov/opinions/03pdf/02-1580.pdf |archive-date=May 8, 2014 |access-date=February 14, 2021}}</ref> In 2006, Breyer was in a 5–4 majority holding that District 23 of the [[2003 Texas redistricting]] violated the Voting Rights Act due to [[vote dilution]]. Along with Justice [[John Paul Stevens]], Breyer would also have ruled in favor of plaintiffs' claims that Texas's statewide plan was an unconstitutional partisan gerrymander. In June 2019, Breyer dissented in ''[[Rucho v. Common Cause]]'', in which the Supreme Court decided 5–4 that gerrymandering is a non-justiciable claim.<ref>{{Cite web |date=June 27, 2019 |title=Rucho et al. v. Common Cause et al. |url=https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf |archive-url=https://web.archive.org/web/20210215052934/https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf |archive-date=February 15, 2021 |access-date=February 14, 2021}}</ref>

===Voting rights===
Breyer wrote the majority opinion in ''[[Alabama Legislative Black Caucus v. Alabama]]'', which ruled that racial gerrymandering claims must be looked at district by district, and struck down four of Alabama's state Senate districts as unconstitutional racial gerrymanders.<ref>{{Cite web |date=March 25, 2015 |title=ALABAMA LEGISLATIVE BLACK CAUCUS ET AL. v. ALABAMA ET AL. |url=https://www.supremecourt.gov/opinions/14pdf/13-895_o7jq.pdf |access-date=March 1, 2022}}</ref>

Breyer joined Ginsburg's dissent in ''[[Shelby County v. Holder]]''. A 5–4 majority ruled that Section 4(b) of the [[Voting Rights Act]] is unconstitutional. Breyer joined another dissent by Ginsburg in ''[[RNC v. DNC]]'', which overturned a lower court's extension of a voting deadline in the Wisconsin primary elections.<ref>{{Cite web |date=April 6, 2020 |title=REPUBLICAN NATIONAL COMMITTEE, ET AL. v. DEMOCRATIC NATIONAL COMMITTEE, ET AL. |url=https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf |archive-url=https://web.archive.org/web/20210215052844/https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf |archive-date=February 15, 2021 |access-date=February 14, 2021}}</ref> The lower court had extended the deadline so that people who had not yet received mail-in ballots by April 7 could vote by mail in the wake of the [[COVID-19]] pandemic. Breyer dissented in a similar Wisconsin case in October; the petitioners had asked the court to require Wisconsin to count mail-in ballots received up to six days after Election Day, and the Court, with Breyer, Sotomayor, and Kagan dissenting, refused the petitioners' request to extend the deadline.<ref>{{Cite web |date=October 26, 2020 |title=DEMOCRATIC NATIONAL COMMITTEE, ET AL. v. WISCONSIN STATE LEGISLATURE, ET AL. |url=https://www.supremecourt.gov/opinions/20pdf/20a66_new_m6io.pdf#page=24 |archive-url=https://web.archive.org/web/20210223065650/https://www.supremecourt.gov/opinions/20pdf/20a66_new_m6io.pdf#page=24 |archive-date=February 23, 2021 |access-date=February 14, 2021}}</ref> Breyer joined Kagan's dissent in ''[[Brnovich v. DNC]]'' (2021), a case that upheld Arizona's ban on ballot harvesting and refusal to count out-of-precinct ballots.<ref>{{Cite web |date=July 1, 2021 |title=No. 19-1257 Brnovich v. DNC |url=https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf |url-status=live |archive-url=https://web.archive.org/web/20210706222115/https://www.supremecourt.gov/opinions/20pdf/19-1257_g204.pdf |archive-date=July 6, 2021 |access-date=September 6, 2021 |website=supremecourt.gov}}</ref> As the most senior dissenter, Breyer likely assigned the dissenting opinion to Kagan.{{citation needed|date=February 2022}}