Stephen Breyer’s Retirement Is Good News for the Fourth Amendment

Stephen Breyer was appointed by President Bill Clinton to the U.S. Supreme Court’s vacancy in 1994. Breyer told the nation that he would strike the “right balance” between order and discipline, be firm about law enforcement, but still stick in the fight for the Bill of Rights.

Breyer’s imminent retirement after the current term of the Supreme Court gives us the opportunity to evaluate Clinton’s claims against Breyer’s track record. Unfortunately, Breyer was only half-right. Breyer certainly was “firm” when it came to his respect for law enforcement. Breyer was often compelled by the same judicial deference to “stick in there for Bill of Rights” during major Fourth Amendment cases that were brought before SCOTUS.

Make sure to take Navarette v. California (2014). The police were called anonymously by a 911 dispatcher about an uncorroborated call regarding a dangerous driver. This led them to conduct a traffic stop which resulted in a bust of a suspected drug dealer. According to the 5–4 majority opinion of Justice Clarence Thomas, “the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated.” Breyer agreed to join the law enforcement.

Justice Antonin Scalia made clear the flaws in that judgement through a strong dissent. Scalia wrote, “The Court’s decision serves up a freedom-destroying cocktail,” and was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissension. All a malevolent 911 caller needs to do is state a traffic violation and then the car being targeted will be pulled over by police, if needed. Scalia said that Scalia’s disturbing scenario “isn’t my idea, and I don’t think it would be the Framers, which is a concept of people protected from unreasonable searches, seizures, or other search and seizure.” Breyer was apparently untroubled by that Fourth Amendment–shredding scenario.

Notably, this was not the first time that Scalia was more “liberal” than Breyer in a 5–4 Fourth Amendment case. In contrast, one year prior, Maryland v. King(2013). Breyer was a part of Justice Anthony Kennedy’s controversial majority opinion that allowed police to perform warrantless DNA swab testing incidental to an arrest.

Scalia said, “Make no mistake about that,” and was joined by Ginsburg, Sotomayor and Kagan in dissension. Your DNA may be taken to a national database and entered if your arrest is made, whether rightly or incorrectly and for what reason. This was an obvious consequence of today’s decision. Breyer appeared to be unaffected at all by the disturbing scenario.

As long as President Joe Biden chooses Scalia’s replacement, Breyer’s retirement is good news for Fourth Amendment.