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

Stephen Breyer was appointed by President Bill Clinton to fill the vacancy at the U.S. Supreme Court. In 1994, Breyer told the nation that Breyer would strike the “right balance” between order and discipline, be firm in law enforcement, while still sticking with 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. The former president was wrong, however. Breyer was definitely “firm” with his deference to law enforcement. Breyer’s judicial deference led him to sometimes “stick in the Bill of Rights,” when important Fourth Amendment cases were filed at SCOTUS.

You can take Navarette v. California (2014). It was an anonymous 911 call from a dangerous driver that the police received and which they used to initiate a traffic stop, leading to a successful drug bust. 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 accepted the endorsement of law enforcement.

Justice Antonin Scalia dissents strongly from the judgment’s flaws. Scalia wrote, “The Court’s decision serves up a freedom-destroying cocktail.” She was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissension. The police will stop the car targeted by the criminal 911 caller if they assert that there is a traffic violation. 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. As a predictable result of today’s decision your DNA can also be taken and entered in a national DNA databank if you ever are arrested. Breyer appeared to be unaffected at all by the disturbing scenario.

Breyer’s retirement in good news will bring the Fourth Amendment some relief, provided that President Joe Biden selects Scalia-like replacements for these types of cases.