May 19, 2022

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WATCH: Why retiring Justice Stephen Breyer will be remembered as ‘one of the great dissenters’

Retiring Justice Stephen Breyer, known for his willingness to work with justices with whom he disagreed, will also be known in the future for his principled dissents, says former law clerk and University of Virginia Law School Dean Risa Goluboff.

“I think some of his dissents will really go down in history in some crucial cases,” she said.
Breyer announced Jan. 27 he would step down from the bench at the end of this term.

Goluboff recalled two cases in particular, one involving school desegregation in Seattle and the other a death penalty case, where Breyer drew a line on principle.

In the Seattle case, Goluboff said Breyer’s dissent spoke up for the necessity of desegregation to have a pluralistic, equal society.

“He really is articulating what it takes to be a pluralistic society, what that means and how we have to let governments do what we need to do in order to be truly integrated, be truly pluralistic and truly equal. He’s defending the vision of Brown [vs Board of Education] and a vision of equality in our society,” Goluboff said.

“Yes, he looks for common ground. Yes, he wants to deliberate with his fellow justices. But there are some things where your really have to take a stand and that is one of them," she added.

Goluboff said Breyer’s dissents meant that his legacy was likely to last long after his retirement.
“Dissents are about the future. They are about both articulating values now but also laying out possibilities for future litigants and lawyers and judges,” Goluboff said. “People are really going to rely on what he has written."

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