What does Breyer’s retirement mean for Roe v. Wade?

This summer, the Supreme Court is expected to announce its decision on an abortion case in Mississippi that could reshape abortion laws in America. That means Breyer — a reliably liberal vote — will be a part of that decision.

But the court is also just beginning the process of thinking about what it will hear next term. And it just announced it’s going to hear a case asking whether universities can use affirmative action to accept new students — another long-held target of conservatives. That case will probably be heard by a Supreme Court with Breyer’s successor. Affirmative action tends to benefit Black and Hispanic applicants, and Biden has promised to nominate a Black woman to the court — an unusually frank promise by a president. The court is also expected to hear in its next term a major case on climate change.

Breyer’s retirement — and his replacement by Democrats — won’t change much if anything about the makeup of the court. He and the other two liberal justices, Sonia Sotomayor and Elena Kagan, are outnumbered by six reliably conservative justices.

But he is known as one of the court’s more direct questioners. Breyer’s questioning during oral arguments on Mississippi’s 15-week abortion ban made clear he thinks such a law is unconstitutional and should be struck down. (There is no federal law on abortion rights, but nearly 50 years ago, in Roe v. Wade, the Supreme Court said women have a right to an abortion up until the fetus can live outside the womb, or about 22 to 24 weeks into pregnancy.)

Breyer gave his colleagues a stark warning that if the court overrules such entrenched legal precedent, it will lose its credibility: “People are going to be ready to say, no, you’re just political, you’re just politicians,” he said.

Despite his pleas, enough conservative justices signaled that they’re open to changing that standard to suggest that the Supreme Court is at least going to chip at Roe v. Wade in a way that allows conservative states to make abortion illegal earlier in pregnancies. And the court has upheld several times, on procedural grounds, a Texas law essentially banning all abortions. Breyer said that the court’s decision was “very very wrong.”

Breyer’s retirement, and who replaces him, could have more of an impact on the tenor of the liberal wing of the court.

Breyer has been outspoken of late — he also has opposed the death penalty — but he also has a reputation as a pragmatic justice.

“He has this public persona that he has cultivated of being an institutionalist, and he is widely accepted as a pragmatist and a liberal,” said Lisa Soronen, executive director of the State and Local Legal Center, which supports states and local governments in cases before the Supreme Court. “So people aren’t going to see his leaving the same way as, say, Justice Ruth Bader Ginsburg. She was a feminist hero. He is more a sensible guy with a liberal streak.”

This summer might be the last abortion case that Breyer rules on, but it most certainly won’t be the last for this Supreme Court. It would be a surprise if the court were to strike down Roe v. Wade entirely this summer. Which means we can expect conservative states to keep trying to chip away at abortion protections by passing laws that pique the court’s interest. And Breyer’s successor will play a role in those decisions, including internal court decisions on what cases to take.

One more thing to know about Breyer: He was in the minority of the court pretty much his entire career. The court has been dominated by conservative thinkers for decades now. So the legacy he could have left was limited.

On that, he and his successor might have something in common. The court is tilted conservative, and even with Democrats getting to pick Breyer’s replacement, that rightward lean shows no side of abating.

“Breyer had a pragmatic streak, but it didn’t affect the outcome in big cases,” Soronen said.