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Latino legal advocates on Breyers' legacy: 'A consistent voice for fairness'

Hispanic scholars praise the retiring justice's decisions on landmark cases involving health care access, affirmative action, voting rights, immigration and the census.
Image: Supreme Court Justice Stephen Breyer
Justice Stephen Breyer, in his office in Washington, last August.Bill O'Leary / The Washington Post via Getty Images file

Latino advocacy groups, lawmakers and scholars had nothing but praise for Justice Stephen Breyer, the great-grandson of immigrants from Romania, after he announced his retirement from the Supreme Court on Thursday.

“I think he was a moderate liberal who could be counted on to come out on the right way on a lot of cases that affected Latinos,” said Kevin R. Johnson, the dean of the University of California Davis School of Law, who is of Mexican American heritage.

“Breyer is a consistent voice for moderation, fairness, and he has an international perspective that some of the other justices don’t have,” Johnson said. In 2016, Breyer addressed 32 judges from across Latin America as part of a Department of Justice judicial training program held in Puerto Rico.

Andrew Crespo, professor at Harvard Law School, clerked for Breyer during the 2009-10 term. He recalled going to lunch with the justice, which required finding a spacious restaurant, “so that, when we’re sitting down and he’s telling us all these stories about the court, that we weren’t accidentally sitting next to a reporter.”

“He bounced back from defeats faster than, I think, his clerks did,” Crespo told Bloomberg Law’s Cases and Controversies podcast. “He always thought maybe, maybe the best will come.” 

Sen. Catherine Cortez Masto, D-Nev., said in a statement that Breyer had served on the court with "integrity and distinction.” Former San Antonio Mayor Julián Castro tweeted praise for Breyer’s “long, distinguished career in public service.”

Carlos M. Bollar, national president of the Hispanic National Bar Association, sees Breyer’s retirement — he plans to step down when the court recesses for the summer — as an opportunity to add diversity to the court.

“We know that the president has promised to appoint an African American woman to the court,” Bollar said, “so we encourage the president to consider Afro Latina candidates.”

“Latinos are about 1 in 5 of the population,” Bollar said. “Yet even at the Supreme Court where we have one of our role models and a spectacular justice (Sonia Sotomayor), we are only 1 in 9.”

Here's a look at Breyer's role in decisions that had a significant impact on the nation's Latinos.

Health care access: An estimated 4 million Latino adults and 600,000 Latino children have accessed health care coverage through the Affordable Care Act (ACA), which is credited with bringing the Latino uninsured rate down from 43 percent in 2010 to 24 percent in 2016. But the future of Obamacare was far from certain in 2012. That year, in a challenge to the law’s individual mandate, Breyer sided with the majority and upheld the law, preserving health care for millions of Latinos and other Americans. Last year, as the ACA faced another legal challenge, Breyer wrote the majority opinion, dismissing the suit on the grounds that the plaintiffs lacked standing.   

Immigration: In 2020, the future of DACA was at stake, as the Trump administration sought to end the program granting deportation relief to young people who were brought to the U.S. as young children but lack legal immigration status. In that case, Breyer was part of the majority that ruled for the “Dreamers” and handed Trump a legal defeat. In 2012 Breyer joined the majority in striking down parts of Arizona’s “papers, please” law that disproportionately affected the state's Latino residents, affirming the federal government’s “broad, undoubted” power over immigration matters. In Zadvydas v. Davis (2001), Breyer wrote the majority decision, setting a precedent that the government could not hold migrants in detention indefinitely, while showing how constitutional concerns could apply to noncitizens.

Affirmative action: In 2004, Breyer said that his “most important” case was when he voted to uphold the right of Michigan Law School to consider race in admissions decisions. He had a chance to revisit the issue in 2013 and 2016, when an affirmative action lawsuit against the University of Texas at Austin twice reached the Supreme Court. In the first instance, Breyer was in the majority, sending the case back to the lower courts, and a few years later he voted to uphold the university’s affirmative action policies. This case has been particularly important, given that there are an estimated 11.5 million Latinos in Texas and Hispanics consistently rank education as one of their top concerns.

The census: Breyer was in the majority in Department of Commerce v. New York (2019), finding that the Commerce Department had not followed proper procedure in their attempt to add a citizenship question to the 2020 Census. In Trump v. New York (2020), which centered on the Trump administration’s attempt to exclude approximately 11 million undocumented people from the census count, Breyer wrote that “this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.” (The majority tossed the case on the grounds that it was too soon to rule on the legality of Trump’s plan.)

Gun control: Although Latinos hold varied views on gun control itself, crime and gun violence is a major issue for them. In a 1995 case involving a Latino student who brought a gun to school in Texas, Breyer dissented from the majority opinion; he wrote that Congress could regulate guns in school under the commerce clause of the Constitution. In District of Columbia v. Heller (2008), Breyer likewise wrote a dissent, saying that “there is simply no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”

Voting rights: Breyer dissented from the majority in Shelby County v. Holder (2013), when it struck down a key provision of the Voting Rights Act. Last year, he also dissented when the court upheld two election laws in Arizona, where the population is about one-third Latino. Some experts and advocacy groups say that these measures make it harder for minorities to vote.

Lourdes M. Rosado, president and general counsel of LatinoJustice PRLDEF, said in a statement that Justice Breyer “made great strides in defending and supporting voting, immigration and fair housing rights among other issues. President Biden has an opportunity to nominate a jurist grounded in protecting the civil rights of all people, including Latinos.” 

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