Justice Stephen Breyer will retire from the U.S. Supreme Court after the Senate confirms his successor and after the end of the current session—most likely in late June or early July, bringing an end to his influence on employment law. He has written several opinions affecting employers and workers over the years, most notably opinions expanding employees' protections from retaliation and upholding the Affordable Care Act (ACA).
Breyer's Legacy …
Breyer notably observed the following: "Why would Congress want to limit the enforcement scheme's effectiveness by inhibiting use of the act's complaint procedure by those who would find it difficult to reduce their complaints to writing—particularly illiterate, less educated or overworked workers?" He noted that President Franklin Roosevelt, who signed the FLSA into law in 1938, pointed out that "these were the workers most in need of the act's help."
The most significant two cases upholding the ACA were National Federation of Independent Business (NFIB) v. Sebelius in 2012 and California v. Texas in 2021.
"Breyer did not write [the decision in] NFIB v. Sebelius, but he was instrumental in moving the liberal votes to forge an alliance with Chief Justice [John] Roberts," said Stuart Gerson, an attorney with Epstein Becker Green in Washington, D.C., and New York City. "Last term, Breyer assured the survival and continuation of the ACA by marshalling a unified seven-vote bloc of liberals and conservatives for his opinion in California v. Texas."
Gerson described Breyer as "a consummate insider, looking to harmonize competing views into consensus positions that were pragmatic solutions to what he perceived as national policy goals."
Breyer showed his preference for regulatory solutions with his dissent in this year's NFIB v. Occupational Safety and Health Administration, an opinion that blocked the vaccine-or-testing requirement for large employers, Gerson added.