The retirement of U.S. Supreme Court Justice Stephen Breyer will alter the Court’s dynamics, including in regard to college sports cases. Breyer, 83, has expressed support for the traditions of college sports—a sharp contrast to more critical viewpoints shared by Justice Brett Kavanaugh and others.
Breyer’s retirement is not yet official, though NBC News, the Associated Press and other national media have reported on it. After Breyer’s retirement is formally announced, President Joe Biden will interview candidates for the nomination. During the 2020 presidential election and at other times, Biden has pledged to nominate the first black woman to the Court. Whoever is nominated will likely face a challenging confirmation process before the U.S. Senate, which is evenly divided among Democrats and Republicans and has struggled to pass major pieces of Biden’s agenda.
During the oral argument last March for NCAA v. Alston, Breyer, a former Harvard Law School professor and U.S. Army veteran, repeatedly voiced concerns about the Court forcing change in college sports.
“It’s a tough case for me,” Breyer said at the time. The case concerned whether the NCAA and its members had violated antitrust law by conspiring to limit how much each college can compensate athletes for academic-related costs. The NCAA’s arguments relied on the Court’s 1984 ruling in NCAA v. Board of Regents. Although the NCAA lost that case, Justice John Paul Stevens wrote that the NCAA is owed “ample latitude” in determining the contours of amateurism for college athletes. Stevens described college sports in a romanticized way, suggesting it is inherently different and more innocent than other businesses. Breyer seemed to endorse that viewpoint.
“The reason [the Alston case] is so tough,” Breyer continued, “is . . . this is not an ordinary product. This is an effort to bring into the world something that’s brought joy and all kinds of things to—to millions and millions of people, and it’s only partly economic.”
Breyer went on to say: “So I worry a lot about judges getting into the business of deciding how amateur sports should be run. And I can think of ways around that . . . . You could just say it’s a different kind of product.”
While Breyer seemed reluctant to rule against the NCAA, he ultimately sided with the eight other justices in doing just that. In an opinion written by Justice Neil Gorsuch, the Court held for Alston and cast aside Justice Stevens’ opinion in Board of Regents as mere dicta (commentary not essential to the holding and lacking precedential effect). The Alston ruling was significant, though it only concerned academic-related costs, not the more central issue of compensation for athletics. Kavanaugh, meanwhile, authored a widely quoted concurring opinion in which he blasted the NCAA as a cartel that suppresses athletes’ rights.
Had Alston concerned more transformative change to college sports, it’s unclear if Breyer would have gone along. His remarks during the oral argument suggest he would have sided with the NCAA on compensation limits for athletics.
Alston might be the last college sports case before the Supreme Court for a while, but others could surface over the next year or two. Johnson v. NCAA, a case that concerns whether college athletes are employees under the Fair Labor Standards Act, is now before the U.S. Court of Appeals for the Third Circuit. If the players prevail, there would be a split among federal circuits on athletes as FLSA employees. That scenario could make the Court likely to hear the case. Possible litigation over college athletes as employees under the National Labor Relations Act could also work up to the Court, with Kavanaugh, Gorsuch and others ready to rule. Unfortunately for the NCAA, it appears that Breyer won’t be there.