Stephen Gerald Breyer , 1938-, Associate Justice of the U.S. Supreme Court (1994-), b. San Francisco. A graduate of Stanford and Oxford universities and of Harvard Law School (1964), he clerked (1964-65) for Supreme Court Justice Arthur Goldberg , then worked for the Justice Dept. and as chief counsel to the Senate Judiciary Committee. In 1980 President Carter appointed him to the First Circuit Court of Appeals, in Boston, where he became chief judge. In the 1980s Breyer was a prominent member of the commission that drafted new federal sentencing guidelines. In 1994, when Harry Blackmun retired from the U.S. Supreme Court, Breyer was nominated by President Clinton to replace him. Breyer is regarded as a cautious, moderate jurist, although on the conservative Court of the 1990s he has been one of the more liberal members. He has written Active Liberty: Interpreting Our Democratic Constitution (2005), which argues that the intent of the U.S. constitution is to facilitate the citizens' ability to govern themselves effectively while protecting individual liberties, and that a judicial approach that seeks to be faithful to the original intent of the constitution by focusing on its words alone risks being unfaithful to the document's purpose.

Stephen Breyer

The general consensus on Stephen Breyer (born 1938), the 108th member of the United States Supreme Court, is that he has a brilliant legal mind. However, when those same observers try to label him as either a conservative or a liberal, or attempt to figure out how his decisions and opinions will shape the court, there is little agreement. Breyer is considered a centrist, a man who comes to the nation's highest court unlikely to radically transform the institution.

Like President Bill Clinton's other Supreme Court appointment, Ruth Bader Ginsburg, Breyer mirrors his president's political style: he has strong convictions, but he is known as much for his spirit of evenhandedness and compromise as for his passionate views on subjects.

Evidence of Breyer's centrist views became clear during his July, 1994 confirmation hearings before the United States Senate Judiciary Committee. Breyer sailed through the hearings with little rancor from either Republicans or Democrats, and won unanimous approval from the committee. Those hearings were vastly different from the contentious committee meetings that greeted other recent Supreme Court nominees. And, perhaps, Breyer's ability to appease political foes was one of the reasons President Clinton chose him as nominee.

Stephen Gerald Breyer was born on August 15, 1938, in San Francisco. His father was an attorney for the San Francisco School Board and his mother was active in Democratic political circles. Upon his appointment to the court, Breyer was quoted as saying he was moved by the fact that he was able to rise so highly in America considering that his grandfather, a cobbler, came to the country just two generations ago. A brilliant student, Breyer attended Stanford University, choosing it over Harvard at the request of his parents, and graduated as a Phi Beta Kappa member with highest honors. He then studied at Oxford University in England as a prestigious Marshall Scholar. He received his law degree, magna cum laude, from Harvard.

Teaches at Harvard

Upon graduation, Breyer became a law clerk for Supreme Court Justice Arthur Goldberg. After a stint at the U.S. Department of Justice between 1965 and 1967, Breyer returned to Cambridge, where he taught law at Harvard. But "he is no stranger to Washington politics, " the Boston Globe noted of him upon his appointment to the Supreme Court. That is because in 1973 he was involved in the biggest political story of the century: Watergate, the scandal that revealed then-President Richard M. Nixon's role in the break-in of Democratic Party headquarters at Washington's Watergate Hotel. Breyer became part of the special prosecutor's force led by his former law professor, Archibald Cox. That job led to the position of assistant special counsel to the Senate Judiciary Committee in 1975. Massachusetts Senator Edward Kennedy, who once chaired the committee, named Breyer as chief counsel in 1979. The Judiciary Committee is the same group that, 19 years later, held hearings and voted on Breyer's confirmation to the Supreme Court. The Boston Globe reported that one reason for Breyer's success before Judiciary was because "most of the lawmakers have longstanding ties to Breyer from his days as the committee's legal counsel."

Appointed to Court of Appeals

After the 1980 elections, President Jimmy Carter, who had lost the presidency to Ronald Reagan, made his final judicial appointment before leaving office; he chose Breyer to serve on the U.S. Court of Appeals. Republicans, who could have opposed the nomination and allowed Reagan to pick his own nominee, did not oppose Breyer. In supporting Breyer's nomination to the Supreme Court 14 years later, the Wall Street Journal noted of his 1980 nomination: "Mr. Breyer was the last Carter appointee confirmed by the Senate—confirmed even after the 1980 election because of his bipartisan support. For a president [Clinton] who needs a victory, this choice [of Breyer] is really easy." Breyer would become chief judge of the First Circuit Court of Appeals in Boston in 1990.

Once on the bench, Breyer began to develop the legal reputation that would lead to his Supreme Court nomination. Legal scholars describe his decisions in numerous cases before the appeals court as reasoned and moderate, and lacking passion. "Breyer has not used his writings to launch a perceptible constitutional manifesto, " the Boston Globe opined in an article analyzing Breyer's "paper trail" of opinions. He has adhered to the theory that cases need not be decided within the strict formal structures of a particular law; that is, Breyer has been known to consider not just the laws Congress has made, but the "legislative intent" behind those laws. He looks at the legislative history of the struggle to pass a law, and what congressmen and senators meant the law to do when issuing his rulings. He has also been known to consider the effects of his rulings in the future, and not just consider past precedents.

"Law requires both a heart and a head, " the New York Times quoted him as saying during his confirmation hearings. "If you don't have a heart, it becomes a sterile set of rules removed from human problems, and it won't help. If you don't have a head, there's a risk that in trying to decide a particular person's problem in a case that may look fine for that person, you cause trouble for a lot of other people, making their lives yet worse…. It's a question of balance."

Observers say that such opinions fly directly in the faces of other sitting justices, such as Antonin Scalia, who is regarded as forming decisions based on strict interpretations of the law. While Breyer may not be able to win over Scalia to his views, he is seen as a "coalition builder, " someone who will occupy the political center of the court and woo other, centrist-leaning justices to his way of thinking. Or, as the Boston Globe reported, "Breyer's capacity for consensus-building causes some court analysts to believe he could lead a new moderate-liberal coalition."

On key controversial issues, Breyer has become known as a defender of First Amendment freedoms. On the First Circuit court he found that a federally-imposed "gag order" preventing family-planning clinics from providing abortion counseling was unconstitutional; it violated free speech provisions. He also wrote a majority decision that rejected the federal government's requirement that doctors working for the World Health Organization go through a "loyalty check." Allowing the government to examine someone's political leanings as a basis for judging loyalty violated that person's free speech rights, Breyer ruled. He also has a strong environmental record: in 1983 he ruled that oil companies and the federal government had no right to allow oil exploration in the environmentally sensitive George's Bank fishing area off the coast of Massachusetts.

Breyer is much more conservative when it comes to criminal cases. He has allowed improper police testimony to stand in a drug case, calling the police error "harmless" in light of the strong evidence against the drug dealers. Even friends, such as noted Harvard Law School professor and celebrity lawyer Alan Dershowitz, have expressed displeasure with some aspects of Breyer's opinions. Dershowitz was quoted in the New York Times as saying, "A lot of 'liberal' or 'moderate' judges establish their liberal credentials by supporting women's rights and press rights, which are very popular with their constituencies, and then establish their conservative credentials by an almost knee-jerk, pro-prosecutorial approach in criminal cases…. This certainly characterizes … Breyer."

Breyer's best known—and most controversial—work in the field of criminality occurred in 1987 when he served on the U.S. Sentencing Commission, a group dedicated to reviewing what sort of jail time criminals should receive across America. The commission's set of proposals drew mixed reviews, with some crediting Breyer for finally getting something down on paper after extensive meetings. But others say the guidelines are too strict, that they do not allow judges enough flexibility, and that in some instances the proposed sentences are too harsh.

As regards the new Supreme Court justice's personal life, he has been married to the former Joanna Hare since 1967. She is the daughter of former British Conservative Party leader Lord John Blackenham. The pair met in Washington, D.C., and after 16 years of marriage Joanna Breyer went back to school and received a Ph.D. in psychology. She works at the Dana-Farber Cancer Institute with children stricken with cancer. The Breyers own 160 acres in Plainfield, New Hampshire, and often visit there to hike. The couple have three grown children. Breyer is known as an avid birdwatcher, a good cook, a fan of both old movies and football. "He has been known to wear the same suit for weeks while focusing on something he considers more important than wardrobe, " the Boston Globe reported. He is Jewish, "speaks with a hint of a British accent, " according to the New York Times, and "is more glib than smart and has an impish, often odd, sensibility that could come across as flakiness and could antagonize his potential colleagues on the Supreme Court."

Breyer's other major hobby—bicycle riding— probably cost him his first chance at being named to the Supreme Court. In May of 1993, Breyer was being considered to fill the seat of retiring Justice Byron White. But he was hit by a car while bicycling in the Boston area and was hospitalized. During his recuperation, President Clinton summoned the judge to Washington for an interview. The Boston Globe reported him as telling a friend "that he feared his prospects for the job were poor because he was ill at the meeting with the president … and nearly fainted afterward." But during the interview process it also became clear that Breyer had done what other recently rejected government nominees had done: he had failed to pay Social Security taxes on his part-time housekeeper. The same oversight forced Clinton to reject his first two choices for attorney general: Zoe Baird and Kimba Wood. Clinton eventually chose Ruth Bader Ginsburg over Breyer for the Supreme Court. But a year later, when Clinton chose Breyer to fill the seat of Justice Harry Blackmun, Breyer, quoted in the Boston Globe, was able to joke to the president, "I'm glad I didn't bring my bicycle down."

After being passed over in favor of Ginsburg in June of 1993, Breyer returned to Boston. Although many of his friends were critical of the way Clinton had dangled the job before Breyer and had made him travel while still feeling the ill effects of his bicycle accident, Breyer remained reserved and uncritical. After the rejection, according to the Wall Street Journal, Breyer called his friends, "cheering them up, rather than vice versa."

He returned to Boston to continue work on his biggest, non-legal project: helping design and construct a new $200 million federal courthouse in Boston. The courthouse is situated on the waterfront area known as Fan Pier. "This most beautiful site in Boston, " Breyer was quoted as saying in the New York Times, "does not belong to the lawyers, it does not belong to the federal government, it does not belong to the litigants. It belongs to the people." According to all reports, Breyer threw himself into the project: interviewing and choosing architects, meeting with community groups, even visiting courts around the country that he and the architect either admired or wanted to avoid duplicating. In the end, the worldly and intelligent judge pressed for a courthouse that includes a community meeting hall, art exhibition space, and a restaurant.

Nomination Approved

In May of 1994, when Clinton was forced to fill another vacancy on the court, he returned to Breyer. White House officials were quoted as saying they liked the "classy" way Breyer handled his rejection a year before. Clinton called him "a jurist who I deeply believe will take his place as one of nation's outstanding justices, " according to a report in the Boston Globe. His confirmation hearings before the Senate Judiciary Committee were not controversial. The biggest concern was Breyer's financial stake in Lloyd's of London, the giant insurance firm. Some senators questioned whether Breyer's financial interest in Lloyd's clouded his rulings on environmental cases. If Lloyd's had to pay for certain toxic waste cleanups, the senators wondered how Breyer could rule impartially in those cases. Breyer responded that Lloyd's was not a direct party to any clean-ups he was involved in, but added that he would sell off his investment in the insurance concern anyway. Breyer was also accused by consumer activists, such as Ralph Nader, of siding with big business in all of the antitrust cases on which he ruled. When asked about abortion, he said it was "settled law" that women have a right to an abortion under Roe v. Wade, the landmark 1973 ruling. The committee approved his nomination 18 to 0.

In ascending to the Supreme Court, Breyer "beat out" Clinton's other top choice, secretary of the interior Bruce Babbitt. For about a month during the summer of 1994, Washington engaged in a great guessing game about who would get the nomination: Babbitt or Breyer. Babbitt was opposed by many Western senators who did not like his tough stand on cattle-grazing fees. Clinton liked Babbitt, however, because he had said he wanted more than a legal mind on the court; the president wanted someone who would bring a politician's passion to the court. But Babbitt's political disadvantages proved too great. As the Boston Globe reported, "In the end, Breyer's greatest asset was the way he met a key element of Clinton's job description: someone with political skills who could sail through confirmation."

How Breyer would actually fit into the liberal-to-conservative spectrum on the court was unclear; and since his appointment he has been the focus of controversy. Supreme Court justices have a way of surprising the presidents who appointed them to the court; some are more liberal than expected, some more conservative. But most court observers agree that Breyer sits on the opposite spectrum of Antonin Scalia, arguing not so much on political lines, but for a broader interpretation of the law. As Breyer himself was quoted in the New York Times as telling senators during his confirmation hearing, "Consensus is important because law is not theoretical; law is a set of opinions and rules that lawyers have to understand, judges have to understand them, and eventually the labor union, the business, small business, everyone else in the country has to understand how they are supposed to act or not act according to the law."

Further Reading

Boston Globe, May 14, 1994; May 15, 1994; May 17, 1994; July 10, 1994; July 13, 1994; July 25, 1994.

Boston Magazine, October 1994, p. 60.

New Republic, July 11, 1994, p. 19.

New York Times, May 30, 1993; June 11, 1993; June 18, 1993;September 9, 1993; July 14, 1994.

Wall Street Journal, June 24, 1993. □

Breyer, Stephen G. (b. San Francisco, 15 Aug. 1938), associate justice, 1994–. Appointed to the Supreme Court by President Bill Clinton in 1994 to replace Justice Harry A. Blackmun, Breyer served as circuit justice for the Tenth Circuit. Educated at Stanford University (1959) and Oxford University (1961), Breyer received his law degree from Harvard University (1964). After serving as a law clerk for Justice Arthur Goldberg, Breyer held governmental positions in the office of the Assistant Attorney General for Antitrust (1965–1967), as assistant special prosecutor in the Watergate Investigation (1973), as special counsel to the U.S. Senate Judiciary Committee (1974–1975), and as chief counsel to that committee (1979–1980). Subsequently, Breyer became a leading member of the U.S. Sentencing Commission (1985–1989) that developed the sentencing guidelines now in effect in the federal courts. These governmental assignments occurred while Breyer was pursuing his academic career as a Harvard University law professor, where he specialized in antitrust law, administrative law, economic regulation, and risk management.

Record on the Court

Appointed to the U.S. Court of Appeals for the First Circuit in 1980, Breyer was known for his intellect, the thoroughness of his preparation, his keen interest in the cases, and his respect for counsel. Breyer became chief judge of the First Circuit in 1990. His wide‐ranging interests and deep commitment to his office were manifest, for example, in the special effort he made to understand the Spanish sources of Puerto Rican law, since Puerto Rico comes within the appellate jurisdiction of the First Circuit. As chief judge, Breyer was a key figure in the design and construction of the new federal courthouse overlooking Boston harbor. In his nearly fifteen years of service on the First Circuit, Breyer gained a reputation for outstanding judicial work, earning comparisons to his illustrious predecessor on the First Circuit, Calvert Magruder, a jurist known for his intelligence, fairness, integrity and realism.

One of the nation's leading thinkers on the subject of deregulation, Breyer is by no means a deregulation ideologue. His major book on the subject, Regulation and Its Reform (1982), is a program for regulatory reform rather than a deregulation manifesto. The book is a detailed analysis of the need for change in such areas as regulatory impact statements, agency accountability, legislative and executive oversight, information gathering, and cost‐benefit analysis. Many of the proposals made in Breyer's book were adopted by presidents and by Congress in the 1980s and 1990s. Given his special expertise in the field of administrative law, it is not surprising that Breyer rendered the decision for the Supreme Court in Dickinson v. Zurko (1999), a patent case that asked if the “substantial evidence” standard of the federal Administrative Procedure Act was the same as the “clearly erroneous” standard used by the federal appeals courts in reviewing the findings of the federal district courts. In reviewing landmark Supreme Court decisions in the field of modern administrative law, Breyer concluded that court/agency review was less strict than court/court review. While Congress had directed reviewing courts to exercise meaningful judicial review of agency findings of fact and not merely to rubber‐stamp such findings, the difference between the two standards was “a subtle one” so that as a practical matter there was no real difference between them. In general, this has meant that the “substantial evidence” requirement in federal administrative law is a reasonableness test not unlike the standard used in the review of most other federal administrative agency determinations.

Breyer's nonideological approach to judging is also manifest in several cases involving the interface between the First Amendment and the electronic media. In Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996) and in Turner Broadcasting System, Inc. v. FCC (1997), Breyer went beyond traditional categorical approaches to First Amendment analysis. He outlined a new balancing approach that recognized the competing interests in freedom of expression on the part of all groups involved in the electronic media such as listeners, media operators, programmers, and local distributors.

One of Justice Breyer's most controversial decisions was Stenberg v. Carhart (2000), the case where a closely divided Supreme Court struck down Nebraska's late‐term abortion statute. The Nebraska law had no provision protecting the life or health of the mother. Breyer argued that the statute was overly broad and jeopardized abortions using common surgical techniques even in the early stages of pregnancy. Breyer drew upon the landmark abortion case, Planned Parenthood of Southeastern Pennsylvania v. Casey, decided by the Court in 1992, which prohibited laws that placed an “undue burden” on a woman's right to choose to have an abortion. Acknowledging the controversial nature of the decision and the fact that millions of Americans believed that life begins at conception, and despite the fact that the Court was closely divided on the issue, Breyer declared that “this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose” (p. 920).

Equally emphatic in his defense of basic constitutional rights was Breyer's decision for the Court in Zadvydas v. Davis (2001), a case that involved certain detention provisions of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (as amended). In this case, the Supreme Court reviewed the authorization to civilly detain aliens who violated Immigration and Naturalization Service conditions beyond a statutory period of ninety days. Since the statute failed to limit this continuous period of detention, confinement could, in some instances, become indefinite in the event that an alien's country of origin would not permit return or, for some other reason, the alien was nondeportable. Reacting to this possibility of indefinite detention, Breyer held that confinement after six months beyond the specified ninety‐day period was presumed to be unconstitutional and a violation of due process. To overcome the presumption that such indefinite detention was justified, the government would have to make a showing that there was significant likelihood that removal was reasonably foreseeable and that additional detention was required because of the presence of a further set of aggravating circumstances.

Assessment

In the decade following his appointment, the composition of the Supreme Court did not change. On many issues the Court was divided 5 to 4, and Breyer was one of the moderate minority in most of those cases. As a result, many of Breyer's most notable utterances from the bench were made in dissent rather than in opinions for the Court. Notable among these was his detailed dissenting opinion in United States v. Lopez (1995), the first case in almost sixty years to turn back the power of Congress to regulate commerce under Article I of the Constitution. The statute in question, the Gun‐Free School Zones Act, proscribed the possession of firearms within certain defined zones in and around schools. The majority held that this was not a commercial problem and, therefore, beyond the powers of Congress under the Commerce Clause. Justice Breyer, in his exhaustively documented dissent, argued that “Congress also could have found … that gun‐related violence in and around schools is a commercial, as well as a human, problem” (p. 620). Breyer drew upon the long history of Commerce Clause jurisprudence going back to the bitter struggles over the meaning of interstate commerce at the time of the New Deal. He reminded the Court that its decision in the case would resurrect the discredited jurisprudence of the 1930s. The dissent is illustrative of Breyer's consciousness of the importance of history in constitutional adjudication.

Breyer's pragmatic approach to judging was similarly evident in the case brought by Paula Jones against President Bill Clinton. Concurring in the judgment of a unanimous Court in Clinton v. Jones (1997), that a sitting president did not have automatic immunity from civil lawsuits, Breyer cautioned that such suits could cause “significant interference with the President's ongoing discharge of his official responsibilities” (p. 724). Most telling of all was Breyer's vigorous dissenting opinion in Bush v. Gore (2000), which effectively put George W. Bush into the White House. Breyer declared that “the Court was wrong to take this case.” Using the historical experience of the disputed election of 1876, Breyer reminded the Court and the nation that the majority's decision in Bush v. Gore would undermine respect for the judicial process. “What it does today, the court should have left undone,” noted Breyer (p. 156). Breyer's dissent in this memorable and far‐reaching decision showed his respect for federalism, for Congress, for the political process, and for the Constitution. It was the best expression of his understanding of the limits of judicial power.

In his first decade on the Supreme Court, Justice Breyer established a number of benchmarks to his jurisprudence. In addition to his pragmatism, Breyer is noted for his interest in comparative law and his openness to the legal systems and rights provisions of other nations. He is among those justices willing to cite other fundamental rights documents besides the U.S. Bill of Rights in deciding individual rights cases. In the debate over the question as to whether legislative history can be used in statutory analysis, Breyer is on the side of those who do not disclaim its importance as an interpretive tool. On issues of federalism, Breyer remains a strong advocate for the role of Congress and the federal government in economic and environmental regulation. And while he is identified with the liberal wing of the Court, Breyer remains a nonideological moderate. He examines each case on its merits and has few fixed positions.

Breyer is a highly visible Supreme Court justice. His is a familiar face on television, particularly on programs having to do with the legal system and the courts. His nonjudicial publication output remains substantial. Breyer continues to speak and lecture widely even on issues of great public controversy such as the trade‐offs between counterterrorism and human rights, and the dangers of mandatory minimum sentences for criminal defendants under the sentencing guidelines. In the years ahead, as more issues of scientific and technological change come before the Court, Breyer will undoubtedly play a leading role in the developing complexity of Supreme Court jurisprudence.

Bibliography

Stephen Breyer , Regulation and Its Reform (1982).
Stephen Breyer , Breaking the Vicious Circle: Toward Effective Risk Regulation (1993).
Stephen Breyer , Reforming Regulation, Tulane Law Review (1984).
Stephen Breyer , Our Democratic Constitution, New York University Law Review (2002).
Walter E. Joyce , The Early Constitutional Jurisprudence of Justice Stephen G. Breyer: A Study of the Justice's First Year on the United States Supreme Court, Seton Hall Constitutional Law Journal (1996).

George Dargo