Stephen Gerald Breyer

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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. □

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As an associate justice of the U.S. Supreme Court, Stephen Breyer is regarded as a judicial moderate. The former law professor and Senate counsel locates his approach to the law in a deep pragmatism: He distrusts broad legal theory, endorses judicial restraint, and wants his legal opinions to be clear enough for a high-school student to read. His reputation for forging consensus earned him a nomination to the U.S. Court of Appeals for the First Circuit in 1980, on which he later served as chief of the court from 1990 to 1994. During the 1980s, he also helped to shape a far-reaching and controversial revision of criminal sentencing guidelines. In April 1994, President bill clinton nominated Breyer to replace the outgoing U.S. Supreme Court associate justice harry a. blackmun, and his appointment was confirmed in July 1994.

Breyer was born on August 15, 1938, in San Francisco. His attorney father and politically active mother set him on a course for achievement. He earned an A.B. from Stanford University in 1959, followed by a B.A. in philosophy and economics at Oxford University in England. He received a law degree from Harvard Law School in 1964, graduating magna cum laude. Breyer clerked for U.S. Supreme Court Justice arthur j. goldberg during the 1964–65 term and helped to write the justice's opinion in the landmark right-to-privacy case, griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).

In 1967, Breyer embarked on dual careers in academia and government. He taught courses in antitrust, administrative law, and economic regulation at his alma mater, Harvard Law School. In the same year, he was appointed to the office of the Assistant U.S. Attorney General. He gained further prominence in 1974 by serving on the Watergate Special Prosecution Force, which pursued the possibility of impeaching President richard m. nixon. As a senior aide to Senator edward m. kennedy (D-Mass.) in the 1970s and chief counsel to the senate judiciary committee from 1979 to 1980, Breyer crafted deregulation of the airline and trucking industries while also working on prison reform, judicial confirmations, and fair-housing law. He became known for an empirical approach to law, one that was less swayed by ideology than by careful balancing of facts.

"As an appellate judge, I set … a goaloftrying to write my opinions so that a high school student … [can] understand the law, as revealed in that opinion—both in terms of basic fairness and in terms of helping people lead decent, productive lives."
—Stephen G. Breyer

By 1980, Breyer was well respected by liberals, moderates, and conservatives. Although he had been an aide to the liberal Senator Kennedy, he was adept at promoting agreement between such political opposites as Kennedy and Senator Orrin G. Hatch (R-Utah). This record served Breyer well when President jimmy carter

nominated him to the U.S. Court of Appeals for the First Circuit. After Carter lost the 1980 election to ronald reagan, the Republicans scrapped all but one of Carter's pending judicial appointments, as is common in an incoming administration. Breyer's appointment was allowed to go through.

Breyer's record on the Court of Appeals was generally moderate. In a 1983 environmental regulatory case, he blocked the interior department from auctioning oil-drilling rights in the North Atlantic without giving ample consideration to alternative proposals (Commonwealth of Massachusetts v. Watt, 716 F. 2d 946 [1st Cir. 1983]). In the area of abortion, he voted to uphold a Massachusetts parental-notification law (Planned Parenthood of Massachusetts v. Bellotti, 868 F. 2d 459 [1st Cir. 1983]). But he joined the majority on the First Circuit in striking down the george h.w. bush Administration's ban on abortion counseling at family planning clinics funded by the federal government (Commonwealth of Massachusetts v. Secretary of Health and Human Services, 899 F. 2d 53 [1st Cir. 1990]).

Appointed to the u.s. sentencing commission in 1985, Breyer undertook the job of revising criminal-sentencing guidelines. Against strong opposition, he persuaded the other seven judges on the panel to base the guidelines on national averages. The changes, which took effect in 1987, have proven controversial. Critics charge that they have too tightly bound judges and produced inequitable results for minority defendants. In response, Breyer has argued that the guidelines have built-in flexibility that allows judges to influence the Sentencing Commission in future revisions.

President Clinton twice sought Breyer for appointment to the U.S. Supreme Court. Although close to choosing him in 1993, Clinton instead selected ruth bader ginsburg after Breyer became the target of criticism for late payments on social security taxes for a part-time housekeeper. When a second vacancy on the Court opened in 1994, Clinton returned to Breyer. The president compared his intellectual vigor to that of Judge learned hand, the renowned appellate judge of the 1920s and 1930s. Minor opposition met the nomination. Critics questioned whether Breyer's 1993 book Breaking the Vicious Circle: Toward Effective Risk Regulation went too far in attacking government regulation. Others raised doubts about his investment judgment in losing money in the early 1990s in the Lloyd's of London scandal, Britain's largest insurance disaster ever. At the same time, however, he received praise for his past achievements and for a strong commitment to first amendment rights. The Senate easily confirmed his appointment on July 29, 1994, by a vote of 87–9.

After two years on the Court, Breyer had aligned himself with the Court's moderates. He dissented when the majority struck down a 1990 federal law that prohibited the carrying of handguns outside schools, arguing that protecting schools should fall under Congress's power to regulate interstate commerce (United States v. Lopez, 514 U.S. 549. 115 S. Ct. 1624, 131 L. Ed. 2d 626 [1995]). He also dissented from the Court's ruling in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), which struck down the 1988 Indian Gaming Regulatory Act for violating states' rights. In a major victory for gay and lesbian rights, Breyer joined the majority in overturning Colorado's Amendment 2, which would have removed all legal protection for homosexuals against discrimination (romer v. evans, 116 S. Ct. 1620, 134 L. Ed. 2d 855 [1996]). And in a significant First Amendment decision, Breyer wrote the plurality opinion declaring that the government may not require cable TV operators to segregate and block leased access channels that feature offensive or indecent programming (Denver Area Consortium v. Federal Communications Commission, 116 S. Ct. 2374 [1996]).

Recent Opinions

Justice Breyer's opinions have defied labels such as "conservative" or "liberal." Instead, his opinions continue to reflect his rather centrist approach to most issues. In fact, some observers believe that Breyer represents the ideological center of the court, notwithstanding statistics showing that Breyer tends to side most often with the more "liberal" members of the Court (associate justices john paul stevens, ruth bader ginsburg, and david souter) and least often with the more "conservative" members of the Court (Chief Justice william rehnquist and associate justices antonin scalia, sandra day o'connor, and anthony kennedy).

Breyer's dissenting opinion in Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L. Ed. 2d 365 (2000), surprised many observers who tend to classify Breyer as "liberal" justice who consistently votes in favor of criminal defendants' rights. In Bond the Court examined the issue of whether the Fourth Amendment's protection against unreasonable searches was violated when a Border Patrol agent, while checking the immigration status of passengers on a bus, squeezed a canvas bag that was located in the compartment above a bus passenger's seat. The passenger admitted that the bag was his and allowed the agent to open it, revealing a "brick" of methamphetamine.

A majority of the court ruled that the search was illegal, noting that the traveler's luggage was a personal "effect" as defined in the fourth amendment, and that the passenger exhibited an actual expectation of privacy in that "effect" by using an opaque bag and placing the bag directly over his seat. In his dissent, Justice Breyer criticized what he perceived as the shortsightedness of the majority's opinion, arguing that the court's ruling would lead to a constitutional jurisprudence of "squeezes," thereby complicating further already complex Fourth Amendment law.

A few days later, Breyer wrote a 5–4 majority opinion that overturned a Nebraska statute criminalizing "partial birth abortions, "a second-trimester procedure in which, according to the statute, a physician "partially delivers vaginally a living unborn child before killing it." Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000). The Nebraska statute violated the Constitution for at least two independent reasons, Breyer wrote.

First, the statute lacked any exception for the preservation of the health of the mother. The Court had previously made clear that a state may promote, but not endanger, a woman's health when it regulates the methods of abortion. Second, Justice Breyer stated, the statute imposed an undue burden on a woman's ability to have an abortion, finding that the Nebraska statute banned an abortion procedure that was used as many as 5,000 times per year in the United States. (Breyer made no finding as to how often the procedure is used in Nebraska.) Breyer refused to revisit the Court's earlier

determinations and redeterminations that the federal Constitution offers basic protection guaranteeing women's right to procreative freedom.

In 2002, Breyer wrote a majority opinion clarifying an earlier U.S. Supreme Court decision concerning the constitutionality of civil-commitment procedures for so-called "sexual predators." In Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), the Court had ruled that a convicted sex offender who satisfies the statutory definition of a sexual predator could be involuntarily committed to a mental-health institution following his or her release from prison for the sex offense without violating the double jeopardy Clause to the fifth amendment of the U.S. Constitution, even if the sex offender is committed based on some of the same evidence that was used earlier to convict him or her. In Hendricks, the Court wrote that the Double Jeopardy Clause applies only to subsequent prosecutions or punishments in criminal proceedings, and the sexual-predator law contemplated commitment by civil proceedings.

In Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002), Breyer wrote a majority opinion that qualified Hendricks by ruling that before a convicted sex offender may be civilly committed as a sexual predator following his or her release from prison, the state must prove that the sex offender lacks some control over his or her behavior. The lack-of-control element, Breyer said, would allow the state to better distinguish between dangerous sexual offenders, whom it seeks to commit through civil proceedings, and other dangerous persons who are more appropriately dealt with through criminal proceedings. The federal Constitution prohibits civil commitment proceedings from becoming a "mechanism" for retribution or general deterrence, Breyer emphasized.

Breyer's most well-known opinion during the last nine years came in a dissenting role in one of the most controversial cases in the history of the U.S. Supreme Court. In bush v. gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000), seven justices (including Breyer) concluded that the process devised by the Florida Supreme Court to recount the popular vote in the 2000 presidential election violated the equal protection clause of the fourteenth amendment. However, only five justices agreed that there was insufficient time to fashion a remedy that would fairly and lawfully allow the votes of Florida residents to be accurately counted for either Republican Presidential candidate george w. bush of Texas and Democratic candidate albert gore of Tennessee. As a result, the nation's high court effectively ordered the Florida recount to stop, which meant that Bush would be become the forty-third President of the United States, as he was leading in Florida when the U.S. Supreme Court issued its opinion, and Florida's 25 electoral votes were enough for him to win in the electoral college.

In his dissenting opinion, Justice Breyer proposed sending the case back to Florida's Supreme Court so that it could devise an order for "a constitutionally proper contest" by which to decide the winner. The majority's opinion, Breyer wrote, placed too much emphasis on equal protection and not enough emphasis on the right to vote. Breyer chastised the majority for finding an equal protection violation but offering no remedy to correct it. "An appropriate remedy," Breyer wrote, "would be to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida … and to do so in accordance with a single uniform standard."

further readings

"Court: 'Animus' in Colo. Gay Law." 1996. National Law Journal 18 (June 3).

"Court Decisions." 1996. National Law Journal 18 (July 15).

Joyce, Walter E. 1996. "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 7.

Kersch, Ken I. 2003. "The Synthetic Progressivism of Stephen G. Breyer." Rehnquist Justice: Understanding the Court Dynamic. Edited by Earl M. Maltz. Lawrence: Univ. Press of Kansas.

Lenine, Eric J., and Richard J. Williams Jr. 1994. "Justice Stephen G. Breyer." Seton Hall Constitutional Law Journal 5.

Noble, Kenneth B. 1987. "Same Crime, Same Time (United States Sentencing Commission Guidelines)." Los Angeles Daily Journal 100.

Pierce, Richard J. 1995. "Justice Breyer: Intentionalist, Pragmatist, and Empiricist." Administrative Law Journal of the American University (winter).

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BREYER, STEPHEN GERALD (1938– ), law professor, Senate staff counsel, federal appellate judge, and seventh Jewish appointee to the Supreme Court of the United States. Breyer was born in San Francisco, California, to a middle-class Jewish family. His father was a lawyer for the city school system. He excelled at San Francisco's "magnet" public high school and at Stanford University, where he graduated with highest honors in 1959. Breyer won a Marshall Scholarship to attend Oxford University, where he received a B.A. with first-class honors in 1961 and developed an interest in economics.

At Harvard Law School Breyer was selected articles editor of the Harvard Law Review. Following his graduation magna cum laude in 1964, he served as one of two law clerks to Supreme Court Justice Arthur J. *Goldberg in 1964–65. He then worked at the Department of Justice for two years as a special assistant to the assistant attorney general of the Antitrust Division, former Harvard Law Professor Donald F. Turner. In 1967 he married Joanna Freda Hare, the daughter of Lord John Blakenham, who was a wealthy leader of Britain's Conservative Party.

Breyer began a teaching career at Harvard Law School in the fall of 1967, specializing in administrative and antitrust law. When Harvard Law Professor Archibald Cox became the Watergate Special Prosecutor in 1973, Breyer served briefly as an assistant to Cox. He became the staff director for the Senate's investigation of the Civil Aeronautics Board in 1974 and participated, after his return to full-time teaching at the Harvard Law School and at the Kennedy School of Government, in the hearings and legislation that led to the 1978 deregulation of the airline industry. In 1979 Breyer became chief counsel of the Senate Judiciary Committee under Massachusetts' Democratic Senator Edward M. Kennedy. Breyer's interpersonal skills as well as his keen intellect and even-handedness won him admirers among the Republican members of the Judiciary Committee. In the waning days of the Democratic Carter administration – after Ronald Reagan had been elected president – Breyer was nominated and confirmed with Republican support for a seat on the United States Court of Appeals for the First Circuit as the last judicial appointee of Jimmy *Carter.

The First Circuit is the smallest federal court of appeals, and Breyer advanced to becoming chief judge in 1990. In 1985 he became a member of the United States Sentencing Commission and was a principal architect of the Sentencing Guidelines, which became the mandatory standard for federal criminal sentences in October 1987. Years later, in January 2005, a five-member Supreme Court majority held that the Guidelines were unconstitutional to the extent that they prescribed any increased sentence resting on factual findings not made by a jury. Breyer salvaged the Guidelines' applicability to future cases with a creative opinion for the four dissenting Justices, who were joined, in this aspect of the ruling, by Justice Ruth *Ginsburg, who had concurred in the finding of unconstitutionality. Breyer's opinion for five Justices invalidated the mandatory nature of the Guidelines and made them advisory only. During his tenure as chief judge of the First Circuit, Breyer also oversaw, in detail, the construction of a modernistic federal courthouse in downtown Boston overlooking the harbor.

When the Democratic Party retook the White House with the election of President Bill Clinton, Breyer's name was frequently mentioned as a likely Supreme Court nominee. He was interviewed by President Clinton for the first such vacancy in 1993 and was nominated as the second Clinton appointment (both of whom are Jewish) in May 1994 for the seat vacated by Justice Harry A. Blackmun. Blackmun, who was not Jewish, had been named by President Richard Nixon to the "Jewish seat" that had been occupied successively by Justices Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, and Abe Fortas. Breyer was easily confirmed by an 87–9 vote and took his Supreme Court seat on August 3, 1994. The Court that he joined remained the same (with Breyer as the most junior justice) for more than a decade.

Breyer is viewed as a liberal centrist member of the Supreme Court. He concurs most frequently with Justice Ginsburg and disagrees most often with Justice Clarence Thomas. He occasionally joins the Court's three most conservative Justices – William Rehnquist, Antonin Scalia, and Thomas – and if either Justice Kennedy or Justice O'Connor agrees with the three conservatives, Breyer's is often the fifth vote to create a majority. His votes in business and criminal cases are conservative, but he joins the liberals in authorizing a broad role for federal, as opposed to state, regulation. On church-state issues, Breyer's vote is unpredictable. Although he opposed overruling a leading precedent that had prohibited state-financed teachers of handicapped students from teaching on religious-school premises and also opposed government tuition vouchers that could be used in parochial schools, he joined a Supreme Court majority that permitted the loan of publicly financed computer equipment to religious schools.

Breyer is an active questioner at Supreme Court argument sessions, although he frequently withholds his questions until late in the argument. His questions are lengthy and intricate, appearing to summarize an advocate's point but testing its logical and practical reach. His opinions are carefully balanced and tend to be scholarly rather than polemic.

In public speeches to Jewish audiences, Breyer often refers to his grandfather, who immigrated to St. Paul, Minnesota, from Poland. Breyer delivered an address at the Capital Rotunda marking Yom Hashoah 1996, and spoke stirringly of the historic significance of the *Nuremberg trial half a century earlier and the participation as prosecutor of then Supreme Court Justice Robert Jackson. Under the influence of Justices Breyer and Ginsburg, the Supreme Court for the first time in its history took an official holiday for Yom Kippur on October 6, 2003, delaying the formal opening of the Court from that date, which was the first Monday in October.

[Nathan Lewin (2nd ed.)]

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