Stephen Gerald Breyer (1938–)

Justice Stephen Breyer, a Massachusetts Democrat, was President Bill Clinton’s second and final appointment to the Court (following Ruth Bader Ginsburg in 1993). A San Francisco native and son of a lawyer for the city’s school board, Breyer was educated at Stanford (1959), Oxford (1961) (where he was a Marshall Scholar), and the Harvard Law School (1964). After law school, he clerked for Supreme Court Justice Arthur Goldberg (1964–1965) and went on to a distinguished career as a professor at Harvard’s law school and lecturer at its Kennedy School of Government, and a high-level congressional and Justice Department staff member—special assistant to the assistant attorney general for anti-trust (1965–1967); assistant special prosecutor, Watergate Prosecution Force (1973); special (1974–1975) and chief counsel (1979–1980), U.S. Senate Judiciary Committee); and a Carter appointee to Boston’s First Circuit Court of Appeals (1980), where he ultimately served as chief judge (1990–1994).

Although Breyer clerked on the Supreme Court at the height of the Warren Court’s ‘‘rights revolution,’’ his chief scholarly interest and contribution was never in civil liberties—or even constitutional law—but rather in the law and economics of regulation. At Harvard, Breyer taught courses on anti-trust, regulatory, and administrative law. While on leave from academia, as an aide to Senator Edward Kennedy in the late 1970s, he was an influential architect of the deregulation of the airline industry. Later, as a judge, he played a major role in crafting the sentencing guidelines of the U.S. Sentencing Commission (1985–1989). In addition to many articles, Justice Breyer is the author of Regulation and Its Reform (1982), Breaking the Vicious Circle: Toward Effective Risk Regulation (1993), and co-author of a prominent administrative law casebook. That Breyer had devoted little time to contentious civil liberties and civil rights issues proved important, in the aftermath of a number of ideologically charged confirmation battles, to Clinton’s decision to name him to the Court. Besides having said little about issues like abortion and affirmative action, Breyer’s impressive command of economics and his understanding of (and sympathy for) business won him the goodwill of pro-business Republicans. What limited opposition there was to his appointment came from the public interest and consumer movements within the Democratic Party itself.

The texture of Justice Breyer’s constitutional jurisprudence reflects his ‘‘legal process’’ training and longstanding interest in the design of efficient and effective regulatory systems. The style of Breyer’s civil liberties opinions makes manifest his conviction that judging is a purposive task in which judges, mindful of the limits of judicial authority and expertise, collaborate with the other governmental institutions to formulate rational, goal-directed, and empirically grounded public policy. Those opinions devote relatively little time to deduction from fundamental principles and extended time to the pragmatic parsing of particular fact situations in light of purposive public policy considerations.

Since joining the Court, Justice Breyer has been called upon to apply his approach to a panoply of civil liberties issues. Despite the distinctive flavor of his analysis, in most areas of civil liberties (and civil rights), Breyer’s votes have been predictably liberal, aligning fairly consistently with the votes of Justices Ginsburg, Souter, and Stevens. Justice Breyer has been a reliable supporter of the right to privacy, including expansive understandings of abortion rights (Stenberg v. Carhart [2000]), the right to die (Washington v. Glucksberg [1997]), and gay rights (Romer v. Evans [1996]); Lawrence v. Texas [2003]). His free speech decisions are generally liberal. (See Denver Area Educational Telecommunications Consortium v. FCC [1995], Ashcroft v. Free Speech Coalition [2002], Republican Party of Minnesota v. White [2002], McConnell v. Federal Elections Commission [2003]. But see also United States v. American Library Association [2003]).

While maintaining a liberal predisposition, Justice Breyer has on occasion voted with the Court’s conservatives in three areas of civil liberties law. While traditionally liberal in many criminal process cases involving matters such as capital punishment and other Eighth Amendment issues and the right to counsel (see, for example, Stogner v. California [2003], Atkins v. Virginia [2002], Penry v. Johnson [2001], Kansas v. Hendricks [1997]), Breyer has in some cases been more deferential to the government in search and seizure cases than quintessential constitutional liberals (Venonia School District v. Acton [1995], Minnesota v. Carter [1998], Wyoming v. Houghton [1999]). In a similar spirit, while evincing a quintessentially liberal concern for the civil liberties of detained persons, he has asserted that indefinite detentions might be constitutionally permissible in cases involving ‘‘terrorism or other special circumstances where special arguments might be made for forms of preventative detention and for heightened deference to the judgments of the political branches with respect to matters of national security’’ (Zadvydas v. Davis [2001]). Breyer sometimes evinces more flexibility in his establishment clause decisions than the Court’s ‘‘strict separationist’’ justices. (Contrast Good News Club v. Milford [2001] and Mitchell v. Helms [2000], with Rosenberger v. University of Virginia [1995], Zelman v. Simmons-Harris [2002], and Santa Fe Independent School District v. Doe [2000].) Moreover, like many conservatives, Justice Breyer takes economic rights seriously (see BMW v. Gore [1996]). He nonetheless has refused to sign on to the conservative property rights jurisprudence pursuant to the Fifth Amendment’s takings clause. (See Palazzolo v. Rhode Island [2001], Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency [2002], and Brown v. Legal Foundation of Washington [2003].)

Perhaps the most innovative component of Justice Breyer’s jurisprudence is his commitment to a belief that the Court should take greater cognizance in its decisions of the ways in which other nations and foreign and international courts have approached similar problems of law, governance, and public policy, a belief that has exerted a considerable influence on the Court’s other justices. Breyer has gone so far as to suggest that this may involve American judges working to integrate the U.S. Constitution into the governing documents of other nations. He has asserted that international treaties ‘‘may eventually prove relevant’’ in death penalty cases, and that ‘‘the number of treaties relevant to particular domestic legal disputes seems to be growing.’’ In Grutter v. Bollinger (2003), Breyer joined an opinion by Justice Ginsburg that cited international human rights agreements as authority for upholding the affirmative action policies of the University of Michigan Law School. Breyer’s transnationalism is a piece with his interest in pragmatic systems building: He sees a worldwide system of governance emerging, particularly with regard to human rights, and believes that the Supreme Court has an important role to play in integrating the United States (and the U.S. Constitution) into this system. This globalist inclination could ultimately have a significant impact on the future path of the Court’s civil liberties jurisprudence.

KEN I. KERSCH

References and Further Reading

  • Kersch, Ken I. ‘‘The Synthetic Progressivism of Stephen G. Breyer.’’ In Rehnquist Justice: Understanding the Court Dynamic, edited by Earl M. Maltz. Lawrence: University Press of Kansas, 2003. 
  • ———. ‘‘Multilateralism Comes to the Courts.’’ The Public Interest (Winter 2004).

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