BREYER, STEPHEN GERALD

BREYER, STEPHEN GERALD

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.
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 parttime
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 secondtrimester
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 civilcommitment
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 sexualpredator
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).