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Breyer, Stephen G.

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Significance: A respected expert in the fields of administrative, antitrust, and environmental law, Breyer has been widely recognized to be a pragmatic and conciliatory justice, even as he has usually voted with the liberal wing of the Court.


Raised in a middle-class, politically active Jewish family in San Francisco, Stephen G. Breyer was an outstanding student and successful debater in high school. He earned bachelor's degrees from both Stanford and Oxford Universities. While attending Harvard Law School, he served as editor for its law review. After graduating magna cum laude 1964, he worked as a clerk for Supreme Court justice Arthur J. Goldberg. He then served as assistant to the attorney general for antitrust (1965-1967) and as assistant special prosecutor in the Watergate investigations of 1973. He taught law and public policy at Harvard University from 1967 to 1980. In 1980, President Jimmy Carter named Breyer to the Court of Appeals for the First Circuit, where he gained a reputation for outstanding judicial work in a large variety of fields, including the jurisprudence of Puerto Rico. He also found time to write a balanced and highly regarded book, Regulation and Its Reform (1982), which analyzed agency accountability, cost-benefit analysis, and legislative oversight. In addition, he served as a leading member of the U.S. Sentencing Commission from 1985 to 1989, and he was elevated to the chief judgeship of the First Circuit in 1990. In 1994, President Bill Clinton chose him to replace retiring Harry A. Blackmun on the Supreme Court. The Senate easily confirmed the noncontroversial nomination with a vote of eighty-seven to nine.


Jurisprudence and Decisions

On the bench, Breyer's approach to constitutional issues has been pragmatic and moderately left of center. He explains his perspective in Active Liberty: Interpreting Our Democratic Constitution (2005), which in some ways is a refutation of Justice Antonin Scalia's approach of looking primarily to the original meaning of the text. Rather than this originalism, Breyer advocates that judges should attempt to help achieve the democratic intentions of the Constitution. He also suggests that an international consensus can help define American principles of human rights. Such views tended to associate Breyer with the more liberal members of the Court: Justices John Paul Stevens, Ruth Bader Ginsburg, and David H. Souter. Breyer consistently has held that the due process clause protects broad “liberty interests,” including “a woman's right to choose” to have an abortion. Writing the opinion for the 5-4 majority in Stenberg v. Carhart (2000), he argued that Nebraska's late-term abortion law was unconstitutional because it placed an “undue burden” on the woman's right and did not have an exception in cases of threatened health. Likewise, in the case of Lawrence v. Texas (2003), he joined the majority in ruling that the due process clause protected the liberty of consenting adults to engage in homosexual relationships in a private home. While agreeing in Washington v. Glucksberg (1997) that the Constitution protects no right to have assistance in committing suicide, Breyer wrote that the Court should recognize a right to die with dignity. Breyer could also be counted on to join the liberal justices in cases involving equal protection and affirmative action. In Adarand Constructors v. Peña (1995), he opposed application of strict scrutiny when reviewing affirmative action programs. In Grutter v. Bollinger (2003), he firmly supported the use of racial preferences in university admissions policies. In Boy Scouts v. Dale (2000), he dissented from the majority's ruling that the organization's rights of association trumped the state's interest in outlawing discrimination based on sexual orientation. Breyer has been highly critical of the more conservative justices’ interpretations on the Tenth Amendment and Congress's powers to regulate commerce. When a five-member majority in United States v. Lopez (1995) ruled that the federal government could not regulate the possession of firearms in school zones, Breyer, wrote a strong dissent, arguing that the majority had approved of government regulations of schools in matters such as illegal drugs and asbestos. Likewise, in Printz v. United States (1997), he joined the dissenters in arguing that the federal government under its commerce powers should be allowed to require local law-enforcement officers to make background checks of persons buying firearms. The respective positions were reversed in the case of Bush v. Gore (2000), when the five more conservative justices made a unique application of the equal protection clause and ordered an end to the Florida vote recount, thereby assuring that George W. Bush would be the next president. In this instance, Breyer argued that no federal issue was involved and that that Florida's government should have been allowed to decide which candidate had won the state's electoral votes. The legal profession tended to agree more with Breyer than with Rehnquist and his allies. Breyer has shown a special interest in technical and arcane cases. Given his expertise in administrative law, it is surprising that he was chosen to write the opinion for the Court in Dickinson v. Zurko (1999), a patent case that focused on whether the “substantial evidence” standard that is used in reviewing a federal agency's finding was the same as the “clearly erroneous” standard that federal appeals courts used in reviewing district courts. He concluded that there was a “subtle” difference, but that it was of little consequence in actual practice. As the Court began examining more complex cases involving complex matters of science and technology, it was expected that Breyer would play a central role. Although identified with the liberal wing of the Court, Breyer regularly advocated an examination of each case on its merits with an elimination of ideological bias to the extent possible. He has always avoided dogmatism and his language has never been caustic. He has enjoyed giving speeches and has frequently appeared in television interviews. Despite the workload of the Court, he has continued to find time to write articles and books for publication.



Further Reading

  • Breyer, Stephen G. Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf, 2005. Expresses his relatively liberal views on jurisprudence.
  • Deegan, Paul. Stephen Breyer. Minneapolis: Abdo, 1996.
  • Gottlieb, Stephen. Morality Imposed: the Rehnquist Court and the State of Liberty in America. New York: New York University Press, 2000.
  • Hensley, Thomas R. The Rehnquist Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2006.
  • Perry, Barbara. The Supremes: Essays on the Current Justices of the Supreme Court. New York: P. Lang, 2001.