Stephen Breyer
Encyclopedia
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court
. Appointed by President Bill Clinton in 1994, and known for his pragmatic
approach to constitutional law, Breyer is generally associated with the more liberal
side of the Court.
Following a clerkship
with Supreme Court Associate Justice Arthur Goldberg
in 1964, Breyer became well known as a law professor and lecturer at Harvard Law School
starting in 1967. There he specialized in the area of administrative law
, writing a number of influential text books that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General
for Antitrust, and assistant special prosecutor
on the Watergate
Special Prosecution Force in 1973.
In his 2005 book Active Liberty
, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary
should seek to resolve issues to encourage popular participation in governmental decisions.
of San Francisco's Troop 14. In 2007, Breyer was honored with the Distinguished Eagle Scout Award
by the Boy Scouts of America
. In 1955, Breyer graduated from Lowell High School
. At Lowell, he was a member of the Lowell Forensic Society
and debated regularly in high school debate tournaments, including against future California governor
Jerry Brown
and future Harvard Law School professor Laurence Tribe
.
Breyer received a Bachelor of Arts in philosophy
from Stanford University
, a Bachelor of Arts from Magdalen College
at Oxford University as a Marshall Scholar
, and a Bachelor of Laws
(LL.B) from Harvard Law School. Breyer is also fluent in French.
In 1967, he married The Hon. Joanna Freda Hare, a psychologist
and member of the British aristocracy (the youngest daughter of John Hare, 1st Viscount Blakenham
). The Breyers have three adult children, Chloe (an Episcopal priest, and author of The Close), Nell, and Michael.
to Associate Justice Arthur Goldberg
during the 1964 term (list). He was a special assistant to the United States Assistant Attorney General
for Antitrust from 1965 to 1967 and an assistant special prosecutor
on the Watergate
Special Prosecution Force in 1973. Breyer was a special counsel to the U.S. Senate Committee on the Judiciary
from 1974 to 1975 and served as chief counsel of the committee from 1979 to 1980. He worked closely with the chairman of the committee, Senator Edward M. Kennedy, to pass the Airline Deregulation Act
that closed the Civil Aeronautics Board.
Breyer became an assistant professor, law professor, and lecturer at Harvard Law School starting in 1967. Breyer taught at Harvard Law School until 1994, also serving as a professor at Harvard's Kennedy School of Government from 1977 to 1980. At Harvard, Breyer was known as a leading expert on administrative law
. While there, he wrote two highly influential books on deregulation: Breaking the Vicious Circle: Toward Effective Risk Regulation and Regulation and Its Reform. In 1970, Breyer wrote "The Uneasy Case for Copyright
", one of the most widely cited skeptical examinations of copyright. Breyer was a visiting professor at the College of Law in Sydney, Australia, the University of Rome
, and the Tulane University Law School
.
From 1980 to 1994, Breyer was a judge on the United States Court of Appeals for the First Circuit
; he was the court's Chief Judge
from 1990 to 1994. In the last days of President Jimmy Carter
's administration, on November 13, 1980, Carter nominated Breyer to the First Circuit, and the U.S. Senate confirmed him on December 9, 1980 by an 80–10 vote. He served as a member of the Judicial Conference of the United States
between 1990 and 1994 and the United States Sentencing Commission
between 1985 and 1989. On the sentencing commission, Breyer played a key role in reforming federal criminal sentencing procedures, producing the Federal Sentencing Guidelines
, which were formulated to increase uniformity in sentencing.
In 1993, President Bill Clinton
considered him for the seat vacated by Byron White
that ultimately went to Justice Ruth Bader Ginsburg
. Breyer's appointment came shortly thereafter, however, following the retirement of Harry Blackmun
in 1994, when Clinton nominated Breyer as an Associate Justice of the Supreme Court on May 13 of that year. Breyer was confirmed by the U.S. Senate in an 87 to 9 vote and took his seat August 3, 1994.
Breyer was the second-longest-serving junior justice in the history of the Court, close to surpassing the record set by Justice Joseph Story
of 4,228 days (from February 3, 1812 to September 1, 1823); Breyer fell 29 days short of tying this record, which he would have reached on March 1, 2006, had Justice Samuel Alito
not joined the Court on January 31, 2006.
approach to the law "will tend to make the law more sensible"; according to Cass Sunstein
, Breyer's "attack on originalism
is powerful and convincing." In 2006, Breyer said that in assessing a law's constitutionality, while some of his colleagues "emphasize language, a more literal reading of the [Constitution's] text, history and tradition," he looks more closely to the "purpose and consequences."
Breyer has consistently voted in favor of abortion
rights, one of the most controversial areas of the Supreme Court's docket. He has also defended the Supreme Court's use of foreign law and international law
as persuasive (but not binding) authority in its decisions. However, Breyer is also recognized to be deferential to the interests of law enforcement and to legislative judgments in the Supreme Court's First Amendment
rulings. Breyer has also demonstrated a consistent pattern of deference to Congress, voting to overturn congressional legislation at a lower rate than any other Supreme Court justice since 1994.
Breyer's extensive experience in administrative law
is accompanied by his staunch defense of the Federal Sentencing Guidelines
. Breyer rejects the strict interpretation of the Sixth Amendment
espoused by Justice Scalia
that all facts necessary to criminal punishment must be submitted to a jury and proved beyond a reasonable doubt. In many other areas on the Court, too, Breyer's pragmatism is considered the intellectual counterweight to Scalia's textualist
philosophy.
In describing his interpretive philosophy, Breyer has sometimes noted his use of six interpretive tools: text, history, tradition, precedent, the purpose of a statute, and the consequences of competing interpretations. Breyer notes that only the last two differentiate him from textualists on the Supreme Court such as Scalia. Breyer argues that these sources are necessary, however, and in the former case (purpose), can in fact provide greater objectivity in legal interpretation than looking merely at what is often ambiguous statutory text. With the latter (consequences), Breyer argues that considering the impact of legal interpretations is a further way of ensuring consistency with a law's intended purpose.
. In it, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings will fit those purposes. The book is considered a response to the 1997 book A Matter of Interpretation, in which Antonin Scalia
emphasized adherence to the original meaning of the text alone.
In Active Liberty, Breyer argues that the Framers of the Constitution
sought to establish a democratic government involving the maximum liberty for its citizens. Breyer refers to Isaiah Berlin
’s Two Concepts of Liberty. The first Berlinian concept, being what most people understand by liberty, is "freedom from government coercion;" Berlin termed this negative liberty
and warned against its diminution. Breyer terms this "modern liberty." The second Berlinian concept – to Berlin, "positive liberty
" – is the "freedom to participate in the government;" In Breyer's terminology, this is the "active liberty," which the judge should champion. Having established this premise of what liberty is, and having posited the primary importance of this concept over the competing idea of "Negative Liberty" to the Framers, Breyer argues a predominantly utilitarian case for judges making rulings that give effect to the democratic intentions
of the Constitution
.
Both of the books' historical premises and practical prescriptions have been challenged. For example, according to Prof. Peter Berkowitz, the reason that "[t]he primarily democratic nature of the Constitution's governmental structure has not always seemed obvious," as Breyer puts it, is "because it’s not true, at least in Breyer's sense that the Constitution elevates active liberty above modern [negative] liberty." Breyer's position "demonstrates not fidelity to the Constitution," Berkowitz argues, "but rather a determination to rewrite the Constitution’s priorities." Berkowitz suggests that Breyer is also inconsistent, in failing to apply this standard to the issue of abortion, instead preferring decisions "that protect women’s modern liberty, which remove controversial issues from democratic discourse." Failing to answer the textualist
charge that the Living Documentarian
Judge is a law unto himself, Berkowitz argues that Active Liberty "suggests that when necessary, instead of choosing the consequence that serves what he regards as the Constitution’s leading purpose, Breyer will determine the Constitution’s leading purpose on the basis of the consequence that he prefers to vindicate."
Against the last charge, Professor Cass Sunstein
has defended Breyer, noting that of the nine justices on the late Rehnquist Court, Breyer showed the highest percentage of votes to uphold acts of Congress and also to defer to the decision of the executive branch. However, according to Jeffrey Toobin in The New Yorker
, "Breyer concedes that a judicial approach based on 'active liberty' will not yield solutions to every constitutional debate," and that, in Breyer's words, "Respecting the democratic process does not mean you abdicate your role of enforcing the limits in the Constitution, whether in the Bill of Rights or in separation of powers."
To his point, and from a discussion at the New-York Historical Society
in March 2006, Breyer has noted that "democratic means" did not bring about an end to slavery
, or the concept of "one man, one vote," which allowed corrupt and discriminatory (but democratically inspired) state laws to be overturned in favor of civil rights
.
In 2010, Breyer released a second book, Making Our Democracy Work: A Judge's View (ISBN 978-0307269911).
on December 12, 2010, Breyer stated that based on the values and the historical record, the Founding Fathers
never intended guns to go unregulated and that history supports his and the other dissenters' views in District of Columbia v. Heller
.
In the wake of the controversy over Justice Alito
's reaction to President Obama
's criticism of the Court's Citizens United v. FEC ruling in his 2010
State of the Union Address
, Breyer said he would continue to attend the address:
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Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
. Appointed by President Bill Clinton in 1994, and known for his pragmatic
Pragmatism
Pragmatism is a philosophical tradition centered on the linking of practice and theory. It describes a process where theory is extracted from practice, and applied back to practice to form what is called intelligent practice...
approach to constitutional law, Breyer is generally associated with the more liberal
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
side of the Court.
Following a clerkship
Law clerk
A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court. Most law clerks are recent law school graduates who...
with Supreme Court Associate Justice Arthur Goldberg
Arthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...
in 1964, Breyer became well known as a law professor and lecturer at Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
starting in 1967. There he specialized in the area of administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
, writing a number of influential text books that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General
United States Assistant Attorney General
Many of the divisions and offices of the United States Department of Justice are headed by an Assistant Attorney General.The President of the United States appoints individuals to the position of Assistant Attorney General with the advice and consent of the Senate...
for Antitrust, and assistant special prosecutor
Special prosecutor
A special prosecutor generally is a lawyer from outside the government appointed by an attorney general or, in the United States, by Congress to investigate a government official for misconduct while in office. A reasoning for such an appointment is that the governmental branch or agency may have...
on the Watergate
Watergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...
Special Prosecution Force in 1973.
In his 2005 book Active Liberty
Active Liberty
Active Liberty: Interpreting Our Democratic Constitution is a 2005 book by United States Supreme Court Justice Stephen Breyer. The general theme of the book is that Supreme Court justices should, when dealing with Constitutional issues, keep "active liberty" in mind, which Justice Breyer defines...
, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
should seek to resolve issues to encourage popular participation in governmental decisions.
Early life and education
Breyer was born to Irving Gerald Breyer and Anne A. Roberts, a middle-class Jewish family in San Francisco. Breyer's father was legal counsel for the San Francisco Board of Education. Both Breyer and his younger brother, Charles, who is a federal district judge, are Eagle ScoutsEagle Scout (Boy Scouts of America)
Eagle Scout is the highest rank attainable in the Boy Scouting program of the Boy Scouts of America . A Scout who attains this rank is called an Eagle Scout or Eagle. Since its introduction in 1911, the Eagle Scout rank has been earned by more than 2 million young men...
of San Francisco's Troop 14. In 2007, Breyer was honored with the Distinguished Eagle Scout Award
Distinguished Eagle Scout Award
The Distinguished Eagle Scout Award is a distinguished service award of the Boy Scouts of America . It is awarded to an Eagle Scout for distinguished service in his profession and to his community for a period of at least 25 years after attaining the level of Eagle Scout...
by the Boy Scouts of America
Boy Scouts of America
The Boy Scouts of America is one of the largest youth organizations in the United States, with over 4.5 million youth members in its age-related divisions...
. In 1955, Breyer graduated from Lowell High School
Lowell High School (San Francisco)
Lowell High School is a public magnet school in San Francisco, California. The school opened in 1856 as the Union Grammar School and attained its current name in 1896. Lowell moved to its current location in the Merced Manor neighborhood in 1962....
. At Lowell, he was a member of the Lowell Forensic Society
Lowell Forensic Society
The Lowell Forensic Society, founded in 1892, is the oldest high school speech and debate team in the United States and also the largest organization at Lowell High School in San Francisco, California. The society occupies Room 135, also known as "Leland Room," named after former Deputy Under...
and debated regularly in high school debate tournaments, including against future California governor
Governor of California
The Governor of California is the chief executive of the California state government, whose responsibilities include making annual State of the State addresses to the California State Legislature, submitting the budget, and ensuring that state laws are enforced...
Jerry Brown
Jerry Brown
Edmund Gerald "Jerry" Brown, Jr. is an American politician. Brown served as the 34th Governor of California , and is currently serving as the 39th California Governor...
and future Harvard Law School professor Laurence Tribe
Laurence Tribe
Laurence Henry Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters....
.
Breyer received a Bachelor of Arts in philosophy
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
from Stanford University
Stanford University
The Leland Stanford Junior University, commonly referred to as Stanford University or Stanford, is a private research university on an campus located near Palo Alto, California. It is situated in the northwestern Santa Clara Valley on the San Francisco Peninsula, approximately northwest of San...
, a Bachelor of Arts from Magdalen College
Magdalen College, Oxford
Magdalen College is one of the constituent colleges of the University of Oxford in England. As of 2006 the college had an estimated financial endowment of £153 million. Magdalen is currently top of the Norrington Table after over half of its 2010 finalists received first-class degrees, a record...
at Oxford University as a Marshall Scholar
Marshall Scholarship
The Marshall Scholarship, a postgraduate scholarships available to Americans, was created by the Parliament of the United Kingdom when the Marshall Aid Commemoration Act was passed in 1953. The scholarships serve as a living gift to the United States of America in recognition of the post-World War...
, and a Bachelor of Laws
Bachelor of Laws
The Bachelor of Laws is an undergraduate, or bachelor, degree in law originating in England and offered in most common law countries as the primary law degree...
(LL.B) from Harvard Law School. Breyer is also fluent in French.
In 1967, he married The Hon. Joanna Freda Hare, a psychologist
Psychologist
Psychologist is a professional or academic title used by individuals who are either:* Clinical professionals who work with patients in a variety of therapeutic contexts .* Scientists conducting psychological research or teaching psychology in a college...
and member of the British aristocracy (the youngest daughter of John Hare, 1st Viscount Blakenham
John Hare, 1st Viscount Blakenham
John Hugh Hare, 1st Viscount Blakenham OBE, PC, DL , was a British Conservative politician.-Background and education:...
). The Breyers have three adult children, Chloe (an Episcopal priest, and author of The Close), Nell, and Michael.
Legal career
Breyer served as a law clerkLaw clerk
A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court. Most law clerks are recent law school graduates who...
to Associate Justice Arthur Goldberg
Arthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...
during the 1964 term (list). He was a special assistant to the United States Assistant Attorney General
United States Assistant Attorney General
Many of the divisions and offices of the United States Department of Justice are headed by an Assistant Attorney General.The President of the United States appoints individuals to the position of Assistant Attorney General with the advice and consent of the Senate...
for Antitrust from 1965 to 1967 and an assistant special prosecutor
Special prosecutor
A special prosecutor generally is a lawyer from outside the government appointed by an attorney general or, in the United States, by Congress to investigate a government official for misconduct while in office. A reasoning for such an appointment is that the governmental branch or agency may have...
on the Watergate
Watergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...
Special Prosecution Force in 1973. Breyer was a special counsel to the U.S. Senate Committee on the Judiciary
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...
from 1974 to 1975 and served as chief counsel of the committee from 1979 to 1980. He worked closely with the chairman of the committee, Senator Edward M. Kennedy, to pass the Airline Deregulation Act
Airline Deregulation Act
The Airline Deregulation Act is a United States federal law signed into law on October 24, 1978. The main purpose of the act was to remove government control over fares, routes and market entry from commercial aviation...
that closed the Civil Aeronautics Board.
Breyer became an assistant professor, law professor, and lecturer at Harvard Law School starting in 1967. Breyer taught at Harvard Law School until 1994, also serving as a professor at Harvard's Kennedy School of Government from 1977 to 1980. At Harvard, Breyer was known as a leading expert on administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
. While there, he wrote two highly influential books on deregulation: Breaking the Vicious Circle: Toward Effective Risk Regulation and Regulation and Its Reform. In 1970, Breyer wrote "The Uneasy Case for Copyright
The Uneasy Case for Copyright
"The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs" was an article in the Harvard Law Review by future United States Supreme Court Justice Stephen Breyer in 1970, while he was still a legal academic...
", one of the most widely cited skeptical examinations of copyright. Breyer was a visiting professor at the College of Law in Sydney, Australia, the University of Rome
University of Rome La Sapienza
The Sapienza University of Rome, officially Sapienza – Università di Roma, formerly known as Università degli studi di Roma "La Sapienza", is a coeducational, autonomous state university in Rome, Italy...
, and the Tulane University Law School
Tulane University Law School
Tulane University Law School is the law school of Tulane University. It is located on Tulane's Uptown campus in New Orleans, Louisiana. Established in 1847, it is the 12th oldest law school in the United States....
.
Judicial career
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
; he was the court's Chief Judge
Chief judge
Chief Judge is a title that can refer to the highest-ranking judge of a court that has more than one judge. The meaning and usage of the term vary from one court system to another...
from 1990 to 1994. In the last days of President Jimmy Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
's administration, on November 13, 1980, Carter nominated Breyer to the First Circuit, and the U.S. Senate confirmed him on December 9, 1980 by an 80–10 vote. He served as a member of the Judicial Conference of the United States
Judicial Conference of the United States
The Judicial Conference of the United States, formerly known as Conference of Senior Circuit Judges, was created by the United States Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial courts in the United States...
between 1990 and 1994 and the United States Sentencing Commission
United States Sentencing Commission
The United States Sentencing Commission is an independent agency of the judicial branch of the federal government of the United States. It is responsible for articulating the sentencing guidelines for the United States federal courts...
between 1985 and 1989. On the sentencing commission, Breyer played a key role in reforming federal criminal sentencing procedures, producing the Federal Sentencing Guidelines
Federal Sentencing Guidelines
The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the United States federal courts system...
, which were formulated to increase uniformity in sentencing.
In 1993, President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
considered him for the seat vacated by Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
that ultimately went to Justice Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
. Breyer's appointment came shortly thereafter, however, following the retirement of Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
in 1994, when Clinton nominated Breyer as an Associate Justice of the Supreme Court on May 13 of that year. Breyer was confirmed by the U.S. Senate in an 87 to 9 vote and took his seat August 3, 1994.
Breyer was the second-longest-serving junior justice in the history of the Court, close to surpassing the record set by Justice Joseph Story
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
of 4,228 days (from February 3, 1812 to September 1, 1823); Breyer fell 29 days short of tying this record, which he would have reached on March 1, 2006, had Justice Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
not joined the Court on January 31, 2006.
In general
Breyer's pragmaticPragmatism
Pragmatism is a philosophical tradition centered on the linking of practice and theory. It describes a process where theory is extracted from practice, and applied back to practice to form what is called intelligent practice...
approach to the law "will tend to make the law more sensible"; according to Cass Sunstein
Cass Sunstein
Cass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration...
, Breyer's "attack on originalism
Original intent
Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has...
is powerful and convincing." In 2006, Breyer said that in assessing a law's constitutionality, while some of his colleagues "emphasize language, a more literal reading of the [Constitution's] text, history and tradition," he looks more closely to the "purpose and consequences."
Breyer has consistently voted in favor of abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
rights, one of the most controversial areas of the Supreme Court's docket. He has also defended the Supreme Court's use of foreign law and international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
as persuasive (but not binding) authority in its decisions. However, Breyer is also recognized to be deferential to the interests of law enforcement and to legislative judgments in the Supreme Court's First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
rulings. Breyer has also demonstrated a consistent pattern of deference to Congress, voting to overturn congressional legislation at a lower rate than any other Supreme Court justice since 1994.
Breyer's extensive experience in administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
is accompanied by his staunch defense of the Federal Sentencing Guidelines
Federal Sentencing Guidelines
The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the United States federal courts system...
. Breyer rejects the strict interpretation of the Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
espoused by Justice Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
that all facts necessary to criminal punishment must be submitted to a jury and proved beyond a reasonable doubt. In many other areas on the Court, too, Breyer's pragmatism is considered the intellectual counterweight to Scalia's textualist
Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
philosophy.
In describing his interpretive philosophy, Breyer has sometimes noted his use of six interpretive tools: text, history, tradition, precedent, the purpose of a statute, and the consequences of competing interpretations. Breyer notes that only the last two differentiate him from textualists on the Supreme Court such as Scalia. Breyer argues that these sources are necessary, however, and in the former case (purpose), can in fact provide greater objectivity in legal interpretation than looking merely at what is often ambiguous statutory text. With the latter (consequences), Breyer argues that considering the impact of legal interpretations is a further way of ensuring consistency with a law's intended purpose.
Active Liberty
Breyer expounded on his judicial philosophy in 2005 in Active Liberty: Interpreting Our Democratic ConstitutionActive Liberty
Active Liberty: Interpreting Our Democratic Constitution is a 2005 book by United States Supreme Court Justice Stephen Breyer. The general theme of the book is that Supreme Court justices should, when dealing with Constitutional issues, keep "active liberty" in mind, which Justice Breyer defines...
. In it, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings will fit those purposes. The book is considered a response to the 1997 book A Matter of Interpretation, in which Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
emphasized adherence to the original meaning of the text alone.
In Active Liberty, Breyer argues that the Framers of the Constitution
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
sought to establish a democratic government involving the maximum liberty for its citizens. Breyer refers to Isaiah Berlin
Isaiah Berlin
Sir Isaiah Berlin OM, FBA was a British social and political theorist, philosopher and historian of ideas of Russian-Jewish origin, regarded as one of the leading thinkers of the twentieth century and a dominant liberal scholar of his generation...
’s Two Concepts of Liberty. The first Berlinian concept, being what most people understand by liberty, is "freedom from government coercion;" Berlin termed this negative liberty
Negative liberty
Negative liberty is defined as freedom from interference by other people, and is set in contrast to positive liberty, which is defined as an individual's freedom from inhibitions of the social structure within the society such as classism, sexism or racism and is primarily concerned with the...
and warned against its diminution. Breyer terms this "modern liberty." The second Berlinian concept – to Berlin, "positive liberty
Positive liberty
Positive liberty is defined as having the power and resources to fulfill one's own potential ; as opposed to negative liberty, which is freedom from external restraint...
" – is the "freedom to participate in the government;" In Breyer's terminology, this is the "active liberty," which the judge should champion. Having established this premise of what liberty is, and having posited the primary importance of this concept over the competing idea of "Negative Liberty" to the Framers, Breyer argues a predominantly utilitarian case for judges making rulings that give effect to the democratic intentions
Original intent
Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has...
of the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
.
Both of the books' historical premises and practical prescriptions have been challenged. For example, according to Prof. Peter Berkowitz, the reason that "[t]he primarily democratic nature of the Constitution's governmental structure has not always seemed obvious," as Breyer puts it, is "because it’s not true, at least in Breyer's sense that the Constitution elevates active liberty above modern [negative] liberty." Breyer's position "demonstrates not fidelity to the Constitution," Berkowitz argues, "but rather a determination to rewrite the Constitution’s priorities." Berkowitz suggests that Breyer is also inconsistent, in failing to apply this standard to the issue of abortion, instead preferring decisions "that protect women’s modern liberty, which remove controversial issues from democratic discourse." Failing to answer the textualist
Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
charge that the Living Documentarian
Living Constitution
The Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes...
Judge is a law unto himself, Berkowitz argues that Active Liberty "suggests that when necessary, instead of choosing the consequence that serves what he regards as the Constitution’s leading purpose, Breyer will determine the Constitution’s leading purpose on the basis of the consequence that he prefers to vindicate."
Against the last charge, Professor Cass Sunstein
Cass Sunstein
Cass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration...
has defended Breyer, noting that of the nine justices on the late Rehnquist Court, Breyer showed the highest percentage of votes to uphold acts of Congress and also to defer to the decision of the executive branch. However, according to Jeffrey Toobin in The New Yorker
The New Yorker
The New Yorker is an American magazine of reportage, commentary, criticism, essays, fiction, satire, cartoons and poetry published by Condé Nast...
, "Breyer concedes that a judicial approach based on 'active liberty' will not yield solutions to every constitutional debate," and that, in Breyer's words, "Respecting the democratic process does not mean you abdicate your role of enforcing the limits in the Constitution, whether in the Bill of Rights or in separation of powers."
To his point, and from a discussion at the New-York Historical Society
New-York Historical Society
The New-York Historical Society is an American history museum and library located in New York City at the corner of 77th Street and Central Park West in Manhattan. Founded in 1804 as New York's first museum, the New-York Historical Society presents exhibitions, public programs and research that...
in March 2006, Breyer has noted that "democratic means" did not bring about an end to slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
, or the concept of "one man, one vote," which allowed corrupt and discriminatory (but democratically inspired) state laws to be overturned in favor of civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
.
In 2010, Breyer released a second book, Making Our Democracy Work: A Judge's View (ISBN 978-0307269911).
Other views
In an interview on Fox News SundayFox News Sunday
Fox News Sunday with Chris Wallace is a public affairs program on the Fox network, hosted by Chris Wallace and airing on Sunday mornings. The show began on April 28, 1996, which predated the launch of Fox News Channel, and usually talks about items similar to Sunday morning talk shows...
on December 12, 2010, Breyer stated that based on the values and the historical record, the Founding Fathers
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
never intended guns to go unregulated and that history supports his and the other dissenters' views in District of Columbia v. Heller
District of Columbia v. Heller
District of Columbia v. Heller, 554 U.S. 570 , was a landmark case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for traditionally lawful purposes in federal enclaves, such as...
.
In the wake of the controversy over Justice Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
's reaction to President Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
's criticism of the Court's Citizens United v. FEC ruling in his 2010
2010 State of the Union Address
The 2010 State of the Union Address was given by United States President Barack Obama on January 27, 2010, to a joint session of Congress. It was aired on all the major networks starting at 9 p.m. ET...
State of the Union Address
State of the Union Address
The State of the Union is an annual address presented by the President of the United States to the United States Congress. The address not only reports on the condition of the nation but also allows the president to outline his legislative agenda and his national priorities.The practice arises...
, Breyer said he would continue to attend the address:
I think it's very, very, very important – very important – for us to show up at that State of the Union, because people today are more and more visual. What (people) see in front of them at the State of the Union is that federal government. And I would like them to see the judges too, because federal judges are also a part of that government.
See also
- Bill Clinton Supreme Court candidatesBill Clinton Supreme Court candidatesPresident Bill Clinton made two appointments to the Supreme Court of the United States, both during his first term.On March 19, 1993, Associate Justice Byron White announced his retirement , effective at the end of the Supreme Court's 1992-1993 term...
- Demographics of the Supreme Court of the United StatesDemographics of the Supreme Court of the United StatesThe demographics of the Supreme Court of the United States encompass the gender, ethnic, religious, geographic, and economic backgrounds of the 112 justices appointed to the Supreme Court. Certain of these characteristics have been raised as an issue since the Court was established in 1789. For its...
- List of Justices of the Supreme Court of the United States
- List of law clerks of the Supreme Court of the United States
- List of U.S. Supreme Court Justices by time in office
- United States Supreme Court cases during the Rehnquist Court
- United States Supreme Court cases during the Roberts Court
External links
- CSPAN Q&A with Justice Breyer
- Review of Stephen Breyer's Active Liberty: Interpreting our Democratic Constitution
- 'Stephen Breyer, the court's necromancer', a book review of "Active Liberty: Interpreting Our Democratic Constitution" in the New English Review
- 'Active Liberty' from Justice Stephen Breyer, October 20, 2005 NPR's Fresh Air
- "Supreme Court Justice Breyer on 'Active Liberty'" Part 1 of Interview, September 29, 2005 NPR's Morning Edition
- "Justice Breyer: The Case Against 'Originalists'" Part 2 of Interview, September 30, 2005 NPR's Morning Edition
- Justice Breyer's appearance on NPR's quiz show Wait Wait... Don't Tell Me March 24, 2007
- WGBH Forum Network: one and a half hours with US Supreme Court Justice of Law Stephen Breyer September 8, 2003.
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