Stephen Breyer

President Clinton's second nomination to the United States Supreme Court is a man of difficult descriptions. Contradictory in many ways, Stephen Gerald Breyer defied simple classification, as a man and as a judge. The first son of a middle-class San Francisco Jewish family, Breyer eventually married into a well-established family of the British aristocracy. Though he possessed enormous wealth, he nonetheless lived a relatively simple life, riding the bus to work and mowing his own lawn. His peculiarities did not end with his personal life, but extended to his bench practice as well. As an appeals court judge, Breyer upheld parental notification for teenage abortions and rejected federal guidelines that prevented health officials at public clinics from advising abortion. A strong proponent of cutting government regulation, Breyer often justified his position, not as beneficial for business, but as being in the interest of the people. This sentimentalism could be viewed cynically. But in Breyer's case, however, these sentiments are genuine and reflect a pragmatic view with many mismatched results.

=Life before the Supreme Court= Stephen Gerald Breyer was born on August 15, 1938 in San Francisco, California. Only one generation from poverty, Breyer's middle-class family lived frugally. Breyer's father, Irving Breyer, worked as a lawyer and legal counsel for the San Francisco Board of Education. His mother, Anne, spent most of her time as a volunteer for the San Francisco Democratic Party and for the League of Women Voters. Although Breyer's parents sent him and his brother to religious school, the family did not observe their Jewish faith strictly. Instead, his parents pushed Breyer towards academic success. Anne Breyer also encouraged young Stephen to be well-rounded and avoid becoming overly bookish. She insisted that Breyer play sports even though he demonstrated little athletic ability. At a camp one summer, Breyer won the nickname Blister King for his tender feet. Still, Stephen Breyer persevered and achieved modest success. At age 12, he attained Eagle Scout and became known as the "troop brain."

Breyer and his brother attended academically prestigious Lowell High School, a magnet academy of the San Francisco public school system. In high school, Breyer participated actively in the debate team and competed against other notables such as future California governor Jerry Brown. School came easily for Breyer and he completed high school with only one B. By the time of his graduation, he accumulated many debating, math, and science awards and his class elected him as the "most likely to succeed." Both Harvard and Stanford accepted Breyer, and though Breyer preferred the former, he bowed to his parent's wishes and chose the latter. His mother had hoped to steer Breyer away from a narrow academic focus. At Stanford, Breyer achieved his mother's wishes more than she would have liked perhaps, when he was arrested for underage drinking. After Stanford, Breyer won a Marshall Scholarship to attend Oxford. There he picked up an interest in economics, which influenced his perspective as a judge. Breyer studied law at Harvard where he distinguished himself as an editor of the law review.

Justice Arthur Goldberg selected Breyer as his clerk for the 1964-65 term of the Supreme Court. Breyer helped Goldberg draft an opinion in the landmark right-to-privacy case, Griswold v. Connecticut. Although Goldberg's opinion argued for a right to privacy rooted in the Ninth Amendment, little evidence tied this belief to Breyer. After Breyer completed his clerkship at the Supreme Court, he worked in the Justice Department's anti-trust division for several years. During this time, in 1967, Breyer met his future wife, Joanna Hare, the daughter of England's Lord John Blakenham. At the time, Hare worked as an assistant in the Washington office of London's Sunday Times. Breyer married Joanna in England in an Anglican ceremony, carefully edited to remove references to Christ. His marriage greatly increased his personal wealth and Breyer soon left the Justice Department and returned to Harvard to teach regulatory law. His wife became a psychologist at Boston's Dana Farber Clinic. The Breyers enjoyed a comfortable life among the Cambridge intellectual elite and raised two daughters, Chloe and Nell, and a son, Michael. Breyer worked for a few months as an aide to Archibald Cox in the Watergate prosecutions. In 1974, Breyer accepted Massachusetts Senator Kennedy's invitation to work as legal counsel to the Judiciary Committee. In his time there, Breyer established a reputation for competence and fairness among the senators which may partially explain his smooth confirmation to the High Court years later.

During his tenure as counsel for the Judiciary Committee, Breyer worked hard to end governmental regulation of the airline industry. Breyer's complicated economic solution and efforts resulted in airline deregulation. Breyer's position and dedication already won him enough Republican supporters so that he received a seat on the federal appeals court with Ronald Reagan as president. Years later, Breyer once again influenced policy when he joined the U.S. Sentencing Commission in 1985. Sentencing guidelines became one of this century's biggest and most controversial debates in criminal justice. Breyer's work served as the basis for praise and criticism years later during his nomination. His supporters pointed to his hard work and told stories of the intensely focused Breyer forgetting to change shirts. Another story claimed that Breyer, so concentrated on his work, failed to notice that his co-workers had planted goldfish in his water cooler. His detractors, on the other hand, emphasized Breyer's technocratic tendencies and his apparent lack of focus for the common people. Among his opponents, most accused him of siding too often with the big businesses over the people in his history as a judge. Others criticized his sentencing scheme, which they alleged to have racially disparate impacts.

Judicial Philosophy
On the bench, Breyer generally takes a pragmatic approach to constitutional issues, interested more in producing coherence and continuity in the law than in following doctrinal, historical or textual strictures. He has said that while some of his colleagues "emphasize language, a more literal reading of the text, history and tradition," he looks more closely to the "purpose and consequences" of the text.

Breyer most frequently sides with Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg, generally acknowledged as the liberal wing of the court. He 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 latter two differentiate him from strict constructionists on the Supreme Court such as Justice Antonin Scalia. Breyer argues that these sources are necessary, however, and in the former case (purpose, or legislative intent), can in fact provide greater objectivity in legal interpretation than looking merely to what can often be 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 Constitution. 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 which 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 9 justices on the late Rehnquist Court, Breyer in fact 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 democratic-inspired) state laws to be overturned in favor of civil rights.

=Nomination and Life on the Court= Still, Breyer's nomination proceeded relatively unopposed. President Clinton considered Breyer originally in his first nomination, but found Breyer dry and unfriendly, so he opted for Ruth Bader Ginsburg instead. In the second time around, Clinton picked Breyer. Breyer's supporters convinced the president that he had misjudged Breyer and urged Clinton to give him another chance. Breyer's appearance before the Senate Judiciary Committee, which he once served, went off without a hitch. Only Senator Howard Metzenbaum pushed him on his pro-business stand, although Metzenbaum had gone on record for Breyer's nomination. Breyer's substantial investments posed potential conflict-of-interest problems, but the issue quickly defused. Breyer followed the path of his contemporary judges in refusing to answer questions relating to specific issues, arguing that he did not wish to bias future cases. Thus with powerful supporters in Senators Hatch and Kennedy and little opposition, Breyer became the 108th Supreme Court Justice in 1994.