Stephen Gerald Breyer ( ; born August 15, 1938) is an American lawyer, jurist, and legal scholar who is serving as an associate justice of the Supreme Court of the United States
. He was nominated by President Bill Clinton
on May 17, 1994, and has served since August 3, 1994.
After attending Stanford University
, Breyer attended the University of Oxford
as a Marshall Scholar
and then studied law at Harvard Law School
. After 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 administrative law
, writing a number of influential textbooks 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
and assistant special prosecutor on the Watergate Special Prosecution Force
in 1973. He also served on the First Circuit Court of Appeals
from 1980 to 1994.
In his 2005 book ''Active Liberty
'', Breyer made his first attempt to systematically communicate his views on legal theory, arguing that the judiciary should seek to resolve issues in a manner that encourages popular participation in governmental decisions. The last Clinton nominee active on the court, he is generally associated with the Supreme Court's more liberal
Early life and education
Breyer was born on August 15, 1938, in San Francisco
, the son of Anne A. (née Roberts) and Irving Gerald Breyer, and raised in a middle-class Jewish
family. Irving Breyer was legal counsel for the San Francisco Board of Education
. Stephen Breyer and his younger brother, Charles
, a federal district judge
, are both Eagle Scouts
of San Francisco's Troop 14.
Breyer's paternal great-grandfather emigrated from Romania
to the United States, settling in Cleveland
, where Breyer's grandfather was born.
Breyer graduated from Lowell High School
in 1955. At Lowell, he was a member of the Lowell Forensic Society
d regularly in high school tournaments, including against future California governor Jerry Brown
and future Harvard Law School professor Laurence Tribe
Retrieved March 21, 2007 (For Brown; need cite for Tribe)
After high school, Breyer attended Stanford University
, where he majored in philosophy
, was inducted into Phi Beta Kappa
and graduated in 1959 with a Bachelor of Arts
degree with highest honors.
He was awarded a Marshall Scholarship
which he used to study philosophy, politics, and economics
at Magdalen College, Oxford
. He then returned to the United States to attend Harvard Law School
, where he was a member of the ''Harvard Law Review
'' and graduated in 1964 with a Bachelor of Laws
degree ''magna cum laude
Breyer spent 8 years in the United States Army Reserve
including 6 months on active duty in the Army Strategic Intelligence
. He reached the rank of corporal
and was honorably discharged
In 1967, Breyer married Joanna Freda Hare, a psychologist
and member of the British aristocracy
, the youngest daughter of John Hare, 1st Viscount Blakenham
. They have three adult children: Chloe, an Episcopal
priest and author of ''The Close''; Nell; and Michael.
[The Justices of the Supreme Court Retrieved April 6, 2012]
Breyer served as a law clerk
to Associate Justice Arthur Goldberg
during the 1964 term (list
), and served briefly as a fact-checker for the Warren Commission
. He worked in the U.S. Department of Justice
's Antitrust Division
as a special assistant to its Assistant Attorney General
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 was a lecturer, assistant professor, and law professor at Harvard Law School starting in 1967. He was a professor at Harvard Law until 1980, and held a joint appointment 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
U.S. Court of Appeals (1980–1994)
In the last days of President Jimmy Carter
's administration, on November 13, 1980, after he had been defeated for reelection, Carter nominated Breyer to the First Circuit, to a new seat established by , and the United States Senate
confirmed him on December 9, 1980, by an 80–10 vote. He received his commission on December 10, 1980. From 1980 to 1994, Breyer was a judge on the U.S. Court of Appeals for the First Circuit
; he was the court's Chief Judge
from 1990 to 1994.
One of his duties as chief judge was to oversee the design and construction of a new federal courthouse for Boston
, beginning an avocational interest in architecture and the Pritzker Architecture Prize
Breyer 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 he played a key role in reforming federal criminal sentencing procedures, producing the Federal Sentencing Guidelines
, which were formulated to increase uniformity in sentencing.
Breyer's service on the First Circuit terminated on August 2, 1994, upon his elevation to the Supreme Court.
Supreme Court (1994–present)
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 17, 1994. Breyer was confirmed by the Senate on July 29, 1994, by an 87 to 9 vote, and received his commission on August 3.
He 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. Since Ginsburg's death in September 2020, Breyer has been the oldest incumbent Supreme Court Justice.
On June 29, 2020, Breyer wrote the plurality opinion in June Medical Services v. Russo
. The ruling struck down Louisiana's abortion law requiring any doctor who performed abortions to have admitting privileges at a hospital within 30 miles. Breyer reaffirmed the "benefits and burdens" test he had created in Whole Woman's Health v. Hellerstedt
, which struck down a nearly identical abortion law in Texas.
In 2015, Breyer dissented in ''Glossip v. Gross
'', which held by a 5–4 vote that prisoners challenging their executions must provide a "known and available" execution method before challenging their method of execution. In a dissent joined by Ginsburg, Breyer questioned the constitutionality of the death penalty itself. He wrote, "For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question." In July 2020, Breyer reiterated this position, writing, "As I have previously written, the solution may be for this Court to directly examine the question whether the death penalty violates the Constitution."
In ''Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.
'' (2000), Breyer was in the 7–2 majority that held that people who use the North Tyger River for recreational purposes but could not do so due to pollution had standing to sue industrial polluters.
On April 23, 2020, Breyer wrote the majority opinion in ''County of Maui v. Hawaii Wildlife Fund
''. The Court ruled that the County of Maui must have a permit under the Clean Water Act
in order to release groundwater pollution
into the ocean. Although the ruling was less broad than the 9th circuit's ruling, environmentalist groups saw the ruling as a win and an affirmation of the Clean Water Act.
On July 31, 2020, Breyer dissented when the Supreme Court, in a 5–4 decision, refused to lift a stay on the 9th circuit ruling that halted construction of the wall at the U.S.-Mexico border. The Sierra Club argued that the wall would harm the environment unduly, including threatening wildlife and changing the flow of water in the Sonoran Desert. Breyer wrote, "The Court’s decision to let construction continue nevertheless, I fear, may 'operat
in effect, as a final judgment.'" Ginsburg, Sotomayor, and Kagan joined his dissent.
On March 4, 2021, Breyer dissented in United States Fish and Wildlife Serv. v. Sierra Club, Inc.
, joined only by Sotomayor. The case concerned the Sierra Club's request under the Freedom of Information Act
(FOIA) for "draft opinions" concerning rules governing underwater structures that are used to cool industrial equipment. The Sierra Club argued that it had the right to access the documents. The majority opinion limits environmental groups' ability to obtain government documents under FOIA. Breyer wrote in his dissent, "Agency practice shows that the Draft Biological Opinion, not the Final Biological Opinion, is the document that informs the EPA of the Services’ conclusions about jeopardy and alternatives and triggers within the EPA the process of deciding what to do about those conclusions. If a Final Biological Opinion is discoverable under FOIA, as all seem to agree it is, why would a Draft Biological Opinion, embodying the same Service conclusions (and leaving the EPA with the same four choices), not be?”
On April 28, 2004, Breyer dissented in ''Vieth v. Jubelirer
'', in which the Court held that partisan gerrymandering is a non-justiciable claim. Breyer wrote in his dissent, "Sometimes purely political 'gerrymandering' will fail to advance any plausible democratic objective while simultaneously threatening serious democratic harm. And sometimes when that is so, courts can identify an equal protection violation and provide a remedy." In 2006, Breyer was in a 5–4 majority holding that District 23 of the 2003 Texas redistricting
violated the Voting Rights Act due to vote dilution
. Along with Justice John Paul Stevens
, Breyer would also have ruled in favor of plaintiffs' claims that Texas's statewide plan was an unconstitutional partisan gerrymander. In June 2019, Breyer dissented in ''Rucho v. Common Cause
'', in which the Supreme Court decided 5–4 that gerrymandering is a non-justiciable claim.
Breyer joined Ginsburg's dissent in ''Shelby County v. Holder
''. A 5–4 majority ruled that Section 4(b) of the Voting Rights Act
is unconstitutional. Breyer joined another dissent by Ginsburg in ''RNC v. DNC
'', which overturned a lower court's extension of a voting deadline in the Wisconsin primary elections. The lower court had extended the deadline so that people who had not yet received mail-in ballots by April 7 could vote by mail in the wake of the COVID-19
pandemic. Breyer dissented in a similar Wisconsin case in October; the petitioners had asked the court to require Wisconsin to count mail-in ballots received up to six days after Election Day, and the court, with Breyer, Sotomayor, and Kagan dissenting, refused the petitioners' request to extend the deadline.
approach to the law "will tend to make the law more sensible", according to Cass Sunstein
, who added that 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 onstitution's
text, history and tradition", he looks more closely to the "purpose and consequences".
Breyer has consistently voted in favor of abortion
one of the most controversial areas of the Supreme Court's docket. He has also defended the Court's use of foreign law and international law
as persuasive (but not binding) authority in its decisions. Breyer is also recognized to be deferential to the interests of law enforcement and to legislative judgments in the Court's First Amendment
rulings. He has demonstrated a consistent pattern of deference to Congress, voting to overturn congressional legislation at a lower rate than any other 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 was considered the intellectual counterweight to Scalia's textualist
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. He has noted that only the last two differentiate him from textualists 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.
Court clerks described him as the "most effective emissary to the Court's right wing".
Breyer expounded 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 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 calls this "modern liberty". The second Berlinian concept – "positive liberty
" – is the "freedom to participate in the government". In Breyer's terminology, this is the "active liberty" the judge should champion. Having established what "active liberty" is, and positing the primary importance (to the Framers) of this concept over the competing idea of "negative liberty", Breyer makes a predominantly utilitarian
case for rulings that give effect to the democratic intentions
of the Constitution
The book's historical premises and practical prescriptions have been challenged. For example, according to Peter Berkowitz
, the reason that "
e 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 egative
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, Cass Sunstein has defended Breyer, noting that of the nine justices on the Rehnquist Court, Breyer had 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 this 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 published a second book, ''Making Our Democracy Work: A Judge's View''. There, Breyer argued that judges have six tools they can use to determine a legal provision's proper meaning: (1) its text; (2) its historical context; (3) precedent
; (4) tradition; (5) its purpose; and (6) the consequences of potential interpretations. Textualists
, like Scalia
, only feel comfortable using the first four of these tools; while pragmatists, like Breyer, believe that "purpose" and "consequences" are ''particularly'' important interpretative tools.
Breyer cites several watershed moments in Supreme Court history to show why the consequences of a particular ruling should always be in a judge's mind. He notes that President Jackson
ignored the Court's ruling in ''Worcester v. Georgia
'', which led to the Trail of Tears
and severely weakened the Court's authority.
[Jeff Shesol. ]
Evolving Circumstances, Enduring Values
', N.Y. Times, September 17, 2010.
He also cites the ''Dred Scott
'' decision, an important precursor to the American Civil War
When the Court ignores the consequences of its decisions, Breyer argues, it can lead to devastating and destabilizing outcomes.
In 2015, Breyer released a third book, ''The Court and the World: American Law and the New Global Realities'', examining the interplay between U.S. and international law and how the realities of a globalized world need to be considered in U.S. cases.
In an interview on ''Fox News Sunday
'' on December 12, 2010, Breyer said that based on the values and the historical record, the Founding Fathers of the United States
never intended guns to go unregulated and that history supports his and the other dissenters' views in ''District of Columbia v. Heller
''. He summarized:
In the wake of the controversy over Justice Samuel Alito
to President Barack Obama
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:
In 2007, Breyer was honored with the Distinguished Eagle Scout Award
by the Boy Scouts of America
In 2018, he was named to chair of the Pritzker Architecture Prize
jury, succeeding previous chair Glenn Murcutt
* Bill Clinton Supreme Court candidates
* Demographics of the Supreme Court of the United States
* 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
* Stephen Breyer, The Federal Sentencing Guidelines and Key Compromises on Which They Rest
', 17 Hofstra L. Rev. 1 (1988)
* Ronald Collins,
(Concurring Opinions Blog, February 28, 2014
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, 2003Description (archived)Video
Supreme Court Associate Justice Nomination Hearings on Stephen Gerald Breyer in July 1994
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