Breyer, Stephen

▪ 1995

      In recent years, nominations to the U.S. Supreme Court have often been fraught with controversy, with partisan politics taking the place of well-reasoned consideration of the potential justice's merits. Democrats and Republicans alike have accused each other of attempting to politicize the judiciary, and confirmation hearings have sometimes degenerated into ad hominem attacks instead of explorations of judicial philosophy. Pres. Bill Clinton's nomination of Stephen Breyer in 1994 to fill the seat of retiring Justice Harry Blackmun appeared to be an effort to break this cycle. Breyer was viewed as a moderate, acceptable to both Republicans and Democrats. His formidable intellect and legal acumen were tempered by a generous dose of pragmatism unencumbered by any pronounced ideological position, giving him a reputation as a consensus builder. Breyer's supporters expected him to reach out to the centrist wing of the court, as well as providing a moderate counterweight to the conservative constitutional formalism of the court's current intellectual leader, Justice Antonin Scalia.

      Stephen Gerald Breyer was born on Aug. 15, 1938, in San Francisco. He received an undergraduate degree from Stanford University and spent two years as a Marshall scholar at Oxford before attending Harvard Law School. Following his graduation from Harvard in 1964, Breyer clerked for Supreme Court Justice Arthur Goldberg, where he further developed his philosophy of neopragmatism and helped write the landmark right-to-privacy decision in Griswold v. Connecticut. Breyer then spent three years as a special assistant to the U.S. assistant attorney general before returning to Harvard as a professor.

      At Harvard, Breyer wrote extensively on antitrust and administrative law. He also served as an assistant special prosecutor (1973) during the Watergate hearings. In 1979 he was appointed chief counsel to the Senate Judiciary Committee, where he helped draft legislation on fair-housing law and deregulation of the airline and trucking industries, as well as making the acquaintance of Sen. Edward Kennedy, who was to become one of his strongest supporters. In 1980, with bipartisan support, Breyer was confirmed as judge of the U.S. Court of Appeals for the First Circuit. As a federal judge, Breyer gained a reputation as a centrist. His pragmatism took precedence over any broad constitutional vision, and his reliance on empirical data in shaping his opinions led critics to claim that his judicial philosophy was determined more by economic considerations and cost-benefit analysis than by concern for people. However, Breyer himself stated that he was skeptical about the benefits of economic pragmatism outside antitrust and regulatory law, and he demonstrated a passion for First Amendment rights. Breyer also served on the U.S. Sentencing Commission, created to determine how severely federal crimes should be punished.

      Breyer was confirmed with little difficulty. His freedom from ideological bias assuaged conservative fears of a doctrinaire liberal on the court, while liberals were eager to support a moderate whose intellectual firepower might match Scalia's. Observers of the court predicted that Breyer would continue his role as a consensus builder, drawing the court toward his own brand of pragmatism and moderation. (JOHN H. MATHEWS)

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▪ United States jurist

in full  Stephen Gerald Breyer 

born August 15, 1938, San Francisco, California, U.S.

      associate justice of the Supreme Court of the United States from 1994.

      Breyer received bachelor's degrees from Stanford University (1959) and the University of Oxford (1961), which he attended on a Rhodes scholarship, and a law degree from Harvard University (1964). In 1964–65 he clerked for U.S. Supreme Court Justice Arthur J. Goldberg (Goldberg, Arthur J.). He taught law at Harvard University from 1967 to 1994.

      Breyer took leave from Harvard in 1973 to serve as an assistant prosecutor in the Watergate (Watergate Scandal) investigation. In 1974–75 he was special counsel to the U.S. Senate Judiciary Committee, and from 1979 to 1981 he was its chief counsel, working on projects ranging from the federal criminal code to airline and trucking deregulation. In 1980 he was appointed by President Jimmy Carter (Carter, Jimmy) to the United States Court of Appeals for the First Circuit, becoming its chief judge in 1990. In 1994 President Bill Clinton (Clinton, Bill) nominated Breyer to fill the seat of the retiring justice Harry Blackmun (Blackmun, Harry A.). As a pragmatic moderate acceptable to Democrats and Republicans alike, Breyer was easily confirmed by the Senate (87–9).

      More liberal than most other members of the court, Breyer was highly regarded, even by conservatives, for his analytic rather than ideological approach to the Constitution. In the area of civil rights, Breyer consistently sided with efforts to dismantle historical and symbolic vestiges of racial segregation (segregation, racial). In Bush (Bush v. Gore) v. Gore (2000; see United States: The Bill Clinton administration (United States)), which settled that year's controversial presidential election between George W. Bush (Bush, George W.) and Al Gore (Gore, Al), he issued a passionate yet precise dissent. He argued that, by failing to refuse the case under the rubric of the political-question doctrine (which the court often had invoked in order to sidestep controversial issues that it thought were best handled by the legislature) and by deciding the case on the basis of equal protection (i.e., it ruled that manual recounts of certain votes in Florida violated the rights of voters whose ballots were not manually reviewed), the court had undermined its integrity and authority. In McConnell v. Federal Election Commission (2003), he joined a majority in holding that limits on campaign advertisements and contributions imposed by the Bipartisan Campaign Reform Act of 2002, popularly known as the McCain-Feingold Act, did not violate the First Amendment's guarantee of freedom of speech.

      Breyer is the author of Breaking the Vicious Circle: Toward Effective Risk Regulation (1993), an analysis of government environmental and health regulations, and Active Liberty: Interpreting Our Democratic Constitution (2005), an outline of his judicial philosophy.

Brian P. Smentkowski

 

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