Stephen Breyer

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Stephen Breyer
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San Francisco, California, U.S.}}|death_date = |death_place = Democratic Party (United States)>DemocraticJoanna Hare|1967}}|children = 3Stanford University {{small>(Bachelor of Arts)}}Magdalen College, Oxford {{small>(Bachelor of Arts)}}Harvard University {{small>(LLB)}}}}Stephen Gerald Breyer ({{IPAc-en|ˈ|b|r|aɪ|.|ər}}; born August 15, 1938) is an American lawyer, professor, and jurist serving as an Associate Justice of the Supreme Court of the United States since 1994. Appointed by President Bill Clinton, Breyer is generally associated with the more liberal side of the Court.JOURNAL, Kersch, Ken, 2006, Justice Breyer's Mandarin Liberty,weblink University of Chicago Law Review, 73, 759-822, As his decision to characterize both the New Deal and Warren Courts as centrally committed to democracy and 'active liberty' makes clear, Justice Breyer identifies his own constitutional agenda with that of these earlier courts, and positions himself, in significant respects, as a partisan of midcentury constitutional liberalism., bot: unknown,weblink December 26, 2017, mdy-all, 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 for Antitrust, assistant special prosecutor on the Watergate Special Prosecution Force in 1973, and serving on the First Circuit Court of Appeals from 1980 to 1994.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 in a manner that encourages popular participation in governmental decisions.

Early life and education

Breyer was born in San Francisco, California, the son of Anne A. (née Roberts) and Irving Gerald Breyer,weblink" title="">Genealogy records, Retrieved October 26, 2007 and raised in a middle-class Jewish family. Irving Breyer was legal counsel for the San Francisco Board of Education.Oyez Bio. Retrieved March 21, 2007 Both Breyer and his younger brother, Charles, who is a federal district judge, are Eagle Scouts of San Francisco's Troop 14.BOOK, Townley, Alvin,weblink Legacy of Honor: The Values and Influence of America's Eagle Scouts, St. Martin's Press, New York, 56–59, 0-312-36653-1, December 29, 2006, 2007, December 26, 2006, WEB, Ray, Mark, 2007,weblink What It Means to Be an Eagle Scout, Scouting (magazine), Scouting, Boy Scouts of America, January 5, 2007, Breyer's paternal great-grandfather emigrated from Romania to the United States, settling in Cleveland, where Breyer's grandfather was born.BOOK, Elinor Slater & Robert Slater, Great Jewish Men, Jonathan David Publishers Inc, January 1996, 73, 9780824603816, 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 tournaments, including against future California governor Jerry Brown and future Harvard Law School professor Laurence Tribe.Oyez Bio. Retrieved March 21, 2007 (For Brown; need cite for Tribe)Breyer received a Bachelor of Arts degree in Philosophy from Stanford University, a Bachelor of Arts from Magdalen College, Oxford in PPE as a Marshall Scholar,BOOK,weblink Serial No. J-103-64, U.S. Government Printing Office, 1995, 01-6-046946-5, Washington, D.C., 24, and a Bachelor of Laws from Harvard Law School. He is also fluent in French.WEB,weblink Inaugural D.C. French Festival launches sans the Freedom Fries, Washington Life Magazine, October 12, 2006, August 30, 2010, In 1967, he married the Joanna Freda Hare, a psychologist and member of the British aristocracy, as 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.[{{SCOTUS URL|about/biographies.aspx}} The Justices of the Supreme Court]. Retrieved April 6, 2012

Legal career

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 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.Thierer, Adam (December 21, 2010) Who'll Really Benefit from Net Neutrality Regulation?, CBS NewsBreyer was a lecturer, assistant professor, and law professor at Harvard Law School starting in 1967. He taught there 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.weblink" title="">The dilemmas of risk regulation â€“ Breaking the Vicious Circle by Stephen Breyer, by Sheila Jasanoff. Issues in Science and Technology, Spring 1994. 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.WEB,weblink Tulane Law School - Study Abroad,, June 16, 2011, February 14, 2012,

Judicial career

U.S. Court of Appeals (1980–1994)

{{external media | width = 210px | float = right | headerimage=
| video1 = Justice Stephen Breyer: The Court And The World, 1:14:57, WGBH Forum NetworkWEB, Stephen Breyer: The Court and the World, WGBH Educational Foundation, WGBH Forum Network, November 6, 2015,weblink April 9, 2015, }}
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, to a new seat established by 92 Stat. 1629, and the United States Senate confirmed him on December 9, 1980, by an 80–10 vote.NEWS, Sharp Questions for Judge Breyer,weblink The New York Times, July 10, 2004, March 8, 2008, He received his commission on December 10, 1980. He served as Chief Judge from 1990 to 1994. 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.NEWS, Justice Breyer Should Recuse Himself from Ruling on Constitutionality of Federal Sentencing Guidelines, Duke Law Professor Says,weblink Duke University News, September 28, 2004, yes,weblink" title="">weblink July 31, 2012, mdy-all, His service on the First Circuit terminated on August 2, 1994, due to 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.NEWS, Richard, Berke, The Overview; Clinton Names Ruth Ginsburg, Advocate for Women, to Court,weblink The New York Times, June 15, 1993, 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.

Judicial philosophy

In general

{{further information|Purposive approach}}Breyer's pragmatic 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".JOURNAL, Sunstein, Cass R., Justice Breyer's Democratic Pragmatism,weblink The Yale Law Journal, May 2006, 115, 7, 1719–1743, 10.2307/20455667, bot: unknown,weblink" title="">weblink July 4, 2017, mdy-all, 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".WEB, Justice Breyer Favors 'Less Literal' Readings,weblinkweblink" title="">weblink yes, May 27, 2012,, February 9, 2006, September 16, 2010, Breyer has consistently voted in favor of abortion rights,NEWS, Benjamin, Wittes, Memo to John Roberts: Stephen Breyer, a cautious, liberal Supreme Court justice, explains his view of the law,weblink The Washington Post, September 25, 2005, Stenberg v. Carhart, {{ussc|530|914|2000}}. 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.Transcript of Discussion Between Antonin Scalia and Stephen Breyer {{Webarchive|url= |date=April 4, 2007 }}. AU Washington College of Law, Jan. 13. Retrieved March 21, 2007NEWS, Deborah, Pearlstein, Who's Afraid of International Law,weblink American Prospect Online, April 5, 2005, March 21, 2007,weblink" title="">weblink April 7, 2005, yes, Roper v. Simmons, {{ussc|543|551|2005}}; Lawrence v. Texas, {{ussc|539|558|2003}}; Atkins v. Virginia, {{ussc|536|304|2002}}. 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.NEWS, Paul, Gewirtz, Golder, Chad, So Who Are the Activists?,weblink The New York Times, July 6, 2005, March 23, 2007, 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.Blakely v. Washington, {{ussc|542|296|2004}}. In many other areas on the Court, too, Breyer's pragmatism was considered the intellectual counterweight to Scalia's textualist philosophy.NEWS, Kathleen M., Sullivan, Consent of the Governed,weblink The New York Times, February 5, 2006, 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.NEWS, Dalia, Lithwick, Justice Grover Versus Justice Oscar,weblink Slate, December 6, 2006, March 19, 2007, 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.NEWS, Interview with Nina Totenberg,weblink NPR, September 30, 2005, March 19, 2007, 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.Sunstein at 12 ("Breyer thinks that as compared with a single-minded focus on literal text, his approach will tend to make the law more sensible, almost by definition. He also contends that it 'helps to implement the public's will and is therefore consistent with the Constitution's democratic purpose.' Breyer concludes that an emphasis on legislative purpose 'means that laws will work better for the people they are presently meant to affect. Law is tied to life; and a failure to understand how a statute is so tied can undermine the very human activity that the law seeks to benefit' (p. 100).")

Active Liberty

Breyer expounded his judicial philosophy in 2005 in (Active Liberty|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.NEWS, Mark, Feeney, Author in the Court: Justice Stephen Breyer's New Book Reflects His Practical Approach to the Law,weblink Boston Globe, October 3, 2005, 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 â€“ "positive liberty" â€“ 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,WEB,weblink PDF, Democratizing the Constitution, October 26, 2007, Berkowitz, Peter, 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, 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.Sunstein, pg. 7, citing Lori Ringhand, "Judicial Activism and the Rehnquist Court", available on and Cass R. Sunstein and Thomas Miles, "Do Judges Make Regulatory Policy? An Empirical investigation of Chevron", University of Chicago Law Review 823 (2006). 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."NEWS, Jeffrey, Toobin, Breyer's Big Idea,weblink The New Yorker, October 31, 2005, 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.WEB, Pakaluk, Maximilian, Chambered in a 'Democratic Space'. Justice Breyer explains his Constitution, National Review, March 13, 2006,weblinkweblink" title="">weblink yes, March 18, 2006, October 31, 2007,

Other books

In 2010, Breyer published a second book, Making Our Democracy Work: A Judge's View.({{ISBN|978-0307269911}}); NEWS, David, Fontana, Stephen Breyer's "Making Democracy Work", reviewed by David Fontana,weblink The Washington Post, October 3, 2005, October 8, 2010, 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.Stephen Breyer, Making Our Democracy Work: A Judge's View 74 (2010). 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.AV MEDIA, Stephen Breyer, Antonin Scalia, Jan Crawford Greenburg (moderator), 2006-12-05, A conversation on the constitution: perspectives from Active Liberty and A Matter of Interpretation, Video, Capital Hilton Ballroom - Washington, D.C., The American Constitution Society; The Federalist Society,weblink 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, Sept. 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.NEWS, Witt, John Fabian, Stephen Breyer’s ‘The Court and the World’,weblink The New York Times, September 14, 2015, WEB, The Court and the World: American Law and the New Global Realities,weblink Penguin Random House, October 27, 2015,

Other views

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 controversyNagraj, Neil (January 28, 2010) "Justice Alito mouths 'not true' when Obama blasts Supreme Court ruling in State of the Union address", New York Daily News over Justice Samuel Alito's reaction to President Barack 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:


In 2007, Breyer was honored with the Distinguished Eagle Scout Award by the Boy Scouts of America.JOURNAL, Distinguished Eagle Scout Award, Scouting, November â€“ December 2007, 10, 2007,weblink November 1, 2007,

See also



Further reading

External links

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