Breyer, Stephen Gerald

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Breyer, Stephen Gerald

As an associate justice of the U.S. Supreme Court, Stephen Breyer is regarded as a judicial moderate. The former law professor and Senate counsel locates his approach to the law in a deep pragmatism: He distrusts broad legal theory, endorses judicial restraint, and wants his legal opinions to be clear enough for a high-school student to read. His reputation for forging consensus earned him a nomination to the U.S. Court of Appeals for the First Circuit in 1980, on which he later served as chief of the court from 1990 to 1994. During the 1980s, he also helped to shape a far-reaching and controversial revision of criminal sentencing guidelines. In April 1994, President bill clinton nominated Breyer to replace the outgoing U.S. Supreme Court associate justice harry a. blackmun, and his appointment was confirmed in July 1994.

Breyer was born on August 15, 1938, in San Francisco. His attorney father and politically active mother set him on a course for achievement. He earned an A.B. from Stanford University in 1959, followed by a B.A. in philosophy and economics at Oxford University in England. He received a law degree from Harvard Law School in 1964, graduating magna cum laude. Breyer clerked for U.S. Supreme Court Justice arthur j. goldberg during the 1964–65 term and helped to write the justice's opinion in the landmark right-to-privacy case, griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).

In 1967, Breyer embarked on dual careers in academia and government. He taught courses in antitrust, administrative law, and economic regulation at his alma mater, Harvard Law School. In the same year, he was appointed to the office of the Assistant U.S. Attorney General. He gained further prominence in 1974 by serving on the Watergate Special Prosecution Force, which pursued the possibility of impeaching President richard m. nixon. As a senior aide to Senator edward m. kennedy (D-Mass.) in the 1970s and chief counsel to the Senate Judiciary Committee from 1979 to 1980, Breyer crafted deregulation of the airline and trucking industries while also working on prison reform, judicial confirmations, and fair-housing law. He became known for an empirical approach to law, one that was less swayed by ideology than by careful balancing of facts.

"As an appellate judge, I set … a goaloftrying to write my opinions so that a high school student … [can] understand the law, as revealed in that opinion—both in terms of basic fairness and in terms of helping people lead decent, productive lives."
—Stephen G. Breyer

By 1980, Breyer was well respected by liberals, moderates, and conservatives. Although he had been an aide to the liberal Senator Kennedy, he was adept at promoting agreement between such political opposites as Kennedy and Senator Orrin G. Hatch (R-Utah). This record served Breyer well when President jimmy carter nominated him to the U.S. Court of Appeals for the First Circuit. After Carter lost the 1980 election to ronald reagan, the Republicans scrapped all but one of Carter's pending judicial appointments, as is common in an incoming administration. Breyer's appointment was allowed to go through.

Breyer's record on the Court of Appeals was generally moderate. In a 1983 environmental regulatory case, he blocked the Interior Department from auctioning oil-drilling rights in the North Atlantic without giving ample consideration to alternative proposals (Commonwealth of Massachusetts v. Watt, 716 F. 2d 946 [1st Cir. 1983]). In the area of Abortion, he voted to uphold a Massachusetts parental-notification law (Planned Parenthood of Massachusetts v. Bellotti, 868 F. 2d 459 [1st Cir. 1983]). But he joined the majority on the First Circuit in striking down the george h.w. bush Administration's ban on abortion counseling at family planning clinics funded by the federal government (Commonwealth of Massachusetts v. Secretary of Health and Human Services, 899 F. 2d 53 [1st Cir. 1990]).

Appointed to the U.S. Sentencing Commission in 1985, Breyer undertook the job of revising criminal-sentencing guidelines. Against strong opposition, he persuaded the other seven judges on the panel to base the guidelines on national averages. The changes, which took effect in 1987, have proven controversial. Critics charge that they have too tightly bound judges and produced inequitable results for minority defendants. In response, Breyer has argued that the guidelines have built-in flexibility that allows judges to influence the Sentencing Commission in future revisions.

President Clinton twice sought Breyer for appointment to the U.S. Supreme Court. Although close to choosing him in 1993, Clinton instead selected Ruth Bader Ginsburg after Breyer became the target of criticism for late payments on Social Security taxes for a part-time housekeeper. When a second vacancy on the Court opened in 1994, Clinton returned to Breyer. The president compared his intellectual vigor to that of Judge learned hand, the renowned appellate judge of the 1920s and 1930s. Minor opposition met the nomination. Critics questioned whether Breyer's 1993 book Breaking the Vicious Circle: Toward Effective Risk Regulation went too far in attacking government regulation. Others raised doubts about his investment judgment in losing money in the early 1990s in the Lloyd's of London scandal, Britain's largest insurance disaster ever. At the same time, however, he received praise for his past achievements and for a strong commitment to First Amendment rights. The Senate easily confirmed his appointment on July 29, 1994, by a vote of 87–9.

After two years on the Court, Breyer had aligned himself with the Court's moderates. He dissented when the majority struck down a 1990 federal law that prohibited the carrying of handguns outside schools, arguing that protecting schools should fall under Congress's power to regulate interstate commerce (United States v. Lopez, 514 U.S. 549. 115 S. Ct. 1624, 131 L. Ed. 2d 626 [1995]). He also dissented from the Court's ruling in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), which struck down the 1988 Indian Gaming Regulatory Act for violating States' Rights. In a major victory for Gay and Lesbian Rights, Breyer joined the majority in overturning Colorado's Amendment 2, which would have removed all legal protection for homosexuals against discrimination (Romer v. Evans, 116 S. Ct. 1620, 134 L. Ed. 2d 855 [1996]). And in a significant First Amendment decision, Breyer wrote the plurality opinion declaring that the government may not require cable TV operators to segregate and block leased access channels that feature offensive or indecent programming (Denver Area Consortium v. Federal Communications Commission, 116 S. Ct. 2374 [1996]).

Recent Opinions

Justice Breyer's opinions have defied labels such as "conservative" or "liberal." Instead, his opinions continue to reflect his rather centrist approach to most issues. In fact, some observers believe that Breyer represents the ideological center of the court, notwithstanding statistics showing that Breyer tends to side most often with the more "liberal" members of the Court (associate justices John Paul Stevens, Ruth Bader Ginsburg, and david souter) and least often with the more "conservative" members of the Court (Chief Justice william rehnquist and associate justices Antonin Scalia, Sandra Day O'Connor, and anthony kennedy).

Breyer's dissenting opinion in Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L. Ed. 2d 365 (2000), surprised many observers who tend to classify Breyer as "liberal" justice who consistently votes in favor of criminal defendants' rights. In Bond the Court examined the issue of whether the Fourth Amendment's protection against unreasonable searches was violated when a Border Patrol agent, while checking the immigration status of passengers on a bus, squeezed a canvas bag that was located in the compartment above a bus passenger's seat. The passenger admitted that the bag was his and allowed the agent to open it, revealing a "brick" of methamphetamine.

A majority of the court ruled that the search was illegal, noting that the traveler's luggage was a personal "effect" as defined in the Fourth Amendment, and that the passenger exhibited an actual expectation of privacy in that "effect" by using an opaque bag and placing the bag directly over his seat. In his dissent, Justice Breyer criticized what he perceived as the shortsightedness of the majority's opinion, arguing that the court's ruling would lead to a constitutional Jurisprudence of "squeezes," thereby complicating further already complex Fourth Amendment law.

A few days later, Breyer wrote a 5–4 majority opinion that overturned a Nebraska statute criminalizing "partial birth abortions, "a second-trimester procedure in which, according to the statute, a physician "partially delivers vaginally a living unborn child before killing it." Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000). The Nebraska statute violated the Constitution for at least two independent reasons, Breyer wrote.

First, the statute lacked any exception for the preservation of the health of the mother. The Court had previously made clear that a state may promote, but not endanger, a woman's health when it regulates the methods of abortion. Second, Justice Breyer stated, the statute imposed an undue burden on a woman's ability to have an abortion, finding that the Nebraska statute banned an abortion procedure that was used as many as 5,000 times per year in the United States. (Breyer made no finding as to how often the procedure is used in Nebraska.) Breyer refused to revisit the Court's earlier determinations and redeterminations that the federal Constitution offers basic protection guaranteeing women's right to procreative freedom.

In 2002, Breyer wrote a majority opinion clarifying an earlier U.S. Supreme Court decision concerning the constitutionality of civil-commitment procedures for so-called "sexual predators." In Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), the Court had ruled that a convicted sex offender who satisfies the statutory definition of a sexual predator could be involuntarily committed to a mental-health institution following his or her release from prison for the sex offense without violating the Double Jeopardy Clause to the Fifth Amendment of the U.S. Constitution, even if the sex offender is committed based on some of the same evidence that was used earlier to convict him or her. In Hendricks, the Court wrote that the Double Jeopardy Clause applies only to subsequent prosecutions or punishments in criminal proceedings, and the sexual-predator law contemplated commitment by civil proceedings.

In Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002), Breyer wrote a majority opinion that qualified Hendricks by ruling that before a convicted sex offender may be civilly committed as a sexual predator following his or her release from prison, the state must prove that the sex offender lacks some control over his or her behavior. The lack-of-control element, Breyer said, would allow the state to better distinguish between dangerous sexual offenders, whom it seeks to commit through civil proceedings, and other dangerous persons who are more appropriately dealt with through criminal proceedings. The federal Constitution prohibits civil commitment proceedings from becoming a "mechanism" for retribution or general deterrence, Breyer emphasized.

Breyer's most well-known opinion during the last nine years came in a dissenting role in one of the most controversial cases in the history of the U.S. Supreme Court. In Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000), seven justices (including Breyer) concluded that the process devised by the Florida Supreme Court to recount the popular vote in the 2000 presidential election violated the equal protection clause of the Fourteenth Amendment. However, only five justices agreed that there was insufficient time to fashion a remedy that would fairly and lawfully allow the votes of Florida residents to be accurately counted for either Republican Presidential candidate george w. bush of Texas and Democratic candidate albert gore of Tennessee. As a result, the nation's high court effectively ordered the Florida recount to stop, which meant that Bush would be become the forty-third President of the United States, as he was leading in Florida when the U.S. Supreme Court issued its opinion, and Florida's 25 electoral votes were enough for him to win in the Electoral College.

In his dissenting opinion, Justice Breyer proposed sending the case back to Florida's Supreme Court so that it could devise an order for "a constitutionally proper contest" by which to decide the winner. The majority's opinion, Breyer wrote, placed too much emphasis on equal protection and not enough emphasis on the right to vote. Breyer chastised the majority for finding an equal protection violation but offering no remedy to correct it. "An appropriate remedy," Breyer wrote, "would be to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida … and to do so in accordance with a single uniform standard."

Further readings

"Court: 'Animus' in Colo. Gay Law." 1996. National Law Journal 18 (June 3).

"Court Decisions." 1996. National Law Journal 18 (July 15).

Joyce, Walter E. 1996. "The Early Constitutional Jurisprudence of Justice Stephen G. Breyer: A Study of the Justice's First Year on the United States Supreme Court." Seton Hall Constitutional Law Journal 7.

Kersch, Ken I. 2003. "The Synthetic Progressivism of Stephen G. Breyer." Rehnquist Justice: Understanding the Court Dynamic. Edited by Earl M. Maltz. Lawrence: Univ. Press of Kansas.

Lenine, Eric J., and Richard J. Williams Jr. 1994. "Justice Stephen G. Breyer." Seton Hall Constitutional Law Journal 5.

Noble, Kenneth B. 1987. "Same Crime, Same Time (United States Sentencing Commission Guidelines)." Los Angeles Daily Journal 100.

Pierce, Richard J. 1995. "Justice Breyer: Intentionalist, Pragmatist, and Empiricist." Administrative Law Journal of the American University (winter).