The general consensus on Stephen Breyer (born 1938), the 108th member of the United States Supreme Court, is that he has a brilliant legal mind. However, when those same observers try to label him as either a conservative or a liberal, or attempt to figure out how his decisions and opinions will shape the court, there is little agreement. Breyer is considered a centrist, a man who comes to the nation's highest court unlikely to radically transform the institution.
Like President Bill Clinton's other Supreme Court appointment, Ruth Bader Ginsburg, Breyer mirrors his president's political style: he has strong convictions, but he is known as much for his spirit of evenhandedness and compromise as for his passionate views on subjects.
Evidence of Breyer's centrist views became clear during his July, 1994 confirmation hearings before the United States Senate Judiciary Committee. Breyer sailed through the hearings with little rancor from either Republicans or Democrats, and won unanimous approval from the committee. Those hearings were vastly different from the contentious committee meetings that greeted other recent Supreme Court nominees. And, perhaps, Breyer's ability to appease political foes was one of the reasons President Clinton chose him as nominee.
Stephen Gerald Breyer was born on August 15, 1938, in San Francisco. His father was an attorney for the San Francisco School Board and his mother was active in Democratic political circles. Upon his appointment to the court, Breyer was quoted as saying he was moved by the fact that he was able to rise so highly in America considering that his grandfather, a cobbler, came to the country just two generations ago. A brilliant student, Breyer attended Stanford University, choosing it over Harvard at the request of his parents, and graduated as a Phi Beta Kappa member with highest honors. He then studied at Oxford University in England as a prestigious Marshall Scholar. He received his law degree, magna cum laude, from Harvard.
Upon graduation, Breyer became a law clerk for Supreme Court Justice Arthur Goldberg. After a stint at the U.S. Department of Justice between 1965 and 1967, Breyer returned to Cambridge, where he taught law at Harvard. But "he is no stranger to Washington politics, " the Boston Globe noted of him upon his appointment to the Supreme Court. That is because in 1973 he was involved in the biggest political story of the century: Watergate, the scandal that revealed then-President Richard M. Nixon's role in the break-in of Democratic Party headquarters at Washington's Watergate Hotel. Breyer became part of the special prosecutor's force led by his former law professor, Archibald Cox. That job led to the position of assistant special counsel to the Senate Judiciary Committee in 1975. Massachusetts Senator Edward Kennedy, who once chaired the committee, named Breyer as chief counsel in 1979. The Judiciary Committee is the same group that, 19 years later, held hearings and voted on Breyer's confirmation to the Supreme Court. The Boston Globe reported that one reason for Breyer's success before Judiciary was because "most of the lawmakers have longstanding ties to Breyer from his days as the committee's legal counsel."
After the 1980 elections, President Jimmy Carter, who had lost the presidency to Ronald Reagan, made his final judicial appointment before leaving office; he chose Breyer to serve on the U.S. Court of Appeals. Republicans, who could have opposed the nomination and allowed Reagan to pick his own nominee, did not oppose Breyer. In supporting Breyer's nomination to the Supreme Court 14 years later, the Wall Street Journal noted of his 1980 nomination: "Mr. Breyer was the last Carter appointee confirmed by the Senate—confirmed even after the 1980 election because of his bipartisan support. For a president [Clinton] who needs a victory, this choice [of Breyer] is really easy." Breyer would become chief judge of the First Circuit Court of Appeals in Boston in 1990.
Once on the bench, Breyer began to develop the legal reputation that would lead to his Supreme Court nomination. Legal scholars describe his decisions in numerous cases before the appeals court as reasoned and moderate, and lacking passion. "Breyer has not used his writings to launch a perceptible constitutional manifesto, " the Boston Globe opined in an article analyzing Breyer's "paper trail" of opinions. He has adhered to the theory that cases need not be decided within the strict formal structures of a particular law; that is, Breyer has been known to consider not just the laws Congress has made, but the "legislative intent" behind those laws. He looks at the legislative history of the struggle to pass a law, and what congressmen and senators meant the law to do when issuing his rulings. He has also been known to consider the effects of his rulings in the future, and not just consider past precedents.
"Law requires both a heart and a head, " the New York Times quoted him as saying during his confirmation hearings. "If you don't have a heart, it becomes a sterile set of rules removed from human problems, and it won't help. If you don't have a head, there's a risk that in trying to decide a particular person's problem in a case that may look fine for that person, you cause trouble for a lot of other people, making their lives yet worse…. It's a question of balance."
Observers say that such opinions fly directly in the faces of other sitting justices, such as Antonin Scalia, who is regarded as forming decisions based on strict interpretations of the law. While Breyer may not be able to win over Scalia to his views, he is seen as a "coalition builder, " someone who will occupy the political center of the court and woo other, centrist-leaning justices to his way of thinking. Or, as the Boston Globe reported, "Breyer's capacity for consensus-building causes some court analysts to believe he could lead a new moderate-liberal coalition."
On key controversial issues, Breyer has become known as a defender of First Amendment freedoms. On the First Circuit court he found that a federally-imposed "gag order" preventing family-planning clinics from providing abortion counseling was unconstitutional; it violated free speech provisions. He also wrote a majority decision that rejected the federal government's requirement that doctors working for the World Health Organization go through a "loyalty check." Allowing the government to examine someone's political leanings as a basis for judging loyalty violated that person's free speech rights, Breyer ruled. He also has a strong environmental record: in 1983 he ruled that oil companies and the federal government had no right to allow oil exploration in the environmentally sensitive George's Bank fishing area off the coast of Massachusetts.
Breyer is much more conservative when it comes to criminal cases. He has allowed improper police testimony to stand in a drug case, calling the police error "harmless" in light of the strong evidence against the drug dealers. Even friends, such as noted Harvard Law School professor and celebrity lawyer Alan Dershowitz, have expressed displeasure with some aspects of Breyer's opinions. Dershowitz was quoted in the New York Times as saying, "A lot of 'liberal' or 'moderate' judges establish their liberal credentials by supporting women's rights and press rights, which are very popular with their constituencies, and then establish their conservative credentials by an almost knee-jerk, pro-prosecutorial approach in criminal cases…. This certainly characterizes … Breyer."
Breyer's best known—and most controversial—work in the field of criminality occurred in 1987 when he served on the U.S. Sentencing Commission, a group dedicated to reviewing what sort of jail time criminals should receive across America. The commission's set of proposals drew mixed reviews, with some crediting Breyer for finally getting something down on paper after extensive meetings. But others say the guidelines are too strict, that they do not allow judges enough flexibility, and that in some instances the proposed sentences are too harsh.
As regards the new Supreme Court justice's personal life, he has been married to the former Joanna Hare since 1967. She is the daughter of former British Conservative Party leader Lord John Blackenham. The pair met in Washington, D.C., and after 16 years of marriage Joanna Breyer went back to school and received a Ph.D. in psychology. She works at the Dana-Farber Cancer Institute with children stricken with cancer. The Breyers own 160 acres in Plainfield, New Hampshire, and often visit there to hike. The couple have three grown children. Breyer is known as an avid birdwatcher, a good cook, a fan of both old movies and football. "He has been known to wear the same suit for weeks while focusing on something he considers more important than wardrobe, " the Boston Globe reported. He is Jewish, "speaks with a hint of a British accent, " according to the New York Times, and "is more glib than smart and has an impish, often odd, sensibility that could come across as flakiness and could antagonize his potential colleagues on the Supreme Court."
Breyer's other major hobby—bicycle riding— probably cost him his first chance at being named to the Supreme Court. In May of 1993, Breyer was being considered to fill the seat of retiring Justice Byron White. But he was hit by a car while bicycling in the Boston area and was hospitalized. During his recuperation, President Clinton summoned the judge to Washington for an interview. The Boston Globe reported him as telling a friend "that he feared his prospects for the job were poor because he was ill at the meeting with the president … and nearly fainted afterward." But during the interview process it also became clear that Breyer had done what other recently rejected government nominees had done: he had failed to pay Social Security taxes on his part-time housekeeper. The same oversight forced Clinton to reject his first two choices for attorney general: Zoe Baird and Kimba Wood. Clinton eventually chose Ruth Bader Ginsburg over Breyer for the Supreme Court. But a year later, when Clinton chose Breyer to fill the seat of Justice Harry Blackmun, Breyer, quoted in the Boston Globe, was able to joke to the president, "I'm glad I didn't bring my bicycle down."
After being passed over in favor of Ginsburg in June of 1993, Breyer returned to Boston. Although many of his friends were critical of the way Clinton had dangled the job before Breyer and had made him travel while still feeling the ill effects of his bicycle accident, Breyer remained reserved and uncritical. After the rejection, according to the Wall Street Journal, Breyer called his friends, "cheering them up, rather than vice versa."
He returned to Boston to continue work on his biggest, non-legal project: helping design and construct a new $200 million federal courthouse in Boston. The courthouse is situated on the waterfront area known as Fan Pier. "This most beautiful site in Boston, " Breyer was quoted as saying in the New York Times, "does not belong to the lawyers, it does not belong to the federal government, it does not belong to the litigants. It belongs to the people." According to all reports, Breyer threw himself into the project: interviewing and choosing architects, meeting with community groups, even visiting courts around the country that he and the architect either admired or wanted to avoid duplicating. In the end, the worldly and intelligent judge pressed for a courthouse that includes a community meeting hall, art exhibition space, and a restaurant.
In May of 1994, when Clinton was forced to fill another vacancy on the court, he returned to Breyer. White House officials were quoted as saying they liked the "classy" way Breyer handled his rejection a year before. Clinton called him "a jurist who I deeply believe will take his place as one of nation's outstanding justices, " according to a report in the Boston Globe. His confirmation hearings before the Senate Judiciary Committee were not controversial. The biggest concern was Breyer's financial stake in Lloyd's of London, the giant insurance firm. Some senators questioned whether Breyer's financial interest in Lloyd's clouded his rulings on environmental cases. If Lloyd's had to pay for certain toxic waste cleanups, the senators wondered how Breyer could rule impartially in those cases. Breyer responded that Lloyd's was not a direct party to any clean-ups he was involved in, but added that he would sell off his investment in the insurance concern anyway. Breyer was also accused by consumer activists, such as Ralph Nader, of siding with big business in all of the antitrust cases on which he ruled. When asked about abortion, he said it was "settled law" that women have a right to an abortion under Roe v. Wade, the landmark 1973 ruling. The committee approved his nomination 18 to 0.
In ascending to the Supreme Court, Breyer "beat out" Clinton's other top choice, secretary of the interior Bruce Babbitt. For about a month during the summer of 1994, Washington engaged in a great guessing game about who would get the nomination: Babbitt or Breyer. Babbitt was opposed by many Western senators who did not like his tough stand on cattle-grazing fees. Clinton liked Babbitt, however, because he had said he wanted more than a legal mind on the court; the president wanted someone who would bring a politician's passion to the court. But Babbitt's political disadvantages proved too great. As the Boston Globe reported, "In the end, Breyer's greatest asset was the way he met a key element of Clinton's job description: someone with political skills who could sail through confirmation."
How Breyer would actually fit into the liberal-to-conservative spectrum on the court was unclear; and since his appointment he has been the focus of controversy. Supreme Court justices have a way of surprising the presidents who appointed them to the court; some are more liberal than expected, some more conservative. But most court observers agree that Breyer sits on the opposite spectrum of Antonin Scalia, arguing not so much on political lines, but for a broader interpretation of the law. As Breyer himself was quoted in the New York Times as telling senators during his confirmation hearing, "Consensus is important because law is not theoretical; law is a set of opinions and rules that lawyers have to understand, judges have to understand them, and eventually the labor union, the business, small business, everyone else in the country has to understand how they are supposed to act or not act according to the law."
Boston Globe, May 14, 1994; May 15, 1994; May 17, 1994; July 10, 1994; July 13, 1994; July 25, 1994.
Boston Magazine, October 1994, p. 60.
New Republic, July 11, 1994, p. 19.
New York Times, May 30, 1993; June 11, 1993; June 18, 1993;September 9, 1993; July 14, 1994.
Wall Street Journal, June 24, 1993. □