BREYER, STEPHEN G. (1938–)

Stephen G. Breyer came to the Supreme Court in 1994 with a well-developed judicial philosophy. It was not a completely formed constitutional philosophy, for his career had largely been spent outside the constitutional field.

Born in San Francisco in 1938, Breyer was graduated from Stanford University in 1959 and spent two years as a Marshall scholar at Oxford University. He was graduated from Harvard Law School in 1964, after which he clerked for Justice arthur j. goldberg and spent two years in the antitrust division of the U.S. Department of Justice. From 1967 to 1980 he taught at Harvard Law School, specializing in antitrust and administrative law. Breyer also served as a prosecutor on the watergate special prosecution in 1973 and, in 1974, as special counsel to the U.S. senate subcommittee on administrative practice and procedures, chaired by Senator Edward M. Kennedy. As chief counsel to the senate judiciary committee in 1979 he crafted the legislation that led to the deregulation of the airline industry.

In 1980 Breyer was appointed to the U.S. Court of Appeals for the First Circuit; he became its chief judge in 1990. Sitting on the federal judicial moon, he necessarily reflected the sun of Supreme Court precedent. Breyer deferred to administrative agency decisions and tended to interpret statutory provisions narrowly. He was one of the original members of the United States Sentencing Commission that in 1987 promulgated controversial federal sentencing guidelines. Breyer conceived the idea of a numerical framework that all federal judges would have to apply.

In 1994 President william j. clinton nominated Breyer to replace the retiring Justice harry a. blackmun. The Senate easily confirmed him, and on August 11, 1994, Breyer took his seat as the nation's 108th Supreme Court Justice. He joined a Court that generally supported both freedom of speech claims and states ' rights. It was more skeptical of federal authority than any Court in recent history. At the same time it believed more in neutrality than in equality, particularly in racial discrimination and affirmative action cases.

He dissented from the Court's opinion in united states v. lÓpez (1995), invalidating the Gun-Free School Zone Act of 1990 on the ground that Congress failed to show that the possession of a gun in school "substantially affects" interstate commerce. Breyer agreed that Congress must have evidence that "gunrelated violence near the classroom poses a serious economic threat" to interstate commerce. "The Constitution requires us to judge the connection between a regulated activity and interstate commerce," but "at one remove." In a lengthy appendix Breyer listed reports and studies from which Congress "could reasonably have found the empirical connection that its law, implicitly or explicitly, asserts."

Breyer has aptly been called "a skeptical friend of government regulation." In his 1993 book, Breaking the Vicious Cycle, he charged that the regulatory process wasted both government and private resources and also diverted attention away from true health and environmental concerns. Breyer called for the establishment of a corps of elite civil servants that would have broad discretion to make "common-sense" decisions about regulation. In Kumho Tire Co. v. Carmichael (1999), he expanded the trial judge's general "gate-keeping" obligation set forth in Daubert v. Merrell Dow Pharmaceuticals I (1993) to apply to testimony "based on 'technical' and 'other specialized' knowledge."

Denver Area Education Telecommunications Consortium v. FCC (1996) is Breyer's major first amendment effort to date. Writing for the Court, he explicitly refused to select a definitive level of scrutiny or category of cases in which to place free speech regulations of indecent material on cable television. He based this refusal on the dynamic nature of telecommunications and broadcasting technology. Any decision, Breyer concluded, would likely be based on assumptions that further innovation would quickly render obsolete.

Questions of executive power have been prominent during Breyer's tenure. In his concurrence in clinton v. jones (1997), which verges on a qualified dissent, he agreed with the Court that the Constitution does not automatically grant the President immunity from civil suits based on his private conduct. But Breyer noted that once a trial of the President is scheduled, it can only be held when it does not "interfere with the President's discharge of his public duties." The line-item veto law did not violate any separation of powers issue, Breyer wrote in dissent in Clinton v. New York (1998). It was an "experiment" of "representative government" that did not "threaten the liberties of individual citizens."

Breyer's opinions flow easily, frequently stating the issue or the relevant statute or regulation at the outset. In 1982 he stopped using footnotes, returning to an older style that incorporates all sources into the text. His opinions do not evince an overall view of human nature. Suspicious of overarching theories, Breyer decides the case at hand, giving some guidance for the future while declining to reach out to embrace broader principles. He takes a more lenient view than the majority's as to the justiciability requirement. Dissenting in Raines v. Byrd (1997), he would have narrowed the inquiry to whether the plaintiffs' status as members of Congress brought an otherwise justiciable controversy outside the scope of Article III.

Breyer has written in several cases involving prisoners. In Richardson v. McKnight (1997) he wrote for the Court that prison guards who are employees of a private prison management company are not entitled to qualified immunity from suits by prisoners. Dissenting from the Court's upholding, in Kansas v. Hendricks (1997), a law providing for the involuntary commitment of violent sexual predators, Breyer emphasized the law's concern for treatment as the most relevant factor in distinguishing a punitive from a nonpunitive purpose. He urged the Court, in a sole dissent from a denial of certiorari in Elledge v. Florida (1998), to hear the appeal of a prisoner who spent more than twenty-three years in prison on death row. The prisoner's claim, "argue[d] forcefully," is "a serious one," given the Eighth Amendment's prohibition against cruel and unusual punishments, Breyer wrote.

Befitting his background, Breyer has long criticized the "textual" approach to statutory interpretation championed by Justice antonin scalia. Judges, he said in 1984, should interpret a statute "in light of what its purpose must have been," and legislative history must be used to determine this. As he opened his concurring–dissenting opinion in Schenck v. Pro Choice Network (1997), "Words take on meaning in context."

"Economics alone," Breyer has written, "cannot prescribe how much a society should spend." Shortly before he went on the Court, he stated his philosophy of judging: "The law is supposed to fit together in a way that makes the human life of people a little bit better."

Roger K. Newman
(2000)