Justice Stephen Gerald Breyer (born August 15, 1938) has been an Associate Justice of the U.S. Supreme Court since 1994.
Background
Born in San Francisco, California, Breyer married Joanna Hare in 1967, and they have three children: Chloe, Nell, and Michael. Breyer graduated from Lowell High School and received an A.B. in Philosophy from Stanford University, a B.A. from Magdalen College of the University of Oxford as a Marshall Scholar, and an LL.B. from Harvard Law School.
He served as a law clerk to U.S. Supreme Court Justice Arthur Goldberg during the 1964 Term, as a Special Assistant to the Assistant U.S. Attorney General for Antitrust, 1965-1967, as an Assistant Special Prosecutor of the Watergate Special Prosecution Force, 1973, as Special Counsel of the U.S. Senate Judiciary Committee, 1974-1975, and as Chief Counsel of the committee, 1979-1980.
He was an Assistant Professor, Professor of Law and Lecturer at Harvard Law School, 1967-1994, a Professor at the Harvard University Kennedy School of Government, 1977-1980, and a Visiting Professor at the College of Law, Sydney, Australia and at the University of Rome. At Harvard, Breyer was known as a leading expert on administrative law. While there, he authored two highly influential books on deregulation, "Breaking the Vicious Circle: Toward Effective Risk Regulation" and "Regulation and Its Reform." Both remain extremely important in the law of administration and bureaucracies.
Becoming Justice Breyer
From 1980 to 1994, he served as a Judge on the United States Court of Appeals for the First Circuit and as its Chief Judge from 1990 to 1994. He also 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 sentences for criminal cases.
In 1993 President Bill Clinton considered him for the seat which ultimately went to Ruth Bader Ginsburg. Clinton soon nominated him as an Associate Justice of the Supreme Court to fill the vacancy left after the retirement of Harry Blackmun in 1994. Breyer was confirmed by the U.S. Senate in an 87 to 9 vote and took his seat August 3, 1994.
The junior Associate Justice on the Court is expected to take on duties such as opening and closing the door at private conference meetings and fetching coffee. [1] Breyer has remained the junior member for eleven years (only one justice, Justice Story, has served longer as junior justice). Breyer will be the junior justice until Sandra Day O'Connor's replacement joins the court. Although Chief Justice Roberts is the newest member of the Court, the duties of the junior Justice never fall upon the Chief Justice, who is considered primus inter pares -first among equals.
Judicial philosophy
In general
On the bench, Breyer generally takes a pragmatic approach to constitutional issues, interested more in producing coherence and continuity in the law than in following doctrinal, historical or textual strictures. While somewhat moderate, Breyer most frequently sides with Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg, generally acknowledged as being the "liberal" wing of the court. He has consistently voted in favor of abortion rights, which is one of the most controversial areas of the Supreme Court's docket. He has also urged that the Supreme Court cite international law in its decisions. However, Breyer is also deferential to the interests of law enforcement and urges that the Court be deferential to legislative judgments in its First Amendment rulings.
Active Liberty
Breyer's recent book, Active Liberty: Interpreting Our Democratic Constitution, deals with his judicial philosophy at greater length, emphasizing his belief in judicial deference to democratic decision-making.
Breyer argues that the Framers of the Constitution set out to establish a democratic government involving the maximum liberty for its citizens. But what is liberty? Breyer refers the reader 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 dimunition. Breyer terms this "modern liberty." The second Berlinian concept — to Berlin, "positive liberty" is the "freedom to participate in the government;" In Breyer's terminology, this is the titular "active liberty," which he believes the Judge should champion. Having established this premise of what liberty is, and argued that the Framers intended to maximize active liberty over the modern liberty, Breyer argues a predominantly Utilitarian case for Judges making rulings which give effect to the democratic intentions of the Constitution.
However, both book's historical premises and practical prescriptions have been challenged, for example by Prof. Peter Berkowitz's Democratizing The Constitution. According to Berkowitz, "The reason that 'The 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 [ Berlinian ] modern [negative] liberty" Breyer "demonstrates not fidelity to the Constitution, but rather a determination to rewrite the Constitution’s priorities," and in any eventuality, throws his "Active Liberty" theory overboard where abortion is concerned, "prefer[ing] judicial decisions that protect women’s modern liberty, which remove controversial issues from democratic discourse." In a book which never rises to answer the textualist charge that the Living Documentarian Judge is a law unto himself, 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."
Writing style
Breyer is well-known for his personal writing style, in which he never uses footnotes in his opinions. He feels that keeping all citations in the text results in better, more readable writing as he is not tempted to use footnotes to expound on irrelevant points.
References
- Clinton, Bill (2005). My Life. Vintage. ISBN 140003003X.
External links
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