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Stephen Gerald Breyer ( ; born August 15, 1938) is an American lawyer and retired jurist who served as an
associate justice An associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some ...
of the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
from 1994 until his retirement in 2022. He was nominated by President
Bill Clinton William Jefferson Clinton (né Blythe III; born August 19, 1946) is an American politician and lawyer who was the 42nd president of the United States from 1993 to 2001. A member of the Democratic Party (United States), Democratic Party, ...
, and replaced retiring justice
Harry Blackmun Harold Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1970 to 1994. Appointed by President Richard Nixon, Blackmun ultima ...
. Breyer was generally associated with the
liberal wing Liberal or liberalism may refer to: Politics * Generally, a supporter of the political philosophy liberalism. Liberals may be politically left or right but tend to be centrist. * An adherent of a Liberal Party (See also Liberal parties by country ...
of the Court. Since his retirement, he has been the Byrne Professor of Administrative Law and Process at
Harvard Law School Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...
. Born in
San Francisco San Francisco, officially the City and County of San Francisco, is a commercial, Financial District, San Francisco, financial, and Culture of San Francisco, cultural center of Northern California. With a population of 827,526 residents as of ...
, Breyer attended
Stanford University Leland Stanford Junior University, commonly referred to as Stanford University, is a Private university, private research university in Stanford, California, United States. It was founded in 1885 by railroad magnate Leland Stanford (the eighth ...
and the
University of Oxford The University of Oxford is a collegiate university, collegiate research university in Oxford, England. There is evidence of teaching as early as 1096, making it the oldest university in the English-speaking world and the List of oldest un ...
, and graduated from
Harvard Law School Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...
in 1964. After a clerkship with Associate Justice
Arthur Goldberg Arthur Joseph Goldberg (August 8, 1908January 19, 1990) was an American politician and jurist who served as the 9th United States Secretary of Labor, U.S. Secretary of Labor, an Associate Justice of the Supreme Court of the United States, and t ...
in 1964–65, Breyer was a law professor and lecturer at Harvard Law School from 1967 until 1980. He specialized in
administrative law Administrative law is a division of law governing the activities of government agency, executive branch agencies of government. Administrative law includes executive branch rulemaking (executive branch rules are generally referred to as "regul ...
, writing textbooks that remain in use today. He held other prominent positions before being nominated to the Supreme Court, including special assistant to the
United States assistant attorney general Many of the divisions and offices of the United States Department of Justice (DOJ) are headed by an assistant attorney general. The president of the United States appoints individuals to the position of assistant attorney general with the adv ...
for
antitrust Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
and assistant special prosecutor on the Watergate Special Prosecution Force in 1973. Breyer became a
federal judge Federal judges are judges appointed by a federal level of government as opposed to the state/provincial/local level. United States A U.S. federal judge is appointed by the U.S. president and confirmed by the U.S. Senate in accordance with Arti ...
in 1980, when he was appointed to the U.S. Court of Appeals for the First Circuit. In his 2005 book ''
Active Liberty ''Active Liberty: Interpreting Our Democratic Constitution'' is a 2005 book by United States Supreme Court Justice Stephen Breyer. The general theme of the book is that Supreme Court justices should, when dealing with constitutional issues, keep ...
'', Breyer made his first attempt to systematically communicate his views on legal theory, arguing that the judiciary should seek to resolve issues in a manner that encourages popular participation in governmental decisions. On January 27, 2022, Breyer and President Joe Biden announced Breyer's intention to retire from the Supreme Court. On February 25, 2022, Biden nominated
Ketanji Brown Jackson Ketanji Onyika Brown Jackson (née Brown; ; born September 14, 1970) is an American lawyer and jurist who is an associate justice of the Supreme Court of the United States. Jackson Ketanji Brown Jackson Supreme Court nomination, was nominated ...
, a judge on the U.S. Court of Appeals for the District of Columbia Circuit and one of Breyer's former
law clerk A law clerk, judicial clerk, or judicial assistant is a person, often a lawyer, who provides direct counsel and assistance to a lawyer or judge by Legal research, researching issues and drafting legal opinions for cases before the court. Judicial ...
s, to succeed him. Breyer remained on the Supreme Court until June 30, 2022, when Jackson succeeded him. Breyer wrote majority opinions in landmark Supreme Court cases such as '' Mahanoy Area School District v. B.L.'', '' United States v. Lara'', and '' Google v. Oracle'' and notable dissents questioning the constitutionality of the death penalty in cases such as '' Glossip v. Gross''.


Early life and education

Breyer was born on August 15, 1938, in San Francisco, California, to Anne A. (''née'' Roberts) and Irving Gerald Breyer. Breyer's paternal great-grandfather emigrated from Romania to the United States, settling in Cleveland, Ohio, where Breyer's grandfather was born. Breyer was raised in a
middle-class The middle class refers to a class of people in the middle of a social hierarchy, often defined by occupation, income, education, or social status. The term has historically been associated with modernity, capitalism and political debate. Commo ...
Jewish Jews (, , ), or the Jewish people, are an ethnoreligious group and nation, originating from the Israelites of History of ancient Israel and Judah, ancient Israel and Judah. They also traditionally adhere to Judaism. Jewish ethnicity, rel ...
family. His father was a lawyer who served as legal counsel to the
San Francisco Board of Education The San Francisco Board of Education is the school board for the San Francisco, City and County of San Francisco. It is composed of seven Commissioners, elected by voters across the city to serve 4-year terms. It is subject to local, and state ...
. Breyer and his younger brother Charles R. Breyer, who later became a
federal district judge In the United States, a federal judge is a judge who serves on a court established under Article Three of the United States Constitution, Article Three of the U.S. Constitution. Often called "Article III judges", federal judges include the Chief ...
, were active in the
Boy Scouts of America Scouting America is the largest scouting organization and one of the largest List of youth organizations, youth organizations in the United States, with over 1 million youth, including nearly 200,000 female participants. Founded as the Boy Sco ...
and achieved the
Eagle Scout Eagle Scout is the highest rank attainable in the Scouts BSA program of Scouting America. Since its inception in 1911, only four percent of Scouts have earned this rank after a lengthy review process. The Eagle Scout rank has been earned by over ...
rank. Breyer attended Lowell High School, where he was a member of the
Lowell Forensic Society Lowell High School (LHS) is a co-educational, magnet public high school in San Francisco, California, first established in 1856. It is a part of the San Francisco Unified School District (SFUSD). Situated on the West Side of the city, the sc ...
and
debate Debate is a process that involves formal discourse, discussion, and oral addresses on a particular topic or collection of topics, often with a moderator and an audience. In a debate, arguments are put forward for opposing viewpoints. Historica ...
d regularly in high school tournaments, including against future California governor
Jerry Brown Edmund Gerald Brown Jr. (born April 7, 1938) is an American lawyer, author, and politician who served as the 34th and 39th governor of California from 1975 to 1983 and 2011 to 2019. A member of the Democratic Party (United States), Democratic P ...
and future Harvard Law School professor
Laurence Tribe Laurence Henry Tribe (born October 10, 1941) is an American legal scholar known for his studies of United States constitutional law. Tribe was a professor at Harvard Law School from 1968 until his retirement in 2020. He currently holds the posit ...
. (For Brown; need cite for Tribe) After graduating from high school in 1955, Breyer studied
philosophy Philosophy ('love of wisdom' in Ancient Greek) is a systematic study of general and fundamental questions concerning topics like existence, reason, knowledge, Value (ethics and social sciences), value, mind, and language. It is a rational an ...
at
Stanford University Leland Stanford Junior University, commonly referred to as Stanford University, is a Private university, private research university in Stanford, California, United States. It was founded in 1885 by railroad magnate Leland Stanford (the eighth ...
. He graduated in 1959 with a
Bachelor of Arts A Bachelor of Arts (abbreviated B.A., BA, A.B. or AB; from the Latin ', ', or ') is the holder of a bachelor's degree awarded for an undergraduate program in the liberal arts, or, in some cases, other disciplines. A Bachelor of Arts deg ...
degree with highest honors and membership in
Phi Beta Kappa The Phi Beta Kappa Society () is the oldest academic honor society in the United States. It was founded in 1776 at the College of William & Mary in Virginia. Phi Beta Kappa aims to promote and advocate excellence in the liberal arts and sciences, ...
. Breyer was awarded a
Marshall Scholarship The Marshall Scholarship is a postgraduate scholarship for "intellectually distinguished young Americans ndtheir country's future leaders" to study at any university in the United Kingdom. It is considered among the most prestigious scholarsh ...
, which he used to study
philosophy, politics, and economics Philosophy, politics and economics, or politics, philosophy and economics (PPE), is an interdisciplinary undergraduate or postgraduate degree which combines study from three disciplines. The first institution to offer degrees in PPE was the Unive ...
at
Magdalen College, Oxford Magdalen College ( ) is a Colleges of the University of Oxford, constituent college of the University of Oxford. It was founded in 1458 by Bishop of Winchester William of Waynflete. It is one of the wealthiest Oxford colleges, as of 2022, and ...
, receiving a
B.A. A Bachelor of Arts (abbreviated B.A., BA, A.B. or AB; from the Latin ', ', or ') is the holder of a bachelor's degree awarded for an undergraduate program in the liberal arts, or, in some cases, other disciplines. A Bachelor of Arts degree ...
with first-class honors in 1961. He then returned to the United States to attend
Harvard Law School Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...
, where he was an articles editor of the ''
Harvard Law Review The ''Harvard Law Review'' is a law review published by an independent student group at Harvard Law School. According to the ''Journal Citation Reports'', the ''Harvard Law Review''s 2015 impact factor of 4.979 placed the journal first out of ...
'' and graduated in 1964 with a
Bachelor of Laws A Bachelor of Laws (; LLB) is an undergraduate law degree offered in most common law countries as the primary law degree and serves as the first professional qualification for legal practitioners. This degree requires the study of core legal subje ...
degree, ''
magna cum laude Latin honors are a system of Latin phrases used in some colleges and universities to indicate the level of distinction with which an academic degree has been earned. The system is primarily used in the United States. It is also used in some Sout ...
''. Breyer spent eight years in the
United States Army Reserve The United States Army Reserve (USAR) is a Military reserve force, reserve force of the United States Army. Together, the Army Reserve and the Army National Guard constitute the Army element of the reserve components of the United States Armed ...
during the
Vietnam War The Vietnam War (1 November 1955 – 30 April 1975) was an armed conflict in Vietnam, Laos, and Cambodia fought between North Vietnam (Democratic Republic of Vietnam) and South Vietnam (Republic of Vietnam) and their allies. North Vietnam w ...
, including six months on active duty in the Army Strategic Intelligence. He reached the rank of
corporal Corporal is a military rank in use by the armed forces of many countries. It is also a police rank in some police services. The rank is usually the lowest ranking non-commissioned officer. In some militaries, the rank of corporal nominally corr ...
and was
honorably discharged A military discharge is given when a member of the armed forces is released from their obligation to serve. Each country's military has different types of discharge. They are generally based on whether the persons completed their training and the ...
in 1965. In 1967, Breyer married Joanna Freda Hare, a
psychologist A psychologist is a professional who practices psychology and studies mental states, perceptual, cognitive, emotional, and social processes and behavior. Their work often involves the experimentation, observation, and explanation, interpretatio ...
and member of the
British aristocracy The British nobility is made up of the peerage and the gentry of the British Isles. Though the UK is today a constitutional monarchy with strong democratic elements, historically the British Isles were more predisposed towards aristocratic gove ...
, younger daughter of
John Hare, 1st Viscount Blakenham John Hugh Hare, 1st Viscount Blakenham (22 January 1911 – 7 March 1982) was a British Conservative politician. Background and education Blakenham was born in London, the third son of The Rt. Hon. Richard Hare, 4th Earl of Listowel, an Ang ...
and granddaughter of
Richard Hare, 4th Earl of Listowel Richard Granville Hare, 4th Earl of Listowel (12 September 1866 – 16 November 1931), styled Viscount Ennismore from 1866 to 1924, was an Irish peer and British Army officer. Background Lord Ennismore was the eldest son of William Hare, ...
. They have three adult children: Chloe, an
Episcopal Episcopal may refer to: *Of or relating to a bishop, an overseer in the Christian church *Episcopate, the see of a bishop – a diocese *Episcopal Church (disambiguation), any church with "Episcopal" in its name ** Episcopal Church (United States ...
priest; Nell; and Michael.
The Justices of the Supreme Court ''The'' is a grammatical article in English, denoting nouns that are already or about to be mentioned, under discussion, implied or otherwise presumed familiar to listeners, readers, or speakers. It is the definite article in English. ''The ...
Retrieved April 6, 2012


Legal career

After law school, Breyer served as a
law clerk A law clerk, judicial clerk, or judicial assistant is a person, often a lawyer, who provides direct counsel and assistance to a lawyer or judge by Legal research, researching issues and drafting legal opinions for cases before the court. Judicial ...
to U.S. Supreme Court justice
Arthur Goldberg Arthur Joseph Goldberg (August 8, 1908January 19, 1990) was an American politician and jurist who served as the 9th United States Secretary of Labor, U.S. Secretary of Labor, an Associate Justice of the Supreme Court of the United States, and t ...
from 1964 to 1965. He served briefly as a fact-checker for the
Warren Commission The President's Commission on the Assassination of President Kennedy, known unofficially as the Warren Commission, was established by President of the United States, President Lyndon B. Johnson through on November 29, 1963, to investigate the A ...
, then spent two years in the
U.S. Department of Justice The United States Department of Justice (DOJ), also known as the Justice Department, is a federal executive department of the U.S. government that oversees the domestic enforcement of federal laws and the administration of justice. It is equi ...
's Antitrust Division as a special assistant to its
assistant attorney general Many of the divisions and offices of the United States Department of Justice (DOJ) are headed by an assistant attorney general. The president of the United States appoints individuals to the position of assistant attorney general with the adv ...
. In 1967, Breyer returned to Harvard Law School as an assistant professor. He taught at Harvard Law until 1980, and held a joint appointment at
Harvard Kennedy School The John F. Kennedy School of Government, commonly referred to as Harvard Kennedy School (HKS), is the school of public policy of Harvard University, a private university in Cambridge, Massachusetts. Harvard Kennedy School offers master's de ...
from 1977 to 1980. At Harvard, Breyer was known as a leading expert on
administrative law Administrative law is a division of law governing the activities of government agency, executive branch agencies of government. Administrative law includes executive branch rulemaking (executive branch rules are generally referred to as "regul ...
. 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 The Tulane University School of Law is the law school of Tulane University. It is located on Tulane's Uptown campus in New Orleans, Louisiana. Established in 1847, it is the 12th oldest law school in the United States. Campus The law schoo ...
. While teaching at Harvard, Breyer took several leaves of absence to serve in the U.S. government. He served as an assistant special prosecutor on the
Watergate The Watergate scandal was a major political scandal in the United States involving the administration of President Richard Nixon. The scandal began in 1972 and ultimately led to Nixon's resignation in 1974, in August of that year. It revol ...
Special Prosecution Force in 1973. Breyer was a special counsel to the
U.S. Senate Committee on the Judiciary The United States Senate Committee on the Judiciary, informally known as the Senate Judiciary Committee, is a standing committee of 22 U.S. senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nomi ...
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 The Airline Deregulation Act is a 1978 United States federal law that deregulated the airline industry in the United States, removing federal control over such areas as fares, routes, and market entry of new airlines. The act gradually phase ...
that closed the
Civil Aeronautics Board The Civil Aeronautics Board (CAB) was an agency of the federal government of the United States, formed in 1940 from a split of the Civil Aeronautics Authority and abolished in 1985, that regulated aviation services (including scheduled passe ...
.


U.S. Court of Appeals (1980–1994)

In the last days of President
Jimmy Carter James Earl Carter Jr. (October 1, 1924December 29, 2024) was an American politician and humanitarian who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party (United States), Democratic Party ...
's administration, on November 13, 1980, after he had been defeated for reelection, Carter nominated Breyer to the First Circuit, to a new seat established by , and the
United States Senate The United States Senate is a chamber of the Bicameralism, bicameral United States Congress; it is the upper house, with the United States House of Representatives, U.S. House of Representatives being the lower house. Together, the Senate and ...
confirmed him on December 9, 1980, by an 80–10 vote. He received his commission on December 10, 1980. From 1980 to 1994, Breyer was a judge on the U.S. Court of Appeals for the First Circuit; he was the court's
Chief Judge Chief judge may refer to: In lower or circuit courts The highest-ranking or most senior member of a lower court or circuit court with more than one judge. * Chief judge (Australia) * Chief judge (United States) In supreme courts Some of Chief ...
from 1990 to 1994. One of his duties as chief judge was to oversee the design and construction of a new federal courthouse for Boston, beginning an avocational interest in architecture and the
Pritzker Architecture Prize The Pritzker Architecture Prize is an international award presented annually "to honor a living architect or architects whose built work demonstrates a combination of those qualities of talent, vision and commitment which has produced consisten ...
. Breyer served as a member of the
Judicial Conference of the United States The Judicial Conference of the United States, formerly known as the Conference of Senior Circuit Judges, was created by the United States Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial co ...
between 1990 and 1994 and the
United States Sentencing Commission The United States Sentencing Commission is an independent agency of the judicial branch of the U.S. federal government. It is responsible for articulating the U.S. Federal Sentencing Guidelines for the federal courts. The Commission promulgat ...
between 1985 and 1989. On the sentencing commission he played a key role in reforming federal criminal sentencing procedures, producing the
Federal Sentencing Guidelines The United States Federal Sentencing Guidelines are rules published by the U.S. Sentencing Commission that set out a uniform policy for sentencing individuals and organizations convicted of felonies and serious (Class A) misdemeanors in the Unite ...
, which were formulated to increase uniformity in sentencing.


Supreme Court (1994–2022)

In 1993, on the recommendation of
Orrin Hatch Orrin Grant Hatch (March 22, 1934 – April 23, 2022) was an American attorney and politician who served as a United States senator from Utah from 1977 to 2019. Hatch's 42-year Senate tenure made him the longest-serving Republican U.S. senat ...
, President
Bill Clinton William Jefferson Clinton (né Blythe III; born August 19, 1946) is an American politician and lawyer who was the 42nd president of the United States from 1993 to 2001. A member of the Democratic Party (United States), Democratic Party, ...
considered both Breyer and
Ruth Bader Ginsburg Joan Ruth Bader Ginsburg ( ; Bader; March 15, 1933 – September 18, 2020) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1993 until Death and state funeral of Ruth Bader ...
for the seat vacated by
Byron White Byron Raymond "Whizzer" White (June 8, 1917 – April 15, 2002) was an American lawyer, jurist, and professional American football, football player who served as an Associate Justice of the U.S. Supreme Court, associate justice of the Supreme ...
. Clinton ultimately appointed Ginsburg. After
Harry Blackmun Harold Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1970 to 1994. Appointed by President Richard Nixon, Blackmun ultima ...
retired in 1994, Clinton initially offered the nomination to George Mitchell, the
Senate Majority Leader The positions of majority leader and minority leader are held by two United States senators and people of the party leadership of the United States Senate. They serve as chief spokespersons for their respective political parties, holding the ...
, who was retiring. Mitchell declined. Former
governor of Arizona A governor is an administrative leader and head of a polity or political region, in some cases, such as governors-general, as the head of a state's official representative. Depending on the type of political region or polity, a ''governor'' ma ...
Bruce Babbitt Bruce Edward Babbitt (born June 27, 1938) is an American attorney and politician who served as the 47th United States secretary of the interior from 1993 to 2001 under President Bill Clinton. He previously served as the List of governors of Arizo ...
, who ran for president in 1988 and was serving as
Secretary of the Interior Secretary of the Interior may refer to: * Secretary of the Interior (Mexico) * Interior Secretary of Pakistan * Secretary of the Interior and Local Government (Philippines) * United States Secretary of the Interior See also

*Interior ministry ...
, was then offered the nomination, but also declined, saying he was looking forward to spending more time with his wife,
Harriet C. Babbitt Harriet "Hattie" Coons Babbitt (born November 13, 1947) is an attorney and former diplomat, who served as United States Ambassador to the Organization of American States (OAS) from 1993 to 1997, and as Deputy Administrator of the United States Ag ...
. She was serving as the 12th
United States Ambassador to the Organization of American States The following is a list of people who have served as United States Ambassador to the Organization of American States, or the full title, "United States Permanent Representative to the Organization of American States", with the rank and status of ...
. Babbitt later said that had he been confirmed to the court, she would have been compelled to resign and that he did not want to cause that. Both served in their positions to the end of Clinton's presidency in January 2001. Clinton next offered the nomination to Harriett Woods, a former
lieutenant governor of Missouri The lieutenant governor of Missouri is the first person in the order of succession of the U.S. state of Missouri's executive branch, thus serving as governor in the event of the death, resignation, removal, impeachment, absence from the state, ...
and two-time Democratic nominee for U.S. Senate. Woods was serving as president of the
National Women's Political Caucus The National Women's Political Caucus (NWPC) is an organization which was founded in 1971 by leaders of the women's liberation movement to promote women's participation in government. The group describes itself as a multi-partisan grassroots or ...
. She also declined, and recommended Breyer and U.S. representative
Barbara Jordan Barbara Charline Jordan (February 21, 1936 – January 17, 1996) was an American lawyer, educator, and politician. A member of the Democratic Party, she was the first African American elected to the Texas Senate since Reconstruction, the first ...
. Clinton then turned to
Richard S. Arnold Richard Sheppard Arnold (March 26, 1936 – September 23, 2004) was a United States district judge of the United States District Court for the Eastern District of Arkansas and the United States District Court for the Western District of Arkansa ...
, a former Arkansas state representative and
chief of staff The title chief of staff (or head of staff) identifies the leader of a complex organization such as the armed forces, institution, or body of persons and it also may identify a principal staff officer (PSO), who is the coordinator of the supportin ...
to Arkansas Governor
Dale Bumpers Dale Leon Bumpers (August 12, 1925 – January 1, 2016) was an American lawyer and politician who served as the 38th Governor of Arkansas (1971–1975) and in the United States Senate (1975–1999). He was a member of the Democratic Party. He w ...
. President
Jimmy Carter James Earl Carter Jr. (October 1, 1924December 29, 2024) was an American politician and humanitarian who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party (United States), Democratic Party ...
had nominated Arnold to the
United States Court of Appeals for the Eighth Circuit The United States Court of Appeals for the Eighth Circuit (in case citations, 8th Cir.) is a United States federal court with appellate jurisdiction over the following United States district courts: * Eastern District of Arkansas * Western ...
, and the Senate confirmed him on February 20, 1980. He served till 1990. After that, he was serving as
chief judge Chief judge may refer to: In lower or circuit courts The highest-ranking or most senior member of a lower court or circuit court with more than one judge. * Chief judge (Australia) * Chief judge (United States) In supreme courts Some of Chief ...
and a member of the
Judicial Conference of the United States The Judicial Conference of the United States, formerly known as the Conference of Senior Circuit Judges, was created by the United States Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial co ...
. Clinton had almost nominated Arnold before; he was the runner-up to Ginsburg. Arnold told Clinton the day before the planned announcement of his nomination that due to serious "health concerns", he had to "defer this honorable nomination". Initially, Clinton had felt Breyer lacked "soul and passion". But after heavy lobbying by Senators
Ted Kennedy Edward Moore Kennedy (February 22, 1932 – August 25, 2009) was an American lawyer and politician from Massachusetts who served as a member of the United States Senate from 1962 to his death in 2009. A member of the Democratic Party and ...
and
Tom Harkin Thomas Richard Harkin (born November 19, 1939) is an American lawyer, author, and politician who served as a United States Senate, United States senator from Iowa from 1985 to 2015. A member of the Democratic Party (United States), Democratic Pa ...
, Clinton met with Breyer again and proceeded to nominate him as an
associate justice An associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some ...
of the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
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. In 2015, Breyer broke a federal law that bans judges from hearing cases when they or their spouses or minor children have a financial interest in a company involved. His wife sold about $33,000 worth of stock in
Johnson Controls Johnson Controls International plc is an American, Irish-domiciled multinational conglomerate headquartered in Cork, Ireland, that produces fire, HVAC, and security equipment for buildings. As of mid-2019, it employed 105,000 people in arou ...
a day after Breyer participated in the oral argument. This brought him back into compliance and he joined the majority in ruling in favor of the interests of a Johnson Controls subsidiary which was party to '' FERC v. Electric Power Supply Ass'n''. Breyer wrote 551 opinions during his 28-year career, not counting those relating to orders or in the " shadow docket".


Abortion

In 2000, Breyer wrote the majority opinion in '' Stenberg v. Carhart'', which struck down a Nebraska law banning
partial-birth abortion Intact dilation and extraction (D&X, IDX, or intact D&E) is a surgical procedure that terminates and removes an intact fetus from the uterus. The procedure is used both after miscarriages and for abortions in the second and third trimesters of ...
. On June 29, 2020, he wrote the plurality opinion in '' June Medical Services v. Russo''. The ruling struck down Louisiana's abortion law requiring any doctor who performed abortions to have admitting privileges at a hospital within 30 miles. Breyer reaffirmed the "benefits and burdens" test he had created in '' Whole Woman's Health v. Hellerstedt'', which struck down a nearly identical abortion law in Texas. In 2022, he dissented in ''
Dobbs v. Jackson Women's Health Organization ''Dobbs v. Jackson Women's Health Organization'', 597 U.S. 215 (2022), is a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, United States Supreme Court in which the court held ...
'', which overturned ''
Roe v. Wade ''Roe v. Wade'', 410 U.S. 113 (1973),. was a List of landmark court decisions in the United States, landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protected the right to have an ...
''.


Census

In '' Department of Commerce v. New York'' (2019), Breyer was in the 5–4 majority that ruled that the Census Bureau had not followed proper procedure in its implementation of a citizenship question. He was also one of four justices who would have held the citizenship question unconstitutional in itself. In a mostly concurring opinion, he wrote: "Yet the decision was ill considered in a number of critically important respects. The Secretary did not give adequate consideration to issues that should have been central to his judgment, such as the high likelihood of an undercount, the low likelihood that a question would yield more accurate citizenship data, and the apparent lack of any need for more accurate citizenship data to begin with. The Secretary's failures in considering those critical issues make his decision unreasonable". On December 18, 2020, Breyer was one of three dissenters in '' Trump v. New York''. In a 20-page dissent, he argued that the Court should not have sidestepped the case and should have ruled in favor of the challengers, who wanted the Court to block the Trump administration's last-minute attempts to exclude undocumented immigrants from the census. The census ultimately did not exclude undocumented immigrants, due to a lack of time and the subsequent issuance of Executive Order 13986.


Copyright

In ''
Eldred v. Ashcroft ''Eldred v. Ashcroft'', 537 U.S. 186 (2003), was a decision by the Supreme Court of the United States upholding the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA). The practical result of this was to prevent a numb ...
'', decided on January 15, 2003, Breyer and Justice
John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
filed separate dissenting opinions. In his 28-page dissent, Breyer argued that the 20-year retroactive extension of existing copyright granted by the
Copyright Term Extension Act The Sonny Bono Copyright Term Extension Act – also known as the Copyright Term Extension Act, Sonny Bono Act, or (derisively) the Mickey Mouse Protection Act – extended copyright terms in the United States in 1998. It is one of several ac ...
(CTEA) amounted effectively to a grant of perpetual copyright that violated the
Copyright Clause The Copyright Clause (also known as the Intellectual Property Clause, Copyright and Patent Clause, or the Progress Clause) describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 8). The clause, wh ...
of the Constitution, read in light of the
First Amendment First most commonly refers to: * First, the ordinal form of the number 1 First or 1st may also refer to: Acronyms * Faint Images of the Radio Sky at Twenty-Centimeters, an astronomical survey carried out by the Very Large Array * Far Infrared a ...
. He argued that the extension would produce a period of protection worth more than 99.8% of protection in perpetuity and that few artists would be more inclined to produce work knowing that their great-grandchildren would receive royalties. He also wrote that the
fair use Fair use is a Legal doctrine, doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to bal ...
defense came to no avail either, as it could not help "those who wish to obtain from electronic databases material that is not there", e.g. teachers who can find from online no ideal material to be used in the class as it has been deleted. In 2012, he expressed a similar idea in his dissent in ''
Golan v. Holder Golan (; ) is the name of a biblical town later known from the works of Josephus (first century CE) and Eusebius (''Onomasticon'', early 4th century CE). Archaeologists localize the biblical city of Golan at Sahm el-Jaulān, a Syrian village eas ...
'', which affirmed the constitutionality of the application of Section 514 of the
Uruguay Round Agreements Act The Uruguay Round Agreements Act (URAA; ) is an Act of Congress in the United States that implemented in U.S. law the Marrakesh Agreement of 1994. The Marrakesh Agreement was part of the Uruguay Round of negotiations which transformed the General ...
of 1994. In 2005, while joining a unanimous Court in '' MGM Studios, Inc. v. Grokster, Ltd.'' against
peer-to-peer file sharing Peer-to-peer file sharing is the distribution and sharing of digital media using peer-to-peer (P2P) networking technology. P2P file sharing allows users to access media files such as books, music, movies, and games using a P2P software program th ...
companies
Grokster Grokster Ltd. was a privately owned software company based in Nevis, West Indies that created the Grokster peer-to-peer file-sharing client in 2001 that used the FastTrack protocol. Grokster Ltd. was rendered extinct in late 2005 by the United S ...
and Streamcast on the ground of inducement liability, Breyer wrote a concurrence that the companies would be protected under the ''Sony'' doctrine without evidence of inducement. On March 20, 2012, Breyer wrote for a unanimous court in '' Mayo v. Prometheus'' that patent claims relating to new diagnostic methods of natural phenomena were not patentable as they did not add an "inventive concept to application of the natural laws". The patent, which was related to a patient's metabolization of a drug resulting from a determination of effective dosage, was analyzed to determine whether it was of an applied "law of nature" or merely an instruction on applying a
natural law Natural law (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...
. In Breyer's analysis, a doctor's administration of an already known drug related only to an identification of an "intended audience" to carry out the practice rather than a transformation of the subject. Breyer added, "If a law of nature is not patentable, then neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself." In ''American Broadcasting Cos., Inc. v. Aereo, Inc.'', decided on June 25, 2014, Breyer delivered the majority opinion, ruling that Aereo, allowing subscribers to view near-live streams of over-the-air television on Internet-connected devices, operated so overwhelmingly similar to the cable companies that it violated the right of public performance of the networks' copyrighted work. In '' Google v. Oracle'', decided on April 5, 2021, Breyer wrote the 38-page majority opinion, holding that Google's copying of 11,500 lines of Java declaring code (0.4% of all Java code) constituted fair use because "three of these packages were ... fundamental to being able to use the Java language at all". Breyer explained, "By using the same declaring code for those packages, programmers using the Android platform can rely on the method calls that they are already familiar with to call up particular tasks (e.g., determining which of two integers is the greater); but Google's own implementing programs carry out those tasks. Without that copying, programmers would need to learn an entirely new system to call up the same tasks."


Death penalty

In 2015, Breyer dissented in '' Glossip v. Gross'', which held by a 5–4 vote that prisoners challenging their executions must provide a "known and available" execution method before challenging their method of execution. In a dissent joined by Ginsburg, Breyer questioned the constitutionality of the death penalty itself. He wrote, "For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question." In July 2020, Breyer reiterated this position, writing, "As I have previously written, the solution may be for this Court to directly examine the question whether the death penalty violates the Constitution."


Free speech

On June 18, 2015, Breyer wrote the majority opinion in ''Walker v. Texas Division, Sons of Confederate Veterans''. He wrote that vehicle registration plates of the United States, license plates are considered government speech, governmental speech and are more subject to regulation than private speech. In doing so, he noted that States have historically used license plates to convey governmental messages and that speech appearing on "what is essentially a government-issued ID" could reasonably assumed to be associated with the State. Breyer also commented on the differences between the government and private citizens, saying that government speech "is not barred by the Free Speech Clause from determining the content of what it says. […] Were the Free Speech Clause interpreted otherwise, government would not work". On June 23, 2021, Breyer authored the majority opinion in '' Mahanoy Area School District v. B.L.'', relating to the role of school regulation of off-campus student speech. In his opinion he noted the importance of potential regulation of such speech by school authorities but acknowledged that such regulation was diminished due to the potential implication of a 24-hour restriction on student speech if fully realized, its traditional role under parental supervision, and the interest of schools in safeguarding the marketplace of ideas. Despite this, Breyer stipulated that the utterance of profanity on social media did not constitute "substantial disruptance" of a school activity or threaten harm to others, writing, "the justifications offered for punishing Levy's speech were simply insufficient […] were she an adult, the First Amendment would provide strong protection".


Defendant protections

On June 21, 2011, Breyer wrote for the majority in ''Turner v. Rogers'' on the requirement of counsel or some other safeguard in civil contempt cases. In his opinion, he acknowledged that a right to counsel does not exist in all matters relating to incarceration, as in civil contempt cases the defendant's opponent is also often unrepresented, the arguments typically center on straightforward questions, and substitute safeguards are available. These safeguards, such as soliciting financial information or informing the defendant of the legal significance of payment, were required to have been provided by the state on pain of an erroneous deprivation of liberty. On June 22, 2015, Breyer wrote for the majority in ''Kingsley v. Hendrickson'' that a pretrial detainee must prove that Police brutality, excessive police force was excessive only by an objective standard, not a subjective standard. In his opinion, he wrote that the Due Process Clause protects pretrial detainees from "objectively unreasonable" force by a state actor. He concluded, "in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not 'rationally related to a legitimate non-punitive governmental purpose' or that the actions 'appear excessive in relation to that purpose.'" On February 21, 2018, Breyer wrote for the majority in ''Class v. United States'' on whether some who has already pleaded guilty may challenge a federal law's constitutionality. In his opinion, he distinguished ''Class'' from past cases where appeal was denied, such as ''United States v. Broce'' and ''Menna v. New York'', as Class's admission of guilt resulted in his ability to appeal the questioned indictments that his record would otherwise have contradicted. He concluded, "the claims at issue here do not fall within any of the categories of claims that Class's plea agreement forbids him to raise on direct appeal. They challenge the Government's power to criminalize Class's (admitted) conduct. They thereby call into question the Government's power to 'constitutionally prosecute' him. A guilty plea does not bar a direct appeal in these circumstances.”


Native American law

On November 27, 2001, Breyer wrote the majority opinion in ''Chickasaw Nation v. United States'', relating to whether tribes are liable for taxes on gambling operations. In his opinion, he stipulated that Internal Revenue Code, IRC chapter 35, which affords state governmental lotteries an exemption from federal excise taxes, does not provide the same tax exemption to tribal pull-tab operations that act as lotteries under the IRC.. Breyer wrote that a straightforward reading of the code, which stipulated that the "reporting and withholding of taxes" on gambling operations applied equally to both the states and tribes, was "included inadvertently. The presence of a bad example in a statute does not warrant rewriting the remainder of the statute's language. Nor does it necessarily mean that the statute is ambiguous." Chapter 35, according to Breyer, "simply imposes taxes […] from which it exempts certain state-controlled gambling activities". On April 19, 2004, Breyer wrote the majority opinion in '' United States v. Lara'', holding that both tribal governments and the federal government may prosecute non-member Native Americans for the same charges without violating the Double Jeopardy Clause, as Native Nations are separate Tribal sovereignty in the United States, sovereigns. He reiterated this question in the context of the tribe's sovereignty as "Whether Congress has the constitutional power to relax restrictions that the political branches have, over time, placed on the exercise of a tribe's inherent legal authority". Breyer concluded that the Indian Commerce Clause gives Congress the authority to legislate with respect to tribes and that Congress's amendments to the Indian Civil Rights Act constitute a deference to tribal sovereignty ensuring double jeopardy does not apply.


Environment

In ''Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.'' (2000), Breyer was in the 7–2 majority that held that people who use the North Tyger River for recreational purposes but could not do so due to pollution had standing to sue industrial polluters. On April 23, 2020, Breyer wrote the majority opinion in ''County of Maui v. Hawaii Wildlife Fund''. The Court ruled that the County of Maui must have a permit under the Clean Water Act in order to release groundwater pollution into the ocean. Although the ruling was less broad than the 9th Circuit's ruling, environmentalist groups saw the ruling as a win and an affirmation of the Clean Water Act. On July 31, 2020, Breyer dissented when the Supreme Court, in a 5–4 decision, refused to lift a stay on the 9th Circuit ruling that halted construction of the wall at the U.S.-Mexico border. The Sierra Club argued that the wall would harm the environment unduly, including threatening wildlife and changing the flow of water in the Sonoran Desert. Breyer wrote, "The Court's decision to let construction continue nevertheless, I fear, may 'operat[e], in effect, as a final judgment.'" Ginsburg, Sotomayor, and Kagan joined his dissent. On March 4, 2021, Breyer dissented in ''United States Fish and Wildlife Serv. v. Sierra Club, Inc.'', joined only by Sotomayor. The case concerned the Sierra Club's request under the Freedom of Information Act (United States), Freedom of Information Act (FOIA) for "draft opinions" concerning rules governing underwater structures that are used to cool industrial equipment. The Sierra Club argued that it had the right to access the documents. The majority opinion limits environmental groups' ability to obtain government documents under FOIA. Breyer wrote in his dissent, "Agency practice shows that the Draft Biological Opinion, not the Final Biological Opinion, is the document that informs the EPA of the Services' conclusions about jeopardy and alternatives and triggers within the EPA the process of deciding what to do about those conclusions. If a Final Biological Opinion is discoverable under FOIA, as all seem to agree it is, why would a Draft Biological Opinion, embodying the same Service conclusions (and leaving the EPA with the same four choices), not be?" In ''Hollyfrontier Cheyenne Refining v. Renewable Fuels Association'', Breyer ruled for oil refineries, joining the majority opinion, which held that oil refineries struggling financially did not need a continuous exemption every year since 2011 in order to be granted an exemption from federal renewable fuels policy.


Health care

Breyer generally voted to uphold the Affordable Care Act since its passage in 2010. He wrote the 7-2 majority opinion in ''California v. Texas'', a decision on June 17, 2021, holding that Texas and other states lacked standing to sue against the Affordable Care Act's individual mandate. Breyer wrote, "It is consequently not surprising that the plaintiffs cannot point to cases that support them. To the contrary, our cases have consistently spoken of the need to assert an injury that is the result of a statute's actual or threatened enforcement, whether today or in the future."


Partisan gerrymandering

On April 28, 2004, Breyer dissented in ''Vieth v. Jubelirer'', in which the Court held that partisan gerrymandering is a non-justiciable claim. Breyer wrote in his dissent, "Sometimes purely political 'gerrymandering' will fail to advance any plausible democratic objective while simultaneously threatening serious democratic harm. And sometimes when that is so, courts can identify an equal protection violation and provide a remedy." In 2006, Breyer was in a 5–4 majority holding that District 23 of the 2003 Texas redistricting violated the Voting Rights Act due to vote dilution. Along with Justice
John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
, Breyer would also have ruled in favor of plaintiffs' claims that Texas's statewide plan was an unconstitutional partisan gerrymander. In June 2019, Breyer dissented in ''Rucho v. Common Cause'', in which the Supreme Court decided 5–4 that gerrymandering is a non-justiciable claim.


Voting rights

Breyer wrote the majority opinion in ''Alabama Legislative Black Caucus v. Alabama'', which ruled that racial gerrymandering claims must be looked at district by district, and struck down four of Alabama's state Senate districts as unconstitutional racial gerrymanders. Breyer joined Ginsburg's dissent in ''Shelby County v. Holder''. A 5–4 majority ruled that Section 4(b) of the Voting Rights Act is unconstitutional. Breyer joined another dissent by Ginsburg in ''RNC v. DNC'', which overturned a lower court's extension of a voting deadline in the Wisconsin primary elections. The lower court had extended the deadline so that people who had not yet received mail-in ballots by April 7 could vote by mail in the wake of the COVID-19 pandemic. Breyer dissented in a similar Wisconsin case in October; the petitioners had asked the court to require Wisconsin to count mail-in ballots received up to six days after Election Day, and the Court, with Breyer, Sotomayor, and Kagan dissenting, refused the petitioners' request to extend the deadline. Breyer joined Kagan's dissent in ''Brnovich v. DNC'' (2021), a case that upheld Arizona's ban on ballot harvesting and refusal to count out-of-precinct ballots. As the most senior dissenter, Breyer likely assigned the dissenting opinion to Kagan.


Retirement and post-retirement

After Democratic victories in the 2020 2020 United States presidential election, presidential and 2020 United States Senate elections, Senate elections, progressive activists and Democratic members of Congress called on Breyer to retire so that President Biden could nominate a younger liberal justice. In an August 2021 ''New York Times'' interview, Breyer said he wished to retire before his death, and recounted a conversation he had with Justice Antonin Scalia in which Scalia mentioned that he did not want his successor to "reverse everything I've done for the last 25 years". Breyer said that Scalia's point will "inevitably be in the psychology" of his decision to retire. In a September 2021 interview with ''Fox Newss Chris Wallace, Breyer said activists calling for his retirement are "entitled to their opinion" and "I didn't retire because I had decided on balance I wouldn't retire". He said he took several factors into account when deciding his retirement plans, and reiterated that he did not plan to "die on the court". On January 26, 2022, news outlets reported Breyer's intention to retire from the court at the end of the 2021–22 term. Breyer confirmed his pending retirement in a White House announcement alongside Biden on January 27. On February 25, Biden announced Ketanji Brown Jackson Supreme Court nomination, his nomination of
Ketanji Brown Jackson Ketanji Onyika Brown Jackson (née Brown; ; born September 14, 1970) is an American lawyer and jurist who is an associate justice of the Supreme Court of the United States. Jackson Ketanji Brown Jackson Supreme Court nomination, was nominated ...
, a former clerk of Breyer and judge of the United States Court of Appeals for the District of Columbia Circuit, to succeed Breyer on the Supreme Court. The U.S. Senate confirmed Jackson by a vote of 53–47 on April 7, 2022. The last opinion Breyer wrote before his retirement was the majority opinion in ''Torres v. Texas Department of Public Safety''. He retired on June 30, 2022, at 12:00 noon Eastern Time Zone, EDT, following the court's final opinions and orders for the term. Breyer's retirement left only one Veteran, military veteran, Samuel Alito, on the Supreme Court. On July 2, 2022, it was announced that Breyer had been appointed Byrne Professor of Administrative Law and Process at
Harvard Law School Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...
, with immediate effect. Breyer had previously both attended and taught at Harvard Law School. In May 2024, Breyer received an honorary Doctor of Law, Doctor of Laws degree from Yale University in recognition of his contributions to the field of law and his nearly three decades of service on the Supreme Court. As a retired Supreme Court justice, Breyer can still sit as a judge in lower federal courts by designation. He first returned to the bench in 2025 in the First Circuit Court of Appeals, the court on which he was a judge before his Supreme Court appointment. Breyer attended the second inauguration of Donald Trump in 2025, appearing with the nine sitting Supreme Court justices.


Judicial philosophy


In general

Breyer's Pragmatism, pragmatic approach to the law "will tend to make the law more sensible", according to Cass Sunstein, who added that Breyer's "attack on originalism is powerful and convincing". Quote is at p. 1726. Breyer consistently voted in favor of abortion rights,'' Stenberg v. Carhart'', . one of the most controversial areas of the Supreme Court's docket. He also defended the Court's use of foreign law and international law as persuasive (but not binding) authority in its decisions. Breyer is also recognized as deferential to the interests of law enforcement and to legislative judgments in the Court's
First Amendment First most commonly refers to: * First, the ordinal form of the number 1 First or 1st may also refer to: Acronyms * Faint Images of the Radio Sky at Twenty-Centimeters, an astronomical survey carried out by the Very Large Array * Far Infrared a ...
rulings. He demonstrated a consistent pattern of deference to Congress, voting to overturn congressional legislation at a lower rate than any other Justice since 1994. Breyer's extensive experience in
administrative law Administrative law is a division of law governing the activities of government agency, executive branch agencies of government. Administrative law includes executive branch rulemaking (executive branch rules are generally referred to as "regul ...
is accompanied by his staunch defense of the
Federal Sentencing Guidelines The United States Federal Sentencing Guidelines are rules published by the U.S. Sentencing Commission that set out a uniform policy for sentencing individuals and organizations convicted of felonies and serious (Class A) misdemeanors in the Unite ...
. He rejects the strict interpretation of the Sixth Amendment to the United States Constitution, Sixth Amendment espoused by Antonin Scalia, Justice Scalia that all facts necessary to criminal punishment must be submitted to a jury and proved beyond a reasonable doubt. In many other areas on the Court, too, Breyer's pragmatism was considered the intellectual counterweight to Scalia's textualism, textualist philosophy. 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. 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. 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.


''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. In ''Active Liberty'', Breyer argues that the Founding Fathers of the United States, 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—"positive liberty"—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 Original intent, democratic intentions of the United States Constitution, Constitution. The book's historical premises and practical prescriptions have been challenged. For example, according to Peter Berkowitz, 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 Textualism, textualist charge that the Living Constitution, 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 of the United States, executive branch. 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." 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", and it is the concept of universal suffrage that allowed corrupt and discriminatory (but democratically inspired) state laws to be overturned in favor of civil rights.


Other books

In 2010, Breyer published a second book, ''Making Our Democracy Work: A Judge's View''. In it, he argues 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. 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. 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. 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. On March 26, 2024, Breyer released a fourth book, ''Reading the Constitution: Why I Chose Pragmatism, Not Textualism''. In an interview about the book, he said that textualism, a judicial philosophy conservative justices favor, "will not help achieve the goals of those who write statutes or those who wrote and adopted the Constitution" and is doomed to fail.


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 controversy over Justice Samuel Alito's 2010 State of the Union Address#Supreme Court Justices' response, reaction to President Barack Obama's Citizens United v. FEC#Opposition, 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:


Honors

Breyer was elected to the American Philosophical Society in 2004. In 2007, Breyer was honored with the Distinguished Eagle Scout Award by the
Boy Scouts of America Scouting America is the largest scouting organization and one of the largest List of youth organizations, youth organizations in the United States, with over 1 million youth, including nearly 200,000 female participants. Founded as the Boy Sco ...
. In 2018, he was named to chair of the
Pritzker Architecture Prize The Pritzker Architecture Prize is an international award presented annually "to honor a living architect or architects whose built work demonstrates a combination of those qualities of talent, vision and commitment which has produced consisten ...
jury, succeeding previous chair Glenn Murcutt.


In popular culture

Breyer has appeared as a guest on Stephen Colbert's TV show. On the ''List of The Late Show with Stephen Colbert episodes (2021)#September, Late Show'' in September 2021, he discussed the Texas Heartbeat Act and his reluctance to retire. Breyer appeared on ''Fareed Zakaria GPS'' on CNN in September 2021 where he was questioned on when he planned to retire. He promoted his book ''The Authority of the Court and the Peril of Politics''.


Publications

* * * * * * * * * * * * *


See also

* Bill Clinton Supreme Court candidates * Demographics of the Supreme Court of the United States * List of justices of the Supreme Court of the United States * List of law clerks of the Supreme Court of the United States (Seat 2) * List of United States federal judges by longevity of service * List of United States Supreme Court cases by the Rehnquist Court * List of United States Supreme Court cases by the Roberts Court * List of United States Supreme Court justices by time in office


References


Further reading

*


External links


Stephen Breyer
in ''Encyclopædia Britannica'' * *
Issue positions and quotes
at OnTheIssues *
Review of Stephen Breyer's Active Liberty: Interpreting our Democratic Constitution

"Stephen Breyer, the court's necromancer"
, a book review of ''Active Liberty: Interpreting Our Democratic Constitution'' in the ''New English Review''
Active Liberty' from Justice Stephen Breyer"
October 20, 2005, NPR's ''Fresh Air''
"Supreme Court Justice Breyer on 'Active Liberty Part 1 of Interview
September 29, 2005, NPR's ''Morning Edition''
"Justice Breyer: The Case Against 'Originalists Part 2 of Interview
September 30, 2005, NPR's ''Morning Edition''
Justice Breyer's appearance
on NPR's quiz show ''Wait Wait... Don't Tell Me'', March 24, 2007 * WGBH Forum Network: one and a half hours with US Supreme Court Justice of Law Stephen Breyer, September 8, 2003
Description (archived)

Video
* *
Supreme Court Associate Justice Nomination Hearings on Stephen Gerald Breyer in July 1994
[United States Government Publishing Office , - , - , - {{DEFAULTSORT:Breyer, Stephen 1938 births 20th-century American Jews 20th-century American lawyers 21st-century American Jews 21st-century American judges Alumni of Magdalen College, Oxford American legal scholars American people of Romanian-Jewish descent American recipients of the Legion of Honour Hare family Harvard Law School alumni Harvard Law School faculty Jewish American academics Jewish legal scholars Jews from California Judges of the United States Court of Appeals for the First Circuit Justices of the Supreme Court of the United States Law clerks of the Supreme Court of the United States Lawyers from San Francisco Living people Marshall Scholars Members of the American Philosophical Society Members of the United States Sentencing Commission Military personnel from California Scholars of administrative law Stanford University alumni Tulane University Law School faculty United States Army non-commissioned officers United States Army reservists United States court of appeals judges appointed by Jimmy Carter United States federal judges appointed by Bill Clinton