Stephen Breyer
Stephen Gerald Breyer is an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and replaced retiring justice Harry Blackmun. Breyer was generally associated with the liberal wing of the Court. Since his retirement, he has been the Byrne Professor of Administrative Law and Process at Harvard Law School.
Born in San Francisco, Breyer attended Stanford University and the University of Oxford, and graduated from Harvard Law School in 1964. After a clerkship with Associate Justice Arthur Goldberg in 1964–65, Breyer was a law professor and lecturer at Harvard Law School from 1967 until 1980. He specialized in administrative law, 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 for antitrust and assistant special prosecutor on the Watergate Special Prosecution Force in 1973. Breyer became a federal judge in 1980, when he was appointed to the U.S. Court of Appeals for the First Circuit. In his 2005 book Active Liberty, 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, a judge on the U.S. Court of Appeals for the District of Columbia Circuit and one of Breyer's former law clerks, 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. 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 Reform Jewish family. His father was a lawyer who served as legal counsel to the San Francisco Board of Education.Breyer and his younger brother Charles Breyer, who later became a federal district judge, were active in the Boy Scouts of America and achieved the Eagle Scout rank. In 2007, he received the Distinguished Eagle Scout Award. Breyer attended Lowell High School, where he was a member of the Lowell Forensic Society and debated regularly in high school tournaments, including against future California governor Jerry Brown and future Harvard Law School professor Laurence Tribe.
After graduating from high school in 1955, Breyer studied philosophy at Stanford University. He graduated in 1959 with a Bachelor of Arts degree with highest honors and membership in Phi Beta Kappa. Breyer was awarded a Marshall Scholarship, which he used to study philosophy, politics, and economics at Magdalen College, Oxford, receiving a B.A. with first-class honors in 1961. He then returned to the United States to attend Harvard Law School, where he was an articles editor of the Harvard Law Review and graduated in 1964 with a Bachelor of Laws degree, magna cum laude.
Breyer spent eight years in the United States Army Reserve during the Vietnam War, including six months on active duty in the Army Strategic Intelligence. He reached the rank of corporal and was honorably discharged in 1965.
In 1967, Breyer married Joanna Freda Hare, a psychologist and member of the British aristocracy, younger daughter of John Hare, 1st Viscount Blakenham and granddaughter of Richard Hare, 4th Earl of Listowel. They have three adult children: Chloe, an Episcopal priest; Nell; and Michael.
Legal career
After law school, Breyer served as a law clerk to U.S. Supreme Court justice Arthur Goldberg from 1964 to 1965. During his clerkship, Breyer wrote the first draft of Goldberg's concurrence in Griswold v. Connecticut, which argued that the right to privacy could be derived from the Ninth Amendment. Breyer served briefly as a fact-checker for the Warren Commission, followed by two years in the U.S. Department of Justice's Antitrust Division as a special assistant to its assistant attorney general.In 1967, Breyer returned to Harvard Law School as an assistant professor. He taught at Harvard Law until 1980, and he held a joint appointment at Harvard Kennedy School from 1977 to 1980. At Harvard, Breyer was known as a leading expert on administrative law. 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, economist Ben Kaplan spurred Breyer to write "The Uneasy Case for Copyright", one of the most widely cited skeptical examinations of copyright. In 1979, Breyer co-wrote Administrative Law and Regulatory Policy with Richard Stewart. Breyer was a visiting professor at the College of Law in Sydney, Australia; the University of Rome; and Tulane University Law School.
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 Special Prosecution Force in 1973. Breyer was a special counsel to the U.S. Senate Committee on the Judiciary 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 that closed the Civil Aeronautics Board.
U.S. Court of Appeals (1980–1994)
On November 13, 1980, President Jimmy Carter nominated Breyer to the First Circuit, to a new seat established by, and the United States Senate confirmed him on December 9 by an 80–10 vote. Breyer received his commission on December 10, 1980. From 1980 to 1994, he was a judge on the U.S. Court of Appeals for the First Circuit; he was the court's chief judge from 1990 to 1994. One of Breyer's duties as chief judge was to oversee the design and construction of a new federal courthouse for Boston, beginning an avocational interest in architecture. In 2018, he was named to chair the Pritzker Architecture Prize jury, succeeding Glenn Murcutt.Many of Breyer's First Circuit decisions followed principles expressed in Goldberg's opinions, though some were reversed on appeal by an increasingly conservative Supreme Court. During Breyer's Supreme Court confirmation hearings, Ohio Senator Howard Metzenbaum criticized him for never voting in favor of an antitrust claim while on the First Circuit.
Breyer 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. In the latter role, he oversaw the initial Federal Sentencing Guidelines, which sought uniformity in sentencing. Breyer successfully opposed a Republican proposal to include the death penalty as mandatory punishment for some crimes.
Supreme Court (1994–2022)
In 1993, on the recommendation of Orrin Hatch, President Bill Clinton considered both Breyer and Ruth Bader Ginsburg for the seat vacated by Byron White. Clinton ultimately appointed Ginsburg, fearing that Breyer's focus on administrative law would lead to conservative rulings.After Harry Blackmun retired in 1994, Clinton initially offered the nomination to George Mitchell, the Senate Majority Leader, but Mitchell declined in order to make a final attempt to pass the Clinton health care plan. U.S. Secretary of the Interior Bruce Babbitt also declined to avoid compelling his wife, Harriet C. Babbitt, to resign as U.S. Ambassador to the Organization of American States. Clinton next turned to Richard S. Arnold, then serving as chief judge of the U.S. Court of Appeals for the Eighth Circuit, as Arnold had also been considered to replace White. But Arnold withdrew himself the day before the planned announcement because his doctors concluded that his recurrent cancer might lead to an early death.
Breyer was nominated on May 17, 1994, after heavy lobbying by Senator Ted Kennedy. Benefiting from bipartisan recognition of his work for the Senate Judiciary Committee, he was confirmed on July 29 by an 87 to 9 vote. Breyer wrote 551 opinions during his 28-year career, not counting those relating to orders or in the "shadow docket". For his first 11 years, the composition of the Court remained unchanged, the longest such stretch in over 180 years. Since the most senior member of the majority chooses its writer, Breyer generally did not produce high-profile majority opinions during the first half of his tenure. In recognition of his service, he was inducted into the American Philosophical Society in 2004.
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 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.