Stephen Gerald Breyer

Justice Breyer's opinions have defied labels such as "conservative" or "liberal." Instead, his opinions continue to reflect his rather centrist approach to most issues. In fact, some observers believe that Breyer represents the ideological center of the court, notwithstanding statistics showing that Breyer tends to side most often with the more "liberal" members of the Court (associate justices JOHN PAUL STEVENS, RUTH BADER GINSBURG, and DAVID SOUTER) and least often with the more "conservative" members of the Court (Chief Justice WILLIAM REHNQUIST and associate justices ANTONIN SCALIA, SANDRA DAY O'CONNOR, and ANTHONY KENNEDY).

Breyer's dissenting opinion in Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L. Ed. 2d 365 (2000), surprised many observers who tend to classify Breyer as "liberal" justice who consistently votes in favor of criminal defendants' rights. In Bond the Court examined the issue of whether the Fourth Amendment's protection against unreasonable searches was violated when a Border Patrol agent, while checking the immigration status of passengers on a bus, squeezed a canvas bag that was located in the compartment above a bus passenger's seat. The passenger admitted that the bag was his and allowed the agent to open it, revealing a "brick" of methamphetamine.

A majority of the court ruled that the search was illegal, noting that the traveler's luggage was a personal "effect" as defined in the FOURTH AMENDMENT, and that the passenger exhibited an actual expectation of privacy in that "effect" by using an opaque bag and placing the bag directly over his seat. In his dissent, Justice Breyer criticized what he perceived as the shortsightedness of the majority's opinion, arguing that the court's ruling would lead to a constitutional JURISPRUDENCE of "squeezes," thereby complicating further already complex Fourth Amendment law.

A few days later, Breyer wrote a 5–4 majority opinion that overturned a Nebraska statute criminalizing "partial birth abortions, "a second-trimester procedure in which, according to the statute, a physician "partially delivers vaginally a living unborn child before killing it." Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000). The Nebraska statute violated the Constitution for at least two independent reasons, Breyer wrote.

First, the statute lacked any exception for the preservation of the health of the mother. The Court had previously made clear that a state may promote, but not endanger, a woman's health when it regulates the methods of abortion. Second, Justice Breyer stated, the statute imposed an undue burden on a woman's ability to have an abortion, finding that the Nebraska statute banned an abortion procedure that was used as many as 5,000 times per year in the United States. (Breyer made no finding as to how often the procedure is used in Nebraska.) Breyer refused to revisit the Court's earlier

determinations and redeterminations that the federal Constitution offers basic protection guaranteeing women's right to procreative freedom.

In 2002, Breyer wrote a majority opinion clarifying an earlier U.S. Supreme Court decision concerning the constitutionality of civil-commitment procedures for so-called "sexual predators." In Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), the Court had ruled that a convicted sex offender who satisfies the statutory definition of a sexual predator could be involuntarily committed to a mental-health institution following his or her release from prison for the SEX OFFENSE without violating the DOUBLE JEOPARDY Clause to the FIFTH AMENDMENT of the U.S. Constitution, even if the sex offender is committed based on some of the same evidence that was used earlier to convict him or her. In Hendricks, the Court wrote that the Double Jeopardy Clause applies only to subsequent prosecutions or punishments in criminal proceedings, and the sexual-predator law contemplated commitment by civil proceedings.

In Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002), Breyer wrote a majority opinion that qualified Hendricks by ruling that before a convicted sex offender may be civilly committed as a sexual predator following his or her release from prison, the state must prove that the sex offender lacks some control over his or her behavior. The lack-of-control element, Breyer said, would allow the state to better distinguish between dangerous sexual offenders, whom it seeks to commit through civil proceedings, and other dangerous persons who are more appropriately dealt with through criminal proceedings. The federal Constitution prohibits civil commitment proceedings from becoming a "mechanism" for retribution or general deterrence, Breyer emphasized.

Breyer's most well-known opinion during the last nine years came in a dissenting role in one of the most controversial cases in the history of the U.S. Supreme Court. In BUSH V. GORE, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000), seven justices (including Breyer) concluded that the process devised by the Florida Supreme Court to recount the popular vote in the 2000 presidential election violated the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT. However, only five justices agreed that there was insufficient time to fashion a remedy that would fairly and lawfully allow the votes of Florida residents to be accurately counted for either Republican Presidential candidate GEORGE W. BUSH of Texas and Democratic candidate ALBERT GORE of Tennessee. As a result, the nation's high court effectively ordered the Florida recount to stop, which meant that Bush would be become the forty-third President of the United States, as he was leading in Florida when the U.S. Supreme Court issued its opinion, and Florida's 25 electoral votes were enough for him to win in the ELECTORAL COLLEGE.

In his dissenting opinion, Justice Breyer proposed sending the case back to Florida's Supreme Court so that it could devise an order for "a constitutionally proper contest" by which to decide the winner. The majority's opinion, Breyer wrote, placed too much emphasis on equal protection and not enough emphasis on the right to vote. Breyer chastised the majority for finding an equal protection violation but offering no remedy to correct it. "An appropriate remedy," Breyer wrote, "would be to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida … and to do so in accordance with a single uniform standard."