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Stephen Gerald Breyer - Recent Opinions, Further Readings

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As an associate justice of the U.S. Supreme Court, Stephen Breyer is regarded as a judicial moderate. The former law professor and Senate counsel locates his approach to the law in a deep pragmatism: He distrusts broad legal theory, endorses judicial restraint, and wants his legal opinions to be clear enough for a high-school student to read. His reputation for forging consensus earned him a nomination to the U.S. Court of Appeals for the First Circuit in 1980, on which he later served as chief of the court from 1990 to 1994. During the 1980s, he also helped to shape a far-reaching and controversial revision of criminal sentencing guidelines. In April 1994, President BILL CLINTON nominated Breyer to replace the outgoing U.S. Supreme Court associate justice HARRY A. BLACKMUN, and his appointment was confirmed in July 1994.

Breyer was born on August 15, 1938, in San Francisco. His attorney father and politically active mother set him on a course for achievement. He earned an A.B. from Stanford University in 1959, followed by a B.A. in philosophy and economics at Oxford University in England. He received a law degree from Harvard Law School in 1964, graduating magna cum laude. Breyer clerked for U.S. Supreme Court Justice ARTHUR J. GOLDBERG during the 1964–65 term and helped to write the justice's opinion in the landmark right-to-privacy case, GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).

In 1967, Breyer embarked on dual careers in academia and government. He taught courses in antitrust, ADMINISTRATIVE LAW, and economic regulation at his alma mater, Harvard Law School. In the same year, he was appointed to the office of the Assistant U.S. Attorney General. He gained further prominence in 1974 by serving on the Watergate Special Prosecution Force, which pursued the possibility of impeaching President RICHARD M. NIXON. As a senior aide to Senator EDWARD M. KENNEDY (D-Mass.) in the 1970s and chief counsel to the SENATE JUDICIARY COMMITTEE from 1979 to 1980, Breyer crafted deregulation of the airline and trucking industries while also working on prison reform, judicial confirmations, and fair-housing law. He became known for an empirical approach to law, one that was less swayed by ideology than by careful balancing of facts.

"AS AN APPELLATE JUDGE, I SET … A GOALOFTRYING TO WRITE MY OPINIONS SO THAT A HIGH SCHOOL STUDENT … [CAN] UNDERSTAND THE LAW, AS REVEALED IN THAT OPINION—BOTH IN TERMS OF BASIC FAIRNESS AND IN TERMS OF HELPING PEOPLE LEAD DECENT, PRODUCTIVE LIVES."
—STEPHEN G. BREYER

By 1980, Breyer was well respected by liberals, moderates, and conservatives. Although he had been an aide to the liberal Senator Kennedy, he was adept at promoting agreement between such political opposites as Kennedy and Senator Orrin G. Hatch (R-Utah). This record served Breyer well when President JIMMY CARTER

Stephen G. Breyer.
REUTERS/ARCHIVE PHOTOS

nominated him to the U.S. Court of Appeals for the First Circuit. After Carter lost the 1980 election to RONALD REAGAN, the Republicans scrapped all but one of Carter's pending judicial appointments, as is common in an incoming administration. Breyer's appointment was allowed to go through.

Breyer's record on the Court of Appeals was generally moderate. In a 1983 environmental regulatory case, he blocked the INTERIOR DEPARTMENT from auctioning oil-drilling rights in the North Atlantic without giving ample consideration to alternative proposals (Commonwealth of Massachusetts v. Watt, 716 F. 2d 946 [1st Cir. 1983]). In the area of ABORTION, he voted to uphold a Massachusetts parental-notification law (Planned Parenthood of Massachusetts v. Bellotti, 868 F. 2d 459 [1st Cir. 1983]). But he joined the majority on the First Circuit in striking down the GEORGE H.W. BUSH Administration's ban on abortion counseling at family planning clinics funded by the federal government (Commonwealth of Massachusetts v. Secretary of Health and Human Services, 899 F. 2d 53 [1st Cir. 1990]).

Appointed to the U.S. SENTENCING COMMISSION in 1985, Breyer undertook the job of revising criminal-sentencing guidelines. Against strong opposition, he persuaded the other seven judges on the panel to base the guidelines on national averages. The changes, which took effect in 1987, have proven controversial. Critics charge that they have too tightly bound judges and produced inequitable results for minority defendants. In response, Breyer has argued that the guidelines have built-in flexibility that allows judges to influence the Sentencing Commission in future revisions.

President Clinton twice sought Breyer for appointment to the U.S. Supreme Court. Although close to choosing him in 1993, Clinton instead selected RUTH BADER GINSBURG after Breyer became the target of criticism for late payments on SOCIAL SECURITY taxes for a part-time housekeeper. When a second vacancy on the Court opened in 1994, Clinton returned to Breyer. The president compared his intellectual vigor to that of Judge LEARNED HAND, the renowned appellate judge of the 1920s and 1930s. Minor opposition met the nomination. Critics questioned whether Breyer's 1993 book Breaking the Vicious Circle: Toward Effective Risk Regulation went too far in attacking government regulation. Others raised doubts about his investment judgment in losing money in the early 1990s in the Lloyd's of London scandal, Britain's largest insurance disaster ever. At the same time, however, he received praise for his past achievements and for a strong commitment to FIRST AMENDMENT rights. The Senate easily confirmed his appointment on July 29, 1994, by a vote of 87–9.

After two years on the Court, Breyer had aligned himself with the Court's moderates. He dissented when the majority struck down a 1990 federal law that prohibited the carrying of handguns outside schools, arguing that protecting schools should fall under Congress's power to regulate interstate commerce (United States v. Lopez, 514 U.S. 549. 115 S. Ct. 1624, 131 L. Ed. 2d 626 [1995]). He also dissented from the Court's ruling in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), which struck down the 1988 Indian Gaming Regulatory Act for violating STATES' RIGHTS. In a major victory for GAY AND LESBIAN RIGHTS, Breyer joined the majority in overturning Colorado's Amendment 2, which would have removed all legal protection for homosexuals against discrimination (ROMER V. EVANS, 116 S. Ct. 1620, 134 L. Ed. 2d 855 [1996]). And in a significant First Amendment decision, Breyer wrote the plurality opinion declaring that the government may not require cable TV operators to segregate and block leased access channels that feature offensive or indecent programming (Denver Area Consortium v. Federal Communications Commission, 116 S. Ct. 2374 [1996]).

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