Justice Stephen Breyer: Advocating for His Position
Justice Breyer
Stephen Breyer was born on August 15, 1938, in San Francisco California. In 1959 he earned his undergraduate degree in philosophy at Stanford University, and went on to win a Marshall Scholarship to attend Magdalen College at Oxford University. After returning to the United States, Breyer attended Harvard Law School, where he joined the Harvard Law Review and graduated with a magna cum laude degree. His early career included serving as a law clerk for Associate Supreme Court Justice Arthur Goldberg, as Special Assistant to the Assistant Attorney General for Anti-Trust, and as an assistant prosecutor during the Watergate hearings. After serving on the Watergate Special Prosecution Force, Breyer in 1973 was appointed special counsel to the Senate Judiciary Committee, and at the end of the decade became the Judiciary Committee's chief counsel. Justice Breyer also served on the faculty of the Harvard Law School for twenty years. In 1980, as an appointee of President Jimmy Carter, Breyer took office as a judge of the U.S. Court of Appeals for the First Circuit. He joined the U.S. Sentencing Commission in 1985, and in 1990 he was named chief judge of the Court of Appeals. Nominated by President Bill Clinton and approved by the Senate in 1993, Stephen Breyer has since served as an Associate Justice of the Supreme Court of the United States.
Stephen Breyer's writings and intellectual interests reflect what he terms his "pragmatic" view of the American Constitution as a document designed to promote, but at the same time place limits, on democratic rule. The separate branches of government with their specified powers and limits serve to make democracy "work" for the people. It is the function of the judicial branch to patrol the boundaries of the Constitution and to safeguard the rights of the people. These ideas are set forth and developed in two important studies, Active Liberty: Interpreting our Democratic Constitution (2006) and Making Democracy Work: A Judge's View (2011). In a variety of cases and contexts Breyer explores the work of a judge within these limitations and possibilities. The Constitution, like a well-crafted instrument, derives much of its legitimacy and power from the public's understanding of its workings, a concept Breyer discusses in his book, Active Liberty.
The court must apply the "enduring values" of the Constitution to changing circumstances. Of course, the immediate question that comes up is what are these values and where can we find them? Breyer follows Judge Learned Hand in his attention to six factors that help a judge arrive at these values in a given case: language, history, structure, precedents, purposes and consequences. However, for Breyer there is no obvious "originalist," "strict" interpretation or overarching legal theory readily available for deciding the largely controversial cases that come before the Supreme Court. In Making Democracy Work, Breyer examines the "history" used to arrive at the infamous Dred Scott decision. In that case, speaking for a confident majority, Chief Justice Roger Taney denied that Scott was a citizen based on presumed historical evidence that blacks "had no rights that the white man was bound to respect," yet Justice Benjamin Curtis, in dissent, pointed out that blacks had enjoyed citizenship rights in several states at the time of the drafting of the Constitution. Whether a judge should adhere strictly to precedent can also be complicated by the simple fact that we live in a changing world. In Brown v. Board of Education the Supreme Court unanimously reversed the "separate but equal" doctrine of Plessy v. Ferguson of 1896. By 1954 it was no longer possible to interpret the equal protection clause of the Fourteenth Amendment as embodying the segregationist assumptions of Plessy.
It is with respect to "purposes" and "consequences" that Breyer's critics are most vocal in their objections to what they see as his "subjective" approach. The late Justice Antonin Scalia, who engaged in public conversations and debates with Justice Breyer, believed that the task of a judge was simply to "follow the law" and to leave less clear matters to legislative bodies. For Breyer, however, ambiguity and vagueness are to be relished as opportunities to probe beyond the literal meaning of a legal text. Language, as Justice Breyer learned as a student of J.L. Austin at Oxford University, is contextual. It embodies a variety of meanings and purposes that can be explored and understood. It is not a static entity. With respect to the First Amendment, for example, there is no "strict" construction of the term "freedom of speech," no absolute meaning of the establishment clause. This supple approach allowed Justice Breyer to arrive at two different judgments with respect to two different public displays of the Ten Commandments because he believed that the underlying purpose of the establishment clause was to avoid the divisiveness and violence that had characterized religious conflict in the two centuries prior to the drafting of the Constitution. In one case, McCreary County v. American Civil Liberties Union, the display seemed to lend government support to a religious message; in the other, Van Orden v. Perry, the display was one of 17 exhibits designed to promote civic responsibility. Breyer had to write his own separate opinion in Van Orden, arguing that the Texas monument's physical setting "suggested little or nothing of the sacred." The Court had divided 5-4 in favor of the view that both displays were unconstitutional. Breyer was able to agree with only one of these decisions (McCreary) because the issue for him was whether the given display was divisive.
Foreign courts and their opinions have long interested Justice Breyer and this interest reflects his remarkable knowledge of foreign culture and law. He taught himself enough French to read Marcel Proust's A La Recherche du Temps Perdu twice in the original, he spent a year working in a French law firm and was inducted into the French Académie des Sciences Morales et Politiques in 2013, joining a small company of American members dating back to Thomas Jefferson. His recent book, The Court and the World: American Law and the New Global Realities (2015), will be the focus of his Boston Speakers Series talk. Four American Supreme Court justices (Roberts, Thomas, Scalia and Alito) are among those who have been critical of the use of foreign law in deciding U.S. court cases. Justice Breyer no doubt will bring his extraordinary breadth of learning and legal experience to bear in advocating for his position that in a global world the Court must increasingly take into account the importance of foreign law in rendering its judgments.