Stephen Gerald Breyer (15 August 1938 - ) has served as an Associate Justice on the United States Supreme Court since 1994. He was nominated by Bill Clinton to replace the retiring Justice Harry Blackmun.

Biography

Stephen Breyer was born in 1938 in San Francisco to a middle class Jewish family. His father was a lawyer employed by the local school board, and Breyer states that his father set an example of trust in and love for democracy; his mother was active in the local Democratic Party as well, and taught her son that intellectual prowess alone wasn't enough to succeed in life, that being able to work with others was more important.

He was academically successful during high school, attending a well-reputed local public school. He was on his high school debate team, and was voted "Most Likely to Succeed" by his class. He went on to attend Stanford (his parents having persuaded him that going to Harvard might make him too bookish) and graduated highest honors in 1959. Then he went on to Oxford where he graduated with highest honors again in 1961. Then — finally — off to Harvard to complete his education; he earned his LL.B. in 1964, magna cum laude.

So after he graduated, he went to Washington, D.C. to clerk for Associate Justice Arthur J. Goldberg, like many other eventual Supreme Court justices. He continued to drift in an out of Washington during subsequent years, occasionally taking government jobs like his stint working in the U.S. Department of Justice to develop new antitrust regulation between 1965 and 1967.

During his time at the Department of Justice, he met Joanna Freda Hare, the daughter of wealthy English politician Lord John Blankenham, and in 1967 Stephen and Joanna married. She earned her doctorate in clinical psychology at Harvard, and Stephen became involved as a trustee at the Dana-Farber Cancer Institute where his wife worked.

Around this time, Breyer began teaching at Harvard Law, specializing in federal administrative law, developing a deep and pragmatic understanding of the modern regulatory system. He has criticized the overuse of regulation, believing in the inherent efficiency of the free market and in some of his academic works he argued that "the honest monopolist" — as opposed to a businessman who schemed to unfairly destroy his competitors — should not be penalized. However, he has supported strong regulations in areas of health and safety, where he believes that economic valuation alone isn't a sufficient basis for making decisions.

In 1973 Breyer returned to Washington to work as an assistant special prosecutor during the Watergate scandal. He continued his work for the government after this time, in the role of special counsel to the Administrative Practices Subcommittee of the Senate Judiciary Committee. He began to argue during this period that the federal government's regulation of the airline industry was destroying competition; he was instrumental in the passage of the Airline Deregulation Act of 1978. Opinions differ to this day as to whether the deregulation was a success.

After that, he worked as the chief council of the Senate Judiciary Committee; the experience he had built in developing consensus during the airline deregulation campaign was quite useful to him in this post. Despite his own political sentiments, he developed a reputation among Republicans as fair and unbiased in his work.

His positive reputation among both parties and his experience and proven intelligence earned him Jimmy Carter's nomination to the First Circuit Court of Appeals; while most of Carter's other nominations were stalled by Republicans anticipating Carter's defeat that fall, Breyer's talent for finding bipartisan consensus helped him to get confirmed. Among his other tasks, he was appointed to the U.S. Sentencing Commission in 1985 and helped lead the effort to set standards for sentencing. Reducing judges' discretion in setting sentences was naturally quite a thankless task, and Breyer again shone in his skill at finding compromise; the Supreme Court upheld the constitutionality of the Sentencing Commission in 1989.

On the Court

In 1993, Stephen Breyer was very nearly nominated for the seat vacated by Byron White, but the nomination went to Ruth Bader Ginsburg. Breyer was nominated the next year, though, to replace Harry A. Blackmun, and he was confirmed 87-9, taking his seat on 3 August, 1994. He received strong support from Republican Senator Orrin Hatch and Democrat Ted Kennedy, a signal of his ability to convince those on both sides of the aisle of his skill and impartiality. His pragmatism and lack of a formulaic doctrinal approach to constitutional questions set him apart from the more conservative justices on the Court, and he, along with Ginsburg, John Paul Stevens, and David Souter, are considered the Court's liberal wing.

While the pragmatism that informs Breyer's approach could be considered incompatible with holding any overarching judicial philosophy, Breyer is known for his embrace under certain circumstances of the principle of comparativism, under which issues of law and fairness are elucidated through comparisons with the laws of other countries. Breyer, Ginsburg, and Anthony Kennedy have used such reasoning in their opinions; the "strict constructionists" on the bench, Antonin Scalia in particular, have characterized comparativism as tantamount to making legal decisions on the basis of the laws of other countries.

In 2005, Stephen Breyer wrote a book entitled Active Liberty: Interpreting Our Democratic Constitution, outlining his judicial philosophy in terms of the "active liberty" to participate in government. Breyer believes that the guiding force for the judiciary in interpreting the Constitution should be to increase the democracy of the United States, and that this is the core of the intent of the framers of the Constitution. He believes specifically that "active liberty" is more important that "modern liberty" or negative liberty — the freedom from government interference — because maintaining a strong democracy allows the people themselves to set the balance between rights and restrictions. Breyer's book has been criticized as not truly reflecting the aims of the Constitution, and critics have noted that Breyer himself seems to put this philosophy aside in taking a pro-choice stance on the issue of abortion.

Breyer is a moderate liberal, though not strongly (though whether anyone on the Roberts court could be described as truly liberal is debatable.) He is extremely intelligent and charismatic enough to work well with people of all political beliefs, a set of abilities that matches well with his pragmatic rather than idealistic approach to law. His confirmation to replace Harry Blackmun, the most liberal figure on the Court, was one part of the Rehnquist Court's movement to the right. Under John Roberts, the Court stands to move further to the right, with Sandra Day O'Connor's replacement virtually certain to be more conservative than she is. The Supreme Court's liberal wing may find itself across a chasm from the Court's other justices; Breyer's skills at developing consensus will become more instrumental during his remaining years on the Court.

References

http://www.supremecourthistory.org/myweb/justice/breyer.htm - The Supreme Court Historical Society's bio
http://www.supremecourtus.gov/about/biographiescurrent.pdf - SCOTUS Official Bio
http://supreme.lp.findlaw.com/supreme_court/justices/breyer.html - FindLaw page on Breyer
http://www.oyez.org/oyez/resource/legal_entity/108/ - Oyez page on Breyer
http://www.q-and-a.org/Transcript/?ProgramID=1052 - C-Span Q & A with Breyer
http://www.nytimes.com/library/politics/scotus/articles/051494breyer-profile.html - Scholarly Consensus Builder: Stephen G. Breyer (New York Times)