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(Redirected from Justice Stephen G. Breyer) US Supreme Court justice from 1994 to 2022

Stephen Breyer
Official portrait of Stephen Breyer as Associate Justice of the Supreme Court of the United StatesOfficial portrait, c. 2006
Associate Justice of the Supreme Court of the United States
In office
August 3, 1994 – June 30, 2022
Nominated byBill Clinton
Preceded byHarry Blackmun
Succeeded byKetanji Brown Jackson
Chief Judge of the United States Court of Appeals for the First Circuit
In office
March 1990 – August 3, 1994
Preceded byLevin H. Campbell
Succeeded byJuan R. Torruella
Judge of the United States Court of Appeals for the First Circuit
In office
December 10, 1980 – August 3, 1994
Nominated byJimmy Carter
Preceded bySeat established
Succeeded bySandra Lynch
Personal details
BornStephen Gerald Breyer
(1938-08-15) August 15, 1938 (age 86)
San Francisco, California, U.S.
Political partyDemocratic
Spouse Joanna Hare ​(m. 1967)​
Children3
RelativesCharles Breyer (brother)
Education
SignatureCursive signature in ink
Military service
Allegiance United States
Branch/service United States Army
United States Army Reserve
Years of service1957–1965
Rank Corporal
Unit Army Strategic Intelligence
Battles/warsVietnam War
Stephen Breyer's voice Stephen Breyer delivers the opinion of the Court in Washington State Dept. of Licensing v. Cougar Den, Inc.
Recorded March 19, 2019
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Stephen Gerald Breyer (/ˈbraɪ.ər/ BRY-ər; born August 15, 1938) 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. He is now the Byrne Professor of Administrative Law and Process at Harvard Law School.

Born in San Francisco, Breyer attended Stanford University, 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. (née Roberts) 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 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 R. Breyer, who later became a federal district judge, were active in the Boy Scouts of America and achieved the Eagle Scout rank. 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 The Honourable 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. He served briefly as a fact-checker for the Warren Commission, then spent 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 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, Breyer wrote "The Uneasy Case for Copyright", one of the most widely cited skeptical examinations of copyright. Breyer was a visiting professor at the College of Law in Sydney, Australia, the University of Rome, and the 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)

External videos
video icon Justice Stephen Breyer: The Court And The World, 1:14:57, WGBH Forum Network

In the last days of President Jimmy Carter's administration, on November 13, 1980, after he had been defeated for reelection, Carter nominated Breyer to the First Circuit, to a new seat established by 92 Stat. 1629, and the United States Senate confirmed him on December 9, 1980, by an 80–10 vote. He received his commission on December 10, 1980. From 1980 to 1994, Breyer 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 his duties as chief judge was to oversee the design and construction of a new federal courthouse for Boston, beginning an avocational interest in architecture and the Pritzker Architecture Prize.

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. On the sentencing commission he played a key role in reforming federal criminal sentencing procedures, producing the Federal Sentencing Guidelines, which were formulated to increase uniformity in sentencing.

Supreme Court (1994–2022)

Breyer speaking in Philadelphia, Pennsylvania, in 2011

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.

After Harry Blackmun retired in 1994, Clinton initially offered the nomination to George Mitchell, the Senate Majority Leader, who was retiring. Mitchell declined. Former governor of Arizona Bruce Babbitt, who ran for president in 1988 and was serving as Secretary of the Interior, was then offered the nomination, but also declined, saying he was looking forward to spending more time with his wife, Harriet C. Babbitt. She was serving as the 12th United States Ambassador to the Organization of American States. Babbitt later said that had he been confirmed to the court, she would have been compelled to resign and that he did not want to cause that. Both served in their positions to the end of Clinton's presidency in January 2001. Clinton next offered the nomination to Harriett Woods, a former lieutenant governor of Missouri and two-time Democratic nominee for U.S. Senate. Woods was serving as president of the National Women's Political Caucus. She also declined, and recommended Breyer and U.S. representative Barbara Jordan.

Clinton then turned to Richard S. Arnold, a former Arkansas state representative and chief of staff to Arkansas Governor Dale Bumpers. President Jimmy Carter had nominated Arnold to the United States Court of Appeals for the Eighth Circuit, and the Senate confirmed him on February 20, 1980. He served till 1990. After that, he was serving as chief judge and a member of the Judicial Conference of the United States. Clinton had almost nominated Arnold before; he was the runner-up to Ginsburg. Arnold told Clinton the day before the planned announcement of his nomination that due to serious "health concerns", he had to "defer this honorable nomination".

Initially, Clinton had felt Breyer lacked "soul and passion". But after heavy lobbying by Senators Ted Kennedy and Tom Harkin, Clinton met with Breyer again and proceeded to nominate him as an associate justice of the United States Supreme Court on May 17, 1994. Breyer was confirmed by the Senate on July 29, 1994, by an 87 to 9 vote, and received his commission on August 3.

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.

Breyer wrote 551 opinions during his 28-year career, not counting those relating to orders or in the "shadow docket".

Abortion

In 2000, Breyer wrote the majority opinion in Stenberg v. Carhart, which struck down a Nebraska law banning partial-birth abortion. On June 29, 2020, he wrote the plurality opinion in June Medical Services v. Russo. The ruling struck down Louisiana's abortion law requiring any doctor who performed abortions to have admitting privileges at a hospital within 30 miles. Breyer reaffirmed the "benefits and burdens" test he had created in Whole Woman's Health v. Hellerstedt, which struck down a nearly identical abortion law in Texas. In 2022, he dissented in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade.

Census

In Department of Commerce v. New York (2019), Breyer was in the 5–4 majority that ruled that the Census Bureau had not followed proper procedure in its implementation of a citizenship question. He was also one of four justices who would have held the citizenship question unconstitutional in itself. In a mostly concurring opinion, he wrote: "Yet the decision was ill considered in a number of critically important respects. The Secretary did not give adequate consideration to issues that should have been central to his judgment, such as the high likelihood of an undercount, the low likelihood that a question would yield more accurate citizenship data, and the apparent lack of any need for more accurate citizenship data to begin with. The Secretary's failures in considering those critical issues make his decision unreasonable".

On December 18, 2020, Breyer was one of three dissenters in Trump v. New York. In a 20-page dissent, he argued that the Court should not have sidestepped the case and should have ruled in favor of the challengers, who wanted the Court to block the Trump administration's last-minute attempts to exclude undocumented immigrants from the census. The census ultimately did not exclude undocumented immigrants, due to a lack of time and the subsequent issuance of Executive Order 13986.

Copyright

In Eldred v. Ashcroft, decided on January 15, 2003, Breyer and Justice John Paul Stevens filed separate dissenting opinions. In his 28-page dissent, Breyer argued that the 20-year retroactive extension of existing copyright granted by the Copyright Term Extension Act (CTEA) amounted effectively to a grant of perpetual copyright that violated the Copyright Clause of the Constitution, read in light of the First Amendment. He argued that the extension would produce a period of protection worth more than 99.8% of protection in perpetuity and that few artists would be more inclined to produce work knowing that their great-grandchildren would receive royalties. He also wrote that the fair use defense came to no avail either, as it could not help "those who wish to obtain from electronic databases material that is not there", e.g. teachers who can find from online no ideal material to be used in the class as it has been deleted. In 2012, he expressed a similar idea in his dissent in Golan v. Holder, which affirmed the constitutionality of the application of Section 514 of the Uruguay Round Agreements Act of 1994.

In 2005, while joining a unanimous Court in MGM Studios, Inc. v. Grokster, Ltd. against peer-to-peer file sharing companies Grokster and Streamcast on the ground of inducement liability, Breyer wrote a concurrence that the companies would be protected under the Sony doctrine without evidence of inducement.

On March 20, 2012, Breyer wrote for a unanimous court in Mayo v. Prometheus that patent claims relating to new diagnostic methods of natural phenomena were not patentable as they did not add an "inventive concept to application of the natural laws". The patent, which was related to a patient's metabolization of a drug resulting from a determination of effective dosage, was analyzed to determine whether it was of an applied "law of nature" or merely an instruction on applying a natural law. In Breyer's analysis, a doctor's administration of an already known drug related only to an identification of an "intended audience" to carry out the practice rather than a transformation of the subject. Breyer added, "If a law of nature is not patentable, then neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself."

In American Broadcasting Cos., Inc. v. Aereo, Inc., decided on June 25, 2014, Breyer delivered the majority opinion, ruling that Aereo, allowing subscribers to view near-live streams of over-the-air television on Internet-connected devices, operated so overwhelmingly similar to the cable companies that it violated the right of public performance of the networks' copyrighted work.

In Google v. Oracle, decided on April 5, 2021, Breyer wrote the 38-page majority opinion, holding that Google's copying of 11,500 lines of Java declaring code (0.4% of all Java code) constituted fair use because "three of these packages were ... fundamental to being able to use the Java language at all". Breyer explained, "By using the same declaring code for those packages, programmers using the Android platform can rely on the method calls that they are already familiar with to call up particular tasks (e.g., determining which of two integers is the greater); but Google's own implementing programs carry out those tasks. Without that copying, programmers would need to learn an entirely new system to call up the same tasks."

Death penalty

In 2015, Breyer dissented in Glossip v. Gross, which held by a 5–4 vote that prisoners challenging their executions must provide a "known and available" execution method before challenging their method of execution. In a dissent joined by Ginsburg, Breyer questioned the constitutionality of the death penalty itself. He wrote, "For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question." In July 2020, Breyer reiterated this position, writing, "As I have previously written, the solution may be for this Court to directly examine the question whether the death penalty violates the Constitution."

Free speech

On June 18, 2015, Breyer wrote the majority opinion in Walker v. Texas Division, Sons of Confederate Veterans. He wrote that license plates are considered governmental speech and are more subject to regulation than private speech. In doing so, he noted that States have historically used license plates to convey governmental messages and that speech appearing on "what is essentially a government-issued ID" could reasonably assumed to be associated with the State. Breyer also commented on the differences between the government and private citizens, saying that government speech "is not barred by the Free Speech Clause from determining the content of what it says. Were the Free Speech Clause interpreted otherwise, government would not work".

On June 23, 2021, Breyer authored the majority opinion in Mahanoy Area School District v. B.L., relating to the role of school regulation of off-campus student speech. In his opinion he noted the importance of potential regulation of such speech by school authorities but acknowledged that such regulation was diminished due to the potential implication of a 24-hour restriction on student speech if fully realized, its traditional role under parental supervision, and the interest of schools in safeguarding the marketplace of ideas. Despite this, Breyer stipulated that the utterance of profanity on social media did not constitute "substantial disruptance" of a school activity or threaten harm to others, writing, "the justifications offered for punishing Levy's speech were simply insufficient were she an adult, the First Amendment would provide strong protection".

Defendant protections

On June 21, 2011, Breyer wrote for the majority in Turner v. Rogers on the requirement of counsel or some other safeguard in civil contempt cases. In his opinion, he acknowledged that a right to counsel does not exist in all matters relating to incarceration, as in civil contempt cases the defendant's opponent is also often unrepresented, the arguments typically center on straightforward questions, and substitute safeguards are available. These safeguards, such as soliciting financial information or informing the defendant of the legal significance of payment, were required to have been provided by the state on pain of an erroneous deprivation of liberty.

On June 22, 2015, Breyer wrote for the majority in Kingsley v. Hendrickson that a pretrial detainee must prove that excessive police force was excessive only by an objective standard, not a subjective standard. In his opinion, he wrote that the Due Process Clause protects pretrial detainees from "objectively unreasonable" force by a state actor. He concluded, "in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not 'rationally related to a legitimate non-punitive governmental purpose' or that the actions 'appear excessive in relation to that purpose.'"

On February 21, 2018, Breyer wrote for the majority in Class v. United States on whether some who has already pleaded guilty may challenge a federal law's constitutionality. In his opinion, he distinguished Class from past cases where appeal was denied, such as United States v. Broce and Menna v. New York, as Class's admission of guilt resulted in his ability to appeal the questioned indictments that his record would otherwise have contradicted. He concluded, "the claims at issue here do not fall within any of the categories of claims that Class's plea agreement forbids him to raise on direct appeal. They challenge the Government's power to criminalize Class's (admitted) conduct. They thereby call into question the Government's power to 'constitutionally prosecute' him. A guilty plea does not bar a direct appeal in these circumstances.”

Native American law

On November 27, 2001, Breyer wrote the majority opinion in Chickasaw Nation v. United States, relating to whether tribes are liable for taxes on gambling operations. In his opinion, he stipulated that IRC chapter 35, which affords state governmental lotteries an exemption from federal excise taxes, does not provide the same tax exemption to tribal pull-tab operations that act as lotteries under the IRC. Breyer wrote that a straightforward reading of the code, which stipulated that the "reporting and withholding of taxes" on gambling operations applied equally to both the states and tribes, was "included inadvertently. The presence of a bad example in a statute does not warrant rewriting the remainder of the statute's language. Nor does it necessarily mean that the statute is ambiguous." Chapter 35, according to Breyer, "simply imposes taxes from which it exempts certain state-controlled gambling activities".

On April 19, 2004, Breyer wrote the majority opinion in United States v. Lara, holding that both tribal governments and the federal government may prosecute non-member Native Americans for the same charges without violating the Double Jeopardy Clause, as Native Nations are separate sovereigns. He reiterated this question in the context of the tribe's sovereignty as "Whether Congress has the constitutional power to relax restrictions that the political branches have, over time, placed on the exercise of a tribe's inherent legal authority". Breyer concluded that the Indian Commerce Clause gives Congress the authority to legislate with respect to tribes and that Congress's amendments to the Indian Civil Rights Act constitute a deference to tribal sovereignty ensuring double jeopardy does not apply.

Environment

In Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. (2000), Breyer was in the 7–2 majority that held that people who use the North Tyger River for recreational purposes but could not do so due to pollution had standing to sue industrial polluters.

On April 23, 2020, Breyer wrote the majority opinion in County of Maui v. Hawaii Wildlife Fund. The Court ruled that the County of Maui must have a permit under the Clean Water Act in order to release groundwater pollution into the ocean. Although the ruling was less broad than the 9th Circuit's ruling, environmentalist groups saw the ruling as a win and an affirmation of the Clean Water Act.

On July 31, 2020, Breyer dissented when the Supreme Court, in a 5–4 decision, refused to lift a stay on the 9th Circuit ruling that halted construction of the wall at the U.S.-Mexico border. The Sierra Club argued that the wall would harm the environment unduly, including threatening wildlife and changing the flow of water in the Sonoran Desert. Breyer wrote, "The Court's decision to let construction continue nevertheless, I fear, may 'operat, in effect, as a final judgment.'" Ginsburg, Sotomayor, and Kagan joined his dissent.

On March 4, 2021, Breyer dissented in United States Fish and Wildlife Serv. v. Sierra Club, Inc., joined only by Sotomayor. The case concerned the Sierra Club's request under the Freedom of Information Act (FOIA) for "draft opinions" concerning rules governing underwater structures that are used to cool industrial equipment. The Sierra Club argued that it had the right to access the documents. The majority opinion limits environmental groups' ability to obtain government documents under FOIA. Breyer wrote in his dissent, "Agency practice shows that the Draft Biological Opinion, not the Final Biological Opinion, is the document that informs the EPA of the Services' conclusions about jeopardy and alternatives and triggers within the EPA the process of deciding what to do about those conclusions. If a Final Biological Opinion is discoverable under FOIA, as all seem to agree it is, why would a Draft Biological Opinion, embodying the same Service conclusions (and leaving the EPA with the same four choices), not be?"

In Hollyfrontier Cheyenne Refining v. Renewable Fuels Association, Breyer ruled for oil refineries, joining the majority opinion, which held that oil refineries struggling financially did not need a continuous exemption every year since 2011 in order to be granted an exemption from federal renewable fuels policy.

Health care

Breyer generally voted to uphold the Affordable Care Act since its passage in 2010. He wrote the 7-2 majority opinion in California v. Texas, a decision on June 17, 2021, holding that Texas and other states lacked standing to sue against the Affordable Care Act's individual mandate. Breyer wrote, "It is consequently not surprising that the plaintiffs cannot point to cases that support them. To the contrary, our cases have consistently spoken of the need to assert an injury that is the result of a statute's actual or threatened enforcement, whether today or in the future."

Partisan gerrymandering

On April 28, 2004, Breyer dissented in Vieth v. Jubelirer, in which the Court held that partisan gerrymandering is a non-justiciable claim. Breyer wrote in his dissent, "Sometimes purely political 'gerrymandering' will fail to advance any plausible democratic objective while simultaneously threatening serious democratic harm. And sometimes when that is so, courts can identify an equal protection violation and provide a remedy." In 2006, Breyer was in a 5–4 majority holding that District 23 of the 2003 Texas redistricting violated the Voting Rights Act due to vote dilution. Along with Justice John Paul Stevens, Breyer would also have ruled in favor of plaintiffs' claims that Texas's statewide plan was an unconstitutional partisan gerrymander. In June 2019, Breyer dissented in Rucho v. Common Cause, in which the Supreme Court decided 5–4 that gerrymandering is a non-justiciable claim.

Voting rights

Breyer wrote the majority opinion in Alabama Legislative Black Caucus v. Alabama, which ruled that racial gerrymandering claims must be looked at district by district, and struck down four of Alabama's state Senate districts as unconstitutional racial gerrymanders.

Breyer joined Ginsburg's dissent in Shelby County v. Holder. A 5–4 majority ruled that Section 4(b) of the Voting Rights Act is unconstitutional. Breyer joined another dissent by Ginsburg in RNC v. DNC, which overturned a lower court's extension of a voting deadline in the Wisconsin primary elections. The lower court had extended the deadline so that people who had not yet received mail-in ballots by April 7 could vote by mail in the wake of the COVID-19 pandemic. Breyer dissented in a similar Wisconsin case in October; the petitioners had asked the court to require Wisconsin to count mail-in ballots received up to six days after Election Day, and the Court, with Breyer, Sotomayor, and Kagan dissenting, refused the petitioners' request to extend the deadline. Breyer joined Kagan's dissent in Brnovich v. DNC (2021), a case that upheld Arizona's ban on ballot harvesting and refusal to count out-of-precinct ballots. As the most senior dissenter, Breyer likely assigned the dissenting opinion to Kagan.

Retirement

Breyer announcing his pending retirement alongside President Joe Biden on January 27, 2022
Breyer in 2024

After Democratic victories in the 2020 presidential and Senate elections, progressive activists and Democratic members of Congress called on Breyer to retire so that President Biden could nominate a younger liberal justice. In an August 2021 New York Times interview, Breyer said he wished to retire before his death, and recounted a conversation he had with Justice Antonin Scalia in which Scalia mentioned that he did not want his successor to "reverse everything I've done for the last 25 years". Breyer said that Scalia's point will "inevitably be in the psychology" of his decision to retire. In a September 2021 interview with Fox News's Chris Wallace, Breyer said activists calling for his retirement are "entitled to their opinion" and "I didn't retire because I had decided on balance I wouldn't retire". He said he took several factors into account when deciding his retirement plans, and reiterated that he did not plan to "die on the court".

On January 26, 2022, news outlets reported Breyer's intention to retire from the court at the end of the 2021–22 term. Breyer confirmed his pending retirement in a White House announcement alongside Biden on January 27. On February 25, Biden announced his nomination of Ketanji Brown Jackson, a former clerk of Breyer and judge of the United States Court of Appeals for the District of Columbia Circuit, to succeed Breyer on the Supreme Court. The U.S. Senate confirmed Jackson by a vote of 53–47 on April 7, 2022. The last opinion Breyer wrote before his retirement was the majority opinion in Torres v. Texas Department of Public Safety. He retired on June 30, 2022, at 12:00 noon EDT, following the court's final opinions and orders for the term. Breyer's retirement left only one military veteran, Samuel Alito, on the Supreme Court.

Judicial philosophy

In general

Further information: Purposive approach

Breyer's pragmatic approach to the law "will tend to make the law more sensible", according to Cass Sunstein, who added that Breyer's "attack on originalism is powerful and convincing".

Breyer consistently voted in favor of abortion rights, one of the most controversial areas of the Supreme Court's docket. He also defended the Court's use of foreign law and international law as persuasive (but not binding) authority in its decisions. Breyer is also recognized as deferential to the interests of law enforcement and to legislative judgments in the Court's First Amendment rulings. He demonstrated a consistent pattern of deference to Congress, voting to overturn congressional legislation at a lower rate than any other Justice since 1994.

Breyer's extensive experience in administrative law is accompanied by his staunch defense of the Federal Sentencing Guidelines. He rejects the strict interpretation of the Sixth Amendment espoused by Justice Scalia that all facts necessary to criminal punishment must be submitted to a jury and proved beyond a reasonable doubt. In many other areas on the Court, too, Breyer's pragmatism was considered the intellectual counterweight to Scalia's textualist philosophy.

In describing his interpretive philosophy, Breyer has sometimes noted his use of six interpretive tools: text, history, tradition, precedent, the purpose of a statute, and the consequences of competing interpretations. He has noted that only the last two differentiate him from textualists such as Scalia. Breyer argues that these sources are necessary, however, and in the former case (purpose), can in fact provide greater objectivity in legal interpretation than looking merely at what is often ambiguous statutory text. With the latter (consequences), Breyer argues that considering the impact of legal interpretations is a further way of ensuring consistency with a law's intended purpose.

Active Liberty

Breyer in 2011

Breyer expounded his judicial philosophy in 2005 in Active Liberty: Interpreting Our Democratic Constitution. In it, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings fit those purposes. The book is considered a response to the 1997 book A Matter of Interpretation, in which Antonin Scalia emphasized adherence to the original meaning of the text alone.

In Active Liberty, Breyer argues that the Framers of the Constitution sought to establish a democratic government involving the maximum liberty for its citizens. Breyer refers to Isaiah Berlin's Two Concepts of Liberty. The first Berlinian concept, being what most people understand by liberty, is "freedom from government coercion". Berlin termed this "negative liberty" and warned against its diminution; Breyer calls this "modern liberty". The second Berlinian concept—"positive liberty"—is the "freedom to participate in the government". In Breyer's terminology, this is the "active liberty" the judge should champion. Having established what "active liberty" is, and positing the primary importance (to the Framers) of this concept over the competing idea of "negative liberty", Breyer makes a predominantly utilitarian case for rulings that give effect to the democratic intentions of the Constitution.

The book's historical premises and practical prescriptions have been challenged. For example, according to Peter Berkowitz, the reason that "he primarily democratic nature of the Constitution's governmental structure has not always seemed obvious", as Breyer puts it, is "because it's not true, at least in Breyer's sense, that the Constitution elevates active liberty above modern liberty". Breyer's position "demonstrates not fidelity to the Constitution", Berkowitz argues, "but rather a determination to rewrite the Constitution's priorities". Berkowitz suggests that Breyer is also inconsistent in failing to apply this standard to the issue of abortion, instead preferring decisions "that protect women's modern liberty, which remove controversial issues from democratic discourse". Failing to answer the textualist charge that the Living Documentarian judge is a law unto himself, Berkowitz argues that Active Liberty "suggests that when necessary, instead of choosing the consequence that serves what he regards as the Constitution's leading purpose, Breyer will determine the Constitution's leading purpose on the basis of the consequence that he prefers to vindicate".

Against the last charge, Cass Sunstein has defended Breyer, noting that of the nine justices on the Rehnquist Court, Breyer had the highest percentage of votes to uphold acts of Congress and also to defer to the decision of the executive branch. However, according to Jeffrey Toobin in The New Yorker, "Breyer concedes that a judicial approach based on 'active liberty' will not yield solutions to every constitutional debate", and that, in Breyer's words, "respecting the democratic process does not mean you abdicate your role of enforcing the limits in the Constitution, whether in the Bill of Rights or in separation of powers."

To this point, and from a discussion at the New York Historical Society in March 2006, Breyer has noted that "democratic means" did not bring about an end to slavery, or the concept of "one man, one vote", and it is the concept of universal suffrage that allowed corrupt and discriminatory (but democratically inspired) state laws to be overturned in favor of civil rights.

Other books

In 2010, Breyer published a second book, Making Our Democracy Work: A Judge's View. In it, he argues that judges have six tools they can use to determine a legal provision's proper meaning: (1) its text; (2) its historical context; (3) precedent; (4) tradition; (5) its purpose; and (6) the consequences of potential interpretations. Textualists, like Scalia, only feel comfortable using the first four of these tools; while pragmatists, like Breyer, believe that "purpose" and "consequences" are particularly important interpretative tools.

Breyer cites several watershed moments in Supreme Court history to show why the consequences of a particular ruling should always be in a judge's mind. He notes that President Jackson ignored the Court's ruling in Worcester v. Georgia, which led to the Trail of Tears and severely weakened the Court's authority. He also cites the Dred Scott decision, an important precursor to the American Civil War. When the Court ignores the consequences of its decisions, Breyer argues, it can lead to devastating and destabilizing outcomes.

In 2015, Breyer released a third book, The Court and the World: American Law and the New Global Realities, examining the interplay between U.S. and international law and how the realities of a globalized world need to be considered in U.S. cases.

On March 26, 2024, Breyer released a fourth book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. In an interview about the book, he said that textualism, a judicial philosophy conservative justices favor, "will not help achieve the goals of those who write statutes or those who wrote and adopted the Constitution" and is doomed to fail.

Other views

In an interview on Fox News Sunday on December 12, 2010, Breyer said that based on the values and the historical record, the Founding Fathers of the United States never intended guns to go unregulated and that history supports his and the other dissenters' views in District of Columbia v. Heller. He summarized:

We're acting as judges. If we're going to decide everything on the basis of history—by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns? Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have a gun.

In the wake of the controversy over Justice Samuel Alito's reaction to President Barack Obama's criticism of the Court's Citizens United v. FEC ruling in his 2010 State of the Union Address, Breyer said he would continue to attend the address:

I think it's very, very, very important—very important—for us to show up at that State of the Union, because people today are more and more visual. What see in front of them at the State of the Union is that federal government. And I would like them to see the judges too, because federal judges are also a part of that government.

Honors

Breyer was elected to the American Philosophical Society in 2004. In 2007, Breyer was honored with the Distinguished Eagle Scout Award by the Boy Scouts of America. In 2018, he was named to chair of the Pritzker Architecture Prize jury, succeeding previous chair Glenn Murcutt.

In popular culture

Breyer has appeared as a guest on Stephen Colbert's TV show. On the Late Show in September 2021, he discussed the Texas Heartbeat Act and his reluctance to retire.

Breyer appeared on Fareed Zakaria GPS on CNN in September 2021 where he was questioned on when he planned to retire. He promoted his book The Authority of the Court and the Peril of Politics.

Publications

See also

References

  1. Weiss, Debra Cassens (February 3, 2020). "Which SCOTUS justices are registered Democrats or Republicans? Fix the Court investigates". ABA Journal. Retrieved March 9, 2024.
  2. Kersch, Ken (2006). "Justice Breyer's Mandarin Liberty". University of Chicago Law Review. 73: 759–822. Archived from the original on December 26, 2017. As his decision to characterize both the New Deal and Warren Courts as centrally committed to democracy and 'active liberty' makes clear, Justice Breyer identifies his own constitutional agenda with that of these earlier courts, and positions himself, in significant respects, as a partisan of midcentury constitutional liberalism.
  3. "Justice Stephen Breyer returns to Harvard Law School". Harvard Law Today (Press release). July 15, 2022. Retrieved July 16, 2022.
  4. ^ Smentkowski, Brian P. (August 11, 2021). "Stephen Breyer". Encyclopædia Britannica. Archived from the original on October 9, 2021. Breyеr received bachelor's degrees from Stanford University (1959) and the University of Oxford (1961), which he attended on a Rhodes Scholarship, and a law degree from Harvard University (1964). In 1964–65 he clerked for U.S. Supreme Court Justice Arthur J. Goldberg. He taught law at Harvard University from 1967 to 1994.
  5. Shear, Michael (January 27, 2022). "Biden calls Breyer a 'model public servant' and plans to name his successor soon". The New York Times. Retrieved January 27, 2022.
  6. Macaya, Melissa (February 25, 2022). "Biden nominates Ketanji Brown Jackson to Supreme Court". CNN. Retrieved February 26, 2022.
  7. Chowdhury, Maureen; Lee, Ji Min; Wagner, Meg; Macaya, Melissa (April 7, 2022). "Jackson won't be sworn in until Justice Stephen Breyer retires". CNN. Retrieved April 7, 2022.
  8. Blitzer, Ronn (June 29, 2022). "Supreme Court Justice Stephen Breyer to retire Thursday: 'It has been my great honor'". Fox News. Retrieved June 29, 2022.
  9. Urofsky, Melvin I. (May 25, 2006). Biographical Encyclopedia of the Supreme Court: The Lives and Legal Philosophies of the Justices. Washington, DC: CQ Press. p. 74. ISBN 9781452267289. Archived from the original on September 3, 2020. Retrieved November 8, 2021.
  10. Egelko, Bob (June 29, 2022). "'A justice of great intellect': S.F.-born Justice Breyer steps down from Supreme Court". sfchronicle.com. Archived from the original on August 19, 2022. Retrieved June 27, 2024.
  11. Walsh, Mark (April 11, 2018). "For One Supreme Court Justice, a Personal Connection to School Law". Education Week. ISSN 0277-4232. Retrieved January 26, 2022.
  12. Slater, Elinor; Slater, Robert (January 1996). Great Jewish Men. Jonathan David Publishers. p. 73. ISBN 9780824603816.
  13. "Stephen G. Breyer". Oyez. Archived from the original on March 21, 2007. Retrieved March 21, 2007.
  14. Townley, Alvin (2007) . Legacy of Honor: The Values and Influence of America's Eagle Scouts. New York: St. Martin's Press. pp. 56–59. ISBN 978-0-312-36653-7. Archived from the original on December 19, 2006. Retrieved December 29, 2006.
  15. Ray, Mark (2007). "What It Means to Be an Eagle Scout". Scouting. Boy Scouts of America. Archived from the original on November 13, 2018. Retrieved January 5, 2007.
  16. ^ "Oyez Bio". Archived from the original on March 21, 2007. Retrieved March 21, 2007. (For Brown; need cite for Tribe)
  17. ^ Toobin, Jeffrey (October 31, 2005). "Breyer's Big Idea". The New Yorker. Archived from the original on March 17, 2014. Retrieved February 18, 2020.
  18. Serial No. J-103-64 (PDF). Washington, DC: U.S. Government Printing Office. 1995. p. 24. ISBN 01-6-046946-5. Archived (PDF) from the original on December 3, 2018. Retrieved April 5, 2018.
  19. "Inaugural D.C. French Festival launches sans the Freedom Fries". Washington Life Magazine. October 12, 2006. Archived from the original on August 30, 2008. Retrieved August 30, 2010.
  20. "Senate Judiciary Committee Initial Questionnaire (Supreme Court)" (PDF). Washington, DC: United States Senate Judiciary Committee. Archived (PDF) from the original on December 9, 2020. Retrieved August 24, 2020.
  21. ^ The Justices of the Supreme Court. Retrieved April 6, 2012
  22. Jasanoff, Sheila (Spring 1994). "The dilemmas of risk regulation: Breaking the Vicious Circle by Stephen Breyer". Issues in Science and Technology. Archived from the original on November 18, 2007.
  23. "Tulane Law School – Study Abroad". Law.tulane.edu. June 16, 2011. Archived from the original on April 19, 2017. Retrieved February 14, 2012.
  24. Thierer, Adam (December 21, 2010). "Who'll Really Benefit from Net Neutrality Regulation?". CBS News. Archived from the original on October 19, 2013. Retrieved December 22, 2010.
  25. "Stephen Breyer: The Court and the World". WGBH Forum Network. November 6, 2015. Archived from the original on March 22, 2016. Retrieved April 9, 2015.
  26. "TO CONFIRM THE NOMINATION OF STEPHEN G. BREYER TO BE ... – Senate Vote #1021 – Dec 9, 1980". Archived from the original on October 29, 2020. Retrieved October 7, 2020.
  27. Pedersen, Martin (August 8, 2018). "Supreme Court Justice Stephen Breyer: 'To Understand a Building, Go There, Open your Eyes, and Look!'". Arch Daily. Archived from the original on September 20, 2020. Retrieved March 4, 2020.
  28. "Justice Breyer Should Recuse Himself from Ruling on Constitutionality of Federal Sentencing Guidelines, Duke Law Professor Says". Duke University News. September 28, 2004. Archived from the original on July 31, 2012.
  29. Burr, Thomas (July 29, 2018). "Sen. Orrin Hatch's impact on the Supreme Court: How a one-time lawyer from Pittsburgh shaped the highest court in the land". The Salt Lake Tribune. Archived from the original on December 15, 2023. Retrieved March 18, 2024.
  30. Berke, Richard (June 15, 1993). "The Overview; Clinton Names Ruth Ginsburg, Advocate for Women, to Court". The New York Times. Archived from the original on November 5, 2020. Retrieved February 18, 2017.
  31. Toobin, Jeffrey (2007). The Nine: Inside the Secret World of the Supreme Court
  32. John Paul Frank; A. Leon Higginbotham Jr. (1993). "A Brief Biography of Judge Richard S. Arnold"
  33. Toobin, Jeffrey (2007). The Nine: Inside the Secret World of the Supreme Court
  34. Toobin, Jeffrey (2007). The Nine: Inside the Secret World of the Supreme Court
  35. Hananel, Sam (October 16, 2015). "Supreme Court justice took part in case despite wife's stock ownership". PBS NewsHour. Fed. Energy Regulatory Comm'n v. Elec. Power Supply Ass'n, 577 U.S. ___ (2016).
  36. "Stephen Breyer". Ballotpedia. Archived from the original on May 2, 2021. Retrieved May 7, 2021.
  37. "The Women of Roe v. Wade". First Things. June 2003.
  38. ^ Stenberg v. Carhart, 530 U.S. 914 (2000).
  39. "June Medical Services L. L. C. et al. v. Russo, Interim Secretary, Louisiana Department Of Health And Hospitals" (PDF). June 29, 2020. Archived from the original (PDF) on February 14, 2021. Retrieved February 14, 2021.
  40. "Department of Commerce v. New York" (PDF). supremecourt.gov. June 27, 2019. Archived (PDF) from the original on August 23, 2020. Retrieved May 22, 2021.
  41. "Trump v. New York" (PDF). supremecourt.gov. December 18, 2020. Archived (PDF) from the original on April 28, 2021. Retrieved May 22, 2021.
  42. "Supreme Court Decision on Eldred v Ashcroft - Breyer J., dissenting" (PDF). Retrieved November 22, 2010.
  43. "Supreme Court Decision on Golan v Holder". Retrieved July 6, 2022.
  44. "Supreme Court Decision on Grokster". Retrieved July 6, 2022.
  45. Denniston, Lyle (June 20, 2012). "Making Sense of Opinion recap: Freeing doctors to practice". Scotusblog.
  46. Patel, Sailesh (March 23, 2012). "The Supreme Court's Mayo v. Prometheus Decision The Implications for Biotechnology". The National Law Review.
  47. Dorn, Brian (June 27, 2013). "Mayo v. Prometheus: A Year Later". ACS Medicinal Chemistry Letters. 4 (7): 572–573. doi:10.1021/ml400230u. PMC 4027457. PMID 24900711.
  48. Harmon Arner, Erika; Bianco, Krista (June 21, 2012). "MA Summary of the Supreme Court's Prometheus Decision". Finnegan, Henderson, Farabow, Garrett & Dunner.
  49. Mann, Ronald (March 21, 2012). "Court's biotech case sends stern warning to Federal Circuit and software designers". SCOTUSblog.
  50. "Supreme Court Decision on Aereo". Retrieved July 6, 2022.
  51. "Google v. Oracle" (PDF). supremecourt.gov. April 5, 2021. Retrieved May 22, 2021.
  52. "GLOSSIP ET AL. v. GROSS ET AL" (PDF). June 29, 2015. Archived from the original (PDF) on February 4, 2021. Retrieved February 14, 2021.
  53. "WILLIAM P. BARR, ATTORNEY GENERAL, ET AL. v. DANIEL LEWIS LEE, ET AL" (PDF). July 14, 2020. Archived from the original (PDF) on February 4, 2021. Retrieved February 14, 2021.
  54. Denniston, Lyle (June 18, 2015). "Opinion analysis: The message determines the right". Scotusblog.
  55. Liptak, Adam (June 18, 2015). "Supreme Court Says Texas Can Reject Confederate Flag License Plates". The New York Times.
  56. Walsh, Mark (June 18, 2015). "A "view" from the Courtroom: A bonus day for opinions". Scotusblog.
  57. Lithwick, Dahlia (June 18, 2015). "Reality Strikes the Supreme Court". Slate.
  58. Walsh, Mark (June 23, 2021). "U.S. Supreme Court Rules for Cheerleader Who Posted Vulgar Snapchat Message". Education Week.
  59. Taticci, Mark (June 23, 2021). "Supreme Court Decides Mahanoy Area School District v. B.L." Faegre Drinker.
  60. Howe, Amy (June 23, 2021). "Court rules for high school cheerleader in First Amendment dispute over Snapchat profanity". SCOTUSblog.
  61. Totenberg, Nina (June 23, 2021). "Supreme Court Rules Cheerleader's F-Bombs Are Protected By The 1st Amendment". NPR.
  62. Millhiser, Ian (June 23, 2021). "The Supreme Court's "cursing cheerleader" case is its biggest student free speech case in 14 years". Vox.
  63. Liptak, Adam (June 20, 2011). "Court Issues Split Ruling on Poor's Right to Counsel". The New York Times.
  64. Diller, Rebekah (June 21, 2011). "Turner v. Rogers: What the Court Did and Didn't Say". Brennan Center for Justice.
  65. Van Oort, Aaron (June 20, 2011). "Supreme Court Decides Turner v. Rogers". Faegre Drinker.
  66. Schultz, Evan (June 21, 2011). "Opinion analysis: No right to lawyer for deadbeat dad". SCOTUSblog.
  67. Panditharatne, Mekela (July 17, 2015). "When Is the Use of Force by Police Reasonable?". The Atlantic.
  68. Walsh, Mark (June 22, 2015). "A "view" from the Courtroom: A web of intrigue as the Term winds down". SCOTUSblog.
  69. Stern, Mark Joseph (June 22, 2015). "After Freddie Gray". Slate.
  70. Re, Richard (June 22, 2015). "Opinion analysis: Supporting excessive force claims in jails – and prisons?". SCOTUSblog.
  71. Gilna, Derek (July 7, 2015). "Supreme Court Clarifies Legal Standard for Pre-Trial Detainee Excessive Force Claims". Prison Legal News.
  72. Scarinci, Donald (2018). "CLASS V UNITED STATES (2018) GUILTY PLEA DOES NOT BAR FEDERAL CRIMINAL DEFENDANT FROM CHALLENGING CONSTITUTIONALITY OF STATUTE OF CONVICTION". Constitutionallawreporter.com.
  73. Lucian, Dervan (2018). "Class v. United States: Bargained Justice and a System of Efficiencies" (PDF). The Cato Institute.
  74. Sample, Brandon (April 19, 2018). "Guilty Plea Does Not Foreclose Challenge To Constitutionality Of Conviction, U.S. Supreme Court Decides". Criminal Legal News.
  75. Little, Rory (February 23, 2018). "Opinion analysis: Appellate constitutional attacks on the offense of conviction are not waived absent explicit waiver (Corrected)". SCOTUSblog.
  76. Jackson, George (January 1, 2003). "Chickasaw Nation v. United States and the Potential Demise of the Indian Canon of Construction". American Indian Law Review.
  77. Chickasaw Nation v. United States, 534 U.S. 84 (2001).
  78. Dean Luthrey, Grayden (January 1, 2003). "Chickasaw Nation v. United States: The Beginning of the End of the Indian-Law Canons in Statutory Cases and the Start of the Judicial Assault on the Trust Relationships?". American Indian Law Review.
  79. Berger, Bethany (November 5, 2004). "United States v. Lara as a Story of Native Agency". Tulsa Law Review. SSRN 687356.
  80. "Tribal Sovereignty Over Nonmember Indians: United States v. Billy Jo Lara" (PDF). Congressional Research Service. April 21, 2004.
  81. Fletcher, Matthew (July 2004). "United States v. Lara: Affirmation of Tribal Criminal Jurisdiction over Nonmember Indians" (PDF). Michigan Bar Journal.
  82. Batzer, Mackenzie (2005). "Trapped in a Tangled Web United States v. Lara: The Trouble With Tribes and the Sovereignty Debacle". Chapman Law Review.
  83. "COUNTY OF MAUI, HAWAII v. HAWAII WILDLIFE FUND ET AL" (PDF). April 23, 2020. Archived from the original (PDF) on January 26, 2021. Retrieved February 14, 2021.
  84. "Supreme Court says Clean Water Act applies to some groundwater pollution". CNN. April 23, 2020. Archived from the original on March 2, 2021. Retrieved February 14, 2021.
  85. "The Destruction Caused by the Border Wall Is Worse Than You Think". Sierra Club. October 21, 2019. Archived from the original on January 21, 2021. Retrieved February 14, 2021.
  86. "DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. SIERRA CLUB, ET AL" (PDF). July 31, 2020. Archived from the original (PDF) on March 9, 2021. Retrieved February 14, 2021.
  87. "Breaking Away from Norms and Traditions, Justice Breyer Does Not 'Respectfully' Dissent Against Justice Barrett's First Majority Opinion". MSN. March 4, 2021. Archived from the original on April 14, 2021. Retrieved March 4, 2021.
  88. "Barrett Rejects Sierra Club in First Opinion for Supreme Court". MSN. March 4, 2021. Archived from the original on March 5, 2021. Retrieved March 4, 2021.
  89. "UNITED STATES FISH AND WILDLIFE SERVICE ET AL. v. SIERRA CLUB, INC" (PDF). March 4, 2021. Retrieved March 4, 2021.
  90. "Oil refineries win battle over renewable-fuel exemptions". SCOTUSblog. June 25, 2021. Archived from the original on June 29, 2021. Retrieved June 25, 2021.
  91. "19-840 California v. Texas (06/17/2021)" (PDF). supremecourt.gov. June 17, 2021. Archived (PDF) from the original on June 17, 2021. Retrieved June 17, 2021.
  92. "Vieth et al. v. Jubelirer, President Of The Pennsylvania Senate, et al" (PDF). April 28, 2004. Archived from the original (PDF) on May 8, 2014. Retrieved February 14, 2021.
  93. "Rucho et al. v. Common Cause et al" (PDF). June 27, 2019. Archived from the original (PDF) on February 15, 2021. Retrieved February 14, 2021.
  94. "ALABAMA LEGISLATIVE BLACK CAUCUS ET AL. v. ALABAMA ET AL" (PDF). March 25, 2015. Retrieved March 1, 2022.
  95. "REPUBLICAN NATIONAL COMMITTEE, ET AL. v. DEMOCRATIC NATIONAL COMMITTEE, ET AL" (PDF). April 6, 2020. Archived from the original (PDF) on February 15, 2021. Retrieved February 14, 2021.
  96. "DEMOCRATIC NATIONAL COMMITTEE, ET AL. v. WISCONSIN STATE LEGISLATURE, ET AL" (PDF). October 26, 2020. Archived from the original (PDF) on February 23, 2021. Retrieved February 14, 2021.
  97. "No. 19-1257 Brnovich v. DNC" (PDF). supremecourt.gov. July 1, 2021. Archived (PDF) from the original on July 6, 2021. Retrieved September 6, 2021.
  98. Durkee, Alison (April 9, 2021). "Progressives Demand 'Breyer Retire' So Biden Can Appoint Supreme Court Justice". Forbes. Archived from the original on April 19, 2021.
  99. Stracqualursi, Veronica (April 16, 2021). "Democratic congressman calls on Justice Stephen Breyer to retire". CNN. Archived from the original on April 18, 2021.
  100. Cillizza, Chris (August 27, 2021). "Analysis: Stephen Breyer just made Democrats' Friday". CNN. Archived from the original on August 31, 2021. Retrieved September 5, 2021.
  101. Politi, Daniel (September 12, 2021). "Justice Stephen Breyer: 'I Don't Intend to Die on the Court'". Slate. Archived from the original on September 12, 2021. Retrieved September 12, 2021.
  102. Breuninger, Kevin (January 26, 2022). "Supreme Court Justice Stephen Breyer to retire, giving Biden a chance to nominate a replacement". CNBC. Retrieved January 26, 2022.
  103. Shear, Michael (January 27, 2022). "Biden calls Breyer a 'model public servant' and plans to name his successor soon". The New York Times. Retrieved January 27, 2022.
  104. Thomas, Ken; Gershman, Jacob; Bravin, Jess (February 25, 2022). "Ketanji Brown Jackson Announced as Biden's Pick for Supreme Court Nominee". The Wall Street Journal. Retrieved February 25, 2022.
  105. Baker, Sam; Gonzalez, Oriana (April 7, 2022). "Ketanji Brown Jackson confirmed as first Black female Supreme Court justice". Axios. Retrieved April 7, 2022.
  106. "Torres v. Texas Department of Public Safety, 597 U.S. ___ (2022)". Justia US Supreme Court Center. June 29, 2022. Archived from the original on October 17, 2023. Retrieved October 17, 2023.
  107. de Vogue, Ariane (June 29, 2022). "Breyer makes it official: He's leaving the Supreme Court on Thursday at noon". CNN. Retrieved June 29, 2022.
  108. "Justice Breyer Retirement Letter" (PDF). Chambers of Justice Stephen Breyer. Washington, DC: Supreme Court of the United States. June 29, 2022. Retrieved June 29, 2022.
  109. Preston, Matthew (April 15, 2022). "Ketanji Brown Jackson's Historic Rise Leaves Just One Military Veteran on the Supreme Court". USA Today. Archived from the original on April 15, 2022. Retrieved October 9, 2022.
  110. ^ Sunstein, Cass R. (May 2006). "Justice Breyer's Democratic Pragmatism" (PDF). The Yale Law Journal. 115 (7): 1719–1743. doi:10.2307/20455667. JSTOR 20455667. S2CID 154739751. Archived (PDF) from the original on July 4, 2017. Breyer thinks that, as compared with a single-minded focus on literal text, his approach will tend to make the law more sensible, almost by definition. He also contends that it 'helps to implement the public's will and is therefore consistent with the Constitution's democratic purpose.' Breyer concludes that an emphasis on legislative purpose 'means that laws will work better for the people they are presently meant to affect. Law is tied to life, and a failure to understand how a statute is so tied can undermine the very human activity that the law seeks to benefit.' Quote is at p. 1726.
  111. ^ Wittes, Benjamin (September 25, 2005). "Memo to John Roberts: Stephen Breyer, a cautious, liberal Supreme Court justice, explains his view of the law". The Washington Post. Archived from the original on July 14, 2017. Retrieved September 15, 2017.
  112. "Transcript of Discussion Between Antonin Scalia and Stephen Breyer". AU Washington College of Law. January 13, 2005. Archived from the original on April 4, 2007. Retrieved March 21, 2007.
  113. Pearlstein, Deborah (April 5, 2005). "Who's Afraid of International Law". American Prospect Online. Retrieved October 6, 2023.
  114. Roper v. Simmons, 543 U.S. 551 (2005); Lawrence v. Texas, 539 U.S. 558 (2003); Atkins v. Virginia, 536 U.S. 304 (2002).
  115. Gewirtz, Paul; Golder, Chad (July 6, 2005). "So Who Are the Activists?". The New York Times. Archived from the original on March 7, 2008. Retrieved March 23, 2007.
  116. Blakely v. Washington, 542 U.S. 296 (2004).
  117. Sullivan, Kathleen M. (February 5, 2006). "Consent of the Governed". The New York Times. Archived from the original on December 29, 2015. Retrieved February 18, 2017.
  118. Lithwick, Dalia (December 6, 2006). "Justice Grover Versus Justice Oscar". Slate. Archived from the original on March 3, 2007. Retrieved March 19, 2007.
  119. "Interview with Nina Totenberg". NPR. September 30, 2005. Archived from the original on February 14, 2007. Retrieved March 19, 2007.
  120. Feeney, Mark (October 3, 2005). "Author in the Court: Justice Stephen Breyer's New Book Reflects His Practical Approach to the Law". The Boston Globe. Archived from the original on December 26, 2017. Retrieved December 26, 2017.
  121. Berkowitz, Peter. "Democratizing the Constitution" (PDF). Archived (PDF) from the original on November 28, 2007. Retrieved October 26, 2007.
  122. Sunstein, pg. 7, citing Lori Ringhand, "Judicial Activism and the Rehnquist Court", available on ssrn.com and Cass R. Sunstein and Thomas Miles, "Do Judges Make Regulatory Policy? An Empirical investigation of Chevron Archived December 26, 2017, at the Wayback Machine", University of Chicago Law Review 823 (2006).
  123. Pakaluk, Maximilian (March 13, 2006). "Chambered in a 'Democratic Space'. Justice Breyer explains his Constitution". National Review. Archived from the original on March 18, 2006. Retrieved October 31, 2007.
  124. (ISBN 978-0307269911); Fontana, David (October 3, 2005). "Stephen Breyer's 'Making Democracy Work', reviewed by David Fontana". The Washington Post. Archived from the original on November 6, 2010. Retrieved October 8, 2010.
  125. Breyer, Stephen (2010). Making Our Democracy Work: A Judge's View. p. 74.
  126. Stephen Breyer, Antonin Scalia, Jan Crawford Greenburg (moderator) (December 5, 2006). A conversation on the constitution: perspectives from Active Liberty and A Matter of Interpretation (Video). Capital Hilton Ballroom – Washington, D.C.: The American Constitution Society; The Federalist Society.
  127. ^ Shesol, Jeff (September 17, 2010). "Evolving Circumstances, Enduring Values". The New York Times. Archived from the original on December 26, 2017.
  128. Witt, John Fabian (September 14, 2015). "Stephen Breyer's 'The Court and the World'". The New York Times. Archived from the original on August 25, 2016. Retrieved February 18, 2017.
  129. "The Court and the World: American Law and the New Global Realities". Penguin Random House. Archived from the original on November 18, 2015. Retrieved October 27, 2015.
  130. "A Supreme Court Justice Sounds a Warning". Politico. March 26, 2024. Retrieved March 27, 2024.
  131. "Breyer: Founding Fathers Would Have Allowed Restrictions on Guns". Fox News. December 12, 2010. Archived from the original on May 13, 2011. Retrieved April 2, 2011.
  132. Nagraj, Neil (January 28, 2010). "Justice Alito mouths 'not true' when Obama blasts Supreme Court ruling in State of the Union address". Daily News. New York. Archived from the original on January 31, 2010. Retrieved December 13, 2010.
  133. Blake, Aaron (December 12, 2010). "Justice Breyer: I'll go to State of the Union". The Washington Post. Archived from the original on December 3, 2011. Retrieved December 13, 2010.
  134. "APS Member History". search.amphilsoc.org. Archived from the original on June 9, 2021. Retrieved June 9, 2021.
  135. "Distinguished Eagle Scout Award". Scouting (November – December 2007): 10. 2007. Archived from the original on November 18, 2007. Retrieved November 1, 2007.
  136. "U.S. Supreme Court Justice Stephen Breyer Named Chair of Pritzker Architecture Prize Jury". Architect Magazine. Archived from the original on May 15, 2021. Retrieved March 5, 2019.
  137. Weber, Peter (September 15, 2021). "Justice Breyer tells Colbert the Supreme Court's refusal to halt the Texas abortion was 'very, very, very, very wrong'". The Week. Archived from the original on September 18, 2021. Retrieved September 18, 2021.
  138. "Watch The Late Show with Stephen Colbert: Justice Stephen Breyer Addresses Speculation About His Retirement Plans – Full show on CBS". CBS. Archived from the original on September 18, 2021. Retrieved September 18, 2021.
  139. de Vogue, Ariane (September 19, 2021). "Breyer defends state of Supreme Court in interview with CNN's Fareed Zakaria". CNN. Archived from the original on September 20, 2021. Retrieved September 19, 2021.

Further reading

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  25. Nelson (1845–1872)
  26. Woodbury (1845–1851)
  27. Grier (1846–1870)
  28. Curtis (1851–1857)
  29. Campbell (1853–1861)
  30. Clifford (1858–1881)
  31. Swayne (1862–1881)
  32. Miller (1862–1890)
  33. Davis (1862–1877)
  34. Field (1863–1897)
  35. Strong (1870–1880)
  36. Bradley (1870–1892)
  37. Hunt (1873–1882)
  38. J. M. Harlan (1877–1911)
  39. Woods (1881–1887)
  40. Matthews (1881–1889)
  41. Gray (1882–1902)
  42. Blatchford (1882–1893)
  43. L. Lamar (1888–1893)
  44. Brewer (1890–1910)
  45. Brown (1891–1906)
  46. Shiras (1892–1903)
  47. H. Jackson (1893–1895)
  48. E. White* (1894–1910)
  49. Peckham (1896–1909)
  50. McKenna (1898–1925)
  51. Holmes (1902–1932)
  52. Day (1903–1922)
  53. Moody (1906–1910)
  54. Lurton (1910–1914)
  55. Hughes* (1910–1916)
  56. Van Devanter (1911–1937)
  57. J. Lamar (1911–1916)
  58. Pitney (1912–1922)
  59. McReynolds (1914–1941)
  60. Brandeis (1916–1939)
  61. Clarke (1916–1922)
  62. Sutherland (1922–1938)
  63. Butler (1923–1939)
  64. Sanford (1923–1930)
  65. Stone* (1925–1941)
  66. O. Roberts (1930–1945)
  67. Cardozo (1932–1938)
  68. Black (1937–1971)
  69. Reed (1938–1957)
  70. Frankfurter (1939–1962)
  71. Douglas (1939–1975)
  72. Murphy (1940–1949)
  73. Byrnes (1941–1942)
  74. R. Jackson (1941–1954)
  75. W. Rutledge (1943–1949)
  76. Burton (1945–1958)
  77. Clark (1949–1967)
  78. Minton (1949–1956)
  79. J. M. Harlan II (1955–1971)
  80. Brennan (1956–1990)
  81. Whittaker (1957–1962)
  82. Stewart (1958–1981)
  83. B. White (1962–1993)
  84. Goldberg (1962–1965)
  85. Fortas (1965–1969)
  86. T. Marshall (1967–1991)
  87. Blackmun (1970–1994)
  88. Powell (1972–1987)
  89. Rehnquist* (1972–1986)
  90. Stevens (1975–2010)
  91. O'Connor (1981–2006)
  92. Scalia (1986–2016)
  93. Kennedy (1988–2018)
  94. Souter (1990–2009)
  95. Thomas (1991–present)
  96. Ginsburg (1993–2020)
  97. Breyer (1994–2022)
  98. Alito (2006–present)
  99. Sotomayor (2009–present)
  100. Kagan (2010–present)
  101. Gorsuch (2017–present)
  102. Kavanaugh (2018–present)
  103. Barrett (2020–present)
  104. K. Jackson (2022–present)
*Also served as Chief Justice of the United States
Judicial opinions of Stephen Breyer
U.S. Court of Appeals for the First Circuit (1980–1994); by calendar year
Supreme Court of the United States (August 3, 1994 – June 30, 2022); by term
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