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Stephen G. Breyer

1994-

STEPHEN GERALD BREYER was born August 15, 1938, in San Francisco, to Irving Breyer, a lawyer and administrator for the city school system, and Anne Breyer, the daughter of East Prussian immigrants. The commitment to good government that would characterize Stephen Breyer's later career began developing in his earliest years. His father brought him along on trips to the voting booth and helped him develop what Breyer later described as "a trust in, almost a love for the possibilities of a democracy" and a belief that "with trust and cooperation and participation, people can work through their government to improve their lives." His mother was active in local Democratic politics, the League of Women Voters, and a United Nations program that brought foreign visitors to their home. "She was the one who made absolutely clear to me that whatever intellectual ability I have means nothing ... unless I can work with other people and use whatever talents I have to help them. So I joined the Boy Scouts, I did work as a delivery boy, I [dug] ditches for the Pacific Gas and Electric Company, and I mixed salads up in the city's summer camp."

Breyer attended Lowell High School, the elite flagship of the public school system, where he excelled early and often. An accomplished member of the debating team, he was voted most likely to succeed by his class. Breyer's love of learning and his curiosity about his Jewish identity persuaded him to attend religious school on Sundays. In college he continued his religious involvement by teaching younger students at a local synagogue.

Fearing that Harvard University might lead their son to become too bookish, his parents convinced him to attend Stanford University instead. Graduating with highest honors in 1959, Breyer traveled to Oxford University on a Marshall Scholarship. There, he received a B.A. with first-class honors in 1961 for his study of philosophy, politics, and economics.

Breyer completed his education in 1964 with an LL.B. magna cum laude from Harvard Law School. He was elected articles editor of the Harvard Law Review and wrote his required independent work on pragmatism, exploring the philosophies of Charles S. Peirce, William James, and Willard Quine. His thesis--that judges should make decisions by carefully considering how their conclusions would effect people's social, political, and legal circumstances--foreshadowed his orientation as a judge twenty years later.

Breyer went to Washington after graduation to clerk for Associate Justice Arthur J. Goldberg. He wrote the first draft of Goldberg's famous opinion in Griswold v. Connecticut (1965), which established the constitutional right to privacy. Over the next thirty years Breyer would again and again exchange the academic environment of Boston for the public law challenges of the nation's capital. His practice of applying his scholarly skills to the real world issues of federal regulatory law became a hallmark of his career.

From 1965 to 1967 Breyer worked in the U.S. Department of Justice as a special assistant to Assistant Attorney General Donald F. Turner, a Harvard law professor who significantly influenced the development of antitrust regulation.

During this period Breyer met Joanna Freda Hare, the daughter of Lord John Blakenham, an influential Tory politician and leader of Britain's Conservative Party. Their marriage in 1967 brought him into a wealthy and elite English family and allowed him frequent occasions to revisit the country he had come to love as a student. Also an Oxford graduate, Joanna Breyer went on to earn a doctorate in clinical psychology from Harvard University, and began working with young cancer patients and their families at the Dana-Farber Cancer Institute in Boston. Identifying his wife's work as a sobering and affecting influence, Breyer became a trustee of the institute.

Shortly after their marriage, Breyer returned to Cambridge to begin his academic career at Harvard Law School. He specialized in federal administrative law, broadening his inquiry beyond antitrust to include the burgeoning challenges of the regulatory regime in the post-New Deal state. Over the next twenty years, Breyer developed a sophisticated yet pragmatic theory of the regulatory state that complemented his lifelong commitment to good government.

Breyer believes that a pro-competitive approach to economic regulation appropriately maximizes the benefits available from the free market and, at the same time, reduces the burdens that flow from unnecessary regulation. For example, in his early scholarship he argued that the courts should not penalize "the honest monopolist" by equating injury to a competitor caused by "skill, foresight, and industry"--or indeed by accident--with the injury to competition prohibited by antitrust laws. In addition, his work has included a searching critique of counterproductive regulation, such as laws that require the complete elimination of slight health risks at costs that make impossible other, more compelling reforms.

On the other hand, Breyer holds that a strong regulatory regime is essential in precisely those areas, like health and safety, in which economically driven arguments cannot supply the medical and scientific decisions, let alone the moral valuations, that are necessary. Ultimately, Breyer's arguments point to a vital role for government in maintaining that level of regulatory control that is productive. He favors reforming and reshaping government regulatory structures so that they operate more constructively. For example, Breyer has advocated the creation of an elite corps of civil servants who would evaluate risk assessments justifying various federal regulations in order to determine overall costs and benefits.

Breyer returned to Washington, D.C., in 1973 as an assistant special prosecutor in the Watergate investigation. He stayed on for the following two years as special counsel to the Administrative Practices Subcommittee of the Senate Judiciary Committee. During that time, he critiqued the government's management of the airline industry, concluding that it had limited competition and handicapped the industry's growth. He later used the tools of economic analysis to help design and engineer the controversial airline deregulation of 1978. Breyer's most dramatic strategy was the careful orchestration of public hearings which he effectively used to swing congressional opinion to his model. Whether the deregulatory experiment was a necessary remedy for an inefficient industry or a disruptive force in a delicately balanced business is still in dispute. Allies and opponents both point to the wave of airline bankruptcies, fare reductions, and industry dislocations that followed deregulation to support their views.

Breyer's work on airline deregulation demonstrated not only his determination to tackle difficult regulatory tangles; it also showcased an exceptional capacity to build bipartisan consensus on politically divisive issues. That talent proved essential to his effectiveness in his next Washington job--a two-year stint as chief counsel of the Senate Judiciary Committee. There, he repeatedly brokered compromises over sensitive issues such as the release of material on low-level public corruption investigations in the Carter administration. Though a life-long Democrat working under Sen. Edward Kennedy, a renowned liberal, Breyer gained credibility with Republicans as someone with a fair, balanced approach.

In late 1980, President Jimmy Carter nominated Breyer for a seat on the U.S. Court of Appeals for the First Circuit. While Republicans, anticipating their party's victory that fall, repeatedly stalled other Democratic appointees, Breyer's bipartisan charm eased his confirmation and he became the last Carter choice to be elevated to the federal bench.

During his tenure on the court of appeals, Breyer continued teaching at Harvard Law School. In 1992 he delivered the prestigious Oliver Wendell Holmes lectures that ultimately would become the foundation for his influential book on the regulatory system, Breaking the Vicious Cycle: Towards Effective Risk and Regulation.

In 1985 Breyer was appointed to serve on the U.S. Sentencing Commission. The commission, an independent establishment within the judicial branch, was charged with rationalizing and reforming federal criminal sentencing procedures, since penalties varied widely and unfairly under the existing system. The commission’s task was enormously difficult and politically sensitive for a number of reasons. It required ranking the "punishable merit" of a great variety of crimes, which in turn involved weighing different theories of punishment, such as rehabilitation and retribution. In addition, sentencing was an area in which judges jealously guarded their long-standing discretion.

Working from a statistical compilation of average prison sentences, Breyer created a complicated grid that federal judges were required to use to guide further sentencing. Many praised this solution for standardizing rather than rethinking sentencing, and for showing restraint appropriate to a judicial effort. Others complained that "average" sentences inaccurately reflected the range of considerations that led judges to impose much shorter or longer prison terms. All agreed, however, that the effort confirmed Breyer's ability to build consensus and his commitment to rationalizing regulatory solutions. In 1989 the Supreme Court registered its own approval by upholding the constitutionality of the U.S. Sentencing Commission in the landmark separation of powers case, Mistretta v. United States.

Though tremendously demanding, Breyer's many roles seemed only to energize him and to inform his activities on the bench. He became renowned as a coalition builder on the First Circuit who ranked achieving a unified opinion more highly than articulating his own opinion in detail. He became known as well for his incisive and thorough knowledge of the cases--and their frequently bulky records. His intelligence and dedication established his reputation as one of the leading jurists of his generation.

Breyer's interest in balancing private incentives and market advantages with the strengths of the regulatory state quickly asserted itself in his opinions. For example, in a series of antitrust cases (including Concord v. Boston Edison Co. (1990) and Kartell v. Blue Shield of Massachusetts, Inc. (1984)), he emphasized the competition-inducing goals of antitrust law to avoid formulaic solutions. His record in a wide variety of other areas demonstrated the same practical approach. As Breyer himself once described the effort of judging:

I assume that law itself is a human institution, serving basic human or societal needs. It is therefore properly subject to praise, or to criticism, in terms of certain pragmatic values, including both formal values, such as coherence and workability, and widely shared substantive values, such as helping to achieve justice by interpreting the law in accordance with the "reasonable expectations of those to whom it applies."

As a judge, Breyer exhibited the same dry wit that colleagues had appreciated in his previous posts. Asked once by a Harvard Law Bulletin reporter to categorize his own legal philosophy, Breyer declined, but added jokingly: "Roscoe Pound said once, 'That judge is so stupid, he doesn't know if he's a member of the historical epistemological school or the sociological functional school of jurisprudence.'"

After coming agonizingly close to a Supreme Court nomination in 1993, Breyer was President Bill Clinton's choice on May 14, 1994, for the seat vacated by Justice Harry A. Blackmun. True to form, Breyer easily won confirmation, 87-9, in the Senate. The discussion focused not on whether he would be confirmed, but on what kind of justice he would be.

Almost all agreed that Breyer's ability to build consensus, his intelligence, energy, and wit would be welcome contributions to the Court. Practitioners in a wide range of regulatory law fields, such as antitrust, environmental, and administrative law, eagerly anticipated his expert consideration of their concerns. Some observers worried that his pragmatism made him unpredictable, but most saw only virtue in the flexibility, realism, and sophistication of his approach. Indeed, many hoped his pragmatism would make a good counterbalance to Justice Antonin Scalia's powerful but more formalistic theories. Finally, most wondered what effect Stephen Breyer would have on the political balance of the Court.

Within his first term, Breyer had established his presence on the Court with characteristic force. He immediately broke with Supreme Court tradition by joining in the questioning at his first oral argument and by writing a dissent as his first opinion. He energetically took issue with Justice Scalia, differing as often on method as on substance. Thus, in Plaut v. Spendthrift Farm, Inc. (1995), Scalia, writing for the majority, invalidated a federal statute on grounds that cast separation of powers concerns in categorical and structural terms. Breyer concurred on far narrower grounds, listing a combination of factors that persuaded him to accept the majority's conclusion in the specific circumstances of the case.

Breyer also repeatedly joined the more liberal wing of the Court, rejecting the reasoning of the more conservative majority in a series of important constitutional cases. Thus, in U.S. v. Lopez (1995), Breyer authored a stinging dissent, joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, defending Congress's power to regulate the possession of guns in school zones across the nation as within federal authority over interstate commerce. And, in Sandin v. Conner (1995), Breyer in dissent defended a broader approach to the due process protections accorded the liberty interests of prisoners than that taken by the majority.

The Breyer's both enjoy camping, bicycling, and keeping up with world events. They have three children: Chloe, Nell, and Michael.