Stephen Breyer — A Judge and a Jurist

“Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated can long endure.”

Repeating these words of the famous Gettysburg Address¹ by President Abraham Lincoln, the 83-year young Justice Stephen Breyer announced his retirement² from the Bench of the Supreme Court of the United States (SCOTUS), alongside President Biden on 27-1-2022 — and from these words his judicial philosophy is evident. Thus, curtains were drawn on his journey of 28 years as the second seniormost Judge on the present Court, and as a bearer of the liberal torch.

Part A — Life and Career

Stephen Breyer was born on the 15-8-1938 in a Jewish family. His father was a lawyer. After his initial schooling in San Francisco, Breyer studied philosophy at Stanford University, and received his degree in June 1959, and thereafter, he went to study at Magdalen College at Oxford as a Marshall Scholar, where he earned another degree in philosophy, political science, and economics in 1961. He then attended Harvard Law School and completed his law degree in 1964. During his stint at Harvard, he was a member of the prestigious Harvard Law Review. Breyer then went on to clerk for Justice Arthur Goldberg between 1964 and 1965. He briefly also worked with the Warren Commission investigating the assassination of President John F. Kennedy, and also as in the Department of Justice. He went back to Harvard, in the avatar as an Assistant Professor, before he took on the role of an assistant prosecutor on the team of prosecutors in the infamous Watergate scandal in 1973. Breyer also served as a special counsel to the Senate Judiciary Committee and even became the chief counsel between 1979 and 1980. President Jimmy Carter appointed Stephen Breyer to US Court of Appeals for the First Circuit in 1980, and he served till his appointment to the Supreme Court in 1994 by President Clinton. He also served on the US Sentencing Commission as a Commissioner while being a Judge. While the nomination of Judge Breyer to the top court was no surprise, it was not without incident.

Judge Breyer was first considered by President Clinton in 1993, to fill the vacancy of Justice Byron White. It is no secret that Judge Breyer had support in the Senate, having served as counsel for the Senate Judiciary Committee, and especially its former Chairman and a lion of the Senate Ted Kennedy, as also influential republican senators.³ However, when President Clinton interviewed him, Judge Breyer was not in the best of his health and was recovering from a bicycle accident, and President Clinton was not impressed.⁴ He nominated Judge Ruth Bader Ginsburg instead. The very next year, when Justice Harry Blackmun retired from the Court, Judge Breyer had his turn despite there being other very strong contenders. President Clinton believed Breyer's “fourteen years of judicial experience and even temperament … would make him an effective Justice on the Court”.⁵ In his nomination address, Judge Breyer said that he would make the law work for the people.⁶

In the confirmation hearing presided by the then Chairperson Joe Biden, Judge Breyer said:

“I think, Senator, I would start by saying this, and I have said this before, and it is something that has considerable significance to me. Why is it that Judges wear black robes? I have always thought that the reason that a Judge wears a black robe is to impress upon the people in the room that that particular Judge is not speaking as an individual. In an ideal world, the personality of the Judge, the face of the Judge, would not be significant because when the Judge speaks with a black robe on, no matter what court, the Judge is speaking for the law. And in an ideal world, the law is the same irrespective of the personality of the Judge.

And so, remembering that, I would imagine that on the Supreme Court, what I would be bound by is the words, the history, the precedents, the traditions, all of those things which in fact go up to make this great body of institutions, including legal advice and how businesses and labour unions interpret it and so forth, that we call law.”⁷

Judge Stephen Breyer was confirmed by the Senate 87-9, and was appointed to the seat⁸ once held by Justice Arthur Goldberg as the 108th Justice of the SCOTUS.

Part B — The Supreme Court Judge

Soon after Justice Breyer joined the Court, the Court was called upon to decide whether the Virginia Military Academy could have an exclusive male admission policy without violating the equal protection clause of the Fourteenth Amendment. Breyer, J. joined the majority judgment by Ginsburg, J. which held that the exclusion of women from the admission process was in breach of the equal protection clause.⁹ Breyer, J. was one of the dissenting Judges in the controversial case of Bush v. Gore¹⁰ which at the time was believed to have decided the outcome of the 2000 Presidential Election. Breyer, J. noted that “(t)he political implications of this case for the country are momentous”.¹¹ Breyer, J. further held:

By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of properties to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect. The manual recount would itself redress a problem of unequal treatment of ballots.¹²

Breyer, J. concluded that despite the case concerning a presidential election, “no pre-eminent legal concern, or practical concern related to legal questions, required this Court to hear this case, let alone to issue a stay that stopped Florida's recount process in its tracks”.¹³ Breyer, J. further held that:

Of course, the selection of the President is of fundamental national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election.¹⁴

The judgment in Bush v. Gore¹⁵ had a smarting effect on the reputation of the Court, with the liberals and conservatives each accusing the other of hypocrisy, and perhaps one of the most contemporaneously controversial decisions—as some believed that the Rehnquist Court “handed the presidency to George W. Bush”.¹⁶

Justice Breyer always fell on the pro-LGBTQ side since his appointment. In Romer v. Evans¹⁷, the first case since Bowers v. Hardwick¹⁸, he joined the majority opinion authored by Anthony Kennedy, J. where the Court held that the Amendment 2 to the Colorado State Constitution which denied special status to homosexuals as being violative of the equal protection clause. Subsequently, in Lawrence v. Texas¹⁹ he again joined the majority judgment of Kennedy, J. where the Court overturned Bowers case²⁰ and ruled that criminal prosecution of those who indulged in conceptual homosexual activity was unconstitutional, and also in breach of the right to privacy recognised in Roe v. Wade.²¹ In United States v. Windsor²², he joined the majority opinion of Kennedy, J. wherein the Court held that the denial of federal recognition of same-sex marriages was a breach of the due process clause. More recently, in the landmark judgment in Obergefell v. Hodges²³, Breyer, J. again joined the majority judgment of Kennedy, J. recognising the fundamental right of same-sex couples to get married being protected by the due process clause and the equal protection clause of the Fourteenth Amendment. Although he always upheld the rights of the LGBTQ community, Justice Breyer's equanimity and regard for the free exercise clause is remarkable. He joined the majority in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission²⁴ which held that the refusal of a bakery to provide a wedding cake to a gay couple was within the baker's free exercise his religious beliefs.

Amongst the most raging issues that have been before the SCOTUS has been the issue of the right of a woman to opt for an abortion — a point of division between the liberals and the conservatives. Breyer, J.'s view was consistent with Roe case²⁵ and Planned Parenthood of Southeastern Pennsylvania v. Casey²⁶ as reflected in the opinions he joined, wrote, or dissented from. He authored the majority view in Stenberg v. Carhart²⁷ where the Court held that the Nebraska law criminalising the performance of “partial birth abortion” was contrary to the Constitution as interpreted in Roe case²⁸ and Casey case²⁹, and any law that imposed undue restrictions on a woman's choice. In the opinion, he noted:

The Casey plurality opinion reiterated what the Court held in Roe case³⁰; that subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary in appropriate medical judgment, for the preservation of the life or health of the mother. Planned Parenthood of Southeastern Pennsylvania v. Casey³¹ (quoting Roe case³²) (emphasis added).

The fact that Nebraska's law applies both pre-viability and post-viability aggravates the constitutional problem presented. The State's interest in regulating abortion pre-viability is considerably weaker than post-viability.³³

Breyer, J. in his majority opinion noted that the Court had repeatedly invalidated statutes that imposed health risks in the process of regulating methods of abortion.³⁴ He further noted:

The Eighth Circuit found the Nebraska statute unconstitutional because, in Casey's words, it has the “effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus”.³⁵

In conclusion, the Court held:

In sum, using this law some present prosecutors and future Attorney General may choose to pursue physicians who use dilation and evacuation (D&E) procedures, the most commonly used method for performing pre-viability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman's right to make an abortion decision. We must consequently find the statute unconstitutional.³⁶

In Gonzales v. Carhart³⁷, however, Breyer, J. joined the dissent authored by Ginsburg, J. — consistent with his judicial approach on the subject. While the majority held that the Partial Birth Abortion Ban Act of 2003³⁸ could not be proved to put an undue burden on the woman's right to abortion, based on over breadth or lack of a health exception, Ginsburg, J. in the dissent noted that,

… the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court's defence of the statute provides no saving explanation. In candour, the Act, and the Court's defence of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women's lives.”³⁹

Breyer, J. authored the majority opinion in Whole Woman's Health v. Hellerstedt⁴⁰, where the Court held that the Texas law that placed medically unnecessary restrictions on abortion clinics within the State put an undue burden on a woman seeking an abortion and struck the law down. In the majority opinion, after noting that the restrictions caused the closure of half of Texas's clinics, and the fact that the statute imposed “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right”⁴¹, Breyer, J. held:

More fundamentally, in the fact of no threat to women's health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity super facilities. Patients seeking these services are less likely to get the kind of individualised attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. Healthcare facilities and medical professionals are not fungible commodities….⁴²

More recently, in June Medical Services LLC v. Russo⁴³ Breyer, J. again authored the majority opinion, where the Court struck down a Louisiana Act, imposing restrictions on abortion clinics akin to the Texas Act in Whole Woman's Health case⁴⁴, as being a burden on the access to abortion. In all the abortion cases, Breyer, J. maintained a pro-choice stand, and consistently followed Roe case⁴⁵ and Casey case⁴⁶.

When the majority of the Court overruled the almost half a century old decision of Roe case⁴⁷ in Thomas E. Dobbs v. Jackson Women's Health Organisation⁴⁸, his last judgment on the issue was a strong dissent along with Sotomayor and Kagan, JJ. in Dobbs case⁴⁹. The dissenters noted:

“… Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over the most personal and most consequent of all life decisions.”⁵⁰

The dissenters further noted that the majority judgment which is based on the non-existence of right of abortion when the Fourteenth Amendment was enacted in 1868, was nothing but consigning women “to second-class citizenship”⁵¹, and also noted that Roe case⁵² and Casey case⁵³ “fit neatly into a long line of decision protecting the Government intrusion a wealth of private choice about family matters, child rearing, intimate relationships, and procreation”.⁵⁴ Breyer, Sotomayor and Kagan, JJ. ended their judgment with the following words:

“With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”⁵⁵

Justice Breyer stood by a liberal approach in the aftermath of the terrorist attacks on the World Trade Centre on 11-9-2001 and expounded constitutional protections in tune with his philosophy — and not according to the popularity of the war on terror. In Hamdi v. Rumsfeld⁵⁶, Breyer, J. joined the majority opinion of Sandra Day O'Connor, J. where the SCOTUS, while recognising the power of the Government to detain enemy combatants, including citizens of the United States, protected the due process rights of the latter, and also held that they have every right to challenge their enemy combatant status. In Rasul v. Bush⁵⁷, Breyer, J. joined the majority opinion of John Paul Stevens, J. and with concurrence from Kennedy, J. SCOTUS by majority upheld the rights of foreign nationals detained a Guantanamo Bay to file habeas corpus petitions before the Federal Courts challenging the legality of their detention. In the following term, in Hamdan v. Rumsfeld⁵⁸ Breyer, J. joined the majority opinion of Stevens, J. the concurring opinion of Kennedy, J. and also wrote his own short crisp concurrence. SCOTUS, by majority, held that the administration lacked the authority to set up a war crimes tribunal and found the establishment of Special Military Commissions illegal and unconstitutional. In his separate concurring opinion (joined by Kennedy, Souter and Ginsburg, JJ.), Breyer, J. held:

The dissenters say that today's decision would “sorely hamper the President's ability to confront the defeat a new and deadly enemy.” Post, at 705 (opinion of Thomas, J.) They suggest that it undermines our nation's ability to “pre-ven[t] further attacks” of the grievous sort that we have already suffered. Post, at 724. That claim leads me to state briefly what I believe that the majority sets forth both explicitly and implicitly at greater length. The Court's conclusion ultimately rests upon a single ground: Congress has not issued the executive a “blank check.” Cf. Hamdi v. Rumsfeld⁵⁹, (plurality opinion). Indeed, Congress has denied the President the legislative authority to create Military Commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our nation's ability to deal with danger. To the contrary, that insistence strengthens the nation's ability to determine — through democratic means — how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.⁶⁰

Significantly, the decisions of the Court post 9/11 were at variance with those in the aftermath of the attack by the Japanese on Pearl Harbor in 1941. For instance, the infamous judgment in Korematsu v.United States⁶¹, where the majority upheld the internment of Americans of Japanese descent, solely on the basis of race because the United States was at war with the Japanese Empire.⁶²

Justice Breyer consistently opined against the death penalty. Even before writing his famous separate opinion in Glossip v. Gross⁶³, he consistently joined or authored opinions against the imposition of the death penalty. In Atkins v. Virginia⁶⁴, Breyer, J. joined the majority opinion of Stevens, J. where the Court held that executing people with intellectual disabilities or mental retardation was a breach of the Eighth Amendment guarantee against cruel and unusual punishments, based on “evolving standards of decency”.⁶⁵ Soon thereafter, in Roper v. Simmons⁶⁶, he joined Kennedy J.'s majority opinion holding that the imposition of the death penalty on a juvenile offender over the age of 15 but below the age of 18 was a violation of the Eighth and Fourteenth Amendments in view of the “evolving standards of decency” test applied in Atkins case⁶⁷. In Glossip case⁶⁸, the Court was called upon to decide the issue of whether lethal injections using midazolam while executing death sentences would fall foul of the Eighth Amendment guarantee of prohibiting cruel and unusual punishments. While the majority of the Court rejected the challenge, Breyer, J. authored an extraordinary dissent⁶⁹ in which he was joined by Ginsburg, J. and prompted Scalia, J. to write his own concurrence, only to respond to the scathing dissent. Breyer, J. in the very first paragraph, set out the question he sought to answer — “whether the death penalty violates the Constitution”⁷⁰. While discussing the lack of reliability of death sentences, Breyer, J. noted:

… To some degree, it must be because the law that governs capital cases is more complex. To some degree, it must reflect the fact that courts scrutinise capital cases more closely. But, to some degree, it also reflects a greater likelihood of an initial wrongful conviction. How could it be so? In the view of researchers who have conducted these studies, it could be so because the crimes at issue in capital cases are typically horrendous murders, and thus accompanied by intense community pressure on police, prosecutor, and jurors to secure a conviction. This pressure creates a greater likelihood of convicting the wrong person….⁷¹

Breyer, J. finally noted that there was “more research-based evidence today indicating that courts sentence to death individuals who may well be actually innocent or whose convictions (in the law's view) do not warrant the death penalty's application”.⁷² He next noted that the death sentence was arbitrarily imposed, and this was antithetical to the rule of law.⁷³ He further noted that despite the death penalty being in constitutionally valid for forty years, it was clear that it was imposed arbitrarily.⁷⁴ The factors which played a part in the imposition of the death penalty, according to Breyer, J. were geography⁷⁵, inherent deep-rooted bias⁷⁶ and political bias⁷⁷, and hence, he concluded that “(t)he imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary”.⁷⁸ He then noted that apart from the lack of reliability and the arbitrariness or fairness of the imposition of the death penalty, the third constitutional problem was the excessive time that was convict had to spend on death row.⁷⁹ He noted:

“Several inmates have come within hours or days of execution before later being exonerated.”⁸⁰

He further noted:

“Furthermore, given the negative effects of confinement and uncertainty, it is not surprising that many inmates volunteer to be executed, abandoning further appeals.”⁸¹

For the reasons that the imposition of the death penalty lacked reliability, the arbitrary application of an irreversible punishment, individual suffering caused by extraordinary delay and the lack of penological purpose, Justice Breyer held that it was violative of the Eighth Amendment.⁸² In Ramos v. Louisiana⁸³, he joined the majority judgment authored by Gorsuch, J. which rules that the Sixth Amendment and Fourteenth Amendment guarantees required a guilty verdict by a jury to be unanimous.

In Rosenberger v. Rector and Visitors of University of Virginia⁸⁴, where the majority held that the action of the university in denying student activity fund support to a student newspaper on the ground that it promoted religious literature, was a denial of the free speech guarantee under the First Amendment, Breyer, J. joined the dissent authored by Souter, J. Thereafter, in Santa Fe Independent School District v. Doe⁸⁵, Breyer, J. joined Steven J.'s majority judgment, which held that policy of permitting a student led prayer at football games was in violation of the establishment clause. However, in Good News Club v. Milford Central School⁸⁶Breyer, J. shifted his vote from the liberal bloc to the conservative bloc, and partly joined the majority opinion of Thomas, J. and giving his own short concurring opinion. In Good News Club case⁸⁷, the Court held that school's denial of permission to the club — a private Christian organisation — to use the school building for their activities was a denial of the club's free speech rights. In Zelman v. Simmons-Harris⁸⁸, the majority of the Court upheld Ohio's school voucher scheme, as not offending the establishment clause. Breyer, J. joined Souter and Steven, JJ.'s dissent, and also wrote his own dissent “to emphasise the risk that publicly financed voucher programs pose in terms of religiously based social conflict. I do so because I believe that the establishment clause concern for protecting the nation's social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program”.⁸⁹ Interestingly, in 2005, Breyer, J. was the “swing vote” in Van Orden v. Perry⁹⁰ and McCreary County v. American Civil Liberties Union of Kentucky⁹¹ — both pronounced on the same day, and both quite divergent from each other. In Van Orden case⁹², the Court held that the display of the Ten Commandments on a government building in Texas was not in violation of the establishment clause, and Breyer, J. joined the conservative majority with his own concurrence, where he recognised:

If the relation between Government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment….⁹³

Noting that the commandments were not promoting religion, but an effort to reflect the secular impact of a religious document, he held that the Texas display fell on the permissible side of the constitutional line.⁹⁴ However, in McCreary County case⁹⁵, the Court held that the display of a religious nature (Ten Commandments) at Court Houses was a violation of the First Amendment bar against establishment of religion, and that “(w)here the text is set out, the insistence of the religious message is hard to avoid in the absences of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view”.⁹⁶ The majority penned by Souter, J., which Breyer, J. joined, noted that it could not be denied that the Ten Commandments did have an influence on civil or secular law, but “(w)hen the Government initiates an effort to place this statement alone in public view, a religious object is unmistakable”.⁹⁷ Subsequently, in Pleasant Grove City v. Summum⁹⁸, the Court unanimously held that the Constitution prohibited the erection of a religious monument on public land. Breyer, J. joined the majority judgment penned by Alito, J., but penned a short concurrence on the understanding “that the ‘government speech' doctrine is a rule of the thumb, not a rigid category”.⁹⁹

Part C — The Scholar

Apart from a robust judicial career, Justice Breyer was also an active author, and public speaker. In his books and speeches, he stated his liberal judicial philosophy — lucidly — just like his judgments. His opposition to the death penalty was captured in not only his judgments, but also in the book Against the Death Penalty. He wrote several other books and delivered several thought provoking lectures. In the preface of his book Making Our Democracy Work, he noted that the principal “objective in writing this book is to increase the public's general understanding of what the Supreme Court does. The Constitution's framers and history itself have made the Court the ultimate arbiter of the Constitution's meaning as well as the source of answers to a multitude of questions about how this vast, complex country will be governed, and thus it is important that the public understand how the Court carries out its role”.¹⁰⁰ In the introduction to his book Active Liberty, Justice Breyer wrote:

“The United States is a nation built upon principles of liberty. That liberty means not only freedom from government coercion but also the freedom to participate in the Government itself. When Jefferson wrote, ‘I know no safe depository of the ultimate powers of the society but the people themselves,' his concern was for abuse of government power. But when he spoke of the rights of the citizen as ‘a participator in the government of affairs', when Adams, his rival, added that all citizens have a ‘positive passion for the public good', and when the founders referred to ‘public liberty', they had in mind more than freedom from a despotic Government. They had invoked an idea of freedom as old as antiquity, the freedom of the individual citizen to participate in the Government and thereby to share with others the right to make or to control the nation's public acts.”¹⁰¹

In all his books, Justice Breyer spelt out that the principal reason for writing was to bring the Court process within the understanding of the public — so that those for whom the Constitution was made was made aware of the interpretative process, and the reason for the interpretation of the Constitution. The books not only showcase the scholarship of Justice Breyer but are a simplification of the complex process of the interpretation of the Constitution by the Court. At a time when the political role of the Court has been a matter of debate, in the 2021 Scalia Memorial lecture — now published as a book titled The Authority of the Court and the Peril of Politics, Justice Breyer emphasised the need for the Court, to maintain the confidence of the people, needs only to “Just do the job”¹⁰² and said:

“Do not seek or expect popularity. The job of Constitutional Judges is to interpret or to apply the legal phrases that we find either in a statute or in the Constitution itself….”¹⁰³

He further writes that “(f)or a Supreme Court Justice, clarity is not simply a question of good manners. Clarity in writing is a professional necessity. It shows a clarity of thought. Clarity helps convince the reader that the Judge has decided the case according to reason and the law, not according to politics or caprice”.¹⁰⁴ Expressing his optimism for the future, he writes:

“I am an optimist. The rule of law has withered many threats, but it remains sturdy. I hope and expect that the Court will retain its authority, and the authority that my stories have shown was hard won. But that authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principle, not politics.”¹⁰⁵

As a Judge and a jurist, Justice Stephen Breyer's contribution has been immensely significant. By stepping down even when the Constitution permitted him to continue as a Judge for life, Justice Breyer has sent a salutary message to the judicial community.