MAY 2, 2006

A photo of Associate Justice of the US Supreme Court, Stephen Breyer greeting Sybil Shainwald



A photo of Richard Matsar, NYLS Dean and President

Introductory Remarks

A photo of Sybil Shainwald, NYLS Board Member &

Keynote Speaker

A photo of Justice Breyer delivering the Keynote


STEPHEN G. BREYER: Biography [FN 0]

A photo of Justice Stephen Breyer, SCOTUS portrait photo

Stephen Gerald Breyer (/ˈbraɪ.ər/; born August 15, 1938) is an American lawyer, professor and jurist serving as an Associate Justice of the Supreme Court of the United States since 1994. Appointed by President Bill Clinton, Breyer is generally associated with the more liberal side of the Court.[1]

Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well known as a law professor and lecturer at Harvard Law School, starting in 1967. There he specialized in administrative law, writing a number of influential textbooks that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General for Antitrust, assistant special prosecutor on the Watergate Special Prosecution Force in 1973, and serving on the First Circuit Court of Appeals from 1980 to 1994.

In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues in a manner that encourages popular participation in governmental decisions.

Supreme Court (1994–present)

In 1993, President Bill Clinton considered him for the seat vacated by Byron White that ultimately went to Justice Ruth Bader Ginsburg.[17] Breyer's appointment came shortly thereafter, however, following the retirement of Harry Blackmun in 1994, when Clinton nominated Breyer as an Associate Justice of the Supreme Court on May 17, 1994. Breyer was confirmed by the Senate on July 29, 1994, by an 87 to 9 vote and he received his commission August 3, 1994.[10] Breyer was the second-longest-serving junior justice in the history of the Court, close to surpassing the record set by Justice Joseph Story of 4,228 days (from February 3, 1812, to September 1, 1823); Breyer fell 29 days short of tying this record, which he would have reached on March 1, 2006, had Justice Samuel Alito not joined the Court on January 31, 2006.

A photo of Justice Breyer, delivering the keynote speech

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, Breyer's "attack on originalism is powerful and convincing".[18] In 2006, Breyer said that in assessing a law's constitutionality, while some of his colleagues "emphasize language, a more literal reading of the [Constitution's] text, history and tradition", he looks more closely to the "purpose and consequences".[19]

Breyer has consistently voted in favor of abortion rights,[20][21] one of the most controversial areas of the Supreme Court's docket. He has also defended the Supreme Court's use of foreign law and international law as persuasive (but not binding) authority in its decisions.[22][23][24] However, Breyer is also recognized to be deferential to the interests of law enforcement and to legislative judgments in the Supreme Court's First Amendment rulings. Breyer has also demonstrated a consistent pattern of deference to Congress, voting to overturn congressional legislation at a lower rate than any other Supreme Court justice since 1994.[25]

A photo of Justice Breyer, mingling before his keynote speech

Breyer's extensive experience in administrative law is accompanied by his staunch defense of the Federal Sentencing Guidelines. Breyer 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.[26] In many other areas on the Court, too, Breyer's pragmatism is considered the intellectual counterweight to Scalia's textualist philosophy.[27]

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.[28] Breyer notes that only the last two differentiate him from textualists on the Supreme Court 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.[29] 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.[30]

Active Liberty

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 will 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.[31]

A photo of Justice Breyer, delivering the keynote speech

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" which 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 argues a predominantly utilitarian case for judges making rulings that give effect to the democratic intentions of the Constitution.

Both of the books' historical premises and practical prescriptions have been challenged. For example, according to Peter Berkowitz,[32] the reason that "[t]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 [negative] 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 late Rehnquist Court, Breyer showed the highest percentage of votes to uphold acts of Congress and also to defer to the decision of the executive branch.[33] 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."[34]

A photo of Justice Breyer, mingling before his keynote speech

To his 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", which allowed corrupt and discriminatory (but democratically-inspired) state laws to be overturned in favor of civil rights.[35]

Other books

In 2010, Breyer released a second book, Making Our Democracy Work: A Judge's View.[36] There, Breyer argued 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.[37] 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.[38]

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. Namely, 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, which was 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.[39]

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.[40][41]

Other views

In an interview on Fox News Sunday on December 12, 2010, Breyer stated 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.[42]

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 [people] 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.[43 & 44]


In 2007, Breyer was honored with the Distinguished Eagle Scout Award by the Boy Scouts of America.[45]

[FN 0] Biography reprinted from circa 2018
All active links to notes within the biography refer back to wikipedia

A photo of Justice Breyer and attendees of the lecture

A photo of Justice Breyer and Sybil Shainwald sharing a hug at the end of the lecture