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  • 1. Stephen Breyer - Wikipedia, the free encyclopedia From Wikipedia, the free encyclopedia Stephen Gerald Breyer ( /ˈbraɪər/; born August 15, 1938) is an Associate Justice of the U.S. Supreme Court. Appointed Stephen Breyer by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.[2] 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 and assistant special prosecutor on the Watergate Special Prosecution Force in 1973. In his 2005 book Active Liberty, Breyer made his first attempt Associate Justice of the United States Supreme to systematically lay out his views on legal theory, arguing Court that the judiciary should seek to resolve issues to encourage Incumbent popular participation in governmental decisions. Assumed office August 3, 1994 Nominated by Bill Clinton Preceded by Harry Blackmun Chief Judge of the United States Court of Appeals 1 Early life and education 2 Legal career for the First Circuit 3 Judicial career In office 4 Judicial philosophy 1990 – August 3, 1994 4.1 In general Preceded by Levin Campbell 4.2 Active Liberty 4.3 Other views Succeeded by Juan Torruella 5 See also Judge of the United States Court of Appeals for 6 Footnotes the First Circuit 7 Further reading 8 External links In office December 10, 1980 – August 3, 1994 Nominated by Jimmy Carter Preceded by Position established Succeeded by Sandra Lynch Breyer was born to Irving Gerald Breyer and Anne A. Personal details Roberts,[3] a middle-class Jewish family in San Francisco. Born August 15, 1938 Breyers father was legal counsel for the San Francisco Board San Francisco, California, U.S. of Education.[4] Both Breyer and his younger brother,1 of 9 12/23/2011 8:11 PM
  • 2. Stephen Breyer - Wikipedia, the free encyclopedia Charles, who is a federal district judge, are Eagle Scouts of Political party Democratic Party[1] San Franciscos Troop 14.[5][6] In 2007, Breyer was honored with the Distinguished Eagle Scout Award by the Boy Scouts Spouse(s) Joanna Hare of America.[7] In 1955, Breyer graduated from Lowell High Alma mater Stanford University School. At Lowell, he was a member of the Lowell Forensic Magdalen College, Oxford Society and debated regularly in high school debate Harvard Law School tournaments, including against future California governor Religion Judaism Jerry Brown and future Harvard Law School professor Laurence Tribe.[8] Breyer received a Bachelor of Arts in philosophy from Stanford University, a Bachelor of Arts from Magdalen College at Oxford University as a Marshall Scholar, and a Bachelor of Laws (LL.B) from Harvard Law School. Breyer is also fluent in French.[9] In 1967, he married The Hon. Joanna Freda Hare, a psychologist and member of the British aristocracy (the youngest daughter of John Hare, 1st Viscount Blakenham). The Breyers have three adult children, Chloe (an Episcopal priest, and author of The Close), Nell, and Michael.[10] Breyer served as a law clerk to Associate Justice Arthur Goldberg during the 1964 term (list). He was a special assistant to the United States Assistant Attorney General for Antitrust from 1965 to 1967 and 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.[10] 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.[8][11] Breyer became an assistant professor, law professor, and lecturer at Harvard Law School starting in 1967. Breyer taught at Harvard Law School until 1994, also serving as a professor at Harvards Kennedy School of Government from 1977 to 1980. At Harvard, Breyer was known as a leading expert on administrative law.[12] 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,[10] and the Tulane University Law School.[13]2 of 9 12/23/2011 8:11 PM
  • 3. Stephen Breyer - Wikipedia, the free encyclopedia From 1980 to 1994, Breyer was a judge on the United States Court of Appeals for the First Circuit; he was the courts Chief Judge from 1990 to 1994.[10] In the last days of President Jimmy Carters administration, on November 13, 1980, Carter nominated Breyer to the First Circuit, and the U.S. Senate confirmed him on December 9, 1980 by an 80–10 vote.[14] He 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.[10] On the sentencing commission, Breyer played a key role in reforming federal criminal sentencing procedures, producing the Federal Sentencing Guidelines, which were formulated to increase uniformity in sentencing.[15] In 1993, President Bill Clinton considered him for the seat vacated by Byron White that ultimately went to Justice Ruth Bader Ginsburg.[16] Stephen Breyer Breyers 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 13 of that year. Breyer was confirmed by the U.S. Senate in an 87 to 9 vote and took his seat 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. In general Breyers pragmatic approach to the law "will tend to make the law more sensible"; according to Cass Sunstein, Breyers "attack on originalism is powerful and convincing."[17] In 2006, Breyer said that in assessing a laws constitutionality, while some of his colleagues "emphasize language, a more literal reading of the [Constitutions] text, history and tradition," he looks more closely to the "purpose and consequences."[18] Breyer has consistently voted in favor of abortion rights,[19][20] one of the most controversial areas of the Supreme Courts docket. He has also defended the Supreme Courts use of foreign law and international law as persuasive (but not binding) authority in its decisions.[21][22][23] However, Breyer is also recognized to be deferential to the interests of law enforcement and to legislative judgments in the Supreme Courts 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.[24] Breyers 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.[25] In many other areas on the Court, too, Breyers pragmatism is considered the intellectual counterweight to Scalias textualist philosophy.[26] 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.[27] Breyer notes that only the last two differentiate him from textualists on the Supreme Court such as Scalia. Breyer3 of 9 12/23/2011 8:11 PM
  • 4. Stephen Breyer - Wikipedia, the free encyclopedia 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.[28] With the latter (consequences), Breyer argues that considering the impact of legal interpretations is a further way of ensuring consistency with a laws intended purpose.[29] Active Liberty Breyer expounded on 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.[19][30] 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 terms this "modern liberty." The second Berlinian concept – to Berlin, "positive liberty" – is the "freedom to participate in the government;" In Breyers terminology, this is the "active liberty," which the judge should champion. Having established this premise of what liberty is, and having posited the primary importance of this concept over the competing idea of "Negative Liberty" to the Framers, 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 Prof. Peter Berkowitz,[31] the reason that "[t]he primarily democratic nature of the Constitutions governmental structure has not always seemed obvious," as Breyer puts it, is "because it’s not true, at least in Breyers sense that the Constitution elevates active liberty above modern [negative] liberty." Breyers 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, Professor 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.[32] 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 Breyers 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."[33] 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.[34] In 2010, Breyer released a second book, Making Our Democracy Work: A Judges View (ISBN 978-0307269911).[35]4 of 9 12/23/2011 8:11 PM
  • 5. Stephen Breyer - Wikipedia, the free encyclopedia 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 never intended guns to go unregulated and that history supports his and the other dissenters views in District of Columbia v. Heller.[36] In the wake of the controversy[37] over Justice Alitos reaction to President Obamas criticism of the Courts Citizens United v. FEC ruling in his 2010 State of the Union Address, Breyer said he would continue to attend the address: I think its 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.[38] Bill Clinton Supreme Court candidates List of U.S. Supreme Court Justices by Demographics of the Supreme Court of the time in office United States United States Supreme Court cases during List of Justices of the Supreme Court of the Rehnquist Court the United States United States Supreme Court cases during List of law clerks of the Supreme Court of the Roberts Court the United States 1. ^ As on Bench, Voting Styles Are Personal ( /11/AR2008021102753.html) 2. ^ Kersch, Ken (2006). "Justice Breyers Mandarin Liberty". University of Chicago Law Review 73: 759 [p. 765]. "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. ^ Genealogy records ( , Accessed October 26, 2007 4. ^ Oyez Bio ( , Retrieved March 21, 2007 5. ^ Townley, Alvin (2007) [December 26, 2006]. Legacy of Honor: The Values and Influence of Americas Eagle Scouts ( . New York: St. Martins Press. pp. 56–59. ISBN 0-312-36653-1. /TD_TitleDetail.aspx?ISBN=0312366531. Retrieved December 29, 2006. 6. ^ Ray, Mark (2007). "What It Means to Be an Eagle Scout" ( what.html) . [[Scouting (magazine)|]]. Boy Scouts of America. what.html. Retrieved January 5, 2007. 7. ^ "Distinguished Eagle Scout Award" ( . Scouting (November – December 2007): 10. 2007. Retrieved November 1, 2007. 8. ^ a b Oyez Bio ( , retrieved March 21, 2007 (For Brown; need cite for Tribe) 9. ^ "Inaugural D.C. French Festival launches sans the Freedom Fries" ( of 9 12/23/2011 8:11 PM
  • 6. Stephen Breyer - Wikipedia, the free encyclopedia 2006/pollywood/) . Washington Life Magazine. October 12, 2006. 2006/pollywood/. Retrieved August 30, 2010. 10. ^ a b c d e f The Justices of the Supreme Court ( , retrieved on March 20, 2007 11. ^ Thierer, Adam (December 21, 2010) Wholl Really Benefit from Net Neutrality Regulation? ( , CBS News 12. ^ The dilemmas of risk regulation – Breaking the Vicious Circle by Stephen Breyer ( /mi_qa3622/is_199404/ai_n8720105) , by Sheila Jasanoff. Issues in Science and Technology, Spring 1994. 13. ^ 14. ^ "Sharp Questions for Judge Breyer" ( /gst/fullpage.html?res=9C0DE0DF153FF933A25754C0A962958260) . New York Times. July 10, 2004. Retrieved March 8, 2008. 15. ^ "Justice Breyer Should Recuse Himself from Ruling on Constitutionality of Federal Sentencing Guidelines, Duke Law Professor Says" ( . Duke University News. September 28, 2004. 16. ^ Berke, Richard (June 15, 1993). "The Overview; Clinton Names Ruth Ginsburg, Advocate for Women, to Court" ( . New York Times. 17. ^ Yale Law Journal, dated 2006-04-30, retrieved September 16, 2010 ( /pdfs/221.pdf,) 18. ^ "Justice Breyer Favors Less Literal Readings" ( . February 9, 2006. Retrieved September 16, 2010. 19. ^ a b Wittes, Benjamin (September 25, 2005). "Memo to John Roberts: Stephen Breyer, a cautious, liberal Supreme Court justice, explains his view of the law" ( /22/AR2005092201017.html) . Washington Post. /22/AR2005092201017.html. 20. ^ Stenberg v. Carhart, 530 U.S. 914 ( (2000). 21. ^ Transcript of Discussion Between Antonin Scalia and Stephen Breyer ( /mediarel.nsf/1D265343BDC2189785256B810071F238 /1F2F7DC4757FD01E85256F890068E6E0?OpenDocument) . AU Washington College of Law, Jan. 13. Retrieved on March 21, 2007 22. ^ Pearlstein, Deborah (April 5, 2005). "Whos Afraid of International Law" ( /web/page.ww?section=root&name=ViewWeb&articleId=9456) . American Prospect Online. Retrieved March 21, 2007. 23. ^ Roper v. Simmons, 543 U.S. 551 ( (2005); Lawrence v. Texas, 539 U.S. 558 ( (2003); Atkins v. Virginia, 536 U.S. 304 ( (2002). 24. ^ Gewirtz, Paul; Golder, Chad (July 6, 2005). "So Who Are the Activists?" ( /06/opinion/06gewirtz.html) . New York Times. Retrieved March 23, 2007. 25. ^ Blakely v. Washington, 542 U.S. 296 ( (2004). 26. ^ Sullivan, Kathleen M. (February 5, 2006). "Consent of the Governed" ( /review/05sullivan.html) . New York Times. 27. ^ Lithwick, Dalia (December 6, 2006). "Justice Grover Versus Justice Oscar" ( . Slate. Retrieved March 19, 2007. 28. ^ "Interview with Nina Totenberg" ( . NPR. September 30, 2005. Retrieved March 19, 2007. 29. ^ Sunstein at 12 ("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 publics will and is therefore consistent with the Constitutions 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 (p. 100).")6 of 9 12/23/2011 8:11 PM
  • 7. Stephen Breyer - Wikipedia, the free encyclopedia 30. ^ Feeney, Mark (October 3, 2005). "Author in the Court: Justice Stephen Breyers New Book Reflects His Practical Approach to the Law". Boston Globe. 31. ^ Berkowitz, Peter. "Democratizing the Constitution" ( /democratizingtheconstitution.pdf) (PDF). Retrieved October 26, 2007. 32. ^ Sunstein, pg. 7, citing Lori Ringhand, "Judicial Activism and the Rehnquist Court", available on and Cass R. Sunstein and Thomas Miles, "Do Judges Make Regulatory Policy? An Empirical investigation of Chevron", U Chi L Rev (forthcoming 2006). 33. ^ Toobin, Jeffrey (October 31, 2005). "Breyers Big Idea" ( /31/051031fa_fact?currentPage=1) . The New Yorker. /31/051031fa_fact?currentPage=1. 34. ^ Pakaluk, Maximilian (March 13, 2006). "Chambered in a "Democratic Space". Justice Breyer explains his Constitution" ( . National Review. Retrieved October 31, 2007. 35. ^ Fontana, David (October 3, 2005). "Stephen Breyers "Making Democracy Work," reviewed by David Fontana" ( . The Washington Post. Retrieved October 8, 2010. 36. ^ "Breyer: Founding Fathers Would Have Allowed Restrictions on Guns" ( /12/breyer-founding-fathers-allowed-restrictions-guns/#content) . Fox News. December 12, 2010. Retrieved April 2, 2011. 37. ^ Nagraj, Neil (January 28, 2010) Justice Alito mouths "not true" when Obama blasts Supreme Court ruling in State of the Union address ( /28/2010-01-28_justice_alito_mouths_not_true_when_obama_blasts_supreme_court_ruling_in_state_of.html) , New York Daily News 38. ^ Blake, Aaron (December 12, 2010) Justice Breyer: Ill go to State of the Union ( /44/2010/12/breyer-ill-go-to-state-of-the.html) , Washington Post Clinton, Bill (2005). My Life. Vintage. ISBN 1-4000-3003-X. Stephen Breyer, The Federal Sentencing Guidelines and Key Compromises on Which They Rest, 17 Hofstra L. Rev. 1 (1988) Supreme Court ( official site with biographies ( Profile ( at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center Legal resources ( at the Law Library of Congress Biography and writings ( at the Legal Information Institute Profile ( at the Oyez Project Appearances ( on C-SPAN Profile ( at the Internet Movie Database Financial information ( at Collected news and commentary ( /b/stephen_g_breyer) at The New York Times7 of 9 12/23/2011 8:11 PM
  • 8. Stephen Breyer - Wikipedia, the free encyclopedia Works by or about Stephen Breyer ( in libraries (WorldCat catalog) Profile ( at Notable Names Database CSPAN Q&A ( with Justice Breyer Review of Stephen Breyers Active Liberty: Interpreting our Democratic Constitution ( Stephen Breyer, the courts necromancer ( /custpage.cfm?frm=3637&sec_id=3637) , a book review of "Active Liberty: Interpreting Our Democratic Constitution" in the New English Review Active Liberty from Justice Stephen Breyer ( /story.php?storyId=4965766) , October 20, 2005 NPRs Fresh Air "Supreme Court Justice Breyer on Active Liberty" Part 1 of Interview ( /story/story.php?storyId=4929668) , September 29, 2005 NPRs Morning Edition "Justice Breyer: The Case Against Originalists" Part 2 of Interview ( /story/story.php?storyId=4930456) , September 30, 2005 NPRs Morning Edition Justice Breyers appearance on NPRs quiz show Wait Wait... Dont Tell Me March 24, 2007 ( view=storyview) WGBH Forum Network: one and a half hours with US Supreme Court Justice of Law Stephen Breyer September 8, 2003. ( Legal offices Judge of the Court of Appeals for the Succeeded by New office First Circuit Sandra Lynch 1980–1994 Chief Judge of the Court of Appeals for Preceded by Succeeded by the First Circuit Levin Campbell Juan Tourruella 1990–1994 Associate Justice of the Supreme Court of Preceded by the United States Incumbent Harry Blackmun 1994–present United States order of precedence Preceded by Succeeded by Ruth Bader Ginsburg Order of Precedence of the United States Samuel Alito as Associate Justice of the Supreme as Associate Justice of the Supreme Court as Associate Justice of the Supreme Court Court Retrieved from "" Categories: 1938 births Alumni of Magdalen College, Oxford American Jews American legal scholars California lawyers Distinguished Eagle Scouts Eagle Scouts Harvard Law School alumni Harvard Law School faculty Judges of the United States Court of Appeals for the First Circuit Law clerks of the Supreme Court of the United States Légion dhonneur recipients Living people Marshall Scholars People from San Francisco, California Stanford University alumni Tulane University Law School faculty United States court of appeals judges appointed by Jimmy Carter United States federal judges appointed by Bill Clinton United States Supreme Court justices8 of 9 12/23/2011 8:11 PM
  • 9. Stephen Breyer - Wikipedia, the free encyclopedia This page was last modified on 18 December 2011 at 15:24. Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. See Terms of use for details. Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization.9 of 9 12/23/2011 8:11 PM