Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice Stephen Gerald Breyer was born in San Francisco on August 15, 1938. He comes from a Jewish religious background, and the law was part of his life from his infancy. His father was a noted San Francisco attorney who, among other things, served as legal counsel for the San Francisco Board of Education. His younger brother Charles is a federal judge for the Northern District of California, located in San Francisco.

Breyer's family was actively involved in the Boy Scouts of America, and both Stephen and Charles became Eagle Scouts. He never lost his love for the Scouts, and in 2007 he was honored with the Distinguished Eagle Scout award. He attended Lowell High School, which has always been the "academic" high school for San Francisco. San Francisco is a very small town geographically, so it has always been possible to have most students attend their local schools while the top students were sent to the one or two college preparatory public schools. The prime schools had special programs, of which Breyer took definite advantage. He was active in the Lowell Forensic Society, and even had the opportunity to participate in debate tournaments which allowed him to take on future California Governor Jerry Brown and future Harvard Law Professor Laurence Tribe.

Breyer went on to Stanford, where he obtained a bachelor's degree in philosophy. He then went to Oxford University as a Marshall Scholar and received a bachelor's degree in English literature from Magdalen College. He returned to the United States, and received his LL.B from Harvard Law School. Breyer has always been cosmopolitan despite his otherwise solid middle class background. He is married to Joanna Freda Hare, a noted British psychologist who is also the daughter of John Hare, First Viscount Blakenham. Although Breyer remains a practicing Jew, his oldest daughter Chloe is an Episcopalian priest and his wife is an Anglican communicant. He also has another daughter, Nell and a son, Michael.

After law school, Breyer clerked for Associate Justice Arthur Goldberg during the 1964 Supreme Court term. He then served in various government legal capacities, including the Anti-Trust division of the Attorney General's office, an assistant prosecutor in the Watergate Special Prosecution Force, and special counsel to the Senate Committee on the Judiciary where he ultimately became Chief Counsel from 1979 through 1980. Although he spent considerable time working with Ted Kennedy at the committee, he also helped the passage of the Airline Deregulation Act which brought the Civilian Aeronautics Board to an end.

Breyer also taught law at Harvard Law School and at the same time taught policy at the Harvard Kennedy School of Government. He was, and is, considered a master of administrative law and regulation. In 1980, he was appointed as a judge on the U. S. Court of Appeals for the First Circuit, and from 1990 to 1994 was the Presiding Judge. At the same time he served on the Judicial Conference of the United States and the United States Sentencing Commission, playing a key role in reforming federal criminal sentencing and creating uniformity of sentencing through the Federal Sentencing Guidelines.

Although President Bill Clinton at first considered Breyer to replace Justice Byron White on his retirement, he decided on Ruth Bader Ginsburg instead under pressure from the left wing of his party. But shortly thereafter, Harry Blackmun announced his retirement, and in 1994 Clinton nominated Breyer. He was confirmed by a vote of 87 to 9. The junior justice on the Supreme Court is treated like a perpetual freshman until someone newer comes along. Breyer was the second-longest serving junior justice, on his way to becoming the longest-serving when Justice Joseph Alito assumed the dubious honor in 2006.

Breyer is neither a "living constitution" advocate nor a strict constructionist. The proof of this is that his major debate opponent is Justice Anton Scalia. But they don't argue over whether the Constitution is constantly "evolving," but rather over where original text and original meaning are insufficient to form an opinion resulting in Breyer's concept of the "purposes and consequences" of the original text. Despite his frequent joining with the liberal wing of the Court, it is a result of this Scalia/Breyer difference of judicial philosophy rather than any concurrence with the concept of reading the text in strictly modern terms. The truly liberal justices such as Ginsburg will diverge from precedent unless the text is so cast in concrete that it is not capable of interpretation.

Also, unlike the liberal justices, Breyer has consistently shown deference to the acts of Congress and the prerogatives of the Executive Branch regardless of which party and which political philosophy is currently in power. Breyer often shows a strong streak of leaning toward "process" over strict interpretation. Thus, he defends federal sentencing guidelines as necessary to the orderly process of judicial consistency, while Justice Scalia believes that the Sixth Amendment requires submitting to a jury all the elements of the crime as they relate to sentencing, including the reasonable doubt standard. Oddly, this results in the "conservative" Scalia supporting judicial discretion and the "liberal" Breyer opposing unrestrained judicial discretion. Normally, that would be considered a role-reversal.

Like my top bet for next Obama appointment, Cass Sunstein, Breyer is an unwilling judicial activist because of his fondness for Isaiah Berlin's seminal work Two Concepts of Liberty. Berlin posited, and Breyer agrees, that "liberty" has two manifestations. The first and more common understanding is that liberty is essentially freedom from government intrusion. There is very little disagreement on this concept, but in order to expand on the concept of liberty, Berlin needed to give this first manifestation a name. He calls it "negative liberty" because it defines what government must not do if it wishes to promote liberty. Berlin then describes his second manifestation of liberty--"positive liberty." That is, the freedom to participate in the government.

Breyer has taken "active liberty" into his judicial philosophy, and unlike Berlin, sees it as more important than "negative liberty," rather than an equal and balancing view. Breyer also interprets freedom to participate in government as requiring the most democratic use of judicial power to assure it. That leads him to view cases before him in terms of which interpretation most closely uses the text to support democratic rather than republican principles. This leads Breyer to see the Supreme Court as the protector of the democratic intentions of the Constitution ("substance") over the republican intentions of the Founders who wrote it ("procedure").

But again, that does not make him a radical or a "living constitutionalist." He still insists that step one is to look at the original text, then the original intention, and only when those are not manifestly clear, then to the democratic impulse of the Founders. Sunstein (remember that name folks, I'm making a cautious prediction that he will be an Obama appointee to the High Court) leans strongly toward "active liberty" taking precedence over "negative liberty," requiring that only a very high and compelling order of wording and intention within the text of the Constitution should ever be preferred over a modern interpretation of the venerable text.

Breyer, on the other hand, believes strongly that "active liberty," however attractive in theory, should never lead to "the abdication of your role of enforcing the limits in the Constitution, whether in the Bill of Rights or in the separation of powers." Critics of Breyer have said that he finds the text and original intent muddy more often than is meet and proper. His most active critic is Professor Peter Berkowitz of George Mason University Law School and a Fellow at the Stanford Hoover Institution. Berkowitz says that Breyer will always err on the side of the text being unclear in order to pursue "active liberty" results. "Breyer's position demonstrates not fidelity to the Constitution, but rather a determination to rewrite the Constitution's priorities." That leads him to activism, despite himself. Berkowitz goes on to say: "Active Liberty (the title of Breyer's treatise on the subject) 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." This, Berkowitz concludes, is the explanation for why Breyer so often ends up concurring with the intentionally activist justices.

For instance the Constitution is silent on abortion. Rather than see that as an automatic right of the states because the Constitution failed to enumerate abortion as a federal prerogative, Breyer sees abortion as an unaddressed textual matter requiring the application of active liberty. Thus, he has consistently voted with the far more doctrinaire liberals on the Court in striking anti-abortion statutes. Breyer is also a reluctant virgin on the idea of incorporating foreign and international law into Supreme Court decisions. He states that he believes that use should be persuasive, but not binding. As a practical matter, that is a distinction without a difference. But if he were truly a judicial liberal activist, he would not have been so consistent in voting to uphold law enforcement on Fourth and Sixth Amendment issues. He has also been the least arrogant of any of the justices in his pattern of showing extreme deference toward the acts of the legislative and executive branches. He has the best record of upholding acts of Congress, voting to overturn them at a lower rate than any other justice since 1994.