Stephen Breyer

Stephen Breyer (born August 15, 1938, San Francisco, California, U.S.) was an associate justice of the Supreme Court of the United States from 1994 to 2022.

Breyer received bachelor’s degrees from Stanford University (1959) and the University of Oxford (1961), which he attended on a Rhodes scholarship, and a law degree from Harvard University (1964). In 1964–65 he clerked for U.S. Supreme Court Justice Arthur J. Goldberg. He taught law at Harvard University from 1967 to 1994.

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Breyer took leave from Harvard in 1973 to serve as an assistant prosecutor in the Watergate investigation. In 1974–75 he was special counsel to the U.S. Senate Judiciary Committee, and from 1979 to 1981 he was its chief counsel, working on projects ranging from the federal criminal code to airline and trucking deregulation. In 1980 he was appointed by Pres. Jimmy Carter to the United States Court of Appeals for the First Circuit, becoming its chief judge in 1990. In 1994 Pres. Bill Clinton nominated Breyer to fill the seat of the retiring justice Harry Blackmun. As a pragmatic moderate acceptable to Democrats and Republicans alike, Breyer was easily confirmed by the Senate (87–9).

Breyer was among the more liberal members of the Court, and he was highly regarded, even by conservatives, for his analytic and pragmatic rather than ideological approach to the Constitution. In the area of civil rights, Breyer consistently sided with efforts to dismantle historical and symbolic vestiges of racial segregation. In Bush v. Gore (2000; see United States: The Bill Clinton administration), which settled that year’s controversial presidential election between George W. Bush and Al Gore, he issued a passionate yet precise dissent. He argued that, by failing to refuse the case under the rubric of the political-question doctrine (which the Court often had invoked in order to sidestep controversial issues that it thought were best handled by the legislature) and by deciding the case on the basis of equal protection (i.e., it ruled that manual recounts of certain votes in Florida violated the rights of voters whose ballots were not manually reviewed), the Court had undermined its integrity and authority. In McConnell v. Federal Election Commission (2003), he joined a majority in holding that limits on campaign advertisements and contributions imposed by the Bipartisan Campaign Reform Act of 2002, popularly known as the McCain-Feingold Act, did not violate the First Amendment’s guarantee of freedom of speech. When a later conservative majority of the Court reached the opposite conclusion in Citizens United v. Federal Election Commission (2010), Breyer joined the powerful dissenting opinion written by the liberal justice John Paul Stevens. Breyer consistently defended abortion rights—notably writing the majority opinion in Whole Woman’s Health v. Hellerstedt (2016), which struck down a Texas law imposing restrictions on abortion clinics and doctors, and dissenting from the Court’s decision not to block enforcement of a Texas law that effectively banned abortions after six weeks of pregnancy (2021). He also supported school integration and questioned the constitutionality of the death penalty. His positions on the rights of criminal defendants, however, tended to be more conservative than those of the Court’s other liberal justices.

In January 2022 Breyer announced that he would retire at the end of the Court’s 2021–22 term. Soon after his retirement became effective on June 30, 2022, Ketanji Brown Jackson, who had been nominated to the Court by Democratic Pres. Joe Biden in February and confirmed by the Senate in April, was sworn in as Breyer’s replacement.

Breyer is the author of several books, including Breaking the Vicious Circle: Toward Effective Risk Regulation (1993), Active Liberty: Interpreting Our Democratic Constitution (2005), Making Our Democracy Work: A Judge’s View (2010), and The Authority of the Court and the Peril of Politics (2021).