Thinking Citizen Blog — the US Supreme Court (V): Stephen Breyer

Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day

Today’s Topic — the US Supreme Court (V): Stephen Breyer (1938 — ) Clinton appointee (1994), liberal, oldest of the Nine

Breyer does not get much press. Although he is the second longest serving member of the Court, he is relatively uncontroversial. He has always been part of the liberal bloc, but is generally viewed as the most pragmatic and least “liberal” of the “liberals.” Experts — please chime in. Correct, elaborate, elucidate.

BACKGROUND — family, education, career

1. Born in San Francisco in 1938. Middle class Jewish family. Father a lawyer. Paternal great grandfather emigrated from Romania.

2. BA Stanford, 1959, Phi Beta Kappa, Summa Cum Laude, Marshall Scholar, Oxford, Harvard Law School, JD, 1964, magna cum laude.

3. Clerked for Associate Justice Arthur Goldberg (1964), Assistant Attorney General (1965–7), various positions in government and taught at Harvard Law School, 1967–1980. Appointed by President to US Court fo Appeals for the First Circuit (1980). Confirmed 80–10. Served until 1994.

US SUPREME COURT (1994 — Present)

1. In 1993 was considered for the vacancy left by Byron White, but Ruth Bader Ginsburg got the nod.

2. In 1994, he was chosen to replace Harry Blackmun and was confirmed by a vote of 87–9. Those were the days!

3. Have not been able to find a single article going into any detail about any of his judicial decisions.

BREYER’S SIX TOOLS — can you guess what they are? what weighting should each get?

1. “In 2010, Breyer published a second book, Making Our Democracy Work: A Judge’s View. 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.”

2. “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.”

3. This is Wikipedia’s one sentence summary of his 2005 book, Active Liberty: “the judiciary should seek to resolve issues in a manner that encourages popular participation in governmental decisions.” What does this mean exactly? Does this imply deference to legislatures? Or just when their decisions overlap with your partisan preferences? Has anyone read the book or have enough familiarity with Breyer’s opinions to explain?

Stephen Breyer

Which Supreme Court Justices Vote Together Most and Least Often (Published 2014)

Stenberg v. Carhart

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Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values. Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values. Or just some random justice-related fact that blew you away.

This is your chance to make some one’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeplyabout something dear to your heart.



Passionate about education, thinking citizenship, art, and passing bits on of wisdom of a long lifetime.

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John Muresianu

Passionate about education, thinking citizenship, art, and passing bits on of wisdom of a long lifetime.