Stephen Breyer

Breyer was born on August 15, 1938, in San Francisco, California, to Anne A. (née Roberts) and Irving Gerald Breyer. Breyer's paternal great-grandfather emigrated from Romania to the United States, settling in Cleveland, Ohio, where Breyer's grandfather was born. Breyer was raised in a middle-class Reform Jewish family. His father was a lawyer who served as legal counsel to the San Francisco Board of Education. Breyer and his younger brother Charles Breyer, who later became a federal district judge, were active in the Boy Scouts of America and achieved the Eagle Scout rank. In 2007, he received the Distinguished Eagle Scout Award. Breyer attended Lowell High School, where he was a member of the Lowell Forensic Society and debated regularly in high school tournaments, including against future California governor Jerry Brown and future Harvard Law School professor Laurence Tribe. After graduating from high school in 1955, Breyer studied philosophy at Stanford University. He graduated in 1959 with a Bachelor of Arts degree with highest honors and membership in Phi Beta Kappa. He then returned to the United States to attend Harvard Law School, where he was an articles editor of the Harvard Law Review and graduated in 1964 with a Bachelor of Laws degree, magna cum laude. Breyer spent eight years in the United States Army Reserve during the Vietnam War, including six months on active duty in the Army Strategic Intelligence. He reached the rank of corporal and was honorably discharged in 1965. In 1967, Breyer married Joanna Freda Hare, a psychologist and member of the British aristocracy, younger daughter of John Hare, 1st Viscount Blakenham and granddaughter of Richard Hare, 4th Earl of Listowel. They have three adult children: Chloe, an Episcopal priest; Nell; and Michael. ==Legal career==

After law school, Breyer served as a law clerk to U.S. Supreme Court justice Arthur Goldberg from 1964 to 1965. During his clerkship, Breyer wrote the first draft of Goldberg's concurrence in Griswold v. Connecticut (1965), which argued that the right to privacy could be derived from the Ninth Amendment. Breyer served briefly as a fact-checker for the Warren Commission, followed by two years in the U.S. Department of Justice's Antitrust Division as a special assistant to its assistant attorney general. 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, economist Ben Kaplan spurred Breyer to write "The Uneasy Case for Copyright", one of the most widely cited skeptical examinations of copyright. In 1979, Breyer co-wrote Administrative Law and Regulatory Policy with Richard Stewart. Breyer was a visiting professor at the College of Law in Sydney, Australia; the University of Rome; While teaching at Harvard, Breyer took several leaves of absence to serve in the U.S. government. He served as 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. ==U.S. Court of Appeals (1980–1994)==

On November 13, 1980, President Jimmy Carter nominated Breyer to the First Circuit, to a new seat established by , and the United States Senate confirmed him on December 9 by an 80–10 vote. Breyer received his commission on December 10, 1980. From 1980 to 1994, he was a judge on the U.S. Court of Appeals for the First Circuit; he was the court's chief judge from 1990 to 1994. Many of Breyer's First Circuit decisions followed principles expressed in Goldberg's opinions, though some were reversed on appeal by an increasingly conservative Supreme Court. During Breyer's Supreme Court confirmation hearings, Ohio Senator Howard Metzenbaum criticized him for never voting in favor of an antitrust claim while on the First Circuit. Breyer successfully opposed a Republican proposal to include the death penalty as mandatory punishment for some crimes. == Supreme Court (1994–2022) ==

at his Supreme Court confirmation hearing In 1993, on the recommendation of Orrin Hatch, President Bill Clinton considered both Breyer and Ruth Bader Ginsburg for the seat vacated by Byron White. Clinton ultimately appointed Ginsburg, fearing that Breyer's focus on administrative law would lead to conservative rulings. After Harry Blackmun retired in 1994, Clinton initially offered the nomination to George Mitchell, the Senate Majority Leader, but Mitchell declined in order to make a final attempt to pass the Clinton health care plan. U.S. Secretary of the Interior Bruce Babbitt also declined to avoid compelling his wife, Harriet C. Babbitt, to resign as U.S. Ambassador to the Organization of American States. But Arnold withdrew himself the day before the planned announcement because his doctors concluded that his recurrent cancer might lead to an early death. For his first 11 years, the composition of the Court remained unchanged, the longest such stretch in over 180 years. Since the most senior member of the majority chooses its writer, Breyer generally did not produce high-profile majority opinions during the first half of his tenure. In 2015, Breyer broke a federal law that bans judges from hearing cases when they or their spouses or minor children have a financial interest in a company involved. His wife sold about $33,000 worth of stock in Johnson Controls a day after Breyer participated in the oral argument. This brought him back into compliance and he joined the majority in ruling in favor of the interests of a Johnson Controls subsidiary which was party to ''FERC v. Electric Power Supply Ass'n''. Abortion An "unequivocal defender of abortion rights", Breyer wrote for the majority in Stenberg v. Carhart (2000) to strike down a Nebraska ban on partial-birth abortion and dissented in Gonzales v. Carhart (2007), which upheld a federal ban. In ''Whole Woman's Health v. Hellerstedt (2016) and June Medical Services, LLC v. Russo (2020), Breyer led the majority in striking down state restrictions on abortion by finding that their burdens on reproductive care outweighed their benefits to patients. In response to Dobbs v. Jackson Women's Health Organization (2022) overturning Roe v. Wade'' (1973), Breyer jointly wrote the dissent with Justices Kagan and Sotomayor. Affirmative action In Gratz v. Bollinger (2003), Breyer concurred in the judgment that universities could not quantitatively advantage minority applicants, but he joined the majority in Grutter v. Bollinger (2003), which held that educational diversity was a compelling government interest. He also concurred in the judgment of Schuette v. BAMN (2014) that the Michigan Civil Rights Initiative's ban on affirmative action at public universities was enforceable, prompting criticism that the Court only defers to the political process when the outcome matches its preference. In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), Breyer wrote the lead dissent against holding desegregation busing unconstitutional unless remedying de jure segregation, arguing that de facto segregation deserved equal attention. At a 2014 symposium celebrating his first 20 years on the Supreme Court, Breyer lamented that his Parents Involved dissent was his most important opinion, yet none submitted essays on it, which constitutional law scholar Mark Tushnet interpreted as the majority winning the fight to interpret Brown v. Board of Education (1954). Death penalty Breyer has consistently opposed capital punishment as often violating the Eighth Amendment's prohibition on cruel and unusual punishment, voting with the majority in Atkins v. Virginia (2002) and Roper v. Simmons (2005). Environment During Breyer's confirmation hearings, law professor Thomas McGarity cautioned that he might be "hazardous to our health" based on his drafting of the Natural Gas Policy Act of 1978, which deregulated natural gas. Consumer advocate Ralph Nader similarly testified that Breyer's emphasis on cost-benefit analysis would make him hostile to federal environmental laws. In the two most important cases on standing in environmental cases during his tenure, Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. (2000) and Massachusetts v. EPA (2007), Breyer voted with the majority to support environmentalists suing polluters and government agencies. Although the ruling was less broad than the Ninth Circuit's approach, environmentalist groups praised the decision as affirming the Clean Water Act. Free speech Under Breyer's framework of "active liberty", political speech would receive stronger First Amendment protections than commercial speech to ensure that people could freely elect their representatives and then have that democratic government impose effective business regulations. In concurrences to Snyder v. Phelps (2011) and United States v. Alvarez (2012), Breyer rejected liability for protests against same-sex marriage and lies about military awards as restrictions on political speech that should fail for overbreadth. In comparison, his dissent in Sorrell v. IMS Health Inc. (2011) argued that legislatures should be free to protect their constituents' privacy by restricting the sale of medical data. Breyer's balancing of the speaker's interest in spreading their message against the government's regulatory interest draws from the free speech analysis of European courts. Accordingly, his concurrence in the judgment of Reed v. Town of Gilbert (2015) favors a balancing test for content-based regulations rather than uniform application of strict scrutiny. First Amendment litigator Floyd Abrams faults this proportionality analysis for ignoring the community's interest in hearing diverse perspectives. Legal scholar John Hart Ely had previously criticized balancing tests in free speech cases as furthering the judge's preferred viewpoint. In free speech cases, Breyer consistently deferred to the government's invocation of the obscenity exception. In United States v. Playboy Entertainment Group, Inc. (2000), he dissented against striking down a requirement that cable operators restrict sexually oriented programming to nighttime. Breyer also concurred in ''United States v. American Library Ass'n'' (2003) that Congress could require public schools and libraries receiving E-Rate discounts to install an Internet filter. In MGM Studios, Inc. v. Grokster, Ltd. (2005), the Court unanimously held peer-to-peer file sharing companies Grokster and StreamCast Networks liable for copyright infringement because they marketed their products for such uses. In his concurrence, Breyer argued without such intent, Sony Corp. of America v. Universal City Studios, Inc. (1984) would protect these companies from liability because of their software's substantial non-infringing uses. Praised for adapting copyright law to new technologies, Breyer's holding in Google LLC v. Oracle America, Inc. (2021) assumed that computer code was copyrightable but deemed Google's use of code from the Java programming language for its Android operating system protected fair use. In a rare instance of siding with copyright owners, Breyer held in ABC v. Aereo (2014) that Aereo's streaming of terrestrial television was sufficiently analogous to cable television to leave it liable for violating the Copyright Act of 1976. Writing for a unanimous court in Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012), Breyer held that because a scientific law is not patentable subject matter, a diagnostic test that merely observes a patient's metabolization of a drug cannot be patented. In 2013, Breyer joined the majority in Association for Molecular Pathology v. Myriad Genetics, Inc., which applied his framework to invalidate gene patents for naturally occurring DNA sequences. In United States v. Lara (2004), Breyer held that the federal and tribal governments may prosecute non-member Native Americans for the same charges without violating the Double Jeopardy Clause, interpreting the Civil Rights Act of 1968 as deference to tribal sovereignty. He was criticized for concurring in Adoptive Couple v. Baby Girl (2013) that the Indian Child Welfare Act's additional procedures for ending parental rights do not apply to non-custodial Native American biological fathers. Religion Breyer was praised for the difference between his votes in the 2005 cases Van Orden v. Perry and McCreary County v. American Civil Liberties Union, which dealt with public displays of the Ten Commandments. In the former, he concurred in the judgment to allow their display outside the Texas State Capitol; in the latter, he deemed their display inside Kentucky county courthouses unconstitutional. Framing the First Amendment as meant to reduce religious divisiveness, Breyer focused on the greater and immediate objection to the latter display. Voting rights Breyer dissented to the plurality holding in Vieth v. Jubelirer (2004) that partisan gerrymandering is a non-judiciable political question, and he joined the dissent in Rucho v. Common Cause (2019) against a majority opinion reaching the same conclusion. Writing for the majority in Alabama Legislative Black Caucus v. Alabama (2015), Breyer held that racial gerrymandering claims must be looked at district by district, rather than at the state level. Breyer joined dissents in Shelby County v. Holder (2013) and Brnovich v. Democratic National Committee (2021), both of which criticized decisions weakening portions of the Voting Rights Act of 1965. == Retirement and post-retirement ==

on January 27, 2022 After Democratic victories in the 2020 presidential and Senate elections, progressive activists and Democratic members of Congress called on Breyer to retire so that President Biden could nominate a younger liberal justice. In an August 2021 New York Times interview, Breyer said he wished to retire before his death, and recounted a conversation he had with Justice Antonin Scalia in which Scalia mentioned that he did not want his successor to "reverse everything I've done for the last 25 years". Breyer said that Scalia's point will "inevitably be in the psychology" of his decision to retire. In a September 2021 interview with Fox News's Chris Wallace, Breyer said activists calling for his retirement are "entitled to their opinion" and "I didn't retire because I had decided on balance I wouldn't retire". He said he took several factors into account when deciding his retirement plans, and reiterated that he did not plan to "die on the court". On January 27, 2022, Breyer announced that he would retire from the Supreme Court. To succeed him, Biden nominated Ketanji Brown Jackson, a judge of the U.S. Court of Appeals for the D.C. Circuit who had once clerked for Breyer. The Senate confirmed her by a vote of 53–47 on April 7, 2022. Breyer's retirement took effect at noon on June 30, following the court's final opinions and orders for the term. On July 2, 2022, it was announced that Breyer had been appointed Byrne Professor of Administrative Law and Process at Harvard Law School. Breyer had previously attended and taught at Harvard Law School. In May 2024, he received an honorary Doctor of Laws degree from Yale University in recognition of his contributions to the field of law and his nearly three decades of service on the Supreme Court. As a retired Supreme Court justice, Breyer can still sit as a judge in lower federal courts by designation. He first returned to the bench in 2025 in the First Circuit Court of Appeals, the court on which he was a judge before his Supreme Court appointment. Breyer attended the second inauguration of Donald Trump in 2025, appearing with the nine sitting Supreme Court justices. ==Judicial philosophy==

Breyer is known for his pragmatic approach to legal interpretation, which emphasizes practical consequences and the purpose of legislation. Cass Sunstein described this outlook as one that "will tend to make the law more sensible" and praised Breyer's critiques of originalism as "powerful and convincing". In showcasing how Supreme Court decisions have complex real-world effects, Breyer often posed complex hypotheticals during oral arguments and proposed multi-factor balancing tests in his opinions. While these hypotheticals were sometimes criticized as meandering, Breyer continued this approach to oral arguments when he returned to the First Circuit in 2025. Breyer consistently voted in favor of abortion rights, one of the most controversial areas of the Supreme Court's docket. He also defended the Court's use of foreign law and international law as persuasive authority in its decisions. Breyer advocated for cooperative federalism in his dissents to the Rehnquist Court's narrowing of Congress's Commerce Clause authority in United States v. Lopez (1995) and United States v. Morrison (2000). He demonstrated a consistent pattern of deference to Congress, voting to overturn congressional legislation at a lower rate than any other justice since 1994. Breyer's extensive experience in administrative law is accompanied by his staunch defense of the Federal Sentencing Guidelines. He 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. In many other areas on the Court, too, Breyer's pragmatism was considered the intellectual counterweight to Scalia's textualism. For example, in NLRB v. Noel Canning (2014), Breyer led a 5-4 majority in interpreting the Recess Appointment Clause based on its purpose of filling vacancies, whereas Scalia dissented in favor of the clause's plain meaning. In describing the methods of 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. He has noted that only the last two differentiate him from textualists 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. 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. He argues that, when faced with textual uncertainty about the law, the judge cannot only look at the words themselves, but "recognize the limits of language in conveying meaning" enabling them to understand why the law was written in a particular way, what purpose that law seeks to serve and problems it seeks to avoid. In Active Liberty, Breyer argues that the Framers of the Constitution sought to establish a democratic government that would maximize both "negative liberty" (freedom from government coercion) and "positive liberty" (freedom to participate in government). In Breyer's terminology, the latter is the "active liberty" that judges should champion by supporting the public's self-governance with their decisions. Political scientist Peter Berkowitz has criticized Breyer's view that the Due Process Clause confers a right to abortion as restraining democratically elected state legislatures and Congress from enacting abortion restrictions. Legal scholar Cass Sunstein has rebutted that among the nine justices of the Rehnquist Court, Breyer had the highest percentage of votes to uphold acts of Congress and defer to Executive Branch decisions. Legal author Jeffrey Toobin framed Breyer's view as upholding judges' responsibility to enforce the limits of the Constitution. In a 2006 discussion at New York Historical, Breyer noted that democratic means did not end slavery and that judicial intervention was needed to enforce "one man, one vote" and broader civil and political rights that provide the basis for democratic decision-making. Other books In 2010, Breyer published a second book, ''Making Our Democracy Work: A Judge's View''. In it, he argues that judges have six tools they can use to determine a legal provision's proper meaning: (1) text; (2) historical context; (3) precedent; (4) tradition; (5) purpose; and (6) consequences of potential interpretations. Textualists, such as Antonin Scalia, feel comfortable using only the first four of these tools, while pragmatists, like Breyer, believe that "purpose" and "consequences" are particularly important interpretative tools. 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. 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, an important precursor to the American Civil War. On March 26, 2024, Breyer published Reading the Constitution: Why I Chose Pragmatism, Not Textualism. In an interview coinciding with its release, he lamented that textualism "will not help achieve the goals of those who write statutes or those who wrote and adopted the Constitution". In January 2025, he published the article, "Pragmatism or Textualism", which builds upon the main points in presented in Reading the Constitution and provides further examples of his interpretive philosophy. == Publications ==

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