By Kerry L. Erisman
Faculty Member, Legal Studies
On January 27, 2022, U.S. Supreme Court Justice Stephen G. Breyer announced that he intends to retire at the end of the current Supreme Court term. He has served as an Associate Justice since August 3, 1994 and has left a significant impact on the bench for over 27 years.
Justice Breyer’s impact, however, extends beyond his time on the Supreme Court. To truly understand and appreciate Justice Breyer’s legacy, it is important to look at his remarkable background, which shaped his judicial philosophy and professionalism.
The Early Years of Justice Breyer
Justice Breyer was born in 1938 in San Francisco, California. His father was an attorney, and his mother worked in public service. Breyer’s parents exposed him to the exciting worlds of law and political activity during his childhood.
Justice Breyer studied philosophy at Stanford University. After graduating, Breyer attended Oxford College on a prestigious Marshall scholarship where he continued to excel academically. He studied philosophy and economics at Oxford, graduating with first-class honors.
Breyer next attended Harvard Law School and graduated magma cum laude. While at Harvard, Breyer served as an editor of the Harvard Law Review, an honor reserved for the top law school students.
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Breyer’s Life in Public Service
After graduating from Harvard Law School, Justice Breyer served as a Supreme Court law clerk for Justice Arthur Goldberg. These law clerk positions are extremely coveted and are awarded only to top law school graduates.
After his time as a Supreme Court law clerk, Justice Breyer held a series of jobs with the federal government that shaped his work ethic and judicial philosophy. It is essential to note that over time, Justice Breyer worked for all three branches of the U.S. government – legislative, executive and judicial.
In 1973, Justice Breyer served as an assistant special prosecutor on the Watergate Special Prosecution Task Force, which ultimately led to President Richard Nixon’s resignation from office. This position allowed Breyer to later work for the U.S. Senate Judiciary Committee, both as special counsel and later as the chief counsel of the committee.
As counsel on the Judiciary Committee, Breyer devoted much time to revising sentencing guidelines for the federal judiciary. Justice Breyer helped to build coalitions across party lines, and he was well respected by both Republicans and Democrats for his competence, astuteness, and legal acumen.
Breyer’s time on the Senate Judiciary Committee proved to be a major stepping stone for his career, because he was nominated in 1980 to serve on the U.S. Court of Appeals for the First Circuit. Justice Breyer served on the Court of Appeals until May 1994 when he was nominated to the Supreme Court by President Bill Clinton.
When nominating Justice Breyer to the Supreme Court, Clinton said that Judge Breyer “will bring to the Court a well-recognized and impressive ability to build bridges in pursuit of fairness and justice.”
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Justice Breyer’s Legacy
What is Justice Stephen Breyer’s legacy? How will he be remembered? In today’s society where division and discontent prevail, Justice Breyer will be remembered as a jurist who brought people together by building consensus.
Today, the Senate’s Supreme Court confirmation process is contentious and decided along political lines, but Justice Breyer’s confirmation shows a different story. Justice Breyer’s nomination was overwhelmingly confirmed by a vote of 87-9. This staggering level of support is likely impossible today, as every confirmation has become a battle among Republicans and Democrats with the narrowest of confirmations.
The overwhelming support that Justice Breyer received by the Senate speaks to Breyer’s true character and commitment to justice. President Biden, when speaking on Justice Breyer’s pending retirement, stated that “I think he’s a model public servant at a time of great divide in this country.”
Justice Breyer’s consensus brightly shines in his Supreme Court opinions. He worked closely with Chief Justice John Roberts in upholding President Obama’s Affordable Care Act, which provides much needed healthcare to millions of Americans.
In Van Orden vs. Perry, a case involving the display of the 10 Commandments, Justice Breyer cast the decisive vote, deciding that the monument could remain. In that case, a monument displayed outside of the Texas State Capitol was inscribed with the 10 Commandments, and the issue was whether the monument violated the First Amendment’s Establishment Clause.
Justice Breyer, in determining that the monument could remain, wrote that “The case before us is a borderline case. On the one hand, the Commandments’ text undeniably has a religious message, invoking, indeed emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display.” Ultimately, Justice Breyer decided that the monument was not displayed for religious purposes.
Justice Breyer’s most significant opinions in his 27 years on the Supreme Court involved abortion rights cases. He led the fight to ensure the Supreme Court followed its landmark decision in Roe vs. Wade.
In one case, Justice Breyer was instrumental in striking down a strict Texas abortion law that prohibited physicians from performing abortions if the physicians detected a fetal heartbeat. In Whole Woman’s Health vs. Hellerstedt, Justice Breyer wrote that the Texas law failed in “protecting women’s health.”
The Supreme Court sided with abortion providers, with Justice Breyer finding that the law provided “few, if any, health benefits for women.” Instead, Breyer argued, the law posed a “substantial obstacle to women seeking abortions” and created an “undue burden on their constitutional right to do so.”
These cases are just a few of the cases that demonstrate Justice Breyer’s commitment to justice and his concern for the real-world consequences faced by the citizens impacted by his rulings. He analyzed how laws would impact everyday Americans and ruled to protect those with little or no voice.
Reaction to Justice Breyer’s Retirement Announcement
After Justice Breyer announced his upcoming retirement, jurists and legislative leaders from both major political parties commended him on his service to the U.S. Chief Justice Roberts stated that Justice Breyer’s “optimism and profound love of country, expressed through word and deed, have inspired countless others. He is a tireless and powerful advocate for the rule of law—in the United States and abroad.”
Similarly, Senate Minority Leader Mitch McConnell said Justice Breyer “commands respect and affection across the legal world, including from those who disagree with his judicial philosophy and conclusions in cases. This respect is rooted in Justice Breyer’s intelligence, rigor, and good-faith scholarly engagement. By all accounts, both personally and professionally, he has rendered exemplary service on our nation’s highest Court.”
The praise and laudatory comments by the people who often disagreed with his opinions and interpretations of the law show the true character and legacy of Justice Breyer. President Clinton’s words when nominating Justice Breyer certainly ring true, as he clearly built bridges in pursuit of fairness and justice for all, especially protecting those with no voice in the system.
Our country and the Supreme Court are better off for Justice Breyer’s selfless service. His ever-lasting legacy will forever set the example of selfless service, as well as what can be accomplished by looking past ideological differences and finding common ground.
Justice Breyer’s legacy is best summed up in his own words. Recently, Justice Breyer noted that serving as a Supreme Court justice was a privilege and great honor. Breyer said that he found “the work challenging and meaningful,” and his “relations with each of my colleagues have been warm and friendly.”
We owe a debt of gratitude to Justice Breyer on his pursuit of justice and preservation of the law. But the privilege and honor have in fact been ours.