# Stephen Breyer *American jurist; associate justice of the Supreme Court of the United States, 1994–2022* Stephen Gerald Breyer (born August 15, 1938) is an American jurist and lawyer. He sat on the Supreme Court of the United States as an associate justice from 1994 to 2022. President Bill Clinton nominated him to the seat left open by the retirement of [[Harry Blackmun]].[^1] The encyclopedia entry places him with the Court's liberal wing. Since leaving the bench he has held the Byrne Professorship of Administrative Law and Process at Harvard Law School.[^1] Before joining the Supreme Court, Breyer taught at Harvard Law School from 1967 to 1980. In 1980 he became a judge of the U.S. Court of Appeals for the First Circuit.[^1] His retirement from the Supreme Court took effect on June 30, 2022. He was succeeded by [[Ketanji Brown Jackson]], one of his former law clerks, whom President Joe Biden had nominated on February 25, 2022.[^1] ## Early life and education Breyer was born in San Francisco to Anne A. (née Roberts) and Irving Gerald Breyer. His father worked as legal counsel to the San Francisco Board of Education.[^2] Breyer debated in tournaments as a member of the forensic society at Lowell High School. His younger brother, Charles Breyer, later became a federal district judge.[^2] After finishing high school in 1955, Breyer read philosophy at Stanford University. He took a Bachelor of Arts with highest honors and Phi Beta Kappa membership in 1959.[^2] A Marshall Scholarship took him to Magdalen College, Oxford, where he studied philosophy, politics, and economics. He earned a first-class B.A. there in 1961.[^2] At Harvard Law School he served as an articles editor of the *Harvard Law Review*. He received a Bachelor of Laws, magna cum laude, in 1964.[^2] His service in the United States Army Reserve lasted eight years and spanned the Vietnam War. It included six months of active duty in Army Strategic Intelligence. He left as a corporal with an honorable discharge in 1965.[^2] ## Legal career Breyer clerked for Justice [[Arthur Goldberg]] in 1964–1965. According to the entry, he wrote the first draft of Goldberg's concurrence in *Griswold v. Connecticut* (1965).[^3] He then worked briefly as a fact-checker for the Warren Commission. After that he spent two years in the Department of Justice's Antitrust Division as special assistant to its assistant attorney general.[^3] Harvard Law School hired him as an assistant professor in 1967, and he taught there until 1980. From 1977 to 1980 he also held a joint appointment at the Harvard Kennedy School.[^3] In 1979 he and Richard Stewart co-wrote *Administrative Law and Regulatory Policy*.[^3] He took several leaves from Harvard for government posts. In 1973 he was an assistant special prosecutor on the Watergate Special Prosecution Force.[^3] He was special counsel to the Senate Committee on the Judiciary in 1974–1975 and its chief counsel in 1979–1980. In those years he worked with the committee's chairman, Senator [[Ted Kennedy]], on the Airline Deregulation Act.[^3] ## U.S. Court of Appeals (1980–1994) President Jimmy Carter nominated Breyer to the First Circuit on November 13, 1980. The nomination was to a new seat created by 92 Stat. 1629.[^4] The [[United States Senate]] confirmed him on December 9 by 80 votes to 10, and his commission is dated December 10, 1980.[^4] He served as the circuit's chief judge from 1990 to 1994. In that role he oversaw the design and construction of a new federal courthouse in Boston.[^4] He sat on the Judicial Conference of the United States from 1990 to 1994. Earlier, from 1985 to 1989, he served on the United States Sentencing Commission.[^4] On the Commission he oversaw the first Federal Sentencing Guidelines. He also defeated a Republican proposal to make the death penalty a mandatory punishment for some crimes.[^4] At his 1994 Supreme Court confirmation hearings, Senator Howard Metzenbaum of Ohio faulted his First Circuit record. Metzenbaum's criticism was that Breyer had never voted in favor of an antitrust claim.[^4] ## Supreme Court (1994–2022) In 1993 Senator Orrin Hatch recommended Breyer to President Clinton. Clinton weighed Breyer and [[Ruth Bader Ginsburg]] for the seat vacated by [[Byron White]], and he chose Ginsburg.[^5] When Blackmun retired in 1994, Clinton first offered the seat to Senate Majority Leader George Mitchell, who declined. Interior Secretary Bruce Babbitt also declined. Judge Richard S. Arnold of the Eighth Circuit withdrew before the planned announcement.[^5] Breyer was nominated on May 17, 1994, after lobbying by Senator Kennedy. On July 29 the Senate confirmed him by 87 votes to 9.[^5] The entry attributes the margin to bipartisan recognition of his work for the Senate Judiciary Committee.[^5] The Court's membership did not change during his first eleven years on it. Across 28 years he wrote 551 opinions, a count that excludes orders and "shadow docket" matters.[^5] He wrote the Court's majority opinions in *Mahanoy Area School District v. B.L.*, *United States v. Lara* and *Google v. Oracle*. He dissented in *Glossip v. Gross*, questioning whether the death penalty is constitutional.[^1] The American Philosophical Society elected him a member in 2004.[^5] ## Retirement and post-retirement The 2020 elections gave Democrats the presidency and the Senate. Afterward, progressive activists and Democratic members of Congress urged Breyer to step down so that President Biden could name a younger liberal justice.[^6] In an August 2021 interview with the *[[New York Times]]*, Breyer recalled a conversation with Justice [[Antonin Scalia]] about not wanting a successor to undo his work. In a September 2021 interview with Chris Wallace of Fox News, Breyer said the activists were "entitled to their opinion" and that he did not plan to "die on the court".[^6] Breyer made his retirement public on January 27, 2022. On April 7, 2022, the Senate confirmed Jackson by 53 votes to 47.[^6] He left the Court at noon on June 30, after the term's final opinions and orders had been issued.[^6] On July 2, 2022, his appointment as Byrne Professor at Harvard Law School was announced. In May 2024 Yale University awarded him an honorary Doctor of Laws.[^6] ## Judicial philosophy The entry describes Breyer's interpretive method as pragmatic, centered on practical consequences and on the purpose of a statute. On the bench he posed elaborate hypotheticals at oral argument and proposed multi-factor balancing tests in his opinions.[^7] He kept the same style at oral argument after he returned to the First Circuit in 2025.[^7] His votes on abortion consistently supported abortion rights. He also defended the Court's use of foreign and international law as persuasive authority.[^7] In dissent in *United States v. Lopez* (1995) and *United States v. Morrison* (2000), he argued for cooperative federalism. Both decisions narrowed Congress's Commerce Clause power under the Rehnquist Court.[^7] Since 1994, no justice has voted to strike down congressional legislation at a lower rate than Breyer.[^7] Breyer defended the Federal Sentencing Guidelines. He also opposed Justice Scalia's reading of the Sixth Amendment, which would require every fact necessary to a criminal punishment to be found by a jury beyond a reasonable doubt.[^7] ## Publications In *Active Liberty* (2005), Breyer set out a theory of judging under which courts should decide issues in ways that encourage popular participation in government.[^1] His other books include: - *Regulation and Its Reform* (1982) - *Making Our Democracy Work: A Judge's View* (2010) - *The Court and the World* (2015) - *Against the Death Penalty* (2016), with John D. Bessler - *Breaking the Promise of Brown: The Resegregation of America's Schools* (2020)[^8] ## Notes [^1]: Wikipedia, *Stephen Breyer* (revision 1368233083, retrieved 2026-10-26) — lead section: birth date, tenure 1994–2022, Clinton nomination, Blackmun seat, Harvard posts, Jackson nomination and succession dates, principal opinions, *Active Liberty*. https://en.wikipedia.org/wiki/Stephen_Breyer [^2]: Wikipedia, *Stephen Breyer* (revision 1368233083, retrieved 2026-10-26) — "Early life and education": family, schooling, degrees, Army Reserve service. https://en.wikipedia.org/wiki/Stephen_Breyer [^3]: Wikipedia, *Stephen Breyer* (revision 1368233083, retrieved 2026-10-26) — "Legal career": clerkship, Justice Department, Harvard appointments, Watergate and Senate Judiciary Committee posts. https://en.wikipedia.org/wiki/Stephen_Breyer [^4]: Wikipedia, *Stephen Breyer* (revision 1368233083, retrieved 2026-10-26) — "U.S. Court of Appeals (1980–1994)": nomination, 92 Stat. 1629 seat, 80–10 vote, commission date, chief judgeship, Sentencing Commission. https://en.wikipedia.org/wiki/Stephen_Breyer [^5]: Wikipedia, *Stephen Breyer* (revision 1368233083, retrieved 2026-10-26) — "Supreme Court (1994–2022)": 1993 and 1994 selections, May 17 nomination, 87–9 vote, opinion count. https://en.wikipedia.org/wiki/Stephen_Breyer [^6]: Wikipedia, *Stephen Breyer* (revision 1368233083, retrieved 2026-10-26) — "Retirement and post-retirement": calls to retire, 2021 interviews, announcement, 53–47 confirmation of successor, effective date, Harvard and Yale. https://en.wikipedia.org/wiki/Stephen_Breyer [^7]: Wikipedia, *Stephen Breyer* (revision 1368233083, retrieved 2026-10-26) — "Judicial philosophy": interpretive approach, votes, dissents in *Lopez* and *Morrison*, sentencing views. https://en.wikipedia.org/wiki/Stephen_Breyer [^8]: Wikipedia, *Stephen Breyer* (revision 1368233083, retrieved 2026-10-26) — "Publications": bibliography with dates and co-authors. https://en.wikipedia.org/wiki/Stephen_Breyer