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Born in San Francisco in 1938 to a Jewish family, Breyer’s parents introduced him to a life of law and legal activism. His father Irving Breyer was the general counsel for the Unified School District of San Francisco, and often brought a young Stephen Breyer to court with him. Thus, from his formative years in San Francisco, Justice Breyer was introduced and became active in local politics and the framework of the American legal system. After graduating from Lowell High School in 1955, Breyer studied Philosophy at Stanford University, and Philosophy Politics and Economics at Magdalen College of Oxford University as a Marshall Scholar.
Starting his legal career as a law clerk for Supreme Court Justice Arthur Goldberg, Breyer became acquainted with the inner workings of the Supreme Court under one of the most liberal justices of the day. A lot of Breyer’s legal philosophy was formed during his years as a clerk for Justice Goldberg. More specifically, Breyer authored the first draft of Justice Goldberg’s concurring opinion in Griswold v. Connecticut, a case that upheld the martial right to privacy against contraception.
In 1994 President Bill Clinton nominated Breyer to the Supreme Court to fill the vacant seat left by Justice Harry Blackmun. He was confirmed by a vote of 87-9. While there were 9 “nay” votes, Breyer was a solid, very uncontroversial vote for a seat on the bench. Breyer’s bipartisan nature as well as his fine record of legal scholarship were influential factors in his confirmation. The Senate Judiciary Committee heavily cited his experiences as a Professor at Harvard Law School and his fourteen-year tenure as Chief Judge on the First Circuit Court of Appeals. These were both elements, according to Joseph Biden, then chairman of the Senate Judiciary Committee, of how Breyer was a distinguished jurist who was more than capable of serving on the highest court.
While on the court, Justice Breyer adopted the judicial philosophy of pragmatism. This, simply put, is a consequentialist approach to decision making. Unlike some of his colleagues, Breyer was less concerned with the founder’s intent, and more so worried about the way that his ruling would manifest in society and affect peoples’ lives. While these are two different approaches to deciding cases, and one isn’t necessarily more virtuous than the other, Breyer sought to make the constitution work for every American. He attempted to de-mystify the court by showing that it had the ability to change lives in a practical, beneficial way.
Breyer has famously dissented in the 2015 decision of Glossip v. Gross, a case ruling that the use of midazolam for completing the death penalty did not violate the Eighth Amendment’s cruel and unusual punishment clause. Breyer read his dissent aloud from the bench (a practice reserved for when a Justice feels unusually strong about the opinion), as he argued that the death penalty, as it stood, was an inherent violation of the Eighth Amendment. During his tenure, Breyer has consistently and emphatically defended abortion access and rights, he has fought for environmental preservation, and he has used his seat to defend the rights of minoritized populations everywhere.
When describing himself in both oral histories and personal literature, Breyer holds that he is a Justice that has the peoples’ best intention at mind while deciding all cases. While many Justices would probably claim the same thing, Breyer’s judicial philosophy is not rooted in legal originalism or deference to the founders’ intentions, it is instead rooted in a commitment to make the constitution work for every American. This can be seen through his numerous opinions that painstakingly review facts and evidence to ensure the interests of every citizen are considered. In many of his most revered opinions, Breyer has been committed to leaving congressional action alone, and letting the peoples’ voice be heard with limited judicial interference (cases such as United States v. Lopez 1995; US v. Morrison 2000).
Despite finding himself in the minority on the court much of the time, Breyer is held in high esteem on the Supreme Court as a leading voice in legal pragmatism, a position that has earned him the highest accolades in his field. His retirement from the court makes room for Justice Ketanji Brown Jackson, a progressive jurist who will hopefully uphold her predecessor’s commitment to fairness, equality, and pragmatism.
Caleb Aridano, of Crestwood, Ky., is a member of the McConnell Scholar Class of 2024 at the University of Louisville. He studies philosophy, political science, public health, ethics, and LBGTQ health studies.