Justice Breyer will be remembered for pragmatic, progressive view of law and life

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Curiosity, candor and collegiality mark the professional life of Justice Stephen Breyer, a man equally at home in the halls of justice and the worlds of culture, literature, and quiz shows.

Sources tell Fox News the longtime progressive member of the Supreme Court will retire at the end of the current term later this year.

For a man who spent his life trying to figure out complicated questions of law and life, Breyer seemed to grasp how one’s choices can — however small — ripple across society.

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“Your life will shape itself around your decisions,” he once told a group of students. “There will be moments when you’re very happy, and moments you will be miserable. But as you go on, your life begins to tell a story.”

“Your life will shape itself around your decisions. … As you go on, your life begins to tell a story.”

— Supreme Court Justice Stephen Breyer

Breyer’s story is remarkable, rising from a middle-class upbringing in California to the nation’s highest court. A consistent liberal voice, he also gained a reputation as a compromiser, reaching across the aisle whenever possible.

He lamented colleagues who Breyer believed were unwilling or unable to hear the other side of a legal question, himself a justice who always sought more discussion and debate, not less.

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And his practical outlook on the law, to achieve what he saw as modest, “common sense” solutions to vexing social and political issues, earned him bipartisan respect.

“He is the justice who was most interested in getting out there in public, speaking, writing books,” said Thomas Goldstein, publisher of SCOTUSblog.com. “He took a valuable public leadership role, explaining to people the importance of the courts.”

“He took a valuable public leadership role, explaining to people the importance of the courts.”

— Thomas Goldstein, publisher of SCOTUSblog.com

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“He’s open to the world, open to the intellectual world, the real world, the artistic world,” said Risa Goluboff, a former Breyer law clerk. “He was excited to have new experiences. He just lived incredibly fully. He had a lot of wonderment for the world that takes him in different directions.”

“He was always optimistic he could change the minds of his [bench] colleagues, so they will see the law as he sees it,” said Mirah Horowitz, also a onetime law clerk. “So it allowed him to come to work every day and not be burdened by the baggage of the past cases, and the tensions that may have occurred between the justices. Because every case for him was a fresh start.”

Then-U.S. Court of Appeals Chief Judge Stephen Breyer, left, listens as President Clinton names Breyer a Supreme Court associate justice during a news conference outside the White House, May 13, 1994.
(Getty Images)

‘Way-out what-ifs’

Breyer’s intellectual thirsts and his quirky personality combined in court to produce what one colleague fondly remembered as those “way-out what-ifs.”

Members of the high court use their oral arguments — public sessions in the courtroom — to pose questions to lawyers making their case. They often take the form of hypotheticals, “to patrol the boundaries” of the law, as Breyer once told us. “An odd example can call particular attention to the point you want to explore when interpreting statutes.”

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His often involved the strange, slightly scary variety: mice in a Coca-Cola bottle, pet oysters, raccoons chewing garage door sensors, and the kindly “Pussycat Burglar” (“he’s never harmed a soul,” said the justice of his fictional example).

Then there was a 2004 case involving the federal government’s health and societal interest in banning people growing marijuana plants in their backyard. Breyer wondered about other illegal or dangerous items. “You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston.” 

Tomato children?

Justice Stephen Breyer

Justice Stephen Breyer
(Supreme Court of the United States)

Colleagues say there was a method behind the humor.

“They are designed to see how far your principle forces the court to go, and if it leads to a ridiculous result, then maybe that’s a reason why the court shouldn’t adopt that principle,” said Kevin Russell, a Washington attorney and former Breyer law clerk. “I think that is part of his nature, making sure the law is accessible to everybody – and he doesn’t see himself as a super-genius, the only person that can figure out what the law means.”

World views

Stephen Gerald Breyer was born in San Francisco in 1938, the son of Jewish-American parents. His grandparents were Polish immigrants, and his father worked as general counsel with the city’s board of education. Steve and his brother Charles learned early the power of government to affect change when politicians work together to solve problems. Both boys grew up to be prosecutors, teachers, and then federal judges.

“He saw government actors as good people of good will, trying to do their best and trying to make the world a better place,” said Goluboff, now dean at the University of Virginia law school. “He had tremendous respect for the other [government] branches, each having their own roles.”

“He saw government actors as good people of good will, trying to do their best and trying to make the world a better place.” 

— Risa Goluboff, University of Virginia law school

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And Breyer developed a love and appreciation of European culture. He is fluent in French, studied at Oxford University, and married Joanna Hare, a member of British aristocracy and a renowned child psychologist. Observers noted Breyer sometimes speaks with a subtle British accent.

Their children pursued eclectic careers: one daughter has become an Episcopal priest and author, another works as a visual media artist and choreographer, and their son is a lawyer and digital entrepreneur.

After getting his law degree at Harvard, Breyer was a law clerk to Justice Arthur Goldberg, then worked as a government attorney helping prosecute the Watergate conspiracy. He caught the attention of Democrats while serving as chief counsel on the Senate Judiciary Committee, chaired at the time by Sen. Edward “Ted” Kennedy.

U.S. Sen. Ted Kennedy in 2008.

U.S. Sen. Ted Kennedy in 2008.
(Reuters)

That led to a seat on the federal appeals bench in Boston in 1980, as the last Carter appointee. Thirteen years later a vacancy emerged on the high court, and Judge Breyer was summoned to be personally interviewed for the job by President Clinton. The face-to-face meeting did not go well.

Breyer had days before been severely injured from a bicycle accident, and left the hospital to meet the president. Court sources say the judge was very sick, in great pain, and nearly fainted afterward. The seat went to Ruth Bader Ginsburg. A year later, another vacancy and this time the job was Breyer’s.

While he quickly emerged as a reliable liberal on the bench, Justice Breyer eschewed the fiery rhetoric, rigid positions, and internal strife exhibited by some of his more conservative colleagues. He earned a reputation as a reasoned, evenhanded minimalist, taking the law only as far as the particular case at hand demanded. His desire to listen to both sides, and his political negotiating skills served him well. Best friends on the court with moderate-conservative Justice Sandra Day O’Connor, they both shared a desire for pragmatic consensus.

U.S. Supreme Court Justice Sandra Day O'Connor is seen in Washington, Nov. 12, 1991.

U.S. Supreme Court Justice Sandra Day O’Connor is seen in Washington, Nov. 12, 1991.
(Reuters)

But critics found Breyer could be aloof, dispassionate and unfocused.

Colleagues said he bounced endless ideas and scenarios in his head when deciding cases, which helped him crystalize his opinions.

“He liked to engage in a back and forth through this thought process,” said onetime law clerk Horowitz, now an animal welfare activist. “So if you were not able to engage him in that conversation and stretch his own thoughts and push back against him, then you were not really doing him a service as a law clerk. He needs that back and forth, he craves it.”

Growing into the role

As the court’s junior justice for his first 11 years, Breyer’s influence was muted somewhat, and he was rarely able to write hot-button majority or minority opinions. He was on the losing end of the 2000 Bush v. Gore appeal, which essentially ended the Florida ballot recount in favor of the Texas governor.

“I had to ask myself, would I vote the same way if the names were reversed,” he recalled years later. “I said ‘yes.’ But I’ll never know for sure — because people are great self-kidders — if I reached the truthful answer.”

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A conservative majority on the court for most of his tenure frustrated Breyer at times. In perhaps his most powerful dissent, he criticized the right-leaning bloc in 2007, which struck down public school choice plans in Seattle and Louisville, concluding they relied on an unconstitutional, explicit use of racial criteria.

Reading his dissent from the bench, his voice choked with emotion, Breyer said schools “have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.”

Chief Justice John Roberts sits during a group photo of the justices at the Supreme Court in Washington, D.C., April 23, 2021. 

Chief Justice John Roberts sits during a group photo of the justices at the Supreme Court in Washington, D.C., April 23, 2021. 
(Getty Images)

He sadly noted the court’s then-newest members — Chief Justice John Roberts and Justice Samuel Alito — made the difference in the opinion: “Rarely in the history of the law have so few undone so much so quickly.”

But with Justice John Paul Stevens’ 2010 retirement, a newer, more assertive Stephen Breyer blossomed. Relative anonymity turned to an emerging force on the liberal-minority bench. With issues like affirmative action, health care reform, immigration enforcement, and same-sex marriage, Breyer deftly maneuvered to prevent a conservative court from moving further to the right, often bringing more GOP-appointed members to his side.

With President Trump’s three conservative appointees, Breyer saw the right-leaning bench revisiting legal and constitutional issues he believed had long been settled by the court. It was here the justice poured much of his energy in opposition, abandoning his usual caution and cooperation, often with mixed results.

Ginsburg’s 2020 death put Breyer in the unofficial position as the senior liberal justice, and he used that authority to further forge consensus with his more conservative colleagues, especially Roberts and Justice Brett Kavanaugh.

Supreme Court Justice Ruth Bader Ginsburg is seen at Georgetown Law School in Washington, April 6, 2018.

Supreme Court Justice Ruth Bader Ginsburg is seen at Georgetown Law School in Washington, April 6, 2018.
(Associated Press)

Off the bench, Breyer traveled widely, promoting his books on judicial philosophy, and preaching the needed for greater civic understanding of the American system of the rule of law.

And he attracted attention, some unwanted. He appeared on NPR’s quiz show “Wait Wait, Don’t Tell Me” in 2007, cracking jokes and cheerfully pleading ignorance on the topic of rock music.

Then five years later, he and his wife were the victims of a bizarre robbery in his Caribbean vacation home, confronted by an armed intruder Breyer later referred to as “Machete Man.” Weeks later his Washington home was separately burglarized.

Another quirk: He attended nearly every State of the Union Address by the president, often the only member of the court to bother going.

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“I think it’s important that when people say there is the government, they be able to see the judges, too, because the judges are here, our court and others, to try to make certain that groups who are unpopular are protected when that document calls for their protection,” he said.

“That’s a special thing we do and it’s important,” Breyer said in 2010. “And you need people who will support an institution that’s going to decide things they don’t like. So I want them to see that. And so my part in this is, I will go.”

His interests extended to bicycling (despite suffering several nasty accidents), birdwatching, political history, architecture, football, and old movies.

“He’s busy because he likes to be busy. He’s interested and curious about everything. There’s just too much he wants to do and he tries to do everything,” Goluboff said.

Stephen Breyer had the intellectual and personal makeup of a judge — one seemingly always looking for the right answer, and never fully satisfied he had achieved the elusive goal. That endless curiosity took him on a curious path to the court, and a role he was not entirely comfortable, often losing himself in the work. Colleagues recalled he once wore the same suit for weeks, while deciding a particularly vexing appeal.

When asked what he disliked about the job: “You’re at a distance. It is an ivory tower,” he told us in 2005. “There does tend to develop a kind of wall from people.” That was one reason he sought intellectual nourishment from his many travels and outside interests.

“He would refine his ideas through talking things out with people. I think one of the things he may have gotten disappointed with the Supreme Court was the lack of regular personal interaction among the justices. They have a very formal system where they communicate with each other through memos,” said Russell, “but they really don’t discuss cases together in-person that often.”

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Justice Breyer brought light and a touch of lightness to the court institution he revered, grounded in intellectual heft and formidable “people” skills.

“Who you are is a function of what you decide. It’s internal, it makes a difference in that story you tell yourself,” he once counseled to a group of young people. “And if you tell yourself a story with character, that can never be taken from you no matter what.”