US Supreme Court Justice Stephen Breyer At 81

August 15, 2019, marks the 81st birthday of US Supreme Court Justice Stephen G. Breyer. President Bill Clinton appointed Breyer in 1994 to what had previously been “the Jewish seat” until Richard Nixon’s appointment of Harry Blackmun. After Justice Felix Frankfurter ascended to the High Court in 1938, as its second Jewish Justice, Arthur Goldberg and Abe Fortas were chosen by Presidents Kennedy and Johnson to fill that seat. 

With Fortas’ resignation in 1970, President Nixon, who disdained the decades-long tradition of having at least one Jew on the Court, appointed Harry Blackmun to fill the seat. Justice Breyer, who clerked for Justice Goldberg, took Blackmun’s seat. Thanks to President Clinton’s two appointments and one by Barack Obama, three Jews now grace the Supreme Court bench. (Had Majority Leader Senator Mitch McConnelI, R-KY not held up the nomination of Judge Merrick Garland, there would be four Jews.)

Justice Breyer’s distinction transcends his Jewish identity. Serving as counsel to US Senator Edward M. Kennedy, D-MA, he drafted the law deregulating the airline industry. Deregulation brought in its wake the no-frills, low-fare airlines we all love to fly.

In 1980, President Jimmy Carter appointed Breyer to the US Court of Appeals for the First Circuit in Boston, where I had occasion to argue a case before him.  Imagine, I entered the courtroom to hear Judge Breyer announce that he had a math problem for us lawyers to consider. He handed both sides a sheet of paper and asked us to provide an answer to the bench when our turn to speak came. I understood the exercise as a reflection of Breyer’s keen mind. Only two years earlier, in his book Regulation and Its Reform (1982), Judge Breyer spelled out equations for the conditions under which government should regulate industries and how to deregulate them.  That was the information he was trying to solicit.

Breyer’s work over the past decades, on and off the bench, shows the breadth of his world view. The justice has continued to educate members of the legal profession and the public through his written opinions, books and public appearance just as he did as a Harvard Law School professor. He writes opinions without footnotes in straightforward sentences. As he says, he writes for “1L” —  first year law students. His prose is easily understood and his reasoning can be followed by anyone with a rudimentary knowledge of the law. His most prominent book, Active Liberty (2005), sets out Breyer’s judicial philosophy.  He remains a prolific author expounding his ideas to the general public.

The substance of his philosophy accords with Jewish precepts of justice. Yes, a judge must look at the words of the law, but cannot rest on that alone. Rather, a court must examine the context that gave rise to the law and the purpose of its enactment. Most important, a judge must perceive the consequences of a ruling on the lives of the people affected.  Justice demands courts try, within the confines of the language and purpose of the law, to alleviate suffering and redress inequality. Not for him the conservative Federalist Society notion that literal interpretation dictates the outcome come what may. 

Justice Breyer’s approach occasionally misfires, but for the most part, it presents a model to be followed.  For example, in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the US government indefinitely imprisoned asylum seekers and immigrants for whom deportation hearings had yet to occur.  The Immigration and Nationality Act did not expressly authorize bail for these individuals. That omission sufficed for five justices to agree with the government that the refugees could languish without a hearing. 

Justice Breyer pulled down the majority from its ivory tower. He pointed out that the Court consigned to squalid conditions thousands of people, many of whom reasonably fear persecution in their home countries and the rest of whom had paid their debt to society. He also reminded his colleagues that confinement hinders the immigrants from preparing their cases against deportation, making the detention even more unjust.  Finally, he showed from the record that many of those incarcerated won their release. Because the law did not specify, he argued, better to allow at least the possibility of release on bail. Moreover, Justice Breyer found that indefinite detention violated the US Constitution.

On the other hand, sometimes, Justice Breyer can lose sight of the big picture.  In Van Orden v. Perry, 545 US 677 (2005), he provided the fifth vote to allow display of the Ten Commandments on the Texas State Capitol grounds.  Justice Breyer theorized that when the government favors religion, it disturbs the peace. Since the Ten Commandments stood for decades in Texas without challenge, keeping the monument does not disturb the peace. In fact, the constitutional guarantee of separation of religion and state has much more profound underpinnings.

On the whole, Justice Breyer, in his quarter century on the US Supreme Court, has made all Americans who seek justice proud.

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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