Breyer, Stephen

Stephen Breyer, associate justice of the US Supreme Court, 1994–.

Stephen Breyer, associate justice of the US Supreme Court, 1994–.

Stephen G. Breyer has served as an associate justice on the US Supreme Court since 1994. In his opinions— mostly dissents—and two books written as a justice, Breyer outlines a purposive approach to constitutional interpretation based on analysis of practical, empirical consequences and an attitude of deference to democratically accountable branches of government.


Breyer was born in San Francisco on August 15, 1938. He received bachelor's degrees from Stanford University and Magdalen College (Oxford) and a law degree from Harvard, where he later taught for many years. Breyer married Joanna Hare in 1967; they have three children. His brother Charles is a senior federal judge for the Northern District of California.


Following Justice Harry A. Blackmun's resignation from the Supreme Court, President William J. Clinton nominated Breyer to replace him. The US Senate voted 87–9 to confirm, and Breyer took the oath of office on August 3, 1994. On the Court, Breyer has often been on the losing side of 5–4 decisions, writing and joining opinions generally arguing for deference to the decisions of other government officials. He dissented from majority decisions that limited congressional power to regulate interstate commerce in United States v. Lopez, 514 U.S. 549 ( 1995 )—where he found the Gun-Free School Zones Act ( 1990 ) “well within the scope of the commerce power as this court has understood that power over the last half century” (514 U.S. at 615)—and United States v. Morrison, 529 U.S. 598 ( 2000 )—where he found a provision of the Violence Against Women Act ( 1994 ) “an instance, not of federal/state conflict, but of state/federal efforts to cooperate in order to help solve a mutually acknowledged national problem” (529 U.S. at 662). He also dissented from a majority that made the Federal Sentencing Guidelines advisory in United States v. Booker, 543 U.S. 220 ( 2005 ), stating “I find nothing in the Sixth Amendment that forbids a sentencing judge to determine (as judges have traditionally determined) the manner or way in which the offender carried out the crime of which he was convicted” (543 U.S. at 326). Breyer has also consistently voted to uphold congressional campaign finance regulations, dissenting in Citizens United v. Federal Elections Commission, 558 U.S. 310 ( 2010 ) and more recently in McCutcheon v. Federal Elections Commission 134 S.Ct. 1434 ( 2014 ). Breyer considers such regulations to support a compelling interest in “maintaining the integrity of our public governmental institutions” and are “rooted in the constitutional effort to create a democracy responsive to the people” ( 134 S.Ct. at 1467–1468 ). Breyer voted with a majority of the Court to uphold the core of the 2010 Affordable Care Act in National Federation of Independent Businesses v. Sebelius, 567 U.S. ___ ( 2012 ), and to strike the 1996 Defense of Marriage Act in United States v. Windsor, 570 U.S. ___ ( 2013 ).

Breyer also voted, in dissent, to uphold federal regulations of firearms in District of Columbia v. Heller, 554 U.S. 570 ( 2005 ), stating “In my view, there is simply no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas” (554 U.S. at 722). He extended this to state and local laws in McDonald v. Chicago, 561 U.S. 742 ___ ( 2010 ). Breyer has also voted to uphold local programs that consider race when assigning children to public schools in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 ( 2008 ), writing that the majority's decision to find such programs unconstitutional under the equal protection clause “undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality” (551 U.S. at 803). Breyer dissented in Bush v. Gore, 531 U.S. 98 ( 2000 ), first when the Court voted to stop the statewide recount of ballots cast in the 2000 presidential election ordered by Florida's Supreme Court, and again when it then struck the recount procedure as unconstitutional and claimed no time remained to conduct another. “The Court was wrong to take this case,” Breyer wrote. “It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume” (531 U.S. at 144).

Breyer has advocated his pragmatic approach in two books published as a justice, Active Liberty: Interpreting Our Democratic Constitution ( 2005 ) and Making Our Democracy Work: A Judge's View ( 2010 ). To Breyer, the Constitution has the “basic objective of creating a workable democratic government” ( 2010, xiii ) and to “find practical solutions to important contemporary social problems” ( 2005, 6 ).

Breyer attacks originalism, finding in it “a tendency to undermine the Constitution's efforts to create a framework for democratic government” ( 2005, 131 ). As he states in Making Our Democracy Work, “the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances. The Court must consider not just how eighteenth-century Americans used a particular phrase but also how the values underlying that phrase apply today to circumstances perhaps then inconceivable” ( 2010, 75 ). Originalists claim that Breyer's broad pragmatic approach can allow him to read his own views into the law. Breyer responds in Active Liberty that “when a judge candidly acknowledges that … consequences also guide his decision-making, he is more likely to be disciplined.” That admission “will itself constrain subjectivity” ( 2005, 120 ).

Zelman v. Simmons-Harris, 236 U.S. 639 [2002] ) and wrote the majority opinion in Stenberg v. Carhart, 530 U.S. 914 ( 2000 ), overturning a state law banning “partial-birth” abortions. In criminal law, as Charles F. Jacobs observes, Breyer's votes to allow judicial discretion under state and federal sentencing guidelines and his dissent in Ewing v. California, 538 U.S. 11 ( 2003 ), to invalidate California's “three strikes” law “do not necessarily promote the enhancement of democracy in all circumstances” ( 2013, 281 ). Others, like Ken Kersch, criticize Breyer's approach as not democratic but “elitist” and “suffused, self-evidently, by current political considerations, with a manifestly liberal (and cosmopolitan liberal) ideology” ( 2006, 820 ).

Breyer has taken his case for a pragmatic, empirical approach to the Constitution to the general public. To promote his books, Breyer has conducted several television interviews. He has also debated fellow Justice Antonin Scalia concerning the merits of originalism and whether judges should consider laws and decisions of other nations when interpreting the US Constitution.

SEE ALSO American Constitutional Development since 1980 ; Constitutional Interpretation ; Supreme Court of the United States ; United States v. Morrison .


Breyer, Stephen. Regulation and Its Reform. Cambridge, MA: Harvard University Press, 1982.

Breyer, Stephen. Breaking the Vicious Circle: Toward Effective Risk Regulation. Cambridge, MA: Harvard University Press, 1993.

Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf, 2005.

Breyer, Stephen. Making Our Democracy Work: A Judge's View. New York: Knopf, 2010.

Breyer, Stephen, and Antonin Scalia. Transcript of Discussion on the Constitutional Relevance of Foreign Court Decisions. American University, Washington College of Law, January 13, 2005. .

C-SPAN. “Original Intent and a Living Constitution.” Discussion with Justices Stephen Breyer and Antonin Scalia. March 23, 2010. .

C-SPAN. “Q&A with Supreme Court Justice Stephen Breyer.” September 27, 2010. .

Jacobs, Charles F. “Stephen G. Breyer: Judicial Modesty and Pragmatic Solutions.” In The Rehnquist Court and Criminal Justice, edited by Christopher E. Smith, Christina DeJong, and Michael A. McCall, 275–93. Lanham, MD: Lexington Books, 2011.

Kersch, Ken I. “Justice Breyer's Mandarin Liberty.” University of Chicago Law Review 73 (2006): 759–822.

Frank J. Colucci
Purdue University Calumet