Optimism on the court
After 20 years, Breyer seen as Supreme’s raging pragmatist
When Supreme Court Justice Stephen Breyer gathered scores of former law clerks for a reunion this year to celebrate his long career on the federal bench, Michael Leiter offered a toast.
Whether Breyer was in the majority or dissenting from the conservative court’s decisions, Leiter recalled, “he was always optimistic. He brought a level of optimism about the positive change we could make.”
That joie de vivre has defined the 75-year-old Proust scholar’s life in government from the time he worked in the political trenches for Sen. Edward Kennedy to today’s service on an often deeply divided high court.
His respect for the federal system he serves has sent a disproportionately large number of his law clerks into public service — people like Leiter, who clerked for Breyer during the 9/11 terrorist attacks and went on to become director of the National Counterterrorism Center.
Perhaps more than anyone else in Washington these days, Stephen Gerald Breyer is a believer in government — even one that seems as frequently dysfunctional as his own. His boyish buoyancy is born of experience in all three branches, culminating in his 20-year anniversary Aug. 3 on the nation’s highest court.
“He is unapologetically pragmatic in thinking that it’s the court’s job to help make government work for real people,” says Kevin Russell, a former Breyer law clerk who argues frequently before the high court. “He thinks we’re all kind of in this together.”
Not a doctrinaire liberal like some of his predecessors and colleagues on the court’s left, Breyer has proved harder to categorize. More often than any other justice but Anthony Kennedy on the current court, the former Harvard Law School professor and Cambridge, Mass., resident is a fan of compromise.
“If you read Breyer’s opinions, one constant strain is an attempt to come up with the gray to balance the black and the white,” says Kenneth Feinberg, the acclaimed mediator and administrator of victims’ compensation funds, who has been a close friend since the two served on the Senate Judiciary Committee in the 1970s. “He is extremely practical. He doesn’t have an overriding constitutional philosophy.”
Thus it was that in a complex antitrust case last year involving alleged collusion among drug companies, Breyer’s majority opinion endorsed neither side but a “rule of reason.”
And in his majority opinion last month striking down socalled “recess appointments” President Obama made while the Senate was holding pro-forma sessions every three days, Breyer refused to go further and deny almost all constitutional protection for the practice.
“We must hesitate to upset the compromises and working arrangements that the elected branches of government themselves have reached,” he wrote.
Others see Breyer’s reasoning as judicial activism run amok. Justice Antonin Scalia, Breyer’s frequent opponent, complained that his rules on congressional recesses “have no basis whatsoever in the Constitution; they are just made up.”
Breyer likes to point out how unified the high court can be, despite the presence of extreme conservatives and liberals. As the fifth of the current justices to reach the 20-year mark — something the court has never had before — he likely played a role in the past term’s unusual degree of unanimity. He declined to be interviewed for this article.
“He’s a profoundly decent person,” says Neal Katyal, a former acting solicitor general and Breyer law clerk. “On the court, when you’re sitting with the same people for decades, I do think that ultimately matters.”