Stephen G. Breyer (1938–)


Stephen G. Breyer was President Bill Clinton’s second appointment to the U.S. Supreme Court. Breyer brought with him a wealth of experience in government service and as a federal appellate court judge. At this time, he has not authored any landmark school law decisions. However, Breyer has written important concurring and dissenting opinions. Although he is generally liberal to moderate in his views, his positions are not always predictable, as he occasionally has provided the swing vote in close decisions.

Early Years


Stephen Breyer, born on August 15, 1938, in San Francisco, California, was raised by middle class Jewish parents who emphasized the importance of public service and a good education. His father was an attorney who for years served as legal counsel for the city board of education. Breyer’s mother was an active member of her local Democratic Party organization, the League of Women Voters, and a United Nations association. Breyer attended Lowell High School, a prestigious public school, where he excelled academically, was a champion debater, and was voted the member of his class “most likely to succeed.”
Deciding to attend Stanford rather than Harvard, Breyer was an outstanding student, earning perfect grades except for one B. After graduation, Breyer received a scholarship to Oxford University in England, where he studied economics and politics, both of which were to influence his future careers. Breyer then returned to the United States and was admitted to Harvard Law School, where he was articles editor for the law review and graduated magna cum laude.
Breyer’s outstanding record at Harvard earned him a clerkship at the Supreme Court for Justice Arthur Goldberg. As a clerk, he helped draft Goldberg’s concurring opinion in Griswold v. Connecticut (1965), which discovered a source for the constitutional right to privacy in the unenumerated rights guaranteed by the Ninth Amendment. On finishing his clerkship, Breyer served as a special assistant to the assistant attorney general in the antitrust division of the Justice Department.
In 1967, Breyer was hired as an assistant professor at Harvard Law School. In 1970, he was promoted to full professor, and he served in that capacity until 1980. During his tenure at Harvard, he frequently returned to government service. For a short time, Breyer worked as an assistant special prosecutor for Archibald Cox in the Watergate investigation. He then served as special counsel to the Senate Judiciary Committee. During this time, Breyer became known as a consensus builder and compromiser. Breyer’s most noted accomplishment was helping orchestrate a program for deregulation of the airline industry.

On the Bench


In 1980, President Jimmy Carter nominated Breyer as a judge on the Ninth Circuit. Considering Carter a potential lame duck, Senate Republicans held up many of his appointments but treated Breyer as an exception. Based on their prior dealings with him, both parties held him in high regard, and Breyer became the last Carter judicial appointment confirmed by the Senate.
As a federal appellate court judge, Breyer gained a reputation for hard work, competence, and fairness. Many considered him to be a “judge’s judge.” In 1985, Breyer was appointed as a member of the U.S. Sentencing Commission. In this capacity, he played a leading role in developing new federal sentencing guidelines.
In 1994, President Clinton nominated Judge Breyer to the U.S. Supreme Court. A year earlier, when Clinton had his first opportunity to fill a vacancy on the Court, Breyer had been the early favorite. However, he was passed over for the position in favor of Judge Ruth Bader Ginsburg, with whom Clinton purportedly felt more comfortable. When a second vacancy opened after the retirement of Justice Harry Blackman, President Clinton reconsidered, and this time Breyer was appointed. With bipartisan support, the Senate easily approved his nomination.

Supreme Court Record


In school law cases, Justice Breyer’s voting record has, for the most part, been similar to that of Justice Ginsburg. Yet, he has not always been as predictably liberal. On Establishment Clause issues, Breyer has generally taken a separationist position. In Agostini v. Felton (1997), he voted against state funding for public school teachers to provide remedial instruction for students in religious schools. In Zelman v. Simmons- Harris (2002), he dissented in the face of the Supreme Court’s upholding of school vouchers. Yet, in the plurality of Mitchell v. Helms (2000), unlike Ginsburg, he joined Justice O’Connor’s concurring opinion that allowed federal aid to religious schools for educational and library materials as well as computer resources. Further, Breyer dissented in City of Boerne v. Flores (1997), holding the Religious Freedom Restoration Act unconstitutional, while Justice Ginsburg joined in the Court’s decision.
In cases involving support of religious organizations or activities in public schools, Breyer dissented in Rosenberger v. Rectors and Visitors of the University of Virginia (1995), wherein the Supreme Court upheld the constitutionality of funding for the printing of a Christian group’s newsletter. Again unpredictable, he concurred in Good News Club v. Milford Central School (2001), finding that denying a religious organization access to public school facilities was unconstitutional. In Santa Fe Independent School District v. Doe (2000), Breyer joined the Court in striking down student-led prayers on the public address system at high school football games.
Justice Breyer’s vote was crucial in the most recent Supreme Court cases dealing with religious displays on public property. In Van Orden v. Perry (2005), he concurred with the Court’s decision that a statesponsored display of the Ten Commandments at the Texas state capitol, surrounded by numerous other monuments and historical markers, was constitutional because it conveyed a historic and social meaning rather than an intrusive religious endorsement. However, in McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (2005), he joined in the Court’s finding that the display of the Ten Commandments in a court in Kentucky lacked a primarily secular purpose, in violation of the Establishment Clause. In the two suits involving drug testing of students, Vernonia School District 47J v. Acton (1995) and Board of Education of Independent School District No. 92 Pottawatomie County v. Earls (2002), Breyer departed from his liberal colleagues in voting to uphold testing.
Breyer’s votes in the two University of Michigan affirmative-action cases, Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), were not predictably liberal. Generally supportive of policies considering race as a factor in the admission of minority students, Breyer voted to uphold the University of Michigan Law School’s admission program. However, he joined the Court’s opinion striking down the undergraduate admissions policy awarding designated points in the application process to minority students.
One of Justice Breyer’s best-known opinions in the area of education law was his strongly worded dissent in United States v. Lopez (1995), wherein the Supreme Court reasoned that the Gun-Free School Zones Act was unconstitutional because it was not significantly related to the regulation of interstate commerce. Justice Breyer argued that the Court should have deferred to congressional findings that guns disrupted schools to a degree that affected education’s impact on interstate commerce.
It may be that Justice Breyer’s greatest impact on education law is yet to come. Even so, considering the Supreme Court’s apparent conservative shift to the right, Breyer’s influence, barring a change in his own judicial philosophy or in the makeup of the Court, is likely to be in the form of concurrences and/or dissents rather than majority opinions.
Michael Yates

See also Rehnquist Court; Roberts Court
Further Readings
  • Breyer, S. (2005). Active liberty: Interpreting our democratic Constitution. New York: Knopf.
  • Perry, B. A. (1999). The supremes: Essays on the current justices of the Supreme Court of the United States. New York: Peter Lang.
Legal Citations
  • Agostini v. Felton, 521 U.S. 203 (1997).
  • Board of Education of Independent School District No. 92 Pottawatomie County v. Earls, 536 U.S. 822 (2002), on remand, 300 F.3d 1222 (10th Cir. 2002).
  • City of Boerne v. Flores, 521 U.S. 507 (1997).
  • Good News Club v. Milford Central School, 533 U.S. 98 (2001).
  • Gratz v. Bollinger, 539 U.S. 244 (2003).
  • Griswold v. Connecticut, 381 U.S. 479 (1965).
  • Grutter v. Bollinger, 539 U.S. 306 (2003).
  • McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005).
  • Mitchell v. Helms, 530 U.S. 793 (2000).
  • Rosenberger v. Rectors and Visitors of the University of Virginia, 515 U.S. 819 (1995).
  • Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
  • United States v. Lopez, 514 U.S. 549 (1995).
  • Van Orden v. Perry, 545 U.S. 677 (2005).
  • Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).
  • Zelman v. Simmons-Harris, 536 U.S. 639 (2002).