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‘A Consensus Builder by Disposition’

What Stephen Breyer’s clerks have to say about the justice and his legacy.

June 28, 2022

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Justice Breyer in a chair smiling

Photo: Linda A. Cicero/Stanford News Service

In nearly three decades as a U.S. Supreme Court justice, Stephen Breyer, ’59, was well known among his clerks for his habit of talking through cases, sometimes picking up the phone, sometimes starting to speak in his chambers and continuing as he made his way into his clerks’ office.

“He likes to spitball and talk ideas out,” explains David Louk, ’06, who clerked for Breyer in the 2020 term. “Whoever is there, he’ll engage. Sometimes it may not even be the clerk assigned to the case, so we would whisper to each other, ‘Quick, go get that clerk! The train has left the station!’ ”

For that reason—and because the stakes in so many Supreme Court cases are staggeringly high, dealing with life and death, the integrity of our democratic institutions, global commerce, and matters of national security—Breyer’s clerks tried to be ready to receive the justice’s insights whenever he dispensed them.

Not that Breyer would be angry if someone needed a minute to catch up. He does not (according to interviews with more than a dozen of his 20 former Supreme Court clerks with ties to Stanford University) seem to get angry. It’s just that no one wanted to thwart the justice’s process, or—at an even grander scale—to thwart the process of justice.

That is why, in 2015, when Kendall Turner, JD ’13, heard that Breyer had summoned his four clerks for an emergency meeting, she rushed into chambers, assuming they would be discussing one of the pending cases dealing with lethal injection, marriage between same-sex couples, or the health insurance of more than 6 million people in three dozen states. 

Instead, Breyer needed help on another matter altogether. He was recording a song for his friend’s birthday and wondered if his clerks might provide backup vocals.

‘He has this wonderful sense of humor—this joy at the world, a joy at life.’

That is the range of Breyer’s intellectual and emotional capacity; he can simultaneously contemplate the constitutionality of the death penalty and the mundane milestone of a loved one. He watches television in French and snacks on Oreos. He offers tea to visitors in front of a crackling fire in his chambers and once participated in a skipping competition with his clerks. And, while doing all that and much, much more, he sat unassumingly on the highest court in the land, carefully crafting decisions and dissents that considered the practical consequences of the law on everyday Americans and trying—whenever possible—to find consensus with his colleagues.

Breyer is unquestionably a person of incredible intellect. But he brought something else to his job, something you might not expect to find in so serious an endeavor.

“He has this wonderful sense of humor—this joy at the world, a joy at life,” says Andrew Dawson, ’03, JD ’08.

Perhaps that is why, when Breyer announced his retirement, so many of his former clerks described the news as “the end of an era.”

“I admit that I became a little teary,” says Aimee Feinberg, JD ’02. “Listening to his optimism about our country and reflecting back on his decades of service, I just felt incredible pride and admiration.”

Creating Community

Supreme Court clerks, who work out of the public’s view researching and drafting opinions, are a carefully curated crowd. Justices typically hire four per term, choosing from candidates who were top students at leading law schools and who had typically already worked in the chambers of a lower federal court. But, even for this group, interviewing with a high court justice is a thrilling and terrifying prospect.

“Supreme Court justices are famous,” says Will Havemann, JD ’13. “They’re like celebrities in the law. It is sort of shocking to all of a sudden find yourself alone in a room with one of them.”

Nevertheless, Breyer always found a way to put his applicants at relative ease. He interviewed Stacey Leyton, ’88, MA ’91, JD ’98, in the Northern California chambers of his brother, federal district court judge Charles Breyer. Philippa Scarlett, ’96, who spent part of her childhood in Cameroon, was surprised when, halfway through her interview, the justice switched to French. She doesn’t remember what the conversation was about—“I blanked out for some of it,” she admits—but, in many cases, Breyer wasn’t interested in talking to candidates about the law.

He spoke with Turner about her undergraduate thesis in philosophy; traded stories about his brother with Dawson, who was clerking for the younger Breyer at the time; and discussed the film Dead Man Walking with Charles Moore, JD ’95.

Alexandra Walsh, JD ’01, spoke to the justice about her new baby and her husband’s role as a stay-at-home dad.

“We immediately connected on a personal level,” she says. “He said, ‘I feel strongly about hiring law clerks who have a lot of intellectual firepower but even more strongly about populating my chambers with people who are good colleagues, work well with others, and treat everyone with respect.’”

‘Making the Supreme Court community look more like America is a service beyond his term.’

Since they hadn’t discussed substantive legal issues much, when Breyer called Walsh that same afternoon to offer her the job, she “decided to think, ‘I’m sure he also thinks I have intellectual firepower,’ ” she remembers, laughing.

The community Breyer was building was not only collegial and competent but also diverse. In a 2020 discussion between the justice and some of his former clerks for the National Asian Pacific American Bar Association, former Acting U.S. Solicitor General Neal Katyal pointed out that Breyer always hired two women and two men to work in his chambers. Incoming U.S. Supreme Court Justice Ketanji Brown Jackson, who will succeed the justice, noted during the discussion that she was relieved to discover that she was not the first Black female clerk he had hired. 

“Part of the justice’s legacy is that so many of his clerks were women and minorities,” says Scarlett, who is Black. “The Supreme Court is pretty notorious for being a white, male community. Making that community look more like America is a service beyond his term.”

A Real-World Focus

On the bench, Breyer’s guiding principle was one he articulated at his own confirmation hearing in 1994: to make the law work for the people. But he also just really wanted it to make sense.

Consider the case of Fane Lozman, a man who owned a floating home in Florida that, after a series of disputes, the city of Riviera Beach wanted removed from its marina. The city succeeded in that effort after a court ruled that the structure was a “vessel” under federal maritime law. Ultimately, the property was destroyed.

On appeal, Lozman was represented by Stanford Law School’s Supreme Court Litigation Clinic. Two of Breyer’s future clerks—Havemann and Denise Lambert Drake, JD ’13,—worked on the case as students in the clinic and watched Professor Jeffrey Fisher argue the appeal, where Breyer let fly some of the creative hypotheticals he is famous for. Trying to identify the point at which something that floats becomes a vessel, he asked the attorneys: What about a boat in a museum? The Queen Mary being used as a hotel? A Styrofoam sofa?

Finding in favor of Lozman, Breyer wrote in the 2013 decision that the court must apply the law in a “‘practical,’ not a ‘theoretical,’ way.”

“But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water,” he wrote, noting, among other things, that the structure had “no rudder or other steering mechanism.”

Drake, who went on to clerk for Breyer in 2016, called her experience as a student working on the case—and the argument—“delightful.”

“In part, the hypotheticals stemmed from Justice Breyer’s keen sense of humor,” she explains. But “beneath the surface, they reflected the extent to which he was grappling with the implications and limits of any rule the court might announce.”

‘They show his ability to take issues that could be quite divisive and make them less so.’

Breyer is considered an expert on antitrust and administrative law—he wrote the administrative law textbook used by many law schools. But in interviews, his clerks were most likely to mention his opinions in cases involving reproductive rights, the use of race in school admissions and capital punishment.

In 2000, Breyer wrote the majority decision in a case invalidating a Nebraska law banning so-called partial-birth abortion except when it was necessary to save the mother’s life; more recently, in 2016 and 2020, he authored opinions striking down laws in Texas and Louisiana that required doctors who performed abortions to have admitting privileges at a nearby hospital. Chief Justice John Roberts concurred in the Louisiana case.  

Kathryn Judge, JD ’04, says the justice’s abortion decisions were “in some ways classic Breyer.”

“They embody his role in trying to build consensus,” she says. “Not just in substance but in whom he managed to get on board. They show his ability to take issues that could be quite divisive and make them less so.”

When Breyer couldn’t find common ground with his colleagues, however, he didn’t hesitate to dissent. The justice “is a consensus builder by disposition,” Havemann explains. “He very much sought to find common ground. But when an issue was important to him, he fought for it.”

In 2007, when a 5-4 majority of the court invalidated the use of race in school admissions as a way to increase diversity, Breyer read his dissent from the bench, a practice justices generally reserve for cases in which they want to highlight their disagreement with the majority.

“I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans,” he wrote. But “the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nation’s children and how best to administer America’s schools to achieve that aim. The Court should leave them to their work.”

In another landmark dissent, in a 2015 case in which the majority upheld the constitutionality of a three-drug protocol used in executions, Breyer wrote that he believes the death penalty itself is unconstitutional—no matter how it is meted out.

“In this world, or at least in this nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application,” he wrote in Glossip v. Gross. “We cannot have both.”

Shaping the Practice of Law

In a concurring opinion in the Glossip case, the late Justice Antonin Scalia called Breyer’s arguments “gobbledy-gook.” While he could be amiable off the bench, Scalia was often a firebrand in writing. Breyer, in contrast, has always been known for his warmth, both personally and professionally.

Moore recalls a time during his clerkship when Breyer was “exasperated” after reading a Scalia dissent. “But it was always about the work,” Moore says. “Anytime he had an impulse to respond in kind to the edge that Scalia would put in his writing, he arrested that impulse before it ended up on paper.”

Breyer’s ability to rise above the inherently combative nature of the law is inspiring, his clerks say.

“His thinking was, ‘How can I get the most for both of us, even if I might have to give a little bit to get that?’ ” Louk says. “That’s not how lawyers normally think. To never lose sight of that as someone who is so esteemed, so smart, and constitutionally entitled to not give a flying flip—what excuse do the rest of us have?”

Eric Feigin, JD ’05, says one of the “wonderful” things about Breyer is that “what you see is what you get.”

“His demeanor on the bench, the way he writes his opinions—he’s not putting on a show,” he says. “He’s letting you know what he actually thinks, who he actually is.”

‘Clerking for Justice Breyer was a highlight of my legal career and will be a highlight, or the highlight, of my legal career.’

Breyer also influenced his clerks’ careers in more tangible ways. Because he had a diverse professional background—having worked in the Department of Justice, in the U.S. Senate, and as a professor at Harvard University before taking the bench—he saw value in veering off the traditional path from clerkship to a big law firm. (Supreme Court clerks are some of the most sought-after lawyers in the country; top firms entice them with six-figure hiring bonuses.)

Judge, a professor at Columbia Law School, and Stanford Law School dean Jenny Martinez say they might not have pursued academic careers if it weren’t for Breyer.

“The whole time I was in law school, I had two female professors and one faculty member of color,” Martinez says. The justice “encouraged me that it was something I would be good at and would enjoy.”

Breyer’s Stanford-affiliated clerks have served in leadership roles at major companies, started their own law firms, and, in some cases, argued before their former employer as attorneys in the U.S. or various state solicitor generals’ offices. Even amid all those successes, their year in Breyer’s chambers stands out.

“Clerking for Justice Breyer was a highlight of my legal career and will be a highlight, or the highlight, of my legal career,” Havemann says. “It’s hard to imagine an experience that is more interesting, substantive or exciting for a young lawyer, and to do it for a boss like Justice Breyer is something that I cherish.”

Scarlett, who later worked in the White House and at Apple, agrees.

Breyer “was a wonderful mentor in addition to being an extraordinary jurist,” she says. “It was an experience of a lifetime.”

Hope for the Future

Breyer’s clerks universally describe him as someone who always sees the positive—in people, in the world, and in the court.

“It might be an 8-1 vote, and he’s on the other side,” Leyton says, “but he was convinced that, when he wrote the dissent, he was going to win over the majority.”

Several of his clerks wondered aloud whether there is still room for that way of thinking in an increasingly polarized society or on a court dominated by one side of the ideological spectrum. Although Supreme Court decisions are still most likely to be handed down 9-0, legal observers have a sense that in close-fought cases, the current justices’ positions are more predictable than when Justice Sandra Day O’Connor, ’50, LLB ’52, or Justice Anthony Kennedy, ’58, occupied the center of the Court.

“[Breyer] is committed to the idea that there is a way for judges to engage in the pragmatic and consequential analysis he saw as key to doing their job well while still remaining above the fray of politics,” Judge says. “Whether that vision is going to live on is a question looming large over our nation.”

Breyer offered his own answer in January when, after announcing his retirement, he appeared at the White House with President Biden, who praised the justice as “exemplary.” Breyer spoke off the cuff, smiling and laughing, leaning on the lectern and gesturing often with his right hand.

“This is a complicated country,” he said. “My mother used to say it’s every race, it’s every religion, and—she would emphasize this—it’s every point of view possible.”

As a judge, he said, “It’s a kind of miracle when you sit there and see all those people in front of you, people that are so different in what they think, and yet they’ve decided to help solve their major differences under law.”

‘You know who will see whether that experiment works? It’s you, my friend.’

Quoting from President Lincoln’s Gettysburg Address and citing letters from George Washington, Breyer shared his agreement with the view that the United States has always been a democratic “experiment.”

“That’s what Washington thought, and that’s what Lincoln thought, and that’s what people still think today,” he says, adding that he was speaking in particular to young people, including those who might be cynical about the state of their country. “You know who will see whether that experiment works? It’s you, my friend. . . . It’s that next generation and the one after that. My grandchildren and their children. They’ll determine whether the experiment still works.”

As he neared his conclusion, Breyer didn’t even pause; he barely took a breath.

“Of course, I’m an optimist, and I’m pretty sure it will,” he said. “Does it surprise you that that’s the thought that comes into my mind today?”

By now, he was whispering.

“I don’t know,” he said, smiling. “But thank you.”

Then he walked away. The train had left the station.


Rebecca Beyer is a Boston-based journalist. Email her at stanford.magazine@stanford.edu.

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