Breyer Takes the Bench

It was the first morning of the Supreme Court’s 1994-95 term, but the new guy wasn’t suffering from any opening-day jitters. When the nine justices met in the robing room for the traditional handshake, Stephen Breyer already knew several of his colleagues from years on the legal banquet circuit. He was familiar too with the customs and corridors of the Supreme Court itself, having served as a law clerk there three decades earlier. A federal judge for nearly 14 years in New England, Breyer even brought his own robe to the job. He felt so comfortable that, when it came time to hear the first case, he defied rookie tradition by challenging one of the lawyers. 

The case involved an Alaska man who was arrested for conspiring to distribute cocaine. The legal question turned on the definition of conspiracy. Standing at the podium in the center of the majestic courtroom, with its 25-foot flowing red velvet drapes and gold-leaf, coffered ceil­ing, the defendant’s lawyer did a poor job at oral argument. Momentum was clear­ly with the government as the prosecutor returned briefly to the dais. That’s when Breyer stepped in. He deftly summarized the best argument for the defendant and poked holes in the government’s case. “What do you say in response?” he asked the government lawyer, who offered little to support his case. “What Breyer did in those three minutes was extreme­ly important,” says Julius Genachowski, a onetime law clerk to justices William Brennan and David Souter. “He leveled the playing field. It was an impressive beginning.” 

It’s too early to gauge Breyer’s impact on the Supreme Court. New justices gen­erally require several terms before they settle into the job. Souter, for example, has only recently emerged as an intellectual leader after a cautious start five years ago. But in his first few months, Breyer has impressed analysts with the confi­dence of his questions and the agility of his mind. Experts already rate him one of the court’s top thinkers, along with Souter and Antonin Scalia. Steve Kass, Breyer’s roommate at Harvard Law School, mar­vels at his old friend’s “ability to turn the cube around and see it from a different perspective.” 

Progressives hope Breyer will emerge as the cerebral counterweight to Scalia, who is the court’s conservative stalwart. With the resignations of liberal lions William Brennan and Thurgood Mar­shall, Breyer, who actually is something of a pro-business centrist, finds himself at this court’s lonely left flank. 

Along with a nimble wit, the junior justice brings to the court political savvy, a deep interest in public policy and a sim­ple belief that government—and the law—should help people. He has served in all three branches of federal government: Justice Department lawyer, chief counsel to the Senate Judiciary Committee and judge. Along the way he has developed a knack for building consensus among adversaries and being a good listener, two commodities in short supply at the Supreme Court. As the justices head into the spring crunch when they write the bulk of their annual opinions, the ques­tion is whether Breyer will be effective at using these skills to win over his col­leagues in the mushy middle of the court. Sitting in his spacious first-floor cham­bers overlooking the white-domed Capitol building, Breyer, 56, says he is working harder than ever. As chief judge of the First Circuit Court of Appeals in Boston, Breyer always juggled a number of side projects: teaching law at Harvard, writing books on government regulation, presid­ing over the design and construction of a controversial $200 million courthouse. Now he’s a bit surprised, even over­whelmed, by the new workload. “While on the First Circuit you may have three or four [challenging cases] a year, here you might have three or four in a week,” he says, staring blankly into the middle distance.“What you have to learn is how much time to devote to certain aspects of the job.” He describes the Supreme Court as “an express train filled with legal issues.” 

In his first few months, Breyer has impressed analysts with the confidence of his questions and the agility of his mind.

It looks like Breyer is working hard. A few months after he moved into Justice Harry Blackmun’s former chambers, there still is nothing but a fresh coat of paint on the walls. Fabric swatches sit on the cof­fee table-for new curtains, he says. He has no idea what the purpose is of the red phone on his side table (internal emer­gency hot line) or the red light on the wall (tells whether his fireplace flue is open). Breyer doesn’t even seem to notice the gaping rips at the elbows of both sleeves of his shirt. 

Except for the workload, Breyer tries not to take his exalted position too seri­ously. He recently told his friend and for­mer Stanford housemate Alan Kane that he was “almost embarrassed by the pomp” of the court, and he likes to ridicule Wash­ington as “the entertainment capital of the world.” On the bench, he often leans over to chat with Justice Clarence Thomas, who sits to Breyer’s immediate right. (Privately he has come to the defense of the beleaguered Thomas, who rarely speaks in open court. “His job is not to ask questions,” Breyer told friends re­cently. “His job is to make decisions.”) 

Breyer is trying to make time for out­side interests. He occasionally bikes the four miles from his Georgetown home to the office, and he returns to Cambridge, Mass., most weekends to see his wife, Joanna, who works as a psychologist at the Dana Farber Cancer Institute in Boston. In October, he returned to Stanford for his 35th reunion, where he ran the Dish, biked around campus with his son, Michael, a sophomore, and gave the keynote address in Frost Amphitheater. Breyer even finds time to indulge his appetite as a policy wonk. These days he’s fascinated by a new book called 500 Life­Saving Interventions and Their Cost-Effective­ness. He thumbs through the copy on his desk, quoting passages and launching into an animated discussion of one of his fa­vorite topics: how society ought to allocate scarce resources to best serve people. 

Breyer’s rise to the top of the legal pro­fession is a classic tale of revenge of the nerd. Shy as a boy, he retreated into the world of books and developed an insa­tiable curiosity about ideas. By the time Breyer was at Lowell High School, his younger brother Chuck recalls, he had won so many academic accolades in San Francisco public schools that a local news­paper once ran his photo with the mun­dane caption, “Another Award for Brey­er.” That was “very painful and embar­rassing for him,” Chuck says. Breyer also was a top debater, once going up against rival high school hotshot and future California governor Jerry Brown. 

Breyer longed to go to Harvard. But his parents were concerned he was too book­ish and instead made him go to Stanford, where they believed he would be less isolated. He was furious.

Breyer grew up in a middle-class Jew­ish community. His mother, Anne, was active in local Democratic politics, and his father, Irving, was legal counsel to the San Francisco Board of Education. Breyer’s parents nurtured his intellectual interests but insisted he be well-rounded. They sent him to summer camp and dance class and later encouraged him to take summer jobs as a waiter and ditchdigger. Breyer eventually earned his Eagle Scout badge—­but also the nickname “Blister King” for his tender feet. He won Most Improved Dancer in junior high school—two years in a row. “That gives you some idea of the level of initial achievement,” Chuck says. Named “Most Likely to Succeed” in his high school yearbook, Breyer longed to go to Harvard. But his parents were concerned he was too book­ish and instead made him go to Stanford, where they believed he would be less isolated. He was furious. 

Breyer eventually fell in with a group of students at Stanford who shared his budding interest in philosophy and inter­national relations. They would stay up late debating the theories of Ludwig Wittgenstein and Willard Quine in a house on Middlefield Road or playing bridge at El Tigre eating club. By day Breyer became active in the Model Unit­ed Nations and would take foreign students on tours of San Francisco in his ’57 red Chevy. “We had esprit de corps,” Breyer recalls. “It was fun.” He was happy to be fitting in. “He felt much more comfortable at Stanford than he did in high school,” says Stuart Pollak, a San Francisco superior court judge who went to Lowell with Breyer and then roomed with him for three years in college. 

Always precocious, Breyer developed a taste for wine and exotic cheese, which he paid for by teaching classes on Sundays at Beth Am Temple in Menlo Park. Pollak remembers Breyer fouling their off­-campus house with the aroma of an over­ripe camembert. While some of his friends were driving to San Francisco for Beat Generation readings with Allen Ginsberg and Jack Kerouac, Breyer was arrested with his Norwegian girlfriend in a North Beach opera bar for ordering red wine as a minor. 

At Stanford, Breyer showed his first interest in politics. He ran unsuccessfully for student office on a plank to put more bicycle racks on campus. (He clearly was ahead of his time.) He also tried his hand at crew in a futile effort to burnish his credentials as an athlete and win a Rhodes scholarship. “I was not very good at it,” he admits. Settling for a Marshall scholarship instead, Breyer studied two years at Oxford before enrolling at Harvard Law School. 

‘Steve’s hand was up almost incessantly from the first week. I was thinking to myself, “Who is this guy? Does he know what he's getting into?”’

Most of the Harvard students feared the bullying Socratic method used by professors to humiliate students. Not Breyer. “Steve’s hand was up almost incessantly from the first week,” says Paul Kirk, who later chaired the Democratic National Committee. “I was thinking to myself, ‘Who is this guy? Does he know what he’s getting into’” One of Breyer’s roommates, Hugh Jones, recalls that Brey­er routinely would stump professors with his uninhibited questions. But, insists Jones, no one resented him. “Most people that bright are either arrogant or intellectually aggressive,” Jones says. “Steve manages to be charming.” 

It was at Harvard that Breyer discov­ered economics and began to focus on what would develop into an intellectual passion: how government regulation affects private commerce. He would come to frown on government policies or pri­vate lawsuits that interfere with corporate decisions. But he rejected the rigid free market theology that dismissed any role for government regulators. He believed that the market should be tampered with cautiously, as a last resort, to protect health or safety or to achieve reasonable consumer prices. After clerking one year for Supreme Court Justice Arthur Gold­berg, Breyer followed his interest in law and economics to the Justice Depart­ment’s antitrust division. 

In 1967 Breyer married Joanna Hare, a wealthy Englishwoman whose father, Lord John Blackenham, was leader of Britain’s Conservative Party. They moved to Boston, where Breyer began a career that straddled academia and politics. For the next 13 years he shuttled back and forth between Harvard, where he taught law and government, and Washington, where he worked first for the Water­gate prosecutor and later for the Senate Judiciary Committee. He took a holistic approach to teaching, insisting in his administrative law class that his students understand both the legal rules and the underlying policy skirmishes. As chief counsel to the Judiciary Committee in 1979-80, Breyer essentially ran the panel while its chairman (and his boss), Ted Kennedy, campaigned to be president. 

Breyer's most significant achievement at the Judiciary Committee was the pub­lic hearings he orchestrated to build sup­port for airline deregulation. Faced with strong opposition from the big carriers, Breyer prepared meticulously for each hearing and succeeded in dismantling the arguments against deregulation. “It was theater,” says Phil Heymann, a Har­vard colleague who was a top official in the Carter Justice Department at the time. “He wasn’t winging it.” Breyer also proved adept at “co-opting and preempting” the vast egos on Capital Hill, says former Kennedy aide Ken Feinberg. In 1980 Carter nominated Breyer to be a federal appeals court judge. Thanks to GOP support, Breyer won confirmation late that year even as other Carter nominees were held up by Republicans who want­ed incoming President Ronald Reagan to fill those slots with his own appointments.

One year his clerks started an ‘attire watch’ to see how many consecutive days he would wear the same tie. They stopped counting after six weeks.

The political skills Breyer learned in Washington proved useful on the court. He was deft at forging coalitions and quickly won the respect of his colleagues. By the time he was named chief judge in 1990, Breyer was known as a pragmatist and compromiser—and his court was tout­ed as a model of consensus. “I don’t insist that every opinion reflect perfectly what I think,” he said in a February 1993 speech. “It is better to have one opinion” than a di­vided court. Breyer also earned a reputa­tion as a clear writer whose opinions were easy for lower court judges to follow. He says his secret is to use fudge words like “normally” and “ordinarily” in order to avoid unnecessary clutter. His goal: to make his opinions understandable to a high school student. 

Inside the classroom or out, Breyer is something of an absent-minded profes­sor. He has been known to invite friends for dinner—and then disappear to the movies on the appointed night. He once failed to notice when his law clerks in Boston put goldfish in the office water cooler. “When he focuses on a problem he sees all the issues and their implica­tions, but he may not see that he’s drink­ing out of your coffee cup,” says Simon Frankel, who clerked for Breyer in 1991-92. One year his clerks started an “attire watch” to see how many consecutive days he would wear the same tie. They stopped counting after six weeks.

Former clerks say Breyer ran a loose chambers that sometimes resembled a college dorm common room. Dress was casual, with women known to wear long print skirts and Birkenstock sandals. The judge would dart in and out from his private office, eager to talk about a case or try to tell—and usually flub—a joke he had just heard. Most years Breyer invited his clerks to his tony Cambridge home for dinner—and to his 320-acre New Hampshire retreat for a weekend of badminton, boating and Trivial Pursuit. “The judge knew the answers to every­thing,” recalled Deborah Goldberg, who worked for him in 1986-87. 

Those who know Breyer well chortle about his sense of humor, which tends to be dry and self-effacing. He likes to quote Thurman Arnold’s description of a judge as “a bureaucrat with a robe.” His old courthouse was so antiquated, he would say, that judges had to “subtract from prison terms time already served in stuck elevators.” He uses jokes to deflect criti­cism of his work on the U.S. Sentencing Commission, which angered some judges because it replaced their discretion with rigid sentencing guidelines. When the commission comes up in speeches, Breyer turns to an old Marx Brothers routine. Groucho says: “Give him 10 years in Leavenworth, 11 years in Twelveworth.” Adds Chico: “Five and 10 at Woolworth.” Like many overachievers, Breyer is a chronic worrier. In college, he would come out of an exam and say to his friend Stu Pollak, “I failed that one.” In law school, recalls Hugh Jones, Breyer some­times had a hard time sleeping due to the pressure. As a professor, he would finish a lecture and confide to friends, “I really fouled up.” Breyer has joked about the “pleasant 22 1/2 hours” he spent testifying before the Judiciary Committee, where he was grilled on possible conflicts of interest. (A few months later he paid $100,000 to disengage himself from a controversial investment in Lloyd’s of London.) “Even after he was confirmed, he half-jokingly wondered whether they would remove him,” says Pollak. 

His legal philosophy places him squarely in the tradition of the pragmatists, who tend to reject crusades and emphasize balancing tests rather than assertions of moral principles.

The truth is that Breyer’s 87-9 con­firmation to the Supreme Court was probably less tense than his nomination. President Bill Clinton’s aides first turned to Breyer in the spring of 1993, after Byron White announced his resignation from the high court. The judge came to see Clinton in the White House directly from a Boston hospital bed, where he was nursing a broken rib and punctured lung sustained in a biking accident. He was resting on the floor of a White House office after the lunch when officials told him to prepare an acceptance speech. But Clinton, who was looking for a nominee with a dramatic life story, changed his mind. Breyer’s bio was too prosaic. The president instead chose Ruth Bader Ginsburg, a pioneer in the battle for women’s rights. Breyer was disappointed but gracious. A year later, when Black­mun retired, Breyer got the nod. 

So what kind of justice will he be? Breyer’s record offers few clues about his views on high-profile issues such as civil rights, abortion and the death penalty. But his legal philosophy places him squarely in the tradition of the pragma­tists, who tend to reject crusades and emphasize balancing tests rather than assertions of moral principles. “Pragma­tists want law to change over time,” says Kathleen Sullivan, a former colleague of Breyer’s at Harvard Law School who now teaches at Stanford. “They take a flexible, undogmatic view” of judging. 

To critics, that’s the problem. Some worry that Breyer so prizes flexibility that he has no broad vision of the Constitu­tion. Writing in The New Republic last July, Jeffrey Rosen asked: “Would he, in constitutional cases, always reach prag­matic, politically sensible results, or does he have a less ad hoc conception of text, history and structure that is attentive to principled limitations on judicial power?” 

Breyer bristles at being labeled a legal pragmatist—or anything else. “I don’t know what those things are,” he says. “These are other people’s efforts to categorize me.” Echoing his comments at the confirma­tion hearings that the law requires both a “heart and a head,” Breyer says he applies a simple test to every decision: “If you see the result is going to make people’s lives worse, you’d better go back and rethink it. . . . The law is supposed to fit together in a way that makes the human life of peo­ple a little bit better.” The challenge for Breyer is to persuade at least half of his colleagues that his head—and his heart—­are in the right place. 

Bob Cohn, ’85, covers the White House for Newsweek. He frequently changes his tie.