On His Terms

Breyer’s farewell is the finale to 50 years of Cardinal on the Court.

September 2022

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On His Terms

DaVidRo (composite); KRISTOFFER TRIPPLAAR/SIPA via AP images (photograph of Breyer)

Fifty Years. That’s the continuous length of time at least one Stanford alum—and as many as four—served on the Supreme Court of the United States. The era began with the 1972 appointment of William Rehnquist, ’48, MA ’48, LLB ’52, who served as an associate justice for 14 years and as chief justice for 19. It came to an end on June 30 with the retirement of Stephen Breyer, ’59, after 28 years on the Court. In between, Sandra Day O’Connor, ’50, LLB ’52, served from 1981 to 2006, and Anthony Kennedy, ’58, from 1988 to 2018. 

The four Stanford Supremes are among the nine justices who served together longer than any other set in U.S. history. In an interview with STANFORD, Breyer remembered those 11 years, from 1994 to 2005, as a “great fit.” Two days before the Court issued its decision in the reproductive rights case Dobbs v. Jackson Women’s Health, he and journalist Pete Williams, ’74, sat down to discuss the history of the Court, public perceptions of it, and its members’ varying approaches to deciding cases. 

Meanwhile, we asked Breyer’s Stanford-affiliated clerks what they would most remember about the justice. They painted a portrait of a humorous, erudite, unfailingly practical jurist and beloved mentor whose wisdom from the bench they will deeply miss.

The Pragmatist

A conversation between the justice and journalist Pete Williams, ’74.

STANFORD: Why is now the right time to retire?

Breyer: Because I’m 84 this summer. And there are many risks in staying, even though my health is fine. I think I could pretty easily stay another year. But what happens if the political branches are so divided that no one can be confirmed? That would be terrible for the Court. 

So if I saw that happening next June, I wouldn’t be able to retire. And then if I couldn’t retire next June, that brings us two more years down the road. So now I’m 86. And what happens if, in fact, the election is such that there’s the same kind of division or something? And suddenly, I’m there till I’m 90. Now, when you’re 90, no matter what, you’re not a spring chicken, and you don’t know what’ll happen. 

I have been here for 28 years. I’ve been a judge for 40 years. I enjoy it. But I either have to stay or leave. And if I stay, I’m running all kinds of risks, not just for myself but, really, for the Court. 

You do have a reputation as being a relentless optimist, with an ability to persuade your colleagues to do the right thing. Is that an accurate assessment?

Persuade? I don’t know. I mean, you know, who knows what leads? Churchill said that America always does the right thing after trying every other possibility. And it is true. [Sen. Ted] Kennedy used to say, we swing from one place to another, we go [from] one extreme [to] the other extreme, back and forth. So this is not the worst of times in this country. And it certainly isn’t the best, and so you just keep going. Especially, you listen to people. 

But wouldn’t it be fair to call you a consensus builder?

It’s probably fair. Of course I would prefer to skip a big divisive issue if we can. Maybe everybody can agree on sending this case back because the judges never actually considered a matter which might, in fact, avoid the need to decide a bigger matter. So we’re not here to say every big issue should be decided this way or that way. We’re here to decide cases and controversies. And that’s a good thing to remember. And if you can do it in a less divisive way, do it. And I probably take that attitude. Not always. But more than some.

Has that gotten more difficult over the years? 

Recently? Well, you judge for yourself. Just wait for a few days.

How is the court different today than it was when you arrived here?

Different people, different views. I would guess that, over the years, this idea that Nino [Antonin Scalia] had that it’s very important to parse the text, to stick very closely to every word, and to look at history—I’m not against looking at history, and I read the text. But those are not the only things. And I probably put more weight on the purpose of this statute. Why did the people write these words? Somebody wrote them; they didn’t appear by magic. And they had some idea of what they were trying to do. And what are the consequences? And did the people who wrote this want this statute to evolve over time? 

Take some famous examples. [The Endangered Species Act of 1973] says “endangered species.” Nobody thought the silver mink was endangered. But [what if] it turns out 40 years later, it is in danger. Does the statute cover silver mink? It depends on whether the intent of this statute was to change somewhat over time and scope, or not. That kind of issue comes up quite a lot. 

When Congress says nothing, which is usual, you start with an idea that they wanted this to work. And that doesn’t mean work consistent with what I think is good. It means working consistent with the purpose that they had in enacting this statute. I think thinking about those questions is, in fact, useful.

And perhaps more useful than investigating what happened in 1722 in South Carolina. Not always—I won’t say always—but I’d say generally. And so I think that way, you tend to maintain a more workable Constitution. And by workable, it means a Constitution that preserves the values that they wrote into that Constitution, which are pretty universal, most of them, and preserves them in a workable way for today. 

We had that period of 11 years where there was no change in the Court.

Yeah, that was great. Because it was a great fit. We sort of thought alike on a lot of things. And even when we disagreed, you’re going to get an outlook. So I never had a problem finding people who would share, in a case, probably a similar outlook.

As you think back on it, do you divide the Court into two periods—that period and then the part that came after? 

Slightly, but we don’t know. When people are appointed, it takes time. You do go around two or three years nervous as a cat. And then you gradually adjust to a lot of mores of the institution, which aren’t written down. That is what Harry Blackmun said. He said, you’ll find this an unusual assignment. Quite right. 

But it is a court, part of the institutions of governing the United States in a major way. And you can’t forget that. Now, how does that influence you? When you think about political institutions, that’s not the Court. It’s not a political institution. 

Well, what is it? It’s like P.G. Wodehouse has Bertie Wooster wake up and he says, “Bernie wasn’t disgruntled, but he wasn’t exactly gruntled either.” So they’re different. They’re different parts to it. They’re different attitudes, or different ways you go along.

I say, be careful, it takes time. It takes time before you begin to formulate either your own views or begin to understand this institution. It’s had major changes. 

Think of the changes after John Marshall [the long-serving, influential chief justice of the early 19th century]. Think of the changes after the Civil War. Think of the changes in the Taft Court. And then along come Holmes and Brandeis and the changes of the New Deal court. Those are major changes, [as are] the changes that the Warren Court made from the New Deal court, but they take time. They take a lot of time, and to some degree, reflect the views of people, the majorities of people in the country, but don’t quite. And are we in the midst of a similar thing? I don’t know.

Photo illustration of Breyer in front of images of the American flag and the Supreme Court buildingDaVidRo (composite); KRISTOFFER TRIPPLAAR/SIPA via AP images (photograph of Breyer)

There’s no mistaking that people are paying more attention to the Court now. And there’s a general feeling that the Court has become political . . .  

It’s not. 

I know what you say, but that’s what a lot of people think. I assume you do worry, though, about declining public confidence or appreciation for the Court.

Of course. But how much did it have after Dred Scott [v. Sandford, which held that the descendants of enslaved people were not citizens]? I don’t know. Lincoln said that was a shocker. But it still survived. Had the Court become political? The only explanation I’ve heard about what [Roger Brook] Taney thought was that he was going to end the Civil War [with his majority opinion in Dred Scott]. Because he would decide what happens in the Free Territory. So, if anything, he caused it. 

But you see, one reason for judges not to become politicians is they’re bad politicians. [They] don’t know how to do it. I want to write a book, you know, on the approach.

What is your next book about?

What is purpose-oriented jurisprudence? What does that mean? It’s a big phrase. What are the cases that illustrate [that] point of view? And I’m writing this also, just for the same reason that the monks on the island of Iona wrote the Book of Kells: They thought darkness had descended, and they wanted to preserve a ray of light. So it’s a good joke to open with.

People think, because it’s predictable in many cases—but far fewer than people think—how it’ll line up, that that means we must be being political. No. What it means is that people over time develop an approach, to this kind of a problem, to that kind of a problem. And they’ll be consistent. That has nothing to do with politics.

Sure seems like it from the outside, though.

Like what? 

You can predict how the big decisions are going to come out based on the makeup of the Court.

Suppose you have one member of the Court who really thinks very strongly: Don’t get into what the facts are. Get into what the history of this thing was, OK? Get into the history of it and see which way that history cuts, and see which way that language cuts. And you have another judge who thinks the most important thing is that we’ll get some information about the values that underlie the particular provision here from history. But then let’s look at how it would apply today. And let’s put a lot of importance [on] whether it furthers or doesn’t further the purpose or the values that underlie that. Now, you read the briefs. And aren’t you going to be able to predict? Nine times out of 10, you will. Is that politics? No. It’s differences in jurisprudential approach that may well grow out of the person’s earlier life, where he went to college, where he went to high school, whether he grew up in San Francisco or in Dallas. 

But as you know, there are many people who look at this current Court and say, it is political, that we’ve had recent appointments from President Trump, who made no bones about why he was making certain selections on the Court. 

That is definitely political, from his point of view and those who urged him to make these appointments. But what the different political groups do is, they look around, maybe through the Federalist Society, maybe through others. They try to find a judge whose basic approach to judicial matters is more likely to line up with the political results they want. And that’s the only explanation I can find of what I perceived, which is saying, “Great, we got exactly what we wanted.” And they did, and they did. 

But from the inside, you talk to the person. You didn’t think he’s deciding politically. You think he’s deciding according to the basic theory that he has. 

Let’s talk a little bit about your time at Stanford. What did you get out of it? 

I loved it. People were more relaxed in those days. You have no idea of the joy in the spring term of lying on the grass in between the History Corner and the old library and just looking at the sky. And one spring quarter, I organized it so I had very few classes. And you’d go to Lake Lagunita. I was probably the worst member of the crew team they had up there. 

I lived that first year in Wilbur Hall. It was the first year Wilbur Hall was open. Then I lived with two friends of mine. We were in an eating club. We lived out on Middlefield Road. 

The English department, I felt I learned a lot, and the Western Civ course was great. And I liked to read. I liked to figure out what was going on. My teachers were terrific. So I have nothing but a positive glow of Stanford. 

Pete Williams, ’74, recently retired as a correspondent for NBC News, where he covered the Supreme Court and the Justice Department. Email him at stanford.magazine@stanford.edu.

Decoration element

A Commencement to Remember

Breyer delivered the Stanford commencement address on Father’s Day 1997, while his son, Michael, received a bachelor’s degree. In his speech, the justice quoted Michael, ’97, MBA ’01, as having said, “He’s been giving me advice for more than 20 years. I suppose another 15 minutes won’t matter.” For their part, the graduates coaxed Breyer into a brief performance of the macarena. It was 1997, after all.

Decoration element

California Supremin’

With Breyer’s retirement, there’s no Cardinal on the Court for the first time in 50 years. Stanford superfans who want to feel better about this development can take comfort from the membership of the California Supreme Court, which includes Patricia Guerrero, JD ’97, Joshua Groban, ’95, and Goodwin Liu, ’91. If recent nominee Kelli Evans, ’91, is confirmed, alums will make up the majority of the seven-member court.

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