Today in 1994: U.S. Senate confirms Stephen Breyer to the Supreme Court

July 29, 2011

Today in Legal History17 years ago today, Stephen Gerald Breyer was confirmed to the U.S. Supreme Court.

Nominated by President Bill Clinton to replace the retiring Justice Harry A. Blackmun, Breyer was easily confirmed by the U.S. Senate on July 29, 1994 by a vote of 87-9.

Clinton had originally considered Breyer to replace Justice Byron White, who had retired the previous year.

However, Clinton instead selected Ruth Bader Ginsburg after Breyer was attacked for his late payments on social security taxes for a part-time housekeeper.

When Breyer was actually nominated by Clinton in 1994, though, he faced little resistance getting confirmed.

Indeed, although typically siding with the liberal bloc of the Court, Breyer has found respect with all political alignments.

For example, President Jimmy Carter nominated Breyer to the U.S. Court of Appeals for the First Circuit in 1980.

However, Carter lost that year’s election to Ronald Reagan.

As is standard practice for an incoming administration of an opposing party, Reagan’s administration cancelled all of Carter’s pending judicial appointments upon assuming office.

Except for Breyer’s.

Most jurists would argue, though, that political labels do not and should not apply to judges and justices.

Rather, their ideologies are better evaluated in terms of “judicial philosophy.”

Breyer is no exception to this notion.

Stephen BreyerRather than liberal, Breyer would probably be better described as a judicial pragmatist.

Ironically, though, Breyer’s judicial philosophy still stands in stark contrast to Justice Scalia’s “originalism,” widely touted as the most conservative on the Court.

Where Scalia places paramount importance the actual text of the U.S. Constitution, along with laws and statutes, Breyer’s places weight on a multitude of factors.

While Breyer concedes the text of the Constitution is indeed important, it is probably no more so than legal tradition and precedent, history, a law’s purpose, and the consequences of a particular decision.

Breyer has stated that consideration of the latter two factors is what distinguishes his philosophy from Scalia’s.

If not the only differences, those two are certainly the most glaring.

Where Scalia claims that the Framers of the Constitution and the authors of other laws are bound by their words as found in those legal documents, Breyer contends that to properly apply a statute, the purpose of its authors must be discerned and considered.

Where Scalia maintains the very ideological approach that the consequences of a legal decision should be irrelevant to its consideration, Breyer adheres to a more practical approach, as elaborated in a 2010 interview:

“What you’re going to decide is going to matter in the world, and therefore it’s important to pay attention to those consequences because human beings will be affected.”

These differences, along with Breyer’s regular elaboration of his philosophy (he has written books on the topic in 2005 and 2010), has resulted in his being labeled the Court’s intellectual counterweight to Scalia.

However, Breyer’s views are anything but dependent on Scalia’s, and should his Court tenure outlast Scalia’s, we’re sure to see the same pragmatism in his opinions and dissents.

To learn more about Stephen Breyer, check out his bio on the Supreme Court’s website, or read any of his pragmatic decisions on Westlaw.