BREYER, STEPHEN GERALD

BREYER, STEPHEN GERALD (1938– ), law professor, Senate staff counsel, federal appellate judge, and seventh Jewish appointee to the Supreme Court of the United States. Breyer was born in San Francisco, California, to a middle-class Jewish family. His father was a lawyer for the city school system. He excelled at San Francisco's "magnet" public high school and at Stanford University, where he graduated with highest honors in 1959. Breyer won a Marshall Scholarship to attend Oxford University, where he received a B.A. with first-class honors in 1961 and developed an interest in economics. At Harvard Law School Breyer was selected articles editor of the Harvard Law Review. Following his graduation magna cum laude in 1964, he served as one of two law clerks to Supreme Court Justice arthur j. goldberg in 1964–65. He then worked at the Department of Justice for two years as a special assistant to the assistant attorney general of the Antitrust Division, former Harvard Law Professor Donald F. Turner. In 1967 he married Joanna Freda Hare, the daughter of Lord John Blakenham, who was a wealthy leader of Britain's Conservative Party. Breyer began a teaching career at Harvard Law School in the fall of 1967, specializing in administrative and antitrust law. When Harvard Law Professor Archibald Cox became the Watergate Special Prosecutor in 1973, Breyer served briefly as an assistant to Cox. He became the staff director for the Senate's investigation of the Civil Aeronautics Board in 1974 and participated, after his return to full-time teaching at the Harvard Law School and at the Kennedy School of Government, in the hearings and legislation that led to the 1978 deregulation of the airline industry. In 1979 Breyer became chief counsel of the Senate Judiciary Committee under Massachusetts' Democratic Senator Edward M. Kennedy. Breyer's interpersonal skills as well as his keen intellect and even-handedness won him admirers among the Republican members of the Judiciary Committee. In the waning days of the Democratic Carter administration – after Ronald Reagan had been elected president – Breyer was nominated and confirmed with Republican support for a seat on the United States Court of Appeals for the First Circuit as the last judicial appointee of jimmy carter . The First Circuit is the smallest federal court of appeals, and Breyer advanced to becoming chief judge in 1990. In 1985 he became a member of the United States Sentencing Commission and was a principal architect of the Sentencing Guidelines, which became the mandatory standard for federal criminal sentences in October 1987. Years later, in January 2005, a five-member Supreme Court majority held that the Guidelines were unconstitutional to the extent that they prescribed any increased sentence resting on factual findings not made by a jury. Breyer salvaged the Guidelines' applicability to future cases with a creative opinion for the four dissenting Justices, who were joined, in this aspect of the ruling, by Justice ruth ginsburg , who had concurred in the finding of unconstitutionality. Breyer's opinion for five Justices invalidated the mandatory nature of the Guidelines and made them advisory only. During his tenure as chief judge of the First Circuit, Breyer also oversaw, in detail, the construction of a modernistic federal courthouse in downtown Boston overlooking the harbor. When the Democratic Party retook the White House with the election of President Bill Clinton, Breyer's name was frequently mentioned as a likely Supreme Court nominee. He was interviewed by President Clinton for the first such vacancy in 1993 and was nominated as the second Clinton appointment (both of whom are Jewish) in May 1994 for the seat vacated by Justice Harry A. Blackmun. Blackmun, who was not Jewish, had been named by President Richard Nixon to the "Jewish seat" that had been occupied successively by Justices Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, and Abe Fortas. Breyer was easily confirmed by an 87–9 vote and took his Supreme Court seat on August 3, 1994. The Court that he joined remained the same (with Breyer as the most junior justice) for more than a decade. Breyer is viewed as a liberal centrist member of the Supreme Court. He concurs most frequently with Justice Ginsburg and disagrees most often with Justice Clarence Thomas. He occasionally joins the Court's three most conservative Justices – William Rehnquist, Antonin Scalia, and Thomas – and if either Justice Kennedy or Justice O'Connor agrees with the three conservatives, Breyer's is often the fifth vote to create a majority. His votes in business and criminal cases are conservative, but he joins the liberals in authorizing a broad role for federal, as opposed to state, regulation. On church-state issues, Breyer's vote is unpredictable. Although he opposed overruling a leading precedent that had prohibited state-financed teachers of handicapped students from teaching on religious-school premises and also opposed government tuition vouchers that could be used in parochial schools, he joined a Supreme Court majority that permitted the loan of publicly financed computer equipment to religious schools.   Breyer is an active questioner at Supreme Court argument sessions, although he frequently withholds his questions until late in the argument. His questions are lengthy and intricate, appearing to summarize an advocate's point but testing its logical and practical reach. His opinions are carefully balanced and tend to be scholarly rather than polemic. In public speeches to Jewish audiences, Breyer often refers to his grandfather, who immigrated to St. Paul, Minnesota, from Poland. Breyer delivered an address at the Capital Rotunda marking Yom Hashoah 1996, and spoke stirringly of the historic significance of the nuremberg trial half a century earlier and the participation as prosecutor of then Supreme Court Justice Robert Jackson. Under the influence of Justices Breyer and Ginsburg, the Supreme Court for the first time in its history took an official holiday for Yom Kippur on October 6, 2003, delaying the formal opening of the Court from that date, which was the first Monday in October. (Nathan Lewin (2nd ed.)