Stephen Breyer

Stephen Breyer
Born	Stephen Gerald Breyer 15 8, 1938
Birthplace	San Francisco, California, U.S.
Nationality	American
Occupation	Jurist, legal scholar, author
Title	Byrne Professor of Administrative Law and Process, Harvard Law School
Known for	Associate Justice of the U.S. Supreme Court (1994–2022)
Education	Harvard Law School (LL.B.)
Spouse(s)	Joanna Hare Breyer
Children	3
Awards	Boies Prize (NYU Law, 2025)

Stephen Gerald Breyer (born August 15, 1938) is an American lawyer, jurist, and legal scholar who served as an associate justice of the Supreme Court of the United States from 1994 until his retirement in 2022. Nominated by President Bill Clinton and confirmed by the United States Senate, Breyer succeeded retiring justice Harry Blackmun and was generally associated with the liberal wing of the Court across nearly three decades of service. Born and raised in San Francisco, Breyer followed a path through Stanford University, the University of Oxford, and Harvard Law School before embarking on a career that spanned academia, government service, and the federal judiciary. Before joining the Supreme Court, he served as a judge on the United States Court of Appeals for the First Circuit, including a tenure as its chief judge. During his time on the nation's highest court, Breyer authored majority opinions in landmark cases including Google v. Oracle, United States v. Lara, and Mahanoy Area School District v. B.L., and wrote notable dissents questioning the constitutionality of the death penalty. Since retiring, Breyer has returned to Harvard Law School as the Byrne Professor of Administrative Law and Process, and has remained an active public figure, speaking at universities across the country about the rule of law, judicial pragmatism, and civic engagement.

Early Life

Stephen Gerald Breyer was born on August 15, 1938, in San Francisco, California. He grew up in the city and was raised in a Jewish family. His brother, Charles Breyer, also pursued a career in law and became a federal judge. As a youth, Breyer was involved in the Boy Scouts of America, an experience he later reflected upon publicly.

Breyer served in the United States Army from 1957 to 1965, attaining the rank of corporal. He was assigned to Army Strategic Intelligence during a period that overlapped with the early stages of the Vietnam War era.

Breyer's upbringing in San Francisco, a city known for its diverse political and cultural landscape, contributed to his worldview. He attended Lowell High School, a prestigious public magnet school in San Francisco, before going on to pursue higher education on the East Coast and in England. His early life in California remained a touchstone throughout his career; he returned to speak at Stanford University, his undergraduate alma mater, on numerous occasions during and after his time on the Supreme Court.

Education

Breyer attended Stanford University for his undergraduate studies, where he earned his bachelor's degree. He then studied at the University of Oxford as a Marshall Scholar, deepening his exposure to comparative legal traditions and the British legal system. Breyer went on to attend Harvard Law School, graduating in 1964. At Harvard, he distinguished himself academically and developed the intellectual foundations that would shape his later career as a legal scholar and jurist specializing in administrative law and regulatory policy.

Following his graduation from Harvard Law School, Breyer secured a clerkship with Associate Justice Arthur Goldberg of the Supreme Court of the United States during the 1964–65 term. This clerkship provided Breyer with firsthand experience of the Court's operations and deliberative processes, an experience that profoundly influenced his approach to law and would prove instrumental when he himself joined the Court nearly three decades later.

Career

Academic Career at Harvard

After completing his clerkship with Justice Goldberg, Breyer joined the faculty of Harvard Law School in 1967, where he taught and lectured until 1980. He specialized in administrative law, a field concerned with the rules and processes governing federal agencies, regulatory bodies, and government decision-making. During his years at Harvard, Breyer authored textbooks on administrative law and regulatory policy that became standard works in the field and remain in use in American law schools. His scholarly work focused on the practical operation of government regulation and the role of the judiciary in overseeing administrative action, themes that would recur throughout his judicial career.

Breyer's time at Harvard was not limited to the classroom and legal scholarship. He also held several significant government positions during this period, reflecting his engagement with public policy at the national level.

Government Service

During the late 1960s and 1970s, Breyer took on several roles in the federal government while maintaining his academic affiliation with Harvard. He served as a special assistant to the United States assistant attorney general for antitrust, gaining experience in competition law and federal enforcement. In 1973, Breyer served as an assistant special prosecutor on the Watergate Special Prosecution Force, the team of lawyers assembled to investigate the Watergate scandal and related matters during the Nixon administration. These experiences in government deepened Breyer's understanding of the executive branch and its interaction with the legal system, and informed his later judicial approach to questions of administrative and executive power.

Breyer also served as chief counsel to the United States Senate Committee on the Judiciary, where he worked closely with senators on matters of legislation and judicial nominations. This role gave him substantial insight into the legislative process and the relationship between Congress and the federal courts.

United States Court of Appeals for the First Circuit

In 1980, President Jimmy Carter nominated Breyer to serve as a judge on the United States Court of Appeals for the First Circuit. He was confirmed and took his seat on December 10, 1980, filling a newly established seat on the court. Breyer served on the First Circuit for over thirteen years, during which time he developed a reputation as a careful, pragmatic jurist with particular expertise in regulatory and administrative law.

In March 1990, Breyer became the chief judge of the First Circuit, succeeding Levin H. Campbell. He served in that capacity until his elevation to the Supreme Court in 1994. As chief judge, Breyer oversaw the administration of the circuit court and continued to write opinions that reflected his analytical approach to legal questions. His tenure on the First Circuit established his credentials as a leading appellate jurist and made him a prominent candidate for appointment to the Supreme Court.

Nomination and Confirmation to the Supreme Court

In 1994, President Bill Clinton nominated Breyer to the Supreme Court of the United States to replace retiring Associate Justice Harry Blackmun. Breyer's nomination was well received in the Senate, reflecting his reputation for collegiality and his bipartisan relationships forged during his years working with the Senate Judiciary Committee. He was confirmed by a vote of 87–9 and took his seat as an associate justice on August 3, 1994.

Breyer's appointment was part of Clinton's effort to place pragmatic, experienced jurists on the Court. Breyer was Clinton's second appointment after Ruth Bader Ginsburg in 1993. Juan R. Torruella succeeded Breyer as chief judge of the First Circuit, and Sandra Lynch filled his seat as a circuit judge.

Supreme Court Tenure

Breyer served on the Supreme Court from August 3, 1994, until June 30, 2022, a tenure spanning nearly twenty-eight years and encompassing some of the most consequential legal disputes of the late twentieth and early twenty-first centuries. He was generally associated with the liberal wing of the Court and was known for his pragmatic approach to constitutional interpretation, emphasis on the practical consequences of legal rules, and commitment to the idea that the judiciary should promote democratic participation.

Judicial Philosophy

Breyer's judicial philosophy emphasized what he termed "active liberty," a concept he articulated most fully in his 2005 book Active Liberty: Interpreting Our Democratic Constitution. In the book, Breyer argued that the judiciary should interpret the Constitution in a way that encourages popular participation in governmental decisions, rather than relying solely on textualist or originalist methods of interpretation. This approach placed him in contrast with justices who favored originalism, such as Antonin Scalia, with whom Breyer engaged in sustained public and scholarly debates about constitutional interpretation.

Breyer was known for his use of hypothetical questions during oral arguments, a practice noted by legal commentators and scholars. He frequently posed detailed, sometimes elaborate hypothetical scenarios to attorneys presenting cases before the Court, using them as a means of testing the limits and implications of legal arguments.

In his post-retirement public appearances, Breyer has continued to articulate his legal philosophy. At a 2025 symposium at Harvard Law School, he criticized the reversal of Roe v. Wade as an example of a decision driven by judges' personal views rather than legal pragmatism.

Major Opinions

During his time on the Court, Breyer authored majority opinions in several landmark cases. In United States v. Lara (2004), Breyer wrote for the majority in a case concerning the power of Congress to relax restrictions on the inherent sovereign authority of Indian tribes, holding that Congress could permit tribes to prosecute nonmember Indians for criminal conduct.

In Google LLC v. Oracle America, Inc. (2021), Breyer delivered the majority opinion in a closely watched intellectual property case, holding that Google's copying of portions of Oracle's Java application programming interface (API) constituted fair use under copyright law. The decision had significant implications for the software industry and the scope of copyright protection for functional elements of computer code.

In Mahanoy Area School District v. B.L. (2021), Breyer wrote the majority opinion holding that a school district violated the First Amendment when it disciplined a student for off-campus speech posted on social media. The case addressed the scope of public schools' authority to regulate student speech occurring outside school grounds.

Breyer also authored the majority opinion in McConnell v. Federal Election Commission (2003), a case involving the constitutionality of the Bipartisan Campaign Reform Act, as well as opinions in a range of cases touching on administrative law, the separation of powers, criminal procedure, and civil liberties.

Notable Dissents

Breyer wrote several notable dissenting opinions during his tenure. In Glossip v. Gross (2015), he dissented from the Court's decision upholding a method of execution, using his dissent to question the constitutionality of the death penalty more broadly and arguing that the Court should reconsider whether capital punishment violates the Eighth Amendment's prohibition against cruel and unusual punishment.

In cases involving the Second Amendment, including District of Columbia v. Heller (2008), Breyer dissented from the Court's recognition of an individual right to bear arms, arguing for a more deferential approach to legislative regulation of firearms.

Breyer also dissented in Bush v. Gore (2000), the case that effectively resolved the disputed 2000 presidential election in favor of George W. Bush. His dissent reflected his broader concerns about the Court's role in the democratic process and the importance of allowing political institutions to resolve political disputes.

Retirement

On January 27, 2022, Breyer and President Joe Biden jointly announced Breyer's intention to retire from the Supreme Court at the end of the 2021–22 term. Breyer was 83 years old at the time. His retirement opened a vacancy that Biden had pledged, during his presidential campaign, to fill with the first Black woman to serve on the Supreme Court.

On February 25, 2022, Biden nominated Ketanji Brown Jackson, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit and a former law clerk to Breyer, to succeed him. Jackson was confirmed by the Senate and took her seat on June 30, 2022, the same day Breyer formally left the Court.

Post-Retirement Activities

Since retiring from the Supreme Court, Breyer has resumed teaching at Harvard Law School as the Byrne Professor of Administrative Law and Process. He has also maintained an active public schedule, speaking at universities and law schools across the United States about the rule of law, the role of the judiciary, and the importance of civic engagement.

In January 2026, Breyer spoke at Stanford University, urging students to stay engaged in democracy and emphasizing the importance of the rule of law for the functioning of American government. In a separate visit to Stanford in May 2025, he told students to "listen to people who disagree with you," reflecting his belief in the importance of dialogue and deliberation in democratic life.

In November 2025, Breyer spoke at Suffolk University about what he described as the enduring value of the rule of law, framing his remarks around the idea of "making a case for the American experiment." In October 2025, Breyer participated in a discussion at Harvard Law School about the challenges facing the judiciary from an expanding executive branch, a subject closely related to his career-long focus on administrative law and the separation of powers.

Personal Life

Stephen Breyer is married to Joanna Hare Breyer, a member of the British aristocracy and daughter of Viscount Blakenham. The couple has three children. Breyer's brother, Charles Breyer, served as a federal judge in the United States District Court for the Northern District of California.

Breyer has been a resident of the Washington, D.C., area during his time on the Court and has also maintained connections to Massachusetts and California. He has been noted for his participation in Washington social and cultural life.

In public appearances, Breyer has been characterized as affable, intellectually curious, and committed to civil discourse. He has spoken frequently about the importance of engagement across political and ideological lines, reflecting a temperament that colleagues and commentators have described as collegial and open-minded.

Recognition

Throughout his career, Breyer has received numerous awards and honors recognizing his contributions to law, public service, and legal scholarship.

In November 2025, Breyer received the Boies Prize at New York University School of Law. The ceremony included a wide-ranging conversation about his career, the Supreme Court, and the state of American law.

Breyer has been a frequent invited speaker at leading universities and legal institutions. He delivered a notable address at Duke University in 2004 during his time on the Court. He has also appeared on prominent interview and discussion programs, including The Open Mind.

Breyer's published works, particularly Active Liberty and his textbooks on administrative law, have been the subject of extensive academic review and commentary. American University recognized his contributions to law and public discourse through its media programs.

Legacy

Stephen Breyer's nearly three decades on the Supreme Court left a substantial mark on American law. His jurisprudence was defined by a pragmatic, purposive approach to constitutional and statutory interpretation that emphasized the practical consequences of legal rules and the role of the judiciary in supporting democratic governance. His concept of "active liberty," articulated in his 2005 book and developed across hundreds of opinions, offered an alternative to the textualist and originalist methodologies that gained prominence during his tenure.

Breyer's contributions to administrative law, both as a scholar and as a jurist, were particularly significant. His academic textbooks helped shape the education of a generation of lawyers, and his judicial opinions on regulatory and administrative matters reflected a deep understanding of the workings of the federal government. His opinions in cases involving the separation of powers, the scope of federal regulatory authority, and the relationship between Congress and federal agencies are studied in law schools across the United States.

His influence extended beyond his written opinions. As a member of the Court's liberal wing, Breyer played a key role in shaping the internal dynamics of the Court and in articulating alternative perspectives during periods when the conservative majority controlled the outcome of major cases. His dissents, particularly those questioning the constitutionality of the death penalty and advocating for a broader understanding of the right to privacy, provided frameworks for future legal arguments and potential shifts in doctrine.

In retirement, Breyer has continued to contribute to public discourse about the judiciary and the rule of law. His sustained engagement with students, scholars, and the public reflects his belief that the legitimacy of the legal system depends on broad civic understanding and participation. His emphasis on listening to opposing viewpoints, as expressed in his 2025 remarks at Stanford, encapsulates a philosophy that extends beyond the courtroom to questions of democratic culture and governance.

The appointment of Ketanji Brown Jackson, one of Breyer's former law clerks, as his successor represented a continuation of his judicial lineage and the historic fulfillment of President Biden's pledge to appoint the first Black woman to the Supreme Court.

Publications

• Active Liberty: Interpreting Our Democratic Constitution (2005)
• Breaking the Vicious Circle: Toward Effective Risk Regulation (1993)
• Making Our Democracy Work: A Judge's View (2010)
• The Court and the World: American Law and the New Global Realities (2015)
• The Authority of the Court and the Peril of Politics (2021)