Editing Stephen Breyer (section)

==Judicial philosophy==
===In general===
{{further|Purposive approach}}

Breyer's [[Pragmatism|pragmatic]] approach to the law "will tend to make the law more sensible", according to [[Cass Sunstein]], who added that Breyer's "attack on [[originalism]] is powerful and convincing".<ref name="115 YALE L.J. 1719">{{Cite journal |last=Sunstein |first=Cass R. |date=May 2006 |title=Justice Breyer's Democratic Pragmatism |url=http://www.yalelawjournal.org/pdf/221_om87hycw.pdf |url-status=live |journal=The Yale Law Journal |volume=115 |issue=7 |pages=1719–1743 |doi=10.2307/20455667 |jstor=20455667 |s2cid=154739751 |archive-url=https://web.archive.org/web/20170704041242/http://www.yalelawjournal.org/pdf/221_om87hycw.pdf |archive-date=July 4, 2017 |quote=Breyer thinks that, as compared with a single-minded focus on literal text, his approach will tend to make the law more sensible, almost by definition. He also contends that it 'helps to implement the public's will and is therefore consistent with the Constitution's democratic purpose.' Breyer concludes that an emphasis on legislative purpose 'means that laws will work better for the people they are presently meant to affect. Law is tied to life, and a failure to understand how a statute is so tied can undermine the very human activity that the law seeks to benefit.'}} Quote is at p. 1726.</ref>

Breyer consistently voted in favor of [[abortion]] rights,<ref name="Wittes2005">{{Cite news |last=Wittes |first=Benjamin |date=September 25, 2005 |title=Memo to John Roberts: Stephen Breyer, a cautious, liberal Supreme Court justice, explains his view of the law |url=https://www.washingtonpost.com/wp-dyn/content/article/2005/09/22/AR2005092201017.html |url-status=live |archive-url=https://web.archive.org/web/20170714053504/http://www.washingtonpost.com/wp-dyn/content/article/2005/09/22/AR2005092201017.html |archive-date=July 14, 2017 |access-date=September 15, 2017 |newspaper=[[The Washington Post]]}}</ref><ref name="stenberg">''[[Stenberg v. Carhart]]'', {{ussc|530|914|2000}}.</ref> one of the most controversial areas of the Supreme Court's docket. He also defended the Court's use of foreign law and [[international law]] as persuasive (but not binding) authority in its decisions.<ref>{{Cite web |date=January 13, 2005 |title=Transcript of Discussion Between Antonin Scalia and Stephen Breyer |url=http://domino.american.edu/AU/media/mediarel.nsf/1D265343BDC2189785256B810071F238/1F2F7DC4757FD01E85256F890068E6E0?OpenDocument |archive-url=https://web.archive.org/web/20070404123503/http://domino.american.edu/AU/media/mediarel.nsf/1D265343BDC2189785256B810071F238/1F2F7DC4757FD01E85256F890068E6E0?OpenDocument |archive-date=April 4, 2007 |access-date=March 21, 2007 |publisher=AU Washington College of Law}}</ref><ref>{{Cite news |last=Pearlstein |first=Deborah |date=April 5, 2005 |title=Who's Afraid of International Law |url=https://prospect.org/article/afraid-international-law/ |access-date=October 6, 2023 |work=American Prospect Online}}</ref><ref>''[[Roper v. Simmons]]'', {{ussc|543|551|2005}}; ''[[Lawrence v. Texas]]'', {{ussc|539|558|2003}}; ''[[Atkins v. Virginia]]'', {{ussc|536|304|2002}}.</ref> Breyer is also recognized as deferential to the interests of law enforcement and to legislative judgments in the Court's [[First Amendment to the United States Constitution|First Amendment]] rulings. He demonstrated a consistent pattern of deference to Congress, voting to overturn congressional legislation at a lower rate than any other Justice since 1994.<ref>{{Cite news |last1=Gewirtz |first1=Paul |last2=Golder |first2=Chad |date=July 6, 2005 |title=So Who Are the Activists? |url=https://www.nytimes.com/2005/07/06/opinion/06gewirtz.html |url-status=live |archive-url=https://web.archive.org/web/20080307225205/http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html |archive-date=March 7, 2008 |access-date=March 23, 2007 |work=The New York Times}}</ref>

Breyer's extensive experience in [[administrative law]] is accompanied by his staunch defense of the [[Federal Sentencing Guidelines]]. He rejects the strict interpretation of the [[Sixth Amendment to the United States Constitution|Sixth Amendment]] espoused by [[Antonin Scalia|Justice Scalia]] that all facts necessary to criminal punishment must be submitted to a jury and proved beyond a reasonable doubt.<ref>''[[Blakely v. Washington]]'', {{ussc|542|296|2004}}.</ref> In many other areas on the Court, too, Breyer's pragmatism was considered the intellectual counterweight to Scalia's [[textualism|textualist]] philosophy.<ref>{{Cite news |last=Sullivan |first=Kathleen M. |date=February 5, 2006 |title=Consent of the Governed |url=https://www.nytimes.com/2006/02/05/books/review/05sullivan.html |url-status=live |archive-url=https://web.archive.org/web/20151229082108/http://www.nytimes.com/2006/02/05/books/review/05sullivan.html |archive-date=December 29, 2015 |access-date=February 18, 2017 |work=The New York Times}}</ref>

In describing his interpretive philosophy, Breyer has sometimes noted his use of six interpretive tools: text, history, tradition, precedent, the purpose of a statute, and the consequences of competing interpretations.<ref>{{Cite news |last=Lithwick |first=Dalia |date=December 6, 2006 |title=Justice Grover Versus Justice Oscar |url=http://www.slate.com/id/2154993/ |url-status=live |archive-url=https://web.archive.org/web/20070303154406/http://www.slate.com/id/2154993/ |archive-date=March 3, 2007 |access-date=March 19, 2007 |work=Slate}}</ref> He has noted that only the last two differentiate him from textualists such as Scalia. Breyer argues that these sources are necessary, however, and in the former case (purpose), can in fact provide greater objectivity in legal interpretation than looking merely at what is often ambiguous statutory text.<ref>{{Cite news |date=September 30, 2005 |title=Interview with Nina Totenberg |url=https://www.npr.org/templates/story/story.php?storyId=4929668 |url-status=live |archive-url=https://web.archive.org/web/20070214061347/http://www.npr.org/templates/story/story.php?storyId=4929668 |archive-date=February 14, 2007 |access-date=March 19, 2007 |publisher=NPR}}</ref> With the latter (consequences), Breyer argues that considering the impact of legal interpretations is a further way of ensuring consistency with a law's intended purpose.<ref name="115 YALE L.J. 1719" />

===''Active Liberty''===
[[File:Stephen Breyer (cropped).jpg|thumb|Breyer in 2011]]

Breyer expounded his judicial philosophy in 2005 in ''[[Active Liberty|Active Liberty: Interpreting Our Democratic Constitution]]''. In it, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings fit those purposes. The book is considered a response to the 1997 book ''A Matter of Interpretation'', in which [[Antonin Scalia]] emphasized adherence to the original meaning of the text alone.<ref name="Wittes2005" /><ref>{{Cite news |last=Feeney |first=Mark |date=October 3, 2005 |title=Author in the Court: Justice Stephen Breyer's New Book Reflects His Practical Approach to the Law |url=http://archive.boston.com/ae/books/articles/2005/10/03/author_in_the_court/ |url-status=live |archive-url=https://web.archive.org/web/20171226131035/http://archive.boston.com/ae/books/articles/2005/10/03/author_in_the_court/ |archive-date=December 26, 2017 |access-date=December 26, 2017 |work=[[The Boston Globe]]}}</ref>

In ''Active Liberty'', Breyer argues that the [[Founding Fathers of the United States|Framers of the Constitution]] sought to establish a democratic government involving the maximum liberty for its citizens. Breyer refers to [[Isaiah Berlin]]'s ''Two Concepts of Liberty''. The first Berlinian concept, being what most people understand by liberty, is "freedom from government coercion". Berlin termed this "[[negative liberty]]" and warned against its diminution; Breyer calls this "modern liberty". The second Berlinian concept—"[[positive liberty]]"—is the "freedom to participate in the government". In Breyer's terminology, this is the "active liberty" the judge should champion. Having established what "active liberty" is, and positing the primary importance (to the Framers) of this concept over the competing idea of "negative liberty", Breyer makes a predominantly [[utilitarian]] case for rulings that give effect to the [[Original intent|democratic intentions]] of the [[United States Constitution|Constitution]].{{citation needed|date=August 2022}}

The book's historical premises and practical prescriptions have been challenged. For example, according to [[Peter Berkowitz]],<ref>{{Cite web |last=Berkowitz |first=Peter |title=Democratizing the Constitution |url=http://www.peterberkowitz.com/democratizingtheconstitution.pdf |url-status=live |archive-url=https://web.archive.org/web/20071128141817/http://www.peterberkowitz.com/democratizingtheconstitution.pdf |archive-date=November 28, 2007 |access-date=October 26, 2007}}</ref> the reason that "[t]he primarily democratic nature of the Constitution's governmental structure has not always seemed obvious", as Breyer puts it, is "because it's not true, at least in Breyer's sense, that the Constitution elevates active liberty above modern [negative] liberty". Breyer's position "demonstrates not fidelity to the Constitution", Berkowitz argues, "but rather a determination to rewrite the Constitution's priorities". Berkowitz suggests that Breyer is also inconsistent in failing to apply this standard to the issue of abortion, instead preferring decisions "that protect women's modern liberty, which remove controversial issues from democratic discourse". Failing to answer the [[Textualism|textualist]] charge that the [[Living Constitution|Living Documentarian]] judge is a law unto himself, Berkowitz argues that ''Active Liberty'' "suggests that when necessary, instead of choosing the consequence that serves what he regards as the Constitution's leading purpose, Breyer will determine the Constitution's leading purpose on the basis of the consequence that he prefers to vindicate".{{citation needed|date=August 2022}}

Against the last charge, Cass Sunstein has defended Breyer, noting that of the nine justices on the Rehnquist Court, Breyer had the highest percentage of votes to uphold acts of Congress and also to defer to the decision of the [[Executive branch of the United States|executive branch]].<ref>Sunstein, pg. 7, citing Lori Ringhand, "Judicial Activism and the Rehnquist Court", available on ssrn.com and Cass R. Sunstein and Thomas Miles, "[https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?httpsredir=1&article=2663&context=journal_articles Do Judges Make Regulatory Policy? An Empirical investigation of Chevron] {{Webarchive|url=https://web.archive.org/web/20171226131026/https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?httpsredir=1&article=2663&context=journal_articles |date=December 26, 2017 }}", ''University of Chicago Law Review'' 823 (2006).</ref> However, according to [[Jeffrey Toobin]] in ''[[The New Yorker]]'', "Breyer concedes that a judicial approach based on 'active liberty' will not yield solutions to every constitutional debate", and that, in Breyer's words, "respecting the democratic process does not mean you abdicate your role of enforcing the limits in the Constitution, whether in the Bill of Rights or in separation of powers."<ref name="toobin">{{Cite magazine |last=Toobin |first=Jeffrey |date=October 31, 2005 |title=Breyer's Big Idea |url=https://www.newyorker.com/archive/2005/10/31/051031fa_fact?currentPage=1 |url-status=live |archive-url=https://web.archive.org/web/20140317153814/http://www.newyorker.com/archive/2005/10/31/051031fa_fact?currentPage=1 |archive-date=March 17, 2014 |access-date=February 18, 2020 |magazine=[[The New Yorker]]}}</ref>

To this point, and from a discussion at the [[New York Historical Society]] in March 2006, Breyer has noted that "democratic means" did not bring about an end to [[slavery]], or the concept of "one man, one vote", and it is the concept of universal suffrage that allowed corrupt and discriminatory (but democratically inspired) state laws to be overturned in favor of [[civil rights]].<ref name="NYHS">{{Cite web |last=Pakaluk |first=Maximilian |date=March 13, 2006 |title=Chambered in a 'Democratic Space'. Justice Breyer explains his Constitution |url=http://www.nationalreview.com/comment/pakaluk_200603130802.asp |url-status=dead |archive-url=https://web.archive.org/web/20060318104617/http://www.nationalreview.com/comment/pakaluk_200603130802.asp |archive-date=March 18, 2006 |access-date=October 31, 2007 |website=National Review}}</ref>

===Other books===
In 2010, Breyer published a second book, ''Making Our Democracy Work: A Judge's View''.<ref>({{ISBN|978-0307269911}}); {{Cite news |last=Fontana |first=David |date=October 3, 2005 |title=Stephen Breyer's 'Making Democracy Work', reviewed by David Fontana |url=https://www.washingtonpost.com/wp-dyn/content/article/2010/10/01/AR2010100103520.html |url-status=live |archive-url=https://web.archive.org/web/20101106030604/http://www.washingtonpost.com/wp-dyn/content/article/2010/10/01/AR2010100103520.html |archive-date=November 6, 2010 |access-date=October 8, 2010 |newspaper=The Washington Post}}</ref> In it, he argues that judges have six tools they can use to determine a legal provision's proper meaning: (1) its text; (2) its historical context; (3) [[precedent]]; (4) tradition; (5) its purpose; and (6) the consequences of potential interpretations.<ref>{{Cite book |last=Breyer |first=Stephen |title=Making Our Democracy Work: A Judge's View |year=2010 |page=74}}</ref> [[Textualists]], like [[Scalia]], only feel comfortable using the first four of these tools; while pragmatists, like Breyer, believe that "purpose" and "consequences" are ''particularly'' important interpretative tools.<ref>{{Cite AV media |url=https://fedsoc.org/commentary/videos/a-conversation-on-the-constitution-with-supreme-court-justices-stephen-breyer-and-antonin-scalia-event-audio |title=A conversation on the constitution: perspectives from Active Liberty and A Matter of Interpretation |date=December 5, 2006 |type=Video |publisher=The American Constitution Society; The Federalist Society |place=Capital Hilton Ballroom – Washington, D.C. |people=Stephen Breyer, Antonin Scalia, Jan Crawford Greenburg (moderator)}}</ref>

Breyer cites several watershed moments in Supreme Court history to show why the consequences of a particular ruling should always be in a judge's mind. He notes that [[President Jackson]] ignored the Court's ruling in ''[[Worcester v. Georgia]]'', which led to the [[Trail of Tears]] and severely weakened the Court's authority.<ref name="Shesol">{{Cite news |last=Shesol |first=Jeff |date=September 17, 2010 |title=Evolving Circumstances, Enduring Values |url=https://www.nytimes.com/2010/09/19/books/review/Shesol-t.html?pagewanted=all&mcubz=0 |archive-url=https://web.archive.org/web/20171226182345/http://www.nytimes.com/2010/09/19/books/review/Shesol-t.html?pagewanted=all&mcubz=0 |archive-date=December 26, 2017 |work=The New York Times}}</ref> He also cites the ''[[Dred Scott]]'' decision, an important precursor to the [[American Civil War]].<ref name="Shesol" /> When the Court ignores the consequences of its decisions, Breyer argues, it can lead to devastating and destabilizing outcomes.<ref name="Shesol" />

In 2015, Breyer released a third book, ''The Court and the World: American Law and the New Global Realities'', examining the interplay between U.S. and international law and how the realities of a globalized world need to be considered in U.S. cases.<ref>{{Cite news |last=Witt |first=John Fabian |date=September 14, 2015 |title=Stephen Breyer's 'The Court and the World' |url=https://www.nytimes.com/2015/09/20/books/review/stephen-breyers-the-court-and-the-world.html |url-status=live |archive-url=https://web.archive.org/web/20160825072412/http://www.nytimes.com/2015/09/20/books/review/stephen-breyers-the-court-and-the-world.html |archive-date=August 25, 2016 |access-date=February 18, 2017 |work=The New York Times}}</ref><ref>{{Cite web |title=The Court and the World: American Law and the New Global Realities |url=http://www.penguinrandomhouse.com/books/253016/the-court-and-the-world-by-stephen-breyer/ |url-status=live |archive-url=https://web.archive.org/web/20151118112408/http://www.penguinrandomhouse.com/books/253016/the-court-and-the-world-by-stephen-breyer/ |archive-date=November 18, 2015 |access-date=October 27, 2015 |publisher=Penguin Random House}}</ref>

On March 26, 2024, Breyer released a fourth book, ''Reading the Constitution: Why I Chose Pragmatism, Not Textualism''. In an interview about the book, he said that textualism, a judicial philosophy conservative justices favor, "will not help achieve the goals of those who write statutes or those who wrote and adopted the Constitution" and is doomed to fail.<ref>{{Cite web|url=https://www.politico.com/news/magazine/2024/03/26/stephen-breyer-supreme-court-interview-00148948|title=A Supreme Court Justice Sounds a Warning|website=Politico|date=March 26, 2024|access-date=March 27, 2024}}</ref>

===Other views===
In an interview on ''[[Fox News Sunday]]'' on December 12, 2010, Breyer said that based on the values and the historical record, the [[Founding Fathers of the United States]] never intended guns to go unregulated and that history supports his and the other dissenters' views in ''[[District of Columbia v. Heller]]''. He summarized:

{{Blockquote|We're acting as judges. If we're going to decide everything on the basis of history—by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns? Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have a gun.<ref>{{Cite news |date=December 12, 2010 |title=Breyer: Founding Fathers Would Have Allowed Restrictions on Guns |url=https://www.foxnews.com/politics/breyer-founding-fathers-would-have-allowed-restrictions-on-guns/ |url-status=live |archive-url=https://web.archive.org/web/20110513210354/http://www.foxnews.com/politics/2010/12/12/breyer-founding-fathers-allowed-restrictions-guns/#content |archive-date=May 13, 2011 |access-date=April 2, 2011 |publisher=Fox News}}</ref>}}

In the wake of the controversy over Justice [[Samuel Alito]]'s [[2010 State of the Union Address#Supreme Court Justices' response|reaction]] to President [[Barack Obama]]'s [[Citizens United v. FEC#Opposition|criticism]] of the Court's ''[[Citizens United v. FEC]]'' ruling in his [[2010 State of the Union Address]],<ref>{{Cite news |last=Nagraj |first=Neil |date=January 28, 2010 |title=Justice Alito mouths 'not true' when Obama blasts Supreme Court ruling in State of the Union address |url=http://www.nydailynews.com/news/politics/2010/01/28/2010-01-28_justice_alito_mouths_not_true_when_obama_blasts_supreme_court_ruling_in_state_of.html |url-status=live |archive-url=https://web.archive.org/web/20100131145816/http://www.nydailynews.com/news/politics/2010/01/28/2010-01-28_justice_alito_mouths_not_true_when_obama_blasts_supreme_court_ruling_in_state_of.html |archive-date=January 31, 2010 |access-date=December 13, 2010 |work=[[Daily News (New York)|Daily News]] |location=New York}}</ref> Breyer said he would continue to attend the address:

{{Blockquote|I think it's very, very, very important—very important—for us to show up at that State of the Union, because people today are more and more visual. What [people] see in front of them at the State of the Union is that federal government. And I would like them to see the judges too, because federal judges are also a part of that government.<ref>{{Cite news |last=Blake |first=Aaron |date=December 12, 2010 |title=Justice Breyer: I'll go to State of the Union |url=http://voices.washingtonpost.com/44/2010/12/breyer-ill-go-to-state-of-the.html |url-status=dead |archive-url=https://web.archive.org/web/20111203215727/http://voices.washingtonpost.com/44/2010/12/breyer-ill-go-to-state-of-the.html |archive-date=December 3, 2011 |access-date=December 13, 2010 |newspaper=The Washington Post}}</ref>}}

===Honors===
Breyer was elected to the [[American Philosophical Society]] in 2004.<ref>{{Cite web |title=APS Member History |url=https://search.amphilsoc.org/memhist/search?creator=Stephen+Breyer&title=&subject=&subdiv=&mem=&year=&year-max=&dead=&keyword=&smode=advanced |url-status=live |archive-url=https://web.archive.org/web/20210609165052/https://search.amphilsoc.org/memhist/search?creator=Stephen+Breyer&title=&subject=&subdiv=&mem=&year=&year-max=&dead=&keyword=&smode=advanced |archive-date=June 9, 2021 |access-date=June 9, 2021 |website=search.amphilsoc.org}}</ref> In 2007, Breyer was honored with the [[Distinguished Eagle Scout Award]] by the [[Boy Scouts of America]].<ref name="breyerDE">{{Cite journal |year=2007 |title=Distinguished Eagle Scout Award |url=http://www.scoutingmagazine.org/issues/0711/d-news.html |url-status=live |journal=Scouting |issue=November&nbsp;– December 2007 |page=10 |archive-url=https://web.archive.org/web/20071118092306/http://www.scoutingmagazine.org/issues/0711/d-news.html |archive-date=November 18, 2007 |access-date=November 1, 2007}}</ref> In 2018, he was named to chair of the [[Pritzker Architecture Prize]] jury, succeeding previous chair [[Glenn Murcutt]].<ref>{{Cite web |title=U.S. Supreme Court Justice Stephen Breyer Named Chair of Pritzker Architecture Prize Jury |url=https://www.architectmagazine.com/awards/u-s-supreme-court-justice-stephen-breyer-named-chair-of-pritzker-architecture-prize-jury_o |url-status=live |archive-url=https://web.archive.org/web/20210515151156/https://www.architectmagazine.com/awards/u-s-supreme-court-justice-stephen-breyer-named-chair-of-pritzker-architecture-prize-jury_o |archive-date=May 15, 2021 |access-date=March 5, 2019 |website=Architect Magazine|date=August 16, 2018 }}</ref>