Any tax is a discouragement and therefore a regulation so far as it goes. ~Oliver Wendell Holmes, Jr.
ACLU NEWS RELEASE For IMMEDIATE RELEASE
July 5, 1994
NEW YORK -- In his nearly 14 years on the federal bench, Supreme
Court nominee Stephen Breyer has authored nearly 600 opinions. And
although his record cannot be easily labeled conservative or liberal,
it often shows a tendency to defer to other branches of government,
according to a report issued today by the American Civil Liberties
In a report to the ACLU National Board, the ACLU's Legal Department,
along with a team of private Washington lawyers, surveyed the
opinions that Judge Breyer has authored while on the U.S. Court of
Appeals for the First Circuit. The report does not attempt to tackle
the hundreds of opinions that Judge Breyer joined, but did not
The report found that Breyer's approach to legal decisionmaking often
focuses on the practical consequences of a court's decision.
"Sometimes," it says, "this works in favor of civil liberties
interests; other times not." And, if confirmed to replace retiring
Justice Harry Blackmun, Judge Breyer is likely to reinforce the
increasingly influential middle of the court, the report says.
As a nonpartisan organization, the ACLU almost never takes a position
on executive branch nominations. On two occasions in the ACLU's 74-
year history, the ACLU National Board has voted to oppose nominees to
the Supreme Court because they "demonstrate an approach to civil
liberties or to the function of the judiciary that is fundamentally
hostile to civil liberties." The ACLU's policy also calls on the
Senate to exercise its constitutional responsibilities by examining a
"nominee's view of the function of the judiciary and its role in
protecting civil liberties," and by requiring the "nominee to explain
and elaborate upon those views during hearings on the nomination."
"In accordance with ACLU policy, this report does not take a position
on Judge Breyer's nomination," said Nadine Strossen, ACLU President.
"Instead it presents an overview of Judge Breyer's record on crucial
civil liberties issues and is being released to educate the Senate,
as well as the public, about this aspect of his record."
A copy of the summary of the ACLU report follows.
ACLU REPORT ON THE CIVIL RIGHTS AND CIVIL LIBERTIES RECORD OF JUDGE
STEPHEN BREYER: AN OVERVIEW
This report summarizes the civil liberties and civil rights record of
Judge Stephen Breyer, who has been nominated by President Clinton to
replace Harry Blackmun as an Associate Justice of the United States
In accordance with ACLU policy, this report does not take a position
on Judge Breyer's nomination. Instead, it presents a review of Judge
Breyer's record on a range of civil rights and civil liberties
issues, and thus parallels the reports prepared by the ACLU on other
recent Supreme Court nominees.
Judge Breyer has served on the United States Court of Appeals for the
First Circuit since 1980. Prior to his service on the federal bench,
he served as chief counsel to the Senate Judiciary Committee for two
years and, before that, as a professor at Harvard Law School. He has
lectured and written on a variety of legal topics. He also served as
an original member of the Federal Sentencing Commission.
In short, Judge Breyer has had a long career in both government and
academia. He is, however, better known for his views on antitrust
and administrative law than on civil rights and civil liberties.
Although he has addressed numerous constitutional issues as a federal
judge, his opinions do not reflect an overarching judicial philosophy
that can easily be labeled as either liberal or conservative.
On close questions, Judge Breyer is generally deferential to the
executive and legislative branches of government. A notable
exception is when he believes that a case turns on the interpretation
of central provisions of a statute, in which case he is less willing
than many other federal judges to defer to the views of an
administrative agency. More broadly, his approach to legal
decisionmaking often focuses on the practical consequences of the
court's decision. Sometimes this works in favor of civil liberties
interests; other times not.
Like Justice Ginsburg, Judge Breyer has been described as a consensus
builder. If confirmed, he seems likely to reinforce the increasingly
influential middle of the Court. His opinions, thus far, do not
demonstrate the passionate commitment to individual justice that has
become Justice Blackmun's hallmark in recent years.
Indeed, one of the most striking aspects of Judge Breyer's record on
the First Circuit is the frequency with which he has ruled against
civil rights plaintiffs asserting statutory discrimination claims in
his written opinions. Many of these opinions turn on the specific
facts and the legal rationale necessarily varies depending on the
statute involved. Nevertheless, the degree to which Judge Breyer has
sided with the defendants in these cases is troubling.
On the other hand, Judge Breyer has twice upheld the Boston Police
Department's affirmative action efforts against legal challenge. In
the first case, he rejected the argument that a voluntary affirmative
action plan must be limited to the actual victims of past
discrimination. In the second case, he ruled against a
constitutional claim of reverse discrimination raised by white police
officers. He has also ruled that the federal government has an
affirmative obligation to promote the goals of the Fair Housing Act,
and that its failure to do so is judicially reviewable (although not
in a damages action).
To our knowledge, Judge Breyer has not expressed any public view on
the constitutionality of abortion. In a significant dissenting
opinion, he did argue that there was no way that plaintiffs could
show that a Massachusetts statute requiring minors seeking an
abortion to obtain either parental consent or a judicial waiver was
unconstitutional. Basing his opinion on a prior Supreme Court
decision that he broadly interpreted to support the Massachusetts
law, Judge Breyer dismissed the significance of allegations that the
judicial waiver procedure often involved a delay of several days and
could be intimidating. By contrast, before the Supreme Court's
contrary decision in Rust v. Sullivan, Judge Breyer voted to strike
down federal regulations that barred federally funded clinics from
engaging in abortion counselling.
Judge Breyer has not written any opinions on the constitutionality of
the death penalty. His opinions in the criminal law field generally
reflect prevailing Supreme Court law. However, even when Supreme
Court law is not controlling, he is deferential to the police and the
needs of law enforcement. Both on and off the bench, he has
staunchly defended the federal sentencing guidelines against charges
that they are too severe and inflexible, and lead to prison
Judge Breyer's instinct toward deference is also reflected in his
opinions concerning the free speech rights of public employees. The
Supreme Court has held that policymaking positions can be filled with
political appointees but that other government employees should not
be penalized for their political views. While accepting that test,
Judge Breyer has been reluctant to engage in an independent
evaluation of whether particular jobs involve policymaking
responsibilities. Instead, he has preferred to rely on job
descriptions developed by legislators and administrators. The result
has often been fatal to the First Amendment claims of public employee
plaintiffs. He has not hesitated, however, to strike down a broadly
worded executive order that authorized loyalty investigations. He
also invalidated a travel ban to Cuba that the Supreme Court later
In religion cases, Judge Breyer has emphasized the need to adopt a
"practical" approach that would not strike down government funding
schemes unless they confer a real and meaningful benefit on sectarian
institutions. At the same time, he has argued that pleas for
religious accommodation must take into account the state's legitimate
administrative interests. He has, however, also expressed concern
about the state pressing trivial administrative interests in the face
of sincere religious objections. In general, he seems more prepared
to defer to government decisionmakers than present doctrine would
allow, regardless of whether the claim is based on free exercise or
establishment clause grounds. Judge Breyer's limited record in the
church-state field, however, makes it difficult to draw any confident
conclusions about his ultimate views.
On access to justice issues, Judge Breyer has written in opposition
to proposals to restrict federal court jurisdiction, and his rulings
on standing and civil rights attorneys' fees have generally supported
access to federal court. However, once a case has found its way into
federal court, Judge Breyer has frequently invoked a wide assortment
of doctrines -- including ripeness, mootness, exhaustion, abstention,
and immunity -- to avoid deciding claims on their merits.
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.
* * * * * * * * * * No one connected with the 'Lectric Law Library, including Sponsors, Advertisers, & Content Providers,
necessarily Endorses, Warrants or Approves of any of its material. Also, Library content is NOT meant
to provide Specific Legal Advice, or to Solicit or Establish Any Kind of Professional-Client Relationship.