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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 Union.

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 author.

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 Supreme Court.

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 overcrowding.

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 reinstated.

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.

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