Supreme Court Review 2016/2017 TERM
SUNDAY, MARCH 26, 2017

THE JUSTICES OF THE UNITED STATES SUPREME COURT

They are called "Justices" not "Judges" to differentiate themselves from lower court judges

Justice Stephen Breyer was appointed to the Supreme Court by President Clinton in 1994 to replace retiring justice Harry Blackmun. Before his nomination to the Supreme Court, Breyer spent 14 years as a judge on the United States Court of Appeals for the First Circuit (four of those years as Chief Judge), 27 years as a Harvard Law professor specializing in administrative law, and was a key player in the formulation of the Federal Sentencing Guidelines.

Justice Breyer is a justice of interesting contrasts. Although Justice Breyer was brought up in a Jewish middle-class family, his daughter, Chloe, is an Episcopal priest and he is married to the daughter of a British lord. He is sometimes portrayed and criticized as being dry, impersonal and elitist, yet unlike many of his colleagues on the Court he lives a more public life, appearing on TV and radio shows, such as Larry King, Good Morning America, and NPR radio's quiz show, Wait, Wait Don't Tell Me. During his term as a Supreme Court Justice, he has published two books explaining his views on the role of the Supreme Court in the lives of every day Americans and his understanding of the Constitution as a "living constitution," which, he argues, should be interpreted and applied so as to assist, not hinder, progress in an ever-changing world.

Life Before the Court
Stephen Gerald Breyer was born on August 15, 1938 to a middle-class family in San Francisco, California. Breyer's father was a lawyer and legal counsel for the San Francisco Board of Education, while his mother spent most of her time volunteering for the San Francisco Democratic Party and for the League of Women voters. His family sent him and his brother, Charles, to a religious school as a child, although the family did not observe the Jewish faith strictly. He and his brother were both boy scouts as children and Breyer earned the honor of Eagle Scout by the age of 12. Breyer's intellect even as a child was apparent, earning the nickname of "Troop Brain" among his fellow boyscouts.

Both Breyer and his brother Charles (a former defense attorney and federal district court judge in California) attended Lowell high School in San Francisco, a prestigious public magnet school. In high school, Stephen Breyer was a member of the debate team where he competed against a young Jerry Brown, who would one day grow up to be the Governor of California. His debate coach recognized Stephen's talents early on. His coach said that Breyer would do copious research on debate topics while other kids were out "you know, doing things like stealing hubcaps." Stephen Breyer left high school with one B and the rest straight A's and was voted "most likely to succeed" when he graduated from high school in 1955.

Breyer was accepted to both Stanford University and Harvard, and even though he preferred the later, his mother, who feared he would become too "bookish" persuaded him to attend Stanford. Despite a "bookish" reputation, at one point during his college experience he was arrested for underage drinking. He graduated Phi Beta Kappa from Standford in 1959.

Breyer then attended Oxford University as a Marshall Scholar, graduating with 1st class honors two years later. He went on to law school at Harvard University from 1961 to 1964 where he became an editor of the Harvard Law Review and graduated magna cum laude.

Legal Career
Breyer's first law job out of law school was clerking for Supreme Court Justice Arthur Goldberg. During his clerkship, he helped draft Justice Goldberg's concurring opinion in the landmark privacy case Griswold v. Connecticut. Griswold held that the U.S. Constitution includes "penumbral rights of 'privacy and repose'" which encompass a married couple's right to contraceptives. The case involved a Connecticut law that prohibited the use of contraceptives, even between married couples. By a vote of 7–2, the Supreme Court invalidated the law on the grounds that it violated the "right to marital privacy." The right to privacy is not specifically mentioned in the Constitution, but Breyer helped work on the first draft of Goldberg's concurring opinion that found a right to privacy in the 9th amendment's command that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

After his Supreme Court clerkship, Breyer became a special assistant to the U.S. Assistant Attorney General for Antitrust until 1967, when he became a professor at Harvard Law School. Also, in 1967, he met his future wife, Joanna Hare, who is the daughter of Lord John Blakenham of England, who at that time of their meeting was the leader of the Conservative Party in England. They married in England in an Anglican ceremony for which, because Breyer is Jewish, references to Jesus Christ were carefully edited out.

At Harvard, Breyer became a leading expert on administrative law where he wrote two highly influential books on regulation. In 1973, Breyer worked briefly for Archibald Cox, the special prosecutor on the Watergate Special Prosecution force. Following this, he worked as special counsel and then chief counsel to the U.S. Senate Committee on the Judiciary, where he worked closely with Senator Kennedy on airline deregulation, resulting in the Airline Deregulation Act that closed the Civil Aeronautics Board.

Federal Judgeship
In 1980, Jimmy Carter appointed Breyer to a judgeship on the United States Court of Appeals for the First Circuit, where he served as a judge for ten years and the court's Chief Judge for four years from 1990 to 1994. In the 1980s, he was also a member of the U.S. Sentencing Commission, helping to promulgate the Federal Sentencing Guidelines.  The Guidelines sought to make federal sentences more uniform and less arbitrary by recommending sentences criminals convicted in federal courts should receive based on factors such as the seriousness of the crime and the prior criminal history of the defendant.

Supreme Court Appointment
In 1993, President Bill Clinton considered Stephen Breyer for a seat on the Supreme Court being vacated by retiring justice Byron White. Around that time, Breyer was hit by a car while riding his bicycle and wound up with broken ribs and a punctured lung. Ultimately, Clinton chose Ruth Bader Ginsburg instead. It was reported that Clinton did not chose Breyer because Clinton found Breyer dry and unfriendly.

A year later, however, Clinton reconsidered Breyer and ultimately chose him when Justice Harry Blackmun retired from the Supreme Court. Breyer supporters had convinced Clinton that he had misjudged Breyer and urged Clinton to give him another chance. After Breyer was selected by President Clinton, Breyer joked, "I'm glad I didn't bring my bicycle down."

At the time of his nomination, Breyer was perceived as a consensus-builder (who had worked across party lines as counsel to the U.S. Senate Judiciary Committee), a technocrat (an expert and published academic in the field of administrative law) and a moderate liberal (who strived on the First Circuit to produce unanimous decisions by finding common ground). Breyer won a unanimous endorsement from the Senate Judiciary Committee. He ultimately was confirmed by the Senate 87-9 and took office in August 1994.

Breyer's Jurisprudence
Breyer is generally associated with the more liberal side of the Court and is known for his pragmatic approach to constitutional law. In his 2005 book Active Liberty Breyer argued that the judiciary should seek to resolve issues to encourage active participation by the people in creating public policy.

In contrast to Justice Scalia, who as an originalist views the Constitution and its amendments as a steadfast document to be interpreted the way the original framers of the language intended it, Breyer believes the Consitution to be a "living document" that was written using broad language so that it could be interpreted to fit the needs of a changing country. Breyer believes that it is the duty of the Supreme Court to apply the Constitution's values to modern circumstances. Breyer once explained, "Much in the Constitution is written in a very general way. Words like 'freedom of speech' do not define themselves. Nor does the word 'liberty.' And what the framers intended with these basic values in a document was that they would last for hundreds of years."

In his most recent book, Making Our Democracy Work, Breyer writes that the Court can carry out its constitutional responsibility by applying the Constitution's enduring values to changing circumstances. He writes:

In carrying out this basic interpretative task, the Court must thoughtfully employ a set of traditional legal tools in service of a pragmatic approach to interpreting the law. It must understand that its actions have real-world consequences. And it must recognize and respect the roles of other governmental institutions. By taking account of its own experience and expertise as well as those of other institutions, the Court can help make the law work more effectively and thereby better achieve the Constitution's basic objective of creating a workable democratic government.

He reflected on all these themes in an interview on NPR's Fresh Air, in which he pontificated on the Dred Scott Decision:

The worst case ever decided [was] where the Supreme Court said the descendant of a slave was not a citizen nor a person who could sue in the United States even if he became free — that was a terrible decision. And the only justification I've ever heard for it was that Roger Taney, the chief justice, and the majority thought that by deciding that, they would avoid the Civil War. It happened the opposite way. They fed the flames of the Civil War. ... The lesson, in part, is that judges are not very good politicians. And if you want people to decide politically, you better let Congress decide. Not the judges — we're in an institution that is to be there in order to protect people who might be very unpopular.

A Dissent in Bush v. Gore
One of Justice Breyer's most impassioned dissents was issued in the controversial case of Bush v. Gore, wherein the Court effectively decided the presidential election of 2000 by holding that the Florida Supreme Court's method for recounting ballots was a violation of the Equal Protection Clause and that no alternative method could be established in time—permitting Florida Secretary of State Katherine Harris's previous certification of George W. Bush as the winner to stand. Using unusually strong language for a Breyer opinion, he wrote, "the Court was wrong to take this case."

Breyer compared the case with the historical experience of the disputed election of 1876 where a virtual tie between Rutherford B. Hayes and Samuel J. Tilden led Congress to appoint an electoral commission composed of five Senators, five Representatives, and five Supreme Court Justices. When the commission split evenly along party lines, the deciding vote was put in the hands of Supreme Court Justice Joseph P. Bradley, who awarded the electoral votes to Hayes. Afterwords, Justice Breyer explained:

Justice Bradley immediately became the subject of vociferous attacks. Bradley was accused of accepting bribes, of being captured by railroad interests, and of an eleventh-hour change in position after a night in which his house "was surrounded by the carriages" of Republican partisans and railroad officials. . . . For present purposes, the relevance of this history lies in the fact that the participation in the work of the electoral commission by five Justices, including Justice Bradley, did not lend that process legitimacy. Nor did it assure the public that the process had worked fairly, guided by the law. Rather, it simply embroiled Members of the Court in partisan conflict, thereby undermining respect for the judicial process.

Breyer further explained that both the Twelfth Amendment and the Electoral Count Act, passed after and in response to the 1876 election, made clear that it is Congress that is chiefly responsible for resolving electoral disputes. Breyer concluded:

However awkward or difficult it may be for Congress to resolve difficult electoral disputes, Congress, being a political body, expresses the people's will far more accurately than does an unelected Court. And the people's will is what elections are about. . . . [Public confidence] is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. . . . [W]e do risk a self-inflicted wound—a wound that may harm not just the Court, but the Nation.

Opinions in Controversial Cases
Breyer has never been shy to expose himself to controversy and has authored opinions in many of the most controversial decisions of his time.

Gun Rights
Justice Breyer authored a 44 page dissent in the landmark case of District of Columbia v. Heller, wherein the Court held that the Second Amendment protects the right to keep and bear firearms for the purpose of self-defense and struck down a D.C. regulation that banned gun ownership. The law at issue in Heller banned handgun possession within the District of Columbia by generally prohibiting the registration of handguns and required residents who did possess a lawful handgun to keep them dissembled or bound by a trigger lock or similar device. A D. C. special policeman, Dick Heller, applied to register a handgun he wished to keep at home, but the District of Columbia refused. He filed suit seeking, on Second Amendment grounds, to enjoin the City from enforcing both the ban on handgun registration and the trigger-lock requirement insofar as it prohibited the use of functional firearms in the home.

Justice Scalia writing for a 5-justice majority held that the law was unconstitutional because the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home. Justice Scalia explains that one of the purposes of the Second Amendment was to "deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved."

Justice Scalia is careful to point out, however, that the individual right to own a gun is not unlimited. Rather, it is limited to weapons of the type commonly used for self-defense at the time of the Second Amendment, including handguns, and to home use. Justice Scalia writes, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Justice Scalia also noted, "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

In a dissenting opinion authored by Justice Stevens and joined by the other dissenting justices (including Breyer), Justice Stevens argued that while the Second Amendment protects both a "collective right" and an "individual right" the scope of the right protected is "limited to the right of the people of each of the several States to maintain a well-regulated militia." Justice Stevens writes:

[The Second Amendment] was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

In a second dissenting opinion authored by Justice Breyer and joined by the three other dissenting justices, Justice Breyer argues that even assuming that the Second Amendment does protect a self-defense interest of individuals that does not preclude a legislature from finding that curtailing gun ownership will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime. Justice Breyer wrote:

The law is tailored to the urban crime problem in that it is local in scope and thus affects only a geographic area both limited in size and entirely urban; the law concerns handguns, which are specially linked to urban gun deaths and injuries, and which are the overwhelmingly favorite weapon of armed criminals; and at the same time, the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted.

Justice Breyer counters Justice Scalia's historical argument, by pointing to several statutes, including an 18th Century Boston law which imposed a fine upon "any Person" who "shall take into any Dwelling-House, Stable, Barn, Out-house, Ware-house, Store, Shop, or other Building, within the Town of Boston, any … Fire-Arm, loaded with, or having Gun-Powder."

Justice Scalia, in his majority, responds to Justice Breyer by stating that the Boston law was enacted to protect firefighters from loaded firearms in a fire and "[i]n any case, we would not stake our interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense of the home." Justice Scalia did not, however, respond in a substantive way to Justice Breyer's argument that high-crime urban areas pose a unique scenario in which a handgun ban could withstand Second Amendment scrutiny.

Prison Strip Searches
Breyer also authored the four-justice dissenting opinion in Florence v. Board of Chosen Freeholders of the County of Burlington (2012) which upheld an invasive strip search of prison inmates when they are entering the general prison population even where there is no reason to suspect that the person being subject to the strip search might be carrying drugs or other contraband. Justice Breyer's dissenting opinion began by describing a strip search set forth in a prison manual:

[A] visual inspection of the inmate's naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.

Justice Breyer wrote:

In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an "unreasonable searc[h]" forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband.

Abortion
Justice Breyer has supported a broad abortion right, authoring the 5-4 majority opinion in Sternberg v. Carhart (2000), which struck down a Nebraska statute criminalizing the performance of "partial birth abortion[s]" in the state. Sternberg was effectively overruled seven years later in Gonzales v. Carhart (2007) with Justice Breyer now in the dissent. Justice Breyer joined justice Ginsburg's dissenting opinion, wherein she states: "Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health."

Affirmative Action
Although Justice Breyer has yet to discuss his position on affirmative action in a Supreme Court case (voting with O'Connor in Grutter v. Bollinger (2003) but not writing separately to explain his views), he discusses affirmative action in his 2005 book Active Liberty. Breyer states that his views on the subject are not driven by the practice of affirmative action as a remedy to overcome the effects of past discrimination or the contributions it would make in producing more diverse student bodies, rather he believes that it is "necessary to maintain a well-functioning participatory democracy." He quotes a portion of Grutter that best embodies his belief:

Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized . . . {Indeed,] the path to leadership [must] be visibly open to talented and qualified individuals of every race and ethnicity.

In 2012, the Court granted certiorari to its first affirmative action case since Grutter in 2003 and Justice Breyer will likely take this opportunity to make his views on affirmative action known. The case is Fisher v. University of Texas at Austin (11-345) and concerns the question of whether race may be used as a factor in college admissions.

Unique Positions
Justice Breyer has taken several jurisprudential positions that are unique on the Court, occasionally winning a supporter, but often requiring him to proceed on his own.

Copyright Law
In 1970, for instance, Breyer wrote an influential law review article in the Harvard Law Review entitled "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs," which argues that there is little justification for the expansions in the scope and duration of copyright since it is unlikely to promote an increase in the volume of literary production. Breyer had the opportunity to apply this limiting theory of copyright power in the case of Golan v. Holder (2012).

In Golan, the plaintiffs, who included orchestra conductors, educators, performers, publishers, film archivists, and motion picture distributors sued the Attorney General challenging section 514 of the Uruguay Round Agreements Act, signed into law by President Clinton in 1994, for removing millions of published foreign works from the public domain, which they had come to rely on for their livelihoods.

In a 6-2 decision, with Justice Kagan recused, the Supreme Court held that section 514 was valid and did not offend the Copyright Clause or the First Amendment of the Constitution. Justice Ginsburg authored the majority opinion for the Court explaining that nothing in the Copyright clause prevents removal of works from the public domain or that the copyright power exists only to promote new works. Rather, the Copyright Clause allows Congress to grant authors copyrights for "limited Times." Justice Ginsburg made clear that the public domain is not untouchable and that just because a work is in the public domain does not mean that the ownership right of the work has vested in the public.

Justice Breyer joined by Justice Alito dissented, stating that the Copyright Clause of the Constitution reads that Congress shall have the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" but that Congress, here, had not tied section 514 to a promotion of learning and knowledge and therefore had no constitutional authorization to engage its copyright power. Breyer also argued that a rule that requires works that fall into the public domain to remain there is a more easily administrable standard that does not leave members of the public guessing as to whether a use of a public domain work will expose them to future legal headaches. Justice Alito and Justice Breyer have agreed before where no other justice has joined (see J. McIntyre Machinery, Ltd. v. Nicastro (2011) and Nelson v. United States (2009)).

Violent Video Games
Justice Breyer filed a solo dissent to a 7-2 ruling of the Court in Brown v. Entertainment Merchants Association (2011), striking down a California statute restricting the sale or rental of violent video games to minors on the grounds that it violated the First Amendment and that California could not justify its restriction with a compelling governmental interest since California had failed to show a connection between exposure to violent video games and harmful effects on children.

Breyer in dissent argued that it makes little sense to argue that the First Amendment prohibits the sale of sexual material to minors but permits the sale of violent material. He wrote:

But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13­ year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?

He further argued that in a society where 5.3 million grade-school age children of working parents are routinely home alone, the state provides an important service in "supplement[ing] parents' authority to guide their children's development." Justice Breyer also disagreed with the Court's dismissal of studies that show a correlation between playing violent video games and aggression in children. Justice Breyer argued that when it comes to weighing technical facts such as these, elected legislatures are in a better position than judges to determine their value and so should be accorded deference in their judgments.

Justice Thomas filed a separate dissenting opinion arguing that the original understanding of the First Amendment did not include minors as beneficiaries of rights separate and apart from their parents.

Death Penalty
In 2011, Justice Breyer was the only justice to dissent from a denial of certiorari in a case (Valle v. Florida) involving an inmate who had been on death row for 33 years. Justice Breyer believed that "so long a period of incarceration under sentence of death" constituted cruel and unusual punishment in violation of the Eighth Amendment. He stated, "I would ask how often [a] community's sense of retribution would forcefully insist upon a death that comes only several decades after the crime was committed." While Justice Breyer acknowledges that some would argue that the delay was due to the inmate's legal challenges, Justice Breyer responds, "the argument may point instead to a more basic difficulty, namely the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed."

Statutory Interpretation
Justcie Breyer issued a lone dissent in Milner v. Department of Navy (2011) wherein an 8-1 majority of the Court held that an exemption to the Freedom of Information Act that protects from disclosure material "related solely to the internal personnel rules and practices of an agency" could not be used to deny a request for explosives data and maps used by the Department of the Navy in storing munitions at a naval base in Washington State. The Court did say, however, that there were several other exemptions that could be used.

Justice Breyer dissented noting that the a 30-year-old interpretation of exemption 2 made clear that it also covered any "predominantly internal" materials whose disclosure would "significantly ris[k] circumvention of agency regulation or statutes." Justcie Breyer argued:

[W]here that interpretation has been consistently relied upon and followed for 30 years, where Congress has taken note of that interpretation in amending other parts of the statute, where that interpretation is reasonable, where it has proved practically helpful and achieved commonsense results, where it is consistent with the FOIA's overall statutory goals, where a new and different interpretation raises serious problems of its own, and where that new interpretation would require Congress to act just to preserve a decades-long status quo, I would let sleeping legal dogs lie.

Joining His More Conservative Colleagues
Although often joining his more liberal colleagues in divided cases, Justice Breyer has abandoned these colleagues on occasion to join the more conservative justices in several important cases.

Automobile Searches
In Arizona v. Gant (2009) Justice Breyer parted ways with his more liberal colleagues, joining the four-justice dissent, in a case that reworked a bright line rule permitting a warrantless search of the passenger compartment of an automobile incident to the lawful arrest of a recent occupant. In Gant, officers discovered that Gant had a suspended license and there was an outstanding warrant for driving with a suspended license. When they saw him pull up to a home and get out of the driver's seat of the car, they called to him and approximately 10-12 feet from the car they arrested him and placed him in the back of a cop car. They subsequently conducted a warrantless search of his vehicle and found a gun and a bag of cocaine in the pocket of a jacket on the backseat.

Gant sought to suppress the evidence as the fruit of an illegal search. In Chimel v. California (1969), the Court held that police officers in the interests of officer safety and evidence preservation may conduct a search incident to an arrest of "the arrestee's person and the area 'within his immediate control.'" New York v. Belton (1981) extended the Chimel holding to automobiles, holding that when an officer lawfully arrests "the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile" and any containers therein. In Thornton v. United States (2004), the Court held that because of the need for a clear rule, it would extend the Belton rule to recent occupants of a vehicle who were approached by police just after leaving their car.

Writing for a five-justice majority in Gant, Justice Stevens joined by justices Scalia, Souter, Thomas, and Ginsburg held that police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense for which the occupant was arrested. Justice Stevens explained that "[w]hereas Belton and Thornton were arrested for drug offenses, Gant was arrested for driving with a suspended license—an offense for which police could not expect to find evidence in the passenger compartment of Gant's car." That is, Justice Stevens explained, the underlying rationales for permitting a search incident to arrest – officer safety and evidence preservation – could not be said to apply to the facts of Gant.

Justice Alito, joined by justices Roberts, Kennedy and Breyer, dissented, arguing that without saying so the Court had effective overruled the bright line rule of Belton and Thorton. Justice Breyer issued a separate dissent as well explaining that although the Belton rule is flawed since it leads to searches "divorced from its underlying Fourth Amendment rationale" and so would warrant devising a better rule if the case was one of first impression, the case was not one of first impression and the bright-line rule of Belton has been considerably relied upon since its issuance.  Therefore, Breyer would have kept the bright line rules established by Beltion and Thorton intact.

Student First Amendment Rights
Breyer also parted ways with his more liberal colleagues in Morse v. Frederick (2007), wherein a student on First Amendment grounds sued his school's principal after she suspended him for holding up a banner reading "BONG HiTS 4 JESUS" on the public street outside his high school as the Olympic Torch Relay passed by in 2002. A six-justice majority of the Court, including Justice Breyer, voted to reverse the Ninth Circuit's judgment that had found a First Amendment violation.  A five-justice majority, without Justice Breyer's endorsement, held that the school had a right to restrict speech promoting illegal drug use at a school event.

Justice Breyer, however, parted ways with his more conservative colleagues as to the reasons why. He argued that the Court should have avoided the First Amendment issue altogether and upheld the decision solely on qualified immunity grounds since the principle could not be sued for money damages unless she could be said to have violated "clearly established statutory or constitutional rights of which a reasonable person would have known," which Justice Breyer argues she did not. He further states, that he is uncomfortable with the Court's First Amendment holding that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use" because it constitutes viewpoint discrimination. Justice Breyer wondered:

What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain? What about deprecating commentary about an antidrug film shown in school? And what about drug messages mixed with other, more expressly political, content? If, for example, Frederick's banner had read "LEGALIZE BONG HiTS," he might be thought to receive protection from the majority's rule, which goes to speech "encouraging illegal drug use." But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws.

Student Fourth Amendment Rights
Justice Breyer has also voted to limit the Fourth Amendment rights of students subjected to drug testing in public schools. In Vernonia School Dist. 47J v. Acton (1995) Breyer voted to uphold the suspicionless drug testing of school athletes. And in Board of Education v. Earls (2002) Justice Breyer voted to approve of a program requiring all middle and high school students to consent to urinalysis testing for drugs in order to participate in any extracurricular activity.

In a concurring opinion in Earls, Justice Breyer accorded great weight to the fact that the school district had held public hearings on the matter. Justice Breyer wrote:

When trying to resolve this kind of close question involving the interpretation of constitutional values, I believe it important that the school board provided an opportunity for the airing of these differences at public meetings designed to give the entire community "the opportunity to be able to participate" in developing the drug policy. The board used this democratic, participatory process to uncover and to resolve differences, giving weight to the fact that the process, in this instance, revealed little, if any, objection to the proposed testing program.

Protecting Children from Sexually Explicit Material
Breyer joined his more conservative colleagues in dissent in United States v. Playboy Entertainment Group, Inc. (2000), which struck down on First Amendment grounds a federal statute requiring cable television operators with channels "primarily dedicated to sexually-oriented programming" either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children are unlikely to be viewing (between 10 p.m. and 6 a.m.). The majority held that the government had failed to prove that the existing voluntary system of blocking these channels was not adequate.

Justice Breyer, joined by justices Rehnquist and O'Connor in dissent, wrote: "Where over 28 million school age children have both parents or their only parent in the work force, where at least 5 million children are left alone at home without supervision each week, and where children may spend afternoons and evenings watching television outside of the home with friends, [the federal statute] offers independent protection for a large number of families."

Breyer also joined his more conservative colleagues in dissent in Ashcroft v. ACLU (2004), wherein the majority enjoined enforcement of the Child Online Protection Act (COPA), which made it a crime to knowingly post, for "commercial purposes," World Wide Web content that is "harmful to minors," without restricting access to prohibited materials by "requiring use of a credit card" or "any other reasonable measures that are feasible under available technology."  The majority believed that filtering software, which parents were free to use, offered a better option than chilling speech and criminalizing First Amendment conduct.  Justice Breyer wrote that filtering software was not an adequate alternative since it (1) requires parents that knows how to use it and children that don't know how to get around it, (2) it costs money and (3) it fails to protect children who use computers outside the family home.

Administrative Law Expertise
As the Court's unofficial resident administrative law scholar, Justice Breyer is often chosen to write opinions in cases involving questions of administrative law.

Justice Breyer authored the four-justice dissenting opinion in FCC v. Fox Television Stations, Inc. (2009), an administrative law case, in which the Supreme Court upheld the FCC's "fleeting explicative" indecency policy.

During the 2002 Billboard Music Awards, Cher exclaimed, "I've also had critics for the last 40 years saying that I was on my way out every year. Right. So fuck 'em." The unscripted single-use of the f-word made it on to live television. The following year on the 2003 Billboard Music Awards, during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox television series called "The Simple Life," Ms. Richie in an unscripted moment, stated, "Why do they even call it 'The Simple Life?' Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." Approximately 2.5 million minors witnessed each of the broadcasts.

While the FCC's indecency policy for thirty years had been that a single, non-literal use of an expletive was not actionable, in 2004 the FCC decided to change its policy, issuing an order stating that the use of fleeting explicatives at the 2002 and 2003 Billboard Music Awards was indecent (although it chose not to impose a fine because of the lack of prior notice regarding a change in its policy). Nevertheless, the networks challenged the order.

In 2006 the Second Circuit held that the FCC's indecency policy was arbitrary and capricious under the Administrative Procedures Act. The Second Circuit held that the FCC had failed to adequately explain why it had changed its nearly-30-year policy on fleeting expletives. Moreover, the Second Circuit noted that the FCC's justification for the policy – that children could be harmed by hearing even one fleeting expletive (the so-called "first blow" theory) – bore "no rational connection to the Commission's actual policy," because the FCC had not instituted a blanket ban on expletives.

In 2009, in a 5-4 decision by the Supreme Court authored by Justice Scalia, the Supreme Court reversed the Second Circuit, holding that the FCC's "fleeting expletive" policy was not arbitrary and capricious because "[t]he Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children."

Justice Breyer, joined by justices Stevens, Souter, and Ginsburg, dissented, arguing that the FCC "had failed adequately to explain why it changed its indecency policy from a policy permitting a single "fleeting use" of an expletive, to a policy that made no such exception." Justice Breyer was especially unsettled by the FCC's unilateral actions in changing the policy, rather than making the change through a notice and comment process where the networks could make their case. Justice Breyer stated that the FCC's answer to the question "'Why change?' is, 'We like the new policy better.' [And while] [t]his kind of answer, might be perfectly satisfactory were it given by an elected official, [] when given by an agency, in respect to a major change of an important policy where much more might be said, it is not sufficient."

The Court did not, however, address the networks' constitutional arguments in this case. The Court remanded the case for a discussion of those challenges. In 2011, the Court granted review to the case again after the Second Circuit found the FCC's policy impermissibly vague with a correspondent chilling effect on speech in violation of the First Amendment.  The Court, however, dodged the First Amendment question by deciding the case on narrow "fair notice" grounds, holding that the FCC had applied its indecency policy in an impermissibly vague way, but that the FCC was free to revise its policy and courts were free to decide the constitutionality of any revised policy.

Federal Sentencing Guidelines
Having been a key author and proponent of the federal sentencing guidelines, Justice Breyer is eager to participate in the jurisprudence of the Court in this area. Unfortunately, the Court has often been unresponsive to Justice Breyer's opinions on matters of federal sentencing policy.

In the one of the most influential sentencing decisions of Justice Breyer's tenure on the Court, Apprendi v. New Jersey (2000), the Court, with Justice Breyer in dissent, held that in accordance with the Sixth Amendment jury trial right "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Justice Breyer disagreed with the concept that juries, not judges, should determine the existence of those facts upon which increased punishment turns. Justice Breyer wrote: "'[A] sentencing system tailored to fit every conceivable wrinkle of each case can become unworkable and seriously compromise the certainty of punishment and its deterrent effect.' Justice Breyer remained in dissent in Blakely v. Washington (2004) which reapproved of the Apprendi rule.

In 2005, however, Justice Breyer authored a majority opinion for a divided Court in United States v. Booker, holding that a provision making the Federal Sentencing Guidelines mandatory could not comport with the Sixth Amendment's jury trial right and that while this made the guidelines advisory federal courts still had a duty to consider Guidelines ranges in fashioning an appropriate sentence. Justice Breyer's majority opinion, however, was remedial in nature since Justice Breyer disagreed with the underlying premise of the Court's decision in Apprendi.

While Justice Breyer still believes the Apprendi line of jurisprudence to be flawed, he did change his opinion, in 2002, as to whether a jury is required to vote to sentence a defendant to death. Justice Breyer changed his opinion on communitarian grounds believing it important that a jury vote on the question of death to ensue that "the community indeed believes application of the death penalty is appropriate."

Alternative Procedural Safeguards
In 2011, Justice Breyer authored the 5-4 majority opinion in Turner v. Rogers holding that while a defendant father at a civil contempt proceeding for failing to pay child support is not entitled to have an attorney provided to him, even where he is subject to incarceration, the state must provide alternative procedural safeguards to give him adequate notice of the importance of the ability to pay, a fair opportunity to present and to dispute relevant information, and express court findings as to the supporting parent's ability to comply with the support order. Although the dissenting justices (Justice Thomas, joined by Chief Justice Roberts and justices Scalia and Alito) agreed that the defendant father was not entitled to an attorney, they would not have reached the question of whether the state had to provide alternative procedural safeguards.

Consumer Protection
Justice Breyer also wrote the four-justice dissenting opinion in AT&T Mobility v. Concepcion (2011), wherein the Court approved of clauses in consumer contracts of adhesion that require consumers to litigate any claims against a company as individuals rather than as members of a class action lawsuit.

The case concerned a husband and wife who took advantage of a deal from AT&T that offered them free phones for signing up. When they received their first bill, however, it included a charge of $30.22 for sales tax based on the retail value of the phones they had received. They believed this was false advertising and filed suit in federal court against AT&T as part of a class action lawsuit by customers in similar positions. AT&T asserted the class action waiver in their customer agreement and sought to have the case dismissed. The Concepcions argued that the class action waiver was unconscionable, since by disallowing the class action mechanism AT&T would reap a windfall, firm in the knowledge that a majority of their new customers wouldn't go to the trouble to formally dispute the $30.22 charge. In fact, one study showed that fewer than 200 AT&T customers had chosen to battle AT&T through the arbitration process in a five-year period from 2003 to 2007—that was less than .0029 percent of AT&Ts customers.

In dissent, Justice Breyer wrote, "What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?" The Concepcions where left with a a catch-22: to seek reimbursement from AT&T through the arbitration process that would likely leave them worse off in terms of time and money or to simply let the matter go, leaving AT&T $30.22 richer at their expense.

Three Strikes Laws
Justice Breyer issued a dissenting opinion in Ewing v. California (2003) wherein the Court held that California's three strikes law was not a violation of the Eighth Amendment prohibition against "cruel and unusual punishment."  The Court approved of a sentence of 25 years to life for an offender whose most recent crime was stealing three golf clubs.

Justice Breyer joined by justices Stevens, Souter and Ginsburg dissented, arguing that the relevant question under the Eighth Amendment was whether the sentence imposed by California is "grossly disproportionate" to his crime. While Justice Breyer's opinion acknowledged that "[t]he offender has a criminal history that includes four felony convictions arising out of three separate burglaries (one armed)" he argued that this did not justify the "grossly disproportionate" sentence imposed here. Justice Breyer catalogued the law in every state, finding that in no other jurisdiction could a person in the defendant's position have received as harsh a sentence for the conduct at issue. The majority admitted that much of the support for California's three strikes law (Proposition 184) was due to a crime that occurred prior to enactment of the law: "On October 1, 1993, while Proposition 184 was circulating, 12-year-old Polly Klaas was kidnaped from her home in Petaluma, California. Her admitted killer, Richard Allen Davis, had a long criminal history that included two prior kidnaping convictions. Davis had served only half of his most recent sentence (16 years for kidnaping, assault, and burglary). Had Davis served his entire sentence, he would still have been in prison on the day that Polly Klaas was kidnaped."

In Conclusion

Ultimately, Breyer's approach to law as a Supreme Court Justice might best be summed up with a statement he made:

Law requires both a heart and a head, "If you don't have a heart, it becomes a sterile set of rules removed from human problems, and it won't help. If you don't have a head, there's a risk that in trying to decide a particular person's problem in a case that may look fine for that person, you cause trouble for a lot of other people, making their lives yet worse…. It's a question of balance.

Allowing room in his opinions for his heart to guide him, Justice Breyer has authored many opinions that argue for an expansion of rights for the disfavored and powerless.

Justice Breyer remains in good health and will likely be on the Court for quite a bit longer. Prior to Justice Alito joining the Court in 2005, Justice Breyer was the Court's second longest serving junior justice (29 days short of the record held by Justice Joseph Story). A 2005 study of Supreme Court decisions revealed that despite those who associate Justice Breyer with judicial activism, he is the justice most likely to vote to uphold acts of Congress and least likely to strike them down.