Jurisprudence

I Clerked for Justice Breyer. There’s One Thing I Hope Remains on the Court Long After He’s Gone.

U.S. Supreme Court Justice Stephen Breyer holds up a copy of the U.S. Constitution as Breyer announces he will retire at the end of the court's current term.
U.S. Supreme Court Justice Stephen Breyer holds up a copy of the U.S. Constitution as Breyer announces he will retire at the end of the court’s current term. REUTERS

During his retirement speech at the White House on Thursday , Justice Stephen Breyer directed much of his remarks to the students in the audience. A few years ago, I had the pleasure of attending a speech he gave exclusively to law students. During that speech, Breyer displayed the same characteristics that he showed yesterday, the same characteristics I have associated with the justice since I clerked for him in 2001: He was brilliant, capacious, generous, funny and so very human.

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One moment from that earlier speech stands out in my memory, when a student asked him about the growing partisanship in the United States, collegiality at the Supreme Court, and how we can foster exchange across differences of opinion. Justice Breyer got very serious, and the huge auditorium got very quiet. The justice described, as he often has, the gravity, professionalism, and collegiality with which the justices approach their collective deliberations. He emphasized the importance of simultaneously knowing one’s own mind and being open to finding real common ground, both within and beyond the court. “It’s always easy to expect the other person to agree with you,” he said at the time. What is harder, and what is absolutely essential, is to ask yourself, “How much am I prepared to listen to other people and really mean it?” There are no shortcuts, and there is no pretending. At the end of the day, the justice admonished the students, “[T]he first place to look is the mirror.”

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This is an admonition Justice Breyer lives and judges by. Underlying his sentiments is a unique Breyeresque combination of humility and confidence, of humanism and optimism, of taking both people and ideas seriously. Those values infuse Justice Breyer’s relationships with his colleagues, his understanding of the judicial role, and his approach to constitutional interpretation. They have redounded to the great benefit of the Supreme Court and this nation for more than a quarter of a century. And they are values that I, and all of his clerks, learned through the privilege of working with him and watching him go through the world with humanity and optimism every day.

I clerked for Justice Breyer the term after Bush v. Gore, one of the most politically fraught cases of our time. One might think that in the aftermath of that case some of the justice’s characteristic optimism about his colleagues would have waned. But they remained very much on display. His rapport with Justice Clarence Thomas, next to whom he had sat for more than a decade, was visible even from afar, and clearly genuine. During the term I clerked, our chambers went to an Orioles game with Justice Sandra Day O’Connor and her clerks, and to dinner with Justice David Souter and his.

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Those outings were hardly unique. Breyer has long been, as Judge Vince Chhabria has said, “the glue of the court.” The justices are his colleagues, and he takes those relationships and the conversations they foster seriously. Breyer does this not only through oral arguments in front of the public or in formal memos about draft opinions. He does it in person, by actually talking with the other justices. When a law clerk offered an argument in our chambers discussions that struck him as particularly persuasive, he would announce, “Oh, that’s good. That’s good. I think I’ll go talk to Nino,” and he would walk down the wide corridors of the court to Justice Antonin Scalia’s chambers. Whether he convinced Justice Scalia or not — and from their voting records, one knows he rarely did — he always saw the value in the conversation. Even more, he always remained optimistic that he would succeed.

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The justice’s faith and interest in other people — in the power of persuasion and of finding common ground across even vast differences in viewpoint— has its roots as far back as his time working for Sen. Ted Kennedy as chief legal counsel to the Judiciary Committee. In that role, he regularly reached across the aisle. It seems no coincidence that Breyer was the only judicial candidate President Jimmy Carter nominated after Ronald Reagan’s landslide election of 1980, and that Breyer was confirmed 80-10. It was a different time from now, yes, with different politics and less polarization. But President Carter chose Breyer, and not someone else, in that moment and for that bipartisan confirmation process.

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Justice Breyer’s own humanity, his interest in and concern for people as well as for “the people” as the collective governing body in a democracy, is core to his approach to constitutional interpretation as well as to the judicial role. As he described in his 2007 book “Active Liberty,” central to his theory of “participatory self-government” is the belief “not just that government can help people, but that government is the people.” For judges in such a system, the goal is to “yield better law — law that helps a community of individuals democratically find practical solutions to important contemporary problems.”

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To Breyer , “the people” are both the theoretical bedrock of our Constitution and the very real human beings who make and live by and under the law every day. Raised in a family that revered public service — and produced two lifelong public servants and federal judges — Breyer grew up with an abiding faith in democracy and the positive force that government can be in people’s lives. That faith in people, in public institutions, in the good intentions of most people (most of the time), became staples of both his optimistic personality and his judicial philosophy. The justice believes deeply that the people and the government officials the people entrust are doing their best, and their best is usually pretty good.

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He holds out this basic humanity and generosity to all, to those in dire straits — facing the death penalty or held in immigration detention without bail — and to those he encounters in more joyous and mundane ways — the children he reads to on National Literacy Day, and the new Eagle Scouts to whom he writes (as an Eagle Scout himself) congratulatory notes. This humanity motivates and elevates the pragmatic approach to judging for which Justice Breyer is so well known. To be sure, Breyer’s background in administrative law — a field he transformed as a professor at Harvard Law School — has infused his approach to constitutional interpretation with an emphasis on facts, practicalities, and consequences. But his approach is equally a product of the joy, humanity, and curiosity he brings to everything he encounters and explores.

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This care and concern for people, and for “the people”, is often what prompts Justice Breyer to look in the mirror and decide that he simply cannot find common ground in a given case. When the law impedes rather than fosters the pluralist society the justice believes in deeply, or when it contravenes the equality and justice that are necessary preconditions for democracy, it is the judge’s fundamental obligation, in his view, to stand up for fundamental principles and to say so. Justice Breyer’s extended and impassioned dissent in the school desegregation case of Parents Involved in Community Schools v. Seattle School District and his clarion call to consider the constitutionality of the death penalty in Glossip v. Gross exemplify such moments.

As the leader of an institution of higher learning, one that educates new lawyers across the political spectrum for service to and leadership of our democracy, the lessons Justice Breyer taught me are ones I rely on every day. The appetite for dialogue, the optimism, the open minded and open heartedness, and the joy he embodies are what I hope to see every time I look in the mirror. They are what I hope will remain with the court, and the nation, long after he retires.

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