By all indications, Breyer might have been expected to take a position in the middle of the Court’s ideological range, and in his brief tenure on the Court to date he has tended to confirm this expectation. The labels “conservative” and “liberal,” often misleading when applied to Supreme Court justices, do not sit easily on Justice Breyer. For example, in United States v. Playboy (2000), he dissented from the majority’s decision to strike down a federal law that required cable television operators to block sexually oriented channels or to limit their transmission to hours when children are unlikely to be viewing as violating freedom of speech. Perhaps most significant, mo of the Court’s most conservative members, Chief Justice William Rehnquist and Associate Justice Antonin Scalia, joined in Breyer’s dissent.
On many issues, though, Justice Breyer has found himself at odds with the Court’s more conservative justices, who have formed a narrow majority on a variety of issues during the closing years of the 20th century and the beginning years of the 21st. A majority of the Rehnquist Court, for example, has been the midwife for a renewed concern for the prerogatives of states within the federal system, especially under the Constitution’s Eleventh Amendment, which immunizes states from suits by citizens of other states and by aliens. In controversial decisions such as Alden v. Maine 1999 and Kimel v. Florida Board of Regents 1999, a conservative majority on the Court applied the Eleventh Amendment to bar claims against states brought under federal labor and antidiscrimination laws. Justice Breyer joined three odier justices—John Paul Stevens, David Souter, and Ruth Bader Ginsburg—to protest this constitutional interpretation. Similarly, the same conservative justices have revisited die limits of Congress’s power to regulate matters affecting interstate commerce and have invalidated federal laws such as the Gun Free Schools Zones Act, held unconstitutional in United States v. iMpez (1995), and the Violence Against Women Act in United States v. Morrison (2000). Again, Breyer—joined by Justices Stevens, Souter, and Ginsburg—has voiced his opposition to this constitutional development.
Justice Stephen G. Breyer came to the Court with a distinguished career as a legal scholar and a federal appeals judge but nevertheless confessed that his early terms on the Court left him with the nervousness typical of a freshman justice. “I keep thinking of a New Yorker cartoon,” he said shortly after joining the Court. “A circus dog is about to set out, very gingerly, on a tightrope while a clown below unfolds a scroll. It says: ‘All Rex could think about when he stepped out upon the high wire was that he was a very old dog and this was a brand-new trick.’” But with whatever trepidation Justice Breyer undertook his work as a Supreme Court justice, he has become comfortable with a judicial voice that is neither stridendy liberal nor conservative. The last justice appointed in the 20th century is more a pragmatist than a prophet, more interested in solutions than in semantics. He has been accused of being a technocrat, but it is perhaps fitting that the ap-pointment of such a justice should conclude the long and turbulent history of the 20th-century Supreme Court.
Party affiliation: Democratic Party