Optimistic pragmatist Justice Breyer


Tribute to Justice Breyer

Justice Breyer’s opinion from the bench in 2018. (Art Lien)

This article is a Series Tribute About the career of Justice Stephen Breyer.

Brianne Gorod is the Chief Legal Counsel of the Center for Constitutional Accountability. She worked as a clerk for Breyer during 2008-09.

Before my interview with Judge Breyer, I received a key piece of advice: Make sure you disagree with him on something. As the recommendation reflects, Justice Breyer wants to work with legal clerks who are not afraid to challenge him and interact with him on tough legal issues.

This is a lesson I kept in mind during my own interviews as we discussed topics ranging from the term judicial activism to constitutional interpretation theory to the law review article I wrote on Title VII retaliation claims. The conversation was so interesting that I almost forgot that it was an interview and after I started working as the judge’s clerk, I was delighted to realize how representative the conversations my assistant clerk and I would have with him throughout the process. Sex that year.

Justice Breyer is happy to think about the law and how it works, and to discuss those ideas with others. One does not have to personally know justice to see this joy. This is evident from his (sometimes long) questions in oral arguments. It was evident from his public speeches that he spoke frequently about our laws and systems of government.

When I think about Justice Breyer’s legacy, I think it will be largely defined by those broader ideas about our system of government. Justice Breyer was a pragmatist who believed deeply that our Constitution and government should play a role. When President Bill Clinton nominated him to the high court, he simply said, Say That”[t]Constitutions and laws must be more than words, they must function as actual reality. He promised that he would “strive to make the law work for the people, because that is the decisive purpose of the people’s government.” ”

Because he believed that the law should serve the people, he was very concerned with the realities in which the courts acted and the consequences of their rulings. These aspects of his decision-making are evident in many of his views.

I will single out only one such view.exist Parents Involved in Community Schools v. Seattle First School District, multiple courts have concluded that two local school districts violated the Equal Protection Clause in their race-conscious efforts to integrate their schools. He disagreed and wrote a dissenting opinion, joined by other relatively liberal justices of the court.

His opinion explained that the government “could voluntarily take race-conscious measures to improve racial conditions … rooted in the history of the Equal Protection Clause.” He provided a detailed history of the district’s efforts to integrate schools to illustrate why they are concerned about their Programs have a strong interest and how these programs are tailored to achieve their goals. He also made it clear that this context is important. As he puts it, “In the real world, the effort to replace segregated schools with racial diversity (however it is created) is complicated.” He argues that the court majority needs to take that complexity into account.

He made no secret of the stakes in diversity decisions: “The past half century has seen tremendous progress in racial equality, but we have yet to achieve it. Brown. Invalidating the program under review is a threat to Brown. I fear that the majority position will undermine this promise. This is a decision that both the court and the country will regret. I must object. “

Justice Breyer dissented during his tenure on the court, but nonetheless remains optimistic that our government will eventually play a role, and the court will play a key role in making that happen.



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