US Supreme Court Justice Stephen Breyer (BA ’59), who stepped down from the high court last year, joined his former clerk, SLS Dean Jenny Martinez, for a fireside chat and Q&A with the SLS community
On January 9, approximately 500 SLS students, faculty, and staff members attended a one-hour, informal conversation with Justice Stephen Breyer, who served on the Supreme Court of the United States (SCOTUS) for just under 28 years until his retirement at the end of the last term in 2022. Jenny Martinez, the Richard E. Lang Professor and Dean at Stanford Law School and senior fellow, by courtesy, at the Freeman Spogli Institute for International Studies, who clerked for Breyer during the Court’s 1998-99 term, led a wide-ranging discussion that touched on Breyer’s formative experiences, his approach to finding common ground with others, his change of mind on the death penalty, and the role of the judiciary in furthering the rule of law, among other topics.
Returning to Stanford’s Memorial Auditorium brought back fond memories of his time studying philosophy at Stanford in the late 1950s, Breyer, 84, said, recalling the Sunday afternoon movies that played there, often preceded by Road Runner cartoons.
Putting community first
Widely considered a champion of legal pragmatism and judicial transparency, Breyer said he became a lawyer, as did his brother, in part because he was expected to follow in his father’s footsteps. “In those days, the Middle Ages, people did what their parents expected,” Breyer said with a laugh. His father, who also graduated from Stanford University, served for decades as counsel to the San Francisco Unified School District. His brother, Charles Breyer, is a federal district court judge in San Francisco. Breyer said his parents instilled in them the importance of community involvement and civic engagement. “It was just expected that you participate in the community,” he said. “Participation just seemed ‘normal.’ That’s how you lived your life. You were part of a community. You helped other people.”
Breyer went on to explain how he endeavored to do precisely that throughout his storied legal career, at one point flashing a pocket Constitution he had tucked inside his suit. He fondly recalled his pre-bench years as the U.S. Senate Judiciary’s chief counsel, during which time he worked closely with Senator Edward Kennedy. Breyer said Kennedy taught him the art of advancing an agenda through listening rather than arguing, and by giving credit to others.
Over the course of the hour, Breyer returned often to the importance of listening – to the lawyers arguing before him, to his fellow justices – as he discussed his years on the First Circuit Court of Appeals and his almost three decades on the high court. “It goes back to what I learned from Kennedy … The back and forth discussion better not take the form of, ‘I have a better argument than you.’ Once that’s implied, that’s going to get you absolutely nowhere.”
Asked by an SLS student if he had changed his mind on an important issue over his years on the bench, Breyer cited his thinking on the death penalty. During his confirmation hearings, he expressed neutrality on capital punishment. “Over 28 years on the bench, though, I saw enough that it is fair to say that despite what I said earlier, I think the death penalty is a nightmare. And I wrote what I saw,” Breyer said, referring to his lengthy, now-famous dissent in Glossip v. Gross in which a 5-4 majority held that a certain manner of lethal injection did not constitute cruel and unusual punishment under the Eighth Amendment. “I think the death penalty is inconsistent with the basic principles of the Constitution, which is that you have to have a fair system and I don’t see how you’re going to have a system that is not arbitrary and doesn’t have all kinds of flaws.”
Despite the flaws inherent in any system, including the judiciary, Breyer said he remains “resoundingly optimistic” regarding the role the courts play in upholding the rule of law and serving as a cornerstone of democracy – in great part because of the tension and interplay between the courts, the legislature, and individuals. Citing the 100 years between the Dred Scott decision and Brown v. Board of Education, Breyer acknowledged that the courts have often been out of step with the public view, including in the decades leading up to the civil rights era, but “we finally got somewhere because a lot of people who weren’t lawyers, who weren’t judges, decided to help.” Time and time again, the country “does right itself,” he said. “It slowly gets there. It is your choice. If you’re a citizen of the United States, you don’t just throw up your hands. You work at it. You work at change, at convincing, at trying to get people in positions of authority, you work for those things that you believe in.”
Asked toward the end of the discussion what advice he would give to law students who look with dismay at a high court they see as increasingly politicized, Breyer remained encouraging. “Once [judges and justices] are appointed, the pressure is on to do not what is political, but to do what they think is right as a judge … Does [the Supreme Court] work perfectly? No. What institution does? If somebody comes to me and says, ‘The situation is hopeless,’ I’m not prepared to go along with that. I’m prepared to say, ‘What can I do next?’ How can I help?’”
About Stanford Law School
Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective, and focus on public service, spearheading a movement for change.