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Breyer's Civil Liberties Record:
ACLU Report Finds Centrist, `Practical' Judge

For IMMEDIATE RELEASE
July 5, 1994

     NEW YORK -- In his nearly 14 years on the federal bench, Supreme
Court nominee Stephen Breyer has authored nearly 600 opinions.  And
although his record cannot be easily labeled conservative or liberal, it
often shows a tendency to defer to other branches of government, according
to a report issued today by the American Civil Liberties Union. 
     In a report to the ACLU National Board, the ACLU's Legal Department,
along with a team of private Washington lawyers, surveyed the opinions
that Judge Breyer has authored while on the U.S. Court of Appeals for the
First Circuit. The report does not attempt to tackle the hundreds of
opinions that Judge Breyer joined, but did not author. 
     The report found that Breyer's approach to legal decisionmaking often
focuses on the practical consequences of a court's decision. "Sometimes,"
it says, "this works in favor of civil liberties interests; other times
not." And, if confirmed to replace retiring Justice Harry Blackmun, Judge
Breyer is likely to reinforce the increasingly influential middle of the
court, the report says. 
     As a nonpartisan organization, the ACLU almost never takes a position
on executive branch nominations. On two occasions in the ACLU's 74-year
history, the ACLU National Board has voted to oppose nominees to the
Supreme Court because they "demonstrate an approach to civil liberties or
to the function of the judiciary that is fundamentally hostile to civil
liberties." The ACLU's policy also calls on the Senate to exercise its
constitutional responsibilities by examining a "nominee's view of the
function of the judiciary and its role in protecting civil liberties," and
by requiring the "nominee to explain and elaborate upon those views during
hearings on the nomination." 
     "In accordance with ACLU policy, this report does not take a position
on Judge Breyer's nomination," said Nadine Strossen, ACLU President.
"Instead it presents an overview of Judge Breyer's record on crucial civil
liberties issues and is being released to educate the Senate, as well as
the public, about this aspect of his record." 

     A copy of the summary of the ACLU report follows.


                 ACLU REPORT ON THE CIVIL RIGHTS
                  AND CIVIL LIBERTIES RECORD OF
               JUDGE STEPHEN BREYER:  AN OVERVIEW

     This report summarizes the civil liberties and civil rights record of
Judge Stephen Breyer, who has been nominated by President Clinton to
replace Harry Blackmun as an Associate Justice of the United States
Supreme Court. 
     In accordance with ACLU policy, this report does not take a position
on Judge Breyer's nomination.  Instead, it presents a review of Judge
Breyer's record on a range of civil rights and civil liberties issues, and
thus parallels the reports prepared by the ACLU on other recent Supreme
Court nominees. 
     Judge Breyer has served on the United States Court of Appeals for the
First Circuit since 1980.  Prior to his service on the federal bench, he
served as chief counsel to the Senate Judiciary Committee for two years
and, before that, as a professor at Harvard Law School.  He has lectured
and written on a variety of legal topics.  He also served as an original
member of the Federal Sentencing Commission. 
     In short, Judge Breyer has had a long career in both government and
academia.  He is, however, better known for his views on antitrust and
administrative law than on civil rights and civil liberties.  Although he
has addressed numerous constitutional issues as a federal judge, his
opinions do not reflect an overarching judicial philosophy that can easily
be labeled as either liberal or conservative. 
     On close questions, Judge Breyer is generally deferential to the
executive and legislative branches of government.  A notable exception is
when he believes that a case turns on the interpretation of central
provisions of a statute, in which case he is less willing than many other
federal judges to defer to the views of an administrative agency.  More
broadly, his approach to legal decisionmaking often focuses on the
practical consequences of the court's decision.  Sometimes this works in
favor of civil liberties interests; other times not. 
     Like Justice Ginsburg, Judge Breyer has been described as a consensus
builder.  If confirmed, he seems likely to reinforce the increasingly
influential middle of the Court.  His opinions, thus far, do not
demonstrate the passionate commitment to individual justice that has
become Justice Blackmun's hallmark in recent years. 
     Indeed, one of the most striking aspects of Judge Breyer's record on
the First Circuit is the frequency with which he has ruled against civil
rights plaintiffs asserting statutory discrimination claims in his written
opinions.  Many of these opinions turn on the specific facts and the legal
rationale necessarily varies depending on the statute involved. 
Nevertheless, the degree to which Judge Breyer has sided with the
defendants in these cases is troubling. 
     On the other hand, Judge Breyer has twice upheld the Boston Police
Department's affirmative action efforts against legal challenge.  In the
first case, he rejected the argument that a voluntary affirmative action
plan must be limited to the actual victims of past discrimination.  In the
second case, he ruled against a constitutional claim of reverse
discrimination raised by white police officers.  He has also ruled that
the federal government has an affirmative obligation to promote the goals
of the Fair Housing Act, and that its failure to do so is judicially
reviewable (although not in a damages action). 
     To our knowledge, Judge Breyer has not expressed any public view on
the constitutionality of abortion.  In a significant dissenting opinion,
he did argue that there was no way that plaintiffs could show that a
Massachusetts statute requiring minors seeking an abortion to obtain
either parental consent or a judicial waiver was unconstitutional. Basing
his opinion on a prior Supreme Court decision that he broadly interpreted
to support the Massachusetts law, Judge Breyer dismissed the significance
of allegations that the judicial waiver procedure often involved a delay
of several days and could be intimidating.  By contrast, before the
Supreme Court's contrary decision in Rust v. Sullivan, Judge Breyer voted
to strike down federal regulations that barred federally funded clinics
from engaging in abortion counselling. 
     Judge Breyer has not written any opinions on the constitutionality
of the death penalty.  His opinions in the criminal law field generally
reflect prevailing Supreme Court law.  However, even when Supreme Court
law is not controlling, he is deferential to the police and the needs of
law enforcement.  Both on and off the bench, he has staunchly defended the
federal sentencing guidelines against charges that they are too severe and
inflexible, and lead to prison overcrowding. 
     Judge Breyer's instinct toward deference is also reflected in his
opinions concerning the free speech rights of public employees.  The
Supreme Court has held that policymaking positions can be filled with
political appointees but that other government employees should not be
penalized for their political views.  While accepting that test, Judge
Breyer has been reluctant to engage in an independent evaluation of
whether particular jobs involve policymaking responsibilities.  Instead,
he has preferred to rely on job descriptions developed by legislators and
administrators.  The result has often been fatal to the First Amendment
claims of public employee plaintiffs.  He has not hesitated, however, to
strike down a broadly worded executive order that authorized loyalty
investigations.  He also invalidated a travel ban to Cuba that the Supreme
Court later reinstated. 
     In religion cases, Judge Breyer has emphasized the need to adopt a
"practical" approach that would not strike down government funding
schemes unless they confer a real and meaningful benefit on sectarian
institutions.  At the same time, he has argued that pleas for religious
accommodation must take into account the state's legitimate administrative
interests. He has, however, also expressed concern about the state
pressing trivial administrative interests in the face of sincere religious
objections. In general, he seems more prepared to defer to government
decisionmakers than present doctrine would allow, regardless of whether
the claim is based on free exercise or establishment clause grounds. 
Judge Breyer's limited record in the church-state field, however, makes it
difficult to draw any confident conclusions about his ultimate views. 
     On access to justice issues, Judge Breyer has written in opposition
to proposals to restrict federal court jurisdiction, and his rulings on
standing and civil rights attorneys' fees have generally supported access
to federal court.  However, once a case has found its way into federal
court, Judge Breyer has frequently invoked a wide assortment of doctrines
-- including ripeness, mootness, exhaustion, abstention, and immunity --
to avoid deciding claims on their merits. 
     These observations are detailed at greater length in the report which
follows.

[The complete text of the 82-page report will not be available online 
until next week. 07_01_94]

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