Stephen Breyer Impacted?

INSOMNIAC

On the bench, Breyer generally takes a pragmatic approach to constitutional issues, interested more in producing coherence and continuity in the law than in following doctrinal, historical or textual strictures.[14] He has said that while some of his colleagues "emphasize language, a more literal reading of the text, history and tradition," he looks more closely to the "purpose and consequences" of the text.[15]

Breyer most frequently sides with Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg, generally acknowledged as the liberal wing of the court.[16] He has consistently voted in favor of abortion rights,[17] one of the most controversial areas of the Supreme Court's docket. He has also defended the Supreme Court's use of foreign law and international law as persuasive (but not binding) authority in its decisions.[18][19][20] However, Breyer is also recognized to be deferential to the interests of law enforcement and to legislative judgments in the Supreme Court's First Amendment rulings. Breyer has also demonstrated a consistent pattern of deference to Congress, voting to overturn congressional legislation at a lower rate than any other Supreme Court justice since 1994.[21]

Breyer's extensive experience in administrative law is accompanied by his staunch defense of the Federal Sentencing Guidelines. Breyer rejects the strict interpretation of the Sixth Amendment espoused by Justice Scalia that all facts necessary to criminal punishment must be submitted to a jury and proved beyond a reasonable doubt.[22] In many other areas on the Court, too, Breyer's pragmatism is considered the intellectual counterweight to Scalia's textualist philosophy.[23]

In describing his interpretive philosophy, Breyer has sometimes noted his use of six interpretive tools: text, history, tradition, precedent, the purpose of a statute, and the consequences of competing interpretations.[24] Breyer notes that only the latter two differentiate him from strict constructionists on the Supreme Court such as Scalia. Breyer argues that these sources are necessary, however, and in the former case (purpose, or legislative intent), can in fact provide greater objectivity in legal interpretation than looking merely to what can often be ambiguous statutory text.[25] With the latter (consequences), Breyer argues that considering the impact of legal interpretations is a further way of ensuring consistency with a law's intended purpose.[26

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