Stephen Breyer on Government Reform

Supreme Court Justice (nominated by Pres. Clinton 1994)


If people want to change nomination process it will be

I was confirmed. And I was nominated. And the confirmation process and the nomination process, well, I say it's like asking for the recipe for Chicken a la King from the point of view of the chicken. Yes, that's a flip joke. But the truth of the joke is, that's the political environment. Now you may disapprove of it, I may disapprove of it, and if enough people in the public want it to change or be modified one way or the other, it will be.

I'm there for everybody. I'm not just there for the Democrats. I'm not just there for the Republicans. And I'm not just there because a president was a Democrat who appointed me.

And part of it is to remember that you're there for everyone. They won't like what you say half the time or more, but you're still there for them. That's the privilege of the job in a way. You have to give your all. You have to work as hard as you can. So, you see, I think it's important we have trust.

Source: Fox News Sunday 2021 interview of Supreme Court Justice , Sep 12, 2021

Trump election challenge didn't meet criteria for Court

Q: Here is what Trump said about the 2020 election challenges:

TRUMP: No judge, including the Supreme Court of the United States, has had the courage to allow it to be heard.

Q: Why was that?

BREYER: Why was it? Because they didn't bring a case, I guess, that met the normal criteria for being heard. When we decide to take a case, there have to be four votes to take it. So I can't go beyond that. If we don't take a case all likelihood is that the criteria weren't met.

Source: Fox News Sunday 2021 interview of Supreme Court Justice , Sep 12, 2021

Open to term limits on the Supreme Court if long enough

Q: What do you think of the idea of increasing the number of justices?

BREYER: Well, if one party could do it, I guess another party could do it. And on the surface it seems to me you start changing all these things around, and people will lose trust in the court.

Q: What about term limits?

BREYER: Well, I think you could do that. It should be a very long term because you don't want the judge who's holding that term to start thinking about his next job. But it would make life easier for me.

Source: Fox News Sunday 2021 interview of Supreme Court Justice , Sep 12, 2021

AZ mail-in restrictions violate Voting Rights Act

Arizona voting restrictions challenged as violations of Section 2 of the Voting Rights Act. First, voters casting their votes on Election Day outside their precinct are not counted. Second, mail-in ballots cannot be collected by anyone other than an election official, a mail carrier, or a voter's family or household member. The court held, 6-3, that these restrictions did not violate the Act nor were they racially discriminatory.

Dissenters argued that the Court's narrow reading weakened the law and disregarded its intent to address disparities in how election laws affect different racial groups. The rule discarding "out of precinct votes" impacted black and Hispanic voters, with Arizona leading the country in discarding such votes. Restrictions on vote collection makes voting more difficult for Native Americans.

Elena Kagan wrote the dissent, joined by Stephen Breyer and Sonia Sotomayor.

Source: NPR commentary on 2021 SCOTUS rulings , Jul 1, 2021

Allow curbside voting & loosen rules during pandemic

The U.S. Supreme Court in a 5-4 decision blocked a lower court ruling allowing curbside voting in Alabama and waiving some absentee ballot requirements during the COVID-19 pandemic. Conservative justices granted Alabama's request to stay a federal judge's order that would allow local officials to offer curbside voting in the July runoff and loosen absentee ballot requirements in three of the state's large counties.

The court rulings stem from a lawsuit filed by the NAACP, the Southern Poverty Law Center and the Alabama Disabilities Advocacy Program. A group of voters had sought more voting options because of health concerns.

A District Judge issued a preliminary injunction after finding that Alabama's election rules will cause sick or elderly voters to "likely face a painful and difficult choice between exercising their fundamental right to vote and safeguarding their health, which could prevent them from casting a vote in upcoming elections." Alabama appealed the decision.

Source: Time magazine: Dissent on MERRILL v ALABAMA, No. 19A1063 , Jul 3, 2020

Voting Rights Act still needed to prevent discrimination

In Shelby County v. Holder, the Supreme Court struck down the section of the Voting Rights Act which established a formula for determining if a state requires prior approval before changing its voting laws. Nine states with a history of discrimination must still get clearance from Congress before changing voting rules to make sure racial minorities are not negatively affected--this section was made toothless. Chief Justice Roberts said the formula Congress now uses, which was written in 1965, has become outdated. Justice Ginsburg, dissenting, said, "Hubris is a fit word for today's demolition of the VRA."

OnTheIssues explanation: This ruling led to a spate of "Voter ID" laws, which proponents claim is needed to protect the integrity of the vote, and which opponents say discriminates against youth & minority voters.

Opinions:Majority: Roberts, Scalia, Kennedy, & Alito; concurrence: Thomas; dissent: Ginsburg, Breyer, Sotomayor, & Kagan.

Source: InfoPlease.com on 2013 SCOTUS docket #12-96 , Jun 25, 2013

Campaign finance reform should level candidate playing field

Justices Ginsburg and Breyer embraced the principle was EQUALITY: Leveling the playing field was an important characteristic of campaign finance reform, they maintained, and the political branches should be given ample room to decide how to handle the difficult issues it presents. They embraced the idea that a donor's contribution to a political campaign triggers the First Amendment: "A decision to contribute money to a campaign is a matter of First Amendment concern--not because money is speech (it is not) but because it enables speech." On the other hand, contribution limits reflect an effort to "protect the integrity of the electoral process--the means through which a free society democratically translates political speech into concrete governmental action." Invoking the equality principle, they added: "Moreover, by limiting the size of the largest contributions, such restrictions aim to democratize the influence that money itself may bring upon the electoral process."
Source: First Among Equals, by Kenneth Starr, p. 84-85 , Oct 10, 2002

Votes with liberal bloc against states’ rights

The nine court members can be divided into three general alliances, but all of the justices have crossed ideological lines. The three conservative justices and two of the swing justices usually support states’ rights [while the liberal bloc, including Breyer, do not].

Breyer is a consistently liberal voice on the court. He recently affirmed the right of disabled people to sue states under federal civil rights law.

Source: Reuters article in Boston Globe, p. A45 , Dec 1, 2000

Corporate speech can be restricted but not banned.

Justice Breyer joined the dissent on Citizens United v. Federal Election Commission on Jan 21, 2010:

Prior to the 2008 primary elections, Citizens United, a nonprofit corporation dedicated to educating the American public about their rights and the government, produced a politically conservative 90-minute documentary entitled Hillary: The Movie. This documentary covers Hillary Clinton's record while in the Senate & the White House. However, The Movie falls within the definition of "electioneering communications" under the Bipartisan Campaign Reform Act of 2002 ("BCRA")--a federal enactment designed to prevent "big money" from unfairly influencing federal elections--which, among other things, prohibits corporate financing of electioneering communications. The FEC [enforced the provision] of BCRA prohibiting corporations from broadcasting electioneering communications within 60 days of a general election. [The Supreme Court rules that this] violates the free speech clause of the First Amendment.

Justice Kennedy , Opinion of the Court (Roberts, Scalia, Alito, and Thomas concurring):

Some members of the public might consider "Hillary: The Movie" to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation's course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make.

Justice Stevens (dissent joined by Ginsburg , Breyer, and Sotomayor)

Neither Citizens United's nor any other corporation's speech has been "banned." All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment [allows that] is, in my judgment, profoundly misguided. Although I concur in the Court's decision to sustain BCRA's disclosure provisions, I emphatically dissent from its principal holding.

Source: Supreme Court case 08_CU_FEC argued on Mar 24, 2009

Public campaign finance can fund based on opponent spending.

Justice Breyer joined the dissent on AZ FREEDOM CLUB PAC v. BENNETT on Jun 27, 2011:

An Arizona public campaign financing law allowed a person who agreed to the restrictions of a publicly financed campaign to receive an initial allotment from the state. That initial allotment was increased when the spending of a privately financed opponent together with the spending of any independent group exceeded that initial allotment. The public funds to match opponent expenditures topped out at two times the initial allotment.

HELD: Delivered by Roberts; joined by Scalia, Kennedy, Thomas & Alito

Arizona's public financing law places a burden on privately financed candidates. If privately financed candidates spend money above a certain level, they necessarily entitle their publicly financed opponents to greater funding. Their First Amendment right to free speech in a political matter--which includes spending money on their campaigns--is inhibited. Independent groups do not qualify for public financing at all, but their spending still may lead to a funding increase for the candidates the independent groups oppose. Leveling the playing is not a compelling state interest justifying a burden on a First Amendment right, nor is combating corruption. Arizona would be free to give the maximum amount to all public candidates, but that does not justify inhibiting the free speech of candidates and independent groups.

DISSENT: Kagan dissents; joined by Ginsburg, Breyer, and Sotomayor

The First Amendment's core purpose is to foster a political system full of robust discussion and debate. Arizona's public campaign finance did not restrict speech, it increased speech through public subsidy with the goal of decreasing the corruption of both quid pro quo campaign payments made in exchange for official acts or an office seeker feeling beholden to his great financial supporters. Any burden on free speech, the burden could hardly be more substantial than what the Court announces would be legal: a larger, up-front allotment to a public candida
Source: Supreme Court case 11-AZ-PAC argued on Mar 28, 2011

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Other Justices on Government Reform: Stephen Breyer on other issues:
Samuel Alito(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
Anthony Kennedy(1988-2018)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Mar 21, 2022