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Author in the court

Justice Stephen Breyer's new book reflects his practical approach to the law

CAMBRIDGE — The Supreme Court has been much in the news. Today President Bush announced his nomination of White House counsel Harriet Miers to succeed Justice Sandra Day O'Connor. John G. Roberts Jr. has replaced the late William H. Rehnquist as chief justice. And Justice Stephen G. Breyer has a much-discussed book just out, "Active Liberty: Interpreting Our Democratic Constitution."

But the more the court changes, the more it stays the same. Each year its new term starts on the first Monday in October, which is today. What the day after Labor Day is for the rest of us, the first Monday in October is for the court. Or is it?

''What really feels like the end of summer is the week before," Breyer said last week in an interview at his Cambridge home. ''That's when we have conferences where we consider all the petitions that have been filed over the summer."

It's been 11 years since Bill Clinton nominated Breyer, then chief judge of the US Court of Appeals for the First Circuit, in Boston, as an associate justice. Yet he continues to keep his primary residence in Cambridge. ''Washington is somewhat more formal. It's very hard not to be 'the justice.' People identify you more with your job," Breyer said. ''Here I can be more normal."

Normality is something Breyer values, not least of all because it brings a relative anonymity. ''I don't ever have to worry about being mobbed," he joked. ''Half of those who recognize me think I'm Justice [David H.] Souter."

The British equivalents of Supreme Court justices are law lords. There is nothing lordly about Breyer. No aides hover around him; he puts on no airs. Last Tuesday, he answered his own door, then offered to make a visitor a cup of tea. Breyer's slightly gulpy voice and basset-hound eyes make him seem anything but intimidating. He could have been a professor welcoming back a student at the start of the fall semester. (In fact, Breyer taught for many years at Harvard Law School, with time out for service as chief counsel to the Senate Judiciary Committee, before being named a judge in 1980.)

Breyer looks a good decade younger than his actual age, 67. The agility of his mind (he doesn't so much run with ideas as gallop with them) can make him seem almost boyish. The crispness of his paragraphs is matched by his looseness of manner. He sat relaxed in a dining-room chair, his circumflex brows dancing as he spoke. ''Up on the bench," he joked later, while being photographed in his garden, ''my job is to look stiff without being stiff."

Stiffness is not Breyer's way. Born and raised in San Francisco, he may not have grown up on a ranch, like O'Connor, but he remains a Westerner in his relaxed style.

''The more intellectually easygoing and playful and, I'd add, humorous a justice is, the more readily his or her substantive arguments will go over well with his or her colleagues," said David J. Garrow, who teaches legal history at Cambridge University and is the author of ''Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade." ''That's a good description of Justice Breyer."

In some ways, that description also fits the man who appointed Breyer to the nation's highest court. Nor does the resemblance end there. Like Clinton, Breyer is a centrist liberal -- or should that be liberal centrist?

''Among the four liberals [the others are John Paul Stevens, Ruth Bader Ginsburg, and Souter], Breyer is probably the one who most often strays from the reservation," said Garrow. ''He is the biggest example on this current court that justices can be unpredictable."

Unpredictability may be an ideological weakness, but according to Jonathan Molot, who clerked for Breyer both when he was judge and justice, it's one of Breyer's great strengths as a jurist.

''I've always been struck at his ability to see things from all different angles, and that's a special quality among judges, who sometimes have trouble seeing it from any perspective but the court's," said Molot, who is professor of law at George Washington University and currently visiting professor at Georgetown University Law Center.

If no single description captures Breyer, that may be because he feels there should be no single system to deciding cases. ''I think an approach to interpreting statutes, or interpreting the Constitution," Breyer said, ''that certainly looks to text, certainly looks to history, certainly looks to tradition and precedent -- but that also emphasizes heavily the purpose of this particular provision and the consequences as viewed in terms of the purposes, is more likely to get at what this law is about, what area of human life it is seeking to affect and how. That's what I think the essence of law is."

That point of view deeply colors ''Active Liberty," which is based on the Tanner Lectures Breyer delivered at Harvard last November. In it, he emphasizes the role of the Constitution in fostering democratic participation and argues for a pragmatic, even common-sense approach to constitutional issues that emphasizes legislative purpose and actual consequences over ideology or theory.

''I don't like the notion of there being two things, the law and life," Breyer said. ''I prefer a metaphor where law is part of life, law grows out of life, law is rules, practices, standards, approaches, formal and less formal behavior that people in a community create so they can live together fruitfully. That's what law is."

Law as living together fruitfully is something Breyer experiences professionally. This group of justices enjoys highly amicable personal relations. ''I think we get along well," Breyer said. ''It's a fairly harmonious place, even though we're not always in agreement."

That harmoniousness is apparent in conversation. Justice Anthony Kennedy is ''Tony," Justice Antonin Scalia ''Nino." During the interview, O'Connor called to make a bridge date with Breyer and his wife. (Joanna Breyer, who holds a doctorate in psychology, works as a pediatric psychologist at the Dana-Farber Cancer Institute.)

Not wanting to detract from Roberts's confirmation, Breyer made it a condition of this interview that it not run before the Senate vote. He also made plain he would discuss neither his fellow justices nor issues before the court. Those demurrals registered, he spoke over the course of an hour.

The one question he deflected concerned Scalia. Both The New York Times and The New Republic have described Breyer's book as a riposte to Scalia's ''originalist" view of the Constitution, which holds that the Framers' original intent should be the court's standard in judging cases. Was that a fair characterization of Breyer's aim in writing ''Active Liberty"?

''It's not the main point," Breyer said, quickly turning from Scalia to the book itself.

''The most important [point] is to remember the Constitution is trying to create democratic institutions of a certain kind. That means we as judges are interpreting a framework and that the document foresees people deciding for themselves, within very broad limits, how they want to live in their communities. Now, that means people have to participate, it means the democratic process has to be open, and it means they have to take part. If they don't, it won't work. All right, now I write this [book] to deliver that message to anyone willing to listen."

A man of many interests, Breyer is as likely to mention P.G. Wodehouse, or the Red Sox, as he is Rehnquist or Roberts. He cycles. He's a gourmet cook (though, according to Breyer, ''that depends on the eater"). He's read Proust in French, speaks Spanish, and became an expert on architecture when a design for the new federal courthouse in Boston was being chosen. As Molot put it, Breyer has ''an active intelligence."

Not everyone has seen this as a good thing. At the time of Breyer's confirmation hearings, Ralph Nader accused him of ''intellectual dilettantism." Conversely, Ivan Gaskell, Margaret S. Winthrop curator at the Harvard University Art Museums, described how impressed he was by Breyer at a dinner party in the mid-'90s.

''I realized pretty quick this was a darn smart guy," Gaskell said. ''The thing that Breyer wanted to talk about was [the French 17th-century painter Nicolas] Poussin. It's not most people's first choice of topic when they hear what I do. Degas, Monet, Picasso, yes. Rembrandt, possibly. Not Poussin. That's the Olympian height, and he headed straight for it."

Breyer also headed straight for the law. His father was legal counsel to the San Francisco public schools for more than 40 years. '' 'Stay on the payroll!' he always told me," Breyer said. When it was suggested that advice means he won't be stepping down from the court any time soon, he laughingly agreed.

''I wanted to be a baseball player for a while," Breyer said, ''but I understood that wasn't going to happen." It was probably in high school, he said, that he first decided to become a lawyer.

''I've always thought law is tied to life," Breyer said. ''You have to have a heart and you have to have a head. It's not a totally cold, mechanical, calculating thing. If that's what you think it is, don't be a lawyer, because you won't be a very good one. It's about people. But if you forget the intellectual part, you'll just make so many mistakes you'll cause more trouble than it's worth. You have to have both. I think that's a very satisfactory thing."

Mark Feeney can be reached at

Stephen G. Breyer

BORN: San Francisco,Aug. 15, 1938

EDUCATION: Stanford, AB, 1959; Oxford, BA, 1961;Harvard, LLD, 1964

PROFESSIONAL HIGHLIGHTS: Law clerk to USSupreme Court Justice Arthur Goldberg, 1964-65; special assistant, US Department of Justice, 1965-67; professor, Harvard Law School, 1967-1981; chief counsel, US Senate Judiciary Committee, 1979-1981; judge, US Court of Appeals, 1980-1994; associate justice, US Supreme Court, 1994-present

PERSONAL: Married Joanna Hare, 1967; children, Chloe, Nell, Michael


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