Faculty Bibliography
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The editors of the Harvard Law Review respectfully dedicate this issue to Justice Sandra Day O’Connor.
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A Conversation held on February 24, 2022, at The George Washington University Law School.
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ABOUT WE DISSENT The full text of one of the most radical and controversial Supreme Court decisions in American history, highlighting the galvanizing dissent by Justices Breyer, Sotomayor, and Kagan … Dobbs v Jackson, the landmark decision to overthrow the rights first granted to women in the Roe v Wade decision fifty years ago, is the first U.S. Supreme Court decision in American history to actually take away from citizens a Constitutionally-protected right. As such it may be the most consequential Court ruling ever. Compounding matters, the decision opened the door to the overthrow of still further rights — such as same-sex marriage, for example, or equal rights for trans people. Nowhere is the danger of this decision made more clear than in the sobering yet electrifying dissent filed by Justices Breyer, Sotomayor, and Kagan. That dissent is highlighted in this edition, which includes the entire decision, to let readers decide for themselves, but forefronts the stirring and eloquently reasoned dissent. That eloquence will surely inspire, inform, and fuel the increasingly impassioned debate during the tumultuous campaign season of the upcoming mid-term elections — and beyond.
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“A decision the Court and the Nation will come to regret.” Ten years ago, the United States Supreme Court struck down two local school board initiatives meant to reverse extreme racial segregation in public schools. The sharply divided 5-4 decision in Parents Involved in Community Schools v. Seattle School District marked the end of an era of efforts by local authorities to fulfill the promise of racially integrated education envisioned by the Supreme Court in 1954 in Brown v. Board of Education. In a searing landmark dissent, Justice Stephen Breyer warned this was “a decision the Court and the Nation will come to regret.” A decade later, the unabated resegregation of America’s schools continues to confirm Justice Breyer’s fears, as many schools and school districts across the country are more racially segregated today than they were in the late 1960s. Edited and introduced by Justice Breyer’s former law clerk—and accompanied by a sobering update on the state of segregated schools in America today—this volume contains the full text of Justice Breyer’s most impassioned opinion, a dissent that Justice John Paul Stevens called at the time “eloquent and unanswerable.” The cautionary words of Justice Breyer should echo in classrooms across the country and in the hearts and minds of parents and schoolchildren everywhere.
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Stephen Breyer, America: An Experiment That's Still Ongoing, 88 Vital Speeches of the Day 61 (2022).
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The article presents the text of a speech by U.S. Supreme Court Justice Stephen Breyer, delivered as formal retirement announcement at the White House on January 27, 2002. Topics of the speech included experiment as a thing that people still think, the letters that George Washington wrote where he said the same thing, and why experiment existed then.
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The ninth edition of this classic casebook Administrative Law and Regulatory Policy: Problems, Text, and Cases is streamlined and updated while retaining the previous editions’ rigor, comprehensiveness, and contextual approach.
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Americans increasingly believe the Supreme Court is a political body in disguise. But Justice Stephen Breyer disagrees. Arguing that judges are committed to their oath to do impartial justice, Breyer aims to restore trust in the Court. In the absence of that trust, he warns, the Court will lose its authority, imperiling our constitutional system.
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The laws of other countries have a bearing on America’s own, writes Stephen Breyer—and the highest court in the land needs to take heed.
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The article explores the topic of judicial independence and impartiality in the U.S. The author reflects on the connection between an impartial judiciary system and security for financial investment and prosperity. The article also presents U.S. Supreme Court cases such as Worcester v. Georgia, Cooper v. Aaron, and Bush v. Gore. Other topics include the rule of law, racial segregation, and telephone justice.
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To describe Bill simply as a lawyer and public servant would be misleading.
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A landmark dissenting opinion arguing against the death penalty Does the death penalty violate the Constitution? In Against the Death Penalty, Justice Stephen G. Breyer argues that it does: that it is carried out unfairly and inconsistently, and thus violates the ban on “cruel and unusual punishments” specified by the Eighth Amendment to the Constitution. “Today’s administration of the death penalty,” Breyer writes, “involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.” This volume contains Breyer’s dissent in the case of Glossip v. Gross, which involved an unsuccessful challenge to Oklahoma’s use of a lethal-injection drug because it might cause severe pain. Justice Breyer’s legal citations have been edited to make them understandable to a general audience, but the text retains the full force of his powerful argument that the time has come for the Supreme Court to revisit the constitutionality of the death penalty. Breyer was joined in his dissent from the bench by Justice Ruth Bader Ginsburg. Their passionate argument has been cited by many legal experts — including fellow Justice Antonin Scalia — as signaling an eventual Court ruling striking down the death penalty. A similar dissent in 1963 by Breyer’s mentor, Justice Arthur J. Goldberg, helped set the stage for a later ruling, imposing what turned out to be a four-year moratorium on executions.
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In this original, far-reaching, and timely book, Justice Stephen Breyer examines the work of the Supreme Court of the United States in an increasingly interconnected world, a world in which all sorts of activity, both public and private—from the conduct of national security policy to the conduct of international trade—obliges the Court to understand and consider circumstances beyond America’s borders. Written with unique authority and perspective, The Court and the World reveals an emergent reality few Americans observe directly but one that affects the life of every one of us. Here is an invaluable understanding for lawyers and non-lawyers alike.
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U.S Supreme Court Justice Stephen Breyer gave the Keynote Address at the Assembly on Thursday March 31, 2016. Justice Breyer was introduced by Lori Fisler Damrosch, President of the American Society of International Law.
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Just over five years ago we testified together before a subcommittee of the House of Representatives’ Judiciary Committee to comment on the Administrative Conference of the United States (“Conference”). The occasion was the resumption of the Conference’s activities—under the able leadership of the then recently appointed Conference Chairman, Paul R. Verkuil—after a fifteen-year period of dormancy that began in 1995 when the agency lost its funding. Our testimony was largely informed by our own experiences with the Conference during its previous incarnation—one of us as its Chairman, the other as its long-time Liaison from the Judicial Conference of the United States. As our contribution to this special issue of The George Washington Law Review, marking the Conference’s fiftieth anniversary, we are pleased to share with its readers the prepared statements we submitted to the Judiciary Committee.
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A considerable number of cases require the justices to examine the law and practices of other nations.
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The following remarks are a transcript of a speech given by Justice Stephen G. Breyer of the Supreme Court of the United States at the University of Ottawa on September 25, 2013. The event was presented jointly by the Centre for International Policy Studies (CIPS) and the Faculty of Law.
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Charged with the responsibility of interpreting the Constitution, the Supreme Court has the awesome power to strike down laws enacted by our elected representatives. Why does the public accept the Court’s decisions as legitimate and follow them, even when those decisions are highly unpopular? What must the Court do to maintain the public’s faith? How can it help make our democracy work? In this groundbreaking book, Justice Stephen Breyer tackles these questions and more, offering an original approach to interpreting the Constitution that judges, lawyers, and scholars will look to for many years to come.
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The American Supreme Court is one of the most powerful and controversial judicial bodies in the world. The Court has assumed the role of settling fundamental issues of American social policy through its power of constitutional interpretation, and its rulings are among the most divisive, and controversial events in American political life.How did the American court come to acquire such power? How does it maintain its authority and public confidence in the face of deep political divides. In this book Stephen Breyer, a leading intellect in the current Court, gives an insider's view on how America's Supreme Court came to acquire such a prominent role in American public life, how the Court operates, and how it can continue to maintain the trust of the American public as the final arbiter of the values underlying America's democratic constitution.Breyer introduces the history of the Court by telling the stories of the landmark cases that defined the role the Court would play in American politics. He then offers a powerful restatement of his views on how a constitutional court should fulfil its function as final interpreter of a democratic constitution. In doing so, he examines some of the Court's most controversial recent decisions, on issues such as the legality of detention in Guantanamo Bay, and the scope of protection of gun ownership in Heller.The book offers a unique introduction to how the American Supreme Court does and should operate, invaluable to all students of American law and politics, and anyone looking to understand the workings of American politics.
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The following is drawn from Justice Breyer’s forthcoming book Making Our Democracy Work: A Judge’s View, to be published by Knopf in September. In that book Justice Breyer uses examples drawn from the Court’s history to show how its members have approached decisions in difficult cases. In this excerpt concerning a 2008 case, District of Columbia v. Heller, Justice Breyer seeks, as he has written, “to explain why judges who interpret the Constitution cannot rely simply upon history. They must also examine values and reconcile competing values by determining whether a restraint is proportionate to need.” The excerpt is based solely on the written record of the case, which can be found in full at www.supremecourt.gov.
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The article presents the speech "Guardian of the Constitution: The Counter Example of Dred Scott," delivered by U.S. Supreme Court Justice Stephen Breyer to the Lloyd Cutler Distinguished Visitorship in Law, The American Academy in Berlin, Berlin, Germany, on December 15, 2008.
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Access to the Media--1967 to 2007 and Beyond: A Symposium Honoring Jerome A. Barron's Path-Breaking Article.
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What role should courts play in a modern democracy? How should fundamental provisions of a democratic constitution be interpreted? These questions have divided constitutional theorists and those responsible for interpreting and applying constitutional law including, notoriously, the current U.S. Supreme Court. Justice Breyer is the most prominent liberal voice in the Supreme Court, this book distils his experience of interpreting the U.S. constitution and outlines a general liberal theory of the role of constitutional courts. Breyer argues that the primary role of a democratic constitution is to preserve and encourage 'Active Liberty': citizen participation in shaping government and its laws. The book argues that promoting active liberty requires judicial modesty and deference to legislative bodies; it also requires the recognition of the changing needs and demands of the populace. Breyer makes a powerful case against treating constitutions as a static guide for a world that has passed into history. Throughout the book, active liberty is employed as a foundational concept to illuminate the interpretation of key constitutional questions, and recent Supreme Court controversies, such as the scope of free speech and racial equality protection. For this revised, international edition of the book, Justice Breyer extends his discussion of democratic theory to examine topical questions in European constitutional law, including the legitimacy of the European Union, religious freedom under the European Convention on Human Rights.
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What is specially American ... is the surprising fact that the democratic institutions established by a written Constitution have actually worked (with many ups and downs) over the course of more than 200 years.