What the Constitution Means to Me: A Conversation with Justice Stephen G. Breyer

The interview below was conducted in Spring 2023. It has been edited for brevity and clarity.

Harvard Undergraduate Law Review (HULR): Hi Justice Breyer! We are so excited to hear about how your upbringing impacted your decision to pursue a career in law and the study of the U.S. Constitution. Could you please share any specific experiences or individuals in your life that played a pivotal role in cultivating your interest in the law and the Constitution?

Justice Stephen Breyer (JSB): Well, I grew up in San Francisco and my father was a lawyer for the San Francisco School Department — this is his watch. On the back of the watch, it says “SFUSD,” San Francisco Unified School District, and it also says “Irving G. Breyer 1933-1973.” So I grew up in an atmosphere where there were public schools and my father was a lawyer. My mother at that time, when fewer women worked, engaged in civic activities. In San Francisco, where there were many different neighborhoods, people got along fairly well and we were used to people living in different neighborhoods. There were lots of Catholics, Irish, and Italians — Chinatown was also important. There was also a whole section of Hispanic people south of Mission [District], and certainly, African Americans who were also there. There were some in my school, but it wasn’t perfect by any means.

Yet it was my father, being in his job, who was very interested in the community and believed that every child should have the best possible education. Also, my mother was involved in the Women League of Voters and United Nations Association — she was very busy. My brother also ended up becoming a federal judge for the Northern District of California, and the two of us went to Grant School. We had very good teachers who taught us how to read and people were very civic-minded in those days, particularly in San Francisco. I then went to Lowell High School and the extracurricular activity that I enjoyed was the Forensic Society where we would debate, give public speeches, get up at 5 o’clock in the morning and drive to Fresno, Bakersfield, or Stockton where they would have competitions. That was always fun.

There was also a day when all the students in the high school would have the opportunity to follow a city official, Youth in Government Day, and the one I got was the Public Defender. We also had courses, like Civics, where we learned how the government works. As part of that, we would drive to Sacramento one day in the year and sit in the Governor’s office and the state legislature, and stop at the ice cream shop on the way back — it was fun! So it was a city that was interested in civic affairs and tried to get a lot of people to live together, and that’s basically what law’s about — people who get together who think about different things — so law always interested me. I could not imagine living in California and not living in San Francisco.

HULR: Your description of the Constitution as a “living, breathing document” is a cornerstone of your judicial philosophy and has influenced countless legal scholars and practitioners. How did you come to embrace this perspective, and if you wouldn’t mind sharing, could you speak to any specific cases or experiences that solidified or challenged your belief in this approach to constitutional interpretation?

JSB: If you look at the Constitution here, it’s written in rather broad terms. Under the 1st amendment, it says “Congress shall pass no law abridging the freedom of speech” because it wants people to say different things. It talks about religion and it talks about search and seizure…and it sets up the government in the first seven articles. Well, John Marshall who was the first Chief Justice of the Supreme Court and got the country well organized under the law, he said well of course it’s going to be a constitution that will last for a long time, we hope a thousand years, and conditions will change. And we don’t know how that will change.

So you’re positioned to interpret these words broadly enough to allow for change. Just like in the late 19th century, America was a very poor country. After the Civil War, it began to grow. The railroads began to connect the country and people invented technology like Morse code, the telegraph, telephones, automobiles, and they invented new ways of financing things like incorporation, and limited liability. So this spread throughout the country, and it became rich. It went from one of the poorest countries in the world to one of the richest countries in the world; and the courts affected by that did not want to have rulings that made it poor again. So they thought that at that time, the best way was to support laissez faire, contract, and property. But by the time of the Great Depression in the 1930s, people realized this wasn't working too well and that we better have more government regulation.

So in the words of the Constitution, which stipulates that the legislative power in the United States government is vested in Congress, well, that was interpreted broadly so they could create agencies, regulate securities, railroads, ships, drugs, and even ensure that meat was safe. All those things turned out to be necessary in the national economy, which took a long time to grow, and it had many ups and downs. So you couldn't rely totally on laissez faire. Consequently, the Constitution changed or evolved to pick up what was necessary at the time, not minor things, but major things. And I saw that happen. I learned about that in school, as I was in high school in the early 50s. It wasn't that much earlier that the court had ratified the ability of Congress to create administrative agencies that would help administer the systems of regulation. So you saw and learned about the court changing slowly over time, not in a day and not in a month or a year, but maybe 10, 15, 20 years as the technological base of the society was changing as people's needs changed.

For example, slavery gave way to first freedom, then Reconstruction, then eventually Jim Crow, and then we got to get rid of Jim Crow. All these things took time, but the Constitution gradually kept up with what the country needed. The country needed to remain a free country, a country based on democracy, a country where people worked reasonably well. Those are the ideals based on human rights, based on the rule of law, based on separation of powers — so no one became too powerful whether it be states, federal, legislative, executive, judicial. Those basic underlying ideals were there in the Constitution and as they applied, they began to reflect the changes and the situation of the day.

HULR: In the Supreme Court case, Torres v. Texas Department of Public Safety, you authored your final majority opinion — an opinion that inspired me to write my first article for the Harvard Undergraduate Law Review! Compared to your first opinion on the bench, how do you think the Torres opinion reflects your growth and development as a jurist and Constitutional scholar?

JSB: Well, no one knows the answer to that. It takes time to get used to. Justice William O. Douglas and David Souter said three to five years, before you get used to it. Then you begin to see the cases repeating in tight and you begin to get less worried about, “will you decide this correctly,” because you normally do your best. So you just pay attention to the case and you do your best. Over time, probably, you can become more confident in your ability to separate “what” in the Constitution. What are these words? To what extent are they flexible? To what extent are they not? For example, it says “two senators?” Well, two doesn't mean twenty and two doesn't mean some of these two, right? It means two! There isn't any flexibility there.

But other words, like the freedom of speech. Well, that's different. George Washington didn't know about the internet, obviously, and there will be some application of the freedom of speech in the internet in more likelihood. These are the types of issues we had to decide on which John Marshall would not have had to decide. So you begin to get a feeling for what's more flexible and what is less flexible; where you have some room to maneuver and where you do not. And I think that's the instinctive part of being in charge of trying to understand or trying to get a feeling for where there's room.

José Trías Monge from Puerto Rico, the former Chief Justice of the Supreme Court of the Commonwealth, said being a judge is really like being a sculptor. You have to sense in the granite stone, where there is room — and there won't be much. Sometimes you can move a little, or there is some flexibility. Eventually over time, with experience, you will sense it.

HULR: I also wanted to talk to you about your influential role in the history of the Supreme Court’s involvement in adjudicating cases on the Second Amendment. One thing that stood out to me is that in most of the dissenting opinions that you wrote, you included empirical evidence. For example, in the Bruen case, you started off your dissent by citing statistical data from the CDC that stated “in 2020, 45,222 Americans were killed by firearms.” In light of this trend, I wanted to ask you about the importance of using empirical evidence to inform judicial decisions, especially in cases related to the Second Amendment?

JSB: Sometimes it is and sometimes it isn't. But the person who was really responsible for bringing in a lot of facts was Justice Brandeis. When he was a lawyer, he represented many of the workers and wanted to show that they have, for example, too low a wage. Well, he said the statistics work and the legislature eventually passed a law implementing a minimum wage. When he got on the Court, he began to use quite a lot of statistics. So there are cases where the facts make a big difference.

Justice Cardozo, who is a great judge, said the first thing you do is see if there is a case or a law that makes the answer obvious. If it is, you have to follow it. If there isn't, and there usually isn't, then you go back and find out what were the facts in your case? What is it about? Where does it come from? What's the tradition? All those things feed into the decision in many cases and you can't say in advance which one is going to determine it. Facts will sometimes make the difference and sometimes they won't. In the gun cases, I thought they made an enormous difference because it seems to be absurd or wrong to believe that the founders wanted to have an amendment that would allow nearly 45,000 deaths to guns.

HULR: Justice Breyer, your love and commitment to the Constitution is well-known and recognized across the political spectrum. What drives your passion for this document and the ideals and principles it represents? Finally, as you reflect on your legacy as a Supreme Court Justice, what message would you like to leave with young people who are passionate about the law and its role in advancing justice and equality?

JSB: I read a book by Derek Bok, he was the President of Harvard and one of the things he mentioned — I don’t know if it's true or not or it's hearsay — was when Pericles gave his famous funeral oration in Athens, one of the things Pericles said was, “what do we say in Athens about the man who does not participate in public life? We do not say he is a man who minds his own business. We say he is a man who has no business here.” That made an impression.

They say to graduating classes, I hope you find someone to love, I hope that you have a good job that you like, and I hope that you participate in public life. You can participate in many ways. You can be on the library board. You can be on the school board. You can at least go out and vote. You can talk to people who don't agree with you — not because you necessarily have a great argument to convince them, but you want to know what they think. Then you listen to others and find out what they think that helps you, and it helps them because you find some common points and you can make progress.

All right. Participating in public life is something I saw my father do, something I saw my mother do, and something I saw almost everybody in San Francisco do. And naturally, I thought it is an indispensable part of human existence. When I've worked with this document, the Constitution, the primary purpose of which is to hold people together in this country — 332 million or however many — under basic human rights principles, democracy, equality, rule of law, separation of powers, etc. All of those things are right here in the Constitution. They are geniuses who wrote this; they hoped that it would last, and they hoped that it would hold us together. And we've had some difficult times. We’ve had slavery, Civil War, Reconstruction, God only knows what, but we have stayed together. And according to Frederick Douglass, that was the main thing in Lincoln's mind. And I'm sure it was, because that's what Lincoln says at Gettysburg.

You also see all these great men. The founders say this, we are an experiment. We are an experiment with those principles. The people who created the principles such as Lumiere in France and those in the Scottish Enlightenment, they were philosophers and were like teachers. But very often you find in law schools and people say, “oh well, we have good ideas, but we'll never be able to make them work.” Yet, what Washington and Lincoln thought is, we're going to prove they can work. The only way they were going to prove they could work was by winning the American Revolutionary War and the Civil War. And so all I would ever hope that I could do is help transmit that idea. Because that is the idea behind the Gettysburg Address. And that is the idea behind this Constitution. So it's your generation and the next generation that's going to have to live these ideals and that have to act on it.

HULR: Here’s a fun question! If you could have a conversation with any historical figure, who would it be and why?

JSB: Well, it depends on what I wanted to know. If I want to know about race relations, I want to talk to Frederick Douglass. He was a very brilliant man and he understood everybody's point of view, as he'd been both a slave and free man, and he understood this pretty well. If I wanted to know about America, and how it's changing in our time, and how it changed 100 years ago or more — I was born in 1938 — born in 1838 was Henry Adams and I would want to talk to him. If you have ever read the autobiography of Henry Adams, he saw how the country changed from a model of England within an aristocracy to a democracy and it wasn't always good. And he thought, my God, it's terrible. What can we do? And then he thought, well, what's the alternative? But I'd love to talk to Henry Adams, a brilliant man. But if there was one person I just wanted to talk to in general as a historical figure, the answer is obvious: Benjamin Franklin.