Retired U.S. Supreme Court Justice Stephen Breyer Returns to GW for Fourth Conversation

The justice spoke about his time serving as chief judge of the U.S. Court of Appeals for the First Circuit and his service on the U.S. Sentencing Commission.

November 13, 2023

Retired Supreme Court Justice Breyer.

Retired U.S. Supreme Court Justice Stephen Breyer gave the fourth of five conversations at GW Law on Thursday. (Photos by William Atkins/GW Today)

Retired U.S. Supreme Court Justice Stephen Breyer returned to the George Washington University Thursday afternoon to deliver the fourth installment in a conversation series hosted by the GW Law School, this session focusing on his time as chief judge of the U.S. Court of Appeals for the First Circuit and as an initial member of the U.S. Sentencing Commission in the 1980s.

The series is intended to be an oral history of the life and prestigious career of Justice Breyer. Robert Brauneis, a professor of intellectual property law and co-director of the Intellectual Property Law Program at GW Law, served as a moderator for Thursday’s discussion.

Brauneis asked Justice Breyer what motivated his decision to join the Sentencing Commission, which was created by Congress in 1984 to reduce sentencing disparities and promote transparency and proportionality in sentencing.

Justice Breyer explained some federal judges at the time had begun speaking out about discrepancies in sentencing, noting many instances when two people who committed the same offense would serve wildly different prison sentences.

“And it's particularly true that they're in different parts of the country. And there shouldn't be wild discrepancies,” Justice Breyer said. “There were all kinds of academic studies where they give different judges the same pre-sentence report, and you get wildly different sentences.”

He said Congress set out to get a more uniform sentencing system.

 In 1984, Congress passed a sentencing reform measure, which created a uniform sentencing structure through the federal sentencing guidelines. The Sentencing Reform Act of 1984 also created the U.S. Sentencing Commission, which was tasked with establishing sentencing guidelines.

“We tried to write a group of guidelines that would achieve the objective,” Breyer said.

He also noted political pressure to be tougher on drug-related crimes led to Congress passing mandatory minimum sentences in the 1980s.

“The point of the guidelines was to get the sentencing more uniform, and that is very hard if you’re in a political world to have uniform sentencing because you're under pressure from constituents. Drugs were coming up as big crimes then. And Congress began to pass mandatory minimums,” Justice Breyer said.

Brauneis asked the justice how he handled ethical issues relating to judges while he served as Chief Judge of the United States Court of Appeals for the First Circuit, which is based in Boston.

“There’s been various discussions about ethical issues and judges recently. I'm curious about how you approached and resolved those issues and what lessons we might draw from that?” Brauneis asked.

Retired Justice Breyer and Robert Brauneis of GW Law

GW Law professor Robert Brauneis (R) led the conversation with Justice Breyer.

Justice Breyer said he would consult the written rules or professors of ethics to determine the best course of action.

“In the court of appeals and the district courts, the federal system, some committees have ethical rules for everybody, and they put them in seven volumes. So, if there was an ethical problem that came up, I would read the part, and I would try to follow it,” Justice Breyer said. “And if you couldn't figure it out, there are a lot of professors of ethics you could phone, which I would do and see what they said.  And when I became a justice of the Supreme Court, I did the same thing.”

During the conversation, Brauneis also asked Justice Breyer about his decision to turn down a job as a dean of a law school while he was a judge. “I've heard you were considered for the deanship of Harvard Law School at some point while you were a First Circuit judge, and you did not choose to take up the opportunity,” Brauneis said.

Breyer said what he appreciated about serving as a judge was that it offered a connection to his community.

“My father was an attorney for the school board. I grew up in the San Francisco public schools. I grew up in an area where my family and others sort of instilled a respect for community organizations,” Justice Breyer said. “To be in the midst of that, to be part of that community, that I liked.”

He said one big piece of advice he shares with students often is to be involved in their community because it makes for a more fulfilling life.

“When I’m talking at graduation, I usually say, I hope you’ll find someone to love, I hope you’ll find a job that you enjoy and is satisfactory for you, and I hope you will participate in the life of a community,” he said. “Well, this was my way of having an opportunity to do that. I do think I put a weight on that.”

Another piece of advice the justice shared with students was to listen to people who hold  opposing viewpoints.

“I tell that to the law students when I'm talking to them. I say what you're going to do as a lawyer, it’s what you should do as a person, whether you're a lawyer or not, is listen to the people who disagree with you,” Justice Breyer said. “And the best thing you can do is make them understand that you have listened.”

Referencing Abraham Lincoln’s Temperance address, Breyer said, “The way to win hearts, is before you get into the argument, to persuade the other person you are his friend.”