The Nine [44]
Breyer was a product of a specific place and time—San Francisco in the 1950s. When he became famous, much later, the only one of his alma maters that he would invariably mention in speeches was Lowell High School. “That doesn’t mean a lot to you, but it means a lot to me,” he would say, to puzzled audiences. Lowell was the most elite public school in the city, with competitive admissions, and the place sizzled with the ambitions and smarts of recent immigrant offspring. This was not the San Francisco of the following decade, of Haight-Ashbury and the Summer of Love, but rather a growing metropolis that was both cozy and booming. In summers, Breyer worked as a “hasher” (a slinger of hash) in a city-owned camp in the Sierras where the families of firemen, policemen, doctors, and lawyers mingled happily. Few places, before or since, matched San Francisco of that era for civic harmony and commitment to community. (As Breyer would always note of this period, the options were not quite as open for blacks and women.) For forty years, Breyer’s father worked as a lawyer for the San Francisco school system. His mother was a homemaker who volunteered with the Democratic Party and the League of Women Voters.
For all his degrees, the most important part of Stephen Breyer’s education began in the midseventies when he commuted from Harvard to Washington to work as a counsel for the Senate Judiciary Committee, then chaired by Edward Kennedy. There, Breyer eventually became chief counsel and encouraged Kennedy to embrace a cause that moderated his image as a doctrinaire liberal: deregulation—of the airlines, of trucking, and of the natural gas industry. It was an unusually harmonious and productive time for the committee, and Breyer won the admiration of senators across the political spectrum.
This turned out to be especially important in 1980, when Jimmy Carter nominated Breyer to the First Circuit. Ronald Reagan had already won the election when Breyer came before the committee, and the Republican chairman, Strom Thurmond, had no reason to let the lame duck president fill a precious seat on the court of appeals. But Kennedy prevailed upon Orrin Hatch to ask Thurmond to let Breyer through. Calling Breyer “a member of the family,” for his work on the committee, Hatch won over the venerable chairman. Breyer was the last judge confirmed before Carter left office. Amid similar good feelings, the Senate confirmed his nomination to the Supreme Court by an 87–9 vote on July 29, 1994.
Breyer arrived at the Court bearing an uncynical love of government. He believed that government existed to serve people and solve problems, and to a great extent, that it did. More to the point, Breyer admired and trusted Congress and thought that the people’s representatives generally worked in the people’s interest. After the first or second time, most justices wearied of attending the president’s State of the Union address, fretting about the question of when to applaud and generally disdaining their awkward status at the occasion. But Breyer felt his attendance was a gesture of solidarity with the other branches of government, and he never missed it—even when he was the only justice there.
In other words, as Stephen Breyer began his first full term on the Court, he was profoundly out of step—with the country, with the Congress, and even, to some extent, with his new colleagues. The country, it seemed, had turned on the very idea of government and especially on its personification, the members of Congress. On November 8, 1994, voters unseated the Democratic majority in both the House and the Senate. That same day, as it happened, the Court heard arguments in a case that threatened everything Breyer believed in—United States v. Lopez.
The members of the Federalist Society and others who wanted the Court to undermine the constitutional basis for a strong federal government needed a case where the issue was raised. So in the strange serendipity that often