U.S. Supreme Court

Is Breyer the 'cold fish' justice?


The evaluation of then-appeals court judge Stephen Breyer appeared harsh.

The judge’s opinions had “very little heart and soul,” according to a young lawyer and summer associate evaluating Breyer as a possible Supreme Court nominee in 1993. “Quite clearly,” the lawyers wrote, “he is a rather cold fish.”

The authors, including a lawyer who now appears before Breyer, have backpedaled, the Wall Street Journal Washington Wire blog reported in April. But Jost on Justice sees some truth in the evaluation, released this year in Clinton White House papers.

The evaluation “proved to be spot-on at the time and looks as much true as false based on Breyer’s 20 terms on the high court,” according to blogger Kenneth Jost, an adjunct law professor at Georgetown. “Among The Nine, Breyer is on the cool end of the emotional spectrum, logical to a fault with little if any of the passion that one sees in Ginsburg or Sotomayor on the left, Scalia or Alito on the right, or even Kennedy in the middle.”

According to Jost, Breyer’s “signature doctrinal commitment” is pragmatism, which makes him less likely to side with liberals on issues of free speech and Fourth Amendment searches. He also appears to be the justice least likely to overturn laws passed by Congress, Jost says.

“His ideas have had nothing like the impact of those from his hot-tempered colleague Scalia,” Jost writes. “After two decades on the bench, the influence of the cold-fish justice is sometimes hard to discern.”

Hat tip to How Appealing.

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