The Legacy of a Supreme Court Clerkship: Stephen Breyer and Arthur Goldberg
By Laura Krugman Ray.
Stephen Breyer, who clerked for Arthur Goldberg, is the fourth of five Supreme Court Justices who began their legal careers as clerks to earlier Justices. Not surprisingly, these pairs tend to be in at least general ideological harmony: the conservative leaning Justice Jackson and his clerk William Rehnquist, the liberal Justice Rutledge and his clerk John Paul Stevens, and, in a second generation choice, Rehnquist’s own conservative clerk, John Roberts. One pairing, that of Chief Justice Vinson and his clerk Byron White, departs from that pattern, with athletic prowess arguably its strongest common bond, a semi-professional baseball player hiring a star football player. It is easy, perhaps too easy, to assign Breyer’s clerkship with Arthur Goldberg to the top of the first category, two clearly liberal Justices whose paths crossed in the Court’s 1964 Term and whose jurisprudence would naturally reflect their shared perspective. The reality is both more complicated and more interesting.
The commonalities shared by Goldberg and Breyer are easily identified. Both grew up, a generation apart, in urban Jewish families; both achieved early and remarkable academic success; both spent some time working in other branches of government, Goldberg in the Kennedy cabinet and Breyer as counsel to the Senate Judiciary Committee; and both brought to the Court a decidedly liberal approach to issues of individual rights, an adventurous openness to the relevance of foreign law, a nuanced approached to the Establishment Clause, and a willingness to consider opposing views with civility. Yet there are equally identifiable points of divergence in their judicial conduct. Where Goldberg, the decisive fifth vote for the Warren Court majority and a lifelong advocate of its decisions, was candid about his judicial agenda and his commitment to an activist bent in pursuing it, Breyer has both described and demonstrated a quite different sense of the judicial role, one that prefers to take each case on its own merits with an eye to empirical data and pragmatic consequences. And where Goldberg’s vote during his brief tenure on the Court was resolutely predictable, Breyer has retained over his more than fifteen terms the capacity to surprise. Although he has written warmly of his clerkship year with Goldberg, Breyer’s opinions reflect not the direct influence of a mentor but rather the indirect and subtle ways in which one Justice may influence the future judicial performance of another.
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