ESSAYS IN HONOR OF JUSTICE STEPHEN G. BREYER INTRODUCTION Martha Minow∗ To honor Justice Stephen G. Breyer’s first twenty years of service on the United States Supreme Court, Harvard Law School planned a celebration and many individual faculty members wrote reflections on some of his opinions. Those reflections are assembled here along with our community’s deepest admiration and appreciation. As one of the small number of individuals in American history who have offered their service at the highest levels of all three branches of the United States government, Justice Breyer has devoted his professional life to advancing the public good. He does so with intellectual rigor, imagina- tion, and wisdom, all in evidence in the cases discussed in the comments that follow. One distinctive feature of his judicial opinions is the perspective af- forded from his deep knowledge of how government works. As Special Assistant to the Assistant Attorney General in the Antitrust Division of the U.S. Department of Justice and Assistant Special Prosecutor on the Watergate Special Prosecution Force, 1973, he worked to enforce the law. As Special Counsel and then Chief Counsel for the U.S. Senate Ju- diciary Committee and Special Counsel for the Subcommittee on Ad- ministrative Practices, he pursued legislative factfinding, lawmaking, oversight, and advice and consent work. His service within the judici- ary started when he worked as a law clerk to Justice Arthur J. Goldberg at the Supreme Court of the United States, and continued with his ser- vice on the U.S. Court of Appeals for the First Circuit, where he also served as Chief Judge, as a member of the Judicial Conference, and as a member of the U.S. Sentencing Commission at the time of its develop- ment of the Federal Sentencing Guidelines. Harvard University has been lucky he decided to come East fol- lowing college at Stanford University and West following his time as a Marshall Scholar at Oxford University. A distinguished student and editor of the Harvard Law Review, he returned as a law professor and professor at the Kennedy School of Government. A prolific and influ- ential scholar, his powerful work on risk regulation, regulatory reform, energy regulation, making democracy work, and judicial interpreta- tion reflects both his first-hand experiences in governing and deep ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Morgan and Helen Chu Dean and Professor of Law, Harvard Law School. 416 2014] INTRODUCTION 417 commitments to rational decisionmaking, governmental deliberation, and citizen participation. His civic service on the boards of educational and health care institutions and his bicycling, his cooking, and his wide and constant reading help to explain the breadth of his knowledge, but his sense of humor is all his own. It is with joy that we offer these reflections on some of his judicial work. MAKE IT WORK!: JUSTICE BREYER ON PATENTS IN THE LIFE SCIENCES I. Glenn Cohen∗ Like Tim Gunn, the avuncular advisor to aspiring designers on re- ality TV’s Project Runway, if Justice Breyer had a slogan, it would be “Make it work!” The idea of the law as useful — as a way to solve problems — runs through his many writings, whether opinions, arti- cles, or books. As he put it in his confirmation testimony before the Senate: I believe that the law must work for people. The vast array of Constitu- tion, statutes, rules, regulations, practices and procedures, that huge vast web, has a single basic purpose. That purpose is to help the many differ- ent individuals who make up America — from so many different back- grounds and circumstances, with so many different needs and hopes.1 This focus on making things work — making sure the trains run on time — is exemplified often in Justice Breyer’s questions at oral argu- ment. For example, in Norfolk & Western Railway Co. v. Hiles,2 a case about the occupational injuries of railroad workers who connect one railcar to another, Justice Breyer let the railroad’s advocate know that “my law clerk found” a device in “the Car and Locomotive Cyclo- pedia for 1974” that could make the task safer, noting that “[t]hey have four pictures.”3 Sometimes Justice Breyer’s tendency to try to make the law work, to be practical rather than adversarial, produces some surreal moments. One of my favorite such colloquies occurred during the severability por- tion of the oral argument in NFIB v. Sebelius.4 In this part of the oral argument, the Justices confronted what to do about the huge number of programs contained in the more than one thousand pages of the Afford- able Care Act should they strike down the individual mandate portion. In a colloquy with Deputy Solicitor General Edwin Kneedler, who ar- gued for the government in favor of severability, and similar to one he ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Professor of Law, Harvard Law School. Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. I thank W. Nicholson Price and Rachel Sachs for help- ful comments, and Ashwin Phatak for outstanding research assistance. 1 Nomination of Stephen G. Breyer to Be an Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 103d Cong. 20–21 (1994) (state- ment of Stephen G. Breyer, Supreme Court Nominee). 2 516 U.S. 400 (1996). 3 Linda Greenhouse, The Breyer Project: “Why Couldn’t You Work This Thing Out?,” 4 CHARLESTON L. REV. 37, 38 (2009) (quoting Transcript of Oral Argument at 12, Norfolk, 516 U.S. 400 (No. 95-96)). 4 132 S. Ct. 2566 (2012). 418 2014] ESSAYS IN HONOR OF JUSTICE BREYER 419 had earlier with Paul Clement, who argued for the challengers to the law, Justice Breyer asked: I think it’s not uncommon that Congress passes an act, and then there are many titles, and some of the titles have nothing to do with the other titles. That’s a common thing. And you’re saying you’ve never found an in- stance where they are all struck out when they have nothing to do with each other. My question is, because I hear Mr. Clement saying something not too different from what you say. He talks about things at the periph- ery. We can’t reject or accept an argument on severability because it’s a lot of work for us. That’s beside the point. But do you think that it’s possible for you and Mr. Clement, on exploring this, to — to get together and agree on — (Laughter) . — I mean on — on a list of things that are in both your opinions peripheral, then you would focus on those areas where one of you thinks it’s peripheral and one of you thinks it’s not pe- ripheral. And at that point it might turn out to be far fewer than we are currently imagining. At which point we could hold an argument or figure out some way or somebody hold an argument and try to — try to get those done. Is — is that a pipe dream or is that a – 5 Mr. Kneedler responded: “I — I — I just don’t think that is realistic. The Court would be doing it without the parties, the millions of parties.”6 In a world where every litigant was as committed to “make it work” as Justice Breyer, this approach would represent the ideal way forward on the complex severability question the Court ultimately was able to duck. And while Justice Breyer recognized it might have been a “pipe dream,” what a lovely dream it was. It was the kind of dream that animates his worldview, and this worldview is quite evident in Justice Breyer’s patent opinions — the subject of this tribute. A second defining characteristic of Justice Breyer’s approach to the world that is evident in his opinions is his commitment to getting things right based on evidence and expertise. As Linda Greenhouse poetically put it, Justice Breyer’s “fundamental challenge — I am tempted to call it his tragedy, but I hesitate to ascribe dark emotions to this optimistic man — [is] to navigate as an Enlightenment Justice in an unenlightened period of Supreme Court history, a counter-factual age when ideology routinely trumps evidence-based decision-making.”7 This element is also evident in Justice Breyer’s work in patent law. In Laboratory Corp. of America Holdings v. Metabolite Labora- tories, Inc. (LabCorp),8 Justice Breyer (joined by Justices Stevens and Souter) took the unusual step of dissenting from the Court’s dismissal ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 5 Transcript of Oral Argument at 46–47, NFIB, 132 S. Ct. 2566 (No. 11-393), http://www .supremecourt.gov/oral_arguments/argument_transcripts/11-393.pdf [http://perma.cc/JY84-Y2J5]. 6 Id. at 47. 7 Greenhouse, supra note 3, at 38–39. 8 548 U.S. 124 (2006). 420 HARVARD LAW REVIEW [Vol. 128:1 of certiorari as improvidently granted.9 In so doing, he set out the le- gal theory that would ultimately become the Court’s in its subsequent forays into patentable subject matter in the biosciences, culminating in last year’s decision on gene patenting.10 The case involved the amino acid known as homocysteine. Doctors have known for at least half a century that high homocysteine levels were associated with serious health problems, but it was the patent holders who determined the pathway: high levels of total homocysteine were signs of folic acid and vitamin B12 deficiencies. While it was well established that these deficiencies led to health problems — preg- nant women are routinely warned of the risk of spina bifida in their babies if the mothers have too little folic acid — actually measuring folic acid and B12 levels in a patient was difficult.