Justice Breyer's Interpretation of Cruel and Unusual

Terence P. Jeffrey | February 2, 2022 | 4:34am EST
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Supreme Court Justice Stephen Breyer holds up a copy of the Constitution as he announces his retirement at the White House, January 27, 2022. (Photo by SAUL LOEB/AFP via Getty Images)
Supreme Court Justice Stephen Breyer holds up a copy of the Constitution as he announces his retirement at the White House, January 27, 2022. (Photo by SAUL LOEB/AFP via Getty Images)

When Stephen Breyer was 4 years old, and his father, Irving Breyer, was serving as legal counsel for the San Francisco Board of Education, the San Francisco Examiner ran a story headlined "Court Test Looms in S.F. Student Beating."

"The flogging of Robert Troutfelt, 13 year old student at Marina Junior High School, showed every indication yesterday of becoming a 'cause celebre,' determining the status of corporal punishment in local schools," said the story.

Two days before that, on March 18, 1943, the Examiner had laid out the alleged details of the case.

"Upon complaint of George T. Troutfelt, indignant father of Robert Troutfelt, warrants were issued for Walter Nolan, principal, and Walter Pickett, vice principal," said that story.

"Robert was home sick on Monday," the Examiner quoted his father as saying. "When he went back to school on Tuesday I gave him money and told him to be sure, because of his condition, to get a hot lunch. He went across the street to get his lunch — and was beaten for leaving the school grounds."

"My dad had told me to get a hot lunch, so when noon came, I went across the street and got it," the boy said in his own version of events reported by the Examiner. "The school cafeteria was crowded, as it always is, and I knew I'd have a hard time getting served. When I came back, I was told to report to the principal."

"When I walked into his office," the boy said, "Mr. Nolan reached into his desk drawer and pulled out a strap which he handed to Mr. Pickett. It was about three feet long and thicker and wider than a belt."

"Mr. Pickett told me to hold out my hand and then hit me four times with the strap," the boy said. "He was gritting his teeth when he hit me. He hit me on the hand and wrist. It hurt plenty — and it kept hurting all that day and all last night."

The boy's father was not pleased.

"The father took the boy to Dr. Howard C. Newson at 2964 Fillmore Street, who treated the bruises," the Examiner reported. "Then Troutfelt took his son to a studio to have the welts photographed."

"Before swearing out warrants, the elder Troutfelt revealed, he went to the office of J.P. Nourse, superintendent of schools, to make a complaint, but was told that Nourse was 'too busy' to see him," the paper said.

The next day, the school board indicated it would stand with the principal and vice principal. This time the Examiner's headline said, "School Board Backs Pair in Beating Case." Lawyer Irving Breyer explained why.

"Unless new and startling evidence develops, the board will stand solidly behind the two school officials and will furnish them legal aid if they so desire," said the Examiner.

"This decision was reached at a special meeting of the school board, Irving Breyer, attorney for the school department, disclosed yesterday as he appeared in the court of Municipal Judge Frank W. Dunn to represent one of the defendants (Pickett) and to act as observer for the school board."

"In disclosing the board of education does not now consider either Nolan or Pickett violated school regulations governing corporal punishment, Breyer said both men appeared before the board and gave their version of the affair," said the Examiner.

"They told the board that 'four light taps' were administered with a strap," the Examiner reported.

"Both men," the paper quoted Breyer as saying, "expressed astonishment that the boy complained of a severe beating and said the punishment caused welts or bruises. It was certainly not severe enough for that, they said."

A month and a half later, the trial in the case was postponed when the school principal suffered a health crisis.

"Breyer informed the court that Nolan suffered a heart attack three weeks ago, and is confined to a hospital," reported the Examiner.

The boy's father then asked that the charges he had filed against the principal and vice principal be dismissed, which they were, and took aim directly at the school board.

A June 9, 1943, Examiner story said: "A claim for $20,000 damages was filed with the board of education yesterday by George E. Troutfelt, whose 13 year old son Robert recently was given corporal punishment at Marina Junior High School."

On June 23, 1943, the Examiner reported: "The board of education yesterday denied a claim for $20,000 damages, filed by George E. Troutfelt, whose 13 year old son, Robert, was given corporal punishment at Marina Junior High School."

Sixty-seven years later, Justice Stephen Breyer published a book, "Making Our Democracy Work," in which he explained why he did not embrace an originalist interpretation of the Constitution.

"What would the public think of an Eighth Amendment (which forbids 'cruel and unusual punishments') that would permit flogging in the navy today on the grounds that flogging was common practice on eighteenth-century ships?" wrote Breyer.

"Can originalism gain the public's respect?" he asked.

"Similarly," he wrote elsewhere in the book, "the values underlying the Eighth Amendment's prohibition of 'cruel and unusual punishments' suggest that today the amendment would prohibit flogging even if many eighteenth-century Americans thought flogging was neither cruel nor unusual."

He did not address the question of corporal punishment in 20th-century San Francisco schools.

But in the case of Stenberg v. Carhart, which the court decided in 2000, he did address a Nebraska law that prohibited "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery."

"We hold that this statute violates the Constitution," Breyer wrote in the 5-4 opinion of the court.

History will remember him for claiming that killing a partially born child was a constitutional right.

(Terence P. Jeffrey is the editor-in-chief of


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