DOver his quarter century-year tenure on the Supreme Court Justice Stephen Breyer cultivated two virtues that are increasingly lacking from federal courts: the first is a careful, empirical mind. First, he is an empirical, careful mind that’s always open to hearing the lives of others, including institutions and litigants. He is humble about his knowledge limitations. This led to a deep respect and admiration for the work of other more democratic entities, such as Congress and federal agencies. the state legislatures. Under their sway, Breyer vindicated “Our Democratic Constitution” as finely as anyone else to grace the high court bench.
Unlike the approaches favored by other Justices, Breyer’s brand of well-tempered empiricism forced him to be candid about what informed his judgment. It avoided simplistic fallacies—peddled hard under the ‘originalist’ label—to the effect that constitutional law at the high court can avoid normative judgments: The text of the Constitution is too majestically general, and too capacious for it to be otherwise. By bringing to light the law’s real justifications, and amplifying the space for democratic choice, his work embodied real judicial restraint—and a real commitment to the founding American value of lived democratic choice.
Justice Breyer’s opinions are characterized by detailed consideration of the many factors that legitimately bite on a legal questions, coupled with close attention to factual detail. Both his disapproval in the New York gun cases last week as well as his carefully modulated and controlled dissent regarding the wrecking-ball abortion decision show that much. Many times, his opinions come with voluminous appendices that detail in great detail the facts surrounding a particular point.
Breyer reached progressive conclusions sometimes because of his meticulous attention to the world. He painted an extensive empirical portrait in a 2015 dissenting view of a capricious capital justice system that was often ungoverned and racist. His relentless and powerful catalog of racialized caprice and malice should lay to rest any thought that the American death penalty can avoid being “cruel” and “unusual” in violation of the Eighth Amendment, let alone even-handed across the color line.
In a more centrist vein, he penned in 2006 a sweeping rebuttal of the Court’s decision to invalidate race-conscious efforts by schools to maintain integration. Chief Justice Roberts’s majority rested on a phrase of illusory simplicity: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In contrast, Breyer demonstrated beyond doubt that when historical patterns of racial discrimination carve up the present social world, race-blindness has the effect preserving uneven access to quality education.
Justice Breyer’s solicitude for the facts has not been mere code for ‘liberal’ outcomes. Justice Breyer’s respect for the facts led him to often adopt conservative and even illiberal opinions. In 2011, for example, he dissented from the Court’s invalidation of a California statute banning the distribution of violent video games to young people. Canvassing alternatives to a ban, Breyer flagged “serious enforcement gaps” left by other technological options. Breyer cast the decisive voting in 2005 to uphold a statute measuring six feet tall, which was placed on the grounds the Texas State Capitol. Based on careful analysis of how both religious and non-religious citizens experience Texas’ government, he voted in favor. And in 2002, Breyer provided the pivotal vote in an important Fourth Amendment case about students’ rights against suspicionless drug testing. He upheld the practice against constitutional challenge, citing the “serious national problem” with drugs, and the school’s decision to avoid “criminal or disciplinary.”
His most recent majority opinion was issued in a case concerning religious liberty at the start of May and ruled in favor of First Amendment claimants who wanted to fly a Christian flag over Boston. By today’s standards, this was a conservative outcome—yet Breyer managed to put together a coalition of both liberals and conservatives. His goal was to include diverse constitutional values. However, Breyer’s conservative counterparts blew past all precedent and elevated the constitutional rights for the religious above those for the secular weeks later.
The clarity and rigor of Justice Breyer’s opinions are absent from many of his more conservative Justices’ recent work-products. As Professor Ryan Doerfler has recently explained, many Roberts Court opinions are an “almost comical” exercises in logic-chopping semantics. These opinions are completely ignorant of the context within which statutes were made.
Further, Breyer’s candor is at odds with the “originalist” label that several Justices proudly display. This label is paraded at a moment when critical areas of constitutional law—such as campaign finance, property takings, and racial equality—float completely free of any anchor in eighteenth-century understandings. In contrast, Justice Breyer—even when you disagree with him—treats his reader as democratic equals who deserve an actual justification, not just high-handed sophistry.
The second key trait of Justice Breyer’s jurisprudence is respect for the ability of our democratic institutions to make their own judgments—often with tools far superior to courts—and to act on those conclusions. In 2007, he was found to be among the few judges most likely to nullify statute statutes or federal regulations. He was also least likely, according to a study done one year prior (Scalia at the other end).
Other Justices engage in democracy talk—take Justice Kavanaugh’s comments about letting states decide on abortion. Justice Breyer does what he preaches. Not for him judicially created rules to the effect that agencies can’t decide “major questions”—recently invoked to shut down President Biden’s vaccine mandate. That sort of judge-made rule can too easily be expanded and contracted, accordion-like, to fit the Justices’ policy preferences.
Justice Breyer’s career hence tees up the right questions to ask of the Court in coming weeks and months: Will it be well attuned not just to all the facts of the world (not just the convenient ones), and at the same time honor its limited empirical capacities? Will Justices work toward and support a constitutional democracy—or are they a threat to that very enterprise? The Court that comes after Justice Breyer’s retirement has high standards to meet indeed.
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