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What the Supreme Court Loses With Justice Breyer’s Retirement

6 minute read

Huq teaches at the University of Chicago Law School

During the quarter-century year career on the Supreme Court, Justice Stephen Breyer constantly cultivated two judicial virtues now increasingly absent from the federal bench. The first is a careful, empirical cast of mind, constantly alive to the lived experience of litigants, institutions, and the world. The second is a humility about the limits of his own knowledge. These led him as a profound respect for other, more democratic bodies such as Congress, federal agencies. and 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. His dissent in the New York gun case last week, as well as the careful and modulated dissent from the wrecking-ball abortion decision, show as much. His opinions are often accompanied by voluminous appendices, listing in exhaustive detail the facts behind a specific point.

Sometimes, this exacting attention to the world drove Breyer to progressive conclusions. In a 2015 dissenting opinion, for example, he painted a comprehensive empirical portrait of a capricious, oft-lawless, and racially tainted capital justice system. 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. Instead, respect for facts also led him often to conservative, 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. In 2005, he cast the decisive vote upholding a six-foot-tall statute of the Ten Commandments on the grounds of the Texas State Capitol. This vote was based on his careful evaluation of the way both religious and secular citizens experienced their government in Texas. 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.”

Indeed, his most recent majority opinion, issued in a religious liberty case at the beginning of May, ruled for the First Amendment claimants wanting to fly a Christian flag in Boston. By today’s standards, this was a conservative outcome—yet Breyer managed to put together a coalition of both liberals and conservatives. Where he aimed to encompass diverse constitutional values, his conservative colleagues only weeks later blew past precedent to elevate the constitutional rights of the religious over those of the secular.

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. They are woefully lacking in attention to the actual context in which statutes are 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. A 2007 study hence found him among the least likely judges to invalidate either federal or statute statutes. A study one year before that found him least likely to strike down a federal regulation (Scalia was at the other end of the spectrum).

Other Justices engage in democracy talk—take Justice Kavanaugh’s comments about letting states decide on abortion. But Justice Breyer practices 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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