Jul 15, 2022
at 3:23 p.m.
Judge Stephen Breyer administers the judicial oath to his successor, Judge Ketanji Brown Jackson, while Jackson’s husband, Dr. Patrick Jackson, holds two Bibles. (Fred Schilling, United States Supreme Court Collection)
Judge Stephen Breyer retired on June 30 after 28 years on the court. This article is the last entry in a symposium on its jurisprudence.
Anastasia Boden is Senior Counsel and Elizabeth Slattery is Senior Legal Officer at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ freedoms when threatened by government excesses and abuses. They also host Dissed, a Supreme Court podcast.
Perhaps one of the worst accusations one can throw at a judge is that they are inconsistent, because it involves the judge ruling on his whim rather than the rule of law. For Justice Stephen Breyer, consistency was key: for better or worse, democracy was his guiding principle.
This multifactorial, test-loving and long hypothetical justice has been a constant defender of democracy, even if this has sometimes led it to neglect individual rights in favor of everything that comes out of the political process. This tendency was revealed in its First Amendment jurisprudence. Although the right to free speech is explicit in the Constitution and generally well protected by judges, Breyer believed that free speech should only receive strong protection if it involves speech. political or otherwise vital to advancing democracy. Things like commercial speech or professional speech, he said, were less important.
Because of this unwavering faith in democracy, Breyer spoke publicly about the importance of civic participation and education. He repeatedly urged Americans to learn about the nation’s history, its founding documents and the civil rights movement. He even once suggested that trials in lower courts be brought to homes through a live broadcast. And rather than seeing the Constitution as a document that puts principles above political squabbles, he once said that it established a way for people to settle their political differences. Everything that came out of that process was law.
His attachment to democracy (he even wrote a book about it) explains decisions that, at first glance, may seem contradictory. Breyer supported affirmative action, once stating that his vote for maintaining racial preferences in Grumble against Bollinger was one of the most important cases in which he was involved. But he also voted with the majority in Schuette v. Affirmative Action Advocacy Coalition to enforce an amendment to Michigan’s constitution that prohibited state universities from considering race in admissions. While he believed affirmative action was constitutional, he also refused to block a Democratic attempt to limit it. His deference to legislatures was not unlimited, however, and did not extend to cases involving abortion and capital punishment.
In some ways, his “judicial modesty” was another form of what, on the right, is often called judicial restraint. Both philosophies are based on the premise that the courts should defer to the more democratic legislature. And indeed, although he was considered a “liberal” judge (Breyer himself dislikes the term because it implies the court is political), he is widely considered a moderate and sometimes voted with judges of very different opinions. In Schuette, for example, he voted with Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, while Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented (Judge Elena Kagan dissented). challenged). A recent study found him the least liberal of the other Democratic-appointed justices he served with recently.
There have even been several times where he has agreed with the libertarian Pacific Legal Foundation (where we work). He sided with the organization in four of his Supreme Court victories (Suitum, Sackett, Hawkes, and Weyerhaeuser), which were all about property rights or environmental law, and he joined the court in granting review, setting aside the judgment and sending a major property rights case back to the lower court (Pack).
He has also joined the Tories in cases of keeping religious monuments on government property, siding with the pastry chef who refused to make a personalized wedding cake for a reigning same-sex couple for Catholic social services when the city of Philadelphia closed the agency. foster care because he would not recommend placements with same-sex married couples.
By losing Breyer, the court will also lose a lot of humor. He is famous for asking long, complex, and often amusing hypothetical questions during argument that aim to draw out the implications of the lawyer’s position. In Gonzales versus Raich, In a case testing the limits of Congress’s business power, Breyer set out to show that, in his view, a law regulating intrastate activity could have far-reaching effects. The case involved a woman with cancer who was growing medical marijuana for personal use. During oral argument, he asked Georgetown law professor Randy Barnett to imagine that a person:
You know, he grows heroin, cocaine, tomatoes that are going to contain genomes that could, at some point, lead to tomato children that will eventually affect Boston.
The Boston Tomato Children? A hypothetical creation, certainly. As Breyer later said, “A strange example may draw particular attention to the point you wish to explore when interpreting the laws.” He wanted to know how the defenders’ arguments would play out in the real world…or sometimes in the alien world.
In Cedar Point Nursery c. Hasid, Breyer proposed a surprising hypothesis to our colleague, who was pleading on behalf of two fruit nurseries. At issue was whether a state law allowing labor organizers to trespass on the private property of nurseries for three hours a day, 120 days a year, constituted a hold requiring compensation under the Fifth Amendment. Some of the judges worried that if they viewed the law as a hold, it could implicate the government’s ability to conduct administrative searches, which also allow third parties to gain access to private property.
Our colleague’s response was that administrative searches stand out because they were authorized by the common law, and the common law informs the limitations of the Fifth Amendment. In response, Breyer said:
I don’t mean to sound facetious or sarcastic, but I was trying to think of an example. [Imagine] people now have their own private spaceships in 15 years or their own electric cars or their own driverless cars, and there’s a law that says people can come in, the inspectors, the gas station. If you keep your car unused inside your property for 10 years, they want to go and inspect it. They have to do it because it could explode. They didn’t have spaceships in common law.
His argument was that there could be things that were not permitted by the common law, but which everyone would agree should not be considered a prize. Thus, Breyer naturally turned to space. (Our colleague replied that what matters is the principle, not the technology available at any given time).
In addition to his creative and often lengthy hypotheses, Breyer was known to be a fan of multi-factor balancing tests rather than clear line rules. The last mandate, in Mahanoy Area School District v.BL, also known as the Cursed Cheerleader Case, the court considered whether public schools could constitutionally punish off-campus speech by students. Writing for the majority, Breyer declined to offer a clear line rule, instead proposing a three-part test to determine whether speech could be regulated.
He didn’t care about clean lines, he cared about practicality. And it is because of his measured, curious and pragmatic nature that the court loses one of its most interesting judges.