The recent, momentous United States Supreme Court judgments on abortion and gun control have drawn worldwide attention to the Originalist jurisprudence of the court’s majority and called into question the court’s public standing.
Even before those decisions, the court had never sunk so low in the American public’s estimation.
Understandably, less attention has been drawn to the departure of Justice Stephen Breyer. Yet, his long career of public service and his final dissenting judgments deserve both our attention and respect.
His achievements make me wonder why so many great jurists’ names begin with B: Brandeis, Bingham and Brennan to name a few.
Stephen Breyer was born in San Francisco in 1938 of Romanian and German-Jewish ancestry. His father, who attended Stanford University, was the first in his family to attend college and worked for 41 years as a lawyer for the San Francisco Board of Education. Breyer wears his father’s watch that is engraved with a note about that public service. Breyer’s mother was active in community work.
Breyer graduated from Stanford University and won a scholarship to study at Oxford. He later studied at Harvard Law School, graduating in 1964. He served as law clerk to Justice Goldberg on the US Supreme Court and later worked in the US Department of Justice’s Anti-Trust Division.
In 1967, Breyer returned to Harvard where he taught until 1980. He was an expert in administrative law and deregulation of the airline industry, and also wrote extensively about copyright law.
During leave, he worked as an assistant special prosecutor on the Watergate Special Prosecution Force and as special counsel to the Senate Judiciary Committee.
In 1980, Breyer was appointed to the US Court of Appeals for the First Circuit. He also served on the Judicial Conference and on the Sentencing Commission, which introduced guidelines to reduce inconsistency in sentencing while maintaining a degree of judicial discretion.
In 1994, Breyer’s appointment by President Clinton to the Supreme Court was confirmed in a 87-9 vote in the US Senate.
The cases that have engaged public attention during Breyer’s time on the bench distract attention from the quality and quantity of his judgments on less controversial issues. While on the US Supreme Court, he has written more than 500 major opinions, many on complex ‘black letter law’ issues.
His administrative law background and judicial philosophy made him deferential to expert assessments by regulators and evaluations by legislators about the public interest. He showed a consistent pattern of deferring to Congress, voting to overturn congressional legislation at a lower rate than any other judge since 1994.
I will not detail his contribution to the law on controversial topics such as voting rights, free speech, civil rights, affirmative action, abortion and capital punishment. Instead, I will refer briefly to what Professor Cass Sunstein described in 2006 as Breyer’s Democratic Pragmatism.1
This approach is, in part, a response to the Originalism of Justice Scalia and his followers, which reached its high point with the abortion and gun control decisions of June 2022.
Breyer explained his judicial philosophy and approach to interpretation both in decisions and in extra-judicial writing. They include his book, Active Liberty, about the right of the citizenry to participate in government.
According to Breyer, central concerns of interpretation include purposes and regard to consequences. He argues that considering the practical consequences of an interpretation is a way to ensure consistency with the law’s intended purpose.
An engaging three-minute video captures Breyer’s philosophy and character.2
Over the years Breyer argued that, if the court ignores the consequences of its decisions, it can lead to disastrous results. This lesson was lost on many of his colleagues.
In his 2010 book, Making Our Democracy Work: A Judge’s View, he explained that judges have six tools to decide a provision’s meaning: (1) its text, (2) its historical context, (3) precedent, (4) tradition, (5) its purpose, and (6) the consequences of potential interpretations.
One might observe that, as in any other skilled trade, one cannot use only one tool on all tasks.
Politicians in robes
To many observers of recent history, it seems that appointees to the US Supreme Court have been chosen to serve specific political agendas on issues like abortion, and thereby galvanise electoral support for a presidential candidate.
The Roberts Court’s 2010 decision in Citizens United, in which the court struck down campaign finance laws on a basis that was not argued by the litigants, gave a preview of what was to occur this year. For example, Mississippi did not initially challenge Roe v Wade.
Professor Ronald Dworkin wrote about the Citizens United case in an article titled ‘The Decision that Threatens Democracy’.3
“No Supreme Court decision in decades has generated such open hostilities among the three branches of our government as has the Court’s 5–4 decision in Citizens United v. FEC in January 2010. The five conservative justices, on their own initiative, at the request of no party to the suit, declared that corporations and unions have a constitutional right to spend as much as they wish on television election commercials specifically supporting or targeting particular candidates.”
Dworkin exposed flaws in the majority’s decision, its inconsistency with free speech principles and precedent, and its terrible implications. He concluded:
“The Supreme Court’s conservative phalanx has demonstrated once again its power and will to reverse America’s drive to greater equality and more genuine democracy. It threatens a step-by-step return to a constitutional stone age of right-wing ideology. Once again it offers justifications that are untenable in both constitutional theory and legal precedent. Stevens’s remarkable dissent in this case shows how much we will lose when he soon retires. We must hope that Obama nominates a progressive replacement who not only is young enough to endure the bad days ahead but has enough intellectual firepower to help construct a rival and more attractive vision of what our Constitution really means.”
The “bad days” that were ahead in 2010 were worse than Dworkin probably imagined. They now are recent history. President Obama made appointments, but after the death of Justice Scalia, Republican Senate majority leader Mitch McConnell did not allow even a procedural vote on the nomination of the distinguished jurist Merrick Garland to fill the vacancy.
Justice Ruth Bader Ginsburg, seemingly thinking she would live forever, did not retire during the eight years of the Obama presidency. As a result, President Trump was able to appoint three judges to the court, promising voters that they would overrule Roe v Wade. This they did in June 2022.
The noble lie
In his last book, The Authority of the Court and the Perils of Politics, Breyer attempted to preserve the notion that current judges on the US Supreme Court, despite their differences, were engaged in an essentially apolitical exercise. Professor Laurence Tribe is dismissive of such claims:4
“Unfortunately Breyer’s book, surely the least impressive of his considerable body of extrajudicial writings, is not a thoughtful exploration of the virtues and vices of well-meaning deception. In his stubborn avowal that the Court – even with its current far-right supermajority – remains an apolitical body, he perpetuates a lie that is anything but noble. I have written much that is entirely positive about his judicial opinions, so it pains me to say that his book reads as though it had been written by someone oddly unaware of the implausibility of its factual claims.”
The June 2022 Originalist triumph and Breyer’s last stand
Much has been and will be written about the court’s June 2022 decisions on abortion and gun control. Podcasts also abound.5
For some, Breyer’s dissents in those cases may seem as meaningless as a brilliant try or goal scored by a team during a historic and catastrophic defeat in a grand final. Yet, they show a first-class mind at work and a masterful legal technique.
I will note just a few aspects of his dissent in the successful challenge to New York’s century-old law about carrying concealed weapons in public.
By way of background, the US Supreme Court’s 2006 decision in Heller transformed a settled view about the purpose and scope of the Second Amendment. Justice Scalia, writing for the majority, claimed that historical materials supported the conclusion that the Second Amendment conferred individual rights. This was shabby history on Scalia’s part, as Justice Stevens in dissent explained at the time. Since 2006, historians have exposed Scalia’s purported reliance on the historical record as overwhelmingly against the weight of the evidence.
Scalia’s judgment in Heller was the subject in 2018 of a careful analysis by Justice Glenn Martin.6
Justice Breyer’s recent dissent begins with some devastating evidence about the problem of gun violence.7
He respects the ruling in Heller and upholds the New York law by applying Heller’s two-stage test for constitutional validity. This was a test that Scalia developed in Heller so as to allay concerns that many widely-accepted gun controls would be rendered unconstitutional. The Supreme Court’s latest decision abandons the two-stage test.
Breyer’s dissent carefully dismantles the majority’s Originalist argument and its excessive reliance on historical analysis about the type of regulation that was envisaged when the Second Amendment was passed.
Breyer also raises the following practical problems with the approach of the Originalists:
“The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions. Consider, for example, the following. Do lower courts have the research resources necessary to conduct exhaustive historical analyses in every Second Amendment case? What historical regulations and decisions qualify as representative analogues to modern laws? How will judges determine which historians have the better view of close historical questions? Will the meaning of the Second Amendment change if or when new historical evidence becomes available? And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history? See S. Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. Rev. 1095, 1098 (2009) (describing “law office history” as “a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion”).”
Breyer’s deference to democratic, evidence-based assessments in complex cases is a refreshing alternative to the Originalist obsession with what form of gun regulation was tolerated or envisaged in the 18th Century.
The majority suggests that concealed weapons can be controlled in “sensitive places” like courthouses but leaves the citizenry to speculate whether subways and planes also are “sensitive places”. Sadly, no one was thinking about those places when the Amendment was passed. The Amendment was anchored in the need to arm a militia in defence of the republic, not the supposed individual right to conceal guns on trains or planes. Regulation of guns was accepted until recent decades, even by the NRA, until it began to wield money and political power at elections and to challenge in courts the validity of long-standing gun controls, aided by judges like Scalia.
The new majority’s decision is based on dubious historical analysis (as Breyer points out) and a disregard of purpose and consequences in the task of interpretation.
On the central issue in the gun case of balancing the interest of people to have guns for self-defence and other legitimate purposes against the scourge of gun violence, Breyer wrote:
“Balancing these lawful uses against the dangers of firearms is primarily the responsibility of elected bodies, such as legislatures. It requires consideration of facts, statistics, expert opinions, predictive judgments, relevant values, and a host of other circumstances, which together make decisions about how, when, and where to regulate guns more appropriately legislative work. That consideration counsels modesty and restraint on the part of judges when they interpret and apply the Second Amendment.”
Modesty and self-restraint do not feature in the majority opinions. But they are important qualities for judges, and not only when they encounter difficult questions about historical materials from the 18th Century.
In response to Breyer’s dissent, Justice Samuel Alito took a cheap parting shot at Breyer by noting that the New York law did not stop the recent mass killings in Buffalo. Breyer did not claim that it would. Instead, he pointed to the purpose of the New York law, and the scope that the Second Amendment gives to states, in accordance with Heller, to regulate guns in public places. Crowded states like New York can choose to have different concealed gun laws to a state like Montana. It’s called democracy.
Viewed from this side of the Pacific, the Alito–Breyer spat seems to boil down to this:
- Alito says people are afraid of being attacked and so mostly enjoy the right to have as many guns as they like, just about anywhere they like.
- Breyer says that people are afraid because there are too many guns in society, and states should be able to regulate them so as to reflect their citizens’ legitimate concerns about gun violence.
One hopes for the sake of American democracy and the rule of law that the two recent decisions of the Supreme Court have not placed that court beyond repair and devoid of essential public confidence.
Historians will argue whether the 50-year period between about 1950 and 2000 was an exceptional period in the Supreme Court’s history, and that in recent times it simply has reverted to its historic role of being a brake on democracy and the realisation of individual rights. Many of us for most decades of our lives have known a US Supreme Court that generally extended voting rights, ended racial segregation in schools and public places, championed free speech, upheld privacy against arbitrary intrusion by the State, introduced due process rights in the criminal justice system, and respected the autonomy of the individual.
The idea of the Supreme Court taking away rights is unfamiliar. Yet, it involves the simple notion that what the court gives, the court may take away.
Some analysts are inclined to contrast the bipartisan support for Roe v Wade on the court in the 1970s with the hyper-partisan 6–3 division in 2022 that overruled it. Others will say that Roe v Wade set in train a political movement that irreparably politicised the court along fracture lines that run deep in modern America. They also will say that this has now exposed US Supreme Court judges for what they always have been: politicians in robes.
Whatever the merit of these arguments, and the comparison with the path abortion law took in this country and other democracies, it is sad that judges like Stephen Breyer are tarred with that brush after a lifetime of public service and fidelity to the rule of law.
Breyer’s jurisprudence, both on and off the bench, has recognised the role of the court is keeping the channels of democracy open by ensuring free speech rights, limits on campaign finance so as to aid public participation, and controls over anti-democratic gerrymandering and voter suppression. His decisions defer to other branches of government, while preserving the court’s historic role in protecting the constitutional rights of individuals and minorities.
Breyer’s achievements as a tireless but cheerful servant to the law should be remembered. He deserves more than to be counted as one vote on a team that lost the big games 6–3 at the end of his career.
If there is any hope for the court to get out of its present predicament, it is that Breyer’s replacement on the Supreme Court is a jurist of similar qualities, who happened to serve her apprenticeship as his clerk.8
Anyone who witnessed Judge Ketanji Brown Jackson during her confirmation hearing in March this year saw a woman of remarkable ability, composure and integrity. Her words about her sense of isolation as a first-year student at Harvard and the need to persevere are inspirational.9
The judicial baton has been passed by Breyer to a new generation. Another democratic pragmatist, concerned with judicial methodology rather than ideology.
The work of Stephen Breyer should not be forgotten in the brave new world of Originalism which has diminished the US Supreme Court both at home and abroad.
Justice Peter Applegarth AM has been a judge of the Supreme Court of Queensland since 2008.
1 Cass R Sunstein, ‘Justice Breyer’s Democratic Pragmatism’ (2006) 115(7) Yale Law Journal, 1719.
2 Stephen Breyer, ‘How do you interpret the law?’ (5 July 2007) Big Think. Available at https://bigthink.com/videos/how-do-you-interpret-the-law/.
3 Ronald Dworkin, ‘The Decision that Threatens Democracy’ (2010) 57(8) New York Review of Books.
4 Laurence H Tribe, ‘Politicians in Robes’ (2022) 69(4) New York Review of Books.
5 See for example, Amicus with Dahlia Lithwick, ‘Just Doing the Job They Were Put on the Court to Do’ (25 June 2022) Slate. Available at https://slate.com/podcasts/amicus/2022/06/dobbs-is-the-beginning-not-the-end.
6 Glenn Martin, ‘Guns and judges: Antonin Scalia and the right to bear arms’ (Selden Society Lecture, 3 May 2018). Available at https://legalheritage.sclqld.org.au/2018-lecture-one.
7 New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022) at page 1 of Breyer J’s opinion.
8 For a charming insight into Breyer’s daily work with his clerks, see C-Span, ‘Justice Breyer in his Chambers’ (7 October 2009) YouTube. Available at https://www.youtube.com/watch?v=ADocyeUaxZ8.
9 C-Span, ‘“Persevere.”’ (24 March 2022) YouTube. Available at https://www.youtube.com/watch?v=w6gUP3XxbjA.