The Deferential Constitutionalist

Liberals want a “Scalia of the left” on the Supreme Court. Is Justice Breyer their man?

Over the past five years, Supreme Court Justice Stephen Breyer has published two bestselling books on constitutional history and interpretation. If his colleague Justice Antonin Scalia is the country’s most famous and influential judicial conservative, it’s safe to say that Breyer has nominated himself for the liberal spot. Should the legal left adopt him as its standard bearer?

Breyer’s new book, Making Our Democracy Work: A Judge’s View, suggests that the answer should be a polite but firm no. When liberals say they want a “Scalia of the left” on the Court, they quite sensibly mean a skilled and outspoken jurist who will champion a progressive interpretation of the Constitution, someone who will stand up in favor of privacy, civil liberties, and other favored rights. The historical model here is Progressive and New Deal-Era Justice Louis Brandeis, who filed powerful dissents on behalf of free speech and the “right to be let alone” while basically urging the Court to stop protecting economic liberty.

But Breyer is no Brandeis. While Making Our Democracy Work endorses the progressive idea of a “living Constitution”—or, as Breyer puts it, the Supreme Court must “apply the Constitution’s enduring values to changing circumstances”—the book also devotes equal time to a sweeping form of judicial deference that runs counter to the goals of most progressive legal activists.

In Breyer’s view, the Supreme Court must “take account of the role of other governmental institutions and the relationships among them” and work to “maintain a workable relationship” between the various branches of government. That may sound innocuous, but consider the implications. In 1944 the Supreme Court heard the case of Korematsu v. United States, which dealt with President Franklin Roosevelt’s wartime internment of some 70,000 Japanese-Americans. Surely this case qualifies as a situation where the Supreme Court should have scrapped the “workable relationship” and struck down FDR’s offensive and unconstitutional actions?

Not necessarily, Breyer writes. “Perhaps [the Court] could have developed a sliding scale in respect to the length of detention” or “insisted the government increase screening efforts the longer an individual is held in detention” or found some other way to maintain a “workable relationship with the president.” A genuine “Scalia of the left” would have had no problem repudiating the Court’s craven decision. Even Elena Kagan, who expressed very few actual opinions during her recent Supreme Court confirmation hearings, managed to denounce Korematsu. The Court needs a stronger liberal voice than Breyer’s in contentious cases like this.

Nor does Breyer consistently practice what he preaches. In 2008 he joined Justice Anthony Kennedy’s majority opinion in Boumediene v. Bush, which struck down part of the Military Commissions Act of 2006 in order to recognize habeus corpus rights for prisoners held as enemy combatants at Guantanamo Bay—a decision cheered by both liberals and libertarians. So Breyer got that one right. Except, as Breyer himself now admits, the decision runs counter to the judicial deference he champions in Making Our Democracy Work. “One cannot characterize Boumediene as a case that followed Congressional directions or implemented Congress’s broader purposes,” Breyer writes in a significant understatement. No, one certainly cannot.

So when is it appropriate for the Supreme Court to ignore the wishes of lawmakers? Breyer doesn’t say. He’s clearly willing to strike down laws that he thinks are bad—Breyer also joined Kennedy’s majority opinion in Lawrence v. Texas (2003), for example, where the Court nullified the Lone Star State’s democratically-enacted sodomy ban and overturned its own precedent in Bowers v. Hardwick (1986). Which means judicial deference is not Breyer’s only posture during controversial cases.

Unfortunately, when it comes to articulating any sort of principled form of judicial engagement, Breyer’s well-written book has little to offer.

Damon W. Root is an associate editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Barely Suppressed Rage||

    when it comes to articulating any sort of principled form of judicial engagement, Breyer’s well-written book has little to offer

    Color me surprised.

  • Ragnar||

    Since Breyer - and Lieberals in general - have no principles I'm not surprised.

  • Ray||

    How about we have a Supreme Court without ANY "strong liberal voices"?

  • ||

    Umm - only if we also have a Supreme Court without ANY "strong socially conservative voices"?

    Don't think either is going to happen any time soon. So I'd prefer we stick with a split court.

  • Yonemoto||

    70,000 japanese american *citizens*. Throw in the non-citizens and you get >100k.

  • shrike||

    'Lawrence v. Texas' should damn Scalia to the Hell of his worst fears for eternity - and good for Breyer for his proper ruling.

    No asshole who denies a citizens right to privacy has any business calling himself an American.

    Fuck Scalia and his Step and Fetch It sidekick.

  • Jeffersonian||

    Unless, of course, one wishes to privately exchange legal tender in so doing. Then the full weight of the Central State will be brought to bear to the applause of cretins like Breyer (and you).

  • shrike||

    There was no payment involved in the Lawrence case you theist thug.

    The police illegally entered a private residence and Catholic child-molester Scalia saw fit to rule that private conduct in a home was the state's business.

  • Jeffersonian||

    But shriek, what if the decision of the parties to *not* exchange money affects interstate commerce? Is there not a nexus for state action?

  • cynical||

    But wasn't Scalia right? If people engage in consensual, cash-free sodomy, then they are reducing the demand for paid sodomy, which affects interstate commerce, which means that the government has the right to intervene.

  • Jeffersonian||

    QED.

    Not only are creeps like shriek sowing the seeds of their own destruction, they're fertilizing and watering them with their slavish toadying to Leviathan, thinking the State will somehow exempt them from its tyranny.

  • qwerty||

    "Scalia saw fit to rule that private conduct in a home was the state's business."

    No, actually he ruled that the state had legally made it its business.

    Say it three times:

    bad law != unconstitutional law

    That liberals don't get this is why no liberal should ever sit on a court.

  • ||

    The court striking down bad laws that may not be unconstitutional is really not what we need to be worrying about. What matters is that they strike down laws that are unconstitutional.

  • DLM||

    The court striking down bad laws that may not be unconstitutional is really not what we need to be worrying about.

    But wouldn't it be unconstitutional for the SCOTUS to strike down laws that are *not* unconstitutional? Although if the SCOTUS has the power to say a law unconstitutional, then almost by definition any law they strike down must be unconstitutional and there's no reason to be concerned about them striking down laws that are not unconstitutional.

  • Jeffersonian||

    It's simple: Deference to legislatures where the left-liberal zeitgeist may be on a given day, unwavering opposition otherwise.

    IOW, Breyer is all in favor of the Court being a super-legislature with a permanent port-side majority.

  • Cyto||

    Breyer is the embodiment of the fears of the framers of the constitution. They took the time to write the thing down so that the government would not exceed its authority.

    His view is that the legislature's and the court's opinion as to whether a given policy is a "good idea" is the determining factor in finding it "constitutional". This is an absolute disqualification for serving on the court. If the policy is so important that you must implement it despite lacking the constitutional authority, then amend the document.

    idiots.

  • Botox Porcupine||

    You do understand that the Rehnquist and Roberts Courts are the most activist in the history of the United States, right?

    It's not just the liberal bloc, it's the conservative bloc as well.

    And Scalia is such a fucking tool.

  • ||

    So when is it appropriate for the Supreme Court to ignore the wishes of lawmakers?

    Umm, whenever those wishes violate the plain language of the Constitution?

    Is this really that freakin' hard?

  • Jeffersonian||

    But isn't it a "living document," RC?

  • Botox Porcupine||

    Well, we do have the Ninth Amendment, so yes, the Constitution is, in a sense, "living."

  • shrike||

    "Plain language"?

    You've never been right on this board, Dean. Why start now?

    Yeah - the Constitution is all plain language - but only to simpletons who live in the 18th century and who have never considered 'Marbury v. Madison'.

  • mofo||

    Ill prob. kick myself for asking, but, what the fuck are you talking about?

  • Cyto||

    A fair question, as RCD seems to affirm judicial review in the very nature of his statement. Any other problems aside, MvM affirms the Constitution as the supreme law and acknowledges the Supreme Court's authority to review laws for compliance with the constitution.

  • ||

    [Liberals pretend] — and often quite honestly believe — that they are hot for liberty. They never really are. ... They themselves, as a practical matter, advocate only certain narrow kinds of liberty — liberty, that is, for those persons they happen to favor. ... The liberty to have and hold property is not one they recognize. They believe only in the liberty to envy, hate, and loot the man who has it.

    — Mencken

  • Jeffersonian||

    This is really the crux of it here. While it's fine that left-liberals run on such platforms and enact their agenda should they win, it's not so fine that unelected judges and justices are getting in on the action. That is, at the core, a subversion of republican government.

  • bubba||

    I thought the liberal philosophy was to make shit up as you go along, and if it doesn't work out, give the government more power.

  • ||

    But shriek, what if the decision of the parties to *not* exchange money affects interstate commerce? Is there not a nexus for state action?

    Nope. A decision not to engage in commerce means you are not engaging in commerce, interstate or otherwise.

    The fact that others are engaging in commerce, and may be affected by your decision not to do so, does not convert your refusal to engage in commerce into, you know, engaging in commerce.

    But isn't it a "living document," RC?

    To quote, I believe, Scalia: My copy is quite inanimate.

    Yeah - the Constitution is all plain language

    It mostly is, you know.

  • ||

    That's really the crux of the problem. The Commerce Clause was adopted for no other reason than to fix a problem that bedevilled the country under the Articles of Confederation: the states engaging in economic protectionism. This sucked, a lot, and people realized the value of a single, national economy.

    The Commerce Clause was never understood, until relatively recently, as an all-purpose excuse for Congressional micromanagement of any human endeavor that might, maybe, if you squint really hard and use your imagination, arguably have some interstate economic effect.

  • Nh Ed||

    Isn't the solution to repeal the commerce clause and add somethinglike this? When ruling on the constitutionality of a law,the judges must consider only the intent of the authors of that section of the constitution.

  • Jeffersonian||

    Shhh...I'm hunting shwikes. huhuhuh....

    Seriously, you and I are in agreement, but I want to walk shriek down the path that he and his fellow port-siders have built.

  • ||

    I'm not sure that even Socrates could get shrike to follow an argument. His talent for missing the point is legendary, but I'm still not convinced that he's a troll and not just nearly incapable of logical reasoning.

  • Ryanxxx||

    "a working relationship?"

    Christ, how hard is it to say that detaining people with no due process because of the color of their skin is unconstitutional and illegal? Breyer is a fucking pansy and a disgrace

  • mj||

    What I don't understand is why everyone worries about deferring to congress's meaning. The Supreme Court should NOT be deferring to Congress, but to the Constitution. Kagan should have been disqualified for her answer of deferring to congress's wishes.

  • Dick Cheney||

    Say what you will about George, he killed a hell of a lot of A-rabs

  • thomas sabo||

    thank you for your saring

  • ||

    As the US constitution was discarded in 1861, what is the point of discussing a justice's adherence to it?

    Article 7 shows that the constitution was an agreement between the states and Article 1, and the 10th amendment state that the powers are delegated/granted, so how can states be forced to participate and changes to the agreement extracted at gunpoint?

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