In his 2010 book Making Our Democracy Work: A Judge's View, Supreme Court Justice Stephen Breyer urged the federal courts to adopt a broad posture of judicial deference towards the other branches of government. Judges must "take account of the role of other governmental institutions and the relationships among them," Breyer wrote, and thereby "maintain a workable relationship between the various braches of government." Breyer's preferred solution was for judges to give government officials the benefit of the doubt in most cases.
The implications of that deferential approach were made plain last week in the Fourth Amendment case Navarette v. California. At issue was an anonymous phone call made to 911 about a dangerous driver. That call prompted a traffic stop and resulting drug bust by the police. According to the majority opinion of Justice Clarence Thomas, "the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated." Among those who joined Thomas in granting wide leeway to law enforcement was none other than Stephen Breyer.
Justice Antonin Scalia, by contrast, in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, rejected the Navarette majority's pro-government stance. "The Court's opinion serves up a freedom-destroying cocktail," Scalia declared, one that privileges an anonymous and uncorroborated tipster over a core constitutional right. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That troubling scenario, Scalia declared, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures." Translation: Take your "workable relationship" and shove it.
Navarette was not the first time Breyer cast his lot with a "freedom-destroying" interpretation of the Fourth Amendment—and sadly, it won't be the last. In 2012's Maryland v. King, for example, Breyer joined Justice Anthony Kennedy's majority opinion allowing police to conduct warrantless DNA swab tests incident to arrest. "Make no mistake about it," fumed Justice Scalia in dissent, joined (as in Navarette) by Ginsburg, Sotomayor, and Kagan. "As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."
The Court's 2013 ruling in Missouri v. McNeely provides yet another telling example. The dispute in that case stemmed from the police obtaining a warrantless and non-consensual blood sample from a suspected drunk driver. For a majority of the Court, that action was too invasive to pass constitutional muster under the Fourth Amendment—but Breyer was apparently untroubled. He joined the police-accommodating dissent filed by Chief Justice Roberts.
It's common these days for progressives to embrace Justice Breyer as one of their biggest heroes on the Supreme Court. And perhaps he is. But any assessment of Breyer's merits must also reckon with his overwhelming deference to the police in Fourth Amendment cases. Is that a progressive virtue?