Law & Government

One Cheer for Stephen Breyer

Breyer led the charge against the court packers, denouncing them as shortsighted ideologues who threatened both judicial independence and bedrock liberal values.

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When President Bill Clinton tapped Stephen Breyer to fill a vacancy on the U.S. Supreme Court in 1994, he told the country Breyer would "strike the right balance between the need for discipline and order, being firm on law enforcement issues but really sticking in there for the Bill of Rights."

Breyer's impending retirement at the close of the Supreme Court's current term provides an opportunity to weigh Clinton's words against Breyer's record. Alas, the former president proved only half right. Breyer was frequently "firm" in his deference to the government. But that same deference often led Breyer to do the opposite of "sticking in there for the Bill of Rights," especially in major Fourth Amendment cases.

Take the 2014 case Navarette v. California. At issue was an anonymous and uncorroborated 911 phone call about an allegedly dangerous driver, which led the police to make a traffic stop that led to a drug bust. According to the 5–4 majority opinion by 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." Law enforcement won big, and Breyer signed on.

The deficiencies of that judgment were delineated in a forceful dissent by Justice Antonin Scalia. "The Court's opinion serves up a freedom-destroying cocktail," wrote Scalia, who was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. "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 disturbing scenario, Scalia wrote, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures." Breyer apparently was untroubled by that Fourth Amendment–shredding scenario.

Navarette was not the first time that Scalia was more "liberal" than Breyer in a 5–4 Fourth Amendment case. One year earlier, in Maryland v. King, Breyer joined Justice Anthony Kennedy's controversial majority opinion allowing police to collect DNA swabs from arrestees without a warrant.

"Make no mistake about it," Scalia protested in his dissent, which, like his dissent in Navarette, was joined 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." Breyer seemed untroubled by that disturbing scenario too.

Breyer had his own ideas about how the Supreme Court should go about its business, and he spelled them out in his 2010 book Making Our Democracy Work. The Supreme Court must "take account of the role of other governmental institutions and the relationships among them," Breyer wrote, and strive to "maintain a workable relationship" between the various branches.

That may sound innocuous, but consider the implications. In 1944 the Supreme Court heard Korematsu v. United States, which dealt with President Franklin Roosevelt's wartime internment of some 70,000 Japanese Americans. Surely the Court should have scrapped the "workable relationship" at that point and simply invalidated FDR's dangerous and unconstitutional actions?

Not necessarily, Breyer wrote. "Perhaps [the Court] could have developed a sliding scale in respect to the length of detention" or "insisted the government increase the screening efforts the longer an individual is held in detention" or found some other way to maintain a "workable relationship with the president."

At least Breyer did not always practice the judicial deference that he preached. In 2008, for example, he joined Justice Anthony Kennedy's opinion in Boumediene v. Bush, which struck down part of the Military Commissions Act of 2006 while recognizing habeas corpus rights for prisoners held as enemy combatants at the U.S. military base in Guantanamo Bay, Cuba—a decision that was cheered by both liberals and libertarians.

Breyer got that one right. But as he later acknowledged, the ruling ran counter to the philosophy of judicial deference he championed in Making Our Democracy Work. "One cannot characterize Boumediene as a case that followed Congressional directions or implemented Congress's broader purposes," he wrote in the book. No, one certainly cannot.

This inconsistency is a recurring theme in Breyer's jurisprudence. He was clearly willing to invalidate democratically enacted laws when the mood struck. He joined the Supreme Court's landmark opinions in favor of gay rights, for example, which overruled state regulations passed by democratic majorities.

Yet Breyer happily bowed to "expert" local policy making in Kelo v. City of New London, a 2005 decision upholding an eminent domain taking under what the majority opinion called "our longstanding policy of deference to legislative judgments in this field." Admiring commentators often called Breyer a legal "pragmatist." It was a description that certainly left him a lot of wiggle room.

Breyer does deserve unalloyed credit for one of his final acts while on the bench. In the face of a progressive campaign to get President Joe Biden to "pack the court" and create a Democratic supermajority of justices, Breyer led the charge against the court packers, denouncing them as a bunch of shortsighted ideologues who threatened both judicial independence and bedrock liberal values. And Breyer did so knowing full well that his actions would infuriate a great many folks on his own side of the aisle.

Kudos to Breyer. Too few public figures nowadays are willing to take a principled stand like that.

NEXT: Brickbat: Pinned Down

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  1. "Breyer led the charge against the court packers"

    According to our Democratic allies, COURT PACKING is when a vacancy arises and a Republican President fills it with a judge Democrats don't like.

    When a Democratic President creates additional seats and immediately fills them? Well, the technical term for that is UN-PACKING THE COURT.

    #LibertariansFor4MoreRBGs

    1. Well, the technical term for that is UN-PACKING THE COURT.

      My understanding was that the correct way to unpack the court was to hold a pillow over the justice's face while they were sleeping. 🙂

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    2. It’s a well established Superprecedent

    1. Are the spam bots developing the ability to reply coherently to the topic?

      1. Yes, a disturbing trend. I am assuming it is a bad outcome of AI and will only get worse.

        1. Listen, half of us are spambots already - you just notice the bad ones.

          1. Well, there isn't much you can do about real people who can't actually pass a turing test.

            1. Just give 'em time.

              Can't you just imagine sexbots that are indistinguishable from real women? That's gonna be a game changer!

              1. isn't that what chicks are for anyway? ~~~ducks

              2. We will know the AI has truly arrived when it can define a "woman"; something SC candidates cannot do at this time.

              3. I thought the point of a sex bot is that they *weren't* identical to women.

                Like with my vacuum cleaner - it just vacuums and doesn't nag me.

                1. On second thought you're right. Otherwise those bots would be 24/7 pains in the ass, no let up.

        2. I thought that was Tony and ChemJeff. These bots are positively lovely by comparison to the NPC software.

        3. I'm looking forward to the time when spambots reply to other spambots. No more need for human commentators. Any site can generate its own comments without the need for anyone else. I wonder if we'll be able to tell the difference.

  2. Yay. I'd settle for the Supreme Court upholding the Constitution.

  3. Breyer's last act was to bow to the progshit mob and resign at a point when the Dem fraudsters in office could appoint the next designated affirmative action moppet to disregard the law as thoroughly as he had.

    No cheers.

    1. ^

      This really does point out the true nature of our national "divide;" either you believe what is originally intended by freedom and liberty, or you want to "maintain a workable relationship" with those who will increasingly take that away from you. If only to stick to those you do not like or agree with.

    2. He was appointed by Clinton. What do you expect?
      You sound just like the Dems who went up in arms when Kennedy retired under Trump.

      1. You sound just like the Dems who went up in arms when Kennedy retired under Trump.

        Very true.

    3. appoint the next designated affirmative action moppet

      She really does look like they just put a pair of glasses on Janice.

  4. Odd that Breyer only took his "principled" stand on the eve of his retirement. Many politicians are willing to speak the truth once they retire.

    1. Or police chiefs denouncing the war on drug users after they retire.

      1. The big difference is that Police Chiefs aren't hired to comment or rule on policies or to engage in politics, much as military personnel isn't allowed to question command. The judiciary doesn't "serve at the pleasure" of anyone, as a matter of independence.

        1. " . . . much as military personnel isn't allowed to question command . . . "
          Actually, the military is required to question command.

          " . . . and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice."

          So any orders in conflict with the UCMJ are to be questioned. So to take a hypothetical from the headlines, when order to shoot tied up civilians, that order must be questioned, to the point of refusing to obey.
          (nobody said the military was easy)

  5. This article made me think of Chris Rocks bit where he says people want to be cheered for things they are supposed to do. "I take care of my kids. Well good for you, want a cookie?"

    1. Only he didn't say "people."

  6. Then he was told that he should have kept his mouth shut and now either he can choose the to leave the court and enjoy a *quiet* retirement or stay in office 'for the rest of his life - however short that may be'.

  7. It’s only a matter of time. The system rejects liberalism.

    1. Everything in the system.
      Nothing against the system.
      Nothing outside the system.

  8. So, who will be next to retire or kick the bucket? Thomas is the oldest right now…

    1. Some are calling for his impeachment because he can not control his wife.

      1. The same people who say controlling your wife is sexist 😉

        1. My point exactly.

        2. Needz more bitchslapping!

        3. The same people who have no idea what a woman actually is are defining who should control them and what "control" looks like.

        4. The same party which would have made his marriage illegal in the first place.

  9. Breyer led the charge against the court packers, denouncing them as shortsighted ideologues who threatened both judicial independence and bedrock liberal values.

    We won't hear any of that commonsense nonsense from his replacement!

    1. I suspect Breyer would not even be retiring if the GOP hadn't screwed up the Georgia senate races. Imagine the weeping, salty tears, and rending of garments had Trump won, one Georgia seat went Republican, and Breyer announced he was retiring.

  10. "The Court's opinion serves up a freedom-destroying cocktail," wrote Scalia, who was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. "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."

    I'd think Gorsuch and Jackson would be with Sotomayor and Kagan on this (assuming Jackson is confirmed). I wonder where Barrett would be?

    1. Barret, being a fundamentalist Catholic, is not exactly going to be pro-state power.

      1. She came up through the federalist society. She's probably going to be very deferential to state power.

        1. Lol. Swing and a miss. That is not at All what the Federalist Society believes

          1. We'll just ignore Roberts' "swing and a miss" on Obamacare, because we're all friends here.

  11. "Breyer led the charge against the court packers, denouncing them as a bunch of shortsighted ideologues who threatened both judicial independence and bedrock liberal values."

    Root provides zero evidence for this assertion. While thousands of Republicans, independents and other reasonable people denounced Biden's court packing scheme, I don't recall reading or seeing anything said/written by Breyer.

    1. Then you weren't paying attention. Breyer commented publicly and multiple times on the topic, always denouncing it. A number of articles right here on Reason covered it each time.

      Or you could just google it. It's not hard to find.

  12. https://www.scotusblog.com/2021/04/in-harvard-speech-breyer-speaks-out-against-court-packing/

    There are a number of articles on this. He in fact did speak against it, I believe primarily on the basis that doing so would greatly [further] diminish the credibility of the court by turning it into an overtly partisan institution.

    1. Nothing could diminish the credibility of the court as much as ruling men are women, and that a pile of cash can be sued.
      (after said cash was taking by force of arms from a citizen not even arrested, let alone convicted of something)

  13. >>being firm on law enforcement issues but really sticking in there for the Bill of Rights

    lol 28 years didn't do (D) well.

    1. When Bill Clinton talked about "firm" and "really sticking in there," maybe he was too excited to think straight.

      1. The devil is in the details—-and a blue dress.

  14. Breyer was too late. The court is now packed due to the blocking of an elected president's right and responsibility to appoint SC judges by the then GOP Senate majority (which was a dereliction of their duty to advise and consent) and then the rushed appointment of Barret after voting had already begun for the next President. There should have been a liberal majority until Ginsburg died, then a brief period of 8 judges followed by a Biden appointment.

    Anyone pretending this court is legitimate and not already packed is a fool.

    1. You obviously don't know what "packing" the court is. You hypocritically would be fine if Democrats did exactly the same thing (and I'm sure they'll get the chance some day). The bottom line is that a SC justice can't be confirmed without a majority of the Senate doing so. The Senate does not act as a rubber-stamp anyone a (Democratic) President nominates. You are a fascist at heart. You're just too cowardly to admit it.

      1. Darren, I would not be fine being a partisan jerk off like you and would fully support your grievance if the Democrats did the same thing. What the GOP majority did was abandon their responsibility to ADVISE and consent not because they didn't like the particular nominee - if that was the case as has happened before, they would advise the President of this fact and he could appoint another. They didn't like the president and conspired to not allow him to make an appointment. Remember, they held no hearings and would not meet with the nominee, who had been approved with glowing comments by GOP Senators only a few years prior for a district judge position.

        1. PS Darren, you are an idiot if you think everyone who thinks you are wrong is a fascist. You disempower the word and vainly imagine yourself as fighting the worst enemies the US has faced.

    2. I agree that the Pubs did BHO dirty on the Merrick Garland nom. It was shitty political gamesmanship and the hypocrisy of wedging ACB through at the last minute of the DJT term was brazen even for a politician.

      But I object to your statement that this delegitimizes SCOTUS. You want to have to both ways in your scenario. That Garland was confirmed but then ACB was not. The inconsistency in your hypothetical scenario is as hypocritical in the other direction as what actually occurred in the Pubs favor.

      My only hope is that KBJ and ACB and every other SCOTUS judges assert some judicial independence once on the court and eschew predictable partisan rulings. Use the big brains they’ve cultivated over the past half century to interpret, support and defend the constitution and the values our great country was founded on.

  15. Breyer led the charge against the court packers, denouncing them as shortsighted ideologues who threatened both judicial independence and bedrock liberal values... and was basically forced from the court by his own party before he was ready to retire.
    Think about that.

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