The Volokh Conspiracy
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Media reports indicate that Supreme Court Justice Stephen Breyer plans to retire this year, once his successor has been nominated and confirmed. Much can be said about the upcoming nomination and confirmation process. In this post, I wish to say a few words on Breyer's judicial philosophy, and his contributions to the nation—of which some of the most important actually came before his appointment to the Supreme Court.
Unlike many judges, Breyer wrote extensively about his judicial philosophy, including in books such as Making Our Democracy Work, and Active Liberty: Interpreting Our Democratic Constitution. As these titles imply, the main theme of Breyer's interpretive theory is the need for courts to help facilitate democratic political participation, the "active liberty" he referred to. In this respect, Breyer's approach has much in common with legal scholar John Hart Ely's famous "representation-reinforcement" approach to judicial review.
As Breyer and Ely both argued, representation-reinforcement is sometimes obviously compatible with judicial review, as when courts strike down laws that restrict freedom of speech, constrain the right to vote, or otherwise directly interfere with democratic participation.
Breyer, however, went much farther than this, and also defended strong judicial review in many situations where the connection between it and representation-reinforcement were, at best highly questionable (as in the case of abortion rights, for example). In other situations, he advocated judicial "restraint" in cases where there are strong arguments that striking down laws or regulations could promote popular participation in various ways.
I outlined these and other reservations about Breyer's theory in much greater detail in my 2006 review of Active Liberty. Here is an excerpt from the abstract:
Justice Stephen Breyer's … Active Liberty: Interpreting Our Democratic Constitution, is an important contribution to the longstanding debate over the relationship between democracy and judicial review. Breyer argues that judicial power should be used to facilitate citizen engagement in the democratic process rather than undermine it; he claims that judges should promote democracy by explicit consideration of the practical consequences of their decisions….
Breyer's contribution to the debate is important and on some points convincing…. However, the Justice is far less persuasive in defending his own approach to democracy and judicial review. This Review focuses on Justice Breyer's vision of the relationship between democracy and judicial power. Unfortunately, that relationship is considerably more complex than Active Liberty lets on. In some instances, a fuller understanding of the connection justifies results very different from those Justice Breyer argues for.
Part II shows that Breyer's claim that judges should explicitly weigh consequentialist considerations in making decisions may lead the judiciary well beyond its field of competence. This point is dramatically illustrated by the sometimes superficial treatment of democracy in Justice Breyer's own book, which ignores tensions between different conceptions of democracy and often fails to consider relevant empirical evidence.
I also contend that a sounder judicial approach to democracy would look more favorably upon judicial limits on the power of the federal government in order to foster federalism. Such efforts could, at least at the margin, strengthen the federal government's accountability to voters by limiting the impact of political ignorance. They could also impose accountability on government by strengthening citizens' ability to vote with their feet instead of just at the ballot box…
Ultimately, Justice Breyer is right to claim that the judiciary may have a valuable role in promoting democracy. But his prescriptions on how it should achieve that goal are far less compelling.
In the review, I also take issue with some aspects of Breyer's critique of originalism.
As noted in my review, there is a tension between Justice Breyer's emphasis on facilitating popular democratic participation and his long-time advocacy of the need for deference to experts. In his excellent 1993 book, Breaking the Vicious Circle (my personal favorite among his writings), Breyer outlined how a combination of public ignorance, irrationality, and inconsistent agency actions leads to badly flawed regulatory policies. To fix the problem, he recommended the establishment of a kind of super-agency of experts, whose task would be to regulate the other regulators. This agency would, Breyer contended, have to enjoy a great deal of insulation from political pressure, including that from majority public opinion.
The theme of deference to experts recurs in many of Breyer's judicial opinions, including in his recent dissents in the OSHA vaccination mandate case, and the CDC eviction moratorium case. There is certainly an argument for giving broad discretion to experts. But it is at odds with Breyer's emphasis, elsewhere, on the need to empower political participation by ordinary people. I don't think he ever satisfactorily resolved this tension in his own thought, or came close to doing so.
My own view is that courts can best empower ordinary people by helping to enable them to "vote with their feet," which is in many respects superior to both ballot-box voting and concentrating power in the hands of experts. In many situations, this requires decisions limiting the power of the federal government and protecting constitutional rights—such as the right to private property—that Breyer viewed with deep skepticism. With a few notable exceptions, Breyer tended to be a strong opponent of both judicial enforcement of federalism, and protection for constitutional property rights. His dissent in United States v. Lopez (1995), where he argued that Congress' power to regulate interstate commerce is broad enough to encompass a law banning possession of a gun near a school, is a dramatic example of the former.
The above emphasizes my differences with Breyer more than points of agreement. But I don't doubt that he has been an outstanding jurist who wrote many fine opinions. And I think his writings on regulation effectively highlight important problems, even if I am skeptical of his proposed solution. I also agree with his recent criticisms of proposals for court-packing.
Breyer's greatest service to the nation may have come long before his 1994 appointment to the Supreme Court. As an aide to Sen. Ted Kennedy in the late 1970s, Breyer played a key role in the enactment of airline deregulation. This reform made possible better and vastly cheaper air travel, which for the first time made this mode of transportation affordable to the middle and working classes. Generations of travelers owe Breyer a great debt, even if most do not know it.
In a retrospective PBS interview on this experience, Breyer made some points on the importance of competitive markets that too many on both right and left seem intent on ignoring today:
Two things I think turned out to be wrong [with regulation]. The first is that if you take a group of people, set them up in a commission and try to insulate them from congressional control or from presidential control, other political forces will develop in an effort to take control. And what you will find is that the agency itself develops its own politics, where industry had a major role in trying to influence the commission, and then later consumer groups or public-interest firms, or those who felt they represented the public interest would also try to influence the commissioners. And politics develop around the commission; and soon it's learned that there is no science that dictates the proper level of a railroad rate…. [S]omeone sitting in a room with a pencil and piece of paper is not going to be able to figure out the proper airline rate any better than allowing the consumers and producers in a competitive marketplace to experiment with rates and service, and permit those that provide the lowest rates or the best service or the proper combination to survive, while the others fall by the wayside.
In other words, efforts…. to have people guess what the market would produce if it were free to create a price are so very different in their result from what the market does produce when it is free that it becomes a kind of parody of a free-market situation. And people found that it often would hurt the consumers and the producers as well, compared to what would happen if you allowed the market to function on its own…
Breyer's advocacy of airline deregulation was an example of addressing regulatory dysfunction by limiting the role of government, and empowering ordinary people to "vote with their feet" (in this case for cheaper and more reliable airlines). It can also be seen as an example of following expert opinion (most economists supported the idea), but not by delegating ongoing authority to experts to regulate as they see fit.