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Supreme Court

Justice Breyer, Democracy, and Expertise

His judicial philosophy emphasized promotion of democracy, a theme in tension with his emphasis on the need for deference to expertise.

Justice Stephen Breyer.


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.

NEXT: More on Amy Wax and Penn Law School

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  1. Someone has already claimed that Biden’s nominee has sexually assaulted him 25 years ago.

    1. The accusation seems certain, no matter who eventually becomes the nominee.

  2. Its funny, I usually disagreed with where Breyer actually voted on cases, but I almost always followed his reasoning. His pragmatism was definitely interesting and imo made the court much better. Consequences shouldn't by the main factor by which decisions are made but ...

    Like so many opinions are written uber-formalist now, with originalism by many justices and Kagan also being formalism, and its kinda tiring. I dont quite know how to ..m like the world shouldn't be just a constant game of "gotcha", and I have a feeling thats the world super textualists, originalists, and others wish to impose, though I am sympathetic to originalism.

    I think most of my like of Breyer, tbh, is that he is often made fun of for asking long, confusing, and wandering questions and hypos, but I've realized that I tend to do the same thing, and like him I never get a satisfactory answer

  3. Also, my controversial stance is that Breyer was totally right when he stated that the US legal system ought to look at other countries deciding similar issues when making a decision.

  4. TLDR

    (Breyer's) or any given Leftwing Supreme Court Justice's ACTUAL judicial philosophy:

    Is there an official position on the case at hand as defined by the progressive media/political zeitgeist?

    If Yes: Breyer's/Given Justice's position = Progressive position 100%-90% of the time. Exact number depends on justice

    If No: Opinion = Random coin flip.

    1. Great summary of how you feel.

      Your side: all straight shooters who agree because they're all right together.
      Those bastards on the other side: all agree because they're tools.

      1. Except there are demonstrably different levels of cohesion among justices of certain judicial philosophies. And those different levels of cohesion, unremarkably, line up with whether the philosophy is self-abnegating or not.

        1. I don't think Amos was making a nuanced statistical argument.

      2. >>>>>>>>>>>>>>>>>>>>>>>>
        Your side: all straight shooters who agree because they're all right together.

        lol I wish

  5. Foot voting is great in principle, but it only gets you as far as the shoes you can afford.

  6. I'm happy in life now because I no longer have to worry how bad the Democrats screw up or how rotten the Republicans can get.

    The whirlwind has finally come. A complete criminal scheme to defraud the American electorate. There are videos, tapes, signatures, documents and confessions. In completely admitted collusion are Trump, Pence (possibly), Grassley, Powell, Manafort, Eastman, Giuliani, Clark, a large group of sitting congressmen, and GOP functionaries at the highest levels in 7 states. All Republican. All completely guilty. Investigations are now ongoing at both the state and federal levels. One of the biggest crimes in American history and I get to watch it all unfold. I get to watch the end of the entire Republican party in my lifetime.

    1. Heh, I think you will see come November the GOP's demise has been exaggerated.

      1. I wouldn't even count on any those named being prosecuted.(Manafort aside of course, but he's already pardoned.)

  7. To me, the real question is whether a Justice is just selling his opinion for a salary. I spent my career as a lawyer. No matter what a statute said, I could (almost) always come up with an interpretation that supported my client's position. If a Supreme Court Justice does that, it "don't impress me much" (as Shania Twain sang much better than I could).
    As for Constitutional issues -- well they all swear an oath to support the Contitution. I don't think they swear to support their personal opinions. But isn't that what most of them do?

  8. 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.

    That seems a popular view among free market ideologues. Somehow the great improvement escaped my notice. It seems like the system just became more spotty, with less expensive flights sometimes on some routes, and more expensive flights on others.

    I had very little money in my early years—income-wise I was decidedly lower-middle or working-class. But nevertheless, in the late 1960s I managed to afford several cross-country flights on major routes with major airlines. The period from the late 20th century to now has never seemed comparably affordable to me, even though I am relatively better off financially. A trip I found easily affordable when in my early 20s would be dauntingly expensive for me now, 5 decades later.

    Another advantage of the earlier period was that you could plan ahead for a flight without too much worry that the price would change. About twenty years ago, before I stopped flying altogether, it was commonplace for the cost of a flight to change during the middle of a phone call, while you were actively trying to complete a reservation—and the price never seemed to go down, only up.

    Also, I have never encountered anyone who works for the airlines—from pilots, to flight crew, to baggage handlers, and boarding gate crew—who did not think the entire system worked less efficiently, paid less, and became more exploitive as time went on.

    Of course my memory is not economic analysis. I wonder if it is possible that prices went down for kinds of travelers which do not include me, but up for people like me. I get the impression that business travel may be where more savings have happened, as corporate travel departments cut special deals unavailable to unaffiliated travelers of the sort I have always been. I cannot imagine the combination of deregulation and more-advanced computer reservations systems has not been gamed to turn at least some ticket purchases into highest-bidder auctions—and maybe with smart systems even contriving to make would-be ticket purchasers bid against themselves.

  9. Stephen you amaze me sometimes about how small your little world is. You really should get out more.

    I flew from Seattle to North Macedonia in April RT for less than 600. I was just checking for my Son, he can fly from Seattle to meet me in Athens for Spring Break RT for 575.

    And domestically a RT flight from Seattle to San Francisco in 2 weeks is 158. Driving round trip takes two days and 1600 miles @ 30mpg and 4.00 gas, if you could get it, costs $213.00.

    1. I should say driving RT Seattle to SF is 2 days each way, I've done it before in one day with at least 2 drivers, but it's a long haul, so add in the cost of 2 nights lodging along the way if you are going to compare the cost of airfare to driving, which is really the only two options over much of the country.

      1. If it's over 700 miles I'll generally fly, that's been the break point for me. I don't really mind sitting in a car all day listening to my favorite albums that have been ripped to the car's hard drive, and watching the scenery, but once it's more than 10 hours driving in a day, I get fatigued, especially if I lack company.

        Last summer I had to drive from Greenville SC to KoP, PA, and though the scenery was nice, the fatigue factor towards the end got brutal. Wouldn't have hit me so hard in my 50's, but I guess I just don't have the stamina for really long drives anymore.

  10. Can Biden nominate a justice when there isn't a vacancy yet? Breyer said he'd retire once his successor was chosen, right?

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