The Volokh Conspiracy
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I appreciate the invitation to blog, here at The Volokh Conspiracy, about a recent (short!) paper of mine, "Justice Breyer and the Establishment Clause." I set out the background and context for the paper in an earlier post. In this one, I summarize my account of what I regard as the first of the three distinctive features of Justice Breyer's judicial legacy with respect to the First Amendment's no-establishment rule.
Scholars and informed commentators know that the just-so story about the Supreme Court in which most cases are decided along ideological or partisan lines is misleading. That said, it cannot be denied that the Court's cases involving the Establishment Clause are regularly resolved by close votes that track familiar "liberal" and conservative" classifications.
Justice Breyer's record, though, is interesting. He was confirmed in the summer of 1994, replacing Justice Harry Blackmun, just a few weeks after the Court handed down a splintered 6-3 ruling in the Kiryas Joel case, holding that New York had violated the Establishment Clause by creating a new school district that tracked the boundaries of a village inhabited entirely by Satmar Hasidim. Just one year later, Justice Breyer revealed his reservations about inflexible judicial policing of a strict form of public secularism: In Capitol Square, he joined concurring opinions by Justices Sandra Day O'Connor and David Souter rejecting the claim that it unconstitutionally "endorsed" religion for an official body to permit a private group to display a cross during the Christmas season in Columbus, Ohio's Capitol Square. On the same day, he dissented, with Justice Souter and two other "liberal" justices, in Rosenberger, insisting that the Free Speech Clause did not require, and the Establishment Clause did not permit, the University of Virginia's Student Activities Fund to pay the printing expenses of a Christian newspaper.
There are other examples, going in each direction. The best-known instance and illustration of Justice Breyer's church-state intuitions is his concurring opinion in Van Orden v. Perry, the Texas Ten Commandments case. Having joined Justice Souter and three other justices in concluding that two displays of the Ten Commandments on the walls of Kentucky courthouses lacked a "secular purpose" and so violated the Establishment Clause, he then concurred with an entirely different group of four colleagues' determination that a six-feet-tall Ten Commandments monument on the grounds of the Texas State Capitol did not.
A reasonable question is whether the mere fact that he voted as he did amounts to a "distinctive" feature of his judicial work relating to the Establishment Clause. Two leading scholars of American law and religion, Micah Schwartzman and Nelson Tebbe, have proposed a reading of that work in which Justice Breyer's defections from "liberal" colleagues' strict-separationist dissents are evaluated as instances of "appeasement." "Appeasement", in their analysis, is "a sustained strategy of offering unilateral concessions for the purpose of avoiding further conflict, but with the self-defeating effect of emboldening the other party to take more assertive actions." They suggest that "appeasement carries particular risks in judicial decision making: Not only can it "affect outcomes", it also "can influence constitutional legitimacy by "lend[ing] credence" to a "conservative" majority's decision, "thereby weaken[ing] dissenting views." Appeasement, they contend, "may also impact the range of constitutional interpretations that are taken seriously at a given time, by lending "plausibility" to "[a]rguments that might have been considered extreme" and by weakening the force of a "powerful" dissent that can "provide a counterweight to efforts by a majority to alter the boundaries of accepted constitutional argument."
I am not convinced. First, the "appeasement" characterization builds on claims about the alleged appeasers' intent: "[A]ppeasement . . . depends on an actor's intent or motivation. Appeasement cannot be undertaken entirely by mistake; instead, it requires a deliberate course of conduct." In my judgment, however, Tebbe and Schwartzman have not convincingly refuted the competing possibility to "appeasement", namely, that Justice Breyer voted as he did in religious-freedom and church-state cases "on the basis of constitutional principle and precedent, according to [his] own interpretation."
A second, related, reservation: It is a premise of the "appeasement" argument that the "conservative" Establishment Clause decisions Justice Breyer joined when he parted company with other "liberal" justices were not only wrongly decided, but "assertive", "aggressive", and even "off the wall." His colleagues' rejected dissents are characterized glowingly, as "powerful", "ringing", "principled", and so on. As I see it, though, the decisions in question were correct and the dissenters who were left "isolate[d]" were wrong. That is, in each case that Justice Breyer rejected the argument that a particular practice, action, or policy violated the Establishment Clause, he was not engaging in a "risky", error-enabling strategy or undermining supposedly "powerful" dissents; he was, instead, correctly answering the question presented. This is true even if, in some of these cases, doing so involved re-fashioning, clarifying, limiting, or even abandoning some "preexisting", but misguided, "doctrine[s]."
For a few decades, the Supreme Court's doctrines and holdings relating to the First Amendment's Establishment Clause often reflected an ahistorical, impractical, and morally unsound understanding of church-state separation. This understanding continues to be taken for granted by many, particularly in the American legal academy. More recently, though, the justices have been gradually correcting the Court's earlier mistakes. This development is regularly characterized as the work of the Court's "conservative" justices; it is seen by some scholars, including Tebbe and Schwartzman, as a "collapse", rather than a correction. The latter interpretation is the better one, though, and it is part of Justice Breyer's legacy that he understood that the First Amendment neither authorizes nor requires aggressive judicial revision of longstanding practices or the unyielding imposition and enforcement of an abstract public secularism.