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The Deferential Constitutionalist

Liberals want a “Scalia of the left” on the Supreme Court. Is Justice Breyer their man?

Damon W. Root
October 14, 2010

Over the past five years, Supreme Court Justice Stephen Breyer has published two bestselling books on constitutional history and interpretation. If his colleague Justice Antonin Scalia is the country’s most famous and influential judicial conservative, it’s safe to say that Breyer has nominated himself for the liberal spot. Should the legal left adopt him as its standard bearer?

Breyer’s new book, Making Our Democracy Work: A Judge’s View, suggests that the answer should be a polite but firm no. When liberals say they want a “Scalia of the left” on the Court, they quite sensibly mean a skilled and outspoken jurist who will champion a progressive interpretation of the Constitution, someone who will stand up in favor of privacy, civil liberties, and other favored rights. The historical model here is Progressive and New Deal-Era Justice Louis Brandeis, who filed powerful dissents on behalf of free speech and the “right to be let alone” while basically urging the Court to stop protecting economic liberty.

But Breyer is no Brandeis. While Making Our Democracy Work endorses the progressive idea of a “living Constitution”—or, as Breyer puts it, the Supreme Court must “apply the Constitution’s enduring values to changing circumstances”—the book also devotes equal time to a sweeping form of judicial deference that runs counter to the goals of most progressive legal activists.

In Breyer’s view, the Supreme Court must “take account of the role of other governmental institutions and the relationships among them” and work to “maintain a workable relationship” between the various branches of government. That may sound innocuous, but consider the implications. In 1944 the Supreme Court heard the case of Korematsu v. United States, which dealt with President Franklin Roosevelt’s wartime internment of some 70,000 Japanese-Americans. Surely this case qualifies as a situation where the Supreme Court should have scrapped the “workable relationship” and struck down FDR’s offensive and unconstitutional actions?

Not necessarily, Breyer writes. “Perhaps [the Court] could have developed a sliding scale in respect to the length of detention” or “insisted the government increase screening efforts the longer an individual is held in detention” or found some other way to maintain a “workable relationship with the president.” A genuine “Scalia of the left” would have had no problem repudiating the Court’s craven decision. Even Elena Kagan, who expressed very few actual opinions during her recent Supreme Court confirmation hearings, managed to denounce Korematsu. The Court needs a stronger liberal voice than Breyer’s in contentious cases like this.

Nor does Breyer consistently practice what he preaches. In 2008 he joined Justice Anthony Kennedy’s majority opinion in Boumediene v. Bush, which struck down part of the Military Commissions Act of 2006 in order to recognize habeus corpus rights for prisoners held as enemy combatants at Guantanamo Bay—a decision cheered by both liberals and libertarians. So Breyer got that one right. Except, as Breyer himself now admits, the decision runs counter to the judicial deference he champions in Making Our Democracy Work. “One cannot characterize Boumediene as a case that followed Congressional directions or implemented Congress’s broader purposes,” Breyer writes in a significant understatement. No, one certainly cannot.

So when is it appropriate for the Supreme Court to ignore the wishes of lawmakers? Breyer doesn’t say. He’s clearly willing to strike down laws that he thinks are bad—Breyer also joined Kennedy’s majority opinion in Lawrence v. Texas (2003), for example, where the Court nullified the Lone Star State’s democratically-enacted sodomy ban and overturned its own precedent in Bowers v. Hardwick (1986). Which means judicial deference is not Breyer’s only posture during controversial cases.

Unfortunately, when it comes to articulating any sort of principled form of judicial engagement, Breyer’s well-written book has little to offer.

Damon W. Root is an associate editor at Reason magazine. This column first appeared at Reason.com.


Damon W. Root is Senior Editor


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