If it’s good enough for Judge Mikvah, it’s good enough for Justice Breyer

March 7th, 2011

Well not exactly, but that may as well be the title of Justice Breyer’s dissent in Milner v. Department of Navy. Because the Circuit courts (including DC Circuit macha, Judge Abner Mikvah) have interpreted a FOIA provision a certain way for 30 years, Justice Breyer would not disturb precedent. Mind you this case was 8-1. Here is his opening paragraph.

Justice Stevens has explained that, once “a statute hasbeen construed, either by this Court or by a consistent course of decision by other federal judges and agencies,” it can acquire a clear meaning that this Court should hesi-tate to change. See Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 268 (1987) (opinion concurring inpart and dissenting in part) (emphasis added). See also Commissioner v. Fink, 483 U. S. 89, 104 (1987) (Stevens,J., dissenting); B. Cardozo, The Nature of the JudicialProcess 149 (1921). I would apply that principal to this case and accept the 30-year-old decision by the D. C. Cir-cuit in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F. 2d 1051 (1981) (en banc), as properly stating thelaw.

For one thing, the Crooker decision, joined by 9 of the 10sitting Circuit Judges, has been consistently followed, or favorably cited, by every Court of Appeals to have consid-ered the matter during the past 30 years. See ibid. (writ-ten by Judge Edwards, and joined by Chief Judge Robin-son and Judges Wright, MacKinnon, Robb, Wald, Mikva,and then-Judge Ginsburg, with Judge Tamm concurring in the result and Judge Wilkey dissenting);

In this obeisant paen to stare decisis, Justice Breyer would “let sleeping dogs lie.”

[1] Where the courts have already interpretedExemption 2, [2] where that interpretation has been consis-tently relied upon and followed for 30 years, [3] where Con-gress has taken note of that interpretation in amendingother parts of the statute, [4] where that interpretation isreasonable, [5] where it has proved practically helpful and achieved commonsense results, [6] where it is consistent with the FOIA’s overall statutory goals, [7] where a new and dif-ferent interpretation raises serious problems of its own,and [8] where that new interpretation would require Con-gress to act just to preserve a decades-long status quo,I would let sleeping legal dogs lie.

I suppose that is Justice Breyer’s 8-factor balancing test to determine when to abide by bad precedent. This should be facile for lower courts to apply.

Breyer is enigmatic. In some contexts he is all-too-eager to defer to precedents, in others he has no problem second-guessing other decisions.