Op-Ed: Oliver Wendell Breyer

July 12th, 2011

David Bernstein and I co-authored an Op-Ed in today’s Newark Star Ledger about Justice Breyer’s jurisprudence and views on individual liberty. His dissent in Brown v. EMA harkens back a Progressive era view of freedom and is reminiscent of Justice Holmes’s views ( this may not be necessarily be something modern-day liberals want). The original title we submitted was “Oliver Wendell Breyer.” The Editor significantly (and in a few places incorrectly) modified the article. I reproduce the article, in its original form here:

Oliver Wendell Breyer
by David E. Bernstein and Josh Blackman

Since John Paul Stevens’ retirement in 2010, Stephen G. Breyer seems poised to become the leader of the Supreme Court’s liberal wing. In the nine cases that split 5-4 along ideological lines in the Court’s past term, Justice Breyer wrote four dissenting opinions–only one less than Justices Ginsburg, Sotomayor, and Kagan combined.

This is a troubling development for those, liberal or conservative, who value the Constitution’s protections of individual liberty. Contrary to American tradition going back to the Declaration of Independence, Justice Breyer believes not in liberty against government overreaching, but in what he calls “Active Liberty”–the right of democratic majorities, guided by elite experts, to govern as they see fit.

Ironically, the modern judge whose views most resemble Breyer’s is failed Supreme Court nominee Robert Bork.  Like Breyer, Bork rejected modern cases protecting individual rights in favor of majoritarianism–and as a result was denied a Supreme Court seat.

Breyer’s constitutional views were largely unknown when he joined the Supreme Court, but as a Justice he has voted to adopt a narrow interpretation of many constitutionally protected liberties.  While Breyer claims to believe in self-government, his opinions reveal contempt for its most basic aspect–the right of individuals to run their own lives free from excessive government interference.

Justice Breyer’s cramped understanding of freedom of expression is especially troubling. Longstanding Supreme Court precedents, dating back to the dawn of the modern constitutional law era in the late 1930s, require the Justices to be especially protective of certain “fundamental rights,” including and especially free speech.

According to Breyer, however, most laws that infringe on freedom of expression–including laws the ACLU argues are blatantly unconstitutional–should be upheld if the government has a rational reason for interfering with free speech, an extremely forgiving  and deferential standard.

Instead, Breyer argues that the First Amendment fully protects only laws that infringe on “core” political speech.  Even then, Breyer interprets the Court’s “strict scrutiny” standard–traditionally interpreted to create a very strong presumption that such laws are unconstitutional–far more narrowly than do his colleagues.

The full implications of Breyer’s lassitude on civil liberties were on display last week in Brown v. EMA.  All three of Breyer’s liberal colleagues joined a seven-Justice majority holding that a California statute banning the sale of violent video games to minors violated the First Amendment.

Breyer, however, penned a lone dissent.  Although purporting to apply “strict scrutiny,” he gave virtually no weight to the free speech rights protected by the First Amendment.  Instead, he focused on the government’s interest in censoring speech deemed harmful to minors.

But Breyer didn’t simply defer to the legislature’s reasons for restricting speech–he made up his own!  He included a twenty page appendix listing over one hundred studies discussing the impact of violent video games on minors. Notably, most of these studies were not considered by the California legislature when enacting the statute, nor were they presented in briefs submitted to the Supreme Court.

In this and other contexts, Breyer’s jurisprudence harkens back not to great liberal Justices of the mid-to-late twentieth century, like Earl Warren and William Brennan–who, whatever their flaws, had a deep and abiding belief that civil liberties must be protected from government encroachmentt–but to an earlier generation of judges associated with the Progressive movement, such as Justice Oliver Wendell Holmes, Jr. and Learned Hand.

Like Breyer, many early twentieth century Progressive jurists had a soft spot for protecting political speech, but they otherwise rarely met a statute they thought exceeded constitutional boundaries.  These Progressives advocated deference to the government for the same reasons Breyer articulates: reverence for experts, belief in majority rule, and the need to protect society from itself.

As a result, Progressive judges approved segregation laws, laws banning private schools, laws limiting women’s ability to participate equally in the workplace, and more.   Most infamously, Justice Holmes vigorously approved of forced sterilization of the allegedly mentally infirm, relying on the public interest as articulated by contemporary experts. “Three generations of imbeciles are enough,”  he wrote.

When New Deal liberals took over the Supreme Court in the late 1930s, however, they rejected the earlier Progressive vision and proceeded to provide strong protection for the rights listed in the Bill of Rights.

Breyer’s apparent ascendance as doyen of the Court’s liberal wing threatens to roll back decades of these pro-liberty precedents, and to destroy the consensus on the Court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities.  Almost twenty-five years after the failed Bork nomination, it would be odd if liberals anointed as their champion his left-leaning doppelganger.

David E. Bernstein is Foundation Professor at the George Mason University School of Law and an adjunct fellow at the Cato Institute.  He is the author of Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011).  Josh Blackman is an attorney and author, and blogs at JoshBlackman.com.