Why did Breyer, but not Ginsburg, join Roberts in NFIB? “Phew”

July 23rd, 2013

Justice Breyer offered an interesting take on the 7-1 vote in Fisher (with Justice Kagan recused), which reaffirmed Grutter, but ruled against the University. Why was the vote like that? One word. “Phew.”

 and Grutter held, in Breyer’s admitted shorthand, that “you can use affirmative action, but be careful, don’t go too far.”
When the same issue reached the Court again in Fisher, “there was a lot of speculation,” Breyer told the audience. “Would there be a change? Would [the justices] say no affirmative action? What would the Court do?” Breyer asked, repeating the questions on many people’s minds.
“I can tell you what the Court did do,” Breyer continued, with his characteristic verve.
“Seven members of the Court said Grutter is the law. So, what do I say? ‘Phew,’” drawing laughter. “I say that’s right; that was my view.Grutter is the law.”
With each case, Breyer pointed to numbers. Justice Lewis Powell’s solo concurrence in Bakke became a five-justice majority in Grutter, which became a seven-justice majority in Fisher.
In other words, five is better than one, and seven is better than five.Fisher was not meaningless; affirmative action left the Court stronger this term than it came in.
“So, that’s why I think it’s an important case,” Breyer concluded. “Sometimes an important case is simply reaffirming another case, which reaffirmed another case.”

On Twitter, Rick Hasen commented “Justice Breyer sees himself as savvy, not a sucker.” Of course, Justice Ginsburg was the lone dissenter in Fisher. To which I replied, “Then what does that make Justice Ginsburg?” Rick noted, “She could afford to speak out because the other liberals went along.”

But that reminded me of a similar situation last year. NFIB. Breyer, as did Kagan, went along with Roberts, while Ginsburg dissented. Why?

Maybe because Breyer and Kagen were content to cast a savvy vote, buttressed by Ginsburg’s liberal vote, to avoid a much worse outcome. 7 votes for something bad was better than 5 votes for something worse. The Medicaid ruling,  in hindsight, which allowed states to not opt in, was better than striking it down for all 50 states.

Maybe this was just a “phew” moment?