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Looks like Justice Breyer’s law clerk wasn’t quite as astute as he or she should have bee in Hosanna-Tabor:

JUSTICE BREYER: Really? My law clerk couldn’t find it. Can you tell me where, where someone did say the reason we are dismissing you is because of our religious doctrine that you cannot bring civil suits?

MR. LAYCOCK: Page 55 of the joint appendix, which is the letter that — where they tell her that they are going to recommend recission of her call, they say because — because of insubordination, and because you threatened to sue us.

In the New York Times, Linda Greenhouse labels Justice Breyer’s dissent “most unusual judicial performance” this term. If it makes the top of Linda’s end-of-term scorecard, perhaps this answers, in part, any questions about why David and I wrote about it. It’s an important, and “unusual” opinion.

Greenhouse also focuses on the fact that Breyer went out of his way to cite contradictory studies that were never briefed to the Court, something he has done several times, a point we made in our Op-Ed.

When Greenhouse–who has written nostalgically about a return to the Warren Court jurisprudence–is criticizing Justice Breyer, and calling Justice Scalia’s opinion “forcefully libertarian” (!) you know something is awry in the realm of active liberty.

Here is the relevant passage:

In this case, Brown v. Entertainment Merchants Association, the United States Court of Appeals for the Ninth Circuit had found that the California law violated the First Amendment, and by a vote of 7 to 2, the Supreme Court agreed. Even Justice Samuel A. Alito Jr., who in earlier opinions dissenting from rulings that protected hate speech and depictions of animal cruelty had seemed the justice most attentive to arguments about the harms inflicted by unfettered free speech, found the California law unconstitutionally vague. (He did not sign Justice Antonin Scalia’s forcefully libertarian majority opinion.)

Most unusual judicial performance: Justice Alito having forfeited his usual spot on the First Amendment spectrum in the video games case, his place was taken by Justice Stephen G. Breyer, who voted to uphold the statute. Justice Breyer added two appendices to his dissenting opinion, comprising a 14-page list of scientific articles on the psychological harm of playing violent video games. The much longer “Appendix A” listed articles concluding that the games were in fact harmful, while the shorter “Appendix B” listed articles that either did not support or that actually rejected the claim of harm.

Justice Breyer does not employ footnotes in his opinions, and has collected references in appendices with some frequency. His penchant for original research has also occasionally led him outside the record of the case at hand. But the sheer size of this offering, consisting of contradictory articles neither cited to the court by the parties nor vouched for by the justice himself qualifies the Breyer dissent for the distinction of “most unusual judicial performance.”

This analysis is foreign to traditional First Amendment analyses, and apparently offends Linda Greenhouse’s sensibilities. I find myself largely in agreement with what Linda Greenhouse wrote.

Cross-Posted at ConcurringOpinions.com.

There has been a considerable discussion about an Op-Ed I co-authored with David Bernstein on Justice Breyer both here and at Volokh.com. I wanted to clarify a few things in this follow-up post.

The comparison between Holmes and Breyer was not meant to suggest that they would vote the same way if confronted with the same cases; the comparison was to show how some of Breyer’s democratic/majoritarian views on active liberty, in many respects, sound in the Progressive tradition. In the Op-Ed we also compare Breyer with Robert Bork on this front (a point that none of the comments even mentioned); I wouldn’t even suggest that Breyer and Bork would vote similarly.

This op-ed was not about specific cases; it was about judicial philosophy.

I think the primariy misunderstanding is over one important point: as articulated by Alex in the comments, if Justice Breyer has a similar philosophy as Justice Holmes–a philosophy rejected by the New Deal Court–then Breyer would vote to “roll back decades of these pro-liberty precedents” and overturn cases like Brown v. Board of Ed..

This was not our point, at all. We did not imply that Breyer would vote to roll back Brown v. Board. In fact, I am sympathetic to many aspects of Breyer’s dissent in Parents Involved, particularly his characterization of the Chief’s opinion as abandoning Brown (a claim that I think is pretty accurate).

The point was to focus on Breyer’s judicial philosophy.

Breyer’s conception of civil liberties–free speech in particular–relies on, and respects Warren Court’s precedents (such as Brown), but in my mind, he views them in a different manner. Here is Breyer’s gloss on the Warren Court in Active Liberty:

Later Courts–the New Deal Court and the Warren Court–emphasized ways in which the Constitution protected the citizen’s “active liberty,” i.e., the scope of the right to participate in government.”

The focus is not on individual liberty, or the protection of individual rights from over-reaching majorities, but rather on what Breyer calls “active liberty,” or “the scope of the right to participate in government.” (Active Liberty, p. 10).

Returning to the Op-Ed, Breyer would not “roll back” precedents from the Warren Court by overturning them. Rather, he would re-characterize these opinions as not about a fundamental individual liberty interest, deserving of heightened scrutiny, but as part of an active liberty jurisprudence, where courts construe the Constitution in consonance with the right of the people to participate in popular democratic government.

This passage on free speech from Active Liberty is instructive.

One the one hand, if strong First Amendment standards were to apply across the board, they would prevent a democratically elected government from creating necessary regulation. The strong free speech guarantees needed to protect the structural democratic governing process, if applied without distinction to all governmental efforts to control speech, would unreasonably limit the public’s substantive economic (or social) regulatory choices. The limits on substantive choice would likely exceed what any liberty-protecting framework for democratic government could require, depriving the people of the democratically necessary room to make decisions, including the leeway to make regulatory mistakes. [And in a sentence that could come from his dissent in Sorrell v. IMS Health] That, along with a singular lack of modesty, was the failing of Lochner. No one wants to replay that discredited history in modern First Amendment guise.”

On the other hand, to apply across the board uniform First Amendment standards weak enough to avoid the shoals of Lochner would undermine the First Amendment so much that it would not offer sufficient protection for the free exchange of ideas necessary to maintain the health of our democracy. (pp. 41-42)

This is a very Holmesian market place of ideas view of free speech that is short of focusing on why speech, by itself, is important. On the one hand, free speech is important so long as it “offer[s] sufficient protection for the free exchange of ideas necessary to maintain the health of our democracy.” On the other hand, were Courts to unduly strike down laws limiting speech, it would deprive “the people of the democratically necessary room to make decisions.” So one the one hand, we have “protect democracy.” On the other hand, we have “protect democracy.” To borrow from a classic 80’s commercial, where’s the liberty?

This view matches his dissent in EMA. The statute in EMA was popularly enacted by the legislature, and supported by two Governors. Justice Breyer paid “greater attention to [the] document’s democratic theme” and not so much attention to the civil liberties aspects of minors at stake. (p. 7). There was nary a discussion of the liberty interests in his opinion, yet dozens of pages about supporting the democratic choice made by the people.

Justice Breyer’s comments about the role of popular governance in First Amendment cases at the Aspen Institute (I apologize for my rough transcription from the video) echo this sentiment:

Let’s look to see what the justification is if the state wants to restrict expression and let’s look to see if there are an alternative systems. Often you find something in all those categories and there is not much of an alternative but do a little balancing.

In this case, the restriction on speech, the child cannot buy an x-rated game without their parent’s permission. If their parents wanted them to have it, they can go get it.

That is something, not much of a restriction

I look for a rationale for it, and I find 130 studies. And I find that’s not a bad rationale.

Justice Breyer went out of his way to find studies–that were never even considered by the California legislature, or submitted to the Supreme Court–in order to uphold the law. This exemplified, in my mind, a lack of concern for the First Amendment free speech liberty interests involved in the case, and was primarily concerned for the interests of parents through the state in California who wanted to protect the children.

To repeat from the Op-Ed, this opinion “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 encroachment–but to an earlier generation of judges associated with the Progressive movement, such as Justice Oliver Wendell Holmes, Jr. and Learned Hand.”

Justice Breyer is not opposed to protecting free speech; he simply decides to give the democractic process (active liberty) a significant amount of weight (would you call his approach in EMA strict scrutiny? I think it is closer to rational basis).

That is not necessarily a bad thing. Rather–and this is what the Op-Ed was getting at–this differs from the tradition of Warren and Brennan and Marshall. That the cases come out the same way is not relevant; what is relevant is how they are decided.

Even if you disagree with my reading of Active Liberty and Breyer’s writings, I hope I clarified the point we attempted to make in the Op-Ed (and I realize I spent 1200 words explaining an 800 word op-ed, so I admit, and concede that I did not make the point nearly as well as I could have).

Cross-Posted at ConcurringOpinions.com.

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.

 

Something about McDonald v. Chicago strikes me as odd about.  In a 147 page opinion (214 pages – Thomas’ 67 page opinion) consisting of a plurality, and two significant dissenting opinions, a mere 270 words were dedicated to the Privileges or Immunities Clause.

Let’s revisit the history of this case.

In one of my first posts on this blog, I noted the significance when the Supreme Court granted cert on this case. They offered two questions presented:

“Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”

This question presented spawned a brouhaha in the legal blogosphere (See here, here, and here) over what the Supreme Court would do with the Privileges or Immunities Clause, and why they asked this question.

Fast forward a few months, and the NRA filed a motion for divided argument time.The NRA argued that the due process argument was not adequately briefed, and they requested time to allow former SG Paul Clement to present it during oral arguments. The motion was granted.

At oral arguments, the vast majority of the discussion centered around Privileges or Immunities. Due Process was really an open-and-shut argument.

Which brings us to today’s opinion. After all of this drama, why only a mere 270 words on Privileges or Immunities?

I could imagine the Court taking this quiet approach if they were trying to keep Justice Thomas from breaking off. But he did just that. Why would Justice Alito be so curt about P or I. If it was so horrible, why not shoot it down. If there is no legitimate basis, why would he merely say that due to the vagaries of the doctrine, and settled precedent, the Court would not disturb precedent. When the Court wants to destroy a doctrine, they do so. See Justice Scalia’s opinion in Stop the Beach.

The wildcard here, of course, is Justice Kennedy. Perhaps he would not join an opinion that rips apart Privileges or Immunities. Maybe in some future case involving liberty–that is not a gun case, but a case involving Kennedy’s favorite forms of personal autonomy and liberty–Kennedy would want to rely on it? Perhaps.

And why did Breyer merely accept Alito’s handling of this issue? Perhaps in future cases, the liberal justices can see this as a useful tool to consider other types of rights.

My point is simple. This is not as bad as it could have been. In fact, I think it has a lot of potential for the future.