Stephen Breyer: The democratically-minded jurist

July 24, 2013

Stephen Breyer(Editor’s note: Over the next nine weeks, we’ll be profiling each of the sitting Supreme Court justices currently on the bench.)

So far in this series, we’ve only looked at justices with less than eight years of experience on the Court.

This lack of tenure makes it difficult to discern a concrete judicial philosophy from any of these newer justices.

True, Justice Alito has been on the Court longer than the two newer justices combined.  Even so, seven and a half years doesn’t really provide all that much on which to base a judicial philosophy analysis.

However, with this week’s justice, Stephen Breyer, that changes.

Justice Breyer has been on the Court for nearly 19 years, but the length of his tenure alone isn’t what makes his judicial philosophy easier to determine.

Rather, it’s the fact that Breyer has spoken in detail about his individual judicial views; and not just spoken: he’s written books about them.

Before that, though, we’ll briefly go through Breyer’s personal history.

He was born on August 15, 1938, in San Francisco, California into a middle-class Jewish family.

Breyer’s father, Irving Gerald Breyer, was legal counsel for the San Francisco Board of Education, and his mother, Anne A. Breyer (née Roberts), spent most of her time as a volunteer for the San Francisco Democratic Party and for the League of Women Voters.

He graduated from Lowell High School in 1955, and then attended Stanford University, where he majored in philosophy and received his A.B. in 1959.

After Standford, he attended Magdalen College in Oxford, England, where he studied philosophy and economics.

Breyer then attended Harvard Law School, graduating magna cum laude in 1964.

After law school, he clerked for Justice Arthur Goldberg from 1964 to 1965.

From 1965 to 1967, he served in the office of the assistant U.S. attorney general, working in the Justice Department’s anti-trust division.  After marrying Joanna Hare, the daughter of England’s Lord John Blakenham, his personal wealth increased significantly, and he retired from the Justice Department.

In 1967, he began teaching at Harvard Law School, where he became known as an expert in administrative law.  He continued to teach there until his nomination to the Supreme Court in 1994.

He served on the Watergate Special Prosecution Force in 1973, was a senior aide to Senator Edward Kennedy, and was chief counsel to the Senate Judiciary Committee from 1979-1980.

In 1980, Breyer was nominated as judge for the First Circuit Court of Appeals by President Jimmy Carter; he was confirmed on December 10, 1980, with bipartisan support.  He became the First Circuit’s Chief Judge in 1990.

In 1994, President Bill Clinton nominated him to replace the retiring Justice Harry Blackmun (after having passed Breyer over previously in favor of Justice Ruth Bader Ginsburg).  Breyer was confirmed by the Senate by a vote of 87 to nine.  He was sworn in on August 3, 1994.

As a Supreme Court justice, Breyer has regularly voted with the liberal bloc.  However, his judicial philosophy, as laid out by his aforementioned books on the subject, cannot be simplified to such a mere label as “liberal.”

These two books, 2005’s Active Liberty: Interpreting Our Democratic Constitution and 2010’s Making Our Democracy Work, illustrate the complexity of Breyer’s views.

In his 2005 work, Breyer advocates for a philosophy that considers the concept of “active liberty” in any judicial decision-making.

“Active liberty” is best understood in the fuller context of “liberty” as defined by Isaiah Berlin’s Two Concepts of Liberty, which delineates liberties into one of two categories: “positive” and “negative.”

“Negative” (or “modern”) liberties are the freedom from state constraint, whereas “positive” (or “active” or “ancient”) liberties protect the ability to be an active and constant participant in collective power.

Breyer believed that the Constitution was designed to promote active liberty – in other words, to help citizens engage in their government as actively as possible.  A judge’s job when upholding the Constitution, then, is to further this end.

While it is apparent that Breyer’s philosophy is solidly pro-democracy, it’s less clear how that philosophy translates from the abstract into actual application.

In practice, these views have led to Breyer being the Supreme Court justice with the lowest rate of voting to overturn congressional legislation since 1994.

This trend perhaps clashes with common, more critical view of liberal judges who “legislate from the bench” by overturning legislative decisions by elected officials.

Breyer’s overtly democratic judicial philosophy also seems to manifest itself in his views on copyright laws.  Specifically, that copyright laws may be overprotective of the content that they protect, to the detriment of the public that is consuming them.

An example of this may be found as recent as this past term, with the landmark Kirtsaeng v. John Wiley & Sons decision that sided with an individual importing cheap textbooks from his native Thailand and reselling them in the U.S.  The majority opinion was authored by Breyer himself.

Furthermore, in Golan v. Holder, Breyer penned a dissent (joined only by Justice Alito) from the majority’s opinion that upheld a law that removed “many millions” of works from the public domain.  Again, Breyer seemed suspicious of arguments that strong copyright protections drive innovation, and further asserted a belief that expansive copyright laws are at the expense of the public.

Aside from copyright, Breyer’s views impact his decisions across a wide array of other issues; one particular area that has found Breyer especially vocal is campaign finance laws.

In both 2003’s McConnell v. FEC and 2010’s Citizens United v. FEC, Breyer has been a staunch advocate of corporate spending restraints because Breyer argues that they promote a more egalitarian, participatory vision of democracy – one in which political dialogue is not controlled by the most well-financed.

Breyer argues for these restrictions in the face of assertions that they are exactly the kind of limitations on speech that the Constitution forbids.

Another area like this one in which Breyer has supported deferring to the legislature arguably at the expense of First Amendment speech rights can be found in the 2011 Brown v. Entertainment Merchants Association decision.

The ruling, which dealt with the constitutionality of a California law that banned the sale of violent video games to minors, found Breyer as one of the only two dissenters, and the only one to argue that the violent video games covered by the law were obscenity.

This is yet another example of Breyer’s elevation of “active liberty” above “modern liberty;” instead of choosing to the “modern liberty” path of espousing a broad view of First Amendment speech protections against state constraint, Breyer treads the path of “active liberty,” finding that such protections would diminish of the quantity and quality of the collective national dialogue.

Moreover, EMA is yet another instance of Breyer’s deferral to the legislature.

Breyer not only defers to the legislature on a regular basis, but also to law enforcement – once again breaking away from the stereotype of the liberal judge.

In the past term alone, there were several notable instances of Breyer joining with a conservative majority or dissent (usually without Justice Scalia) in taking the sides of law enforcement (I’ve written a few posts about those cases).

And these positions are not a recent occurrence for Breyer; such votes in favor of law enforcement can be found as far back as his first term on the Supreme Court.  A particularly notable such case being 2004’s Blakely v. Washington, in which a dissenting Breyer argued that the Sixth Amendment does not require that all facts necessary to criminal punishment must be submitted to a jury and proved beyond a reasonable doubt.

Because of the intricacies of Breyer’s judicial philosophy, more space that is available here is needed to fully discuss his “active liberty” views.  To further complicate matters, Breyer has admitted that his “active liberty” approach will not always provide solutions in every constitutional argument.

Thus, although we have some general guidance on Breyer’s views – deference to law enforcement and legislatures, distrust of copyright laws, and support for campaign finance laws – we don’t have a truly reliable understanding of how Breyer will vote on a particular case.

Of course, if justices were predictable, then Court-watching wouldn’t be any fun.