Tuesday, September 8, 2009

Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice Stephen Gerald Breyer was born in San Francisco on August 15, 1938. He comes from a Jewish religious background, and the law was part of his life from his infancy. His father was a noted San Francisco attorney who, among other things, served as legal counsel for the San Francisco Board of Education. His younger brother Charles is a federal judge for the Northern District of California, located in San Francisco.

Breyer's family was actively involved in the Boy Scouts of America, and both Stephen and Charles became Eagle Scouts. He never lost his love for the Scouts, and in 2007 he was honored with the Distinguished Eagle Scout award. He attended Lowell High School, which has always been the "academic" high school for San Francisco. San Francisco is a very small town geographically, so it has always been possible to have most students attend their local schools while the top students were sent to the one or two college preparatory public schools. The prime schools had special programs, of which Breyer took definite advantage. He was active in the Lowell Forensic Society, and even had the opportunity to participate in debate tournaments which allowed him to take on future California Governor Jerry Brown and future Harvard Law Professor Laurence Tribe.

Breyer went on to Stanford, where he obtained a bachelor's degree in philosophy. He then went to Oxford University as a Marshall Scholar and received a bachelor's degree in English literature from Magdalen College. He returned to the United States, and received his LL.B from Harvard Law School. Breyer has always been cosmopolitan despite his otherwise solid middle class background. He is married to Joanna Freda Hare, a noted British psychologist who is also the daughter of John Hare, First Viscount Blakenham. Although Breyer remains a practicing Jew, his oldest daughter Chloe is an Episcopalian priest and his wife is an Anglican communicant. He also has another daughter, Nell and a son, Michael.

After law school, Breyer clerked for Associate Justice Arthur Goldberg during the 1964 Supreme Court term. He then served in various government legal capacities, including the Anti-Trust division of the Attorney General's office, an assistant prosecutor in the Watergate Special Prosecution Force, and special counsel to the Senate Committee on the Judiciary where he ultimately became Chief Counsel from 1979 through 1980. Although he spent considerable time working with Ted Kennedy at the committee, he also helped the passage of the Airline Deregulation Act which brought the Civilian Aeronautics Board to an end.

Breyer also taught law at Harvard Law School and at the same time taught policy at the Harvard Kennedy School of Government. He was, and is, considered a master of administrative law and regulation. In 1980, he was appointed as a judge on the U. S. Court of Appeals for the First Circuit, and from 1990 to 1994 was the Presiding Judge. At the same time he served on the Judicial Conference of the United States and the United States Sentencing Commission, playing a key role in reforming federal criminal sentencing and creating uniformity of sentencing through the Federal Sentencing Guidelines.

Although President Bill Clinton at first considered Breyer to replace Justice Byron White on his retirement, he decided on Ruth Bader Ginsburg instead under pressure from the left wing of his party. But shortly thereafter, Harry Blackmun announced his retirement, and in 1994 Clinton nominated Breyer. He was confirmed by a vote of 87 to 9. The junior justice on the Supreme Court is treated like a perpetual freshman until someone newer comes along. Breyer was the second-longest serving junior justice, on his way to becoming the longest-serving when Justice Joseph Alito assumed the dubious honor in 2006.

Breyer is neither a "living constitution" advocate nor a strict constructionist. The proof of this is that his major debate opponent is Justice Anton Scalia. But they don't argue over whether the Constitution is constantly "evolving," but rather over where original text and original meaning are insufficient to form an opinion resulting in Breyer's concept of the "purposes and consequences" of the original text. Despite his frequent joining with the liberal wing of the Court, it is a result of this Scalia/Breyer difference of judicial philosophy rather than any concurrence with the concept of reading the text in strictly modern terms. The truly liberal justices such as Ginsburg will diverge from precedent unless the text is so cast in concrete that it is not capable of interpretation.

Also, unlike the liberal justices, Breyer has consistently shown deference to the acts of Congress and the prerogatives of the Executive Branch regardless of which party and which political philosophy is currently in power. Breyer often shows a strong streak of leaning toward "process" over strict interpretation. Thus, he defends federal sentencing guidelines as necessary to the orderly process of judicial consistency, while Justice Scalia believes that the Sixth Amendment requires submitting to a jury all the elements of the crime as they relate to sentencing, including the reasonable doubt standard. Oddly, this results in the "conservative" Scalia supporting judicial discretion and the "liberal" Breyer opposing unrestrained judicial discretion. Normally, that would be considered a role-reversal.

Like my top bet for next Obama appointment, Cass Sunstein, Breyer is an unwilling judicial activist because of his fondness for Isaiah Berlin's seminal work Two Concepts of Liberty. Berlin posited, and Breyer agrees, that "liberty" has two manifestations. The first and more common understanding is that liberty is essentially freedom from government intrusion. There is very little disagreement on this concept, but in order to expand on the concept of liberty, Berlin needed to give this first manifestation a name. He calls it "negative liberty" because it defines what government must not do if it wishes to promote liberty. Berlin then describes his second manifestation of liberty--"positive liberty." That is, the freedom to participate in the government.

Breyer has taken "active liberty" into his judicial philosophy, and unlike Berlin, sees it as more important than "negative liberty," rather than an equal and balancing view. Breyer also interprets freedom to participate in government as requiring the most democratic use of judicial power to assure it. That leads him to view cases before him in terms of which interpretation most closely uses the text to support democratic rather than republican principles. This leads Breyer to see the Supreme Court as the protector of the democratic intentions of the Constitution ("substance") over the republican intentions of the Founders who wrote it ("procedure").

But again, that does not make him a radical or a "living constitutionalist." He still insists that step one is to look at the original text, then the original intention, and only when those are not manifestly clear, then to the democratic impulse of the Founders. Sunstein (remember that name folks, I'm making a cautious prediction that he will be an Obama appointee to the High Court) leans strongly toward "active liberty" taking precedence over "negative liberty," requiring that only a very high and compelling order of wording and intention within the text of the Constitution should ever be preferred over a modern interpretation of the venerable text.

Breyer, on the other hand, believes strongly that "active liberty," however attractive in theory, should never lead to "the abdication of your role of enforcing the limits in the Constitution, whether in the Bill of Rights or in the separation of powers." Critics of Breyer have said that he finds the text and original intent muddy more often than is meet and proper. His most active critic is Professor Peter Berkowitz of George Mason University Law School and a Fellow at the Stanford Hoover Institution. Berkowitz says that Breyer will always err on the side of the text being unclear in order to pursue "active liberty" results. "Breyer's position demonstrates not fidelity to the Constitution, but rather a determination to rewrite the Constitution's priorities." That leads him to activism, despite himself. Berkowitz goes on to say: "Active Liberty (the title of Breyer's treatise on the subject) suggests that when necessary, instead of choosing the consequence that serves what he regards as the Constitution's leading purpose, Breyer will determine the Constitution's 'leading purpose' on the basis of the consequence that he prefers to vindicate." This, Berkowitz concludes, is the explanation for why Breyer so often ends up concurring with the intentionally activist justices.

For instance the Constitution is silent on abortion. Rather than see that as an automatic right of the states because the Constitution failed to enumerate abortion as a federal prerogative, Breyer sees abortion as an unaddressed textual matter requiring the application of active liberty. Thus, he has consistently voted with the far more doctrinaire liberals on the Court in striking anti-abortion statutes. Breyer is also a reluctant virgin on the idea of incorporating foreign and international law into Supreme Court decisions. He states that he believes that use should be persuasive, but not binding. As a practical matter, that is a distinction without a difference. But if he were truly a judicial liberal activist, he would not have been so consistent in voting to uphold law enforcement on Fourth and Sixth Amendment issues. He has also been the least arrogant of any of the justices in his pattern of showing extreme deference toward the acts of the legislative and executive branches. He has the best record of upholding acts of Congress, voting to overturn them at a lower rate than any other justice since 1994.

12 comments:

StanH said...

Breyer seems like the most complicated Justice thus far or, wishy-washy. He can be convinced of mysterious law or out of thin air, like abortion, but at the same time firm on respecting the power of the legislative branch to make law. The negative – positive liberty crap seems like meddling with original intent for political ends, that’s dangerous in my opinion. He seems to be a bit of a loose cannon for the liberals just as Kennedy, Stevens, and Souter was for Republicans. Good read Lawhawk.

Writer X said...

From what you've written, is it a correct assumption that Breyer is one of the least predictable justices?

Sanmon said...

Thanks for the civics lesson. Do you have any recommended reading that can help a non lawyer understand better the definitions of liberty that our legal system uses?

Tennessee Jed said...

As an Eagle Scout myself, I can salute Justice Breyer for that. Although it is probably true that most politicians follow the process of determining their position first and then spinning the logic to defend it, that is, in fact, what Justice Breyer seems to do if we conclude Berkowitcz's criticism is correct. Active liberty seems to be a more elaborate (and possibly more defensible) version of what other liberal activists do; e.g. decide where you want to end up and manipulate your interpretation of facts to arrive there.

Still, I like that he is less arrogant and somewhat more respectful and deferential to the legislature and executive branches constitutionally granted powers. Thanks for another great post.

LawHawkSF said...

StanH: I think your conclusion is correct. He is a very complicated jurist. He has considerably more respect for the founding documents than his liberal counterparts, but his "active liberty" concept still leaves too much room for "creative" interpretations of the Constitution.

WriterX: Actually, he's fairly predictable on many issues (law enforcement, 4th Amendment, legislative and executive privilege). He's unpredictable in cases of "first impression" because it's hard to know whether he will find text and intent sufficient to avoid his "active liberty" concept. For instance, he has almost always come down on the side of First Amendment free speech. But he also defers to Congressional power. So I would have a hard time guessing where he will come down in possible regulation of the internet, an issue that sooner or later will hit the courts.

AndrewPrice said...

Lawhawk, nice article on a rather complex justice. You draw an interesting distinction between Breyers and Scalia. Where would you put Thomas on that scale? Because I've always found Thomas to be less of a strict constructionist that Scalia, but certainly influenced by the thinking.

LawHawkSF said...

Sanmon: You might consider The Supreme Court by William H. Rehnquist (yes, that Rehnquist). That will get you through the Warren Court. The history is good, the cases chosen for extra analysis are better, and he doesn't talk down to the reader or assume everyone in the world is a lawyer. You might also consider The American Supreme Court (Fourth Edition) by Robert G. McCloskey. I read the First Edition about the time I decided to head off for law school, and though it has been updated three times since, it has kept its ability to inform without being overly academic or technical. Finally, there is A History of the Supreme Court by Bernard Schwartz. I would caution that the book is excellent, and has good discussion of the concept of "ordered liberty," but be forewarned that the author is a fan of "modern" interpretation of the role of the Court. But he is not a fanatic about it, so with that word of caution, it might be the most useful book of the three.

LawHawkSF said...

Tennessee: I think you pretty much got the essence of Breyer's thinking. With his active liberty concept, he could have gone off to the races and led the liberals in re-writing the Constitution, but in fact has done nothing of the kind. My worry (as I mentioned in the article) is that Professor Cass Sunstein also subscribes to the view, and has no hesitation in applying it in a way that could do what Breyer didn't do. We'll see what develops if another spot opens up during Obama's administration.

LawHawkSF said...

Andrew: You had to go and lob a grenade at me, didn't you? LOL. That really is an excellent question that I hadn't much considered previously. Off the top of my head, I'd have to say that in a three-way discussion, Thomas would come off as Breyer's mirror-image. Breyer and Thomas would try to pull Scalia in slightly opposite directions. Since Breyer is less a strict constructionist than Scalia because of his "purpose and consequences/active liberty" view, he diverges slightly to the left of Scalia. Thomas, on the other hand, diverges in the opposite way. If Thomas thinks the text and original intent are not sufficiently clear, he will rely on "natural law" to try to determine what the Founders would have said had they addressed the particular issue (as opposed to Breyer then feeling free to go with the more democratic, modern interpretation).

BTW: Sanmon asked about reading material on the Supreme Court and liberty. I gave three suggestions. Would you like to add some?

AndrewPrice said...

You'll find I'm full of surprises Mr. Lawhawk! Hoooo ha ha ha.

Good answer, by the way, I think you're right. Interestingly, I like to think of myself as a strict constructionist, but I prefer Thomas to Scalia.

I don't have any recommendation for books. I would say though that I think Sanmon won't find what he's looking for. The legal system rarely deals with "liberty." It deals with rights, of the individual or the government, it deals with process, and it deals with the occasional "freedom", though it really doesn't define freedom as you might think -- it defines freedom by setting the level of review/justification required before the government may infringe upon that freedom.

LawHawkSF said...

Andrew: I'm with you. Thomas has been my favorite since he first came onto the high bench. Love those Founding Fathers!

I agree that it is very difficult to find a book that directly addresses liberty in the Supreme Court decision-making context. That's why I chose three books which touch on the subject outside of the actual Supreme Court rulings. I found that when I was teaching Constitutional law, my approach was somewhat different from when I was teaching Constitutional history. I almost never discussed "liberty" in the former, but discussed it regularly in the latter. I think Sanmon is looking more for history than law. Of course Breyer's "active liberty" blurs the line between the two.

HamiltonsGhost said...

The Founders were very much concerned with liberty, but also the idea of ordered liberty. They knew if they could create a document which set basic rules that everyone could agree on, then people would have ample room to maneuver around within those rules. For that reason, the founding fathers spoke a great deal about liberty, but felt that the constitution they created guaranteed it without having to use the concept in its jurisprudence. If you followed the proper procedure then liberty would take care of itself. When the Warren court added "substantive" due process to the mix, the constitution no longer guaranteed liberty procedurally. That might partially explain why Breyer found it necessary to address liberty directly for the first time. Whether he got it right is a whole different discussion.

It also exlains why Andrew Price is right about it being hard to find Supreme Court books that address freedom and even harder to find books where the cases directly address "liberty." A hundred years from now, with procedural due process taking a backseat to substantive due process, that may change. Sadly, that makes the Supreme Court more of a political body, like the other two branches. That was not supposed to happen, and it's why Jefferson called the judiciary the most dangerous branch, since it leaves a small unelected politicized branch of the government free to thwart the will of the other two branches which are directly responsible to the people.

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