One Cheer for Stephen Breyer

In 1994, President Bill Clinton appointed Stephen Breyer as the U.S. Supreme Court vacancy filler. He said that Breyer would strike the “right balance” between discipline and order.

Breyer’s imminent retirement from the Supreme Court at the conclusion of his current term offers an opportunity for you to evaluate Clinton’s claims against Breyer’s track record. The former president was wrong, however. Breyer often acted “firmly” when he deferred to the government. Breyer was often “firm” in his deference to the government, especially when it came to major Fourth Amendment cases.

Look at the case from 2014. Navarette v. California. The police were called anonymously and without supporting evidence by a 911 call regarding an allegedly dangerous driver. This led them to conduct a traffic stop which resulted in a bust of a controlled substance. According to the 5–4 majority opinion by Justice Clarence Thomas, “the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated.” Breyer agreed to join the fight for law enforcement.

Justice Antonin Scalia made a strong dissent to highlight the flaws in that judgement. Scalia wrote, “The Court’s decision serves up a freedom-destroying cocktail.” She was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. All a malevolent 911 caller needs to do is state a traffic violation and then the police will pull the vehicle over. Scalia said that Scalia’s disturbing scenario “isn’t my idea, and I don’t think it would be the Framers, which is a concept of people protected from unreasonable searches, seizures, or other search and seizure.” Breyer apparently was untroubled by that Fourth Amendment–shredding scenario.

Navarette was not the first time that Scalia was more “liberal” than Breyer in a 5–4 Fourth Amendment case. A year prior, Scalia was in Maryland v. KingBreyer joined Justice Anthony Kennedy in the controversial majority opinion that allowed police to take DNA samples from arrested people without warrants.

Scalia declared, “Make no mistake about that,” in his dissent. NavaretteGinsburg, Sotomayor and Kagan joined the group. As a predictable result of today’s decision your DNA may be taken and entered in a national database if you ever are arrested. Breyer was unaffected by this disturbing situation.

Breyer had some ideas of his own about the Supreme Court’s business. His 2010 book outlines them. Making Our Democracy Work. Breyer wrote that the Supreme Court needs to consider the “role of other government institutions and the relations among them” and work together “to maintain a working relationship” between its various branches.

Although it may seem innocent, consider all the implications. In 1944, the Supreme Court heard Korematsu v. United StatesThe Court dealt with the wartime internment by President Franklin Roosevelt of approximately 70,000 Japanese Americans. It is clear that the Court would have had to scrap the “workable arrangement” and just invalidate FDR’s illegal and dangerous acts.

Breyer said that it is not always the case. “Perhaps [the Court]You could have established a sliding scale for the length of detention, or asked the government to increase screening efforts as a result. Or found another way to continue a working relationship with President Obama.

Breyer didn’t always follow the same judicial deference he advocated. For example, in 2008, he joined Justice Anthony Kennedy’s opinion. Boumediene v. Bush, which struck down part of the Military Commissions Act of 2006 while recognizing habeas corpus rights for prisoners held as enemy combatants at the U.S. military base in Guantanamo Bay, Cuba—a decision that was cheered by both liberals and libertarians.

Breyer was right about that. Breyer later admitted, however that the ruling was not in line with the principle of judicial deference that he believed in. Making Our Democracy Work. “One cannot describe Boumediene as a case that followed Congressional directions or implemented Congress’s broader purposes,” he wrote in the book. You can’t.

Breyer’s jurisprudence has a consistent theme of inconsistency. Breyer was open to invalidating democratically-enacted laws when necessary. For gay rights, he joined Supreme Court’s historic opinions. These landmark opinions overturned state regulations that had been passed by democratic majority.

Breyer accepted “expert” local policy making, but he was happy to do so. Kelo v. City of New LondonThe 2005 case upholding an order granting eminent domain to a person who was, in the opinion of the majority, “our longstanding policy deference” to legislative decisions in this field. Breyer was often described by admiring commentators as a legal “pragmatist.” Breyer was certainly able to adjust his description.

Breyer is credited for one of the last acts he performed while sitting on the bench. Breyer was the one who led the attack against court-packers in the face of President Joe Biden’s progressive campaign to make the court more democratic and to create a Democratic supermajority. He denounced them as shortsighted ideologues and a threat to both the judicial independence of the judiciary and the bedrock liberal values. Breyer was aware that his actions would anger many on the other side of the aisle.

Kudos to Breyer. Today, too few public figures are willing and able to make such a strong stand.