Reports in media indicate that Supreme Court Justice Stephen Breyer will retire from office this year once his successor has been confirmed and nominated. There is much to be said regarding the confirmation and nomination process. Here are some words about Breyer’s judicial philosophy and the contributions he made to our nation, which included many of his most significant achievements before he was appointed as Supreme Court Justice.
Breyer, unlike many other judges, wrote extensively on his philosophy of justice, even in books like Making Our Democracy WorkPlease see the following: Living in Active Liberty: Understanding Our Democratic Constitution. Breyer’s interpretation of the title suggests that the central theme is court involvement in democratic participation. He referred to this as “active liberty”. In this respect, Breyer’s approach has much in common with legal scholar John Hart Ely’s famous “representation-reinforcement” approach to judicial review.
As Breyer and Ely both argued, representation-reinforcement is sometimes obviously compatible with judicial review, as when courts strike down laws that restrict freedom of speech, constrain the right to vote, or otherwise directly interfere with democratic participation.
Breyer, however, went much father than this, and also defended strong judicial review in many situations where the connection between it and representation-reinforcement were, at best highly questionable (as in the case of abortion rights, for example). Breyer advocated “judicial restraint” when there were strong arguments against striking down laws and regulations. This could help promote participation from various angles.
These and other concerns about Breyer’s theory were discussed in greater detail in my 2006 Review of Active Liberty. Below is an extract from the abstract
Justice Stephen Breyer’s … Active Liberty: Understanding Our Democratic ConstitutionThis important contribution is to the ongoing debate about the relation between democracy and judicial reviews. Breyer argues that judicial power should be used to facilitate citizen engagement in the democratic process rather than undermine it; he claims that judges should promote democracy by explicit consideration of the practical consequences of their decisions….
Breyer’s contribution to the debate is important and on some points convincing…. But, Justice Breyer is much less convincing when defending his approach to democracy or judicial review. This Review will focus on Justice Breyer’s conception of the relationship between democracy, judicial power. It is far more complicated than that. Active LibertyLet’s not forget. Justice Breyer may argue for a different understanding of some cases.
Part II shows how Breyer’s assertion that judges must explicitly consider consequentialist factors in their decisions could lead to the judiciary going beyond its competence. Justice Breyer’s sometimes superficial approach to democracy is a dramatic example of this. It ignores tensions and neglects relevant empirical evidence.
A sounder judiciary approach to democracy, I believe, would be more favorable to judicial limits to the power of federal government to encourage federalism. These efforts might, at most at the margin of possibility, increase the accountability of the federal government to its voters and limit the effects on political ignorance. They could also impose accountability on government by strengthening citizens’ ability to vote with their feet instead of just at the ballot box….
Justice Breyer has a right conclusion that the judiciary can play a useful role in supporting democracy. However, his recommendations on how to achieve this goal are less convincing.
My review reveals a conflict between Justice Breyer’s long-standing advocacy for the deference of experts and Justice Breyer’s focus on popular democracy participation. His 1993 excellent book is here. Breaking the Vicious CircleBreyer is my personal favourite of his writings. He explains how the combination of incompetence, ignorance and inconsistent agency actions can result in badly designed regulatory policies. Breyer suggested that a super-agency consisting of specialists be established to fix this problem. This agency would have the responsibility of overseeing the activities of other regulators. Breyer argued that this agency should be protected from all political pressures, as well as those from the majority of public opinion.
Breyer’s judicial opinions often reference the idea of deference to expert, such as his recent dissents on the OSHA vaccine mandate case and the CDC eviction Moratorium case. It is possible to give experts broad discretion. This is in direct contradiction with Breyer’s earlier emphasis on the necessity to enable ordinary citizens to exercise their political rights. This tension was never resolved in Breyer’s own thinking, and I doubt he even came close.
I believe courts are best able to empower people to vote with their feet. This is far better than both voting by ballot box and placing power in the hands experts. Breyer was skeptical about the need to make decisions that limit the federal government’s power and protect constitutional rights, such as private property. Breyer was, with a few exceptions, a fierce opponent of both judicial enforcements of federalism and constitutional property protection. His dissent in United States v. LopezHe argued (1995) that Congress has the power to regulate interstate commerce to include a ban on gun possession near schools. This is an extreme example of the latter.
These are more points of disagreement than they are about Breyer. However, I do not doubt his ability to write many excellent opinions. His writings about regulation were very effective in highlighting important problems. I’m not sure if his proposal is the right one. His recent critiques of court-packing proposals are also mine.
Breyer may not have been the greatest servant of the country until his appointment in 1994 to the Supreme Court. Breyer, a close aide of Senator Ted Kennedy in late 1970s played an important role in the passing of airline deregulation. The reform enabled better, more affordable air travel. This made it possible for working and middle class people to afford this form of transport. Breyer is a debt that generations of travellers owe, even though most don’t know.
Breyer spoke out in an interview with PBS about the experience. He made several points about how important competitive markets are today.
There were two things I thought I was wrong. [with regulation]. First, if you put together a bunch of people and attempt to protect them from the presidency or congressional oversight, then other political forces can emerge to try to get control. What you’ll find is that even though the agency has its politics, it also influences the decisions of other political forces. First, the industry was a key player in trying to influence and eventually, the consumer group or public-interest firm or others who thought they could represent the public interest tried to influence the commissioners. And politics develop around the commission; and soon it’s learned that there is no science that dictates the proper level of a railroad rate…. [S]A person who sits in a darkened room and holds a pen and paper will not be able find the right airline rate.
In other words, efforts…. People were asked to predict what the market might produce if the price was set free. Their results differ so much from what it produces when the price is set free. It becomes an absurd parody of a free market. And people found that it often would hurt the consumers and the producers as well, compared to what would happen if you allowed the market to function on its own…