Follow Up on Breyer Op-ed

My co-authored op-ed on Justice Breyer’s jurisprudence has stirred a bit of controversy.

The basic point of the op-ed is that, as political scientist Ken Kersch puts it in a great scholarly review of Breyer’s book “Active Liberty”, Breyer’s intellectual roots are less in the sort of modern liberalism that animated the likes of William Brennan, and more “in pre–New Deal, early twentieth century progressivism, an outlook with an animating faith in government by expert, acting as stand-ins for the (uninformed) people at large.”

This does not, of course, mean that Breyer would vote the same way in particular cases in 2011 as a Progressive would have in 1911. Breyer, like everyone else, has been influenced by the civil rights movement, the women’s movement, and other massive social changes that have taken place in the last one hundred years. But it does mean that he is prone to making the same category of error pre-New Deal jurists made, in giving too strong a presumption to legislative outcomes supported by a consensus of elite experts at the expense of individual rights.

My co-author and I cited Breyer’s recent First Amendment dissent in Sorrell, as demonstrating how Breyer gives much shorter shrift to First Amendment rights than did Brennan and his cohorts. In another case this past term, Breyer got his liberal colleagues to sign on to an opinion stating that the First Amendment primarily protects the “marketplace of ideas,” which reflects “the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted.” This harkens back to the Progressive view of free speech, not the more liberal view of Brennan et al.

It probably would have been worth adding that Breyer has long had overall the most pro-government record in First Amendment rights of his contemporaries.

Breyer’s views are also on display in other contexts, including the Second Amendment, Commerce Clause, and affirmative action cases, but of course there is a general liberal consensus regarding the “right” answer in those cases, albeit not necessarily on Breyer’s reasoning.

But how about Korematsu? When I’ve blogged about Lochner v. New York as the most reviled, anti-canonical case of the twentieth century, several commentators have insisted that Korematsu is much more loathed than Lochner, that no jurist could be taken seriously if he supports the outcome in Korematsu.

That’s interesting, because Breyer discusses Korematsu at length in a recent book, and he never does get around to saying that the Court should have deemed Fred Korematsu’s detention illegal. Rather, he argues that the majority was too deferential to the executive, the dissents were “unworkable”, and they should have met somewhere in the middle–but not somewhere that would have entitled Korematsu to an immediate hearing, much less release.* Rather, “ideally,” the Court should have found a pragmatic solution somewhere in between “burdensome, case by case review, and no review at all.” (I’ll leave it to another time to discuss why Breyer nevertheless voted the way he did in Boumediene).

Obviously, my views are not on the modern liberal/progressive left, so I’m not going to be particularly happy with any given liberal Justice. But I much prefer left-leaning judges who have a strong sense of the importance of individual rights and the dangers of excessive government authority than ones who do not. Breyer, while certainly not wholly indifferent to civil liberties, seems closer to the latter category than any other “liberal” Justice of the last fifty or so years.

UPDATE: *Clarification/correction: Perhaps in deference to Korematsu’s anti-canonical status, Breyer does offhandedly state on page 191 that Murphy, dissenting, was right in the Korematsu case itself, even though his opinion was unworkable. So Breyer does deem Korematsu’s detention illegal, at least by 1944 when Korematsu was decided. But it’s also clear that Korematsu would not, under Breyer’s view, have been entitled to a speedy, individualized hearing upon detention, much less immediate release. Since Breyer only endorses Murphy’s preferred result in a single short sentence and doesn’t elaborate further, it’s not clear on what grounds the Court Breyer thinks the Court could have ordered Korematsu’s release while still appropriately deferring to the executive.

FURTHER UPDATE: In our op-ed, we noted that in Sorrell,

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.

Relatedly, Linda Greenhouse writes:

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.”