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Justice Breyer and the Culture Wars:
I think it's illuminating to compare Justice Breyer's dissent in DC v. Heller with his dissent in Zelman v. Simmons-Harris, 536 U.S. 693 (2002), the Cleveland school voucher case from a few years ago. Like Heller, Zelman is a "culture wars" case. To many liberal elites, both school vouchers and guns seem foreign and suspicious. They both threaten the common enterprise of a civil and enlightened society, even if poor people and folks from the flyover states seem to like them. So the interesting queston is, how does Justice Breyer approach the constitutionality of these provisions — permitting school vouchers in Zelman, and banning handguns in Heller?

  In his Zelman dissent, Justice Breyer reasons that public school vouchers are unconstitutional because they "risk[]" creating "a form of religiously based conflict potentially harmful to the Nation's social fabric." That is, they are unconstitutional because there is a possibility that they could lead to tension among religious groups. Justice Breyer speculates that such programs might lead different religious groups to feel that they are not getting a fair shake:
How will the public react to government funding for schools that take controversial religious positions on topics that are of current popular interest--say, the conflict in the Middle East or the war on terrorism? . . . Efforts to respond to these problems not only will seriously entangle church and state, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the government.
  As I read Breyer's Zelman dissent, his perception of a risk that the law could have a harmful result that touches on religious practice is enough to strike it down.

  Contrast Breyer's Zelman dissent with his dissent in Heller. Here, the polarity of the culture wars has been reversed. And so has Justice Breyer's approach: Now he reasons that the possibility of a positive social impact of the law makes it constitutional. The political philosopher of Zelman is replaced with a careful and cautious social scientist who runs over pages and pages of statistics and scientific studies in Heller. So long as the legislature had a possible basis for thinking that restricting the constitutional right was a good idea, Breyer explains, the law should be upheld:
  These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not. For one thing, they can lead us more deeply into the uncertainties that surround any effort to reduce crime, but they cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective. The statistics do show a soaring District crime rate. And the District's crime rate went up after the District adopted its handgun ban. But, as students of elementary logic know, after it does not mean because of it. What would the District's crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say.
  What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate. And we are then left with the same question as before: What would have happened to crime without the gun laws—a question that respondent and his amici do not convincingly answer.
(emphasis added)

  It's an interesting mirror image, I think. When the culture wars pointed one way, Justice Breyer thought that a "risk" of a "potentially harmful" adverse result was enough to strike the law down. When the culture wars pointed in the other direction, so did the burden of proof: now Justice Breyer must have his "confidence" in the reasonableness of the legislature "convincingly" "destroyed" before he would vote to strike down the law.

  To be clear, I'm not suggesting that Justice Breyer is alone in taking different approaches depending on which side of the culture wars the challenged law happens to fall. Plainly he is not. At the same time, I do think the contrast between these two dissents provides an unusually clear case of the difference.
James Lindgren (mail):
Orin,

Great post!

Jim Lindgren
6.27.2008 2:25am
Sensible Lawyer (mail):

At the same time, I do think the contrast between these two dissents provides an unusually clear case of the difference.



Especially because the Institute of Justice was on the opposite side of Breyer's dissent in each case. Perhaps Breyer simply hates libertarianism.
6.27.2008 2:26am
LM (mail):
Orin,

I pretty much agree with the post. There's just one term I find jangling, i.e., "liberal elites." Could you please explain which liberals are the elites, and how they differ from conservative elites? There may be a common sense meaning to the term, but if so I've lost it in the dissonance of its use and abuse as a partisan buzzword.
6.27.2008 5:44am
Eric Rasmusen (mail) (www):
The post says,

"To be clear, I'm not suggesting that Justice Breyer is alone in taking different approaches depending on which side of the culture wars the challenged law happens to fall. Plainly he is not."

Plainly he is not?
6.27.2008 6:12am
Loophole1998 (mail):
A liberal elite is a person who has risen to a station in life that allows him or her to know better than you what is good for you.
6.27.2008 7:14am
PostNoBill:
There is an eye-opening typo in the first sentence of the second paragraph. It is a common typo as well. I have received many letters relating to "Pubic Defenders" for example.
6.27.2008 7:26am
Robert Frost:
A liberal is a man too broadminded to take his own side in a quarrel.
6.27.2008 8:51am
Bob from Ohio (mail):
I wager that nobody Breyer knows needs to use vouchers or owns guns. So, who cares what hapens to the wrong kind of people.

Nice post but a "dog bites man" story. Example #113,205 of a judge making stuff up to meet his policy goals.

Bet you can find Scalia or Thomas doing the same though. The disease is very strong among all judges.
6.27.2008 9:33am
AF:
This "contrast" strikes me as anything but "unusually clear."

Constitutional doctrine calls for applying different levels of scrutiny in different contexts. The degree of scrutiny depends on the interpretation of the particular right at issue; there is no presumption that it should be the same for all constitutional challenges.
6.27.2008 9:44am
Interested Party (mail):
"When the culture wars pointed one way....." Good example of liberal hypocrite.
6.27.2008 10:18am
Charlie (Colorado) (mail):
Plainly he is not?

Alone.
6.27.2008 10:26am
Whadonna More:
Like LM, I think the "liberal elites" construction is jarring, and here, incorrect. The liberal elites I know seem to hold both private schools and money in high regard, so they would be for real money-allocating school choice. The liberal NON-elites (teachers' union and socialist-leaning types) are the ones against vouchers - unless "liberal elite" is just another way of saying "liberals I dislike".
6.27.2008 10:28am
Whadonna More:

Loophole1998:
A liberal elite is a person who has risen to a station in life that allows him or her to know better than you what is good for you.


Who know the clergy were liberal elites?!
6.27.2008 10:30am
Assistant Village Idiot (mail) (www):
I don't use the phrase "liberal elite" myself, preferring "Arts &Humanities Clan." It is an identification one chooses, distinct from the Science &Technology Clan, the Business Clan, the Military Clan, or the Union &Gov't Clan. Those other four have overlap. A&H, not so much. Interesting that conservatives and libertarians are often involved in preserving the traditional arts &humanites, but somehow aren't considered full members.
6.27.2008 10:35am
Paul Barnes (mail):

"risk[]" creating "a form of religiously based conflict potentially harmful to the Nation's social fabric."


By not allowing substantial school choice, there already is a conflict. I mean, are enough people mad enough to actually do something about it? Not particularly. But as the government, federal, state, and municipal, increase the regulations on religious groups and impose fines and censure for holding certain theological viewpoints, you will see greater solidarity among religious groups.

For example, look at the relationship between Evangelicals and Catholics ever since Roe. That issue has increased political and personal cooperation dramatically. And the infringement by government in not allowing these tightly-knit to work for the common good as they perceive it is making many of them angry.
6.27.2008 10:44am
Paul Zrimsek (mail):
Getting back to Breyer, another change I noticed was his assumption that gun bans would stand up to rational-basis review because public safety is a compelling government interest. Even if we follow him in ignoring the "narrow tailoring" prong of the test, this conclusion is true only of the old-fashioned, deferential form of rational-basis review. I'd have expected the Breyer who joined the majority in <i>Romer</i> to at least consider the possibility of a gun ban being motivated by irrational animus against guns and their owners.
6.27.2008 10:46am
David M. Nieporent (www):
Shorter AF: Whether the constitution actually protects a right depends on whether we approve of it.

Or, to quote Judge Kozinski's dissent in Silveira:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev'd sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.
6.27.2008 10:49am
ejo:
a liberal elitist might be a person who, warm in the cocoon of being protected by bodyguards who are armed 24 hours a day (Mayor Daley), pontificates how everyone else should wait for the police.
6.27.2008 10:49am
OrinKerr:
Like LM, I think the "liberal elites" construction is jarring, and here, incorrect. The liberal elites I know seem to hold both private schools and money in high regard, so they would be for real money-allocating school choice.

That's an interesting idea as to what people should think in theory, but it's not consistent with my experience. The difficulty may be that school vouchers are usually on the order of $3,000 or so. That's a lot of money if you're poor and just looking for an escape from the dysfunctional local public school, but it doesn't go very far if you're on the Upper West Side and you want to send Sally to Dalton.
6.27.2008 10:58am
Tano (mail):
A very strange argument.

In the gun case, the government is attempting to fulfill one of its core responsibilities - to maintain a peaceful social climate, to maintain order in the face of a lot of gun violence. The potential social benefit is enough to justify the restriction of gun rights.

In the voucher case, the government is trying to march headlong into a constitutionally impermissable area - giving the government power to tax the general citizenry and allocate that money to religious institutions at its own discretion.

The two cases are not mirror opposites. It is not enough to simply point to the "risk calculations" employed in each, the question is - the risk of what? In the gun case, to strike down the law is to take away from the govt what it considers a strong tool necessary to fulfill its core functions. Such an act by the Court most certainly demands a high level of proof. In the voucher case, the govt is merely attempting a social experiment and treading on questionable constitutional grounds. In such a case the burden should be on the supporters of the law to demonstrate its larger importance.
6.27.2008 11:04am
AF:
David: I actually agree with the majority on Heller. I find Stevens and Breyer's dissents unconvincing.

What I don't get is what any of this has to do with school vouchers or the Establishment Clause.
6.27.2008 11:09am
runape (mail):
Ah, yes ... conservative law professor allows political preferences to cloud commentary. I would like to think we could agree that there are many people who hold liberal views who are not "elite." I doubt, for example, that the many poor people who believe in the right to choose, or in the merits of affirmative action, could stand next to you and, with a straight face, call themselves "elite." You, like all the professors who comment here, liberal and conservative, are elitists in the only meaningful sense of the word. Please stop the hackery.
6.27.2008 11:15am
dearieme:
Judge caught out in flagrant crookedness - no-one surprised.
6.27.2008 11:18am
Dennis Nicholls (mail):
What's most shocking is this paragraph from Breyer's dissent in DC v. Heller.


"The reason there is no clearly superior, less restrictive alternative to the District's handgun ban is that the ban's very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns."


Breyer's dissent, pp 32.

If there's any reason LESS appropriate for violating a Constitutional right than THE CONVENIENCE OF THE POLICE I'd like to hear it.

For by this logic, we should let the cops beat a confession out of an "obviously guilty" criminal, the 5th Amd. be damned. Similarly, the cops should just round up all the young black men near the scene of the crime, the 4th Amd. be damned.
6.27.2008 11:29am
D.A.:
Dennis,
We already let plenty of things slide under the 4th Amendment "for the convenience of the police." I'm afraid that horse left the barn long ago.
6.27.2008 11:34am
David M. Nieporent (www):
What I don't get is what any of this has to do with school vouchers or the Establishment Clause.
It doesn't have anything to do with vouchers or the establishment clause. It has to do with the reasoning behind each opinion -- in one case, Breyer granting virtually unlimited deference to elected officials unless the court can prove beyond any doubt that they're wrong in their cost/benefit analysis, while in the other case, Breyer not granting any deference to elected officials unless those officials can prove beyond any doubt that they're right in their cost/benefit analysis.
6.27.2008 11:39am
willis (mail):
"Could you please explain which liberals are the elites, and how they differ from conservative elites."

Liberal elites are the progressives who consider themselves to hold a monopoly on intellect. Conservative elites are those who are more conservative than average conservatives.
6.27.2008 11:45am
Keith in Dallas (mail):
Tano,

you said:


In the gun case, the government is attempting to fulfill one of its core responsibilities - to maintain a peaceful social climate, to maintain order in the face of a lot of gun violence. The potential social benefit is enough to justify the restriction of gun rights.


You seem to assume that there is no individual right upon which the restriction may impermissibly tread. If your assumption were correct, then your conclusion would be too. But a majority of the Supreme Court has held squarely held that your assumption is incorrect.
6.27.2008 11:54am
OrinKerr:
Runape writes:
Ah, yes ... conservative law professor allows political preferences to cloud commentary. I would like to think we could agree that there are many people who hold liberal views who are not "elite." I doubt, for example, that the many poor people who believe in the right to choose, or in the merits of affirmative action, could stand next to you and, with a straight face, call themselves "elite." You, like all the professors who comment here, liberal and conservative, are elitists in the only meaningful sense of the word. Please stop the hackery.
I'm puzzled by this. Obviously, most people who hold liberal views are not elite. Indeed, folks who could be validly described as part of a "liberal elite" are probably on the order of about 1% of those who could be validly described as liberal. Of course, they tend to predominate in elite legal circles, the sort of Harvard Law School crowd that is Justice Breyer's home turf. (Nor do I think Justice Breyer would contest this -- it wasn't meant to be a controversial statement, although I realize the phrase is itself evocative, intentionally, of the culture wars.)

Given that, I'm not sure what I said that is supposed to be "hackery," or how my judgment is supposed to have been clouded.
6.27.2008 12:03pm
willis (mail):
"In the gun case, the government is attempting to fulfill one of its core responsibilities - to maintain a peaceful social climate, to maintain order in the face of a lot of gun violence. The potential social benefit is enough to justify the restriction of gun rights."

If true then there should be no difficulty in obtaining the votes to amend the Constitution, right? Surely you aren't suggesting that the Constitution can be amended de facto by government at any level without the consent of the governed.
6.27.2008 12:07pm
Bruce:
The discrepancy in the Breyer opinions just seems to be a version of the time-honored practice of always insisting that the other side has the burden of proof. Just about everyone does that on close constitutional or statutory interpretation questions -- which, by the way, is why I find that useless and annoying as a debating tactic.
6.27.2008 12:13pm
runape (mail):
It's not particularly puzzling. You suppose that Breyer is writing to reflect his own personal (and concededly elite) views. You neglect the possibility - indeed, probability - that Breyer is writing to reflect the preferences of liberal non-elites. Indeed, you suppose that "poor people" share your preference for vouchers and guns. I think it quite possible that Breyer is aware that many poor people do not share your preference for vouchers and guns; and he is attempting to protect their values and interests, rather than indulging his own bourgeois preferences. (I rather doubt Justice Breyer himself is afraid of guns to the same extent that poor advocates of gun control are.) I, like you, am confident Breyer would agree he is elite. Yet you suppose that, notwithstanding his recognition that he is an elitist, he is incapable of setting aside his elitist preferences and viewing problems from the perspective of the non-elite.

As to hackery, you are engaging in it to the extent you purport to be writing objectively while in fact choosing as your target a justice who (rather conveniently) is a favorite target of conservatives. I am surprised you would contest the point, given your assertion that many or all of the justices behave similarly and could have been the subject of equally pointed criticism. The "to be sure" fig leaf in the last paragraph, and the feigned confusion over this criticism, surely make the point?
6.27.2008 12:58pm
AF:

It has to do with the reasoning behind each opinion -- in one case, Breyer granting virtually unlimited deference to elected officials unless the court can prove beyond any doubt that they're wrong in their cost/benefit analysis, while in the other case, Breyer not granting any deference to elected officials unless those officials can prove beyond any doubt that they're right in their cost/benefit analysis.


A large portion of constitutional law is about the degree of deference to be given to elected officials. There is no presumption that the deference is the same in all contexts or for all constitutional rights. (Would a gun license be subject to the same level of scrutiny as a blog license?) The fact that a justice applies different levels of scrutiny to Establishment Clause cases than to Second Amendment cases is completely routine and doesn't present a "contrast" of much interest to sophisticated constitutional analysis.
6.27.2008 1:31pm
EvilDave (mail):
Political hack
6.27.2008 1:34pm
Trumpit (mail):
Perhaps Breyer would condone school voucher's if they could not be used for religious schools, like the Madrasas in Pakistan. You weaken your argument because of your obvious ad hominems against "fly-over liberal elites." A Supreme Ct. justice is an elite by definition. Are you jealous?
6.27.2008 1:42pm
OrinKerr:
The fact that a justice applies different levels of scrutiny to Establishment Clause cases than to Second Amendment cases is completely routine and doesn't present a "contrast" of much interest to sophisticated constitutional analysis.

AF, then you must be much more sophisticated at constitutional analysis than I am. Can you tell us how you became so sophisticated, so we can try to become as sophisticated as you are? ;-)
6.27.2008 2:14pm
OrinKerr:
runape,

You misunderstand the post, I'm afraid. I use the word "elites" once in passing, but the argument does not rely on it. The subject of the post is "Justice Breyer and the culture wars," not "Justice Breyer and elite opinion."

As for hackery, I have a half-written post on Monday's decision in Rothgery ripping on Justice Thomas for his faux originalism in his dissent in that case. When I post that, I trust you will write in accusing me of being a liberal hack who is conveniently going after a favorite target of conservatives. Right? Or maybe, just maybe, your claim of hackery is utterly vacuous.
6.27.2008 2:20pm
sjalterego (mail):
I largely agree with you Mr. Kerr but can't we coin some phrase other than "liberal elite". That is just such a stupid phrase. How about cultural liberal or something. It is the "liberal" political philosophy that gives rise to their mode of thinking. Not their "elite" status. How do we even tell if someone is a "liberal elite" as opposed to a "liberal commoner" or worse a "liberal proletarian".

It is obnoxious when liberals refer to "conservative rednecks". Why not just refer to "conservatives"? The redneck is just a gratuitous put down. Just as in "liberal elite" the only meaningful term is the word liberal and the word "elite" is intended to be some sort of commentary and put down.
6.27.2008 2:27pm
sjalterego (mail):
I largely agree with you Mr. Kerr but can't we coin some phrase other than "liberal elite". That is just such a stupid phrase. How about cultural liberal or something. It is the "liberal" political philosophy that gives rise to their mode of thinking. Not their "elite" status. How do we even tell if someone is a "liberal elite" as opposed to a "liberal commoner" or worse a "liberal proletarian".

It is obnoxious when liberals refer to "conservative rednecks". Why not just refer to "conservatives"? The redneck is just a gratuitous put down. Just as in "liberal elite" the only meaningful term is the word liberal and the word "elite" is intended to be some sort of commentary and put down.
6.27.2008 2:27pm
Phil Ament (mail):
""I don't use the phrase "liberal elite" myself, preferring "Arts &Humanities Clan.""

Very nice concept. As a member of the Sci &Tech Clan and like many physicians, scientists and engineers I sustain a
great interest in the Arts and Letters, I find it strange that our participation is overlooked. Perhaps we are discounted because we are children of reason, not the hyerbolic, self-absorbed, vitriol-spewing campus monkeys that staff many "humanities" departments.

We need to put the f back in (academic) liberal "_arts".
6.27.2008 2:52pm
Phil Ament (mail):
""I don't use the phrase "liberal elite" myself, preferring "Arts &Humanities Clan.""

Very nice concept. As a member of the Sci &Tech Clan and like many physicians, scientists and engineers I sustain a
great interest in the Arts and Letters, I find it strange that our participation is overlooked. Perhaps we are discounted because we are children of reason, not the hyperbolic, self-absorbed, vitriol-spewing campus monkeys that staff many "humanities" departments.

We need to put the f back in (academic) liberal "_arts".
6.27.2008 2:55pm
AF:

AF, then you must be much more sophisticated at constitutional analysis than I am. Can you tell us how you became so sophisticated, so we can try to become as sophisticated as you are? ;-)


Glad to oblige. To catch a justice in a contradiction by comparing his approach to two different constitutional questions, you first need to establish that the approach should have been the same in the two situations. Otherwise, the fact that the justice's approach was different is uninformative.

According to Orin, an Establishment Clause challenge to school vouchers and a Second Amendment challenge to a handgun ban are similar because they are both "'culture wars' case[s]." Whether a case is a "culture wars case" has nothing to do with constitutional text, structure, history, or precedent. Therefore, there is no reason to think that a justice should apply the same level of constitutional scrutiny to all "culture wars cases."

Because there is no reason to think that Breyer's (or Scalia's) approaches to the respective laws challenged in Heller and Zelman ought to have been the same, whether they were in fact the same is not a particularly "interesting question."
6.27.2008 2:55pm
OrinKerr:
AF, but wouldn't Justice Breyer be the first to say that he is not basing his constitutional views on "text, structure, history or precedent," even if you think, as I do, that as a normative matter he should be?

As I understand his own writings and many speeches on the topic, Justice Breyer's goal in constitutional interpretation is to try to design a constitutional system that furthers "Active Liberty". In his view, this requires him to assess what it takes to create a well-functioning democracy. The question Breyer asks is, what works? That is, what are good sensible ground rules for making sensible and reasonable public policy?

My sense is that Justice Breyer would reconcile his votes in Zelman and Heller on the ground that school vouchers are threatening to a well-functioning democracy but gun control is not. There is absolutely no inconistency from his perspective: in his experience, school vouchers cause social unrest in a sensitive area and gun control does not. Thus, in his view his side of the culture wars is indeed relevant, in that they reflect his understanding of what is threatening to a well-functioning democracy and therefore inform his sense of what active liberty demands.

Do you disagree that this is how Justice Breyer approaches such questions?
6.27.2008 4:12pm
runape (mail):
"You misunderstand the post, I'm afraid."

I don't. As you rather freely admit, you purposefully used the phrase "liberal elite" (which you quite clearly recognize is red meat to many who frequent your blog), when
"liberals" would have worked quite nicely. (Perhaps we should also call Breyer an "activist judge" while we're at it?) You also rhetorically positioned yourself in league with "poor people" and citizens of "flyover states" who "like" guns (neglecting to mention the poor who don't like guns and the poor who don't have a particularly strong opinion, whom I rather suspect outnumber the poor who "like" guns). Not a very objective beginning, I'm afraid.

You also misunderstand Breyer by continuing to maintain that it is "his view" that counts. Breyer's point turns in large measure on the fact that there are many who (in their view) do not like guns. That is why, for example, he would defer to the judgment of legislatures who have enacted gun bans. It is odd in the extreme to label deference to the wishes of the democratically elected legislature "elitist."

Nor is it elitist to defer to legislative judgments in some instances, and not in others - inconsistent, to be sure, but not consistently elitist. A truly "elitist" judge would be one who was willing to strike down legislation at all costs - and, while the conservative justices are more likely to strike down legislation than the liberal justices, I have yet to see so perverse a judge that he believes his opinion is always wiser than the legislature whose work he reviews. Perhaps Posner comes the closest - but Breyer is no Posner.

I look forward to your post on Thomas (you might take issue with Scalia's inconsistent originalism as well), but do note you took first aim at a more familiar target. The point is not that you shouldn't; the point is that the pretense of objectivity is as distasteful among professors as it is among judges, liberal and conservative alike.
6.27.2008 5:08pm
AF:
I do not think that Breyer approaches constitutional questions by asking what is good public policy to the exclusion of text, structure, history, and precedent. At any rate, it isn't how he approached his Heller and Zelman dissents.

In his Heller dissent, Breyer first looks to history and precedent (not public policy considerations) to conclude that if the Second Amendment creates a right to individual self-defense, it would be a qualified right subject to "an interest-balancing inquiry." (10)

In his Zelman dissent, Breyer first establishes (also through history and precedent) that the Establishment Clause requires "fairly clear lines of separation between church and state--at least where the heartland of religious belief, such as primary religious education, is at issue."

In both cases, before addressing the constitutionality of the challenged laws, Breyer presents an interpretation of text, history, and precedent to derive a legal standard. And the standards are not the same. Nowhere does Breyer suggest that the Establishment Clause involves a balancing of interests.

So on their face, Breyer's two dissents simply apply two different legal standards. The fact that his application of those standards is different is not surprising.

Now, you could argue that Breyer's legal analysis is window dressing for his "true," public-policy-driven motivations, but you'd actually have to make the argument (and also explain why one shouldn't equally look for the "true" motivations of, say, Justice Scalia beneath the surface of his opinions). Perhaps your argument is that Breyer admits as much in Active Liberty; but if that's the argument, there's no point in talking about his opinions, which don't on their face support the point.
6.27.2008 5:12pm
OrinKerr:
Runape,

You're right I used language that suggested distance between myself and the view I was discussing. But that doesn't make the post about that; the post is actually about a different topic.

AF,

I'm afraid I don't understand your argument: I thought we were discussing how Justice Breyer decides cases, and what factors go into the approach he adopts. At least that's what I thought we were discussing.
6.27.2008 5:54pm
Originalism Is Useful (mail):
My sense is that Justice Breyer would reconcile his votes in Zelman and Heller on the ground that school vouchers are threatening to a well-functioning democracy but gun control is not. There is absolutely no inconistency from his perspective: in his experience, school vouchers cause social unrest in a sensitive area and gun control does not. Thus, in his view his side of the culture wars is indeed relevant, in that they reflect his understanding of what is threatening to a well-functioning democracy and therefore inform his sense of what active liberty demands.

This is correct, in a way. If Breyer were faithful to principles of active liberty, then either he would not have deferred to the D.C. Council and instead mandated a referendum on the gun ban or he would have acknowledged that gun control restricts the liberties of law-abiding citizens, who may not freely engage in the deliberative democratic process afraid that any crushing of dissent may be backed by the credible threat of government force.

Perhaps Breyer's judicial behavior is not inconsistent with what is put forth in Active Liberty because Active Liberty was not intended to have been taken seriously.
6.27.2008 8:15pm
John Rosenberg (mail) (www):
I have been struck by another example of Justice Breyer's
risk assessment — or rather, the constitutional significance he assigns to certain risks — conveniently seeming to follow his policy preferences. In Zelman, as Prof. Kerr notes, Breyer would prohibit school vouchers because they posed merely a "threat" or a "potential of divisiveness." He dissented separately, he wrote, "to emphasize the risk that publicly financed voucher programs pose in terms of religiously based social conflict." [Emphasis added]

By contrast, Breyer has rarely met a racial preference that, in his view, fails to pass Constitutional muster. As I've argued here,
Perhaps Justice Breyer and his like-minded brethren, on and off the Court, can be called on to explain why they fear "the risk" of "potential" divisiveness in what they see as religious preferences but not the clear and present divisiveness of racial and ethnic preferences. Or, in the alternative, they could explain why a principle that they believe justifies racial preferences does not also justify religious preference, for certainly they recognize that religion provides as good or better basis for "diversity" as race.
6.28.2008 1:28am
omarbradley:
good point. I think there's more of a contradiction between his opinions in the Zelman case and in the Parents United and Grutter cases than in Heller.

Judge McConnell of the 10th circuit had a strong critique of active liberty that featured Breyer's dissent in Zelman
6.28.2008 2:46am
LarryA (mail) (www):
What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate.
This was a good argument twenty years ago when high-crime jurisdictions were passing reasonable gun laws needed to lower the violent crime rate. Now that the laws have been in place for a couple of decades, and the crime rates are still high, it's time to look at whether they are still "reasonable" if they obviously don't work.
Getting back to Breyer, another change I noticed was his assumption that gun bans would stand up to rational-basis review because public safety is a compelling government interest.
Actually, it's this "assumption" that is the root of much evil on both liberal and conservative sides. Public safety is indeed a compelling government interest, but a "rational basis review" should at least nod to the idea that gun bans (and other laws) should have to show they effectively serve that interest. Otherwise government can do pretty much anything it wants.
In the gun case, to strike down the law is to take away from the govt what it considers a strong tool necessary to fulfill its core functions.
Except that outside the Beltway almost all U.S. state and local governments reject the gun control argument, and also do a much better job of protecting their citizens. The D.C. violent crime rate is more than double that of any other U.S. city its size.
Just as in "liberal elite" the only meaningful term is the word liberal and the word "elite" is intended to be some sort of commentary and put down.
"Liberal" = One who believes that persons should have the freedom to make their own lifestyle decisions. "Liberal elite" = One who believes that numerous and restrictive laws are required to force persons to make the correct elite-approved lifestyle choices. In this case by banning guns.
A liberal elite is a person who has risen to a station in life that allows him or her to know better than you what is good for you.
In that, liberal elites are indistinguishable from conservative elites.
6.28.2008 9:00pm
KM2 (mail):
To catch a justice in a contradiction by comparing his approach to two different constitutional questions, you first need to establish that the approach should have been the same in the two situations. Otherwise, the fact that the justice's approach was different is uninformative.


This seems like an extremely strange and, at least to me, troubling approach to a constitutional analysis. Shouldn't the person who advocates applying different standards to the protection of different rights be obliged to justify those distinctions, rather than placing the burden on those who would apply the same standard to all rights? Might not the simple fact that a particular right is explicitly guaranteed protection by the Constitution serve as adequate evidence that it be accorded protection at least as strict as that afforded to a right deemed to be located in the unspecified rights covered by the umbrella provision of the 9th?
6.29.2008 11:30am
AF:
I thought we were discussing whether Breyer's Heller and Zelman dissents were inconsistent. My argument is they are not inconsistent: Though Breyer undeniably applies different degrees of scrutiny to the two laws, that is because his reading of the text, structure, and history of the two clauses leads him to believe that different degrees of scrutiny apply. He never claims to be applying the same standard in the two cases.

In response to this narrow point, you appeared to suggest that Breyer's arguments in Active Liberty make text, history, and precedent irrelevant to evaluating his opinions, because in reality he decides cases based on public policy considerations. But whatever Breyer wrote in his book, his opinions speak for themselves, and on their face, they are not inconsistent.
6.30.2008 11:59am