One Cheer for Stephen Breyer

When President Bill Clinton tapped Stephen Breyer to fill a vacancy on the US Supreme Court in 1994, he told the country Breyer would “strike the right balance between the need for discipline and order, being firm on law enforcement issues but really sticking in there for the Bill of Rights.”

Breyer’s impending retirement at the close of the Supreme Court’s current term provides an opportunity to weigh Clinton’s words against Breyer’s record. Alas, the former president proved only half right. Breyer was frequently “firm” in his deference to the government. But that same deference often led Breyer to do the opposite of “sticking in there for the Bill of Rights,” especially in major Fourth Amendment cases.

Take the 2014 case Navarette v. California. At issue was an anonymous and uncorroborated 911 phone call about an allegedly dangerous driver, which led the police to make a traffic stop that led to a drug bust. 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.” Law enforcement won big, and Breyer signed on.

The deficiencies of that judgment were delineated in a forceful dissent by Justice Antonin Scalia. “The Court’s opinion serves up a freedom-destroying cocktail,” wrote Scalia, who was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. “All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.” That disturbing scenario, Scalia wrote, “is not my concept, and I am sure it would not be the Framers’, of a people secure from unreasonable searches and seizures.” 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. One year earlier, in Maryland v. KingBreyer joined Justice Anthony Kennedy’s controversial majority opinion allowing police to collect DNA swabs from arrestees without a warrant.

“Make no mistake about it,” Scalia protested in his dissent, which, like his dissent in Navarette, was joined by Ginsburg, Sotomayor, and Kagan. “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” Breyer seemed untroubled by that disturbing scenario too.

Breyer had his own ideas about how the Supreme Court should go about its business, and he spelled them out in his 2010 book Making Our Democracy Work. The Supreme Court must “take account of the role of other governmental institutions and the relationships among them,” Breyer wrote, and strive to “maintain a workable relationship” between the various branches.

That may sound innocuous, but consider the implications. In 1944 the Supreme Court heard Korematsu v. United States, which dealt with President Franklin Roosevelt’s wartime internment of some 70,000 Japanese Americans. Surely the Court should have scrapped the “workable relationship” at that point and simply invalidated FDR’s dangerous and unconstitutional actions?

Not necessarily, Breyer wrote. Perhaps [the Court] could have developed a sliding scale in respect to the length of detention” or “insisted the government increase the screening efforts the longer an individual is held in detention” or found some other way to maintain a “workable relationship with the president.”

At least Breyer did not always practice the judicial deference that he preached. In 2008, for example, he joined Justice Anthony Kennedy’s opinion in Boumediene v. Bushwhich struck down part of the Military Commissions Act of 2006 while recognizing habeas corpus rights for prisoners held as enemy combatants at the US military base in Guantanamo Bay, Cuba—a decision that was cheered by both liberals and libertarians.

Breyer got that one right. But as he later acknowledged, the ruling ran counter to the philosophy of judicial deference he championed in Making Our Democracy Work. “One cannot characterize Boumediene As a case that followed Congressional directions or implemented Congress’s broader purposes,” he wrote in the book.

This inconsistency is a recurring theme in Breyer’s jurisprudence. He was clearly willing to invalidate democratically enacted laws when the mood struck. He joined the Supreme Court’s landmark opinions in favor of gay rights, for example, which overruled state regulations passed by democratic majorities.

Yet Breyer happily bowed to “expert” local policy making in Kelo v. City of New London, a 2005 decision upholding an eminent domain taking under what the majority opinion called “our longstanding policy of deference to judgments in this field.” Admiring commentators often called Breyer a legal “pragmatist.” It was a description that certainly left him a lot of wiggle room.

Breyer does deserve unloyed credit for one of his final acts while on the bench. In the face of a progressive campaign to get President Joe Biden to “pack the court” and create a Democratic supermajority of justices, Breyer led the charge against the court packers, denouncing them as a bunch of shortsighted ideologues who threatened both judicial independence and bedrock liberal values. And Breyer did so knowing full well that his actions would infuriate a great many folks on his own side of the aisle.

Kudos to Breyer. Too few public figures nowadays are willing to take a principled stand like that.

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