Justices Breyer and Bork - Separated at Birth?

Back when I was in my first year of law school one of the professors, regarded by most students as a political partisan, told the class not to worry - when grading the exam, he promised, he would not take politics into consideration. He later refused to give the book award to a student who, although from the opposite end of the political spectrum, wrote what to a casual reader might have appeared to be a parody of the professor's ideology - by virtue of blind grading he earned the highest grade in the class. To the odds that they disagreed with the professor, students who adhered to their own political viewpoints fared considerably less well. I discussed the class with an experienced professor who explained that I should not view the professor as having broken his word. He argued that, in the mind of the professor, he was not grading students down for their ideology. More likely, he was issuing lower grades to the students who gave the wrong answer, which just happened to be any answer that did not mesh with his ideology. From a student's perspective that may seem like a distinction without a difference - either way you have to comport your views to those of the professor to get a top grade.

An editorial by Professor David Bernstein of George Mason Law School and one of his former students, which I think can be reasonably described as an attempt to vilify Justice Stephen Breyer, brought that experience to mind. If Professor Bernstein believes his editorial to be an example of good reasoning, it is difficult for me to imagine how he would grade a well-reasoned exam addressing a similar issue. No, I'll correct that: I imagine that the experience would be analogous to that of students in the aforementioned law school class.

The editorial asserts that,

In the nine cases that split 5-4 along ideological lines in the court’s past term, Breyer wrote four dissenting opinions — only one fewer than Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan combined.

This is a troubling development for those, liberal or conservative, who value the Constitution’s protections of individual liberty.

Usually, law professors are a bit more nuanced in describing how the court makes its decisions. The justices, we are told, may apply different ideological approaches to constitutional interpretation, but its simplistic to reduce cases to mere ideology with the "liberals" on one side and "conservatives" on the other. Yet here we have a sample size of nine cases that split 5-4, and for which Bernstein is suggesting that the deciding factor was not law, but was a clash of liberal versus conservative ideology.

Let's leave aside for the moment whether Bernstein's selection of the nine cases was objective and assume that, despite the tiny sample size, he's not making a hasty generalization. What is it that Bernstein is suggesting that we should find disturbing? Is he suggesting that we should be disturbed that a justice dissented in four of those nine opinions, the proposed superior alternative apparently being to jump into one ideological camp or the other. Or is he suggesting that we should be disturbed by the other eight justices who, unlike Breyer who is the most likely to decline to jump into one ideological camp or the other, join opinions based on ideology as opposed to the opinion best supported by the law and facts? We can infer from the tenor of the editorial that it's the former, but there is no basis to be disturbed based on those facts alone. When Justice Scalia was best known for writing dissenting opinions was he a disturbing ideologue, whose views have since tempered, or could it be that as justices retire and are replaced it's possible to hold the same opinions while nonetheless ending up joining or dissenting in a markedly different percentage of the cases you hear?

Bernstein continues,

Contrary to American tradition going back to the Declaration of Independence, Breyer believes not in liberty against government overreaching, but in what he calls “Active Liberty” — the right of democratic majorities, guided by elite experts, to govern as they see fit.

Wouldn't it be more accurate to say that Breyer is proposing an ideology that stands in contrast to Scalia's text-based originalism, with the idea being that you need to look beyond the words and their original meaning, and examine the intended purpose of constitutional language when interpreting that language? That when reviewing legislation that fits within the broad parameters of Constitutional language, democracy has a leading role: "That space is for people to decide for themselves what they want. And [the Supreme Court is] just policing the far boundaries of that space"? Whether or not you agree with his philosophy, has Breyer ever described active liberty in a manner for which Bernstein's description is a fair summary, or even a fair parody?

Having announced in the headline to the editorial¹ that "Breyer shows progressive streak", Bernstein makes an interesting claim, that Breyer is like Robert Bork:

Like Breyer, Bork rejected modern cases protecting individual rights, instead favoring majority rule — and as a result was denied a Supreme Court seat.

That is, based upon his dissenting in four close cases, and upon Bernstein's interpretation of his philosophy of "Active Liberty", Breyer the "progressive" is difficult to distinguish from a nominee generally considered to be at the far right of the political spectrum. I guess we're not striving for internal consistency?

Bernstein argues based on Breyer's dissent in Brown v. Entertainment Merchants Association that "While Breyer claims to believe in self-government, his opinions reveal contempt for its most basic aspect: the right of individuals to run their own lives free from excessive government interference." To this end he argues that Breyer does not adhere to post-1930 cases giving an expansive interpretation of the First Amendment, and instead believes that "most laws that infringe on freedom of expression should be upheld if the government has a rational reason for interfering with free speech, an extremely forgiving and deferential standard." Given that Bernstein's principal hobby is "Rehabilitating Lochner", that is, returning to the philosophy of a 1905 case that held it impermissible for a state to regulate employees' working hours, it seems a bit odd that Bernstein is attacking Breyer for taking an approach to the First Amendment that the Lochner majority might find to be absurd and unsupportable by the Constitution. Also, although for different reasons haling back to the "founding generation’sunderstanding of parent-child relations", Clarence Thomas also dissented. That's not a rejection of 20th century First Amendment jurisprudence? Or, as with Bork, are Thomas and Breyer two peas in a pod?

Also, if we are to be bent out of shape because Breyer dissented in four of nine 5:4 decisions, why is Bernstein's only example from that same term a 7:2 decision? Should we infer that he found no support for his thesis in the opinions that supposedly best support his thesis? Also, Brown v. EMA was at its heart about protecting minors. Should it not be mentioned that the courts apply different standards in cases involving minors than in cases that involve only adults, Morse v Frederick (the "Bong Hits for Jesus" case) being a case in point? For that matter, how do Breyer's votes in cases like Gonzales v. Carhart and Lawrence v Texas support the idea that he defers to the popular will or advances a 19th century ethos at the expense of individual liberty?

Bernstein then adds to the mix another Justice who is just like Breyer (and thus, presumably, just like Bork and possibly Clarence Thomas): Oliver Wendell Holmes, Jr.

In this and other contexts, Breyer's jurisprudence harkens not to great liberal justices of the mid-to-late 20th century, such as Earl Warren and William Brennan — who whatever their flaws, had a deep and abiding belief that civil liberties must be protected from government encroachment — but to an earlier generation of judges associated with the progressive movement, such as Justice Oliver Wendell Holmes Jr.

It appears that Bernstein is following the common deception of taking two completely unrelated political movements that operate under the label, "progressive" and implying to his readers that they are the same. The first movement is the long-extinct Progressive Movement of the late 1800's to early 1900's, and the second being a population of modern liberals who, having seen that political label successfully tarred by Ronald Reagan, prefer the term "progressive" as a less politically loaded alternative. This is a common tactic employed by those who attempt to tar modern liberals with the host of discredited philosophies of the completely unrelated historical Progressive Movement. It is technically true to say that there are Justices associated with the historic Progressive Movement, but it is abject dishonesty to imply that those Justices were progressives in the modern conception of the term. Bernstein's own assertions belie his attempt to associate Justice Breyer with that historic movement:

Like Breyer, many early 20th century progressive jurists had a soft spot for protecting political speech, but they otherwise rarely met a statute they thought exceeded constitutional boundaries. These progressives advocated deference to the government for the same reasons Breyer articulates: reverence for experts, belief in majority rule, and the need to protect society from itself. As a result, progressive judges approved segregation laws, laws banning private schools, laws limiting women’s ability to participate equally in the workplace, and more.

So the question follows: Where in Breyer's seventeen years on the Supreme Court can I find support for the notion that he would vote to uphold segregation, ban private schools, exclude women from the workplace, or... support whatever it is that Bernstein summarizes as "and more"? Breyer is just like the historic progressives, except that he would explicitly reject their legal reasoning and conclusions on every issue Bernstein mentions? Also, if support for segregation and diminishment of protections against workplace discrimination are hallmarks of "progressivism", by Bernstein's measure which of the Courts conservative justices aren't markedly more "progressive" than Breyer? What of history's many conservative justices who voted for the parade of horribles mentioned by Bernstein, along with forced sterilization of people deemed mentally defective - short of an unwillingness to let the state define maximum workweek, is historic conservatism a movement that is also too deferential to state power? Perhaps he intends to reference process, not product, but it is difficult to see how we can characterize Breyer and Bork as unduly deferential to legislatures and democracy given that they so often come to opposite conclusions.

When New Deal liberals took over the Supreme Court in the late 1930s, however, they rejected the earlier progressive vision and proceeded to provide strong protection for the rights listed in the Bill of Rights.

And if it needs to be said, the philosophy of those liberal justices is at the foundation of modern liberalism, even when it's rebranded as progressivism.

Breyer’s apparent ascendancy as doyen of the court’s liberal wing threatens to roll back decades of these pro-liberty precedents, and to destroy the consensus on the court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities

We're again back to the prior logical error, that something has changed about Breyer that has caused him to "ascend" to some sort of pivotal role. In fact we're seeing the same phenomenon we've been witnessing for many years - as the composition of the court changes and its ideological balance shifts, a justice who used to be clearly in one political camp or the other is suddenly characterized as a "swing vote". He still has only one vote, his voting record remains consistent, but suddenly he's treated as if he is the sole decider on the court, the most important vote. Really, he still has one vote.²

If Bernstein is correct that Breyer hopes for a return to the First Amendment jurisprudence of the eighteenth and nineteenth century³ we have nothing to worry about, as the iconoclastic yearning for a return to yesteryear by the two dissenting justices, justices who don't even agree with each other, falls far short of creating a majority. Moreover, if Bernstein is professing to be concerned only with the "majoritarianism" of judges like Bork and Breyer, even if you accept his point there is obviously nothing inherent to that judicial philosophy that "threatens to roll back decades of... pro-liberty precedents" as it is clear that Breyer has largely voted in favor of their continuation. That is, even if we assume that the historical Progressive Movement, Bork and Breyer all share the same philosophy of law and constitutional interpretation, there is no consistency in their application of that philosophy. If Bernstein is right, there is an echo of Holmes. Justice Holmes was known as "The Great Dissenter". If Bernstein's prognostication proves correct, the most likely outcome is that Breyer will earn the appellation, "The Not-So-Great Dissenter".

Meanwhile, it appears that judges on the left of the court can't win. If they reject legislation they're activist. But if they instead presume constitutionality and defer to Congress, it seems that they're heirs to the historic Progressive Movement.

Update:  Bernstein has posted a follow-up,

The basic point of the op-ed is that,,, 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.

That, like Bernstein's comments to his original post, contradicts the position taken in his editorial that "Breyer’s apparent ascendancy as doyen of the court’s liberal wing threatens to roll back decades of these pro-liberty precedents, and to destroy the consensus on the court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities." In the most technical sense that's not inconsistent, but it leaves one wondering exactly what liberties Bernstein has in mind that might be rolled back. In the specific context of Brown v. EMA, one might ask Bernstein, "What did Justice Brennan think about video games. Did he enjoy them?" As I recall, the conception of free speech of the early 20th century, while trending toward increased protection of speech rights, initially took for granted that the state could censor and ban the import of books, censor movies, put serious restrictions on commercial speech, impose the Fairness Doctrine, and broadly restrict speech in the interest of protecting women and children - positions considerably more restrictive than that proposed in Breyer's dissent. The more convincing argument was made by Bernstein's co-author in a comment, that "Breyer’s conception of constitutional law is grounded in the modern-jurisprudence that emerged during the Warren Court when he went to law school, and clerked" - but that claim was cut from the editorial for the obvious reason that it contradicts the thesis that Brennan's conception of constitutional law is grounded in the historic Progressive Era.

Having walked back from his claim that Breyer will roll back civil rights, Bernstein continues,

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.

Bernstein suggested in comments to his original post that there have been many conservative justices in the 20th Century who have given similar deference to legislative outcomes, defending his selective criticism of Breyer, "Do you expect me to write a 2011 op-ed about William Rehnquist? Robert Bork? Maybe John Marshall Harlan II?" No, but not because people don't remember Rehnquist. I don't expect it because if you were to write an editorial accusing William Rehnquist of being an heir to the Progressive Movement, and lament that he would defer to Congress in contexts in which Justice Brennan would have held a law to be an unconstitutional infringement on our rights, you would create immediate cognitive dissonance on the part of the reader. "But Rehnquist was a judicial conservative who upheld the constitution rather than 'legislating form the bench' like the 'liberal' justices."

Bernstein initially suggested that Breyer might have upheld the detention of people of Japanese ancestry during WWII, "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". He then has to correct himself, grudgingly admitting, "Breyer does offhandedly state on page 191 that Murphy, dissenting, was right in the Korematsu case itself, even though his opinion was unworkable" and asserting "that Korematsu would not, under Breyer’s view, have been entitled to a speedy, individualized hearing upon detention, much less immediate release". He complains, "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", apparently failing to consider that his own thesis may be incorrect or overstated and that Breyer might feel little to no need in a case such as Korematsu to defer to the executive.

Bernstein explains himself,

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.

The funny thing is, he seems to have next to nothing to say about, by his own count, the far greater number of conservative judges and justices who have little sense of the importance of individual rights and the dangers of excessive government authority. It's horrible that Breyer will largely vote to uphold certain civil rights despite his ostensible tendency to defer to the legislature, but it's no biggie that conservative courts have spent decades actively scaling back our rights due to an identical tendency? Is the distinction truly that Justice Rehnquist is yesterdays' news, or could it be that Bernstein largely agrees with conservative judicial activism and thus his silence is driven by ideology.

At the end of all of this it appears that you could summarize Bernstein's editorial in one sentence, "Justice Breyer is more inclined than any other liberal Supreme Court justice to defer to the legislature at the expense of our civil rights, placing him within a larger camp of conservative judges who do the same thing, the key difference being that Breyer is a liberal and thus the theoretical implications of his deference are of much greater concern than the actual roll-back of many civil liberties at the hands of those conservatives."
-------------------
1. The headline to an editorial is often selected by the publication, not the author; that headline implies that the editorial page editor conflates modern liberalism (under the name of progressivism) with the historic Progressive Movement, and interpreted Bernstein's editorial as supporting that belief. Bernstein argues something else in the comments to his blog post on the subject, but the headline does appear consistent with the actual text of the editorial.

2. Bernstein adds in a comment,

[S]ince the 1950s, it’s been them, far more than the liberals, who have been the heirs to the Progressives, especially on 14th Amendment issues. Which is why it’s important to nip the Breyer thing in the bud.

So for sixty years Bernstein believes that a terrible judicial philosophy from the Progressive Movement has been championed by conservative justices, so it's important to "nip in the bud" the first instance of a left-leaning judge who ostensibly shares that approach? With "nipping in the bud" translating into "raising the subject after he's served on the court for seventeen years"?

3. Bernstein's co-author comments,

In a portion of the Op-Ed we trimmed, we wrote about how Breyer’s conception of constitutional law is grounded in the modern-jurisprudence that emerged during the Warren Court when he went to law school, and clerked.

I would not be surprised if that argument is convincing, but I thought the argument was that Breyer's conception of constitutional law reflects a pre-1930's sense of individual righs and a conception of constitutional law associated with the historic Progressive Era.