What the Supreme Court Loses With Justice Breyer’s Retirement – TIME

During the quarter-century year career on the Supreme Court, Justice Stephen Breyer constantly cultivated two judicial virtues now increasingly absent from the federal bench. The first is a careful, empirical cast of mind, constantly alive to the lived experience of litigants, institutions, and the world. The second is a humility about the limits of his own knowledge. These led him as a profound respect for other, more democratic bodies such as Congress, federal agencies. and state legislatures. Under their sway, Breyer vindicated Our Democratic Constitution as finely as anyone else to grace the high court bench.

Unlike the approaches favored by other Justices, Breyers brand of well-tempered empiricism forced him to be candid about what informed his judgment. It avoided simplistic fallaciespeddled hard under the originalist labelto the effect that constitutional law at the high court can avoid normative judgments: The text of the Constitution is too majestically general, and too capacious for it to be otherwise. By bringing to light the laws real justifications, and amplifying the space for democratic choice, his work embodied real judicial restraintand a real commitment to the founding American value of lived democratic choice.

Justice Breyers opinions are characterized by detailed consideration of the many factors that legitimately bite on a legal questions, coupled with close attention to factual detail. His dissent in the New York gun case last week, as well as the careful and modulated dissent from the wrecking-ball abortion decision, show as much. His opinions are often accompanied by voluminous appendices, listing in exhaustive detail the facts behind a specific point.

Sometimes, this exacting attention to the world drove Breyer to progressive conclusions. In a 2015 dissenting opinion, for example, he painted a comprehensive empirical portrait of a capricious, oft-lawless, and racially tainted capital justice system. His relentless and powerful catalog of racialized caprice and malice should lay to rest any thought that the American death penalty can avoid being cruel and unusual in violation of the Eighth Amendment, let alone even-handed across the color line.

In a more centrist vein, he penned in 2006 a sweeping rebuttal of the Courts decision to invalidate race-conscious efforts by schools to maintain integration. Chief Justice Robertss majority rested on a phrase of illusory simplicity: The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. In contrast, Breyer demonstrated beyond doubt that when historical patterns of racial discrimination carve up the present social world, race-blindness has the effect preserving uneven access to quality education.

Justice Breyers solicitude for the facts has not been mere code for liberal outcomes. Instead, respect for facts also led him often to conservative, even illiberal, opinions. In 2011, for example, he dissented from the Courts invalidation of a California statute banning the distribution of violent video games to young people. Canvassing alternatives to a ban, Breyer flagged serious enforcement gaps left by other technological options. In 2005, he cast the decisive vote upholding a six-foot-tall statute of the Ten Commandments on the grounds of the Texas State Capitol. This vote was based on his careful evaluation of the way both religious and secular citizens experienced their government in Texas. And in 2002, Breyer provided the pivotal vote in an important Fourth Amendment case about students rights against suspicionless drug testing. He upheld the practice against constitutional challenge, citing the serious national problem with drugs, and the schools decision to avoid criminal or disciplinary.

Indeed, his most recent majority opinion, issued in a religious liberty case at the beginning of May, ruled for the First Amendment claimants wanting to fly a Christian flag in Boston. By todays standards, this was a conservative outcomeyet Breyer managed to put together a coalition of both liberals and conservatives. Where he aimed to encompass diverse constitutional values, his conservative colleagues only weeks later blew past precedent to elevate the constitutional rights of the religious over those of the secular.

The clarity and rigor of Justice Breyers opinions are absent from many of his more conservative Justices recent work-products. As Professor Ryan Doerfler has recently explained, many Roberts Court opinions are an almost comical exercises in logic-chopping semantics. They are woefully lacking in attention to the actual context in which statutes are made.

Further, Breyers candor is at odds with the originalist label that several Justices proudly display. This label is paraded at a moment when critical areas of constitutional lawsuch as campaign finance, property takings, and racial equalityfloat completely free of any anchor in eighteenth-century understandings. In contrast, Justice Breyereven when you disagree with himtreats his reader as democratic equals who deserve an actual justification, not just high-handed sophistry.

The second key trait of Justice Breyers jurisprudence is respect for the ability of our democratic institutions to make their own judgmentsoften with tools far superior to courtsand to act on those conclusions. A 2007 study hence found him among the least likely judges to invalidate either federal or statute statutes. A study one year before that found him least likely to strike down a federal regulation (Scalia was at the other end of the spectrum).

Other Justices engage in democracy talktake Justice Kavanaughs comments about letting states decide on abortion. But Justice Breyer practices what he preaches. Not for him judicially created rules to the effect that agencies cant decide major questionsrecently invoked to shut down President Bidens vaccine mandate. That sort of judge-made rule can too easily be expanded and contracted, accordion-like, to fit the Justices policy preferences.

Justice Breyers career hence tees up the right questions to ask of the Court in coming weeks and months: Will it be well attuned not just to all the facts of the world (not just the convenient ones), and at the same time honor its limited empirical capacities? Will Justices work toward and support a constitutional democracyor are they a threat to that very enterprise? The Court that comes after Justice Breyers retirement has high standards to meet indeed.

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What the Supreme Court Loses With Justice Breyer's Retirement - TIME