Follow-Up to Breyer Op-Ed

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13 Responses

  1. David Bernstein says:

    When I’ve blogged about Lochner and noted that with Plessy it’s perhaps the leading case in the anti-canon, I’ve had some very insistent commenters assure me that no, Lochner isn’t that big a deal these days, and that Korematsu has largely taken Lochner’s place in the anti-canon. I don’t quite agree, but surely Korematsu is a case that is widely and harshly condemned–but not by Breyer, who thinks the dissenters went too far, and the majority should have written a more moderate opinion, still giving the president wide discretion. (Admittedly, Breyer didn’t follow his own stated philosophy in Boumediene; the most obvious explanation–partisanship, or more charitably, “Bush is no FDR”–doesn’t given one any additional faith in Breyer’s ultimate commitment to civil liberties.)

    Note also Breyer’s dissent in Sorrell, which Josh mentions, in which he got his three liberal colleagues to sign on to language stating that that the core of the First Amendment is the protection of 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, and is very much like Robert Bork’s view in his (in)famous 1970 Indiana Law Journal article. I discuss Sorrell here:

    Not surprisingly, given that most expression is not about legislative policy choices, Breyer is the Justice most likely to vote for the government in First Amendment cases–a simple and very telling point that in retrospect we should have made room for in the op-ed.

    One can go through additional examples, but for those who didn’t see my Volokh post on the op-ed, the best discussion of Justice Breyer’s support for “Active Liberty” and it’s anti-libertarian implications can be found in this review of Breyer’s Active Liberty book by Ken Kersch:

  2. Shag from Brookline says:

    Josh closes with:

    ” … so I admit, and concede that I did not make the point nearly as well as I could have).”

    switching from first person plural to first person singular which presumably may not speak for his mentor co-author.

    Bernstein has apparently premised his legal academic career on Lochner and to protect his turf (or “brand,” with all of his self-promotion) must denigrate Justice Breyer in rehabilitating conservative Justices of yore. But maybe Josh is developing some doubts?

    But seriously, Josh, isn’t this:

    “This op-ed was not about specific cases; it was about judicial philosophy.”

    a tad defensive of what was clearly a subjective attack on Justice Breyer well illustrated by the title “Oliver Wendell Breyer”? Or maybe, Josh, you are a clever judicial philosopher. By the way, did you or your mentor first come up with this title?

  3. David Bernstein says:

    Let me qualify the Bork reference. Bork also emphasized political speech as the core of the First Amendment, but in that piece, at least, he had an even narrower view of the scope of the First Amendment than it seems likely Breyer would ever adopt (though of course there is forty-one years of F.A. precedent under the bridge since Bork wrote).

  4. Alex Reinert says:

    David, Josh,

    In the comments to Josh’s first post, David responds to my last question by saying that you obviously were not talking about Brown v. Board because Brown was not a Bill of Rights case, and the op-ed refers only to Justice Breyer as a threat to Bill of Rights precedent. So given your reference to Progressive tolerance of segregation (and David’s apparent belief that Justice Breyer would be fine with Plessy), maybe you were talking about Bolling v. Sharpe, which was a Bill of Rights case?

    Anyway, still waiting for someone to answer Orin’s question from the last post (and also for someone to actually identify the actual precedent you were talking about, in terms of the threat of being rolled back). Obviously, you are under no obligation to answer any of these questions, but then just say you don’t want to answer them, or say they are irrelevant, or that only an unsophisticated less-than-average-intelligence law professor like me would care about them.


  5. David Bernstein says:

    Alex, what I actually wrote was “In the Progressive era, the consensus of elite ‘experts’ advocated segregation, and progressive jurists advocated judicial deference to their expertise…. certainly a Justice with Breyer’s judicial philosophy in the pre-New Deal era would have had little reason to, say, oppose Plessy v. Ferguson or support Buchanan v. Warley.”

    From that, you reference “David’s apparent belief that Justice Breyer would be fine with Plessy.” Let me fix that for you. “David’s apparent belief that [a hypothetical Justice living one hundred years ago who had a similar philosophy to] Justice Breyer [in wanting to defer to legislative outcomes supported by a consensus of elite/expert opinion] would be fine with Plessy.” Somehow I don’t think this is the same thing.

  6. Josh Blackman says:


    Let me part company a bit with my co-author. I do think your reading about Brown is plausible– a term that I’m sure has much meaning to you after arguing Iqbal :)–but not the intent.

    That line about “rolling back precedents,” wasn’t about reversing any specific cases (that is why I did not name any), but was about re-characterizing them not on a civil libertarian Warren-Brennan Court jurisprudence (1st amendment issues in particular), but a majoritarian active liberty type jurisprudence. I think the latter places those precedents on a much shakier, less secure footing, due to majoritarian and other concerns. That is what I tried to get at in the post I wrote last night.

    To Orin’s question, there were a number of factors that went into writing it: the timing of the conclusion of the Supreme Court term (we finished the Op-Ed a few days after the term, but it took much longer before it was placed); Justice Breyer’s solo dissent in EMA was timely (we initially targeted papers in Los Angeles, but that didn’t work out); many aspects of Breyer’s dissent reflected the Progressive jurisprudence discussed in Rehabilitating Lochner; this Op-Ed was an attempt to provide readers with a perspective on Justice Breyer–who has spent the last year or so travelling throughout the Country to explain his view of the Constitution expressed in his two books–that they may have not considered.

  7. David Bernstein says:

    And, for those who don’t read Volokh, I’ve commented re our op-ed: 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.

  8. Shag from Brookline says:

    Of course this:

    “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.”

    is merely opinion and not fact.

  9. Josh Blackman says:

    You may be interested in reading Linda Greenhouse’s opinionator column today, where she calls Justice Breyer’s opinion in EMA the “most unusual judicial performance”

    Blogged it here:

  10. Justin Graham says:

    My question kind of got lost in the last post, but do you feel Breyer’s legislative deference can also be compared to that of Byron White? Like Breyer, White (a JFK appointee who many probably presumed to have a liberal streak) seemed to side with Congress and the states more often than not in cases that restricted the rights of free speech (arguing for mere negligence as a standard for defamation of public figures in NY Times v. Sullivan, saying a prior restraint would be justifiable in the Pentagon Papers case, dissenting not only in flag-burning cases, but also to uphold a penalty for affixing a peace symbol made of duct tape to the flag).

  11. Josh Blackman says:


    Sorry if I missed your post. I honestly am not familiar enough with Justice White’s opinions, but it is worth considering.

  12. David Bernstein says:

    I thought about bringing up White on Volokh, but then decided I also am not sufficiently familiar with his jurisprudence to go out on a limb. But I certainly always thought it was unfair to label White a “conservative” when to my knowledge his views on constitutional issues shifted very little from when he was appointed as a “liberal,” and it simply became a prerequisite for liberalism that one support, e.g., Roe v. Wade.

  13. Shag from Brookline says:

    George W. Liebmann’s review at:

    presents views that may differ from those of the op-ed authors.