Op-Ed: Oliver Wendell Breyer

David Bernstein and I co-authored an Op-Ed in today’s Newark Star Ledger about Justice Breyer’s jurisprudence and views on individual liberty. His dissent in Brown v. EMA  harkens back a Progressive era view of freedom and is reminiscent of Justice Holmes’s opinions (this may not be necessarily be something modern-day liberals want). The original title we submitted was “Oliver Wendell Breyer.” The Editor significantly (and in a few places incorrectly) modified the article. I reproduce the article, in its original form below the fold.

Oliver Wendell Breyer

by David E. Bernstein and Josh Blackman

Since John Paul Stevens’ retirement in 2010, Stephen G. Breyer seems poised to become the leader of the Supreme Court’s liberal wing. In the nine cases that split 5-4 along ideological lines in the Court’s past term, Justice Breyer wrote four dissenting opinions–only one less than Justices Ginsburg, Sotomayor, and Kagan combined.

This is a troubling development for those, liberal or conservative, who value the Constitution’s protections of individual liberty. Contrary to American tradition going back to the Declaration of Independence, Justice 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.

Ironically, the modern judge whose views most resemble Breyer’s is failed Supreme Court nominee Robert Bork.  Like Breyer, Bork rejected modern cases protecting individual rights in favor of majoritarianism–and as a result was denied a Supreme Court seat.

Breyer’s constitutional views were largely unknown when he joined the Supreme Court, but as a Justice he has voted to adopt a narrow interpretation of many constitutionally protected liberties.  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.

Justice Breyer’s cramped understanding of freedom of expression is especially troubling. Longstanding Supreme Court precedents, dating back to the dawn of the modern constitutional law era in the late 1930s, require the Justices to be especially protective of certain “fundamental rights,” including and especially free speech.

According to Breyer, however, most laws that infringe on freedom of expression–including laws the ACLU argues are blatantly unconstitutional–should be upheld if the government has a rational reason for interfering with free speech, an extremely forgiving  and deferential standard.

Instead, Breyer argues that the First Amendment fully protects only laws that infringe on “core” political speech.  Even then, Breyer interprets the Court’s “strict scrutiny” standard–traditionally interpreted to create a very strong presumption that such laws are unconstitutional–far more narrowly than do his colleagues.

The full implications of Breyer’s lassitude on civil liberties were on display last week in Brown v. EMA.  All three of Breyer’s liberal colleagues joined a seven-Justice majority holding that a California statute banning the sale of violent video games to minors violated the First Amendment.

Breyer, however, penned a lone dissent.  Although purporting to apply “strict scrutiny,” he gave virtually no weight to the free speech rights protected by the First Amendment.  Instead, he focused on the government’s interest in censoring speech deemed harmful to minors.

But Breyer didn’t simply defer to the legislature’s reasons for restricting speech–he made up his own!  He included a twenty page appendix listing over one hundred studies discussing the impact of violent video games on minors. Notably, most of these studies were not considered by the California legislature when enacting the statute, nor were they presented in briefs submitted to the Supreme Court.

In this and other contexts, Breyer’s jurisprudence harkens back not to great liberal Justices of the mid-to-late twentieth century, like Earl Warren and William Brennan–who, whatever their flaws, had a deep and abiding belief that civil liberties must be protected from government encroachmentt–but to an earlier generation of judges associated with the Progressive movement, such as Justice Oliver Wendell Holmes, Jr. and Learned Hand.

Like Breyer, many early twentieth 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.   Most infamously, Justice Holmes vigorously approved of forced sterilization of the allegedly mentally infirm, relying on the public interest as articulated by contemporary experts. “Three generations of imbeciles are enough,”  he wrote.

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.

Breyer’s apparent ascendance 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.  Almost twenty-five years after the failed Bork nomination, it would be odd if liberals anointed as their champion his left-leaning doppelganger.

David E. Bernstein is Foundation Professor at the George Mason University School of Law and an adjunct fellow at the Cato Institute.  He is the author of Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011).  Josh Blackman is an attorney and author, and blogs at JoshBlackman.com.

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27 Responses

  1. Shag from Brookline says:

    There seems to be a suggestion in this op-ed, although not as strongly as in “Rehabilitating Lochner” (aka “Rehabilitating Much Ado About Nothing”), that the Lochner conservative justices laid the foundation for the progressive New Deal Court and the Warren Court. That’s fiction. Conservative justices changed over time as did progressive justices. Plucking out a few cases that are anti-progressive by today’s standards does not raise the negative level of the Lochner conservative justices on social justice. This focus on the past of the first half of the 20th century is a diversionary libertarian-conservative effort. There seems to be even a suggestion that Justice Breyer might follow Holmes’ sterilization opinion. Poppycock, as is the comparison of Justice Breyer to Bork. Josh has tied his coattails to Bernstein, perhaps requiring in time his rehabilitation.

  2. Josh Blackman says:

    What is diversionary about looking at a very important period in constitutional history? How often do people consider the 1930s to understand constitutional law? Or the 1960s? Or the 1980s?

    The fact that the commonly accepted history of this period has been flawed, deserves attention. How that history affects modern constitutional law, deserves even more attention.

    As for your rehab comment,

  3. SeniorD says:

    Sometimes, the legal profession seems to turn on questions like “How many angels can dance on the head of a pin?” In this case, we are thrust deep into the realm of parsing and intuiting the meaning of individual words, the context in which they are used and the ultimate question as to establishing precedent.


    I first read the Constitution as a young Third Grade student. There, presented with what is called “The Commerce Clause” (the use of a capital ‘T’ is required to give it proper honor of place) I saw a simple prepositional phrased providing rationale for a dead simple set of boundaries for the Federal Government, the 18 enumerated powers. Those powers have all but ignored in favor of a gross amplification and twisting of that simple phrase beyond into something that, today, is used as justification of wholesale business take-overs, out of control spending and re-structuring of 1/3 of the American Economy.

    If, as the authors posit, the dawn of ‘Constitutional’ thought came in the 1930s we are talking of a period of economic malaise, rampant Communism and labor unrest. It would seem those elements combined to shackle the American ideal into an anti-Constitutional reality in which ultimate power exists in the Federal Government. That is not what our Founders envisioned.

  4. Howard Wasserman says:

    I am not sure I agree with “Breyer’s apparent ascendance as doyen of the Court’s liberal wing,” if it somehow suggests that he is leading the liberal wing astray. In the First Amendment cases you find so troubling, Breyer lost the other three generally speech-protective liberal justices and none seems particularly inclined to go along with him in the future. So the fact that Breyer has written the decisions for the four liberal justices in the nine cases in which they all agreed does not mean that he is leading the liberals down a bad path in individual-liberty cases.

  5. Josh Blackman says:

    I don’t think Breyer “lost” Ginsburg, Sotomayor, and Kagan in EMA. If anything, they lost him. I think he departed from traditionally deeply-held views with respect of free speech.

    Also, consider the fact that after RBG retires, Breyer will be the most senior liberal Justice, and will be able to assign majority opinions, and coordinate the dissents (to the extent that they are coordinated). His role will only be more pronounced.

    Justice Stevens performed this role magnificently for almost 2 decades.

    Justice Breyer will, whether others like it or not, be responsible for keeping his 4 votes together. If he is unable to keep the 4 votes together (like in Sorrell v. IMS Health where Justice Sotomayor departed), that bloc will be weakened. And if he has trouble with 4 votes, he’ll have even more trouble with 5.

  6. Howard Wasserman says:

    Breyer’s departure seems to be largely and only on First Amendment issues, which is 1)longstanding (see, e.g., Playboy Entertainment in 2001) and 2) not that consistent (see, e.g., Stevens last year or Snyder this year). I am not sure it tells us anything about his ability to keep a “bloc” together (if there is such a thing) on other issues where the liberals largely remain in agreement.

  7. Josh Blackman says:

    See also Justice Breyer votes in recent criminal procedure cases (Michigan v. Bryant, Bullcoming v. New Mexico, and Sykes v. United States). http://joshblackman.com/blog/?p=7397

  8. Shag from Brookline says:

    I thank Josh for disclosing that he was a student of Prof. Bernstein. There’s absolutely nothing wrong with looking back at all important events concerning the Supreme Court. But Lochner is a straw man, obviously to attack some current progressive justices because of the alleged “sins” of progressive justices of an earlier day and ignoring the sins of conservative justices of that earlier day. The apple doesn’t fall far from the tree. Note that my suggestions failed to entice responses.

  9. Alex Reinert says:

    I have to say, it seems a bit of a stretch to compare Justice Breyer’s dissent in EMA to Holmes’ opinion in Buck v. Bell. Strikes me as sort of like taking Justice Scalia’s votes in Confrontation Clause cases and writing an op-ed about how he is the next Earl Warren.

    It is sometimes dangerous to take a Justice’s views in one area of jurisprudence and try to translate it across the board, and across generations. I am not saying it can’t be done; just something that should be done carefully. This is especially the case when it is difficult to even summarize the Justice’s views in that one particular area of jurisprudence – what do we do with Justice Breyer’s views in Randall v. Sorrell, a campaign financing case? I could trot out other examples from the First Amendment, but I do not think even his opinion in EMA is as simple as you suggest in the op-ed.

    And as for criminal procedure, particularly on Fourth Amendment questions, Justice Breyer can sometimes be deferential to law enforcement interests, but he certainly does not always cast his vote in such an outcome-oriented way . You can look at his votes/opinions in the special needs arena, or in Davis v. United States this term (in which he and Ginsburg dissented, while Kagan joined the majority and Sotomayor concurred). Again, there are many other examples that make Justice Breyer’s views much more complex, at least to my eyes, than you suggest.

  10. Howard Wasserman says:

    I second Alex’s point–not everything is explainable by ideology. The Confrontation Clause cases (Bullcoming and Bryant) are not breaking along ideological lines and have not been for several years, where Justice Scalia has been leading the way in trying to protect people accused of murder from abusive police questioning.

  11. Josh Blackman says:


    I agree, comparing the views of two Justices must be done carefully.

    With only 800 words, we did not have enough space to spell out all areas of Justice Breyer’s jurisprudence.

    Certainly we do not equate Breyer’s opinion in EMA to Holmes’ opinion in Buck v. Bell, but use these cases as examples to make broader points about their judicial philosophies.


    I referred to ideology (liberal or conservative) in the comment thread to respond to the question about Breyer being the new doyen of the Court’s liberal wing or whether he votes in a liberal bloc. Whether he is a liberal justice, or if a liberal bloc exists, or if Justices vote according to ideologies is separate from our larger point (though my work on FantasySCOTUS has some impact on my views on this topic). This Op-Ed made an initial attempt to sketch similarities, and the judicial pedigree, of Justice Breyer’s views.

    I’ve received a number of really thoughtful comments here, as well as on Volokh. I hope to elaborate on this topic in future works, where I am not so constrained by space (or op-ed editors).

  12. Today's Tom Sawyer says:

    In regards to Breyer’s opinion in Randall v. Sorrell, his position on Citizens United and Free Enterprise Fund v. Bennett would indicate that his Randall Opinion is what statistics would call an “outlier.”

    As for this term, Breyer is batting a pretty interesting record in re First Amendment. He was in the dissent for Wynn (which was more on the issue of taxpayer standing), Sorrell v. IMS Health (wanting to defer the First Amendment to the legislature), EMA v. Brown (deferring to the legislature once again), but in the majority in Snyder v. Phelps only. So out of the three true speech cases this term, his “pro” First Amendment rate was only 33%. Of course, his decision to join the majority in Snyder is probably a function of lack of legislature to defer to as the case was over the speech implications of a lawsuit.

  13. Today's Tom Sawyer says:

    Sorry, I also forgot to include Bennett, which he was in the dissent for. Although some will argue that the speech subsidy is First amendment enhancing, I think the majority might have a point about burdening the speech of others. However, allowing the legislature to make public funds available is yet another sign of deference to their determinations, so that leaves Breyer at 25%, not 33%.

  14. Justin Graham says:

    Is it also fair to compare Breyer to Byron White? White was a JFK appointee who everyone assumed would be liberal, but turned out to be one of the least First Amendment-friendly justices on record.

  15. Shag from Brookline says:

    Josh illustrates cherry-picking with this:

    “With only 800 words, we did not have enough space to spell out all areas of Justice Breyer’s jurisprudence.

    Certainly we do not equate Breyer’s opinion in EMA to Holmes’ opinion in Buck v. Bell, but use these cases as examples to make broader points about their judicial philosophies.”

    Josh, you’re left with the pits. Perhaps it’s time for you to do a book – to get beyond the 800 words – with the suggested title: “Debilitating Oliver Wendell Breyer” to give your full story.

  16. Joe says:

    As I noted over at Volokh Conspiracy, and claims of space doesn’t help me (it’s even worse really, since it implies the cited matters are particularly clear), this is not convincing. The title, which reflects Prof. Bernstein’s posts at VC so is not a mere editorial edition, is also imho petty.

    Take the 1A. As a whole, Breyer has repeatedly joined free speech opinions. He joined Synder. He joined the crush video case. He joined various others that went past what would have been upheld past the 1930s. To the degree he’s a “threat,” if anything Alito is more of one. He tried to avoid the merits in Bong Hits. Alito didn’t.

    Citing Buck v. Bell is annoying. It was 8-0. How is this a symbol of what “progressives” or “Holmes” did? Ditto women in the workplace. Case after case, conservatives joined in. Mueller v. Oregon was unanimous. SOME conservatives opposed minimum wage laws for women alone, but lots of other laws regulating women alone were upheld.

    “Like Breyer, many early twentieth century Progressive jurists had a soft spot for protecting political speech, but they otherwise rarely met a statute they thought exceeded constitutional boundaries.:

    This too is fictional. Breyer repeatedly did so. Outside of multiple free speech cases, he “met” abortion statutes he thought exceeded such boundaries. Those that target homosexuals. Those that burden women (the above misleading citation, notwithstanding). The death penalty. In certain 4A cases, such a no-knock warrants, he in fact LED the dissent. A pair of law professors must know these things.

    Are these essential rights, which the so-called “doyen of the Court’s liberal wing” (as with the title, this comes off as petty) protects more than the conservative justices notable? Would Bork be as supportive as Breyer in protecting them? I’d add that Breyer’s tone is not quite Bork-like as the latter turned out to be either.

  17. Joe says:

    Buck v. Bell was 8-1.

    I’ll add Holmes clearly was a strong believer in legislative discretion, but he repeatedly outside of the 1A context also joined in or went beyond what the majority held in striking down such discretion.

    One notable area is 4A law. He too dissented, unlike most of the conservatives, in Olmstead v. U.S. He wrote an opinion for the Court strongly upholding the exclusionary rule. In both cases, Breyer agrees with him. More so in fact in a recent case than two of the liberals. “Doyen” indeed.

  18. Joe says:

    Today’s Tom Sawyer’s statistics are debatable.

    First, the thing about Randall is that it underlines that if in a small way, he is more “speech protective” (if one agrees those cases are) than other liberals on the Court who wasn’t willing to respect precedent even in a small way.

    Second, standing is important in religion clause cases, since w/o standing, the merits can’t be addressed (and his stance on the merits there is evident after Zelman) putting aside his record there in supporting striking down legislative action yet again belies the premise of this piece. I believe it is a “true” 1A case.

    Third, I think it is quite debatable to call Bennett “pro” 1A. The dissent argued just the opposite. I think the placement of that case is at best debatable.

    Finally, the fact it involved a lawsuit, as is often the case, doesn’t seem to be his reason for joining the majority in Synder. As with the others, that seems to be some stretch to find a way to disqualify whatever pro-1A thing he does.

    Thus, we have two speech limiting opinions — a commercial advertising case where the majority (6-3, Breyer not an outlier in dissent) said a better framed law might have worked and the video game case where Alito and Roberts thought a better framed law might work. I think his dissent in that case is troubling and it and others is why many liberals don’t “anoint” him as their hero as such.

    But, the op-ed goes much further than that.

  19. Alex Reinert says:


    1. Yes, of course an op-ed is a difficult venue in which to present complex ideas about the law, but it is the venue you chose. And presumably, you believe and agree with what you wrote in the op-ed, namely that Justice Breyer has adopted a “narrow interpretation of **many** constitutionally protected liberties,” that his opinions reveal “contempt” for the right of individuals to be free of governmental interference, and that his “ascendance as doyen of the Court’s liberal wing threatens to roll back decades of . . . pro-liberty precedent.” All this from his dissent in the video games case (and, as you suggest in your post, other opinions as well).

    2. I have read and re-read your blog entry above, and the “pro-liberty precedent” that you argue is threatened by Justice Breyer appears to be Brown v. Board, presumably the equal protection gender jurisprudence that culminated in VMI, etc. This, after all, is the mantle of the New Deal liberals who you say in the op-ed rejected the views of the Progressive judges who had “approved segregation laws, laws banning private schools, laws limiting women’s ability to participate equally in the workplace, and more.” And according to the op-ed this is the precedent that Justice Breyer looms over, waiting to overturn. In other words, Justice Breyer will bring us back to the days of segregation and gender inequality.

    3. This, to me, is the danger of taking one case, from one Term, in one area of jurisprudence, and expanding from it, whether in an op-ed, a blog post, or a law review article. Again, I am not saying it can’t be done, but I guess I would do it carefully. Justice Breyer’s opinions in the areas of due process, equal protection, the Eighth Amendment (I could go on) make it pretty hard to accept the proposition that he represents a threat to many of the foundational precedents from the New Deal and Warren Court era. Maybe you think his dissent in Parents Involved is an example of him expressing “contempt” for the right of the individual to be free of governmental interference, but it is hardly an abandonment of Brown. As with most Justices, and as Howard suggests, their jurisprudence is much more complex. I am sure there is plenty to disagree with Justice Breyer about from an individual-rights perspective, but the claims in the op-ed seem beyond the pale.


  20. Josh Blackman says:


    Thank you for the thoughtful reply.

    We did not imply that Breyer would vote to roll back Brown v. Board. In fact, I am sympathetic to many aspects of Breyer’s dissent in Parents Involved, particularly his characterization of the Chief’s opinion as abandoning Brown (a claim that I think is pretty accurate).

    Also, I agree with you about Breyer’s votes in due process, equal protection, etc.,and do not think he would vote to roll back any of these precedents.

    The broader point of the Op-Ed, which based on the comments was not clearly enough explained, and which I will elaborate more fully in the future, is how and why Justice Breyer seeks to protect certain rights, and not protect other rights.

    In short (and I recognize the pitfalls of summarizing this in short), Justice Breyer is adamant about protecting the rights he feels are important, but not so eager to protect rights he does not think are important. This seems obvious. My question, is to Justice Breyer, why are some rights more important than other rights? These rights, I think for the most part, are in the words of Ken Kersch, derived from “midcentury constitutional liberalism.”

    See e.g., Kersch, Ken, Justice Breyer’s Mandarin Liberty, 73 Chicago Law Review 759, 765 (2006) (“As his decision to characterize both the New Deal and Warren Courts as centrally committed to democracy and “active liberty” makes clear, Justice Breyer identifies his own constitutional agenda with that of these earlier courts, and positions himself, in significant respects, as a partisan of midcentury constitutional liberalism.”).

    Brown,perhaps more than any other case, exemplifies this era. Of course Breyer would not vote to overturn this case.

    I discuss how he views the Second Amendment in Heller and McDonald,in comparison with some other rights with social externalities (Miranda, exclusionary rule, etc.) in this article (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1763830), though it is not directly relevant to this discussion over rolling back liberal precedents.

    And for those who think I am only picking on Justice Breyer, I have been quite critical of Justice Scalia’s inconsistent and dare-I-say hypocritical position in McDonald with respect to protecting some rights,and not others. After ripping substantive due process for two decades, he suddenly finds it in his faint-hearted originalist wisdom to join an opinion relying on substantive due process.

    This op-ed I co-authored right after arguments in McDonald, titled Is Justice Scalia Abandoning Originalism illustrates this point: http://washingtonexaminer.com/node/111701

    But if the opinion Scalia joins in McDonald matches his signals at argument, the justice will no longer be able to call himself an originalist of any kind. He will have to turn in his O-card and leave Clarence Thomas as the only originalist on the Court. . . .

    The Court has nearly four months before it issues its McDonald opinion. We can only hope that the straying Saint Originalism returns to the catechism he has taught so well.

    Ultimately, this is precisely what Scalia did. I express my disappointment with Scalia’s vote in this article co-authored after McDonald was decided: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1664037

    The views of any one Justice–Scalia, Breyer, Roberts, etc.–are extremely complex, and they deserve to be considered broadly with consideration from a number of angles. The dialogue in this comment thread, and elsewhere, has been very helpful.

  21. Joe says:

    “My question, is to Justice Breyer, why are some rights more important than other rights?”

    It’s appreciated you focused on Justice Scalia too, but what justice does not think “some rights more important than other rights,” these days? No justice is consistently libertarian.

    You have to face up to what you actually said. Breyer is “threatens to roll back decades of these pro-liberty precedents,” but what ones? Heller? Post-New Deal justices didn’t seem much concerned with gun rights.

    Prof. Bernstein has noted how Lochner evenhandedly applied a rule to economic and non-economic rights. Breyer is cited as selectively caring about the latter. But, again post-New Deal justices shared the same sentiment. Economic rights had a certain second class status. In fact, commercial speech wasn’t even protected much until the 1970s. Again, what precedents is Breyer threatening?

    Brennan is listed. He was a strong opponent of sovereign immunity jurisprudence deemed by some as important to protect certain rights. Brennan et. al. cared less for property rights in various contexts than other rights. OTOH, and Breyer wrote an article in a book of essays on Brennan on the point, Brennan (unlike some conservatives, not just “Scalia”) protected “new property.” Breyer wrote an essay supportive of this.

    This plus the misleading slant of the text of the op-ed makes it problematic. BTW, I looked at the Scalia op-ed. I suggest others do so. Compare and contrast. Who comes off better? Where is the specter of eugenics and threat of rights in the Scalia op-ed? He isn’t an originalist now, but well, he still voted with the majority.

  22. Orin Kerr says:

    Josh writes:

    In short (and I recognize the pitfalls of summarizing this in short), Justice Breyer is adamant about protecting the rights he feels are important, but not so eager to protect rights he does not think are important.

    Josh, I’m curious: In your view, which of the current Justices do NOT do this?

  23. Alex Reinert says:


    As long as you are answering Orin’s question, which I also am curious about, it would also help me if you explained why my reading of your op-ed is not the most plausible interpretation of your critique of Justice Breyer’s jurisprudence. I was frankly surprised that you would say that you did not imply that Justice Breyer would roll back Brown v. Board. Maybe you did not mean to imply it — that would not surprise me — but I would think any reader of the op-ed would come to the same conclusion that I did (that is why I read and re-read it many times to make sure that I was not imagining things). As I think I laid out in my second post, your argument towards the end of the op-ed is as follows: (1) the Progressives had approved all sorts of liberty-restraining laws, including laws that permitted and perpetrated racial and gender inequality; (2) the New Deal and post-New-Deal Court reversed those Progressive precedents; and (3) Justice Breyer stands ready to reverse “decades of those pro-liberty precedents.” What “pro-liberty precedent” from the post-New-Deal era having to do with racial and gender equality does not start with Brown v. Board, LaFleur, Hogan, etc.?


  24. Josh Blackman says:


    I wrote a follow-up post to address a number (but not all) of the points addressed in this thread: http://concurringopinions.com/archives/2011/07/follow-up-to-breyer-op-ed.html

    Thanks for your comments

  25. David Bernstein says:

    [Alex Bensky: “I have read and re-read your blog entry above, and the “pro-liberty precedent” that you argue is threatened by Justice Breyer appears to be Brown v. Board,”]

    With all due respect, despite your re-rereadings, you are not reading it correctly. What the op-ed says is the post-New Deal liberals

    “proceeded to provide strong protection for the rights listed in the Bill of Rights. Breyer’s apparent ascendance as doyen of the Court’s liberal wing threatens to roll back decades of these pro-liberty precedents.”

    While I can see how you can criticize us for some imprecision in exactly which pro-liberty precedents we are talking about, given that “pro-liberty precedents” is directly harking back to opinions protecting “rights listed in the the Bill of Rights”, and Brown was not a “Bill of Rights” case, and Brown is not otherwise mentioned, it’s hardly the most natural reading that Breyer would overrule Brown. I could see how a lay reader might be confused about this, but not a law professor.

    It is, however, the case that Breyer’s opinion in affirmative action cases support our view that “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.” In the Progressive era, the consensus of elite “experts” advocated segregation, and progressive jurists advocated judicial deference to their expertise. Today’s consensus of elite “experts” advocate race-conscious preferences for minorities, and Breyer advocates deference to their expertise.

    So of course Breyer wouldn’t overrule Brown. But 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. After all, in those days, the experts, as well as public opinion (“democracy”), were on the other side. (Investment strategists always try to backtest their proposed strategies. Perhaps jurists should also backtest their judicial philosophies.)

    I’m sure we overall have better experts today than we had then, but it’s still obviously dangerous to civil liberties to rely on their perspicacity. Who knows what anti-civil libertarian policies advocated today by experts and supported by democratic majorities will seem as horrible to folks 100 years from now as Plessy seems today.

  26. Josh Blackman says:

    For a potential answer to Orin’s question about why we chose to write about Breyer’s recent opinion in EMA, I will quote from Orin’s 2008 post comparing Breyer’s seemingly-contradictory dissents in Heller and Zellman:


    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.

    I agree with Orin’s post, and I agree with Orin writing about Justice Breyer’s jurisprudence. For similar reasons, I wrote about it.

    Also, for the significance and import of what Linda Greenhouse called “the most unusual judicial performance,” I think Justice Breyer’s EMA dissent is quite timely. See http://concurringopinions.com/archives/2011/07/linda-greenhouse-on-justice-breyers-dissent-in-ema-most-unusual-judicial-performance.html

  27. Lester Brown says:

    It appears anything U.S. Supreme Court Justice Breyer says or subscribes to is enough to piss the world. He was simply born with that characteristic. It is difficult to believe that he enjoys the assent or symphathy of his fellow justices. Thank God our system of justice provide for more than one person to deal with him.