Follow-Up to Breyer Op-Ed

There has been a considerable discussion about an Op-Ed I co-authored with David Bernstein on Justice Breyer both here and at I wanted to clarify a few things in this follow-up post.

The comparison between Holmes and Breyer was not meant to suggest that they would vote the same way if confronted with the same cases; the comparison was to show how some of Breyer’s democratic/majoritarian views on active liberty, in many respects, sound in the Progressive tradition. In the Op-Ed we also compare Breyer with Robert Bork on this front (a point that none of the comments even mentioned); I wouldn’t even suggest that Breyer and Bork would vote similarly.

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

I think the primariy misunderstanding is over one important point: as articulated by Alex in the comments, if Justice Breyer has a similar philosophy as Justice Holmes–a philosophy rejected by the New Deal Court–then Breyer would vote to “roll back decades of these pro-liberty precedents” and overturn cases like Brown v. Board of Ed..

This was not our point, at all. 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).

The point was to focus on Breyer’s judicial philosophy.

Breyer’s conception of civil liberties–free speech in particular–relies on, and respects Warren Court’s precedents (such as Brown), but in my mind, he views them in a different manner. Here is Breyer’s gloss on the Warren Court in Active Liberty:

Later Courts–the New Deal Court and the Warren Court–emphasized ways in which the Constitution protected the citizen’s “active liberty,” i.e., the scope of the right to participate in government.”

The focus is not on individual liberty, or the protection of individual rights from over-reaching majorities, but rather on what Breyer calls “active liberty,” or “the scope of the right to participate in government.” (Active Liberty, p. 10).

Returning to the Op-Ed, Breyer would not “roll back” precedents from the Warren Court by overturning them. Rather, he would re-characterize these opinions as not about a fundamental individual liberty interest, deserving of heightened scrutiny, but as part of an active liberty jurisprudence, where courts construe the Constitution in consonance with the right of the people to participate in popular democratic government.

This passage on free speech from Active Liberty is instructive.

One the one hand, if strong First Amendment standards were to apply across the board, they would prevent a democratically elected government from creating necessary regulation. The strong free speech guarantees needed to protect the structural democratic governing process, if applied without distinction to all governmental efforts to control speech, would unreasonably limit the public’s substantive economic (or social) regulatory choices. The limits on substantive choice would likely exceed what any liberty-protecting framework for democratic government could require, depriving the people of the democratically necessary room to make decisions, including the leeway to make regulatory mistakes. [And in a sentence that could come from his dissent in Sorrell v. IMS Health] That, along with a singular lack of modesty, was the failing of Lochner. No one wants to replay that discredited history in modern First Amendment guise.”

On the other hand, to apply across the board uniform First Amendment standards weak enough to avoid the shoals of Lochner would undermine the First Amendment so much that it would not offer sufficient protection for the free exchange of ideas necessary to maintain the health of our democracy. (pp. 41-42)

This is a very Holmesian market place of ideas view of free speech that is short of focusing on why speech, by itself, is important. On the one hand, free speech is important so long as it “offer[s] sufficient protection for the free exchange of ideas necessary to maintain the health of our democracy.” On the other hand, were Courts to unduly strike down laws limiting speech, it would deprive “the people of the democratically necessary room to make decisions.” So one the one hand, we have “protect democracy.” On the other hand, we have “protect democracy.” To borrow from a classic 80’s commercial, where’s the liberty?

This view matches his dissent in EMA. The statute in EMA was popularly enacted by the legislature, and supported by two Governors. Justice Breyer paid “greater attention to [the] document’s democratic theme” and not so much attention to the civil liberties aspects of minors at stake. (p. 7). There was nary a discussion of the liberty interests in his opinion, yet dozens of pages about supporting the democratic choice made by the people.

Justice Breyer’s comments about the role of popular governance in First Amendment cases at the Aspen Institute (I apologize for my rough transcription from the video) echo this sentiment:

Let’s look to see what the justification is if the state wants to restrict expression and let’s look to see if there are an alternative systems. Often you find something in all those categories and there is not much of an alternative but do a little balancing.

In this case, the restriction on speech, the child cannot buy an x-rated game without their parent’s permission. If their parents wanted them to have it, they can go get it.

That is something, not much of a restriction

I look for a rationale for it, and I find 130 studies. And I find that’s not a bad rationale.

Justice Breyer went out of his way to find studies–that were never even considered by the California legislature, or submitted to the Supreme Court–in order to uphold the law. This exemplified, in my mind, a lack of concern for the First Amendment free speech liberty interests involved in the case, and was primarily concerned for the interests of parents through the state in California who wanted to protect the children.

To repeat from the Op-Ed, this opinion “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 encroachment–but to an earlier generation of judges associated with the Progressive movement, such as Justice Oliver Wendell Holmes, Jr. and Learned Hand.”

Justice Breyer is not opposed to protecting free speech; he simply decides to give the democractic process (active liberty) a significant amount of weight (would you call his approach in EMA strict scrutiny? I think it is closer to rational basis).

That is not necessarily a bad thing. Rather–and this is what the Op-Ed was getting at–this differs from the tradition of Warren and Brennan and Marshall. That the cases come out the same way is not relevant; what is relevant is how they are decided.

Even if you disagree with my reading of Active Liberty and Breyer’s writings, I hope I clarified the point we attempted to make in the Op-Ed (and I realize I spent 1200 words explaining an 800 word op-ed, so I admit, and concede that I did not make the point nearly as well as I could have).

Cross-Posted at

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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.