Isn't Mr. Justice Breyer Way Out of Line Here?
Calling Mssrs. Epstein and Yoo, Esquires:
Yesterday afternoon, I caught a radio interview with Mr. Justice Stephen Breyer, now promoting his new book, Making Our Democracy Work: A Judge’s View. In my fumbling, uncertain, not-a-lawyer-but-a-layman’s way, I found the Breyer interview shocking.
You see, I thought I’d understood just what was proper and what was improper for a sitting justice of the United States Supreme Court to discuss in public—prepping for my Uncommon Knowledge interview with Mr. Justice Scalia a couple of years ago, I’d gone to some pains to read up on the matter. There was a clear consensus, I learned, that whereas justices may discuss legal reasoning, constitutional principles, and cases from the distant past, they must never, ever go into the disagreements on the Court concerning recent cases. As Mr. Chief Justice Rehnquist once explained, declining to discuss a recent case, the Court’s published documents—the decisions and dissents—represent the Court’s considered and final thinking. No justice should ever attempt to re-argue a case in public—or even to add nuance or color to the published documents.
When the Court speaks, it does so in writing. And that, every justice recognizes, is that.
Every justice, that is, except Mr. Justice Beyer.
Breyer effectively re-argued Heller, the 2008 case in which the Court overturned a handgun ban in the District of Columbia, finding that the Second Amendment protects the right of individuals to own firearms. Breyer discussed the case for only perhaps five minutes, but he went into it quite deeply for all that. Madison agreed to add the Second Amendment to the Constitution, Breyer argued, because some feared the states might simply disband their militias leaving the new federal government powerless.
The first phrase in the amendment, “A well regulated militia, being necessary to the security of a free state,” is therefore the operative, load-bearing phrase, a view that of course reduces the next phrase, “the right of the people to keep and bear arms, shall not be infringed” to merely secondary, and limited, importance. (Roughly speaking, this is just the opposite of the majority finding. Writing for the majority, Mr. Justice Scalia devoted nearly 60 pages to close historical and textual analysis, concluding that the second phrase played the crucial role, the first merely establishing the context.)
The District of Columbia, Breyer argued, had made a decision that “having a lot of pistols around” (I’m quoting from memory) would prove dangerous, leading to “a lot of deaths” from suicide or accidents. The ban, therefore, was made “for a pretty good reason,” and nothing in the Constitution empowered the Court to second-guess the District.
I’m not asking here whether Breyer was wrong in his constitutional analysis. I’m asking whether he was wrong to discuss a specific, recent case in so much detail and so one-sidedly.
Richard? John?
P.S. If you’d like to hear the interview for yourself, it’ll be re-broadcast this coming week.
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Jun '10
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
Peter, you forgot the FIRST RULE. It's only wrong if a conservative does it.
Jun '10
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
I wonder, which of the other rights in the Bill of Rights does Breyer think are collective rights, and not individual rights? Is that the odd man out among the rights of the individual? I think Breyer, again, is determining his personal desired result, and then working backwards.
Sep '10
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
You also forgot the SECOND RULE. Its all GWB's fault anyway.
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
Peter, I will defer to the professors, but I don't think there's anything wrong or unprecedented about a Supreme Court justice summarizing, or even giving a little color commentary on, one of his published opinions, provided his remarks are consistent with the published opinions (and it sounds as though Breyers remarks are consistent with his Heller dissent).
What I do find notable is Breyer's complete incoherence as a public thinker. The central thesis of Breyer's book is that the public's acceptance of the legitimacy of Supreme Court decisions is the lynchpin of American democracy. Does Breyer actually think that he is contributing to the public legitimacy of the Court by going on and on about how Heller is a terrible decision that will lead to "lots of deaths?"
Perhaps Justice Breyer really believes that American democracy depends on public adulation of . . . Justice Breyer.
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
As a general rule, I think that Supreme Court justices should speak about Roman law when they are in their extrajudicial capacity. I am even uncomfortable with them giving choice tidbits of judicial philosophy, or writing as Justice Breyer did, a book that expresses his views more generally on the relationship between Congress and the Courts or on his general views on originalism and the like. The point here is bipartisan, and the same prohibitions should apply with equal force to his well-known protagonist, Justice Scalia. After they leave the Court, it is perfectly all right for them to opine on matters in which they participated because nothing they can say will influence their future behavior or the future behavior of litigants.
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
There is a second reason why judges should be quiet. They are no longer protected by the entire phalanx of institutional safeguards that insulates their opinions from some spur-of-the-moment thoughts. The clerks and their fellow judges, the briefs and the oral arguments, do play some role. None of these forces are at work, and the statements will be broader and less nuanced than they should be. This is all especially true with the Second Amendment, which will be back in some form before the Court once various states and local governments pass new statutes or ordinances which are said to conform with the requirements of the majority opinion. Why telegraph punches.
Since you asked about the institutional question, I will not say much about the actual case, except that in general I think that the dissent was correct on that issue, but not exactly for the reasons stated. Here are two articles (here and here) for those who are not faint of heart.
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
I have less of a problem with this than Richard. If Justice Breyer was simply making the same points that he did in his dissent in the right to bear arms cases, then I don't see the harm done. Everyone already knows what he thinks about guns. I also don't have a problem if Justices write about their approaches to the Constitution -- the more we know about the way they think (or not), the better. It allows the public to evaluate their public servants -- after all, they work for us. I don't buy the image cultivated by the Supreme Court itself, that it is a neutral body akin to priests merely interpreting the sacred texts (the Justices wear identical robes, they sit in a marble palace, they emerge from behind a curtain to pronounce their oracular statements, they say they are bound by the understandings of the Founders, they claim not to make policy). I think that the Supreme Court is a political institution (though I wish it were less so), that it has stretched and changed the Constitution's meaning, and that if they exercise such great power in our society, we ought to know as much as possible about why they vote the way they do.
Edited on Oct 11, 2010 at 3:52pmRe: Isn't Mr. Justice Breyer Way Out of Line Here?
With Breyer, if we know more about his political philosophy, we can not just judge his performance on the bench, but we can decide whether we want anyone else with the same ideology to join him. Same goes, of course, for Scalia, who also likes to write and speak publicly on a great many things. In fact, what worries me more is that the Justices are becoming just political actors who like to wield power for its own sake, and like to choose outcomes that they prefer as a policy matter, without any serious constraint by the other branches of government. If they at least write books laying out their approach to judging, they may at least feel that they have to be consistent to some set of principles. It might even force the Justices to think systematically about their role in our constitutional system, and even subject their views to popular discussion and debate, rather than deciding cases hit-or-miss without any real overall philosophy. That, to me, is much better than having a Justice Kennedy deciding on gay marriage or abortion based on his personal feelings about the policies, which is what I fear is too often the case.
Edited on Oct 11, 2010 at 3:58pmMay '10
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
Agreed, but it would be a bit more useful if they'd do their singing before their confirmations.
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
John is right that there are no surprises. But there is this latent weakness. The discussion about past decisions often tips the hand of the justice on cases that are not yet decided. As litigant, I would be uneasy about a justice who seems to have prejudged a case. The extrajudicial pronouncements seem to me to lock justices in on undecided cases, which leaves me uneasy. The less that is said, the easier it is to rethink positions. There is also another unnerving element to the entire effort. Reading the Breyer quotation, it is clear that in no sense does he regard himself as bound by the prior decision. So if the balance shifts over to the liberal position, Heller, and countless other decisions will be consigned to the dust bin. The extrajudicial writing makes the politicization of the court more acute than might otherwise be the case. This is clearly a second order effect, but one that runs in the wrong direction. There are lots of other pundits who can give the commentary. Better to keep the roles separate.
Sep '10
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
Until the Heller decision I had a degree of confidence that when it came to the big decisions, the court as a whole would get it right. I thought Heller would be like Brown v Board of Education in that the court would put aside personal and party position and vote with the constitution. After Heller it became clear that the constitution has less to do with what is actually written and more with the personal ideology of the justices. Despite a plethora of evidence that the second amendment is about self and community defense from enemies within and without, four justices decided that it does not mean what it clearly says. Instead they clung to the liberal ideology that told them it represents a collective right. To them the constitution means nothing, it is simply a document to be used to further an ideological end rather than a treasured document protecting the inalienable rights of man. Now, I'm for subjecting justices to retention votes every 10 years. Let the people throw them out if they come to consider themselves kings.
Sep '10
Re: Isn't Mr. Justice Breyer Way Out of Line Here?
Breyer’s comments seem to be more calculated to persuade than inform. At any rate his conduct advances Woods’ arguments for nullification, and that is a good thing!