Sunday, August 17, 2014

Breyer's Two Decades as the "Cold-Fish" Justice

      As a young lawyer, Ian Gershengorn minced no words in sizing up Stephen Breyer as a candidate for a vacancy on the Supreme Court. After plowing through a decade’s worth of Breyer’s work as a federal appeals court judge, Gershengorn reported to the Clinton White House that he had found “very little heart and soul” in Breyer’s opinions.  “Quite clearly,” Gershengorn wrote in a memo co-authored with Tom Perrelli, “he is a rather cold fish.”
      Two decades later, Breyer is on the Supreme Court, and Gershengorn regularly appears before him as a deputy U.S. solicitor general. So, Gershengorn naturally took the chance to recant after his earlier evaluation surfaced last month in the release of some of President Clinton’s White House papers.
      “Everyone has regrets from his 20s,” Gershengorn told The Wall Street Journal’s Supreme Court correspondent Jess Bravin. “Suffice it to say I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice.”
       Gershengorn is entitled to his disavowal, but his evaluation proved to be spot-on at the time and looks as much true as false based on Breyer’s 20 terms on the high court. Among The Nine, Breyer is on the cool end of the emotional spectrum, logical to a fault with little if any of the passion that one sees in Ginsburg or Sotomayor on the left, Scalia or Alito on the right, or even Kennedy in the middle.
      Breyer left Clinton cold when he was interviewed in May 1993 for the vacancy that Ginsburg won instead on the strength of her emotion-laden life story. A year later, Breyer became the default choice for a second vacancy only after Clinton struck out with his hope to put a politician like George Mitchell or Bruce Babbitt on the court.
      Belying Gershengorn’s review to some extent, Breyer showed emotion at least twice during his Senate confirmation hearing, according to my account in Supreme Court Yearbook. When asked about affirmative action, Breyer spoke strongly about the need to do more to meet the “basic promise of fairness” in the Fourteenth Amendment after “years of neglect.” He also signaled a strong commitment to women’s rights, referencing his daughters Chloe and Nell seated behind him. “Think of some kind of rule that makes their life worse because they're women,” Breyer said. “Wouldn't you say, but what kind of justification for that could there be?”
      Breyer has proved to be a reliable vote for women’s rights and racial justice throughout his tenure. He veers away from a liberal line on some other issues, however, notably First Amendment free speech issues and Fourth Amendment search disputes. In those two and other areas, Breyer displays his signature doctrinal commitment: pragmatism. “He is unapologetically pragmatic,” Kevin Russell, a former Breyer law clerk and now a frequent Supreme Court advocate, remarked in a 20th anniversary profile in USA Today.
     In Fourth Amendment cases, Breyer is likely to side with law enforcement, as in this year’s 5-4 decision upholding a traffic stop based on an anonymous 911 call (Navarette v. California). In First Amendment cases, Breyer looks for reasons to uphold government regulation, as when he voted in dissent in 2011 to uphold California’s ban on violent video games for minors (Brown v. Entertainment Merchants Ass’n).
     Pragmatism can turn into hash, however, in a Supreme Court decision. When he wrote the main opinion in a case striking down parts of a law aimed at restricting sexual material on cable television, Breyer turned the court’s precedents into a morass of generalities: “The Government may directly regulate speech,” he wrote, “to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech” (Denver Area Educational Television Consortium v. FCC, 1996).
     More recently, Breyer provided nothing better than an unweighted multifactor approach for testing the powers of Congress when he wrote the decision upholding a federal law allowing civil commitment of mentally ill offenders (United States v. Comstock, 2011). In a dissent, Thomas said Breyer’s “novel five-factor test” included no guidance on how to apply the decision to the next case.
      Breyer’s convoluted thinking is often on display on the bench as well. The one-time Harvard law professor is the master of the long-winded question and the hopelessly complex hypothetical. Often, he prefaces questions by saying he needs the answer to decide how he will vote. Other justices — perhaps most notably Alito on the right and Kagan on the left — use their questions more strategically to try to influence their colleagues’ votes.
      Perhaps most significantly, Breyer is Congress’s best friend on the court. He served two tours as a staff assistant on Capitol Hill, helping to author the trucking and airline deregulation bills and the new system of federal sentencing guidelines. Statistics compiled by Yale law professor Paul Gewirtz in 2005 showed Breyer the least likely of the Rehnquist Court justices to vote to find laws passed by Congress unconstitutional. My count suggests he holds the same position on the Roberts Court.
      Breyer has tried, in his book Active Liberty and elsewhere, to lay out an overall philosophy of the court’s need to assist the process of self-government and to look to history and practice more than literal text to guide decisions. But his ideas have had nothing like the impact of those from his hot-tempered colleague Scalia. After two decades on the bench, the influence of the cold-fish justice is sometimes hard to discern.


  1. Breyer has been a major disappointment. He will be remembered for one thing only: his ridiculous aversion to footnotes. What a legacy.

  2. To be fair, Andy Dufresne was also a rather cold fish but, two decades in Shawshank later, epically escaped to Mexico, so there's always that.

  3. People use the term "pragmatic" to describe Breyer and I think that is incorrect as a matter of taxonomy. Properly situated Breyer is an adherent of moral particularism. There is, to be sure, some overlap between the two categories but there are also significant differences. For example, a pragmatist is ultimately persuaded by the practical consequences of a decision while a particularist is ultimately persuaded by the unique constellation of factors that constitute a case. In that regard Breyer is probably the only justice on the court who believes in deciding the case as a case--that is, isolated and distinct from any other case.

    There are times when I strongly disagree with Breyer because his view of the relevant and material particulars of the case is substantially different than mine. Yet I think he is a breath of fresh air on the court because his particularism is a necessary rejoinder to Thomas' strict formalism.