Active Breyer: Making the Liberal Bloc Work

Author of “Active Liberty” and the newly released “Making Our Democracy Work: A Judge’s View,” Supreme Court Justice Stephen Breyer begins the new term as the second most senior member of the liberal bloc after Justice Ginsburg. President Clinton appointed Breyer to the High Court in 1994. Without any appointments until the death of Chief Justice Rehnquist in 2005, Justice Breyer remained the most junior Justice for a longer period of time than any other Justice before. It was, indeed, a slow start.
With Justice Stevens spearheading the liberal bloc during those 11 years and during his tenure on the Roberts Court, the question remains: Who is the new leader of the liberals on the Supreme Court? This term’s liberal bloc includes Justice Kagan, Justice Sotomayor, and Justice Ginsburg. More than one commentator has noted that Breyer may be the emerging leader of the SCOTUS liberals. Justice Kagan just arrived on the Court and Justice Sotomayor, with one year under her belt, remains relatively fresh on the Court. Unfortunately, as Justice Ginsburg is suffering from pancreatic cancer, it seems unlikely that she will be on the top of her game despite her tenacity and perseverance, especially considering the recent death of her husband, Mark Ginsberg. This leaves our former longest-serving junior Justice, Stephen Breyer.
But has Breyer established a sufficient philosophy to lead the liberal bloc? Breyer stated during his interview at First Parrish Church in Cambridge before the start of the term that he wrote “Making Our Democracy Work” with the hope of making the Court’s practices accessible to all and to solidify his approach to understanding cases. As discussed in his books and as is evident in his decisions, Breyer’s tenure on the Court has been characterized by a notion of legal pragmatism. Often considered the counterweight to Scalia’s doctrine of originalism, legal pragmatism asserts that the constitution espouses permanent values.
Breyer has been called inconsistent for what may seem like a largely subjective notion of the law in deciding what values the Constitution espouses and what it doesn’t. But, he has made it clear that he doesn’t follow the Brennan-esque strain of liberalism that asserts new rights in the Constitution (freedom of association, right to privacy, and other products of Warren-era judicial gymnastics). He strongly asserts that the Court shouldn’t be a “vehicle for social change.” As he discussed in his interview at First Parrish Church, the Court makes grave mistakes when deciding cases politically (notably the Korematsu and Dred Scott decisions).
While many consider the Court to be “JV politicians”, he said, the Justices should not care for public opinion like the agents of other branches. Breyer finds that the Court should think of themselves as a bureaucratic institution and exercise judicial restraint whenever possible, echoing the sentiments of High Court greats like Oliver Wendell Holmes and Louis Brandeis.
While Breyer receives criticism for his “inconsistent” judicial philosophy from the right, he’s no pure ally to the liberals either.

Breyer rules moderately in freedom of speech and religion cases. In one instance Breyer ruled upholding a statute giving aid to libraries only if they agreed to maintain anti-pornography filters on facility computers. If anything, we see that Breyer treads cautiously in the left-of-center plane.
So, without a clear following in both the liberals and the conservatives, how would Justice Breyer emerge the leader of the liberal bloc? Well, let’s consider the current situation. The Roberts Court has been considered the most conservative in recent times. As demonstrated by Justice Stevens, a strong liberal is resigned to writing a series of dissents. In theory, a moderate like Breyer might be able to carve out the agenda of the liberal bloc (refreshed in his assertion of his judicial philosophy from the publication of his book) and perhaps find a supporter in Justice Anthony Kennedy.
Furthermore, the cases coming before the Court this term are largely based in administrative law regarding the legislation of the Obama presidency. This has been Justice Breyer’s specialty from his time on the faculty at HLS. If he knows the rules wins the game, then Breyer definitely has an upper hand this term in tackling the docket.
Breyer’s legacy has been considered unremarkable, except for the occasional allusion to Frankfurter in his professorial penchants including throwing hypotheticals to counsel in oral argument and teaching through his opinions. Could this be Breyer’s big break? Well, put this way, there’s no other plausible way that the liberal bloc can work this term without Breyer acting as a leader. True, Kagan was put on the Court as a coalition builder, but being new she still has to adapt to the atmosphere of the Court- especially given her lack of judicial experience. Only time will tell if Justice Breyer will snag this term as an opportunity to come forth as the leader of the liberal bloc and imbue his notion of legal pragmatism into law.
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