In his 2010 book Making Our Democracy Work: A Judge’s
View, Supreme Court Justice Stephen Breyer
urged the federal courts to adopt a broad posture of judicial
deference towards the other branches of government. Judges must
“take account of the role of other governmental institutions and
the relationships among them,” Breyer wrote, and thereby “maintain
a workable relationship between the various braches of government.”
Breyer’s preferred solution was for judges to give government
officials the benefit of the doubt in most cases.
The implications of that
deferential approach were made plain last week in the Fourth
Amendment case Navarette
v. California. At issue was an anonymous phone call made
to 911 about a dangerous driver. That call prompted a traffic stop
and resulting drug bust by the police. According to the majority
opinion of Justice Clarence Thomas, “the stop complied with the
Fourth Amendment because, under the totality of the circumstances,
the officer had reasonable suspicion that the driver was
intoxicated.” Among those who joined Thomas in granting wide leeway
to law enforcement was none other than Stephen Breyer.
Justice Antonin Scalia, by contrast, in a dissent joined by
Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan,
rejected the Navarette majority’s pro-government stance.
“The Court’s opinion serves up a freedom-destroying cocktail,”
Scalia declared, one that privileges an anonymous and
uncorroborated tipster over a core constitutional right. “All the
malevolent 911 caller need do is assert a traffic violation, and
the targeted car will be stopped, forcibly if necessary, by the
police.” That troubling scenario, Scalia declared, “is not my
concept, and I am sure it would not be the Framers’, of a people
secure from unreasonable searches and seizures.” Translation: Take
your “workable relationship” and shove it.
Navarette was not the first time Breyer cast his lot
with a “freedom-destroying” interpretation of the Fourth
Amendment—and sadly, it won’t be the last. In 2012’s
Maryland v. King, for example, Breyer joined Justice
Anthony Kennedy’s majority opinion allowing police to conduct
warrantless DNA swab tests incident to arrest. “Make no mistake
about it,” fumed Justice Scalia in dissent, joined (as in
Navarette) by Ginsburg, Sotomayor, and Kagan. “As an
entirely predictable consequence of today’s decision, your DNA can
be taken and entered into a national DNA database if you are ever
arrested, rightly or wrongly, and for whatever reason.”
The Court’s 2013 ruling in Missouri
v. McNeely provides yet another telling example. The
dispute in that case stemmed from the police obtaining a
warrantless and non-consensual blood sample from a suspected drunk
driver. For a majority of the Court, that action was too invasive
to pass constitutional muster under the Fourth Amendment—but Breyer
was apparently untroubled. He joined the police-friendly dissent
filed by Chief Justice Roberts.
It’s
common these days for progressives
to embrace Justice Breyer as one of their biggest heroes on the
Supreme Court. And perhaps he is. But any assessment of Breyer’s
merits must also reckon with his overwhelming deference to the
police in Fourth Amendment cases. Is that a progressive virtue?
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