Stephen Breyer, the Supreme Court’s ‘Raging Pragmatist’

This
week marks the 20th anniversary of Justice Stephen Breyer’s
appointment to the U.S. Supreme Court. Writing at USA
Today, Richard Wolf marks the occasion by pronouncing Breyer
the
“high court’s raging pragmatist,” a jurist who, “perhaps more
than anyone in Washington…is a believer in the democratic
system.” That democratic impulse, Wolf explains, has led Breyer to
favor judicial “deference to police, states and voters,” and also
to Congress. “On the current court,” Wolf observes, Breyer “has
been the justice least inclined to strike down legislative
actions.”

In other words, on issues ranging from
aggressive police tactics to the broad exercise of congressional
power, Breyer has been a pretty reliable vote for the
government. In fact, Breyer has even gone so far as to apply his
deferential approach retroactively, using it as a lens through
which to view the Supreme Court’s past rulings on the scope of
government power. For example, here’s how Breyer tackled the
Supreme Court’s 1944 ruling in Korematsu v. United States,
as
recounted in my review of Breyer’s 2010 book Making Our
Democracy Work:

In Breyer’s view, the Supreme Court must “take account of the
role of other governmental institutions and the relationships among
them” and work to “maintain a workable relationship” between the
various branches of government. That may sound innocuous, but
consider the implications. In 1944 the Supreme Court heard the case
of Korematsu v. United States, which dealt with President
Franklin Roosevelt’s wartime internment of some 70,000
Japanese-Americans. Surely this case qualifies as a situation where
the Supreme Court should have scrapped the “workable relationship”
and struck down FDR’s offensive and unconstitutional actions?

Not necessarily, Breyer writes. “Perhaps [the Court] could have
developed a sliding scale in respect to the length of detention” or
“insisted the government increase screening efforts the longer an
individual is held in detention” or found some other way to
maintain a “workable relationship with the president.” A genuine
“Scalia of the left” would have had no problem repudiating the
Court’s craven decision. Even Elena Kagan, who expressed very few
actual opinions during her recent Supreme Court confirmation
hearings,
managed to denounce Korematsu. The Court needs a
stronger liberal voice than Breyer’s in contentious cases like
this.