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Modest Proposal

Stephen Breyer restrains himself.

The New Republic

The Supreme Court has not yet indicated how it will respond to September 11, but the judicial philosophy that the conservative majority had embraced before the Twin Towers fell seems hard to sustain in a new and anxious age. The conservatives had planted their flag on principles of federalism and states’ rights; today both parties appreciate the need for a national response to international terror. The conservatives had displayed contempt for Congress as a policy-making body; today Congress enjoys renewed public respect. They had embraced a high-handed doctrine of judicial supremacy that asserted the exclusive ability of judges to decide complicated questions of national policy on topics ranging from crime to voting rights; today it is obvious to Republicans as well as Democrats that the enormous complexity of the challenges that face us--requiring elaborate coordination between federal, state, and local authorities--must be resolved by the president and Congress, rather than by the courts.

Although the Court as a whole hasn’t had the opportunity to reconsider its direction, one justice recently offered a bold vision of how his colleagues might redefine their role in the post-September 11 world. At the end of October, Justice Stephen Breyer delivered the James Madison Lecture at New York University. In his lecture, entitled “Our Democratic Constitution,” Justice Breyer referred only indirectly to September 11, noting that “trust in government has shown a remarkable rebound in response to last month’s terrible tragedy.” Far from being intentionally topical, the lecture represented his considered reflections about his own pragmatic approach to constitutional interpretation after nearly eight years on the bench. But in his insistence that courts should defer to Congress, in his transparency and candor, and above all, in his embrace of judicial modesty, Breyer offered a powerful case for the resurrection of a tradition of liberal judicial restraint that seems more relevant today than at any time since the New Deal.

In his lecture, Breyer sets out to provide an alternative to the strict constructionism of his conservative colleagues--most notably Antonin Scalia--who insist that, when interpreting the Constitution, judges should limit themselves to purely legal considerations such as constitutional language, history, tradition, and precedent. Breyer argues that judges in constitutional cases should also focus on the practical consequences of their decisions--in particular on the likelihood that a particular decision will promote political participation, rather than discourage it. Breyer says that courts should be especially attentive to the effect of their decisions on what the French political philosopher Benjamin Constant called the “liberty of the ancients”--the Greeks and Romans who valued the active participation of citizens in collective power, as opposed to the “liberty of the moderns,” who emphasized individual independence from the state. “I believe that increased emphasis upon this active liberty will lead to better constitutional law,” Breyer says, “a law that will promote governmental solutions consistent with individual dignity and community need.” Now that the need for public solutions to communal problems seems obvious, Breyer’s argument deserves close attention.

An emphasis on democratic participation is often associated with liberal scholars who take an unrealistic view of the people’s deliberative abilities and an immodest view of the judiciary’s ability to perfect democratic discourse. Breyer takes a far more modest view of judicial power. He argues for the resurrection of the traditional liberal position of judicial restraint associated with scholars and judges such as Learned Hand, James Thayer, and Louis Brandeis. “To focus upon that active liberty,” he writes, “will lead judges to consider the constitutionality of statutes with a certain modesty. That modesty embodies an understanding of the judges’ own expertise compared, for example, with that of a legislature. It reflects the concern that a judiciary too ready to ‘correct’ legislative error may deprive ‘the people’ of ‘the political experience and the moral education that come from ... correcting their own errors.’ It encompasses that doubt, caution, prudence, and concern--that state of not being ‘too sure’ of oneself--that Learned Hand described as the ‘spirit of liberty.’”

Breyer is uniquely well qualified to make a case for liberal judicial restraint. In his deference to Congress, and his refusal to strike down federal laws, he has been one of the most restrained justices on the Rehnquist Court. Seth Waxman, the former solicitor general in the Clinton administration, notes that in the first 200 years after the Constitution was ratified, the Supreme Court struck down only 127 federal laws. By contrast, in the past six years alone, the Rehnquist Court has struck down no fewer than 28 federal laws. The most activist judge during this period was Anthony Kennedy, who joined all but one of these decisions. The most restrained justices were Breyer and Ruth Bader Ginsburg, who dissented in half of the cases. In an age when both conservatives and liberals pay lip service to judicial restraint without practicing it, Breyer is a welcome anomaly: a consistent acolyte of judicial modesty.

But Breyer is not only an advocate of a restrained view of judicial power; he is also an advocate of a pragmatic view of judicial power, arguing that judges should consider the effects of their decisions on other institutions of government. And in his association of judicial modesty with judicial pragmatism, Breyer offers an appealing alternative to the activist pragmatism associated, most prominently, with Judge Richard A. Posner of the United States Court of Appeals in Chicago. Posner’s jurisprudence increasingly seems to be based on the principle that judges should reach results that are rational and efficient--and that he, Posner, is better equipped to identify rational and efficient results than the people or their democratic representatives. Posner’s self-aggrandizing pragmatism reached its apotheosis in his improbable defense of Bush v. Gore. Only the Supreme Court, Posner wrote, could have averted the political chaos that might have ensued if the recount ordered by the Florida court had proceeded. In light of the media recounts, it is now obvious that Posner’s predictions of a constitutional crisis were shrill and overwrought. In a recount of the undervotes, which is what Al Gore requested and the Florida court ordered--rather than the overvotes--George W. Bush probably would have won without the Supreme Court’s eager assistance. And even in the unlikely event that Gore had eked out a tiny majority, Congress was the body legally authorized to choose among competing slates. But Posner’s contempt for Congress led him to ignore the democratic process (and the relevant federal law governing the resolution of disputes in presidential elections) because of his personal concern for efficiency above all.

In his dissent in Bush v. Gore, Breyer emphasized that the framers of the Constitution and the relevant federal elections law intended that Congress, rather than the courts, would break the deadlock in elections that were too close to call. And in his Madison Lecture, Breyer rejected the crude Posnerian pragmatism that looks at a particular case and presumes to reach a result that, in the judge’s view, would be best for the country. Breyer insists that, rather than casting themselves as saviors for a polarized nation, judges should instead consider the institutional costs that result when unelected officials presume to short-circuit political battles that the Constitution and federal laws insist should be resolved by politically accountable actors.

In this deference to the will of legislatures, Breyer might seem to be resurrecting the pragmatism of Oliver Wendell Holmes, who said, “[I]f my fellow citizens want to go to hell, I will help them. It’s my job.” But on closer scrutiny, Breyer’s pragmatism looks very different from that of Holmes. Holmes was so skeptical about social illusions and moral absolutes that he believed truth could only emerge in a Darwinian struggle. Although he did not romanticize popular democracy--”I loathe the thick-fingered clowns we call the people,” he wrote--Holmes was nevertheless willing to protect democratic prerogatives because of his deep-seated doubt that judges had any more reliable access to truth than legislatures did.

If Holmes’s contempt for idealistic visions of democracy came from his experience during the Civil War, Breyer’s far sunnier view of legislatures came from his own upbringing in the Bay Area. His father was a lawyer for the San Francisco school board who emphasized the importance of participating in the political life of the city. And Breyer took this lesson to heart as chief counsel to the Judiciary Committee under Senator Ted Kennedy from 1979 to 1980, where he worked on airline deregulation and federal sentencing reform. Each morning Breyer would meet for breakfast with his Republican counterpart, the chief counsel for Senator Strom Thurmond, and that experience convinced him that when legislative staff meet, rather than being prisoners of ideology, both sides are often trying to achieve practical results that will help the country. While recognizing that Congress wasn’t perfect, Breyer concluded that it worked pretty well, and he left the job even more optimistic about the possibilities of bipartisan legislative cooperation than when he began.

Breyer’s optimistic view of Congress is most apparent in his approach to federalism. Before September 11 the federalism debate had seemed eye-glazingly esoteric, as cases about the limits of Congress’s authority focused on obscure questions, such as whether Congress had the power to protect red wolves that didn’t cross state lines. After September 11, however, the question of whether there are limits to Congress’s power to respond to health and environmental threats suddenly has dramatic practical consequences. For example, when they struck down part of the Brady gun control law in 1997, the five conservative justices held that Congress may not “commandeer” state officials by forcing them to run background checks on potential gun buyers to see whether they have criminal records. In a prescient dissenting opinion, Justice John Paul Stevens wrote that the “threat of an international terrorist, may require a national response before federal personnel can be made available to respond.... Is there anything [in the Constitution] that forbids the enlistment of state officials to make that response effective?” Expanding on Stevens’s example after September 11, Breyer insists that by enlisting the participation of local and state officials to combat terrorism, Congress could “help both the cause of effective security coordination and the cause of federalism.” By contrast, now that the Court has prohibited Congress from setting up cooperative schemes for law enforcement, the only alternative may be to create a cumbersome and inflexible federal enforcement bureaucracy. Ironically, because of the Brady bill case and others like it, the new Office of Homeland Security may find it harder to delegate regulatory power to state and local governments.

Or consider another challenge in the wake of September 11: Congress’s ability to set up a regulatory scheme to respond to threats of biological weapons. Breyer notes that the regulation of toxic chemicals demands a level of expertise to which the federal government may have better access than state governments have. Federal regulators, he suggests, may be better equipped to decide complicated factual questions, delegating to state authorities questions of value, such as what level of risk is acceptable. But the Supreme Court’s federalism decisions might prevent Congress from enlisting state and local officials to check compliance with federal minimum standards for biological safety. This sort of anti-federalism may have seemed quaint before the Twin Towers fell, but the possibility that the Court might hamper Congress from responding to a serious threat to public health is now no laughing matter.

Breyer’s distinctive contribution to the federalism debate is his claim that deference to congressional power can actually promote democratic participation rather than thwart it. “Federalism helps to protect liberty not simply in our modern sense of helping the individual remain free of restraints imposed by a distant government, but more directly by promoting the sharing among citizens of governmental decisionmaking authority,” Breyer wrote in a recent dissent, again citing Constant. In response, Justice Scalia sneered that Breyer’s praise of the liberty of the ancients “might well have dropped from the lips of Robespierre, but surely not from those of Madison, Jefferson, or Hamilton, whose north star was that governmental power, even--indeed, especially--governmental power wielded by the people, had to be dispersed and countered.”

Scalia is right to raise an eyebrow at Breyer’s embrace of ancient liberty. As Constant defined it, the participatory democracy of Greece and Rome was compatible with the complete subjection of individual freedom to communal authority: “All private actions were submitted to a severe surveillance. No importance was given to individual independence, neither in relation to opinions, nor to labor, nor, above all, to religion.” After the Enlightenment, Constant concluded, “we can no longer enjoy the liberty of the ancients.” But in the end, Constant seems like nothing more than a rhetorical distraction for Breyer. Despite his embrace of the language of participatory democracy, Breyer in fact has in mind something more subtle, more complicated, and better suited to an egalitarian and technological age. When Breyer refers to democratic deliberation, he really means not the liberty of ancient Rome but instead what he calls “a national conversation involving, among others, scientists, engineers, businessmen and women, the media, along with legislators, judges, and many ordinary citizens whose lives the new technology will affect. That conversation takes place through many meetings, symposia, and discussions, through journal articles and media reports, through legislative hearings and court cases.”

Breyer’s vision of political participation as a “national conversation” among experts avoids the airbrushed and unrealistic idealization of ordinary citizens in which many scholars of deliberative democracy indulge. It’s also consistent with Breyer’s scholarship about risk regulation, which concluded that, in some cases, assessment about the risk posed by hazardous substances should be delegated by Congress to a panel of experts modeled on the French body of highly trained civil servants, the Conseil d’Etat. When Breyer says that judges should encourage political participation, in other words, he doesn’t mean only participation in a New England town meeting; he’s also describing participation in the many other public and private policy debates that shape public policy, including establishments such as the Brookings Institution, the Council of Economic Advisors, and Harvard Law School. While it may seem counterintuitive to exalt policy debates by mandarins as a model of democratic participation, Breyer is correct that mandarins play an important role in influencing how public policy is made. Judges with an appreciation of their own fallibility should defer to laws that are the result of broadly inclusive policy debates, in which many constituencies--experts as well as ordinary citizens--have had a chance to participate. When judges substitute their own judgment for the judgment of Congress and all the expert witnesses who testify before it, Breyer suggests, what results is likely to be bad policy as well as bad constitutional law, disabling the political branches from responding pragmatically to important national problems.

Ultimately, the most striking aspect of Breyer’s deference to legislatures is its consistency. Even in First Amendment cases, he is inclined to uphold federal and state regulations rather than to favor individual rights. (As Eugene Volokh of UCLA has noted, Breyer has rejected more First Amendment claims than any other justice.) In Breyer’s view, deference to government rather than to the individual in free speech cases can sometimes promote First Amendment values. Breyer points to campaign finance laws, which are designed, he says, “to democratize the influence that money can bring to bear upon the electoral process, thereby building public confidence in that process, broadening the base of a candidate’s meaningful financial support, and encouraging greater public participation.” In his view, “First Amendment-related interests lie on both sides of the constitutional equation” in cases involving campaign finance reform, pitting the individual interest in self-expression against Congress’s interest in encouraging democratic participation. The relevant question, he says, is whether the laws “strike a reasonable balance between their electoral speech-restricting and speech-enhancing consequences.” Invoking judicial modesty once again, Breyer says that courts should defer to the legislature on factual questions about which the legislature is comparatively expert, such as the extent of the campaign finance problem. But courts shouldn’t defer when evaluating the possibility that incumbents might insulate themselves from effective challenge by setting spending limits so low that obscure opponents don’t have a realistic chance of attracting votes.

There is a venerable tradition of First Amendment theorists, from Alexander Meiklejohn to Owen Fiss and Cass Sunstein, who have suggested that the government may restrict the speech of a few to promote democratic participation among the many. But Breyer is certainly the first Supreme Court justice to embrace this view of the First Amendment wholeheartedly, and to apply it consistently across a variety of cases. And although the tradition of balancing the interest of the speaker against the interest of society has a questionable record--in the hands of deferential judges such as Learned Hand and Felix Frankfurter, it led courts in the 1950s to uphold the deportation of suspected Communists--Breyer’s flexible approach may be better suited to an electronic age in which the speaker is not always easy to identify. In two recent cases, Breyer used a balancing approach to evaluate the competing First Amendment interests affected by a law regulating indecency on cable TV stations and another law requiring local cable TV operators to carry broadcast signals. Upholding parts of both laws against First Amendment challenges, Breyer argued that many groups had competing claims to free speech protection--including listeners, programmers, and cable TV distributors. Although Breyer’s balancing of these complicated interests is difficult for lower courts to apply, the First Amendment scholar Jerome Barron has praised Breyer’s “new balancing analysis” for weighing “the strength of the government interest in the suppression of expression against the strength of the government interest in access for expression.” And in an age when legislatures are generally reluctant to suppress unpopular speech, Breyer teaches those of us who take a more libertarian view of the First Amendment than he does that free expression can flourish without the active assistance of courts.

In focusing on the promotion of “positive” liberty, or democratic participation, Breyer intentionally omitted from his lecture a portrait of “negative” liberty, or individual rights. But by and large, Breyer’s instincts seem as restrained and modest in cases involving individual liberty as they do in cases involving collective liberty. Like Holmes--whose definition of basic liberty involved deferring to the state until he felt that his back was to the wall--Breyer, too, seems inclined to defer to the state except in cases that strike him as fundamentally unfair. He is no instinctive civil libertarian in cases involving the regulation of pornography on television or nude dancing, in which he has sided with the conservatives; but he has also defended the rights of unpopular aliens. A majority of the Court, for example, held that a suspected Nazi war criminal couldn’t plead the Fifth Amendment when he was ordered to testify about whether he lied about his war record on an American visa application. Breyer dissented, arguing that the Nazi’s fear of being prosecuted for war crimes if he were deported meant that he should be entitled to take the Fifth. And Breyer showed a similar concern about the rights of aliens last June when he interpreted the immigration reform act of 1996 not to authorize the indefinite detention of aliens whom the United States wanted to deport but whom no other country would admit.

The only cases in which Breyer’s instincts about individual liberty sometimes seem less than modest are those involving personal autonomy. He infuriated his conservative colleague Anthony Kennedy by writing an expansive opinion striking down the laws prohibiting so-called “partial birth” abortions in no fewer than 31 states, extending the Court’s abortion precedents further than they needed to go. But even when you disagree with Breyer in a particular case, it’s hard not to be impressed with his transparency: More than any other justice, he takes us behind the curtain of his constitutional reasoning--explicitly identifying the competing interests that he has weighed in his decision, and showing us how he has weighed them. And transparency, in the end, is what helps Breyer to minimize the dangers of judicial subjectivity. As he notes, a more legalistic approach to constitutional interpretation--which emphasizes constitutional language, or history, or tradition and precedent--conceals all the hard and subjective choices that go into each decision: which history, for example, or which tradition a judge chooses to follow. The decisions that result are “no less subjective but ... far less transparent than a decision that directly addresses consequences in constitutional terms.”

By putting all his reasons on the table, Breyer also helps to minimize the familiar criticism of pragmatism, which is that it is essentially tautological: It tells judges to weigh the consequences of their decisions, but it doesn’t tell them how to weigh the consequences of their decisions. Even if judges intend to make decisions that are good for society, the question of what is good for society is hotly contested in a pluralistic society, and depends on moral and political values about which people vigorously disagree. Because it is so malleable, pragmatism has been invoked to justify such vastly different constitutional approaches as the Nietzschean nihilism of Holmes, the rationalist activism of Posner, and the progressive humility of Breyer. But in a pluralistic age, Breyer’s humility is more appropriate than those other strains of pragmatism because Breyer is more realistic about the institutional capabilities of different officials in a complicated government to weigh questions of fact and value. Rather than presuming to second-guess the choices of experts, legislators, administrators, and citizens, Breyer recognizes that all of them deserve respect. In this sense, Breyer’s pragmatism might be seen as a sophisticated version of the representation-reinforcing constitutional theory of John Hart Ely, who argued that courts should generally defer to the choices of political actors unless those choices threaten to distort the political process itself.

There is something appealingly adult about Breyer’s philosophy of judicial humility. Unlike Kennedy, he does not condescend to American citizens by offering them simplistic civics lessons that conceal the hard choices that any important constitutional decision requires. Unlike Posner, he does not presume that legislatures are so foolish and inefficient that only he can be trusted to reach rational decisions on the people’s behalf. Unlike Scalia, he does not preach judicial restraint and practice judicial activism, concealing his contempt for Congress with selective excursions into constitutional history and tradition. And unlike advocates of judicial minimalism, Breyer does not offer up narrow, thinly reasoned opinions in the hope that citizens who are given few reasons to disagree will instinctively rally around the Court.

Instead, Breyer has an entirely uncondescending appreciation for the complexity of policy-making in a democratic society. He argues convincingly that although Congress is not perfect, it has done a better job, on balance, than either the president or the courts at balancing the conflicting views of citizens across the nation during times of national crisis. He has enough respect for American citizens and their representatives to take seriously the reasons that emerge from the law-making process itself, and to defer to elected representatives unless their conclusions are transparently self-serving. With his intelligence, modesty, and appreciation for complexity, Breyer reminds all Americans that Congress, rather than the courts, is the place to resolve policy disputes. And for helping to teach liberals that they no longer need the courts to save them from the rigors American democracy, he deserves thanks.

During the past decade the case for judicial restraint has had little political resonance among liberals. In the Progressive and New Deal eras, conservative judicial activism provoked a backlash when judges struck down laws that had broad political constituencies. By contrast, the laws that the conservative justices struck down in the 1990s often seemed too obscure for anyone except scholars to care. Perhaps it took the trauma of September 11 to remind all Americans, liberal as well as conservative, that national action is necessary in times of national emergency, and that the federal government needs broad discretion to respond to complicated international challenges. It’s not yet obvious whether the conservative justices will follow the logic of their previous decisions and try to thwart the federal government’s flexibility in a post-September 11 world. But if they do, Breyer’s consistently modest view of judicial power will no longer seem like a historical artifact. It will be recognized as a national imperative.