His judicial philosophy emphasized promotion of democracy, a theme in tension with his emphasis on the need for deference to expertise.
Media reports indicate that Supreme Court Justice Stephen Breyer plans to retire this year, once his successor has been nominated and confirmed. Much can be said about the upcoming nomination and confirmation process. In this post, I wish to say a few words on Breyer’s judicial philosophy, and his contributions to the nation – of which some of the most important actually came before his appointment to the Supreme Court. Unlike many judges, Breyer wrote extensively about his judicial philosophy, including in books such as Making Our Democracy Work, and Active Liberty: Interpreting Our Democratic Constitution. As these titles imply, the main theme of Breyer’s interpretive theory is the need for courts to help facilitate democratic political participation, the “active liberty” he referred to. In this respect, Breyer’s approach has much in common with legal scholar John Hart Ely’s famous “representation-reinforcement” approach to judicial review. As Breyer and Ely both argued, representation-reinforcement is sometimes obviously compatible with judicial review, as when courts strike down laws that restrict freedom of speech, constrain the right to vote, or otherwise directly interfere with democratic participation. Breyer, however, went much father than this, and also defended strong judicial review in many situations where the connection between it and representation-reinforcement were, at best highly questionable (as in the case of abortion rights, for example). In other situations, he advocated judicial “restraint” in cases where there are strong arguments that striking down laws or regulations could promote popular participation in various ways. I outlined these and other reservations about Breyer’s theory in much greater detail in my 2006 review of Active Liberty. Here is an excerpt from the abstract: Justice Stephen Breyer’s… Active Liberty: Interpreting Our Democratic Constitution, is an important contribution to the longstanding debate over the relationship between democracy and judicial review. Breyer argues that judicial power should be used to facilitate citizen engagement in the democratic process rather than undermine it; he claims that judges should promote democracy by explicit consideration of the practical consequences of their decisions…. Breyer’s contribution to the debate is important and on some points convincing…. However, the Justice is far less persuasive in defending his own approach to democracy and judicial review. This Review focuses on Justice Breyer’s vision of the relationship between democracy and judicial power. Unfortunately, that relationship is considerably more complex than Active Liberty lets on. In some instances, a fuller understanding of the connection justifies results very different from those Justice Breyer argues for. Part II shows that Breyer’s claim that judges should explicitly weigh consequentialist considerations in making decisions may lead the judiciary well beyond its field of competence.
