Breyer’s Supreme Court pragmatism will be missed

Noah Feldman, Tribune News Service

The news of Justice Stephen Breyer’s retirement from the Supreme Court at the end of this blockbuster term marks an historical transition point.

One of the great pragmatists in the court’s history, Breyer is the last of President Bill Clinton’s appointees to still be serving. Only Justice Clarence Thomas, appointed by President George H.W. Bush in 1991, now remains from the centrist court that sat together for longer than any other configuration of justices in history.

That court was called the Rehnquist court for its chief justice, William Rehnquist, but it really reflected the judicial temperament shared by Breyer and Justice Sandra Day O’Connor. It was a body of nine that decided almost all major cases by finding five votes for a pragmatic consensus that lay somewhere between the aggressive liberalism of 1950s and 1960s and the incipient right-wing ascendance that is in evidence today.

Breyer’s impending retirement after 28 years embodies the demise of the court’s pragmatic personality, every bit as much as the likely decision to overturn the abortion-rights precedent Roe v. Wade this spring will signify the end of pragmatic jurisprudence in this historical era.

Breyer’s pragmatism infused everything he did before becoming a justice. It infused his jurisprudence. And it is now infusing his decision to retire, which he took mindfully, with care and intentionality. Having recently published a pithy and powerful book arguing for the court’s institutional authority to be protected and preserved, Breyer is stepping aside so that the bare Democratic Senate majority can ensure that he is replaced by a like-minded successor. Would that the late Justice Ruth Bader Ginsburg had acted similarly.

To understand Breyer’s pragmatism, the place to start is with his pre-judicial career as a law professor and public servant. Breyer’s specialty was administrative law, but that arid description can obscure just how important his work was. Breyer’s primary intellectual contribution was to help redefine his entire area of law into a study of regulation, defined broadly to include the ways the government determines not only private behavior but the quality of the air we breathe, the food we eat and the water we drink.

The recognition that the government, through regulation, exercises this tremendous power requires deciding how it should do so, and how the courts should supervise the process.

For Breyer, the answer was that government regulators should make reasoned decisions using the tools of cost-benefit analysis. He didn’t naively think that cost-benefit analysis always worked perfectly. (Indeed, Breyer is just about the least naive person I’ve ever met.) But as a pragmatist, he recognised that people make the best decisions when they take active steps to name and measure the possible effects of their actions, and consider where they might go wrong.

Pragmatic cost-benefit analysis isn’t partisan. It’s centrist, or is meant to be. Breyer worked on deregulation efforts as much as on regulation. As a lawyer for the Senate Judiciary Committee during the 1970s and 1980, he prized bipartisanship. He was, and is, proud of the bipartisan support he received when nominated for both the Court of Appeals and the Supreme Court.

From Breyer’s philosophy of pragmatic cost-benefit analysis it followed that courts should defer to the expertise of regulators who did their jobs well. A fluent French speaker with an abiding interest in the French administrative system, Breyer broadly believes that domain-specific expertise should be respected and that it leads to better outcomes. He was more than prepared to question regulators sharply about whether they had exercised reason. But if they did, he thought, the right result was to respect their decisions.

As a justice, Breyer followed the pragmatic line that went back to Justices Louis Brandeis and Oliver Wendell Holmes in the first third of the 20th century. For them, as for him, the rule of law is strengthened when the justices police the rules of electoral politics but do not enter into the partisan fray. When insisting in recent years that the court is not a political body, Breyer never denied that the justices must make value judgments some of the time. His point was that justices should not be beholden to political parties or movements, but to their independent vision of the law.

In the Supreme Court’s era of pragmatism, O’Connor often got to write the opinion that became law, but Breyer’s fingerprints could frequently be seen on her centrist conclusions. Much of Breyer’s greatest work came in his efforts to push the other justices to follow logic and reason, not intuition or ideology.

In countless oral arguments, Breyer posed complex hypothetical questions to all sides, demonstrating how his agile mind thought through hard problems. Not infrequently, he would answer his own questions as he went, displaying a rare kind of one-man-show, Socratic self-analysis. What was most salient in these moments was how seriously Breyer always took both sides of any challenging question. And that this brilliant man found the process of trying to ascertain the law to be lots of fun.

The end of the era of the pragmatic Supreme Court, and the rise of a court riven by ideology, is already affecting how the institution is seen. Breyer has always had a hard time getting inside the heads of people who reason from abstract first principles rather than experience. His case for the Supreme Court to be treated as legitimate depends on the implicit assumption that it will act in such a way as to sustain its legitimacy.