Breyer’s Supreme Court pragmatism will be missed

The news on Wednesday that Justice Stephen Breyer is retiring from the Supreme Court at the end of that successful term marks a historic transition point.

One of the great pragmatists in the court’s history, Breyer is the last of President Bill Clinton’s appointees still in office. Only Judge Clarence Thomas, appointed by President George HW Bush in 1991, now remains of the centrist court who has served longer than any other configuration of judges in history.

This court was called the Rehnquist Court after its Chief Justice, William Rehnquist, but it really reflected the judicial temperament shared by Breyer and Judge Sandra Day O’Connor. It was a nine-person body that decided almost every major case by finding five votes for a pragmatic consensus that lay somewhere between the aggressive liberalism of the 1950s and 1960s and the nascent rise of the right that is in obvious today.

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

Breyer’s pragmatism permeated everything he did before becoming a judge. This permeated its jurisprudence. And that now infuses his decision to retire, which he made with full awareness, care and intentionality. After recently publishing a concise and powerful book arguing that the court’s institutional authority be protected and preserved, Breyer is stepping down so the Senate Democratic majority can ensure he is replaced by a like-minded successor. . If only the late Justice Ruth Bader Ginsburg had done the same.

To understand Breyer’s pragmatism, one must begin with his prejudicial career as a law professor and civil servant. Breyer’s specialty was administrative law, but this dry description may mask the importance of his work. Breyer’s main intellectual contribution was to help redefine his entire field of law as a study of regulation, broadly defined to include how government not only determines private behavior, but also the quality the air we breathe, the food we eat and the water we drink. .

Recognizing that government, through regulation, exercises this immense power requires deciding how it should do so and how the courts should oversee 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 about the least naive person I’ve ever met.) But as a pragmatist, he recognized that people make the best decisions when they take active steps to name and measure people. possible effects of their actions, and determine where they might go wrong.

Pragmatic cost-benefit analysis is non-partisan. It’s centrist, or it’s supposed to be. Breyer has worked on deregulation efforts as much as regulation. As counsel for the Senate Judiciary Committee in the 1970s and 1980s, he prized bipartisanship. He was, and is, proud of the bipartisan support he received when he was appointed to both the Court of Appeals and the Supreme Court.

From Breyer’s philosophy of pragmatic cost-benefit analysis, it followed that the courts should defer to the expertise of regulators who were doing their job well. Fluent in French with an abiding interest in the French administrative system, Breyer generally believes that domain-specific expertise should be respected and leads to better results. He was more than willing to question the regulators vigorously to find out if they had shown reason. But if they did, he thought, the right outcome was to respect their decisions.

As a judge, Breyer has followed the pragmatic line that dates 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 judges oversee the rules of electoral politics but do not enter the partisan fray. When insisting in recent years that the court is not a political body, Breyer never denied that judges must sometimes make value judgments. His argument was that judges should not be beholden to political parties or movements, but to their independent view of the law.

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

In countless oral arguments, Breyer posed complex hypothetical questions to all parties, demonstrating how his nimble mind pondered difficult issues. It was not uncommon for him to answer his own questions as they went along, exhibiting a rare type of one-man-show, Socratic self-analysis. What was most salient in those moments was the seriousness with which Breyer always took both sides of any difficult issue. And that this brilliant man found the process of trying to verify the law a lot of fun.

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

Breyer will no doubt be on the sidelines to encourage the court to continue to act reasonably. The opinions he will write over the next six months will almost certainly include significant dissents. But they are unlikely to be rhetorically scathing. His style is to present calm, impartial and reasonable arguments for reasonable results.

For critics of the court who think it is necessarily ideological, Breyer’s career must be a challenge. Here is a lawyer who evaluated cases looking for what worked as much or more than he thought was right. The pragmatic Supreme Court really existed, once upon a time. We would do well to remember that in the months and years to come.

Noah Feldman is a Bloomberg Opinion columnist and host of the “Deep Background” podcast. He is a professor of law at Harvard University and clerked for United States Supreme Court Justice David Souter.

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