Justice Breyer, the optimistic pragmatist

sketch of stephen breyer in black robe

Justice Breyer delivers an opinion from the bench in 2018. (Artwork Lien)

This text is a part of a sequence of tributes on the profession of Justice Stephen Breyer.

Brianne Gorod is chief counsel on the Constitutional Accountability Heart. She clerked for Breyer through the 2008-09 time period.

There was one key piece of recommendation that I obtained earlier than my interview with Justice Breyer: Be sure to disagree with him about one thing. As that recommendation mirrored, Justice Breyer wished to work with regulation clerks who wouldn’t be afraid to problem him and to interact with him on tough authorized questions.

It was a lesson that I took to coronary heart throughout my very own interview, as we mentioned subjects starting from the time period judicial activism to theories of constitutional interpretation to a regulation assessment article I had written on Title VII retaliation claims. The dialog was a lot enjoyable that I virtually forgot it was an interview, and after I began my clerkship with the justice, I used to be delighted to comprehend how consultant that dialog could be of ones that my co-clerks and I might have with him all year long. 

Justice Breyer delights in fascinated with the regulation and the best way it ought to work and in discussing these concepts with others. And one doesn’t must know the justice personally to have seen that delight. It’s evident in his (often lengthy) questions at oral argument; it’s evident within the public talks that he typically provides about our regulation and our system of presidency.

As I take into consideration Justice Breyer’s legacy, I believe it will likely be outlined largely by these broader concepts about our system of presidency. Justice Breyer is a pragmatist who believes deeply that our Structure and our authorities ought to work. When President Invoice Clinton nominated him to the excessive court docket, he put it merely, saying that “[t]he Structure and the regulation should be greater than mere phrases, they have to work as a sensible actuality.” And he promised that he would “attempt to make the regulation work for individuals, as a result of that’s its defining function in a authorities of the individuals.” 

As a result of he thinks the regulation ought to work for individuals, he cares deeply in regards to the real-world context through which the court docket is performing and the implications of its selections. These features of his decisionmaking are evident in so lots of his opinions.

I’ll single out only one such opinion. In Mother and father Concerned in Group Colleges v. Seattle, a plurality of the court docket concluded that two native college districts’ race-conscious efforts to combine their colleges violated the equal safety clause. He disagreed and wrote a dissent, joined by the court docket’s different comparatively liberal justices. 

His opinion defined that the precept that governments “could voluntarily undertake race-conscious measures to enhance circumstances of race … is rooted within the historical past of the Equal Safety Clause.” And he offered a richly detailed historical past of the college districts’ efforts to combine their colleges to indicate why that they had a compelling curiosity of their plans and the way these plans have been narrowly tailor-made to attain their goals. He additionally made express that this context was essential. As he put it, “real-world efforts to substitute racially various for racially segregated colleges (nevertheless brought on) are complicated.” He believed the court docket’s majority wanted to take that complexity into consideration.

And he didn’t mince phrases in laying out the stakes of the plurality’s choice: “The final half-century has witnessed nice strides towards racial equality, however we have now not but realized the promise of Brown. To invalidate the plans beneath assessment is to threaten the promise of Brown. The plurality’s place, I worry, would break that promise. It is a choice that the Court docket and the Nation will come to remorse. I have to dissent.”

Justice Breyer was in dissent loads over the course of his tenure on the court docket, however however that, he remained ever the optimist, assured that in the long run our authorities will work, and the courts will play a vital position in making that attainable.

What do you think?

Written by colin


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