Monday, June 3, 2013

Breyer versus Scalia

The current Supreme Court has two intellectual giants: Stephen Breyer and Antonin Scalia. Justice Scalia is a powerful and public advocate for textualism and originalism as tools of constitutional interpretation. Justice Breyer is an equally ardent advocate for an opposing theory of constitutional interpretation that he calls "active liberty," which is essentially pragmatism.

A common criticism of Justice Scalia is that his theories of constitutional interpretation are just politics by other means. Because he is a conservative, the argument goes, it is no surprise that he espouses interpretative principles that require fealty to the ideas of long-dead, slave-holding white men. The common rejoinder is to point out areas where Justice Scalia's avowedly neutral principals lead him to results that are at odds with the policy preferences of modern conservatives. This happens, for example, in cases concerning questions of constitutional criminal procedure, particularly the constitutionality of various searches and seizures under the Fourth Amendment.

Justice Breyer's pragmatic approach to the constitution is open to the attack that it is just intellectual cover for imposing his policy preferences. This is Scalia's own criticism, in fact, and it stings. But Justice Breyer can also point to cases where his vote or his opinion did not comport with the policy preferences of modern liberals. Indeed, the Fourth Amendment is such an area. As Professor Orin Kerr points out, Breyer and Scalia have been on opposite sides of every contested Fourth Amendment case this term:
Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term: King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).
What gives?

One possibility is that these Fourth Amendment cases don't really trigger a liberal / conservative divide. Since Bill Clinton's move to the center in the 1990s, both Republican and Democrats have become "law and order" parties. The cops have won over everyone but the libertarians, and perhaps Scalia has libertarian policy preferences and Justice Breyer has the standard bipartisan, authoritarian policy preferences.

I don't think that's right, though. Libertarianism is not a consistent strain in Justice Scalia's stated worldview. For example, his views on morals legislation, particularly in the realm of gay rights, have no room whatsoever for libertarianism.

Professor Kerr has an interesting hypothesis:
What explains the trend? It might just be a coincidence. But I suspect some of it reflects the fact that a lot of the recent cases have involved Fourth Amendment balancing. Scalia dislikes balancing, while Breyer revels in it. Those different instincts may pull their votes in different directions. Also, defense counsel have realized that Justice Scalia is in play in Fourth Amendment cases if you can find him the kind of argument that he finds appealing. So we’re seeing more defense-side briefs targeting Scalia’s vote. But the problem is that Scalia and Breyer look at Fourth Amendment cases in exactly opposite ways. The kind of argument that appeals to Scalia can lose Breyer, and the kind of argument that appeals to Breyer can lose Scalia.
This gets right to the heart of the Scalia / Breyer divide. Scalia, as a textualist, wants to derive the results directly from the words of the law, so believes that those words should be interpreted to compel clear results. Breyer, the pragmatist, sees the words as a starting point for an analysis of consequences, among other things. The words have value—for to reach a result starkly contrary to them would be imprudent because it would bring the law into disrepute—and clarity has value, but what matters ultimately is providing guidance on how to reach the most just results in the most cases. Thus, balancing tests.

All of which is to say that I think both Justice Scalia and Justice Breyer are, fundamentally, intellectually honest judges who generally adhere to powerfully reasoned and coherent views of constitutional interpretation.


  1. Wouldn't Kerr's hypothesis be true for almost any case? Pitching an argument that appeals to Justice Scalia would presumably often be one that would not be very interesting to Justice Breyer, and vice versa.

    1. Good point. It's the rare case where you're trying to get both Scalia and Breyer. Seems like the wildcard is Kennedy, and who knows what will sway him? (In other words, I'm not sure I could write my final paragraph with Justice Kennedy's name in it.)

    2. On the other hand, I think Kerr's point is this: if you're a defense side lawyer in a 4th Amendment case, you probably go in thinking that you've got a good shot at the four liberals, and now you think you can pull in Scalia too. So you try to pull in Scalia without losing Breyer, and hope for Kennedy.


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