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Monday, June 27, 2005
Justice Breyer and Divisiveness
Ten Commandments | Posted by Marty Lederman at 02:57 PM
I don't really want to disagree here with anything Eugene and Rick have written about whether evaluations of "divisiveness" can or ought to be a function in deciding religious symbolism cases. I'd simply like to suggest that perhaps Justice Breyer is not so much arguing that the outcome should be determined by the divisiveness (or lack thereof) of the display in question, as much as he is offering us clues to his own split votes in these cases. Reading his separate opinion, it's hard not to conclude that he is, in fact, very troubled by the Texas decalogue, and that it is plainly unconstitutional on any reasonable doctrinal test. But Justice Breyer well knows what the public and political reaction would have been had the Court struck down both displays. It wouldn't have been pretty, and yes, it would have been divisive in exactly the manner Eugene suggests -- which would be an unambiguously bad thing, for the Nation, for the Court, and for Establishment Clause doctrine (and perhaps even, as Burt Neuborne suggests, for progressive causes generally!). And so Justice Breyer takes one for the team, much in the way that Justice Stevens did with his standing opinion in Newdow. That is to say: His is a tactical vote, intended to allay precisely the Court-driven divisiveness that would result if he acted in accord with doctrine and his genuine beliefs about how the cases shoudl come out in the best of all possible worlds.
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Comments
Does anybody think it would be consistent with Justice Breyer's oath to uphold the Constitution if he actually did "take() one for the team" in the way that Mr. Lederman suggests above?
I'd be interested in hearing from those who think that Justices may uphold the constitutionality of something they think is "plainly unconstitutional" in a case where that question is squarely presented because they think that striking it down would nonetheless be "an unambiguously bad thing".
Posted by: Will Baude at June 27, 2005 03:12 PM
I think there is ample evidence that Justices do indeed frequently vote on pragmatic grounds. The Court's only true and unwavering formalist seems to be Justice Thomas.
If Marty's hypothesis is correct, Justice Breyer would hardly be the first Member of the Court to have taken political reality into account. We like to think of the Justices as pure logic engines, but things have never truly worked that way.
Posted by: Marc Shepherd at June 27, 2005 04:06 PM
I'm aware that many (some would say all) justices think that pragmatic considerations can indeed be a part of constitutional law. But Marty's allegation is a little bit different-- it is that Breyer thought that the law was unconstitutional, but nonetheless ought to be upheld because in this particular case the societal benefits of serving as the swing vote would be high. Maybe that is too fine a distinction, or one that Marty didn't intend, but it seems like an important one. I don't know of anybody alleging that kind of pragmatic abdication of constitutional responsibility since the claims about Roosevelt's court-packing and the "switch in time".
For what it is worth, I am not convinced that Marty's analysis is right in all of it's particulars, and therefore do not believe that Justice Breyer has or would violate his oath of office. And it's possible I'm misreading the post above, and if so, I apologize in advance.
Posted by: Will Baude at June 27, 2005 04:40 PM
Could Breyer have boiled down his opinion to: "Corpus Christi need not change its name, though there will be no new Corpus Christis?" Is that unprincipled?
Posted by: sklein11 at June 27, 2005 05:02 PM