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Justice Breyer as administrative law pragmatist

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This article is part of a symposium on the jurisprudence of Justice Stephen Breyer.

Ronald Levin is the William R. Orthwein distinguished professor of law at Washington University in St. Louis. He is coauthor of a casebook on administrative law and has written many articles on that subject.

There has never been any mystery about the jurisprudential premises of Justice Stephen Breyer’s approach to issues of public law. He spelled them out in his book Making Democracy Work:

Judges should use traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences… [B]y understanding that its actions can have real-world consequences and taking those consequences into account, the Court can help make the law work more effectively.

In the field of administrative law, which was one of Breyer’s scholarly specialties during his academic career, he has drawn on the above perspective by displaying a mistrust of broad generalizations about how government should operate. Such abstractions, he has suggested, can distract attention from inquiry into how government does work and how proposed solutions will fare in real-life experience. Because of his reluctance to embrace sharply defined doctrinal rules, he has acquired a reputation as “the quintessential justice of standards.”

Breyer’s contributions to the law on separation of powers offer some good illustrations of this pragmatic perspective. Even while he was still a circuit judge, he reacted skeptically to the Supreme Court’s decision in INS v. Chadha. In that case, the Immigration and Nationality Act purported to empower a single house of Congress to nullify an executive-branch order regarding deportation. The Supreme Court announced a broad ban on such “legislative vetoes,” but then-Judge Breyer was dubious: “One might wonder at the formality of the [Chadha] decision. … Is the logic of the Constitution here so compelling that one can ignore the purposes, the effects, the practical virtues of the legislative veto?”

More recently, Breyer wrote a powerful dissent from the Supreme Court’s holding in Free Enterprise Fund v. Public Company Accounting Oversight Board. The majority held that Congress’ decision to provide members of the board with two layers of insulation from removal intruded too far on the Article II powers of the president, but it refused to discuss whether and how widely this holding would apply in other contexts. Breyer’s thorough dissent outlined numerous government positions as to which the majority’s analysis might prove mischievous.

Similarly, in Lucia v. SEC, Justice Elena Kagan’s majority opinion found that the Security and Exchange Commission’s method of appointing its administrative-law judges violated the appointments clause of the Constitution. Parting company from his liberal colleague, Breyer wrote that he preferred to reach the same result on statutory grounds. The majority’s constitutional holding, he wrote, threatened to lead to the unraveling of the time-tested structure of administrative adjudication prescribed in the Administrative Procedure Act.

Separation-of-powers disputes reach the court only now and then, but cases on judicial review of administrative action are always on the court’s docket. Breyer’s approach to those cases has displayed a similar preference for flexibility, workability, and respect for democratic choices. His well-known willingness to take account of legislative history in statutory interpretation is one facet of this attitude. Rather than adhere to judicially declared maxims that purport to reveal what a legislature would have intended, he prefers to consider all available evidence that could shed light on what it did intend.

The bulk of today’s administrative-law controversy revolves around the so-called Chevron doctrine – the principle that when a reviewing court finds that a regulatory statute is ambiguous, it should defer to the reasonable views of the agency that administers the statute. Breyer has always displayed ambivalence toward this doctrine. He is well known among administrative-law specialists for his resistance to the idea that questions of this sort should all be resolved according to a single decisional rule. Thus, ever since his days as a circuit judge, he has suggested that the Chevron formula is too confining to fit the multiplicity of situations in which courts must conduct judicial review. He has repeatedly declared that the principle should sometimes apply and sometimes not apply. At the extreme, this attitude has at times led him to write opinions for the court in which he arrived at a standard of review by taking account of so many factors that the resulting decision, while context-sensitive, may not have provided much guidance for lower courts in future cases.

Methodological issues aside, however, Breyer has generally been sympathetic to Chevron’s central message that the meanings that administrators ascribe to their enabling legislation deserve significant weight in the interpretive calculus. In fact, one empirical study of his early years on the court found that, on such issues, he was the most deferential of any justice on the court. This is not to say that Breyer favored deference under all circumstances. He sometimes wrote opinions that faulted agencies for not adhering to high standards of reasoned decision-making. Overall, however, he was convinced that “[i]f statutes are to serve the human purposes that called them into being, courts will have to continue to pay particular attention in appropriate cases to the experience-based views of expert agencies.”

A notable example of this attitude was Breyer’s 2000 dissent in FDA v. Brown & Williamson Corp.. In that case, the Food and Drug Administration had issued regulations that limited children’s access to tobacco products. The court’s majority held that the agency had exceeded its authority, in part because tobacco products could not be rendered safe; if the FDA were to take jurisdiction, it would be obliged to ban them entirely, a result that no party favored. Breyer, however, supported the FDA’s compromise approach, which would have regulated the products without banning them. “In my view,” he wrote, “where linguistically permissible, we should interpret the [statute] in light of Congress’s overall desire to protect health. That purpose requires a flexible interpretation…”

One can easily draw a straight line from that two-decades-old dissent to Breyer’s dissent this year in NFIB v. Department of Labor, in which the majority blocked workplace vaccination rules issued by the Occupational Safety and Health Administration. Breyer lamented that, in so doing, the majority “stymies the Federal Government’s ability to counter the unparalleled threat that COVID-19 poses to our Nation’s workers. Acting outside its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.”

These days, as the court’s new majority proclaims its devotion to textualism in statutory construction, originalism in constitutional interpretation, and other formalist reasoning, the timing of Breyer’s impending departure seems decidedly inopportune. But he will leave behind a legacy of opinions that will continue to remind current justices and the public of the paramount need to maintain a government that works to promote the public welfare. I do not think that the remaining justices are indifferent to this need, but Breyer’s skill at articulating this objective in a learned, civil, and emphatic manner will be sorely missed.

Recommended Citation: Ronald Levin, Justice Breyer as administrative law pragmatist, SCOTUSblog (Feb. 10, 2022, 10:37 AM),