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Speaker: The Honorable Stephen Breyer, Justice of the United States Supreme Court
Summary by Amalia Amaya Navarro, Edmond J. Safra Graduate Fellow in Ethics
Justice Breyer opened his second lecture by briefly restating the main thesis that he intended to articulate and defend in this series of the Tanner lectures. In a nutshell, the thesis is that the Constitution embodies a coherent set of purposes, among which "active liberty" is of crucial importance, and that recognizing the relevance of "active liberty" helps judges better resolve difficult interpretative issues. Some examples of the way in which a focus on ‘active liberty’ helps dealing with problems of interpretation were already explained in detailed in the previous lecture. Justice Breyer devoted the first part of this lecture to further illustrate the potential heuristic value of placing a greater emphasis upon active liberty. He discussed examples drawn from the areas of equal protection, statutory interpretation, and judicial review of administrative action. In each instance he explained how taking ‘active liberty’ as the unifying value of the Constitution and stressing the Constitution’s democratic objectives helps interpreting individual provisions in hard cases. This interpretative strategy, he insisted- does not determine outcomes, but it does determine a certain outlook, which, ultimately, helps solving these cases in a way that brings about better law.
The first example that Justice Breyer used to illustrate his thesis concerned the problem of whether a law school’s affirmative action program was consistent with the Equal Protection Clause. There are –Justice Breyer explained, two possible interpretations of the Clause. On the first view, the Clause insists that State activity should be ‘color blind’. On the second, that he referred to as the ‘purposive view’, one may properly distinguish between policies of exclusion and policies of inclusion. Only race-based laws that implement the former kind of policies are disfavored by the Clause. Laws based on race that are intended to promote equal opportunity are not similarly banned by the Clause. The Court –Justice Breyer said, ultimately adopted a form of the second view. What is most interesting for the purposes of illustrating the argument advanced in these lectures is to examine the reasons the Court gave for accepting an interpretation of the Clause that is close to the ‘purposive’ view as opposed to the ‘color blind’ view. The ‘purposive view’ –he argued, could have been defended on the basis of an argument from ‘equality’, or an argument from ‘liberty’. However, Justice Breyer claimed, the Court appealed to arguments to the effect that student body diversity and pluralism in the educational institutions is pivotal for having a workable democracy. These arguments –Justice Breyer contended- are not arguments from liberty or equality, but from democracy. The interpretation according to which the law’s school affirmative action program is not outlawed by the Equal Protection clause is more compatible with the Constitution, given its democratic objectives, than an alternative interpretation which, through perceived inclusion, might impede the well-functioning of democracy. In this way, looking at the Constitution through the lens of active liberty can help a Court to choose between competing interpretations of constitutional provisions.
In a similar fashion, Justice Breyer illustrated how a focus on the Constitution’s democratic objectives assists judges in addressing difficult interpretative problems in two other areas, to wit, statutory interpretation, and administrative law. As regards the former, Justice Breyer explained that an interpretative approach that places more emphasis on statutory purpose and original intent is more consistent with the Constitution that a more literal text-based approach. For, in contrast to the latter, a purposive approach does more in the way of promoting the Constitution’s democratic objectives. The last example that Justice Breyer discussed focused on the principle of judicial ‘deference’ to agency interpretation of statutes. Should judges give weight to the agency’s interpretation of its governing statute? If so, when? And why? Justice Breyer argued that, again, referring back to the democratic nature of the Constitution helps solving problems of interpretation. When addressing issues about the proper ‘division of labor’ as regards the interpretation of a statute between agencies and the judiciary we should seek to identify the democratic will. That is, whether the judge should defer to the agency’s own interpretative views depends on whether the Congress intended such a result given the statutory purposes and the particular circumstances at issue. It is by interpreting the statute so as to implement the legislator’s will that we may solve the problem of judicial deference to agency interpretation of statutes in a way that promotes, rather than undermines, the Constitution’s democratic objectives.
After showing how reference to the Constitution’s basic democratic objectives can help Courts to interpret constitutional and statutory provisions in areas which pose difficult problems, Justice Breyer defended his interpretative view against a serious objection. “There are better ways to interpret the Constitution. Focus upon the meaning of the text, look at the historical tradition, identify the Framers’ original expectations narrowly conceived. To do otherwise –so the objection goes, is to act subjectively, and this leads to an uncontrolled judiciary”. Justice Breyer argued that there are great difficulties with this view, that he called ‘textualism’, ‘originalism’ or ‘literalism’. He directed five criticisms against this interpretative approach. First, the Framers never said how the Constitution or the statutes should be interpreted. Hence, ‘originalist’ judges cannot appeal to the Framers in support of their interpretative views. When defending their views, they appeal to nothing other than consequences. Thus, although originalists repudiate consideration of consequences case by case, as advocated by the purposive approach, the justification of their interpretative view is also consequentialist in an important sense.
Second, judges who reject an originalist approach are nevertheless using the very same standards that originalists employ, such as precedents, rules, etc. Hence, there is no reason why embracing an approach that focuses on purposes and consequences should necessarily open the door to subjectivism. In addition, even if evaluating decisions on the basis of their consequences may lead to changing the law, the upsetting of expectations is, to be sure, among the consequences that judges are required to assess. Thus, a consequence-oriented approach does not favor frequent dramatic legal change. So there is an important sense in which due attention to consequences leads to constrained judicial decision-making. An emphasis on consequences constraints subjectivity in yet another way. Only consequences that affect the values and purposes protected by the constitutional provisions are relevant. Therefore, alternative outcomes are to be assessed against constitutional relevant consequences, rather than against subjectively held values.
Third, even if, admittedly, the foregoing remarks do not solve the problem of subjectivism, it is important to notice that originalism also needs to deal with this problem. Neither do the Framers’ intention nor does the tradition speak by itself. It is often unclear what the original intention was, or how to best interpret a provision according to the historical tradition. Hence, there is a risk of subjectivism lurking in the originalist approach as much as there is in the purposive approach. However, Justice Breyer claimed, the latter has an important advantage over the former in that it is transparent. Because I write what I think –Justice Breyer said, my decision is open to public criticism. In contrast, the originalist’s general appeal to the historical tradition makes criticism much harder, in that it conceals rather than exposes the underlying judicial motivations.
Fourth, the objector might claim that, unlike the purpose view, originalism produces clear and workable rules. However, Justice Breyer argued, even if there are undeniable virtues in having clear rules, clear rules come also with a price, which in some occasions, might be too high. Besides, there are alternative ways of providing clarity such as using examples, and metaphors. Justice Breyer illustrated the point by means of the following example. California enacted a high-penalty mandatory sentencing law ‘three strikes and you’re out”. Applying this law, California imposed a fifty-year sentence on an individual whose third crime was stealing a $153 worth of videotapes. Our Court, Justice Breyer said, had to decide whether this sentence violated the Constitution’s Cruel and Unusual Punishment Clause, a question that turned on whether the sentence was ‘grossly disproportionate’. Against the majority, I conceded that striking down the law would leave the Court without a clear rule for distinguishing those sentences that are ‘grossly disproportionate’ from those that are not. Courts might have to exercise judgment in each case. But that judgment could by guided by a Supreme Court opinion based on examples discussing how and why the standard applied to the cases at stake. Regardless, the gains from rule-based clarity were not worth the Constitutional price.
Last, textualist and originalist doctrines produce seriously harmful consequences in some cases, as some of the examples that have been discussed in these lectures illustrate, which outweigh whatever risks of subjectivity or uncertainty might be inherent in other approaches. Moreover, as the cases exemplified, much of this harm is a constitutional one. Literalism has a tendency to undermine the Constitution’s effort to create a framework for democratic government.
After showing that, in light of these problems, the originalist’s objection does not succeed in undermining the purposive approach, Justice Breyer close this twenty-third series of the Tanner lectures with some words as a mode of postscript. Stressing the constitutional importance of democratic self-government –he said, has an important practical benefit. Justice Breyer expressed his concern about the deficient civics education at high school, the fact that Law school graduates are ever less inclined to work for government, the increasing lack of interest of Americans in public life, and the decline of public trust in government. Judges cannot insist that people participate in the Government. But they can make clear that our Constitution depends upon it, that “if people decide not to decide things for themselves, the Constitution won’t work. Participation is necessary for it to work”. Judges can make clear that the Constitution does not provide us with the solution to particular problems, but it does create a framework within which people may approach these problems by themselves. This framework is one of democratic self-government. That is the democratic ideal –Justice Breyer emphasized, that is as relevant today as it was 2000 years ago. He quoted Pericles who said: “We do not say that the man who fails to participate in politics is a man who minds his own business. We say that he is a man who has no business here”. Related democratic ideals moved the framers. And they wrote a Constitution that embodied these ideals. Judges can help making explicit that the Constitution is a document that necessitates the participation of Americans in public life. Such participation, Justice Breyer concluded, is a critical part of that ‘positive passion for the public good’ that John Adams, like many others believed was a necessary condition for any ‘real liberty’ and for the ‘Republican Government’ that the Constitution creates.