Commentary: The pragmatic consequentialism of Justice Breyer

February 23, 2022 5:43 am
Justice Stephen Breyer along with Judges John Roberts and Elena Kagan.

Justice Stephen Breyer (top center) “defers to other government actors in situations where they have greater expertise than judges.” (Chip Somodevilla | Getty Images)

Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by a Democratic president (Bill Clinton), whereas the majority is “conservative,” having been appointed by three different Republican presidents (George H.W. Bush, George W. Bush, and Donald Trump).

The use of partisan labels to describe the different approaches to judging employed by the court’s two principal voting blocs is both understandable and fair, given the highly politicized nature of the Supreme Court confirmation process; the rhetoric used by President Trump (who frequently made sneering references to “Obama judges”); and the party-line outcomes that characterize many of the court’s recent, high-profile cases. Yet, partisan descriptors can obscure more than they clarify. I therefore am going to reflect on the difference between Justice Breyer’s philosophy and that of the court’s majority in jurisprudential rather than partisan terms. And in a series of follow-up commentaries, I will use this same framework to try to supply additional context for thinking about important developments at the court.  

Justice Breyer is a pragmatic consequentialist. In interpreting how an authoritative legal text such as a constitutional provision or a federal statute should apply where the text itself does not supply a clear answer, he takes account of the likely costs and benefits of the interpretations offered by the parties. He focuses on the historical issues the text was enacted to address and proceeds on the assumption that the Constitution and our statutory law ought to be interpreted to serve as good law – that is, law that enables a diverse, modern society to innovate and to incorporate new learning into political solutions as it tackles contemporary problems. He subscribes to the maxim that the Constitution is not a suicide pact. 

This means that Justice Breyer often construes open-ended constitutional and statutory provisions flexibly so that “We the People” of the 21st century can govern ourselves without undue constraint by the dead hand of history. He believes, for example, that legislative majorities have broad authority to regulate firearms, notwithstanding the text of the Second Amendment. He believes that the Constitution permits government to behave in a race-conscious manner to address the lingering effects of prior discrimination, notwithstanding the Constitution’s promise of equal protection of the law.  And more generally, he believes that the Ninth Amendment – which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” – empowers judges to recognize new rights not specifically listed in the Constitution as fundamental and therefore specially protected. Think here of the rights to abortion and same-sex marriage.

Relatedly, Justice Breyer defers to other government actors in situations where they have greater expertise than judges. He believes that the court should proceed incrementally and cautiously, seek consensus where possible, respect its precedents, and avoid unnecessary conflicts with the politically accountable branches of government. He believes that such a minimalist approach is necessary for the court to be seen by the American people as a law court representing the interests of all the American people over time, and not just another political forum where transient partisan power politics play out.

In sum, Justice Breyer does not regard most of the problems of constitutional and statutory interpretation that reach the court as having right or wrong answers. Rather, he tends to see the range of potential rulings that a court can deliver as “better” or “worse” when judged in terms of their likely consequences.  

Justice Breyer’s pragmatic approach to judging stands in stark contrast to the formalist, abstract jurisprudence of the current court majority. As opposed to believing that the Constitution is not a suicide pact, the majority subscribes to the platonic maxim that justice be done though the heavens fall. The majority operationalizes this view through an originalist approach to constitutional and statutory interpretation that purports to focus solely on the discovery of textual meaning, and not outcomes.  The majority’s approach is labeled “originalist” because it ascertains meaning by focusing on the point in time when the relevant provision became law and asking what informed members of the public would have understood the text to mean at that point in time. 

Thus, for example, a textualist/originalist would decide whether a particular punishment such as the federal death penalty is “cruel and unusual” within the meaning of the Eighth Amendment by asking whether the public in 1791 – when the Eighth Amendment was ratified as part of the Bill of Rights – would have characterized the punishment as “cruel and unusual.” A textualist/originalist would (and the court’s majority might soon) reject the modern constitutional test for determining whether the punishment was cruel and unusual, which asks whether the punishment is consistent with the “evolving standards of decency that mark the progress of a maturing society.”

The majority’s approach to recognizing fundamental constitutional rights not specified in the Constitution is straightforward: judges should not do so except in exceedingly rate situations where the right is necessarily implied by the Constitution’s structure or deeply rooted in the nation’s history and traditions. Moreover, the majority sees the Constitution’s principal structural features – its horizontal separation of federal powers and vertical federalism – as broad sources of judicial authority to impose constitutional limits on Congress, the president, and federal administrative agencies. 

The majority would say that Justice Breyer’s pragmatic consequentialism sounds good on paper and may describe a sound approach to lawmaking by individual legislators acting within the scope of their constitutional power. But, when employed by unelected federal judges, it subverts democracy. Pragmatic consequentialism is therefore not only wrong, it is illegitimate. And for this reason, the court need not and should not consider itself overly constrained by its precedents. For the court should correct past interpretive mistakes rooted in illegitimate methods of constitutional and statutory interpretation.

The court has recently issued several politically charged rulings. And it has several more – involving, for example, abortion, gun rights, and affirmative action – teed up for decision. Media coverage has and presumably will continue to describe these decisions in largely partisan, conservative/liberal terms. This is, as I have said, both understandable and fair, given recent developments. But it may prove enlightening to move beyond partisan framing and analyze these decisions in terms of, on the one hand, the jurisprudential values animating the pragmatic consequentialism that Justice Breyer has come to embody, and, on the other, the formalist textualism/originalism on which the court’s majority bloc will almost certainly rely.

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