Breyer’s Idea of Restraint

According to Lincoln Caplan, writing a few days ago in the New York Times, Justice Breyer rightly appreciates that the Court’s “legitimacy in the public’s eyes” cannot be taken for granted, and is worried that the “judicial activism of Chief Justice John Roberts and the conservative majority” threatens to undermine that legitimacy. 

“The message of Justice Breyer’s book,” Caplan writes, “is that the court jeopardizes its legitimacy when it makes such radical rulings and that, in doing so, it threatens our democracy. That message is powerful, ominous, and very useful.”

I have not read Justice Breyer’s new book, but agree wholeheartedly that “radical rulings” jeopardize the legitimacy of courts that issue them.  See, for example, Dred Scott and Roe v. Wade.  Unfortunately, Justice Breyer — who voted to invalidate, on constitutional grounds, both state and federal laws limiting partial-birth abortions and also to strike down Ohio’s school-voucher program — is not, in my view, plausibly regarded as committed in a principled way to judicial deference or restraint.  It seems to me that he defers to legislative enactments when (a) he agrees with the policy that enactment reflects or (b) the policy reflects an understanding of the scope of regulatory power with which he agrees.  This is, I suppose, “pragmatism” of a sort, but it’s not clear that there’s anything about such an approach that should tend to shore up the Court’s “legitimacy.”

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