Justice Breyer And The Establishment Clause
Again in November of 2022, I had the privilege and pleasure of collaborating in a convention, hosted by the First Modification Legislation Assessment, on the “First Modification Jurisprudence of Justice Breyer.” I’m grateful to my buddy and fellow presenter, Mary-Rose Papandrea, for the invitation. The panel dialogue of which I used to be an element was about “Justice Breyer and the Faith Clauses,” and I loved speaking with, and studying from, Micah Schwartzman, William Marshall, and Russell Robinson. The scholar editors did a very nice job of organizing and operating the occasion and—even for this Duke Blue Devils fan—a go to to Chapel Hill is all the time good. My contribution to the Legislation Assessment is named “Justice Breyer and the Institution Clause: Notes on ‘Appeasement’, ‘Authorized Judgment’, and Divisiveness'”; I recognize the chance to share the paper’s details with The Volokh Conspiracy.
Stephen G. Breyer served as an Affiliate Justice of the Supreme Court docket of the US for practically three many years. He was recognized for, amongst many different issues, his courtesy and civility, his inventive hypotheticals and free-form questioning throughout oral arguments, his road-show debates with the late Antonin Scalia concerning the relevance to constitutional interpretation of international jurisdictions’ practices and insurance policies, and his earnest expressions of concern concerning the Court docket’s function and popularity. He wrote a whole lot of judicial opinions, together with many in circumstances involving the First Modification. And but, throughout his lengthy profession and however his wide-ranging pursuits, he by no means authored a majority opinion resolving a dispute concerning the that means of that Modification’s Institution Clause. (I clarify within the paper why his essential concurring opinion within the 2005 Ten Commandments circumstances would not rely.)
Nonetheless, I suggest that the justice’s writings and report—in judicial opinions and elsewhere—concerning the no-establishment rule are distinctive, in at the very least 3 ways. First, there may be the truth that he didn’t vote uniformly along with his extra “strict separationist” colleagues—together with, say, Justices John Paul Stevens and Justice Ruth Bader Ginsburg—in divided Institution Clause circumstances. In my contribution to the symposium, I disagree with an interpretation of his departures, developed primarily by Nelson Tebbe and Micah Schwartzman, that chalks them as much as a “technique of judicial appeasement.”
Subsequent, Justice Breyer usually rejected the argument that circumstances involving church-state relations, or spiritual expression and symbols in public life and areas, may or must be resolved by making use of a specific “take a look at.” He was usually unmoved by the lure of any grand unified theories concerning the Institution Clause. As a substitute, his method was consciously particularistic and case-by-case. He noticed church-state controversies as extremely and inevitably fact-bound, solvable solely by means of a judicial-balancing train akin to the proportionality evaluation that’s practiced in another jurisdictions. In his view, “reasoned judgment in gentle of functions,” and never the workings of “any set of formulaic assessments,” produces the all-things-considered optimum outcomes.
Lastly, extra typically than some other justice within the Court docket’s historical past, he recognized the Clause’s major function because the avoidance of “political divisiveness alongside spiritual strains” and he was near-evangelical in his advocacy that law-and-religion disputes must be determined in the best way most certainly to advertise this function. In my opinion, his name for judicial administration of strife, and his view that judges charged with decoding and making use of the First Modification are approved to invalidate these actions of political actors which might be decided or predicted to have extreme potential for conflict-creation, is Justice Breyer’s signature Institution Clause contribution. It animated his remaining Faith Clauses opinion, a 2022 dissent in Carson v. Makin.
I imagine, although, that this view is mistaken and that this explicit contribution is regrettable. (I argued as a lot, 17 years in the past, in an overlong and excessively annotated article that, it seems, didn’t persuade the justice!) “That considerations about ‘political division alongside spiritual strains’ are actual and cheap,” I wrote, “doesn’t imply that they’ll or ought to provide the enforceable content material of the First Modification’s prohibition on institutions of faith.” I concluded that:
Those that crafted our Structure believed that each genuine freedom and efficient authorities may and must be secured by means of checks and balances, relatively than standardization, and by harnessing, relatively than homogenizing, the messiness of democracy. It’s each misguided and quixotic, then, to make use of the First Modification to easy out the bumps and divisions which might be an unavoidable a part of the political lifetime of a various and free individuals and, maybe, greatest thought to be a sign that society is functioning effectively.
Over the following few days, I’ll say a bit extra about these three options of Justice Breyer’s method to, and backbone of, Institution Clause circumstances. Thanks once more to The Volokh Conspiracy for the chance.
