Justice Breyer’s Establishment Clause Particularism

Thanks very a lot, once more, to The Volokh Conspiracy for inviting me to weblog about my latest paper on Justice Breyer’s selections and votes in Institution Clause instances. On this submit, I sketch a second distinguishing characteristic of his work, specifically, the truth that he commonly rejected the argument that church-state instances may or needs to be resolved by making use of a selected “check.” As an alternative, his strategy was consciously particularistic. He noticed church-state controversies as extremely and inevitably fact-bound, solvable solely by way of a judicial balancing train akin to the proportionality evaluation that’s practiced in another jurisdictions.

Justice Breyer was commonly described as “pragmatic.” To make sure, this time period means various things to completely different folks. Nonetheless, it doubtless connotes some impatience with claims that judges can and may resolve effectively authorized controversies by way of the consequence-indifferent invocation and utility of a selected authorized rule or check. A particular characteristic of Justice Breyer’s strategy to Institution Clause controversies was his aversion to the constraints, and to what he thought to be the false promise of impersonality and regularity, of “exams.”

Justice Breyer staked out his anti-test place most memorably within the Texas Ten Commandments case. He opened his controlling concurring opinion with Justice Arthur Goldberg’s assertion that there’s “no easy and clear measure which by exact utility can readily and invariably demark the permissible from the impermissible.” “[N]o single mechanical method,” he insisted, “can precisely draw the constitutional line in each case” or “readily clarify” the outcomes in a broad array of Institution Clause selections. He went on:

If the relation between authorities and faith is one among separation, however not of mutual hostility and suspicion, one will inevitably discover troublesome borderline instances. And in such instances, I see no test-related substitute for the train of authorized judgment. That judgment just isn’t a private judgment. Moderately, as in all constitutional instances, it should mirror and stay devoted to the underlying functions of the Clauses, and it should take account of context and penalties measured in mild of these functions. Whereas the Court docket’s prior exams present helpful guideposts—and would possibly effectively result in the identical end result the Court docket reaches at the moment—no precise method can dictate a decision to such fact-intensive instances.

To make sure, the doubts expressed through the years by Justice Breyer about Institution Clause “exams” aren’t harbored solely by him. It may even be stated that the present “conservative” majority has come round to his view. For instance, in 2022’s much-remarked Praying Soccer Coach case, Justice Neil Gorsuch, writing for a Court docket majority, noticed that “in Lemon this Court docket tried a ‘grand unified concept’ for assessing Institution Clause claims” however then reported (little question to the shock of many state-court and lower-federal-court judges) that this “ahistorical strategy to the Institution Clause grew to become so ‘obvious’ that this Court docket way back deserted Lemon and its endorsement check offshoot.”

The purpose right here just isn’t that Justice Breyer agrees solely with Justices Gorsuch in regards to the Institution Clause. It’s, as a substitute, that a number of of the “exams” which the Court docket introduced within the Seventies and Nineteen Eighties, and which have been dutifully utilized, over and once more, by courts throughout the nation—the doable outcomes of which needed to be anticipated by public officers at each degree and in each side of presidency and have been, in any occasion, normally revealed solely after expensive and unpredictable litigation—commonly didn’t produce outcomes that have been in keeping with any believable understanding of the First Modification. Each constitutional lawyer is, after all, acquainted with the truth that judicial doctrines are artifacts and so can and needs to be evaluated with a watch towards how effectively they carry out the duties they’re made to do. As Justice Breyer appreciated, the supposedly canonical exams which the Court docket held out to the political neighborhood, however then haphazardly utilized in its personal instances, constantly fell quick on this analysis.

This isn’t to say that it was or is enough for Justice Breyer to invoke “authorized judgment,” to “take account of context and penalties,” or to acknowledge instances as “fact-intensive.” An applicable respect for our Structure’s structural options, which embrace an entrenched-in-text separation of powers and a meaningfully cabined judicial function in policymaking, ought to in all probability immediate the embrace of an much more modest, restrained, predictable, tradition-bound strategy than his. The skepticism that Justice Breyer directs on the concept of a “single mechanical method” for deciding instances arising underneath the Institution Clause ought to give us some pause. Even when one thinks “the rule of regulation” just isn’t solely a “regulation of guidelines,” it’s troubling to assume that resolving disputes about issues so vital and fundamental because the place of faith in public life, and the connections and limits between spiritual and political authorities, will depend on judges’ imperfect and incomplete interesting-balancing, context-assessing, and consequences-predicting. If Institution Clause disputes essentially current questions of diploma, invariably contain trade-offs, and inescapably require figuring out and translating provisions’ (asserted) functions, then then why would one consider that these disputes are greatest, and even higher, resolved by judges by way of litigation than by residents, officers, and legislators by way of politics?

Justice Breyer retired from the Supreme Court docket at a time when the Court docket’s Faith Clauses doctrines are contested, challenged, and altering. Though he made clear that he doesn’t endorse solely latest developments’ obvious trajectory, it may effectively be that, by voicing commonly his reservations in regards to the lack of match between the authorized exams attorneys and courts invoke and apply, and communities’ values, practices, and traditions, he performed a consequential function in dislodging unfounded presumptions and misguided precedents.