Saturday, October 22, 2011

Interpreting the Constitution - Part V - Justice Stephen Breyer

It's no secret that I have my doubts about Stephen Breyer's (that's Supreme Court Justice Stephen Breyer) approach to constitutional interpretation.  (Feel free to search the archives.)  The very short version is that he thinks the Constitution's intent (ignore here the question of whether a document can have an intention) is more important than its content.
I have my doubts, too, about the approaches of Antonin Scalia and Clarence Thomas.  Scalia, in the guise of "originalism" fetishizes what he imagines to be the understanding of some group of late 18th Century landowners about the content of the Constitution.  Thomas, favoring "textualism," handcuffs himself to his understanding of the lexical peculiarities of those same landowners.
None of that is really accurate.  I don't have "doubts" about their approaches to constitutional interpretation.  I think they're all flawed.
Scalia and Thomas presume too much (way too much) about their own historical and linguistic analyses.  (And, of course, Scalia is willing to abandon his if he finds the result too odious or too fully at odds with precedent that doesn't offend him too badly.  [Is that enough uses of too in one sentence?])  And their insistence that a framework of government devised to satisfy the needs of white, male, agrarian, landowners of the late 18th Century must be slavishly (I chose that word with some care) adhered to in our very different society because there's no other principled way to apply the thing is unreasonably restrictive and dangerously ossifying.
Breyer's model has the virtue of allowing the realities of our world to influence understanding.  He claims not to rejected history, original understandings, lexical and textual analysis, and the like.  Those are among the tools he says it's proper to bring to bear on understanding the Constitution.  But one must also look to practical effects.  What makes for a happy resolution of the issue?  How best to make government efficient?  What advances the cause of representative democracy?  Those too are things he brings to bear, and in the crunch, he finds them, as I said, more important than the Constitution itself to determining what the Constitution means.  The thing isn't that they don't matter.  It's that while those things can aid in interpreting the Constitution, they can't trump it.
Oh, sure, I'm more often in agreement with the resolution Breyer reaches to constitutional questions than I am with the resolutions reached by Scalia or Thomas.  But not always.  And certainly I'm not always pleased with how he gets where he gets.
All of which is by way of introduction to an instance of Breyer running off the rails.  He was speaking to the World Affairs Council of Philadelphia and, at least according to Laura Goldman in the on-line version of the Business Insider, there was this.
The easygoing, affable Breyer only became defensive when the subject of the death penalty was raised. "You have to understand that each death penalty case usually comes before the court three times. The average defendant is on death row for 15 years," said Breyer.

He continued, "The recanting of witnesses is often raised. That is not enough. It is necessary to have proof that someone else has had to pull the trigger. There would have to be something really wrong for the Supreme Court to hear anything significantly new that was not heard before by the lower courts. We are presented with roughly the same arguments, just at the last minute."

Breyer explained that the court can not rule on the death penalty itself or address the racial disparity of its imposition since "it is mostly imposed by state law, rarely federal law. Only the legislature can abolish the death penalty," said Breyer.
I assume, though I don't know, that he was talking about Troy Davis or maybe Mumia Abu-Jamal (in both of which cases there actually was evidence that someone else pulled the trigger, but that's a quibble here).
If Goldman has it right (and I'm not at all sure she does), Breyer is saying things which are alternately silly and wrong.
The silly: SCOTUS can't grant relief on an innocence claim unless new evidence or argument is presented for the first time ever at the Supreme Court.  Breyer knows that it doesn't happen.  And if it did (there's a singular process by which it might be possible), the court wouldn't grant relief.  It would say that the evidence needed to be presented to the lower courts.  Maybe, just maybe (but don't hold your breath), it would do what it did in Troy Davis's case and tell the lower courts actually to review evidence.  (But Breyer wasn't describing Troy's case where evidence had been presented to the lower courts - which simply chose to ignore it.)
The wrong: The Court cannot rule on the death penalty.  Sure it can.  Brennan and Marshall said the death penalty was flatly unconstitutional and so voted repeatedly.  Harry Blackmun reached the same conclusion.  So did John Paul Stevens.*  It can do what it wants.  And it can, of course (as it has done), say that death penalty laws are unconstitutional.
What Breyer really means is that while he opposes the death penalty (he's suggested that a number of times, and Goldman's next paragraphs make his position clear), he doesn't find it politically palatable actually to vote to shut it down or even, routinely to vote to save individual lives.  (He makes clear in Making Our Democracy Work: A Judge's View, hell, he makes it clear even from the title, that the Supreme Court's job in constitutional interpretation isn't to enforce the Constitution, it's to advance his conception of democracy - one that is, often, oddly undemocratic, but that's a different point.)
* * * * *
That's long and windy and roundabout and perhaps close to impenetrable.  If I quit now, I can expect Jack to challenge me to say it again - but in English.  Let me take a shot at it.
Breyer views the Supreme Court as part of the political system rather than part of the Constitutional system.  As it's political for him, so it's essentially bound by and interpreting not a Constitution but an idea (for him an ideal) of good government to is achieved by compromise and by abandoning checks and balances in favor of efficiency.  (Breyer is, first and foremost, a deep believer in the administrative state where authority is delegated to experts who decide what shall be done.)
The President and Congress are to be deferred to because that makes it much easier for them to do their job.  The states likewise.  If you keep telling them they're violating the Constitution, then they have to do not what seems best and most effective or efficient but most constitutional, which may not be the same thing.
The job of the Court, he thinks, just like the jobs of Congress and the President, is to grease the tracks for efficient and temperate governance and occasionally to nudge the government if it starts to sway too far into inefficiency or intemperance.  That's not unprincipled, but it's not particularly tethered to a Constitutional scheme designed by people who didn't much trust government and thought it best to have it be inefficient.  Again, Breyer doesn't believe in a government of checks and balances, he believes in a government of cooperation and compromise.
All of that is at play in what he said about the death penalty at that talk in Philadelphia.  He doesn't like it, and maybe it's even unconstitutional, but it's not sufficiently at odds with good and efficient government to allow the court to shut it down.  Just nudge a bit here and there - but don't, either, let it get out of hand.
* * * * *
As I said, I think Breyer gets the right answer more often than Scalia or Thomas - neither of whom is nearly so tied to the Constitution as he believes himself and each of whom has staked out an interpretive approach based on hubris and a formulaic set of beliefs mocked by Alexander Pope in his Essay on Man.
Safe in the hand of one disposing Pow'r,
Or in the natal, or the mortal hour.
All Nature is but Art, unknown to thee;
All chance, direction, which thou canst not see
All discord, harmony not understood,
All partial evil, universal good:
And, spite of pride, in erring reason's spite,
One truth is clear, whatever is, is right.
But I'll take them on another day.

*Here's Stevens, from Five Chiefs: A Supreme Court Memoir explaining how he concluded that the death penalty is now unconstitutional - a conclusion he stated in Baze v. Rees.
To the extent that there is any justification for capital punishment today, it is the interest in retribution, making the defendant suffer as his victim had suffered. Retribution—whether based on real or imagined underlying crimes—was no doubt the primary motivation for the gruesome executions conducted by the English monarchs in the sixteenth and seventeenth centuries, for the scourge of lynchings in the South during the nineteenth and early twentieth centuries, and for sentences now being imposed on our most vicious killers. It is that interest that I believe best explains the survival of the death penalty in the United States after its abolition in most civilized countries. John Roberts’s opinion in Baze, to my surprise, convinced me that the Court had already rejected the premise that the death penalty serves a meaningful retributive purpose. His review of our earlier cases effectively demonstrated that the Eighth Amendment has been construed to prohibit needless suffering and significant risks of harm to the defendant. As a matter of constitutional law, what was once a gruesome event has been transformed into a procedure comparable to the administration of anesthesia in a hospital operating room. By requiring that an execution be relatively painless, we protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim. We have thus undermined the premise on which public approval of the retribution rationale is based. Reflection after reading the Roberts opinion led to my decision to concur in his result but also to write separately. Quoting from an earlier opinion by Justice White, I stated that the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”


  1. You criticize Breyer because his view is "not particularly tethered to a Constitutional scheme designed by people who didn't much trust government."

    But isn't it clear beyond doubt that the Constitution was also designed by people who did believe in the death penalty?

    Just 'cause you disagree with Breyer doesn't mean you have anything approaching a consistent view to advocate for yourself.

  2. Sure. There's no question that the framers as a group believed in capital punishment. And if every law were to be measured against what the framers thought good policy that would be a compelling argument for killing. (It would also be a compelling argument for depriving all but male landowners of the franchise, though I suppose you could allow female landowners to vote given the 19th Amendment.) But that's not a constitutional imperative. The framework of government is a constitutional imperative.

    Certainly, thinking that Breyer is wrong doesn't make me right. But then, I haven't really staked out an interpretive approach yet. Breyer's done it in 31 years of being a federal appellate judge and in a couple of books. Gimme time. I'm getting there.