Active Liberty: Interpreting Our Democratic Constitution.

• Author: Gewirtz, Paul
• Position: Book review

Now in his twelfth year as a Supreme Court Justice, Stephen Breyer has written an important book, Active Liberty, (1) which crystallizes a fundamental set of beliefs about the American Constitution and his role as a Justice. Taking Active Liberty as the entry point, this piece places Breyer's book in the wider context of his judicial opinions and activities as a Justice--and, as such, seeks to provide a preliminary sketch of Breyer's distinctive place in American law today.

1. VOICE

   Active Liberty emphasizes one theme that Breyer says runs through our primal document and that should help guide how we determine its meaning in a wide variety of cases: the idea of democratic participation. Breyer argues that our Constitution embodies not only a commitment to "negative liberty" (protecting citizens from government interference with their lives) but also a commitment to "active liberty"--creating and fostering a form of democratic government in which the people "share the government's authority" and actively "participat[e] in the creation of public policy." (2) Viewing the Constitution in this way, Breyer argues, will lead to better constitutional interpretations and a more "workable democratic government." (3)

   To understand Active Liberty--and the Justice who penned it--we must first understand what it is not. It would be a mistake to see this book--as some of its critics have--as offering a "theory" about the Constitution. Breyer explicitly disclaims that he is setting forth a "theory." (4) Although a longtime professor at Harvard Law School before becoming a judge on the United States Court of Appeals in 1980 (he was an administrative law scholar whose writings focused on the practice of economic regulation), Breyer is not by temperament a theorist--certainly not in the sense currently fashionable in the legal academic world. And his judicial opinions since becoming a judge have not seemed to be shaped by general theories.

   Instead, his book is best seen as an activity of induction. Here Breyer is open about what the book represents: At a certain point in his judicial career, after deciding an enormous number of individual cases and writing a large number of opinions that explain conclusions in terms of legal doctrine and practical policy, he has looked for a "pattern" in his own work. (5) The theme of democratic participation, then, is not only what he has found in his study of the framing of our Constitution and in American history, but also a thematic pattern that he sees in his own judicial decisions. This is something, one senses, that he had not seen until recently as such a significant and unifying thread in his own prior work. He is not providing a roadmap for deciding future cases. Breyer describes his ideas as "themes," an "approach," an "attitude," not a "theory," and emphasizes that they can "help" decide close cases, rather than dictate results without regard to other interpretative tools. (6)

   Nor is this book a comprehensive statement of Breyer's views of the law or a full portrait of Breyer the Justice. Certainly the book's substantive theme of democratic participation, however strongly Breyer emphasizes it, is only one of his substantive preoccupations as a constitutional judge--themes and values that include, one must add, a certain distrust of populist democracy and a faith in elite expertise. (7) The part of Active Liberty that may capture Breyer's behavior as a judge more fully is the book's other main theme, which is methodological: Judging is a pragmatic and purposeful activity in which interpretation and decision must always be attentive to the purposes of legal provisions, the multiplicity of factors involved in specific cases, and the practical consequences of judicial decisions, and should not focus exclusively on textual exegesis and uncovering original understandings.

   To understand the book and Justice Breyer more fully, the book is best read alongside Breyer's judicial decisions. The true virtuoso in Stephen Breyer is expressed through recurring decisions in specific cases, explained through unusually compact, complex, transparent, practical, and balanced explanations in hundreds of opinions. Breyer's decisions not only address a wider set of substantive themes than the book, but his decisions also capture the particularity of Breyer's approaches to concrete cases and specific legal issues. His opinions never rest on unitary principles, including "active liberty," but invariably draw on multiple sources of meaning. He is not a case-at-a-time judge, but he is always engaged in the detailed particularity of specific cases, and in many ways his distinctive excellence is that he sees that particularity so clearly and can hold in place and attempt to balance the many factors that he sees at stake at particular moments of decision. These are the qualities that lead some to view him at times as too subjective or too cautious; for me and many others, however, they are the qualities that make Breyer an exceptional Justice--a consummate pragmatic judge. His book is an important work of self-reflection, made especially valuable because it gives us a glimpse into the general thinking of a judge who lives each day in the fray, with responsibilities and preoccupations very different from a scholar's. But we should not privilege this book over the day-to-day work of Stephen Breyer the Justice, any more than we might privilege a poet's reflections on poetry over the poems themselves.

   The book is a manifesto of sorts, a sustained expression of his personal approach to constitutional interpretation, and a respectful criticism of the current Supreme Court for having "swung back too far" in the wrong direction by "too often underemphasizing or overlooking the contemporary importance of active liberty." (8) Moreover, Breyer's most interesting and important contributions as a Justice have largely been in separate opinions--expressions of a distinctive individual voice, not the views of a Court majority.

   Given this, we should recall how Breyer was perceived and described when President Clinton nominated him to the Court in 1994. He was perceived, correctly I think, as a consensus-builder. (9) He was described as a moderate-liberal Democrat: As a top staff member of the U.S. Senate's Judiciary Committee, he had worked very effectively across party lines to find common ground (indeed, this explained why his nomination to the U.S. Court of Appeals for the First Circuit was approved by the Republican-led Senate even after President Carter had lost the election to Ronald Reagan (10)). As a Court of Appeals judge, he had found grounds for decision that typically produced unanimous opinions on his court. At the time of his nomination to the Court, some perceived him as too much of a "technocrat"--holding against him his background in administrative law and regulatory policy, as if those fields were inconsistent with compassion--and some perceived him as insufficiently ardent about social causes. (11) But the dominant view was that he was a pragmatic moderately liberal judge, and a person who had a good chance of helping a fractured Supreme Court find consensus and common ground in decisions. (12)

   To a large extent, this prospect of consensus-building has proven illusory. Justice Breyer's colleagues on the Supreme Court, it has turned out, are not especially committed to finding consensus. They are strong individuals who have views that they wish to express. Most significantly, this is an era of conservative ascendancy. To the extent that there are blocs on the Court, Breyer is part of a minority bloc. At times he crosses over (more on this below), but on many of the most contested issues at the Court he is part of the dissenting group of more liberal Justices. Yet Breyer, by temperament, is not the dissenting type. He likes to solve problems, find areas of agreement, and cooperate with others. During an interview at the Brookings Institution, he recently suggested that in his third grade class students were graded based on their ability to get along with others--"participating and cooperating" was what he called it. (13) Breyer emphasized that these are good traits to develop among citizens in a democracy; but "participating and cooperating" is also his own style as a person, and undoubtedly his preferred style as a judge. (14) He found at least one colleague who substantially shared his temperament and also his instinct for moderation--Sandra Day O'Connor--and their colleagueship would itself be an interesting subject for future scholarly study. But because their political starting points were frequently different, and because her more centrist position on the Court allowed her a somewhat wider field for coalition building, Breyer and O'Connor never emerged as a consistent partnership on the Court.

   Although Breyer has never flagged in his optimism that consensus is possible in most cases, (15) he has not become a great consensus builder on the Court. Instead, he has emerged as an individual voice, and often in dissent or in concurring opinions. (16) He has certainly adjusted to his role, but it cannot have been how he expected it would turn out. His book, Active Liberty, reflects a continuation of this development of an individual voice and perspective, and provides an additional path for spreading the influence of his ideas.

2. IDEAS

   Breyer's commitment to active liberty has two different implications for his view of how constitutional cases should be decided. In different situations, it can lead either to judicial deference to the democratic process, or to judicial invalidation of legislation that limits democratic participation. We see various aspects of this two-sidedness both in the examples that Breyer discusses in Active Liberty and in his opinions as a Justice.

   First, Breyer's theme that "courts should take greater account of the Constitution's democratic nature" leads him to be a strong...