An elastic amendment: Justice Stephen G. Breyer's fluid conceptions of freedom of speech.

Author:Pomerance, Benjamin
Position:III. Connecting the Dots: Discerning Trends and Patterns Within Justice Breyer's Freedom of Speech Jurisprudence through IV. Final Thoughts, with footnotes, p. 474-507

    The preceding section reviewed some of the most challenging, controversial, and divisive freedom of speech disputes to come before the Court during Justice Breyer's tenure on the bench. While it is impossible to gain a perfect picture of any jurist's jurisprudence within twenty-seven cases, the decisions examined here provide at least a representative sampling of Breyer's voting and writing within this area of the law. This article now moves to a discussion of Breyer's noticeable trends, patterns, and inclinations within these cases, and an evaluation of the significance of these tendencies in the Court's freedom of speech picture as a whole.

    1. Overall Record

      In the cases examined here, Breyer voted fourteen times in favor of upholding the government's stated interests in restricting speech. (629) He voted twelve times in favor of upholding the speech at issue over the government's asserted interests in stopping that speech. (630) Lastly, he voted once to not address the speech issue at all, but rather to decide the case on grounds that did not require a judgment on the speech interests versus regulatory interests debate. (631)

      Of his fourteen votes in which Breyer determined that the regulatory interests outweighed the speech interests in the case at hand, seven of those votes sided with the dissenters in that decision. (632) Four of those votes were concurring opinions. (633) Only three of those votes were with the majority or controlling plurality holding in the case. (634)

      Of his twelve votes upholding the speech interest over the purported regulatory interests, four were dissents. (635) Four were concurring opinions, (636) and four were with the majority or controlling plurality's opinion in the case. (637)

      For a justice whom some commentators deem to be clearly "liberal" and whom other commentators deem to be clearly "conservative," (638) this is a surprisingly even voting distribution as to the results in cases where freedom of speech is at issue. This demonstrates that Breyer is no absolutist when it comes to evaluating freedom of speech matters. Certain Supreme Court justices, such as Hugo Black and William O. Douglas, routinely stated that the first words of the First Amendment--"Congress shall make no law"--indeed restricted Congress from passing legislation limiting the freedoms guaranteed within this amendment, including the freedom of speech, in most circumstances. (639) Some scholars observe a similar trend toward absolutism regarding freedom of speech within the present-day Roberts Court. (640) Yet Breyer, based on this sampling, does not fall into this category, although the fact that half of his "pro-restriction" votes studied here were dissents indicates that some of his fellow justices do indeed take a far more absolutist stance regarding protecting the freedoms of speech and expression. (641)

      On the other hand, Breyer frequently found situations in which, in his estimation, individual liberties outweighed the government's interests in restricting speech. Therefore, a more nuanced discussion of when Breyer determined that freedom of speech rights outweighed governmental interests is necessary to fully understand this justice's jurisprudence.

    2. An Outspoken Voice on Free Speech

      Breyer authored a signed opinion in twenty-two of the twenty-seven cases studied in this article. (642) Eleven of these signed opinions were dissents. (643) Eight were concurring opinions. (644) Only three represented the majority or controlling plurality opinion of the Court. (645)

      From these numbers, one can reasonably infer that freedom of speech is a topic that Breyer finds particularly important. Assuming that a justice will generally author a signed opinion--particularly a dissent or a concurring opinion--only on those issues about which he or she feels particularly fervent, the fact that Breyer wrote signed opinions in all but five of these twenty-seven cases demonstrates that this is an area in which he holds especially strong views. (646) Breyer's decision to devote his own time and resources, and his staffs time and resources, to "go public" in his disagreements with the majority holding and develop dissents or concurring opinions in nineteen of these twenty-seven cases underscores his particular interest in this field of the law. (647)

      One can also glean from these statistics an inference regarding Breyer's position among his brethren on the Court. Given that half of Breyer's signed opinions were dissents, one can reasonably conclude that his particular inclinations about freedom of speech often do not echo the viewpoints of his fellow justices. (648) The fact that Breyer wrote the majority holding in only three of the cases studied within this article seems to emphasize this point. (649) Even when Breyer agreed with the Court's ultimate conclusion in a decision, regardless of whether the outcome favored the individual speech interest or the asserted governmental interest, he was more likely to write his own concurring opinion than to join the majority's holding. (650) In fact, Breyer wrote some dissents or concurring opinions in which no other justices or only one other justice joined his rationale in a surprisingly significant number of decisions studied here. (651)

      As with all of the deductions drawn in this article, one cannot assume that a twenty-seven case sample size provides infallible answers. Nevertheless, based on the cases studied here, one can reasonably speculate that Breyer commonly finds himself at odds with the Court's other justices in freedom of speech disputes. Additionally, the frequency of his dissents and concurring opinions in these cases suggest that Breyer has not persuaded a majority of his judicial colleagues to adopt his viewpoints on freedom of speech, despite his twenty-one-year tenure on the Court. This neither vindicates nor condemns Breyer's opinions on these issues, as it will take many years before the jury of history can truly render judgments about the effects of Breyer's ideas in this area. For now, however, one can safely conclude that throughout his time on the Supreme Court's bench, Breyer often stood on an island when the Court decided freedom of speech cases, at times even staking out a position separate from any other jurist on the Court.

    3. Amid The Brethren: A Snapshot of Breyer's Freedom of Speech Voting Among His Supreme Court Colleagues

      Only four justices other than Breyer rendered decisions in each of the twenty-seven cases studied here: Scalia, Thomas, Ginsburg, and Kennedy. (652) Of these four jurists, Ginsburg echoed Breyer's basic positions with the greatest frequency, voting for the same result as Breyer seventeen times. (653) Kennedy, the justice typically considered the Court's "swing" vote, joined Breyer regarding the result in the case thirteen times. (654) Scalia and Thomas each voted with Breyer regarding the case's ultimate outcome nine times. (655)

      Stevens sat on the bench for eighteen of the cases examined in this article, and voted for the same outcome as Breyer in nine of those decisions. (656) O'Connor heard twelve of these cases, and voted for the same result as Breyer eight times. (657) Rehnquist also heard twelve of these cases, voting for the same outcome as Breyer seven times, (658) while Roberts cast a vote in seventeen of these decisions and voted with Breyer as to the ultimate result eight times. (659) Souter and Breyer decided sixteen of these disputes together, with Souter joining Breyer regarding the outcome on seven occasions. (660) Alito and Breyer also heard sixteen of these cases together, with Alito casting his vote for the same outcome as Breyer in three decisions. (661) Sotomayor and Breyer called for the same outcome in ten of the twelve cases studied here for which they were both on the Court. (662) Kagan cast a vote in ten of these cases, and agreed with Breyer regarding the result seven times. (663)

      Evaluating these numbers, a couple of trends stand out. First, on the extreme poles, the justices who agreed with Breyer regarding the results in these cases most frequently, in terms of percentages, are Ginsburg, Sotomayor, Kagan, and O'Connor. (664) Alito disagreed with Breyer more often than any other justice, followed by Scalia and Thomas. (665) These statistics appear to validate commentators' claims about Breyer typically voting with the "liberals" of the Court; (666) Ginsburg, Sotomayor, and Kagan are broadly considered part of the Court's "liberal" wing, while Scalia, Thomas, and Alito are generally recognized as some of the Court's most "conservative" justices. (667)

      A deeper look, however, reveals some disruptions to assertions of Breyer's "liberal" tendencies. Of the justices who decided at least sixteen of the cases studied here with Breyer, only Ginsburg voted for the same result as Breyer more than (50) percent of the time. (668) Put another way, Breyer was at odds at least half the time not only with Scalia, Thomas, Alito, and Roberts, but also with the considerably more liberal Stevens and Souter. (669) On the other hand, in the twelve cases examined here in which Rehnquist and Breyer were on the bench at the same time, Breyer and the famously conservative Chief Justice reached the same ultimate outcome in (58) percent of these disputes. (670)

      Muddying the waters further are several cases in which Breyer voted with a dominantly conservative bloc. Breyer wrote the opinion for a mostly conservative majority that upheld a prison system's denial of newspapers, magazines, and photographs to inmates placed in a high-risk area of the correctional facility in Beard u. Banks. (671) He wrote the majority opinion for a group that included Roberts, Scalia, Thomas, and Alito--and against a bloc of Ginsburg, Stevens, and Souter--in Randall v. Sorrell, holding that Vermont's campaign contribution...

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