ONE CHEER FOR STEPHEN BREYER.

• Author: Root, Damon
• Position: LAW

WHEN PRESIDENT BILL Clinton tapped Stephen Breyer to fill a vacancy on the U.S. Supreme Court in 1994, he told the country Breyer would "strike the right balance between the need for discipline and order, being firm on law enforcement issues but really sticking in there for the Bill of Rights."

Breyer's impending retirement at the close of the Supreme Court's current term provides an opportunity to weigh Clinton's words against Breyer's record. Alas, the former president proved only half right. Breyer was frequently "firm" in his deference to the government. But that same deference often led Breyer to do the opposite of "sticking in there for the Bill of Rights," especially in major Fourth Amendment cases.

Take the 2014 case Navarette v. California. At issue was an anonymous and uncorroborated 911 phone call about an allegedly dangerous driver, which led the police to make a traffic stop that led to a drug bust. According to the 5-4 majority opinion by Justice Clarence Thomas, "the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated." Law enforcement won big, and Breyer signed on.

The deficiencies of that judgment were delineated in a forceful dissent by Justice Antonin Scalia. "The Court's opinion serves up a freedom-destroying cocktail," wrote Scalia, who was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That disturbing scenario, Scalia wrote, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures." Breyer apparently was untroubled by that Fourth Amendment-shredding scenario.

Navarette was not the first time that Scalia was more "liberal" than Breyer in a 5-4 Fourth Amendment case. One year earlier, inMaryland v. King, Breyer joined Justice Anthony Kennedy's controversial majority opinion allowing police to collect DNA swabs from arrestees without a warrant.

"Make no mistake about it," Scalia protested in his dissent, which, like his dissent in Navarette, was joined by Ginsburg, Sotomayor, and Kagan. "As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."...