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Tuesday, November 08, 2011

Constitutional Pragmatism II

In my prior post, I discussed commonsense pragmatism and efficiency oriented pragmatism. Yet Justice Breyer is a democratic pragmatist. This is reflected in the title of his latest book, Making Our Democracy Work: A Judge's View. In an earlier book, he focused on the idea of "active liberty" meaning that the Court should facilitate participation and deliberation in the democratic process. Further, his latest book discusses difficult cases where the Supreme Court was dependent on cooperation from the democratic branches. Studies also show that Breyer defers to Congress more than other Justices.

Interestingly, the core of his approach is the kind of proportionality analysis (a sophisticated balancing of interests) used by many foreign courts. Thus, in Brown v. Entertainment Merchants Association (striking down the California law banning extremely violent video games), he dissented and wrote that, "I would evaluate the degree to which the statute injures speech-related interests, the nature of the potentially-justifying "compelling interests," the degree to which the statute furthers that interest, the nature and effectiveness of possible alternatives, and in light of this evaluation, whether, overall, the statute works speech related harm...out of proportion to the benefits that the statute seeks to provide." But it's easy to see how proportionality could be used in other cases to strike down legislation. Indeed, he voted against laws with significant popular support, such as tuition vouchers and the partial birth abortion ban. His proportionality approach, however, is pragmatic in that it seeks to focus the Court on the actual effects of a law rather than grand abstractions.

Posted by Mark kende on November 8, 2011 at 08:09 PM in Constitutional thoughts | Permalink


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Rick: Thanks for the good question. I think Breyer's dissent in Zelman addresses your assertion. The dissent is filled with question after question about the workability of the voucher program in light of Breyer's view that it will cause major social controversy and division. Whether one agrees or disagrees, it's a pragmatic tact. In addition, he signs on to the Souter dissent which seeks to pierce the veil of the Rehnquist opinion's neutrality argument. Souter points out that 96% of the funds go to religious schools, and that this doesn't seem neutral despite the parental choice involved. That use of data to critique a claim of formal neutrality is quite pragmatic in my view.

Posted by: Mark Kende | Nov 9, 2011 7:28:34 PM

Mark, why doesn't Breyer's vote in Zelman cut the legs out from under the "pragmatic, nonideological" characterization one often hears? It seems to me that his "pragmatism" reduces to "legislatures should be allowed to do what I like, but only to do what I like.". No?

Posted by: Rick Garnett | Nov 8, 2011 11:19:56 PM

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