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.