Bernstein: Breyer's Progressive Streak

Writing as guest columnists in the Newark Star-Ledger, Professor David Bernstein and 2009 Mason Law alumnus Josh Blackman discuss Associate Justice Stephen Breyer's jurisprudence and views on individual liberty. The two cite Breyer's dissent in Brown v. Entertainment Merchants Association as evidence that he is tied to a Progressive Era view of freedom reminiscent of the opinions of Justice Oliver Wendell Holmes Jr.

New Deal liberals took over the Supreme Court in the late 1930s, say Bernstein and Blackman, rejecting the progressive vision embraced by many early 20th century progressive jurists, and they provided stronger protection for the guarantees of the Bill of Rights.

"Breyer's apparent ascendancy as doyen of the court's liberal wing threatens to roll back decades of these pro-liberty precedents, and to destroy the consensus on the court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities," they conclude.

Supreme Court Justice Stephen Breyer shows progressive streak, Newark Star-Ledger, July 12, 2011. By David E. Bernstein and Josh Blackman.

"Breyer's constitutional views were largely unknown when he joined the Supreme Court, but as a justice he has voted to adopt a narrow interpretation of many constitutionally protected liberties. While Breyer claims to believe in self-government, his opinions reveal contempt for its most basic aspect: the right of individuals to run their own lives free from excessive government interference.

"Breyer's cramped understanding of freedom of expression is especially troubling. Longstanding Supreme Court precedents, dating to the dawn of the modern constitutional law era in the late 1930s, require the justices to be especially protective of certain 'fundamental rights,' including and especially free speech.

"According to Breyer, however, most laws that infringe on freedom of expression should be upheld if the government has a rational reason for interfering with free speech, an extremely forgiving and deferential standard.

"Instead, Breyer argues that the First Amendment fully protects only laws that infringe on 'core' political speech. Even then, Breyer interprets the court's 'strict scrutiny' standard -- traditionally interpreted to create a very strong presumption that such laws are unconstitutional -- far more narrowly than do his colleagues."