During the quarter-century year career on the Supreme Court, Justice Stephen Breyer constantly cultivated two judicial virtues now increasingly absent from the federal bench. The first is a careful, empirical cast of mind, constantly alive to the lived experience of litigants, institutions, and the world. The second is a humility about the limits of his own knowledge. These led him as a profound respect for other, more democratic bodies such as Congress, federal agencies. and state legislatures. Under their sway, Breyer vindicated “Our Democratic Constitution” as finely as anyone else to grace the high court bench.
Unlike the approaches favored by other Justices, Breyer’s brand of well-tempered empiricism forced him to be candid about what informed his judgment. It avoided simplistic fallacies—peddled hard under the ‘originalist’ label—to the effect that constitutional law at the high court can avoid normative judgments: The text of the Constitution is too majestically general, and too capacious for it to be otherwise. By bringing to light the law’s real justifications, and amplifying the space for democratic choice, his work embodied real judicial restraint—and a real commitment to the founding American value of lived democratic choice.
Justice Breyer’s opinions are characterized by detailed consideration of the many factors that legitimately bite on a legal questions, coupled with close attention to factual detail. His dissent in the New York gun case last week, as well as the careful and modulated dissent from the wrecking-ball abortion decision, show as much. His opinions are often accompanied by voluminous appendices, listing in exhaustive detail the facts behind a specific point.
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