Those who endorse Donald Trump often rationalize it by invoking fear. Were Hillary Clinton to appoint a justice to replace Antonin Scalia, they argue, some of our most precious individual liberties — such as the freedom of religion — would be imperiled. This argument resonates here in Austin. Many are worried that the Supreme Court decision that allowed the Ten Commandments monument to remain on state Capitol grounds would be reversed.
But one of the justices who voted in favor of allowing the monument to remain in the Capitol park was Justice Stephen Breyer. Nominated by Bill Clinton, he is misleadingly counted as among the five Democratic appointees who would vote to overturn Texas’s victory. In the absence of evidence to suggest that Breyer changed his mind, however, it is reasonable to assume that even if Hillary Clinton were to appoint Scalia’s replacement, Breyer would still be on the court to protect Texas’s Ten Commandments legacy.
In fact, Breyer’s willingness to cross ideological lines is a reason why it is disingenuous to argue that after Scalia’s death the Supreme Court tilted significantly to the left. While some sort of a leftward movement was unavoidable, given that Scalia was one of its more conservative members, the court — with Breyer spearheading the effort — adjusted by employing the doctrine of judicial restraint and issuing narrower decisions that more justices felt comfortable joining.
Judicial restraint is a theory about judicial decision-making, according to which judges should not intervene where elected officials had passed laws favored by the electorate. In addition, the tenants of judicial restraint posit that the court should avoid reaching Constitutional questions and overturning well-established judicial precedents. As Chief Justice John Roberts famously wrote when he sat on the D.C. Circuit bench, “if it is not necessary to decide more, it is necessary not to decide more.”
If judicial restraint were a measure of success, then the Supreme Court, in its post-Scalia remainder of the 2015-2016 term, succeeded. The court avoided overturning major precedents and reaching Constitutional questions. Instead, it tried to resolve cases on minimalist grounds. For example, in the United States v. Texas, the immigration case widely considered a defeat for the Obama Administration, the court did not raise, even at the oral arguments, the case’s Constitutional issue, which was whether President Obama violated the Take Care Clause. Similarly, in Evenwel v. Abbott, the case in which the Supreme Court unanimously agreed that drawing districts based on total population is constitutional, it did not answer whether other methods, such as drawing based on the population of eligible voters, was also permissible.
Because the court’s goal was to resolve cases on narrow grounds — as opposed to trying to establish far-reaching categorical rules — it was often able to build bipartisan coalitions and avoid remanding cases with disagreements among the different courts of appeals still intact.
Out of 62 cases decided after Scalia’s death, only four were affirmed by an equally-divided court, and only one of them—Hawkins v. Community Bank of Raymore—allowed a court-of-appeals split to remain in place.
While 29 opinions provoked dissent, five of them were by one justice (Thomas) and seven crossed ideological lines. Thus, only 17 opinions included ideologically-aligned dissents and only five of them had three dissenting justices.
Justices Breyer, Kagan, Kennedy, and Chief Justice Roberts dissented the least. Ten out of 17 times, the four of them managed to form a bipartisan coalition that shepherded the politically-divided eight-member court to a place where a majority of justices could achieve compromise. Sixteen out of 17 times at least three members of this coalition were present in the majority.
Breyer has played an instrumental role in building this coalition by utilizing the doctrine of judicial restraint. For example, the minimalist approach he advocated in the first Obamacare case, which upheld the individual mandate based on the power to tax, got adopted as a way to unanimously resolve Zubik v. Burwell — the religious-freedom and birth-control case. During a discussion on whether the healthcare law could survive if some of its parts were declared unconstitutional, Breyer suggested the parties “get together” and iron out their differences before proceeding with the case. Such an approach would have allowed the court to concentrate on the real areas of disagreement rather than worry about the issues that the parties themselves were better positioned to resolve.
At the time, the proposal was not taken seriously. But in Zubik, Breyer’s approach was used as a way to avoid a deadlock. The court unanimously remanded Zubik to the lower courts with instructions to allow the parties every opportunity to arrive at a solution rather than have one imposed by the judiciary.
Breyer also displayed a pragmatist streak — a close relative of judicial restraint — by casting his votes with the four conservatives in two controversial cases. In Utah v. Strieff, Breyer voted with them to hold that evidence found by police officers after unconstitutional stops can sometimes be admissible. In Gloucester County School Board v. G.G., Breyer cast a courtesy vote that denied a transgender student access to a boys’ bathroom until the case is fully resolved. By voting with the conservatives, Breyer — in hopes of reciprocity — signaled that he would sacrifice his liberal reputation to achieve workable compromises.
Also sacrificing his liberal credentials, Breyer expressed satisfaction with the work of the eight-member court. “If you believe the Supreme Court should decide all the major issues for the country, you’d like them all decided,” he remarked. “I happen not to believe that.”
It remains to be seen for how long this tilt toward judicial restraint and pragmatism will last. If those threatening the reversal of decisions guaranteeing individual liberties are serious about a judicially restrained court that will not interfere with precedents such as the Ten Commandments case, they should lobby for more judges like Breyer. Merrick Garland, put forward by President Obama after Scalia’s death, is one of those judges.
The problem, of course, is that it is only judicial activism when the other side does it. Thus, the critics are likely to oppose a nomination of someone like Garland and lobby in favor of an activist judge to their own liking.