Oliver Wendell Breyer

(David Bernstein)

My former student Josh Blackman and I published an op-ed in the Newark Star-Ledger today. As usual, the editors changed the title and also shortened the piece. Josh has posted the original version over at Concurring Opinions.

Here's an excerpt:

Contrary to American tradition going back to the Declaration of Independence, Justice Breyer believes not in liberty against government overreaching, but in what he calls "Active Liberty"–the right of democratic majorities, guided by elite experts, to govern as they see fit.....

Breyer's jurisprudence harkens back not to great liberal Justices of the mid-to-late twentieth century, like Earl Warren and William Brennan–who, whatever their flaws, had a deep and abiding belief that civil liberties must be protected from government encroachment–but to an earlier generation of judges associated with the Progressive movement, such as Justice Oliver Wendell Holmes, Jr. and Learned Hand.

Like Breyer, many early twentieth century Progressive jurists had a soft spot for protecting political speech, but they otherwise rarely met a statute they thought exceeded constitutional boundaries. These Progressives advocated deference to the government for the same reasons Breyer articulates: reverence for experts, belief in majority rule, and the need to protect society from itself.

As a result, Progressive judges approved segregation laws, laws banning private schools, laws limiting women's ability to participate equally in the workplace, and more. Most infamously, Justice Holmes vigorously approved of forced sterilization of the allegedly mentally infirm, relying on the public interest as articulated by contemporary experts. "Three generations of imbeciles are enough," he wrote.

When New Deal liberals took over the Supreme Court in the late 1930s, however, they rejected the earlier Progressive vision and proceeded to provide strong protection for the rights listed in the Bill of Rights.

Breyer's apparent ascendance 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.