Posted on March 31, 2022
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Following the resignation of Judge Stephen Breyer, President Biden elevated Appeals Judge Ketanji Brown Jackson to the Supreme Court.
The latter has just completed its hearing in the Senate, which has yet to decide on its fate by simple majority. If confirmed by the Senate, Judge Jackson will be one of eight members of the nation’s highest court that has the final say in all legal matters in the land.
This calls for an immediate question, which is whether we should fear a move to the left with this appointment.
To answer this question, it is necessary to a look back at 42 years passed by Judge Breyer to dispense justice.
After studying law at Harvard, Stanford and Oxford (England), Judge Breyer served as a law clerk to Judge Arthur Goldberg of the United States Supreme Court during the 1964 session.
He then joined the staff of the United States Attorney General as Special Assistant for Antitrust, where he worked from 1965 to 1967. After a brief stint in academia, he was appointed to the Court of federal call for first circuit (Northeastern States).
In 1994, President Bill Clinton elevated him to the Supreme Court, where he still sits pending the confirmation of his successor.
Over the years, as a lecturer at numerous universities, Justice Breyer has contributed numerous articles to legal journals.
The first remark that can be made about his academic work is that it deals almost exclusively with questions of administrative law and economic regulation. His time in the antitrust department in the 1960s left an indelible mark, and there is hardly any state intervention in the country’s economic affairs that he did not applaud. His 1984 book, Regulation and Its Reformdevotes entire chapters to how the state should set all kinds of prices in industries where it has given monopolies to certain operators…
His court decisions – if you can call them that – mirror his academic work.
As for his mainstream books – Making Our Democracy Work and Active Liberty: Interpreting Our Democratic Constitution – they are at odds with the philosophy of the Founding Fathers who were rightly afraid of the idea that the majority of the population could impose its will on the various minorities.
Rather than deciding whether Judge Breyer is more or less on the left than Judge Jackson, we should therefore ask ourselves how statist he is.
In fact, except in France, in the corridors of the ENA, it is difficult to find a man of the State who serves with more fidelity the organization which has nourished him for more than 50 years…
On all economic issues, especially when they have to decide the limits of the administrative state – that of circulars and forms – the judge has systematically agreed with the little gray men who populate the offices of Washington, DC.
Whatever the damage caused by the arbitrariness of public power, there is not much to complain about.
Or rather, to be quite honest with the readers of Counterpointswhen faced with the disasters of free-wheeling administrations, he blames it on a combination of public ignorance, irrationality of officials, and inconsistent actions of administrations.
Seriously, in his book Breaking the Vicious Circle (from 1994), to solve the problem he recommended the creation of a sort of super-administration of experts, whose task would be to regulate other regulators. Far from being consistent with himself, the author of Making Our Democracy Work thinks that this super-administration should enjoy great protection against political pressure, including that of majority public opinion… And Who watches the watchers ? Someone like him, of course!
To sum up, Judge Breyer is one of those enlightened Americans who, unlike the author of these lines, have understood that the happiness of a country depends on the appointment of a François Bayrou at the head of a High Commission to plan.
Even ifhe has participated to the deregulation of air transport – before becoming a judge! – he always had a grudge against the laissez-faire approach he berates the alleged deleterious effects.
When it comes to civil liberties, the jurists who hold the court chronicle of Reason point out:
“It is a mistake to assume that a younger, left-leaning judge would replicate Justice Breyer’s case law and voting pattern in all areas. In at least one area – criminal justice – [on] suspects that a new judge […] would be very different from Justice Breyer. Throughout his tenure on the Court, Justice Breyer was a particularly pro-government judge. It has meant support for government regulations, but it has also meant more sympathy for police and prosecutors than a typical leftist judge. Even if, [au fil du temps], Judge Breyer turned against the death penalty, his pragmatism also made him more open to government arguments that the rights of suspects and defendants must be weighed against practical considerations. When the Court divides along formalist-pragmatist lines on criminal procedure, Breyer generally sides with the [étatistes]. »
Good example is the one where the judge wrote the majority decision rejecting the federal appeals court’s finding of ninth circuit (west coast) that a Guantanamo detainee could have the right to mention the place where he was tortured by the CIA. Although the facts occurred almost two decades ago and although they have been declassified, Judge Breyer agreed with the CIA and prohibited the accused from accessing this information!
Even on less sensitive issues, Judge Breyer has written a series of court rulings that infringe upon the basic rights of Americans as set forth in the Constitution.
In particular, he did not show great respect for the Constitution’s Fourth Amendment which protects people from unreasonable searches and seizures by the government. Repeatedly, in all those famous cases Horrifying the Liberals, Justice Breyer ruled in favor of the police even in the event of a warrantless intervention “freedom-destroying cocktail”.
On the questions of freedom of expression, Breyer J. sometimes made expectations that the administrations were right even when the law was clearly against them.
Finally, on the burning issue of firearms, Judge Breyer interprets the second amendment as a collective right. It would only concern the law of the militias, which today are the National Guard. Thus, the Founding Fathers would have added this amendment so as not to forget to give the right to bear arms to the military…
Even when he is liberal, as on the question of abortion or that of the death penalty, he is still centralizing: instead of recognizing that these questions are essentially the responsibility of the 50 States, he twists the Constitution to make them federal subjects.
Conservative on societal issues and socialist on economic issues, Judge Breyer therefore approaches life in society according to the model of the most right-wing French enarques. He would be perfectly at home in an antiquated world, managed with great strokes of multi-layered Cerfa, and where the Constitution included the immutable details of the recipe for pancakes with strawberry jam.
As usual, President Biden made one of his usual and regrettable blunders before the nomination of Justice Ketanji Brown Jackson by declaring that he was going to choose a black woman: even if he had such an intention, he would simply must have said that he was going to appoint the most competent person to this position without specifying these irrelevant criteria which interest the left so much these days…
This is all the more true since the past of the current president is marred by other shocking racist statements, in particular as he said it in 1991 :
” And [le juge de la Cour suprême Clarence] Thomas had been white, he would never have been named and the only reason he is a judge is because he is black. »
If he had been tactful, he would have said nothing racist, would have just talked about judicial philosophy, and would have finally chosen Judge Ketanji Brown Jackson because she is definitely competent. Everyone would have been delighted and America would have avoided yet another discussion on the racial question.
In fact, Judge Ketanji Brown Jackson received her appellate commission in June 2021. From 2013 to 2021, she served as a federal district judge. Previously, she was a public defendant, that is to say a public defender.
Unlike Judge Breyer, she therefore defended defendants against the police and prosecutors. This is probably the biggest difference between the two characters.
For the rest, we don’t know much about his philosophy: his decisions have only been overturned 14% of the time on appeal, which is a lower rate than that of his colleagues. For the moment, it has therefore applied the law in a particularly cautious manner, in accordance with the canons of the profession.
Whenever a higher legal body found him wrong, the decisions were about obscure technical disagreements.
Indeed, on questions of civil liberties, it would seem that she is more to the left than Judge Breyer. Obviously, this means that it is therefore probably more liberal and less ready to give reason to all the numerous attacks on freedoms.
Even on the issue of guns, when Senator Chuck Grassley (of Iowa) asked her if she thought “the individual right to possess and bear arms is a fundamental right”the judge has answered what “the Supreme Court has established that the individual right to possess and bear arms is a fundamental right”.
Unlike its possible predecessor, it “believes that the Constitution is fixed in its meaning” like she explained it to Senator Ben Sasse (of Nebraska) during his Senate hearing. She does not “do not believe that there is a living Constitution” : its words have a meaning, which is that which would have been given to them in 1787, by its authors.
It must be admitted that after three days of debates, and apart from a few rare wrong notesshe emerged unscathed from her hearing by the Senate.
So, to come back to our question of whether we should fear a move to the left with this appointment, it is difficult to answer.
On the other hand, we could ask ourselves whether we should fear a move towards greater statism. From this perspective, it is likely that the United States will benefit from a slight retreat from the administrative state in all its most destructive ways.
The answer to the question rests on the idea that one has – rightly or wrongly – of the legal philosophies of the two judges. For liberals, who should measure things along an axis from freedom to constraint, it is probably easier to make up their minds than for all the insiders in politics who try to interpret life through a right-left dichotomy which we believe to be artificial.
In retrospect, when President Obama appointed Justices Elena Kagan and Sonia Maria Sotomayor to replace John Paul Stevens and David Souter, he did not fundamentally alter the political microcosm, nor change the right-left slider of American political life.
On the other hand, it is certain that, without ever thinking of the percentage of voters who vote libertarian from election to election, he definitively weakened the state by allowing judges Kagan and Sotomayor to render important and salutary decisions (J. D. B. v. North Carolina, United States v. Alvarez, Missouri v. McNeely, Navarette v. California) that would have been inconceivable in the era of their predecessors.