on Feb 4, 2022
at 3:42 pm
Justice Stephen Breyer and his daughter and grandson visit President Barack Obama in the Oval Office in 2011. (White House photo by Pete Souza)
This article is part of a symposium on the jurisprudence of Justice Stephen Breyer.
Lincoln Caplan is a senior research scholar and a visiting lecturer in law at Yale Law School and also teaches in Yale’s English and political science departments. He is the author of six books about the law, including American Justice 2016: The Political Supreme Court and The Tenth Justice: The Solicitor General and the Rule of Law. He profiled Breyer for Harvard Magazine in 2017.
To Justice Stephen Breyer, one of the most important of his hundreds of Supreme Court opinions was his dissent in the case decided in 2007 known as Parents Involved. By 5-4, in Parents Involved in Community Schools v. Seattle School District No. 1, the court struck down as unconstitutional voluntarily adopted plans for assigning students to public schools in the racially diverse cities of Seattle, Washington, and Louisville, Kentucky. The court did so on the grounds that, in using race as a significant factor in making assignments, the plans’ goal was demographic balance rather than educational benefit from diversity, and that in preventing racial imbalance in schools, it was using race illegitimately.
Breyer singled out this dissent in 2013 at a Harvard Law School symposium about notable opinions of his, as he was about to start the 20th of his 28 Supreme Court terms. Professors at the event reflected on opinions about administrative law, free speech, patents, and other topics. No professor chose to talk about the Parents Involved dissent. When the court handed down the ruling, Linda Greenhouse noted then in The New York Times, Breyer said “that the court was taking a sharp and seriously mistaken turn. Speaking from the bench for more than 20 minutes, Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion.” In the lead Harvard Law Review essay about the 2007 term, the late scholar Lani Guinier used Breyer’s oral dissent as a prophetic example of “demosprudence” — “a crucial tool in the ongoing dialogue between constitutional law and constitutional culture,” to make that law “more democratically accountable.”
His 77-page opinion, which three other justices joined, was his longest as a justice. When Breyer joined the court in 1994, his record of 14 years on the U.S. Court of Appeals for the 1st Circuit, in Boston, the last four as chief judge, was that of a consensus-seeker who disliked picking fights and dissenting. On the conservative Rehnquist and Roberts courts, his moderate liberalism led him to become a dissenter in about one-third of his opinions. They are his most powerful.
In Parents Involved, the court rejected a generation-old rule permitting communities to use race as a factor in assigning young people to public schools to achieve more racial integration. Chief Justice John Roberts wrote the controlling opinion for himself and three other justices. To Roberts, Brown v. Board of Education, the totemic ruling about school desegregation, outlawed racial discrimination, whether benign or invidious. His opinion concluded with these well-known words: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” To Breyer, Brown outlawed racial subordination, the perpetuation of “a caste system rooted in the institutions of slavery and 80 years of legalized subordination” through relegation of black students to segregated schools.
Fiercely and pointedly, as the constitutional scholar Mark Tushnet explained in 2016, Roberts and Breyer were “contending over history.”
“Before Brown,” Roberts wrote, “schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons.”
The Roberts opinion, Breyer countered, engaged in “a cruel distortion of history,” by equating the plight of Black students forced to go to segregated schools with that of whites forced to go to integrated ones. Americans have similarly contended about the meanings of the Civil War, the Civil War Amendments to the Constitution, and other landmarks of law and history that frame the nation’s conflict about what racial equality and social inclusion require.
The chief justice has repeatedly and forcefully expressed his view that the Fourteenth Amendment calls for a colorblind society that employs no race-conscious policies. Roberts’ victory in Parents Involved, Tushnet judged, indicated that he “has won the contemporary political struggle” over the meaning of Brown and the Fourteenth Amendment. In 2007, that victory seemed decisive.
Today, however, Breyer’s reading of Brown seems more accurate and necessary. The legal historian Michael Klarman explained that, in Brown, the Supreme Court converted “an emerging national consensus into a constitutional command,” deeply influenced by “dramatic, political, economic, social, and ideological forces affecting race relations.” When the court decided Parents Involved, Roberts seemed to block out the contemporary reverberations of those mighty forces.
Breyer, on the other hand, recognized how they shaped the school-assignment plans in Seattle and Louisville. He did what many Americans are doing now, as the historian Drew Gilpin Faust described: They are taking a searching look at the nation’s past and “at the legacy of slavery and race that has made us anything but a colorblind society.”
As a justice, Breyer used the approach he set out in his 2005 book Active Liberty. Defining that as “participatory self-government,” he called the exercise of judicial authority a form of participation to “yield better law — law that helps a community of individuals democratically find practical solutions to contemporary problems,” as the districts did in assigning students to schools. Active Liberty offered, as the legal scholar Cass Sunstein observed in the Yale Law Journal, “a general approach” to Breyer’s job, “among the most impressive such efforts in the nation’s long history” by a justice.
Breyer has often been described as a pragmatist, more interested in the purposes of laws and the consequences of judicial decisions than in a method of interpretation like originalism or textualism. His approach does emphasize purposes, or the values a law seeks to enact, and consequences, or impacts. But language, history, and tradition — words and how they are structured; what the words meant when they became law; and how the law has applied the words — also matter to Breyer. The problem is that words and how they are structured, as textualists focus on, are sometimes opaque or ambiguous in their meaning. History and tradition, as originalists focus on, also sometimes leave a law’s meaning unclear.
Because the law sometimes does not constrain the court as textualists and originalists claim, Breyer argued in his 2010 book Making Our Democracy Work, the best way for justices to keep judicial review from turning into judicial supremacy is through judicial self-restraint. The legitimacy of the Supreme Court “in maintaining a workable constitutional system of government” (his italics) depends on the court’s modesty. That includes recognizing that, in the constitutional system, it is often best for the court to defer to policies shaped by democratically chosen decision-makers. The leaders of the school districts in Parents Involved were such decision-makers.
“Law is a social institution,” Breyer told me when I interviewed him for a profile about him in Harvard Magazine. “It exists to help people. If we think of it in that way and of the benefits it can bring people living together, it makes sense to ask what its purpose is and what part of this large institution — the courts? the legislature? the city council? — is best situated to resolve the problem.”
Parents Involved required the justices to take a stand on the role of the court in the constitutional system — as either a supreme arbiter or a sometimes-restrained participant in democratic governance. It required them to make a judgment about the salience of race in American life — as either a receding factor that can finally be left in the nation’s wake or a persistent, often graphic problem that American democracy and law must reckon with, so all Americans can realize the promise of equal and inclusive citizenship, including access to racially integrated schools.
“Justice Breyer’s good intentions, which I do not doubt,” Justice Clarence Thomas wrote in a footnote to his concurring opinion in the case, “have the shelf life of Justice Breyer’s tenure.” But Breyer’s Parents Involved dissent contains much more than good intentions. It preserves, for far beyond the justice’s tenure and for Supreme Courts of the future, his democratic vision of the Constitution.