Some other justices define themselves by their focus on the text or original meaning of the Constitution or the laws passed by Congress. And while Breyer has always carefully considered the text and history of the laws he’s interpreting, he has also always considered carefully the real-world context against which the Court was acting and what the consequences of the Court’s decisions would be.
This concern with the facts on the ground was evident in the margin notes and questions that I’d see in his heavily marked-up copies of the briefs. It was evident in the many conversations my co-clerks and I would have with him about how he was going to vote in the cases the court was considering. And it was evident in the meticulous, comprehensive research that went into every opinion he wrote.
In District of Columbia v. Heller, for example, the court was considering the constitutionality of Washington, D.C.’s ban on handguns. The court’s conservative majority concluded that the handgun ban violated the Second Amendment. In a dissent joined by the court’s other relatively liberal justices, Breyer explained why the District’s law should stand.
After showing that colonial history offered important examples of similar gun regulations, he provided an extraordinarily detailed, empirical analysis of the problem of handgun violence, with a particular focus on the impact such firearms can have on people who live in large cities. Based in part on that evidence, he concluded that the District’s regulation, which focused on the presence of handguns in high-crime urban areas, represented a permissible legislative response to a serious, indeed life-threatening, problem. As he put it, “a legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime.”
Likewise, in multiple opinions striking down unconstitutional restrictions on the right to access abortion, Breyer’s opinions have reflected not only his commitment to precedent, but also his profound concern with the real-world consequences of the court’s decisions.
In a case called Whole Woman’s Health v. Hellerstedt¸ the Supreme Court struck down provisions of a Texas law that required physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic and demanded that abortion clinics meet the standards for standalone surgical centers. Breyer’s opinion devoted pages to recounting the district court’s detailed factual findings about the devastating impact the law would have on abortion access in the state, including that the two requirements would “‘erect a particularly high barrier for poor, rural, or disadvantaged women.’”
Four years later, he did the same thing in a case called June Medical Services v. Russo that involved a provision of Louisiana law that imposed the same admitting privileges requirement as the Texas law. Determined to make clear the real-world effect of the law, he even included in the opinion maps showing the “[p]rojected [d]istribution” of abortion clinics in the state if the law were to be enforced.
And in a case called Parents Involved in Community Schools v. Seattle, a plurality of the court held that two local school districts violated the Equal Protection Clause when they adopted race-conscious efforts to integrate their schools. Breyer disagreed.
In his dissent, joined by the court’s other relatively liberal justices, Breyer explained that the principle that governments “may voluntarily adopt race-conscious measures to improve conditions of race … is rooted in the history of the Equal Protection Clause.” And to show why those school districts’ decisions to adopt these programs passed constitutional muster, he offered an exceptionally detailed account of the school districts’ past efforts to integrate their schools. He also explained why this context was important. As he put it, “real-world efforts to substitute racially diverse for racially segregated schools (however caused) are complex.” Life is complex, and he believed that complexity should have played a role in the Court’s decisionmaking.
This deep concern for the consequences of the Supreme Court’s decisions — and this meticulous research to understand what those consequences would be — is evident in so many of his opinions. And that is because Breyer, ever the pragmatist, believes deeply that our system of government and our Constitution were designed to work for people, and courts are critical to that.
Breyer believes that if the promise of a government that works for the people is to be a reality, judges must consider the real-world context of their cases; they must dig deep into the facts and the evidence; and they must think about the consequences of their decisions.
As much as his opinions in individual cases, these broader views about the way judges should judge will be a vital part of Breyer’s legacy.