by TH AL LAW · Cited by 40 — Now in his twelfth year as a Supreme Court Justice, Stephen Breyer has written an important brookings/comm/events/2oo5lo17Breyer.pdf. 14.
24 pages

120 KB – 24 Pages

PAGE – 1 ============
TH AL LAW JORAPAUL GEWIRTZThe Pragmatic Passion of Stephen BreyerNow in his twelfth year as a Supreme Court Justice, Stephen Breyer haswritten an important book, Active Liberty,’ which crystallizes a fundamental setof beliefs about the American Constitution and his role as a Justice. TakingActive Liberty as the entry point, this piece places Breyer’s book in the widercontext of his judicial opinions and activities as a Justice -and, as such, seeks toprovide a preliminary sketch of Breyer’s distinctive place in American lawtoday.I. VOICEActive Liberty emphasizes one theme that Breyer says runs through ourprimal document and that should help guide how we determine its meaning ina wide variety of cases: the idea of democratic participation. Breyer argues thatour Constitution embodies not only a commitment to “negative liberty”(protecting citizens from government interference with their lives) but also acommitment to “active liberty” -creating and fostering a form of democraticgovernment in which the people “share the government’s authority” andactively “participat[e] in the creation of public policy.”2 Viewing theConstitution in this way, Breyer argues, will lead to better constitutionalinterpretations and a more “workable democratic government.3To understand Active Liberty -and the Justice who penned it -we mustfirst understand what it is not. It would be a mistake to see this book-as someof its critics have-as offering a “theory” about the Constitution. Breyerexplicitly disclaims that he is setting forth a “theory.”4 Although a longtime1. STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005).2. Id. at 33.3. Id. at 34.4. Id. at 7, 110.Imaged with the Permission of Yale Law JournalHeinOnline — 115 Yale L.J. 1675 2005-2006

PAGE – 2 ============
THE YALE LAW JOURNALprofessor at Harvard Law School before becoming a judge on the United StatesCourt of Appeals in 1980 (he was an administrative law scholar whose writingsfocused on the practice of economic regulation), Breyer is not by temperamenta theorist- certainly not in the sense currently fashionable in the legal academicworld. And his judicial opinions since becoming a judge have not seemed to beshaped by general theories.Instead, his book is best seen as an activity of induction. Here Breyer isopen about what the book represents: At a certain point in his judicial career,after deciding an enormous number of individual cases and writing a largenumber of opinions that explain conclusions in terms of legal doctrine andpractical policy, he has looked for a “pattern” in his own work.’ The theme ofdemocratic participation, then, is not only what he has found in his study ofthe framing of our Constitution and in American history, but also a thematicpattern that he sees in his own judicial decisions. This is something, onesenses, that he had not seen until recently as such a significant and unifyingthread in his own prior work. He is not providing a roadmap for decidingfuture cases. Breyer describes his ideas as “themes,” an “approach,” an”attitude,” not a “theory,” and emphasizes that they can “help” decide closecases, rather than dictate results without regard to other interpretative tools.6Nor is this book a comprehensive statement of Breyer’s views of the law ora full portrait of Breyer the Justice. Certainly the book’s substantive theme ofdemocratic participation, however strongly Breyer emphasizes it, is only one ofhis substantive preoccupations as a constitutional judge-themes and valuesthat include, one must add, a certain distrust of populist democracy and a faithin elite expertise.7 The part of Active Liberty that may capture Breyer’s behavioras a judge more fully is the book’s other main theme, which is methodological:Judging is a pragmatic and purposeful activity in which interpretation anddecision must always be attentive to the purposes of legal provisions, themultiplicity of factors involved in specific cases, and the practical consequencesof judicial decisions, and should not focus exclusively on textual exegesis anduncovering original understandings.5. Id. at 11O-11; Linda Greenhouse, Court Veteran Remembers a Scary Start, N.Y. TiMEs, Feb. 16,2006, at A31 (quoting Breyer as saying that “‘[w]riting the book, the doing of it, forced meto work through and find the coherence”‘ in his opinions).6. BREYER, supra note i, at 6, 7, 9, 1, 12, 18-19, 34, 50, 53, 56, 110-11.7. Active Liberty is particularly interesting to read alongside a book that Breyer wrote as a U.S.Court of Appeals judge shortly before his appointment to the Supreme Court, whichemphasizes the importance of administrative expertise as a way to resist populist pressuresto overregulate risk. STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TowARD EFFECTIVERISK REGULATION (1993); see also BREYER, supra note I, at 86, 102-03, 105 (recognizing sometension between democracy and administrative decisionmaking).1676 Imaged with the Permission of Yale Law Journal115:1675 20o6HeinOnline — 115 Yale L.J. 1676 2005-2006

PAGE – 3 ============
THE PRAGMATIC PASSION OF STEPHEN BREYERTo understand the book and Justice Breyer more fully, the book is best readalongside Breyer’s judicial decisions. The true virtuoso in Stephen Breyer isexpressed through recurring decisions in specific cases, explained throughunusually compact, complex, transparent, practical, and balanced explanationsin hundreds of opinions. Breyer’s decisions not only address a wider set ofsubstantive themes than the book, but his decisions also capture theparticularity of Breyer’s approaches to concrete cases and specific legal issues.His opinions never rest on unitary principles, including “active liberty,” butinvariably draw on multiple sources of meaning. He is not a case-at-a-timejudge, but he is always engaged in the detailed particularity of specific cases,and in many ways his distinctive excellence is that he sees that particularity soclearly and can hold in place and attempt to balance the many factors that hesees at stake at particular moments of decision. These are the qualities that leadsome to view him at times as too subjective or too cautious; for me and manyothers, however, they are the qualities that make Breyer an exceptionalJustice-a consummate pragmatic judge. His book is an important work ofself-reflection, made especially valuable because it gives us a glimpse into thegeneral thinking of a judge who lives each day in the fray, with responsibilitiesand preoccupations very different from a scholar’s. But we should not privilegethis book over the day-to-day work of Stephen Breyer the Justice, any morethan we might privilege a poet’s reflections on poetry over the poemsthemselves.The book is a manifesto of sorts, a sustained expression of his personalapproach to constitutional interpretation, and a respectful criticism of thecurrent Supreme Court for having “swung back too far” in the wrong directionby “too often underemphasizing or overlooking the contemporary importanceof active liberty.”8 Moreover, Breyer’s most interesting and importantcontributions as a Justice have largely been in separate opinions -expressionsof a distinctive individual voice, not the views of a Court majority.Given this, we should recall how Breyer was perceived and described whenPresident Clinton nominated him to the Court in 1994. He was perceived,correctly I think, as a consensus-builder.9 He was described as a moderate-liberal Democrat: As a top staff member of the U.S. Senate’s JudiciaryCommittee, he had worked very effectively across party lines to find common8. Id. at 11.9. Remarks Announcing the Nomination of Stephen G. Breyer To Be a Supreme CourtAssociate Justice and an Exchange With Reporters, 1 PUB. PAPERS 909 (May 13, 1994) (“Hehas proven that he can build an effective consensus and get people of diverse views to worktogether for justice’s sake.”); Paul Gewirtz, Op-Ed., Who Is Stephen Breyer?, HARTFORDCOURANT, July 24, 1994, at Di (highlighting Breyer’s “vaunted ability to build consensus.”).Imaged with the Permission of Yale Law Journal 1677HeinOnline — 115 Yale L.J. 1677 2005-2006

PAGE – 4 ============
THE YALE LAW JOURNALground (indeed, this explained why his nomination to the U.S. Court ofAppeals for the First Circuit was approved by the Republican-led Senate evenafter President Carter had lost the election to Ronald Reagan'”). As a Court ofAppeals judge, he had found grounds for decision that typically producedunanimous opinions on his court. At the time of his nomination to the Court,some perceived him as too much of a “technocrat” -holding against him hisbackground in administrative law and regulatory policy, as if those fields wereinconsistent with compassion-and some perceived him as insufficientlyardent about social causes.1 But the dominant view was that he was apragmatic moderately liberal judge, and a person who had a good chance ofhelping a fractured Supreme Court find consensus and common ground indecisions.2To a large extent, this prospect of consensus-building has proven illusory.Justice Breyer’s colleagues on the Supreme Court, it has turned out, are notespecially committed to finding consensus. They are strong individuals whohave views that they wish to express. Most significantly, this is an era ofconservative ascendancy. To the extent that there are blocs on the Court,Breyer is part of a minority bloc. At times he crosses over (more on this below),but on many of the most contested issues at the Court he is part of thedissenting group of more liberal Justices. Yet Breyer, by temperament, is notthe dissenting type. He likes to solve problems, find areas of agreement, andcooperate with others. During an interview at the Brookings Institution, herecently suggested that in his third grade class students were graded based ontheir ability to get along with others -“participating and cooperating” waswhat he called it.3 Breyer emphasized that these are good traits to developamong citizens in a democracy; but “participating and cooperating” is also hisown style as a person, and undoubtedly his preferred style as a judge.’4 Hefound at least one colleague who substantially shared his temperament and alsoio. John Copeland Nagle, A Twentieth Amendment Parable, 72 N.Y.U. L. REv. 470, 492-93(1997).ii. See, e.g., Nomination of Stephen G. Breyer To Be an Associate Justice of the Supreme Court of theUnited States: Hearing Before the S. Comm. on the Judiciary, lo3d Cong. 369 (1994) (statementof Sen. Howell Heflin, Member, S. Comm. on the Judiciary) (stating to Breyer that “theword ‘technocrat’ has been frequently used in descriptions about you” and “that technicalapproach has sometimes been criticized”).12. See, e.g., Gewirtz, supra note 9.13. Stephen Breyer, Remarks at the Brookings Institution 51 (Oct. 17, 2005), available at In this respect, he also emphasized “the importance for everyone of getting on with peopleyou disagree with.” Id. at 45. He also cites de Tocqueville as noting that the reason Americandemocracy works is because people here “learn how to work together.” Id. at 51-52.1678 Imaged with the Permission of Yale Law Journal115: 1675 2006HeinOnline — 115 Yale L.J. 1678 2005-2006

PAGE – 5 ============
THE PRAGMATIC PASSION OF STEPHEN BREYERhis instinct for moderation -Sandra Day O’Connor -and their colleagueshipwould itself be an interesting subject for future scholarly study. But becausetheir political starting points were frequently different, and because her morecentrist position on the Court allowed her a somewhat wider field for coalitionbuilding, Breyer and O’Connor never emerged as a consistent partnership onthe Court.Although Breyer has never flagged in his optimism that consensus ispossible in most cases,”5 he has not become a great consensus builder on theCourt. Instead, he has emerged as an individual voice, and often in dissent orin concurring opinions.’6 He has certainly adjusted to his role, but it cannothave been how he expected it would turn out. His book, Active Liberty, reflectsa continuation of this development of an individual voice and perspective, andprovides an additional path for spreading the influence of his ideas.II. IDEASBreyer’s commitment to active liberty has two different implications for hisview of how constitutional cases should be decided. In different situations, itcan lead either to judicial deference to the democratic process, or to judicialinvalidation of legislation that limits democratic participation. We see variousaspects of this two-sidedness both in the examples that Breyer discusses inActive Liberty and in his opinions as a It is revealing that in his book, as well as in public appearances, Breyer repeatedlyunderscores that the Justices reach broad agreement in most cases and also that in theCourt’s conference room he has “never heard one member of the Court say anythingdemeaning about any other member of the Court, not even as a joke.” Breyer, supra note 13,at 44; see also BREYER, supra note i, at 11o.16. This is not to slight the many cases in which Breyer speaks for the Court in majorityopinions. Many are of large significance. See e.g., Stenberg v. Carhart, 530 U.S. 914 (2000)(concerning abortion rights); Zadvydas v. Davis, 533 U.S. 678 (2001) (deportation ofaliens). Some reveal a remarkable snatching of partial victory from defeat. See, e.g., UnitedStates v. Booker, 543 U.S. 220 (2005) (Breyer, J., dissenting in part). And in many moreordinary cases, by Supreme Court standards, Breyer demonstrates an easy command of themultiple tools of legal interpretation to reach sensible results and bring majorities along. See,e.g., Small v. United States, 125 S. Ct. 1752 (2005) (construing a firearm statute). Moreover,we do not know the consensus-building role of Justices who silently join majority opinions,even though they may have been instrumental in producing the majority. Interestingly,according to the Harvard Law Review’s statistics for the 2004 Term, Justice Breyer was tiedwith Justice O’Connor as the Justice most frequently in the majority in cases in which theCourt was not unanimous, suggesting the possibility that he has been developing a largerconsensus-building role. See The Supreme Court 2004 Term -The Statistics, 119 HARv. L. REV.415, 423 tbl.I(D) (2005).Imaged with the Permission of Yale Law Journal 1679HeinOnline — 115 Yale L.J. 1679 2005-2006

PAGE – 6 ============
THE YALE LAW JOURNALFirst, Breyer’s theme that “courts should take greater account of theConstitution’s democratic nature” leads him to be a strong advocate andpractitioner of “judicial modesty”17-the courts’ deference to the decisions ofother more democratic branches of our government, branches that tend toinvolve fuller democratic participation by citizens. In a recent study of thedecisions of the Supreme Court between 1994 and 2005, Chad Golder and Ihave shown that Breyer has voted to overturn provisions of congressionalstatutes the least number of times of any of the Justices-a showing thatsurprised those who had associated “judicial activism” with the Court’s moreliberal wing, of which Breyer is usually a part. (Indeed, according to the study,”conservative” Justices voted to overturn congressional provisions the mostfrequently.)”8Second, in certain contexts, Breyer’s theme leads him to justify a moreactive role for courts in giving concrete life to the Constitution’s “democraticnature”-by striking down decisions of other branches of government thatlimit democratic participation. The early pages of Active Liberty suggest thatBreyer is more interested in the second, more activist implication of his themethan the first.’9 But in fact most of his major examples in the “Applications”section highlight his deference to the choices made by other institutions (forexample, deference to Congress on campaign finance legislation, deference toCongress on Commerce Clause and related federalism questions, deference tothe University of Michigan Law School on affirmative action).2 There arecertainly many situations in which Breyer has voted to strike down the acts ofother institutions as unconstitutional -for example, the death penalty forjuveniles21 and mentally retarded persons,22 school voucher programs thatinvolve religious schools,3 restrictions on abortion,’ laws punishinghomosexual conduct,”5 some antiterrorism detention measures,6 California’s17. BREYER, supra note i, at 5.18. Paul Gewirtz & Chad Golder, Op-Ed., So Who Are the Activists?, N.Y. TIMES, July 6, 2oo5, atA23.19. See BREYER, supra note i, at S-6.20. Id. at 49, 60-65, 79-84.21. See Roper v. Simmons, 543 U.S. 551 (2oos).22. See Atkins v. Virginia, 536 U.S. 304 (2002).23. See Zelman v. Simmons-Harris, 536 U.S. 639, 717-29 (2002) (Breyer, J., dissenting).24. See Stenberg v. Carhart, 530 U.S. 914 (2000) (Breyer, J.).as. See Lawrence v. Texas, 539 U.S. 558 (2003).26. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004).168o Imaged with the Permission of Yale Law Journal115: 1675 20o6HeinOnline — 115 Yale L.J. 1680 2005-2006

PAGE – 8 ============
THE YALE LAW JOURNALinappropriate to assess a restriction on speech using strict scrutiny. Rather, theright question is whether the laws “impose restrictions on speech that aredisproportionate when measured against their speech-related benefits.”32Questions can be raised about whether this recalibrated balance is appropriateand whether courts can be trusted to implement it-as I have discussedelsewhere33-but none of these undermine the importance of Breyer’s insightsand his challenge to the Court’s current approach to First Amendment issues.In a variety of separate opinions, Justice Breyer has used his new approachto the First Amendment to reach conclusions that differ from his colleagues.Most importantly, at a time when campaign finance laws were still under theheavy cloud created by Buckley v. Valeo,4 Breyer wrote a concurrence in Shrinkv. Missouri that showed greater tolerance for laws limiting campaigncontributions and spending so as to “democratize the influence that moneymay bring to bear upon the electoral process,” and “to “encourag[e] the publicparticipation and open discussion that the First Amendment itselfpresupposes.”3 Here, Breyer foreshadowed the Court’s later decision-if notthe precise reasoning- in McConnell v. FEC,36 upholding the main provisionsof the “McCain-Feingold” federal campaign law of 2O0277Active Liberty gives particular attention to the issue of campaign finance,and also to Breyer’s view that courts should distinguish political speech fromcommercial speech and allow greater regulation of the latter. Breyer has usedhis approach to resolve cases differently from the Court majority in a variety ofother contexts as well, which show more fully the far-reaching implications ofhis distinctive ideas. For example, he would allow Congress greater leeway torequire opening cable TV to more diverse voices in order to promote thedemocratic objective of “‘assuring that the public has access to a multiplicity ofinformation sources,”‘ even though the speech interests of the cable owners aresomewhat restricted.”s He has indicated a greater willingness to upholdlegislation that restricts the media in order to promote privacy, in part becauseprotecting privacy of communications itself encourages people to speak more32. BREYER, supra note i, at 49.33. Paul Gewirtz, Privacy and Speech, 2001 SUP. CT. REV. 139, 193-98.34. 424 U.S. 1 (1976).35. 528 U.S. at 401 (2000) (Breyer, J., concurring) (internal quotation marks omitted).36. 540 U.S. 93 (2003).37. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (codified inscattered sections of 2 and 47 U.S.C.).38. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 18o, 227 (1997) (Breyer, J., concurring in part)(quoting Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 663 (1994)).1682 Imaged with the Permission of Yale Law Journal115:1675 20o6HeinOnline — 115 Yale L.J. 1682 2005-2006

PAGE – 9 ============
THE PRAGMATIC PASSION OF STEPHEN BREYERfreely and thus promotes a more vibrant system of free expression.9 JusticeBreyer has also been more receptive than the Court majority to upholdingrestrictions on speech when there is an important competing value that is notitself a speech value. For example, he wrote a dissenting opinion stating that hewould uphold a restriction on the programming leeway of cable operatorswhen the value on the other side was protecting children from indecentprogramming.40A second area where Breyer has made major contributions as a Justice isfederalism. Limiting national powers in federalism cases was one of thehallmarks of the Rehnquist Court, and Breyer has been a leading dissenter inthis area and he gives it distinctive attention in his book.41 In cases such asUnited States v. Lopez, in which the Court has struck down congressionalenactments as exceeding Congress’s Commerce Clause powers, Breyer hasemphasized the importance of deferring to Congress because of its plausibleconclusions and comparative advantage in assessing social facts (the empiricaldetail of his dissent shows him writing in the tradition of Justice Brandeis42),and because “the public has participated in the legislative process at thenational level” (invoking the active liberty theme).” His book gives somewhatgreater attention to federalism decisions striking down congressionallegislation because it “commandeers” state officials44 or violates the Eleventh39. See BREYER, supra note 1, at 71-73 (discussing Bartnicki v. Vopper, 532 U.S. 514 (2001)).40. United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 835-47 (2000) (Breyer, J.,dissenting). That said, there are also situations involving what he considers core politicalspeech when Breyer might impose stricter limitations on speech regulation than hiscolleagues. See Nike, Inc. v. Kasky, 539 U.S. 654, 665-86 (2003) (Breyer, J., dissenting fromthe dismissal of the writ of certiorari as improvidently granted).41. BREYER, supra note 1, at 56-65.42. For Breyer’s interesting and perhaps self-reflective discussion of Justice Brandeis, seeStephen Breyer, Justice Brandeis as Legal Seer, Brandeis Lecture at the University ofLouisville School of Law (Feb. 16, 2004), available at 514 U.S. 549 (1995); see also United States v. Morrison, 529 U.S. 598 (2000); BREYER, supranote i, at 62. The majority in these cases accuses Justice Breyer of abdicating any judicialrole in putting limits on Congress’ Commerce Clause powers and relying exclusively on thepolitical safeguards of federalism. See Lopez, 514 U.S. at 565-68. Breyer’s response is that”two centuries of scientific, technological, commercial and environmental change, takentogether, mean that virtually every kind of activity, no matter how local, genuinely can affectcommerce . Since judges cannot change the world, Congress, not the courts, mustremain primarily responsible for striking the appropriate state/federal balance.” Morrison,529 U.S. at 660 (Breyer, J., dissenting).44. Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144(1992).Imaged with the Permission of Yale Law Journal 1AR2HeinOnline — 115 Yale L.J. 1683 2005-2006

PAGE – 10 ============
THE YALE LAW JOURNALAmendment by imposing damage liabilities on states4S-and here Breyersounds an interesting if not completely convincing variant on his active libertyidea. He criticizes these decisions largely on the ground that they will decreaseactive liberty at the local level, reduce the role of local governance, and produceless flexible and more national forms of regulation. These decisions seem easierto criticize on different grounds -both on originalist grounds and on theground that Breyer emphasizes in his dissents in the Commerce Clause cases:that Congress is the preferred institution for deciding where the federal/statebalance lies in these instances. Moreover, Breyer’s arguments here rest in partupon predicted consequences of striking down the laws in question thatsubsequent experience may not have borne out. But Breyer’s arguments in hisdissents and book are original and important, and also have the advantage ofmoving beyond the common national sovereignty critique of the RehnquistCourt’s federalism decisions to suggest that the Court majority wasundermining its own professed commitment to localism.Among the book’s other applications of Breyer’s active liberty theme, onestands out because it is the only specific area of law that Breyer discusses thathe had not previously addressed in his judicial opinions, and it is a major one:affirmative action. Justice Breyer joined Justice O’Connor’s majority opinion inGrutter v. Bollinger,46 the landmark opinion upholding the use of affirmativeaction in the educational context. But until this book, Breyer had notpreviously explained his own views on the subject. The Madison Lecture in2001, in which Breyer first developed the democratic participation theme,contains only the briefest mention of affirmative action in the specializedcontext of race-conscious districting.47 Given that Grutter was decided after theMadison Lecture, it is reasonable to think that the general ideas in the MadisonLecture helped Breyer to see deeper links between his theme of democraticparticipation and the affirmative action issue; that Grutter gave Breyer theopportunity to think through and apply his new understandings in an actualcase; and that the section on affirmative action in Active Liberty allowed him topresent his ideas in his own voice. Thus, to a student of Breyer the Justice, thebook’s discussion of affirmative action contains particularly interesting news -45. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002); Bd. of Tr. v. Garrett, 531U.S. 356 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Fla. PrepaidPostsecondary Educ. Expense Bd. v. Coll. Say. Bank, 527 U.S. 627 (1999); Seminole Tribe ofFla. v. Florida, 517 U.S. 44 (1996).46. 539 U.S. 306 (2003).47. Stephen Breyer, Our Democratic Constitution, The Fall 2001 James Madison Lecture atNew York University Law School (Oct. 22, 2OO1), available athttp://ww.supremecourtus.govpublicinfo/speeches/spl 1o-22-o1. html./,Q, Imaged with the Permission of Yale Law Journal115:1675 2006HeinOnline — 115 Yale L.J. 1684 2005-2006

PAGE – 11 ============
THE PRAGMATIC PASSION OF STEPHEN BREYERand it is important news, because Justice O’Connor’s departure from the Courthas made affirmative action one of the most important issues in play on thenew Court.We do not know what role Justice Breyer played in helping to developJustice O’Connor’s majority opinion in Grutter,48 but the passages in theopinion that Breyer emphasizes in Active Liberty certainly echo his own ideasabout democratic participation. For Breyer, the justification for affirmativeaction in the context of higher education does not rest fundamentally on eitherthe idea that it is a remedy to overcome the effects of past or presentdiscrimination or the idea that, under our First Amendment, universitiesshould receive distinctive deference in making educational choices. Nor does heemphasize the contributions that a diverse student body makes to education inthe university setting itself-the rationale in Justice Powell’s famous Bakkeopinion,49 the central rationale offered by the University of Michigan itself inGrutter, and a significant part of Justice O’Connor’s opinion. Rather, in ActiveLiberty Breyer justifies affirmative action as “necessary to maintain a well-functioning participatory democracy.””0 He reads Justice O’Connor’s opinionas ultimately resting on this active liberty and democratic participation theme,and quotes the following passage in which, he says, she drew her various otherarguments together:”[N]owhere is the importance of openness more acute than in thecontext of higher education. Effective participation by members of allracial and ethnic groups in the civic life of our Nation is essential if thedream of one Nation, indivisible, is to be realized. [Indeed,] thepath to leadership [must] be visibly open to talented and qualifiedindividuals of every race and ethnicity. All members of ourheterogeneous society must have confidence in the openness and48. We do know that they were the only two Justices who voted to uphold the affirmative actionprogram used by the University of Michigan’s Law School in Grutter but also voted to strikedown the affirmative action program used by the University of Michigan’s undergraduatecollege challenged in the companion case of Gratz v. Bollinger, 539 U.S. 244 (2003). Becausetheir two votes determined the outcomes in these exceptionally important cases, it isplausible to think that they discussed the cases. Breyer wrote only a brief separate opinion inthe cases, stating his votes and adding that even though he disagreed with the dissenters inGratz, he agreed with them that “government decisionmakers may properly distinguishbetween policies of inclusion and exclusion.” id. at 282 (Breyer, J., concurring).49. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).5o. BREYER, supra note i, at 82.Imaged with the Permission of Yale Law Journal 1685HeinOnline — 115 Yale L.J. 1685 2005-2006

120 KB – 24 Pages