Back in November of 2022, I had the privilege and pleasure of participating in a conference, hosted by the First Amendment Law Review, on the “First Amendment Jurisprudence of Justice Breyer.” I am grateful to my friend and fellow presenter, Mary-Rose Papandrea, for the invitation. The panel discussion of which I was a part was about “Justice Breyer and the Religion Clauses,” and I enjoyed talking with, and learning from, Micah Schwartzman, William Marshall, and Russell Robinson. The student editors did a particularly great job of organizing and running the event and—even for this Duke Blue Devils fan—a visit to Chapel Hill is always nice. My contribution to the Law Review is called “Justice Breyer and the Establishment Clause: Notes on ‘Appeasement’, ‘Legal Judgment’, and Divisiveness'”; I appreciate the opportunity to share the paper’s main points with The Volokh Conspiracy.
Stephen G. Breyer served as an Associate Justice of the Supreme Court of the United States for nearly three decades. He was known for, among many other things, his courtesy and civility, his creative hypotheticals and free-form questioning during oral arguments, his road-show debates with the late Antonin Scalia about the relevance to constitutional interpretation of foreign jurisdictions’ practices and policies, and his earnest expressions of concern about the Court’s role and reputation. He wrote hundreds of judicial opinions, including many in cases involving the First Amendment. And yet, during his long career and notwithstanding his wide-ranging interests, he never authored a majority opinion resolving a dispute about the meaning of that Amendment’s Establishment Clause. (I explain in the paper why his important concurring opinion in the 2005 Ten Commandments cases doesn’t count.)
Still, I propose that the justice’s writings and record—in judicial opinions and elsewhere—regarding the no-establishment rule are distinctive, in at least three ways. First, there is the fact that he did not vote uniformly with his more “strict separationist” colleagues—including, say, Justices John Paul Stevens and Justice Ruth Bader Ginsburg—in divided Establishment Clause cases. In my contribution to the symposium, I disagree with an interpretation of his departures, developed primarily by Nelson Tebbe and Micah Schwartzman, that chalks them up to a “strategy of judicial appeasement.”
Next, Justice Breyer regularly rejected the argument that cases involving church-state relations, or religious expression and symbols in public life and spaces, could or should be resolved by applying a particular “test.” He was generally unmoved by the lure of any grand unified theories about the Establishment Clause. Instead, his approach was consciously particularistic and case-by-case. He saw church-state controversies as highly and inevitably fact-bound, solvable only through a judicial-balancing exercise akin to the proportionality review that is practiced in some other jurisdictions. In his view, “reasoned judgment in light of purposes,” and not the workings of “any set of formulaic tests,” produces the all-things-considered optimal outcomes.
Finally, more often than any other justice in the Court’s history, he identified the Clause’s primary purpose as the avoidance of “political divisiveness along religious lines” and he was near-evangelical in his advocacy that law-and-religion disputes should be decided in the way most likely to promote this purpose. In my view, his call for judicial management of strife, and his view that judges charged with interpreting and applying the First Amendment are authorized to invalidate those actions of political actors that are determined or predicted to have excessive potential for conflict-creation, is Justice Breyer’s signature Establishment Clause contribution. It animated his final Religion Clauses opinion, a 2022 dissent in Carson v. Makin.
I believe, though, that this view is mistaken and that this particular contribution is regrettable. (I argued as much, 17 years ago, in an overlong and excessively annotated article that, it appears, did not convince the justice!) “That concerns about ‘political division along religious lines’ are real and reasonable,” I wrote, “does not mean that they can or should supply the enforceable content of the First Amendment’s prohibition on establishments of religion.” I concluded that:
Those who crafted our Constitution believed that both authentic freedom and effective government could and should be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people and, perhaps, best regarded as an indication that society is functioning well.
Over the next few days, I will say a bit more about these three features of Justice Breyer’s approach to, and resolution of, Establishment Clause cases. Thanks again to The Volokh Conspiracy for the opportunity.
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