Jeffrey Rosen has an interesting review of two new Supreme books: one by Justice Breyer and one about Justice O’Connor.
Rosen is particularly good at pointing out some of the contradictions, or at least unanswered questions about, Breyer’s “constitutional pragmatism,” with its results-centered emphasis on “common sense.” As Rosen noted over ten years ago, in a searching article in The New Republic when Breyer was nominated to the Supreme Court:
Questions such as abortion and religion and affirmative action are not susceptible to “common sense” solutions, because no empirical or social consensus underlies them.
They haven’t gotten more susceptible in the intervening years.
In the current review Rosen seems to see, but does not recognize, what strikes me as a blatant contradiction in the Breyeran version of judicial pragmatism. Thus he writes of “Breyer’s pragmatic defense of affirmative action” that
he suggests that racial and ethnic preferences may promote public confidence in elite universities today, then become unnecessary in 25 years….
Rosen notes that Breyer “fails to consider empirical evidence casting doubt on both claims,” but he does not seem to notice a contradiction with another hallmark of Breyer’s “pragmatic constitutionalism, which I discussed here.
In the least convincing example in his book, he defends his dissenting vote on school vouchers. The framers of the 1st Amendment, he writes, sought to avoid the “social conflict, potentially created when government becomes involved in religious education.” In vouchers, which allow parents to spend public money at religious schools, he saw “the potential for religious strife.” Although Breyer presents a series of hypothetical possibilities that vouchers might be administered in discriminatory and divisive ways, he doesn’t examine any evidence that this happened in the handful of places that have adopted them. Nor does he consider extensive evidence suggesting that such programs might decrease local political strife by allowing a small group of committed inner-city minority parents to send their children to parochial or private schools without threatening the autonomous school systems that Suburban, mostly white, parents are determined to protect.
The absence of empirical evidence aside, why is Breyer so concerned with “hypothetical possibilities” and “the potential of religious strife” but so little concerned with the reality of racial strife and social conflict produced by the state engaging in racial favoritism through racial preferences?
Whatever the nature and explanation of Breyer’s abhorrence of anything that smacks of religous preference and his enthusiastic support for racial preferences, shouldn’t Supreme Court justices have to justify their decisions with something more than their policy preferences?
