The highpoint of Breyer’s influence can be marked with precision. At the end of the term in June 2005, the Court decided two cases about public displays of the Ten Commandments, both by votes of 5–4. The Court rejected a decision by local authorities to post the Commandments in Kentucky courthouses but at the same time allowed the Commandments to remain in a public park, near the state capitol, in Austin, Texas. Four justices thought both displays should remain; four others thought both should be taken down.
Only Breyer was in the majority in both cases. He endured some mockery for his seemingly inconsistent positions, but his reasoning made sense. The Kentucky Commandments, which everyone in the courthouse could see, were clearly intended as a provocation, and the display had been controversial from the moment it was posted. In Texas, on the other hand, the monument with the Commandments drew no notice at all for forty years. (The plaintiff in the case was a homeless man who sometimes lived in the park.) Breyer thought the difference in public reactions to the displays was critical. The Texas display “has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive,” Breyer wrote. But he added, referring to the Kentucky display, that “in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this long-standing, pre-existing monument has not.” It was, to use Breyer’s favorite word, a workable compromise.
In any case, Breyer’s moment was brief. The decisions in the Kentucky and Texas cases were announced on June 27, 2005. Four days later, O’Connor announced her departure from the Court.
When Breyer was appointed, he was often described, with good reason, as a technocrat. He taught antitrust and administrative law at Harvard, and he was more deeply steeped in those arcane specialties than in the constitutional law at the center of the Court’s work. Once Breyer settled into his new position, however, he tried to come to terms with the Constitution and the place of the Court in the broader history of the country.
It is easy, if unwise, to romanticize the history of the Supreme Court. During John Marshall’s tenure as chief justice, from 1801 to 1835, the Court built a noble template for American democracy. Marshall himself, more than any framer of the Constitution or even any president, defined the terms of separation of powers, the breadth of federal power, the relationship between the national government and the states, and the place of the Supreme Court in the government of the young nation. Thanks to Marshall, the Court made a glorious debut.
For the next twelve decades, however, the Supreme Court was for the most part a malign force in American life. The landmarks of this era, which still constitutes more than half the history of the Court, were nearly all negative. In 1857, to the eternal shame of the institution, the Court held in Dred Scott v. Sanford that African Americans were property and that they could never possess the rights that belonged to human beings. This decision hastened the Civil War and was technically overruled by the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. The Court then proceeded to give those amendments such cramped and narrow meanings that the justices allowed African Americans to endure perpetual discrimination, and much violence, for a great many more years. In Plessy v. Ferguson, from 1896, the Court gave its formal imprimatur to American apartheid by approving Louisiana’s system of separate railcars for blacks and whites. In 1905, the Court decided Lochner v. New York, rejecting a state law that limited the number of hours bakers could work. This dismal decision set off several more decades when the Court dedicated itself to obstructing legislative initiatives that might protect the nation’s less powerful citizens.
Earl Warren’s tenure as chief justice ushered the United States into the modern era of race relations and, in some deeper sense, saved the Supreme Court as an institution. Warren recognized that a court that had the legend EQUAL JUSTICE UNDER LAW carved into its façade could no longer tolerate state-sponsored segregation. In just his second year as chief justice, on May 17, 1954, Warren steered his colleagues to a unanimous decision in Brown v. Board of Education. Warren himself wrote the opinion in simple, direct prose. “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place,” he wrote, formally overruling Plessy v. Ferguson.
The case, and the Warren Court’s decisions on race, became Breyer’s special interest. On the fiftieth anniversary of Brown, Breyer volunteered to be the Court’s emissary to the official celebration, in Topeka, Kansas, where the case began. “As a member of the Supreme Court, I am here today to represent that Court, not nine individual Justices, but the institution itself—an institution as old as the Republic, charged with the responsibility of interpreting the Constitution of the United States,” Breyer told the crowd, including President Bush. “May 17, 1954, was a great day—many would say the greatest day—in the history of that institution,” he continued. “Before May 17, 1954, the Court read the Constitution’s words ‘equal protection of the laws,’ as if they protected only the members of the majority race. After May 17, 1954, it read those words as the post–Civil War Framers meant them, as offering the same protection to citizens of every race.” (Not everyone on the Court was so moved by the anniversary; William Rehnquist also gave a speech on May 17, 2004, and he didn’t even mention Brown.)
Brown also had a special resonance for Breyer because of his own experiences in the public schools. Breyer grew up in San Francisco in what he regarded as a unique and glorious moment in the city’s history. The post–World War II boom there created an equality of opportunity that was rare, if not unprecedented, in American history. Steve and his younger brother, Chuck, graduated from Lowell High School, the jewel of the San Francisco system, a selective academy that served generations of strivers. Breyer’s father spent decades as a lawyer for the San Francisco school board, helping to manage the influx of immigrants from around the world. (Breyer still wears the wristwatch that his father received upon his retirement. The inscription reads, “Irving G. Breyer, Legal Advisor, San Francisco Unified School District, 1933–1973, from his friends.”) Lowell led to good things for Chuck, too. In 1997, Clinton appointed Charles Breyer to the federal district court in San Francisco.
No Breyer speech (and he gave many) was complete without the story of Cooper v. Aaron, the famous case that directed the public schools of Little Rock, Arkansas, to cease obstructing the rule of law and integrate forthwith. (The opinion remains the only one in the Court’s history to which all nine justices affixed their names as coauthors.) Describing the aftermath of Cooper v. Aaron, Breyer said that Warren’s words in Brown “forced the Nation to ask themselves whether it believed in a rule of law—a rule of law that the Nation’s history had sometimes denied, a rule of law that President Dwight D. Eisenhower enforced in 1957 when he sent federal paratroopers to Arkansas to take those black schoolchildren by the hand and walk them safely through that white schoolhouse door. We now accept that rule of law as part of our heritage, thanks to Brown and to its aftermath. But too often we take that rule of law for granted.”
That was the final question for the Court in Roberts’s second year: Was Brown now taken for granted?
Seattle and Louisville, on opposite ends of the country, different in spirit, history, and orientation, confronted a similar problem. In both cities, kids generally went to public schools near where they lived, and neighborhoods tended to be highly segregated by race. The school boards in both cities wanted to nudge enrollment in a more integrated direction. In Seattle, where citywide enrollment was about 41 percent white and 59 percent nonwhite, students were allowed to choose their high schools. For the more popular schools, the city had a tiebreaker formula. The first tiebreaker was whether a sibling already attended the school. The second was race; if the school’s racial makeup was more than ten percentage points different from that of the c
ity as a whole, race would determine whether a particular student was admitted. Kentucky’s Jefferson County, which included Louisville, had a roughly similar plan. Proximity of the student’s home to the school was the first tiebreaker; race was the second. Very few students, probably less than five hundred in each city, were affected by the second part of the formula.
So if the two cases only affected a handful of students, why did they matter so much? There was the simple historical resonance of public school integration at the Court. More importantly, the Seattle and Louisville lawsuits represented the first time the Roberts Court addressed the legacy of Brown. Was Brown essentially a libertarian decision, which simply forbade all recognition of race by the government? Or did Brown mandate, or allow, government to take steps to foster integration? When can the government consider your race in assigning you to a school—or hiring you for a job, or assigning you to a congressional district? Can government consider race at all?
In the most important opinion of her career, O’Connor had answered a version of these questions in 2003. In Grutter v. Bollinger, she spoke for a narrow majority of the Court in approving the admissions policy of the University of Michigan Law School. Under that policy, the law school considered race as one of many factors, including grades and test scores, in deciding whom to admit. O’Connor approved the practice for the same reason that her mentor, Lewis Powell, approved of affirmative action in graduate school admissions in the Bakke case of 1978. O’Connor ruled in Grutter that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” But her decision came with a warning and, even more unusual in a Supreme Court decision, a time limit. “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education,” O’Connor wrote, referring to Bakke. “Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” In the Seattle and Louisville cases, just four years after Grutter, the question was whether O’Connor’s words remained the law.
In the lead case, which was known as Parents Involved in Community Schools v. Seattle School District No. 1, Roberts took the opportunity to display what had been, at that point, something of a secret weapon in his arsenal. The quality of writing in Supreme Court opinions generally ranges from serviceable to opaque, and the justices’ attempts at eloquence often fall flat. For his part, Breyer wrote in a kind of prose PowerPoint, with paragraphs that began First, Second, Third. Souter’s style was so gnarled that the justice himself made fun of it. Receiving an eloquent draft from a law clerk, Souter would say, “Time for me to put some lead in …” In his earlier years, Stevens tended toward a midwestern directness—he did all his own drafting for a long time—but eventually he too migrated toward the mean. Scalia put a gift for invective on display in dissents but wrote with less verve, and interest, for the Court. Kennedy had a weakness for bloviation.
Chief Justice Roberts, it soon became evident, was a brilliant writer—clear, epigrammatic, eloquent without being verbose. The peroration of his decision in Parents Involved made his case with characteristic force. “For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way to achieve a system of determining admission to the public schools on a nonracial basis is to stop assigning students on a racial basis,” he wrote. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Who could disagree with that?
The four dissenters did not just disagree—they were enraged. Stevens assigned the main dissenting opinion to Breyer, but he could not resist adding a short, incredulous dissent of his own, not least because the legacy of Brown was at stake. “There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education,” Stevens wrote. “The first sentence in the concluding paragraph of his opinion states: ‘Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.’ This sentence reminds me of Anatole France’s observation: ‘The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’ The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.”
Stevens had turned eighty-seven shortly before the Court’s decision in Parents Involved. Stevens knew that, at his age, his time as a force on the Court was shrinking fast. More than in his earlier days, Stevens did not mince words. The conservative torrent of Roberts’s second year moved him to something close to outrage.
“The Court has changed significantly,” Stevens wrote in his Parents Involved dissent. It was once “more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”
The last day of a term always arrived laden with drama. Almost invariably, it was when the Court’s most important and controversial decisions of the year were announced or when the justices revealed their plans to retire. As a rule, it was also a time when the justices were both tired and sick of one another. Everyone needed a haircut and a vacation.
Plainly, on June 28, 2007, Breyer was distraught. This kind of career—writing dissent after dissent—was not how he envisioned his life as a justice. Breyer clerked for the liberal Arthur Goldberg in 1964–65, near the liberal apogee of the Warren Court. Breyer was not naïve. He didn’t think everyone would agree with him all the time. But Breyer did at least think the atmosphere at the Court might resemble the collegiality he found at the Judiciary Committee thirty years earlier. In the heyday of the O’Connor-Breyer Court, he read less than one dissent a year from the bench. But on this final day of the 2006–07 term alone, he read two protests in 5–4 cases.
The first, called Leegin Creative Leather Products, involved antitrust law. Since a 1911 case called Dr. Miles, the Court had held that a manufacturer who required retailers to sell a product for a minimum price was always guilty of an antitrust violation. With the urging of the Bush administration, Kennedy’s opinion for the Court overruled that ninety-six-year-old precedent and said that such violations should now be determined on a case-by-case basis. (The political divisions in antitrust cases are clear. Democrats favor strict enforcement, while Republicans defer to the market.)
As the second-most-junior justice, Breyer had the seat to the chief justice’s extreme right, which happened to be only about a dozen feet from the benches reserved for journalists. As he read his first dissent of the day—a short one—Breyer turned toward the reporters to make sure they were paying attention. He knew that antitrust cases rarely attracted much public notice, but he used the case to highlight a broader issue about the Roberts Court.
“I just want to emphasize one point here, and it is stare decisis,” Breyer said. “The legal rule that forbids vertical price fixing—it comes from the case called Dr. Miles—is nearly 100 years old. It’s well known to those in the law and in business. This court and lower courts have followed it consistently for decades.” Breyer used the term “stare decisis”—the rule of precedent—three more times in his brief statement. His message was clear: the Roberts Court was on the warpath against the Court’s own history.
Then, finally, came the last case of the year, Parents Involved. Roberts began by giving his summary of the case, and it was plain that one more precedent was now endangered—O’Connor’s opinion in Grutter. O�
�Connor had written broadly about the value of diversity in education, but Roberts said that the Court now viewed Grutter as relating only to “diversity in higher education.” Since Parents Involved concerned only high schools, Roberts said, the reasoning in Grutter was irrelevant. This was what the Supreme Court did when it was preparing to jettison a precedent: first limit it, then overrule it.
Breyer followed, reading from a dissent that he noted was more than twice as long as any he had written. School boards, like the one to which his father had devoted his life, had done their best in Seattle and Louisville. “They began with racially segregated schools,” Breyer said. “They sought remedies. They tried forced busing. They feared or experienced white flight. They faced concerns about de facto re-segregation, and they ended up with plans that end forced busing, that rely heavily upon student choice. In both cities all the students choose. The majority, indeed almost all of them, received their first-choice school.” And to Breyer, there was nothing wrong, indeed everything right, with what the school boards had done.
To Breyer, the efforts of these cities honored Brown rather than defied it. “Brown held out a promise, it was a promise embodied in three Amendments designed to make citizens of former slaves,” he said. “It was the promise of true racial equality, not as a matter of fine words on paper, but as a matter of everyday life of the Nation’s citizens and schools. It was about the nature of democracy that must work for all Americans.” Democracy that worked—this was always Breyer’s goal.
But Breyer’s dissent was not just about Parents Involved, or Brown, or even civil rights. It was about what had happened to the Court in this one short year—on abortion, and women’s rights, and civil procedure, and freedom of speech, and antitrust, and the death penalty, and on and on. Breyer departed from the text of his dissenting opinion to offer an introduction to the real Roberts Court.
The Oath: The Obama White House v. The Supreme Court Page 11
