The Nine (53 page)

In part, Breyer wrote
Active Liberty
to challenge Scalia’s doctrine of originalism. Like many other critics of Scalia, Breyer pointed out there was no way of knowing precisely what the framers meant by such phrases as
freedom of speech
or
due process of law
, much less how they would have applied those terms today. Scalia and Thomas’s approach, Breyer wrote, has “a tendency to undermine the Constitution’s efforts to create a framework for democratic government—a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively.” That was what Breyer meant by “active liberty”—a Constitution that not only protected citizens from government coercion but affirmatively gave power to citizens themselves to participate. Government existed to give everyone an equal chance to join in the political process.

Breyer had the opportunity to put that theory into action in the two Ten Commandments cases of 2005. There, civil liberties advocates challenged, as violations of the Establishment Clause of the First Amendment, two public displays of the commandments, one in a pair of Kentucky courthouses, the other on the grounds of the Texas state capitol. Four justices (Stevens, O’Connor, Souter, and Ginsburg) rejected both states’ displays as violations of the Constitution’s separation of church and state; four others (Rehnquist, Scalia, Kennedy, and Thomas) approved both states’ displays. Only Breyer, the swing vote in both cases, saw a difference between the two: he rejected the display in the Kentucky courthouses and upheld the one in the Texas park.

Breyer’s seemingly inconsistent positions drew some ridicule, but they illustrated his pragmatic, and almost overtly political, approach to judging. In his opinion concurring in the judgment in the Texas case,
Van Orden v. Perry
, Breyer noted that there was “no single mechanical formula that can accurately draw the constitutional line in every case,” and he proceeded to compare the history of the displays. The Texas commandments, which are carved into a granite monument, had been donated to the state by the Fraternal Order of Eagles, a private civic (and primarily secular) organization, in 1961. (The commandments were originally posted in many places around the country to generate publicity for Cecil B. DeMille’s 1956 movie,
The Ten Commandments
.) Most important, Breyer argued, no one had complained about the structure, which was situated for decades among sixteen other monuments and twenty-one historical markers. Indeed, the plaintiff in the case was actually a homeless person who spent more time lingering in the park, reading the inscriptions, than most other people. “Those forty years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect,” Breyer wrote.

By contrast, the displays in the Kentucky case,
McCreary County v. American Civil Liberties Union
, had been placed on the walls of small courthouses by local officials, accompanied in one case by a Christian minister, in 1999 and had immediately become objects of controversy. In his opinion in the Texas case, Breyer wrote, “The short (and stormy) history of the [Kentucky] courthouse commandments’ displays demonstrates the substantially religious objectives of those who mounted them.” (For example, the display noted that the posted commandments came from the “King James Version.”)

Breyer’s controlling opinions in the cases told politicians to stop erecting provocative religious monuments, with the understanding that old ones could stay. As a political compromise, if not constitutional jurisprudence, it made total sense. O’Connor did not join Breyer in both cases; she actually voted to his left, arguing that both displays should be removed. But Breyer’s split-the-difference approach reflected her influence. So, too, did Breyer’s wish to diffuse conflict; few people might have known the Ten Commandments were in the Austin park before the lawsuit, but a Court-ordered removal would surely have turned into an ugly drama. As Breyer put it, removing uncontroversial displays like the one in Texas could “create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”

Visitors to Breyer’s chambers at the Court might assume that the rows of venerable leather-bound books in the shelves behind his desk came from his wife’s aristocratic family in Great Britain. Their home in Cambridge is full of heirlooms from the stately home of the 1st Viscount Blakenham. But the books were collected by Breyer’s late uncle Leo Roberts, an eccentric philosopher and freelance academic who haunted used-book sales. Young Stephen and his uncle would sometimes rise at dawn to get first crack at the sales, where they rarely paid more than a dollar a book. And there were ultimately thousands of books, which Breyer, with just the exceptions in his chambers, donated to the University of Massachusetts in Boston after Roberts died.

Breyer’s demeanor, as well as his jurisprudence, reflected both his patrician in-laws and his own Jewish parents. He sometimes lapsed into what sounded like an English accent, and one of his daughters became, of all things, an Episcopal priest. But Breyer’s reluctance to stir up religious animosity was strictly urban pol in origin. From his parents and their experience in San Francisco politics, he learned the dangers of religious conflict, even in the United States, and he saw the Constitution as the vehicle to keep ecumenical passions in check. A natural conciliator, Breyer liked nothing less than picking unnecessary fights.

And that spirit, in 2005, gave Breyer something close to control of the Court. Of all the justices, he cast the fewest dissenting votes that term, ten, just behind O’Connor’s eleven. He brokered an extraordinary compromise in a series of complex cases reviewing the federal sentencing guidelines that he, as an appeals court judge, had played a major role in creating. After years of hotly contested cases on the subject, the result was that the guidelines would be advisory rather than mandatory, which was what Breyer had sought all along. He controlled the outcome of the Ten Commandments cases, voted with Kennedy on the juvenile death penalty, and even joined an unusual majority in the most enjoyable case of the year. In May, the Court ruled 5–4 that states could not permit in-state wineries to ship to consumers while prohibiting out-of-state producers from doing the same thing. The prowine majority consisted of Kennedy, the author of the opinion, Scalia, Souter, Ginsburg, and Breyer—who all happened to be the leading wine aficionados on the Court. Breyer later called the group “the rosy-cheeked caucus.”

This long run of success was why Breyer despaired at the other big case that came down at the end of the same term. In 1998, Pfizer had announced plans to build a research facility in New London, Connecticut; the city intended to spruce up the surrounding neighborhood. As part of the development, New London used its power of eminent domain to take the homes of several residents and turn them over to private developers for a shopping center or perhaps a parking lot. Susette Kelo and several of her neighbors sued, claiming that the city was violating the Fifth Amendment, which says that “private property [shall not] be taken for public use, without just compensation.” A city could take land for a highway, school, or hospital, the plaintiffs claimed, but the transfer of private property from one private entity to another did not amount to a public use.

When
Kelo v. City of New London
was argued back in February 2005, the case drew relatively little public attention. Even to the justices, the matter seemed to be a fairly esoteric dispute over a familiar part of the Constitution. The Court had found previously that government could use eminent domain powers to transfer land to private parties—to railroads, for example—and the question here was simply whether an urban redevelopment plan qualified as a public use. It hardly seemed the stuff of high drama, and at the end of the term, Stevens wrote a straightforward opinion for a five-justice majority (including Kennedy, Souter, Ginsburg, and Breyer) approving what the city had done. Stevens styled his opinion as an exercise in judicial restraint, as he deferred to the local elected officials about what constituted a public use. “Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project,” he wrote.

But the justices, especially Stevens, had misjudged the emotional resonance of the subject. By raising the possibility that a city could simply transfer a private home to another private owner, the case tapped into powerful fears of unchecked government. O’Connor understood better than any of her colleagues how the public would see the case and wrote in her dissent, “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—
i.e.
, given to an owner who will use it in a way that the legislature deems more beneficial to the public.” (The case was one of the few where O’Connor and Breyer parted company.) In any event, the
Kelo
decision set off a noisy backlash.

Overnight, it was as if the Terri Schiavo chorus had reconvened. Rather than as a victory for judicial restraint, the conservative movement treated
Kelo
as a triumph of big government. Tom DeLay called it “a horrible decision,” adding, “This Congress is not going to just sit by—idly sit by—and let an unaccountable judiciary make these kinds of decisions without taking our responsibility and our duty given to us by the Constitution to be a check on the judiciary.” DeLay in the House and John Cornyn in the Senate pushed measures to deny federal funds to any local project that would use eminent domain to force people to sell their property to make way for a profit-making venture. Ever alert for the chance to make a public splash, Jay Sekulow claimed implausibly that the
Kelo
decision might lead to government seizures of church land—and added the case to his bill of particulars against the Supreme Court. Even some liberals, who regarded the decision as a symptom of authoritarian government, denounced Stevens’s opinion.

The animosity toward the Court reached frenzied proportions. A conservative activist, Logan Darrow Clements, wrote to the government of Souter’s hometown in New Hampshire asking that the town take over the justice’s farm and turn it into the “Lost Liberty Hotel,” featuring the “Just Desserts Café.” “The justification for such an eminent domain action is that our hotel will better serve the public interest as it will bring in economic development and higher tax revenue to Weare,” wrote Clements. The following year, the matter even came up for a vote in Weare, with the town voting 1,167 to 493 to leave the Souter farm alone. (Even if Souter had lost the vote, it was unlikely that his home would have been taken.) In more serious responses to the case, several states tightened requirements on the use of eminent domain. (In a way, these actions vindicated Stevens, who wrote that while the Constitution allowed such uses of eminent domain, states were, of course, free to restrict the practice.)

Breyer despaired at the drubbing the Court was taking. He took every opportunity to point out that the decision did not
order
any local government to buy land but merely
permitted
the practice under limited circumstances. The complaints should have gone to the initiators of such seizures, not the justices. In truth, the controversy was stoked by conservatives precisely because it took place at the same time as the confirmation fights. The cause united social and economic conservatives against a “liberal” Supreme Court. As Sean Rushton, the executive director of the Committee for Justice—Boyden Gray’s organization, dedicated to pushing Bush’s judicial nominees—said of the
Kelo
decision, “It’s so bad, it’s good.”

When Roberts began his first term, with O’Connor still on the bench, the Court enjoyed a docket full of relatively uncontroversial cases. In addition, the new chief justice made a point of pushing his colleagues toward narrow decisions that could command unanimous support. In a speech at Georgetown, he made the case for this judicial minimalism, asserting, “The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.” For a time, the justices indulged the chief’s wishes, and the percentage of unanimous cases ticked upward. In conference, Roberts let discussions linger for longer than Rehnquist had, and the additional conversation encouraged the justices to absorb the views of their colleagues and write opinions accordingly. Roberts’s buoyant good nature, and the end to the grim vigil over Rehnquist’s health, immediately made the Court a cheerier place.

Roberts also proved himself a skillful judicial craftsman. His first important opinion touched on gay rights, academic freedom, and the power of the military—and still produced a unanimous Court. The case also revealed the deep cleavages in the legal profession between the liberal faculties of leading law schools and the conservative majorities in Congress. After the fights early in the Clinton administration over gays in the military, most leading law schools banned military recruiters on campus because the armed services refused to hire openly gay people and thus violated the schools’ nondiscrimination policies. (Many of the faculty votes for the bans were unanimous, suggesting an extraordinary level of political conformism.) Enraged at these snubs to the military, conservatives in Congress responded by passing the Solomon Amendment, which cut off all federal funds to universities that did not allow equal access to recruiters from the armed forces. At many universities, the amendment put tens of millions of dollars in federal medical research money at risk, so law school faculty members sued, arguing that the law violated their rights to free speech under the First Amendment.