Jeffrey Toobin Analyzes Breyer's Impact on the Supreme Court

In the New Yorker for September 27, 2010, Jeffrey Toobin has a very lengthy essay on Stephen Breyer, considering his position on the newly reshuffled Supreme Court. Breyer has a new book out, Making Our Democracy Work. According to the blurb at the publisher's website, he surveys the history of the Supreme Court, looking at various times when the Court's rulings have been flouted or ignored, and then discusses what he believes the Court did to create public trust in its authority and what it must to do maintain that trust. The link provided here to the publisher's website also then leads on to an audio of Justice Breyer on NPR's "Fresh Air" radio show, but does not include any reviews of the book (see one here, from the New York Times Sunday Book Review, by Jeff Shesol, who was a speech writer for President Clinton).

Basically, Toobin sees Breyer as potentially a key deal maker now among the liberal wing on the Supreme Court. He notes how odd this is for a justice who is only liberal by contrast with the current court, or only liberal in certain senses. He also is a person who seeks compromise. An example of both tendencies that Toobin offers are the two cases that came before the Court. Could people put creches in a park and could they erect them in a courthouse? Four of the Court thought both were permissible and four of the Court thought neither was permissible. Breyer voted to allow the park and ban the courthouse display.

Breyer's passion is for administrative law, which is central to the gun control rulings of the last several years (District of Columbia v. Heller, 128 S.Ct. 645 (2007) and McDonald v. City of Chicago, (2009). See also Wikipedia, the end of the articles for helpful links McDonald and Heller.), as well as several cases that may be working their way up to the Court now regarding this administration's health care act. One key opinion is Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. ___ (2010) (Wikipedia entry so far is a stub, but it will grow with better links). This is the Sarbanes-Oxley case, and turns on matters of administrative law, which is Justice Breyer's passion, according to Toobin. Justice Roberts wrote for the majority, and Breyer wrote a passionate dissent, with Justices Stevens, Ginsburg and Sotomayor joining, that, with appendices, occupies more space than the majority opinion. The majority opinion finds the Sarbanes-Oxley Act (P.L. 107-204 and Wikipedia article for helpful links), to offend the doctrine of separation of powers because it "...withdraws from the President any decision on whether good cause exists. ..." for withdrawing Public Company Accounting Oversight Board members and instead vests that authority with Commissioners of the Securities and Exchange Commission.(slip opinion, majority opinion, at p. 14). After first noting that the question lies at the intersection of 1) Separation of Powers and 2) Who has power over Executive Branch officials, and the extent of that power. He states that neither text nor history, and perhaps no precedent helps with the resolution of question presented. He warns, quoting Justice Thomas from Chicago v. Morales, 527 U. S. 41, 106 (1999) that “this Court” is “most vulnerable” when “it deals with judge-made constitutional law” that lacks “roots in the language” of the Constitution (internal quotation marks omitted). (Breyer, Dissent, at page 6 in original slip opinion of Free Enterprise Fund)

Breyer urges the judiciary to concede to the superior understanding of, and capability to manage both administrative and political power of the other two branches of government. He notes the size and complexity of the federal government to explain the practicalities that drive the need and reasonableness of the delegation set up in the Sarbanes-Oxley Act. And Breyer also reports the voting both in the House and the Senate and the speed with which it passed, in the wake of the Enron scandal. He provides citations to many pieces of legislative history, (at page 10 of the dissent), from pages in the Congressional Record, to the Presidential Signing Statement and a report from the ABA (which seems to be no longer available at the URL cited).

In many ways, Breyer is, as Toobin's article comments, a classic "Roosevelt New Dealer," who sees the need for the government to regulate modern life, and takes a pragmatic, or "workable" approach to democracy, in which he sees the Supreme Court eschewing both trying to do amateur history for the sake of Originalism and trying to closely interpret the language of the Constitution. Breyer prefers taking a practical approach which often results in solomonic judgements such as the pair of cases described by Toobin involving creches in a public park compared with a courthouse. Breyer notes the "two layer" insulation between the President and the Board members in the Free Enterprise Fund case was inserted to protect the Board members' independence from political pressure, quite the opposite of the thinking of the majority, who felt that the President needed to be given back control. And Breyer would remind his colleagues on the Court that they are substituting their own judgement, (as lifetime appointees on the federal bench!) for that of the elected Congressional leaders (who were subject to their own electoral pressures from constituents) -- ironically enough, in this matter. (actually, OOTJ readers, this is Betsy inserting her own irony notice here).

But the most important part of Breyer's dissent comes at Section II D, pages 23 - 33, where he raises the specter of this decision unraveling the federal government's entire administrative structure, from court clerks, to administrative agencies to the very military itself. The majority opinion focuses on "inferior officers," without adequately defining the term for Breyer's administrative legal mind. Breyer combs earlier Supreme Court opinions and even a Justice Department Office of Legal Counsel Memo.

Reading the criteria above as stringently as possible, I still see no way to avoid sweeping hundreds, perhaps thousands of high level government officials within the scope of the Court’s holding, putting their job security and their administrative actions and decisions constitutionally at risk. To make even a conservative estimate, one would have to begin by listing federal departments, offices, bureaus and other agencies whose heads are by statute removable only “for cause.” I have found 48 such agencies, which I have listed in Appendix A, infra. Then it would be necessary to identify the senior officials in those agencies(just below the top) who themselves are removable only “for cause.” I have identified 573 such high-ranking officials, whom I have listed in Appendix B, infra. They include most of the leadership of the Nuclear Regulatory Commission (including that agency’s executive director as well as the directors of its Office of Nuclear Reactor Regulation and Office of Enforcement), virtually all of the leadership of the Social Security Administration, the executive directors of the Federal Energy Regulatory Commission and the Federal Trade Commission, as well as the general counsels of the Chemical Safety Board, the Federal Mine Safety and Health Review Commission, and the National Mediation Board. ... The potential list of those whom today’s decision affects is yet larger. As JUSTICE SCALIA has observed, administrative law judges (ALJs) “are all executive officers.” Freytag, 501 U. S., at 910 (opinion concurring in part and concurring in judgment) (emphasis deleted);...

And what about the military? Commissioned military officers “are ‘inferior officers.’” Weiss, 510 U. S., at 182 (Souter, J., concurring); id., at 169–170 (majority opinion). ... Numerous statutory provisions provide that such officers may not be removed from office except for cause (at least in peace time). See, e.g., 10 U. S. C. §§629– 632, 804, 1161, 1181–1185. And such officers can generally be so removed only by other commissioned officers, see §§612, 825, 1187, who themselves enjoy the same career protections.

The majority might simply say that the military is different. But it will have to explain how it is different. It is difficult to see why the Constitution would provide a President who is the military’s “commander-in-chief,”Art. II, §2, cl. 1, with less authority to remove “inferior”military “officers” than to remove comparable civil officials. ...

The majority sees “no reason . . . to address whether” any of “these positions,” “or any others,” might be deemed unconstitutional under its new rule, preferring instead to leave these matters for a future case. Ante, at 27. But what is to happen in the meantime? Is the work of all these various officials to be put on hold while the courts of appeals determine whether today’s ruling applies to them? Will Congress have to act to remove the “for cause” provisions? Cf. Buckley, 424 U. S., at 142–143. Can the President then restore them via executive order? And, still, what about the military? A clearer line would help avoid these practical difficulties.

The majority asserts that its opinion will not affect the Government’s ability to function while these many questions are litigated in the lower courts because the Court’s holding concerns only “the conditions under which th[e]se officers might some day be removed.” Ante, at 27. But this case was not brought by federal officials challenging their potential removal. It was brought by private individuals who were subject to regulation “‘here-and-now’” and who “object to the” very “existence” of the regulators themselves. Ante, at 33, 8 (emphasis added). And those private individuals have prevailed. Thus, any person similarly regulated by a federal official who is potentially subject to the Court’s amorphous new rule will be able to bring an “implied private right of action directly under the Constitution” “seeking . . . a declaratory judgment that”the official’s actions are “unconstitutional and an injunction preventing the” official “from exercising [his] powers.” Ante, at 10, n. 2, 6; cf., e.g., Legal Services Corporation v. Velazquez, 531 U. S. 533, 546 (2001) (affirming grant of preliminary injunction to cure, inter alia, a separation-of-powers violation); Youngstown Sheet & Tube Co., 343 U. S. 579 (same). Such a plaintiff need not even first exhaust his administrative remedies. Ante, at 7–10.

561 U. S. ____ (2010), BREYER, J., dissenting, at pp. 28 - 29, 30-32 of original slip opinion. Toobin characterizes this vision as a computer virus that would unravel the federal government.

The Toobin essay is a lengthy one, looking at Breyer as a jurist, and at his place in the Court. It considers how past justices who have become "great dissenters" have slowly become disenchanted and bitter as the years rolled by -- things I did not know about either Felix Frankfurter or Oliver Wendell Holmes, Jr., assuming that this is a correct characterization. But Toobin draws Breyer as an even-tempered and cheerful man, who resolutely remains up-beat even as he often is the lone writer of his dissent. He evidently find great solace in the popular books he has come out with, as well as his family. I hope he continues to be a happy justice. His attention to detail in the administrative law area is important, even if it is not glamorous.