Monday, June 30, 2008

Orin Kerr nails Justice Breyer

and good:
In his Zelman dissent, Justice Breyer reasons that public school vouchers are unconstitutional because they "risk[]" creating "a form of religiously based conflict potentially harmful to the Nation’s social fabric." That is, they are unconstitutional because there is a possibility that they could lead to tension among religious groups. Justice Breyer speculates that such programs might lead different religious groups to feel that they are not getting a fair shake:
How will the public react to government funding for schools that take controversial religious positions on topics that are of current popular interest–say, the conflict in the Middle East or the war on terrorism? . . . Efforts to respond to these problems not only will seriously entangle church and state, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the government.
As I read Breyer's Zelman dissent, his perception of a risk that the law could have a harmful result that touches on religious practice is enough to strike it down.

Contrast Breyer's Zelman dissent with his dissent in Heller. Here, the polarity of the culture wars has been reversed. And so has Justice Breyer's approach: Now he reasons that the possibility of a positive social impact of the law makes it constitutional. The political philosopher of Zelman is replaced with a careful and cautious social scientist who runs over pages and pages of statistics and scientific studies in Heller. So long as the legislature had a possible basis for thinking that restricting the constitutional right was a good idea, Breyer explains, the law should be upheld:
These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not.
It's an interesting mirror image, I think. When the culture wars pointed one way, Justice Breyer thought that a "risk" of a "potentially harmful" adverse result was enough to strike the law down. When the culture wars pointed in the other direction, so did the burden of proof: now Justice Breyer must have his "confidence" in the reasonableness of the legislature "convincingly" "destroyed" before he would vote to strike down the law.
To be clear, I'm not suggesting that Justice Breyer is alone in taking different approaches depending on which side of the culture wars the challenged law happens to fall. Plainly he is not. At the same time, I do think the contrast between these two dissents provides an unusually clear case of the difference.
Who's tending the Constitution these days, if a Supreme Court justice is not?

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