Two kinds of pragmatist

EVER since Justice Sandra Day O’Connor announced her intention to retire from the U.S. Supreme Court, Democrats have hailed the former Republican legislator from Arizona as a paragon of pragmatism and moderation. Now that President Bush’s controversial choice to replace O’Connor is prepping for a November confirmation fight, senators from both parties are wondering openly whether Harriet E. Miers would be a lawyerly pragmatist in the O’Connor mold or a conservative ideologue in disguise.

Yet what, precisely, is constitutional pragmatism, and should liberals really be in a hurry to embrace it or conservatives to oppose it? A reading of two new books -- one a biography of O’Connor, the other the first extended defense of judicial pragmatism by a sitting Supreme Court justice, Stephen Breyer -- suggests that the answers may be in the eye of the beholder. For a modest justice with a sense of humility, such as Breyer, pragmatism seems, in most cases, a manifesto for judicial restraint. In the hands of the less deferential O’Connor, pragmatism sometimes has become an excuse to decide the most politically divisive questions in the country herself.

In the subtitle of “Sandra Day O’Connor,” Joan Biskupic promises to explain “How the First Woman on the Supreme Court Became Its Most Influential Justice.” Her implicit conclusion: O’Connor approaches her job as a justice in much the same way she did when she was majority leader of the Arizona Senate. As an elected politician, O’Connor was noted for her centrism (she carved out a moderate position on abortion and religion) and her sensitivity to what was politically possible. (She backed the Equal Rights Amendment until it looked like a lost cause.) When President Reagan nominated her to the court in 1981, her moderation and pragmatism won bipartisan acclaim, with the exception of the religious right, which feared she wasn’t a true believer. When the Rev. Jerry Falwell declared that “all good Christians should oppose O’Connor,” her mentor, former Arizona Sen. Barry Goldwater replied: “All good Christians should kick him in the ass.”

As it turned out, however, Falwell was right. On the high court, O’Connor has proved to be as moderate and politically savvy as she was in the state Senate. Keeping careful track of vacillating justices, Biskupic reports that O’Connor became skilled at lobbying to win a fifth vote or to protect her majorities. Believing that government shouldn’t move too far to the right or the left, she became even more astute than Congress at reflecting, with exquisite precision, the views of the median American voter. She grew especially close to Breyer, a fellow moderate who values her experience in electoral politics, which he thinks has made her sensitive to the way the court’s decisions are likely to be received by the country. “She tries to think through the consequences of saying less or saying more,” Breyer told Biskupic in an illuminating interview. In a recent speech, he was even more effusive: “You can’t go wrong following Justice O’Connor.”

Although Biskupic, the Supreme Court reporter for USA Today, offers a comprehensive narrative of O’Connor’s remarkable judicial career, she does not address whether the justice’s pragmatic and at times frankly political approach to her job has been good or bad for American democracy. Justices, after all, are not supposed to pay attention to opinion polls, and whenever the court strikes down federal or state laws it arguably thwarts the will of national or local majorities. Who elected O’Connor to run the nation for nearly two decades as a majority of one? Or, to put it more politely: How can judicial pragmatism be reconciled with the court’s unique role as an institution of democracy?

This is the important question that Breyer sets out to answer in his short, provocative book, “Active Liberty: Interpreting Our Democratic Constitution.” It’s a sign of Breyer’s respect for his fellow citizens that he feels compelled to justify himself in democratic terms. The only other justice to write a book about his judicial philosophy is Antonin Scalia, whose vision of constitutional “originalism” Breyer explicitly challenges.

Breyer argues that instead of focusing only on what the framers of the Constitution originally intended, as Scalia articulated in the 1997 book “A Matter of Interpretation: Federal Courts and the Law,” judges should think about the practical effects of their decisions on the democratic process. Breyer cites early 19th century French philosopher Benjamin Constant’s distinction between the liberty of the ancients (defined as freedom from government coercion) and the liberty of the moderns (defined as the freedom to participate in government) and says the Supreme Court should promote both forms. In the process, Breyer says, judges can serve democracy rather than thwart it, by encouraging broad political participation.

More self-consciously than any other justice on the current court, Breyer is trying to resurrect the liberal tradition of judicial restraint, associated with such 20th century justices as Oliver Wendell Holmes, Louis D. Brandeis and Felix Frankfurter. Like these distinguished predecessors, Breyer believes that judges should exercise their power modestly and cautiously, with humility and self-examination. In other words, they should be hesitant to strike down laws unless the constitutional arguments for doing so are strong enough to be accepted by citizens of very different political persuasions. The best way for courts to encourage democratic participation, Breyer believes, is to allow citizens to settle their disputes in legislatures rather than in courtrooms.

When it comes to judicial restraint, Breyer generally practices what he preaches. Between 1994 and 2000, he voted to strike down fewer federal and state laws than any other justice, with the exception of Ruth Bader Ginsburg. O’Connor voted to strike down more federal and state laws than any other justice, except for Anthony M. Kennedy. These statistics are puzzling, because Breyer, according to Biskupic, believes that he and O’Connor are both judicial pragmatists. If pragmatism includes one of the most restrained justices and one of the most activist, then it must be a very large tent.

In “Active Liberty,” Breyer acknowledges this paradox: He writes that judges concerned about promoting democracy should focus not only on judicial restraint but also on the practical consequences of their decisions, including the degree to which those decisions promote democratic participation. This, he says, “will yield better law -- law that helps a community of individuals democratically find practical solutions to important contemporary social problems.” Any “philosophical tension” between those two goals -- traditional judicial restraint and making society a better place by reaching pragmatically appealing results -- is “less than some have imagined,” he insists.

But is it? Most of the examples Breyer cites are intended to support his claim that the court, by upholding laws against a constitutional attack, can promote democracy. For example, by ruling in favor of a campaign-finance reform law designed to decrease the influence of money on the electoral system, he says the court helps build public confidence in the system and encourages greater participation by small donors. But he offers no empirical evidence that the McCain-Feingold Act has achieved its stated goals. It’s at least arguable that after the 2002 law banned giving unregulated “soft money” to political parties, big donors funneled the same large contributions to so-called 527 political advocacy groups, set up for the specific purpose of doling out political funds. (The best-known examples in the last presidential election are the Moveon.org Voter Fund, which tormented George W. Bush, and the Swift Boat Veterans for Truth, which assailed Sen. John F. Kerry.) Breyer’s pragmatic defense of affirmative action -- he suggests that racial and ethnic preferences may promote public confidence in elite universities today, then become unnecessary in 25 years -- also fails to consider empirical evidence casting doubt on both claims.

Breyer concedes that his “argument has not rested on logical or scientifically convincing empirical demonstrations” but, rather, suggests ways the court might promote democratic values. He is not the first pragmatist to be sparing with empirical analysis: Brandeis, who served from 1916 to 1939, also was criticized for being more interested in theory than in practical evidence. As long as Breyer is defending decisions by the court to uphold laws -- in the campaign finance and affirmative action cases, for example -- he can plausibly claim to be promoting democracy by deferring to a legislative body’s predictions about the practical effects of its policies, whether or not those predictions are mistaken.

Breyer, however, does not always practice judicial restraint. 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.

But empirical evidence aside, is it really the job of Supreme Court justices to decrease social strife? It’s just as arguable that the 1st Amendment was intended to guarantee religious neutrality, not to promote political unity. In fact, it’s surprising that Breyer, who approaches most historical and empirical questions in a spirit of modesty and humility, didn’t give the proponents of vouchers the benefit of the doubt.

Breyer does not discuss other important cases in which he voted to prevent the people from deciding highly divisive social issues -- such as his vote to strike down bans on so-called partial-birth abortions, the empirical effects of which are also open to dispute. Because these examples of judicial activism are the exception for Breyer, not the rule, his failure to defend them convincingly does not call into question his broader commitment to judicial modesty. They do, however, make it difficult to know how rigorously he thinks judges should try to predict the likely (as opposed to the hypothetical) effects of their decisions.

Breyer is highly critical of Scalia’s claim that the Constitution should be interpreted only in light of the original understanding of its framers. If, as Breyer argues, the framers of the Constitution did not intend their views to bind future judges, Scalia’s “originalism” must be defended on pragmatic grounds -- as a way of reducing judicial subjectivity and deterring judges from substituting their own views of good policy for those of elected representatives. As it turns out, Scalia is far more willing to strike down federal laws (and less willing to nullify state ones) than Breyer, suggesting that neither is devoted to judicial restraint in all circumstances. And in many cases -- such as his opinion against affirmative action -- Scalia seems to ignore the original understanding of the Constitution when it clashes with his policy preferences. For these reasons, Breyer convincingly suggests, justices should be evaluated not by what they say but by what they do -- by their willingness to embody restrained judicial virtues in practice.

By these practical standards, Breyer is a model of judicial humility. But perhaps his greatest virtue is his candor and judicious temperament. Unlike Scalia, who hectors lawyers appearing before the court, Breyer is not an intellectual bully; unlike O’Connor, he is not a judicial politician, tersely handing down centrist decisions on the great questions of American life without explaining them. In “Active Liberty,” as in his opinions and in his questioning during oral arguments before the court, he acknowledges doubts when they exist (as they do in every difficult case) and he often considers the strongest objections to his position, rather than pretending that only a fool could disagree with him. By candidly acknowledging uncertainty, he says, a judicial pragmatist will reach decisions that are “no more subjective” but significantly more honest than a judicial originalist, and will encourage “informed public criticism of opinions” and ensure that “criticism, in a democracy, plays an important role in checking abuse of judicial power.”

Breyer’s brief book is a tentative first attempt to explain his judicial philosophy rather than a systematic treatise, but his receptivity to criticism is one of his greatest strengths. Perhaps in future writings, both on and off the bench, he will address at greater length the tension between his twin commitments to judicial restraint and to reaching pragmatically appealing results. And perhaps he will find opportunities to rely more explicitly on empirical evidence when considering the actual consequences of his decisions. Breyer and the O’Connor portrayed in Biskupic’s biography may both be pragmatists, but it is Breyer’s judicial modesty, rather than O’Connor’s lofty desire to save the country from its most divisive debates, that should be the model for the Senate Judiciary Committee as it considers Miers’ nomination in early November. *