Monday, May 14, 2012

Part 5: Focus on Justice Breyer. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Let's turn to Justice Stephen Breyer.

President Clinton's 2d appointee--the 1st being Justice Ginsburg.
And the next longest serving member of the Court--following Scalia, Kennedy, Thomas, and Ginsburg, all of whom have been the subject of one of the previous posts in this series on New York Court Watcher.
[See Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus on Scalia) --with graphs!, May 1, 2012; Part 2: Focus on Justice Kennedy, May 3, 2012; Part 3: Focus on Justice Thomas, May 6, 2012; Part 4: Focus on Justice Ginsburg, May 10, 2010.]

Let's look at his record the same way we've looked at theirs. So what is it?

What about his voting in those highly partisan-charged cases? You know, the ones involving guns, gays, immigrants, campaign finance, and other issues with deep partisan divides. Take a look.
(click to enlarge)
Hmm. Just as one-sided as Ginsburg's, Scalia's, and Thomas's. Identical to Ginsburg's record. 100% partisan liberal Democratic.

That is, Breyer voted in every one of these very highly charged cases just the way Ginsburg did. He voted exactly the way we would expect a very partisan liberal Democratic politician to vote.

To look at the flip side, Breyer's record is the exact opposite of Scalia's and Thomas's. He voted in every one of these cases exactly the opposite of how they did. In other words, he voted exactly the opposite of how we would expect very partisan conservative Republican politicians to vote.

What about his record in that larger body of generally ideologically-laden cases?

Here it is.
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Again, Breyer's record is similar to Ginsburg's. But it's similar, not identical.

Breyer's record is slightly less politically liberal. Still nearly 4-1 politically liberal to conservative. But there are some differences in their records. Surveying all the cases to identify those in which he and Ginsburg were on opposite sides reveals some interesting examples.

He was on the same side as Justice Thomas, against Ginsburg and the rest of the Court, in voting to uphold California's law prohibiting the sale of violent video games to minors. He was with Justice Alito, also against Ginsburg and the rest of the Court, in voting to reject an accused's speedy trial challenge to criminal charges.

He was with the rest of the Court, against Ginsburg, in upholding a warrantless search on emergency grounds. And he was with the Court majority, against Ginsburg and Sotomayor, to bar a tort action under state law against a vaccine manufacturer.

There were cases, however, where Breyer was on the opposite side of Ginsburg in which he took the more politically liberal position. He was with the Court majority--against Ginsburg, Thomas, and Alito--in refusing to apply a sex-offender registration law retroactively. And he was in dissent, with Justice Stevens, against Ginsburg and the rest of the Court, in voting that Miranda rights could only be waived explicitly.

So, what about Breyer's activist-restraint record? Let's see.
(click to enlarge)
Once more, Breyer's record is similar to Ginsburg's. Like Ginsburg, Breyer voted much more frequently to uphold--rather than to invalidate--the choices of the other branches and the states. And like her, he voted much much more frequently to do so than did Scalia, Kennedy, Thomas, and the Court as a whole.

In short, like Ginsburg, Breyer compiled a record that was much less judicially activist than that of the conservative Justices and the Court itself. But, as we noted in the post on Ginsburg, that is not surprising given the laws that were at issue. Most of them happened to be laws that would be favored by political liberals and, thus, more likely to be upheld by liberal Justices.

Consider some of them.

Like Ginsburg, Breyer voted to uphold a state law favoring class actions by consumers over arbitration insisted upon by businesses; to uphold a state law (and a federal law) placing limits on campaign financing; to uphold a state law allowing tort claims against drug manufacturers for mislabeling products; and to uphold a state university rule denying funding to a student religious group that discriminates against gays and lesbians.

On the other hand, like Ginsburg, Breyer voted against a state law providing tax credits for tuition paid to religious schools; against a state law enforcing immigration restrictions; against a state law permitting a life sentence without parole for juveniles; and against a federal law accommodating the display of a Christian cross on government property.

So, like Ginsburg, Breyer typically voted to uphold politically liberal laws, and to invalidate politically conservative ones.

The two did not, however, always agree on which laws to uphold or invalidate. As previously noted, Breyer voted to uphold California's prohibition on selling violent video games to minors; Ginsburg voted to invalidate the law. Breyer voted against a state tort law permitting lawsuits against vaccine manufacturers; she voted to allow such lawsuits. Other than those two cases, Breyer's and Ginsburg's uphold-invalidate votes were the same.

Let's wrap up with a graph that puts it all together. (I hope it's not getting too busy for easy reading.)
(click to enlarge)
And here it is with the figures for partisan Republican and politically conservative flipped to display those for partisan Democratic and politically liberal.
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No matter how you look at it, Democratic and liberal or Republican and conservative, Breyer's record looks unmistakably partisan and ideological. Yes, and so do the records of Ginsburg, Scalia, and Thomas. Of the Justices we've studied thus far in this series, only Kennedy has a record that looks less partisan and and a little less ideological.

As for judicial activism and restraint, liberal Breyer, like liberal Ginsburg, voted to uphold the judgments of the other branches and the states much more frequently than did conservative Justices Scalia and Thomas. And even much more frequently than did the swing-vote Kennedy and the Court as a whole.

To recap Breyer's voting record:
Partisan? Lopsidedly like a liberal Democratic politician.
Ideological? Lopsidedly politically liberal.
Activist? More restrained than activist, and much more restrained than the records of Scalia, Thomas, Kennedy, and the Court itself.

Coming next: the appointees of President George W. Bush--Chief Justice Roberts and, then, Justice Alito.

[As stated in previous posts, this series is based on my research over the last several weeks. The pool of cases on which my findings are based is explained at the end of each of 3 previous posts on New York Court Watcher. See Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus on Scalia) --with graphs!, May 1, 2012; Part 2: Focus on Justice Kennedy, May 3, 2012; Part 3: Focus on Justice Thomas, May 6, 2012]