Back in November of 2022, I had the privilege and pleasure of participating in a conference, hosted by the First Amendment Law Review, on the "First Amendment Jurisprudence of Justice Breyer." I am grateful to my friend and fellow presenter, Mary-Rose Papandrea, for the invitation. The panel discussion of which I was a part was about "Justice Breyer and the Religion Clauses," and I enjoyed talking with, and learning from, Micah Schwartzman, William Marshall, and Russell Robinson. The student editors did a particularly great job of organizing and running the event and—even for this Duke Blue Devils fan—a visit to Chapel Hill is always nice. My contribution to the Law Review is called "Justice Breyer and the Establishment Clause: Notes on 'Appeasement', 'Legal Judgment', and 'Divisiveness'"; I appreciate the opportunity to share the paper's main points with The Volokh Conspiracy.
Stephen G. Breyer served as an Associate Justice of the Supreme Court of the United States for nearly three decades. He was known for, among many other things, his courtesy and civility, his creative hypotheticals and free-form questioning during oral arguments, his road-show debates with the late Antonin Scalia about the relevance to constitutional interpretation of foreign jurisdictions' practices and policies, and his earnest expressions of concern about the Court's role and reputation. He wrote hundreds of judicial opinions, including many in cases involving the First Amendment. And yet, during his long career and notwithstanding his wide-ranging interests, he never authored a majority opinion resolving a dispute about the meaning of that Amendment's Establishment Clause. (I explain in the paper why his important concurring opinion in the 2005 Ten Commandments cases doesn't count.)
Still, I propose that the justice's writings and record—in judicial opinions and elsewhere—regarding the no-establishment rule are distinctive, in at least three ways. First, there is the fact that he did not vote uniformly with his more "strict separationist" colleagues—including, say, Justices John Paul Stevens and Justice Ruth Bader Ginsburg—in divided Establishment Clause cases. In my contribution to the symposium, I disagree with an interpretation of his departures, developed primarily by Nelson Tebbe and Micah Schwartzman, that chalks them up to a "strategy of judicial appeasement."
