The Last Progressive: Justice Breyer, Heller, and 'Judicial Judgment'

Abstract

This paper considers Justice Breyer's dissent in District of Columbia v. Heller - in which the Court established an individual right to bear arms - as a species of progressive jurisprudence. By progressive, I do not mean a political program but rather an approach to how the Supreme Court views its role and its work. Progressive jurisprudence was developed in the shadow of the relative formalism of the classical jurists and forged in the pragmatic philosophical tradition at the turn-of-the-century. Progressive judges eschewed absolutist constitutional claims; their decisions were fact-based, attentive to changing social conditions, and deferential to legislatures. That progressive attitude has been in decline for some time, for it comes from a conception of the judge that is at odds with two twentieth century jurisprudential trends. The first trend is the idea that rights should be understood as trumps, defined in opposition to the public interest. The second trend is a pervasive skepticism that legislatures or courts do or can ascertain and implement the public interest in the first place. This skepticism has generated repeated efforts to cabin judicial discretion out of a concern that judges are simply engaged in politics by another name. Justice Scalia - the author of the majority opinion in Heller - is deeply skeptical of legislative or judicial attempts to arrive at an honest assessment of the public good. Justice Breyer is less so; the problem of judicial power that Scalia's originalism attempts to solve is simply less of a concern for him.