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There is an epistemic argument for judicial deference to the decisions of administrative agencies and legislatures: courts do not have easy access to relevant information, and they should defer to those who do. People who are steeped in technical issues, and alert to the importance of those issues, might well be inclined to embrace judicial modesty. In administrative law, then-Professor Stephen Breyer pioneered the view that judge-made doctrines reflect unarticulated assumptions about regulatory policy, and he urged that such doctrines could not be evaluated without a sense of the underlying substance and the likely human consequences. In light of the complexity of the substance, Justice Breyer argued for a degree of modesty. On the Supreme Court, Justice Breyer has often embraced judicial modesty as well, emphasizing the importance and relevance of complex judgments of fact.

In the 1960s and 1970s free speech law became doctrinalized. People came to understand that content-based regulations of persuasive speech could be justified only if courts could identify a relatively tight causal connection between the regulated speech and social harms, that speech that operated through noncognitive mechanisms could be regulated when the speech caused harm by its very utterance, and that speech falling within some specific categories such as obscenity and commercial speech could be regulated on a lesser showing of causation. They also came to understand that content-neutral regulations (formerly described as \"time, place, and manner\" regulations) could be justified by important governmental interests when the regulations had relatively small effects on the overall dissemination of speech. This is of course only a ketch of First Amendment doctrine as of the turn of the twenty-first century, but it gives a flavor of what the author means by \"doctrinalization.\"

Like Tim Gunn, the avuncular advisor to aspiring designers on reality TV's Project Runway, if Justice Stephen G. Breyer had a slogan, it would be \"Make it work!\" The idea of the law as useful -- as a way to solve problems -- runs through his many writings, whether opinions, articles, or books. This focus on making things work -- making sure the trains run on time -- is exemplified often in Justice Breyer's questions at oral argument. Sometimes Justice Breyer's tendency to try to make the law work, to be practical rather than adversarial, produces some surreal moments. In a world where every litigant was as committed to \"make it work\" as Justice Breyer, this approach would represent the ideal way forward on the complex severability question the Court ultimately was able to duck.

Although the government has an obligation not to promote religion, not all public displays of support for religion violate the Establishment Clause. So Justice Stephen Breyer concluded in his decisive concurring opinion in Van Orden v. Perry, in which, with the Supreme Court otherwise divided four to four, he declined to require the removal of a large Ten Commandments display that had stood for over forty years among the monuments surrounding the Texas State Capitol. In the author's view, Justice Breyer made the right judgment in Van Orden, which he described as the kind of \"borderline case\" that defies wise decision under any preset formula, at least absent a thoughtful reconsideration of first principles. No single opinion better epitomizes what is best about Justice Breyer's judicial philosophy -- including his sensitivity to practical consequences and his belief in the importance of strengthening political democracy -- than his concurring opinion in that case.

File sharing is both a blessing and a curse. It is a social good for there to be more information in the world and for more people to have access to it. But it is a social bad if property is stolen or if information is shared in a way that deters people from working to create new information or music or art or techniques for finding and disseminating these things. Information, culture, and markets are complicated social practices; so too is the institution of private property. It is simply not the case that the more property rights you have, the better off you are; nor is it the case that greater legal protection for property always leads to more of it being created or enhanced in value. Figuring out the right legal framework for a private property system is delicate, hard work. Justice Breyer understands this, and his concurring opinion in Metro-Goldwyn-Mayer Studios Inc v. Grokster Ltd is a mini-seminar in the complexity of property law.

In Holder v. Humanitarian Law Project, the Project and some other organizations and individuals working in international human rights asked for guidance about whether they could continue their work without violating 18 USC § 2339B(a)(I) (2012), which makes it a crime to \"knowingly provide material support or resources to a foreign terrorist organization.\" The penalty for conviction extends to fifteen years imprisonment and fines. The plaintiffs sought an injunction to prevent the Government from enforcing the ban against their speech-related activities. Usually, the federal courts discourage pre-violation challenges to criminal statutes, preferring to rule upon their meaning and constitutionality only after specific facts are at issue and a prosecution has taken place. In this case, however, the Court ruled in the abstract concerning the legality of the plaintiffs' proposed actions. It proceeded to uphold the prohibition of material support as applied even to the plaintiffs' speech activities. Justice Breyer wrote the sole dissenting opinion, which was joined by Justices Ginsburg and Sotomayor.

On Jun 27, 2005, the US Supreme Court decided two cases in which plaintiffs had raised Establishment Clause challenges to public displays of the Ten Commandments. The Court rejected the challenge to a monument display located on the grounds of the Texas State Capitol but vindicated the challenge to framed displays on the walls of two Kentucky courthouses. Both rulings divided the Justices by five to four, and Justice Breyer was the decisive vote in both cases. In his concurring opinion in the Texas case, Justice Breyer explained that context was critical in Establishment Clause cases, denied that any single mechanical formula can accurately draw the constitutional line in every case, and found it dispositive that the Texas display was roughly forty years old and had generated little controversy, while the Kentucky courthouse displays were quite recent and controversial. In effect, his ruling insulated from constitutional challenge the thousands of Ten Commandment markers that were erected in the 1950s and 1960s by the Fraternal Order of Eagles. Justice Breyer's opinion in Van Orden v. Perry is a laudable act of judicial statesmanship.

It's not often that a single opinion displays essentially all of a Justice's characteristic strengths and priorities at once, but Justice Breyer's masterful dissent in the relatively little-noted case striking down the limits on the SEC's removal power over members of the Public Company Accounting Oversight Board (PCAOB) created by the Sarbanes-Oxley Act of 2002 as Congress's response to \"a series of celebrated accounting debacles\" is just such a case. The Court's majority, in an opinion delivered by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Thomas, and Alito, finds a fatal flaw in the statute -- an ostensible flaw that it proceeds to correct and sever from the rest of the law -- in what it calls the law's \"double for-cause removal provisions,\" quoting the dissent of Judge Kavanaugh in the court below. Those are provisions the Court says \"combine to eliminate any meaningful Presidential control over the (Board).\"

Justice Breyer is a quintessential Legal Process judge. In their influential Legal Process materials, Professors Henry Hart and Albert Sacks tell you that all law is purposive, and that interpreters should presume, if at all possible, that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably. Justice Breyer likes that idea. He tells you that when difficult statutory questions are at issue, courts do better to focus foremost upon statutory purpose rather than struggle with the fine points of the text. From this premise, it follows that a judge should ask how a reasonable member of Congress would have wanted a court to interpret the statute in light of present circumstances of the particular case. This approach, Justice Breyer argues, promotes legislative accountability because the ordinary citizen evaluates laws in terms of their general purposes rather than the minutiae of the text. It also means that laws will work better for the people they are presently meant to affect.