The Nine [167]
Because nearly every kind of private economic activity, no matter how minor, could impact interstate commerce if aggregated nation-wide, Stevens’s decision meant that Congress could regulate virtually everything. The pre-1995 status quo had returned. Again, Stevens’s patience during his long tenure had paid off with a thoroughgoing vindication of his views. Rehnquist could only join a forlorn protest in dissent.
It wasn’t just the conservative federalism revolution that sputtered in 2005; that year Kennedy invoked foreign law to strike down the death penalty for juvenile offenders. And these decisions followed the Court’s rejection of the administration’s position on Guantánamo Bay and O’Connor’s endorsement of affirmative action at the University of Michigan Law School. But it was perhaps the most controversial pair of cases from 2005 that underlined which remaining justice had the most to lose from O’Connor’s departure from the Court.
On the morning that O’Connor resigned, Stephen Breyer heard the news on National Public Radio. The two had become so close that it hurt Breyer’s feelings a little that she gave him no advance notice. Typically, O’Connor just attributed her secrecy to common sense; she didn’t want to place any of her colleagues in an awkward position if they were asked about her plans. But her alliance with Breyer had only grown stronger over time. In some cases it was hard to tell which one of them represented the Court’s swing vote.
Few justices took to the work of the Supreme Court with greater ease or enthusiasm than Breyer. His intelligence had never been in doubt, but when Clinton appointed him in 1994, Breyer had little experience in the grist of Supreme Court work—constitutional law. He was a problem solver, a technocrat, an antitrust and administrative law expert, the author of the federal sentencing guidelines. He was not someone who had given much thought to the majestic generalities of the Constitution. But in 2005, he did something that no justice had attempted in several generations—to write his own manifesto on the meaning of the Constitution. Characteristically, Breyer’s book, Active Liberty, was hardly an airy philosophical treatise but a practical book by a practical man. “Our constitutional history,” he wrote, “has been a quest for workable government, workable democratic government, workable democratic government protective of individual personal liberty.” No word better suited Breyer’s approach than workable.
In part, Breyer wrote Active Liberty to challenge Scalia’s doctrine of originalism. Like many other critics of Scalia, Breyer pointed out there was no way of knowing precisely what the framers meant by such phrases as freedom of speech or due process of law, much less how they would have applied those terms today. Scalia and Thomas’s approach, Breyer wrote, has “a tendency to undermine the Constitution’s efforts to create a framework for democratic government—a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively.” That was what Breyer meant by “active liberty”—a Constitution that not only protected citizens from government coercion but affirmatively gave power to citizens themselves to participate. Government existed