The Nine [46]
It was still early in Breyer’s career on the Court, so he had not yet asserted himself as the powerful presence in oral arguments that he would become. But finally, frustrated at both Days and his colleagues, Breyer unloaded on the public defender who was representing Lopez. “So what would you say about the obvious argument, the simple argument against your position, that this isn’t a borderline case?
“The guns move in interstate commerce, likely, the books do, the desks do, the teachers might,” Breyer said. “People will not move to places in this country where children are being killed in schools by guns, and in fact, if the Federal Government can’t do something about it, maybe the whole economy will go down the drain in a thousand obvious ways.” Breyer referred to a case from 1942 where the Court said that homegrown wheat was sufficiently connected to interstate commerce to be regulated under the Commerce Clause. “If some homegrown wheat affects interstate commerce, which I guess is a borderline question economically, certainly guns in schools do really affect commerce.” All Breyer had done was summon the unquestioned state of constitutional law for more than a half century.
But Breyer’s advocacy (in the form of his questions) did not persuade a majority of his colleagues. On April 26, 1995, the Court ruled 5–4 that Congress had violated the Commerce Clause in passing the Gun-Free School Zones Act. Rehnquist’s opinion (joined by O’Connor, Scalia, Kennedy, and Thomas) represented the first time since 1935 that the justices had invalidated a law on the grounds that Congress exceeded its authority under the Commerce Clause. The rhetoric of the opinion meshed with that of Newt Gingrich, the newly installed Speaker of the House. Quoting James Madison in Federalist No. 45, Rehnquist wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The scope of “big government” was officially under assault from both sides of First Street.
The decision prompted the first full-throated dissent of Breyer’s career. “In my view, the statute falls well within the scope of the commerce power as this Court has understood that power over the last half century,” he wrote. Worse, he said, the majority’s decision represented a major threat to many other laws on the books. “Congress has enacted many statutes (more than 100 sections of the United States Code), including criminal statutes (at least 25 sections), that use the words ‘affecting commerce’ to define their scope,” Breyer wrote. “The Court’s holding…threatens legal uncertainty in an area of law that, until this case, seemed reasonably well settled.” But that, of course, was the point. The seeds sown by the Federalist Society and its allies were starting to bear fruit.
Like the other justices, Breyer knew the famous question that William Brennan used to ask his law clerks. What’s the most important law at the Supreme Court? The clerks would puzzle for some time. Freedom of speech?…Equal protection?…Separation of powers?…until the justice would raise his tiny hand and say, “Five! The law of five! With five votes, you can do anything around here!” Breyer, who clerked on the Court in its liberal heyday, would remark when the Brennan story was told, “Easy for him to say. He started with seven votes.” But Justice Stephen Breyer served on a very different Court. In the summer after Lopez, a friend praised him for his opinion in the case. Breyer gave a wistful smile and waved four fingers in