Monday, January 31, 2022

Balancing and Deference: A Reflection on Justice Breyer

 by Michael C. Dorf

In my Verdict column last week, I characterized Justice Breyer as: (1) a fox--who cared about and was interested in a great many things--rather than a hedgehog--who knows one big thing; (2) a compromiser; and (3) a balancer, who, other things being equal, saw the virtue of flexible multi-factor standards as superior to fixed rules. Contrasting Breyer with the late Justice Scalia, with whom he often sparred during their long overlap on the Court, I expressed a preference, all things considered, for Breyer's standards and balancing over Scalia's rules and commitment to constraining judicial discretion.

That said, I freely acknowledge that going all in on standards has the downside that proponents of rules frequently discuss. Other things being equal, standards are less determinate than rules, so rules have the virtue of predictability--valuable for those who must conform their conduct to rules as well as to a society worried about vesting too much discretion in those (such as unelected judges) who must apply the standards or rules.

My favorite example of a Breyer opinion that goes overboard in its multi-factor balancing is United States v. Comstock. A federal law provides that if a federal prisoner who would otherwise be eligible for release is found to be mentally ill and "sexually dangerous," that now-erstwhile prisoner can be civilly confined by the federal government, provided that the state in which he is found is first given the opportunity to take custody. The issue in the case was whether Congress had the power to enact the civil confinement statute. Two dissenters (Justices Thomas and Scalia) said no. Being mentally ill and sexually dangerous is not interstate commerce or anything else Congress is empowered to regulate, they concluded.

Justice Alito--in a persuasive concurrence in the judgment--said yes on straightforward grounds: Congress had the power to enact various criminal laws as necessary and proper to carrying out substantive policies implementing enumerated powers (e.g., protecting the U.S. mails, currency, or territories; regulating interstate commerce; collecting revenue, etc); therefore it had the power to imprison people who violate those laws; and therefore it was necessary and proper for Congress to address the safe disposition of persons after their custody pursuant to the criminal law ends.

Justice Breyer, writing for the majority, also said yes, but frustratingly, wrote an opinion that says very little about the general question of the scope of congressional power under the Necessary & Proper Clause of Article I. He listed the logic of Justice Alito's separate opinion as one factor among five that he found relevant, but he did not say how much weight applies to each factor or whether any are more important than others. Comstock is arguably the most important Necessary & Proper Clause case since Chief Justice John Marshall's landmark ruling in McCulloch v. Maryland. Yet it is very difficult to know what it means in any other setting. Are all five factors necessary conditions? Sufficient ones? What if they conflict? Etc.

Now to be fair to Justice Breyer and balancers, often the same factors that lead one to adopt a multi-factor balancing test--the complexity and context-sensitive nature of the judgment in any given case--make it difficult and/or artificial to specify by a rule how to prioritize or weight the various factors. An example from everyday life might be illustrative.

Let's say that you and your friend like to get together for lunch once a month. You both live in the same big city with many restaurants. You might have some rules. For example, you don't want to go anywhere that gets a bad grade from the health department. Likewise, if either of you has religious, ethical, medical, or other restrictions on your diet, you'll want to go somewhere that accommodates. Even so, there are hundreds of restaurants from which you might choose. What factors will you consider? Here are some: Food quality; healthiness of options; price; cuisine; portion size; speed of service; location; ambience; whether reservations are necessary or even accepted; whether you recently dined there; etc. I doubt that many people would think it helpful to try to specify how much weight to give each factor. On each occasion you and your friend will make an all-things-considered judgment. Trying to come up with an algorithm for where to eat would be a waste of time.

Needless to say, a judgment about the constitutionality of an act of Congress differs in important respects from a judgment about where to have lunch. Not only is the former much more consequential; it is law-governed in a way that the restaurant decision is not. And yet, even though I think Justice Breyer could have been a bit more prescriptive than he was in his Comstock opinion, I understand why, when a judge concludes that some legal question raises too many factors that vary by context to be encapsulated by a rule, that judge will also often have reason to conclude that even specifying weights or priorities of factors would be artificial.

That observation leads me to a further one. In my column, I noted that in addition to being a balancer and compromiser, Justice Breyer has been a leading proponent of the long-conventional-but-currently-under-challenge view that courts should defer to reasonable actions by administrative agencies. I want to connect that attitude of deference to balancing.

Consider the recent SCOTUS decision invalidating the OSHA vaccination mandate for large employers. I noted in my Verdict column that the line in the opinion that likely most irked Justice Breyer (who dissented, along with Justices Sotomayor and Kagan) was the majority's statement: "It is not our role to weigh . . . tradeoffs" between lives saved and dollars lost. For one thing, it was, of course, literally the Court's role, given that the "balance of the equities" is an essential ingredient in a case involving claims for injunctive relief. But more fundamentally, of course, Justice Breyer would have thought that if it wasn't the Court's role to weigh tradeoffs, it was the agency's job to do so.

Actually, would have thought is not accurate. Justice Breyer did think that. We know as much because he said so in his dissent: "The agency has thoroughly evaluated the risks that the disease poses to workers across all sectors of the economy. It has considered the extent to which various policies will mitigate those risks, and the costs those policies will entail." Accordingly, Justice Breyer saw every reason for the Court to defer to the balance struck by the agency. Indeed, given the stakes and the record, one senses that Justice Breyer thought the case exceptionally easy and the majority opinion thus egregiously wrong.

I don't want to relitigate the OSHA case here, however. My broader point is that there is a connection between balancing and deference to agencies. Even when statutes do not expressly require consideration of costs, reviewing courts almost invariably treat an administrative agency's task as weighing the costs and benefits of proposed regulations before proceeding with them. (Michigan v. EPA is a good example of the Court unanimously agreeing that an "appropriate and necessary" regulation must be cost-justified, even as the Court fractured over whether the EPA process and reg adequately took account of costs and benefits.) Thus, the process of agency rule making or other reviewable agency action will usually involve weighing costs and benefits.

As an ideological matter, conservative jurists are more skeptical of regulation than liberal jurists are, but I'm suggesting that methodological druthers reinforce ideology. Justices who think (as Scalia thought) that legality entails rules will be more inclined than balancers to find fault with an administrative process that assesses costs, assesses benefits, and then reaches an all-things considered judgment. How did the agency prioritize some benefits over other costs? How much weight did the agency give each factor? Are the quantities even commensurate? Consider Scalia in another context: "the scale analogy is not really appropriate, since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy." Or Thomas in Comstock, belittling the unweighted "considerations" that went into Breyer's analysis for the majority.

By contrast, a balancer like Breyer sees the agency assessing the relevant inputs, sees the exercise of judgment, and sees what looks like a reasonable output, and concludes that he has witnessed reasoned agency decision making. True, it's not rule-governed, but the exercise of agency discretion need not be rule-governed to be reasonable. Indeed, if the exercise were too rule-governed, that fact might make the agency process or result unreasonable.

In short, Justice Breyer's penchant for balancing likely has contributed substantially to his commitment to judicial deference to administrative agencies.