Stephen Breyer is the most dazzling and puzzling member of the current Supreme Court. Unquestionably brilliant, he once proudly proclaimed himself the “bringer of chaos”—meaning that, as a self-described judicial pragmatist, he did not and would never follow a “judicial philosophy” like “originalism,” preferring instead to balance legal principles and institutional interests in each individual case. At its best, that method can shed new light on intractable questions. At its worst, however, it can remind an observer of a comment made by Theodore Roosevelt about his own appointee, Justice Oliver Wendell Holmes Jr.: “I could carve a better judge out of a banana.”
The Breyer puzzle is illustrated vividly by his surprising vote Wednesday for a stay of a lower-court order in Gloucester County School Board v. G.G.
Gavin Grimm, a transgender boy, is entering his senior year at Gloucester High School in Virginia. He identifies as male, and he has a medical diagnosis of gender dysphoria—a psychiatric term indicating that a person suffers significant distress at being forced to behave as a member of the sex to which he or she was assigned at birth by virtue of his or her genitals. Gavin’s birth certificate lists him as “female”; however, he experiences and presents himself as male.
Grimm had won an order from the Fourth Circuit requiring authorities at Gloucester High to permit him to use the boys’ bathroom. The school board has indicated that it will file a petition for review by the Supreme Court. On Wednesday, the Supreme Court entered a stay suspending the Fourth Circuit order. He will thus be barred from using the boys’ bathroom until the Court receives a petition and a response and decides at a future conference whether to grant review.
Under Supreme Court rules, it takes four justices to grant review of a case, but five to grant a stay of a lower-court ruling. The Court’s order makes clear the vote lineup—voting for the stay were Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito—and, as the fifth vote, Justice Breyer.
Breyer issued a special opinion to explain his vote:
In light of the facts that four Justices have voted to grant the application referred to the Court by the Chief Justice, that we are currently in recess, and that granting a stay will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court considers the forthcoming petition for certiorari, I vote to grant the application as a courtesy.
Breyer dropped in a citation to Medellin v. Texas, a 2008 case in which the justices allowed Texas to execute a Mexican national even though the International Court of Justice had ruled that his conviction violated an international treaty and even though Congress was considering legislation to bar executions that violated that treaty. The Court, 5-4, refused to halt the gurney—even though four of the justices had voted to ask the solicitor general for the federal government’s view of the case. In a plaintive dissent, Breyer wrote:
A sufficient number of Justices having voted to secure those views (four), it is particularly disappointing that no member of the majority has proved willing to provide a courtesy vote for a stay so that we can consider the Solicitor General's view once received. As it is, the request will be mooted by petitioner's execution, which execution, as I have said, will place this Nation in violation of international law.
In other words, Breyer’s vote in G.G. can be seen as a summons to the four remaining conservatives to reinstate a principle of comity that was lost during the scorched-earth rise of the conservative majority. As The New York Times’s Adam Liptak explained last year, the practice of the “courtesy fifth” arose when four justices voted to take a condemned prisoner’s appeal from an order setting an execution date. Four votes are all that is needed to grant review; but a stay requires five votes. Thus, a fifth justice might vote to grant a stay, even if dubious about or even firmly opposed to the prisoner’s claim; the deference to colleagues was designed to show internal respect.
That was then. The Court’s procedures are opaque, but it seems that in a number of cases, some justices have wanted to grant stays of execution pending full consideration of a condemned inmate’s petition but have not found a “courtesy fifth.” Permitting a death sentence to be carried out even when some judges wish to consider an appeal is one of the cruelest and most absurd results a human legal system can produce; only Dickens or Zola could frame words vivid enough to express its inhumanity.
As a collective institution, the new eight-member Court is rethinking the practices that led to such grotesque polarization when Justice Antonin Scalia was alive. Far be it for me to oppose any gesture, however frail, that might lead to a reduction in the take-no-prisoners language on the bench.
But Grimm’s case is a curious place to start. Contrary to Breyer’s airy assertion, the Court’s stay does not “preserve” anything. Instead, it decides the case once for all by taking away forever the victory that Grimm won in the court below. That’s because the filing of a petition and a response, the deliberations about whether to grant review, and the subsequent potential for briefing and argument will consume months. Grimm will graduate from high school long before that process can be completed.
Thus, having won below, he has now, through Breyer’s courtesy vote, essentially lost.
I recognize—and intend no disrespect to—the fact that some people find Grimm’s concerns less pressing than I do and believe students at Gloucester High to be the ones facing unneeded stress. The Court will, in time, have to resolve this conflict. But this week, it was weighing harm to an institution—a school district following political direction—against harm to a vulnerable individual. The stay awarded victory to the more powerful side before the less powerful one could even be heard.
Courtesy within a multimember court is a precious thing, and the Supreme Court needs more of it. I remain skeptical that the Court’s remaining conservatives will ever reciprocate in kind, but I understand the humane impulse behind Breyer’s vote. I would feel better about it, however, if his opinion showed any trace of awareness that his urbane gesture to placate his powerful colleagues had come at the expense of a vulnerable boy.
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