Monday, November 23, 2020

Breyer and Cardozo: A Brief Comparison of Cautious Consequentialists

By Carol Sanchez
Carol Sanchez
will be graduating from Albany Law School in the Spring of 2021. During her time at Albany Law, Carol served as a Teaching Assistant for Constitutional Law I, Constitutional Law II: First Amendment, Criminal Law, and Torts. She is currently an Associate Editor for the Albany Government Law Review.
Carol worked as a Summer Associate at Barclay Damon, LLP in 2019, followed by K&L Gates LLP in 2020. Additionally, during the Spring Semester of her 2L year, Carol interned for Global Foundries in Malta, New York. 

The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. – Benjamin Cardozo.
Cardozo urged that all judges seem to inevitably share similar motifs in their problem-solving approaches for questions of law. But what exactly is the “good” in judges’ work that endures centuries and ties seemingly dissimilar judges together?

This paper will compare the jurisprudence of two Supreme Court Justices serving over half a century apart, Stephen Breyer and Benjamin Cardozo, in search of more intricate and critical similarities in their legal methodologies beyond what lies at the surface. Specifically, although the late Cardozo and the incumbent Breyer have both generally been regarded as ideologically liberal judges, the purpose here is to uncover similarities in reasoning that transcend both the test of time and the oversimplification of their “labelling.”

While many of Cardozo’s opinions shed light on his general approach to reaching decisions, his lectures collected in The Nature of the Judicial Process weres revolutionary in that they were the first of their kind to meticulously, comprehensively, and transparently describe the “common law methodology [used] to explain appellate decision-making.” Cardozo elaborated four principles that guided his jurisprudence, and he urged that judges must inevitably make decisions that are guided by the spirit of the times, directly challenging the legal fiction of textualism in areas of intentional or unintentional statutory vagueness.

However, do these four guiding principles apply solely to Cardozo, or do other judges, such as Justice Breyer, also subconsciously follow similar guiding approaches and methodologies in their works? This paper will explore Breyer’s jurisprudential tendencies through the study of three of his judicial opinions, as well as through a brief study of the jurisprudence set forth in his book, ACTIVE LIBERTY.
To read the paper, open HERE.