Breyer on Activism

Justice Breyer gave a talk at the law school today. His topic was activism and interpretation, and it was pretty interesting. He took questions at the end, and a very interesting topic came up.

The question was why, if the Court is not activist, we so often see predictable splits and feel comfortable describing justices as liberal or conservative. Justice Breyer answered that the Court isn't political in the partisan sense, or even very political in the ideological sense. His contention is that justices have different backgrounds and assumptions about the world, and this explains a lot of the divergence.

He came right out and said that in his years on the court he has never seen a decision reached on political (in the sense of partisan) grounds. Then he said there was one exception, which he could discuss at length. He didn't name the case, though. It took me a while, but I think I've figured out which case he meant.

American Trucking Associations, Inc. v. Michigan Public Service Com'n upheld a Michigan law charging trucks a $100 annual flat fee for intrastate shipping. Justice Breyer wrote the majority opinion.

Both Scalia and Thomas filed concurring opinions, but they made clear that they agreed with the result only. Scalia wrote:

Unlike the Court, ante, at 2423, 2425-2426, I reach that determination without adverting to various tests from our wardrobe of ever-changing negative Commerce Clause fashions...

Of course, Scalia is known for his sarcasm, but this is over the top. I can see why Breyer would still bear a grudge and consider this the one partisan decision from his time on the bench. Still, it's good to know that the one political decision was decided on relatively technical grounds and didn't seem to have huge consequences for the nation as a whole.

[UPDATE: edited for clarity]