By HARVEY SILVERGLATE  |  June 11, 2009

What emerges from Breyer's elegant and clear writing is a judge who avoids knee-jerk reactions, closely examines the facts, draws fine distinctions, and does not engage in verbal pyrotechnics and obfuscations.

Breyer practices the time-honored judicial craft of drawing distinctions between cases based upon sometimes small but meaningful factual variations that do, and indeed should, affect the outcome.

Thus, though Breyer agreed that the legislature may require that a parent of a pregnant girl should have some say over whether she should have an abortion, he also voted in 1990, along with a majority of his colleagues on the First Circuit, to overturn the Reagan-era regulations prohibiting federally funded family-planning clinics from offering abortion counseling. (The gag rule was affirmed, however, by a five-to-four vote of the Rehnquist Supreme court in the infamous case of Rust v. Sullivan. The Clinton administration has since lifted the rule.)

First Amendment fan

With respect to the critical legal issues of our day – whether freedom will be preserved in an age of growing governmental power, and whether equality under the law will be preserved in a diverse society in which ethnic, racial, sexual, and other groups are vying for preferential treatment – Breyer's record is cause for cautious optimism.

His opinions demonstrate considerable respect for the First Amendment.

His view in the abortion-clinic gag-order case, for example, was based upon the right to free speech: the rule prohibited health professionals at clinics that received federal funds from mentioning the option of abortion to patients.

He demonstrated sensitivity to religious liberty in a 1985 case when, in a relatively rare dissent, he sided with students at Boston University who refused, for religious reasons, to disclose certain government-mandated information on financial-aid forms. Breyer wrote that to deny financial aid for a "minor deviation from the bureaucratic norm in a nation as diverse as ours, housing so many strongly held but differing points of view, is to exacerbate conflict where it could be muted."

Breyer's record on freedom of conscience is solid as well. In the 1984 case of Wald v. Reagan, Breyer ruled that a federal statute did not give the president the right to stop US citizens from traveling to Cuba. In that same year, he wrote an opinion holding that the government could not investigate the loyalty of a citizen as a precondition to his or her employment at the World Health Organization (WHO). Breyer held that the executive order requiring a loyalty check was overly broad because it included, as a relevant factor, whether the applicant "advocated" (rather than participated in) treason, sedition, or revolution. Political advocacy, wrote Breyer, is political speech protected by the First Amendment.

But it is important to note that even in those opinions in which Breyer upheld First Amendment rights, he did so on the narrowest grounds available. Thus, in the Boston University religious-freedom case, as in the Cuba and WHO cases, he concentrated on constricting the reach of statutes rather than declaring broad constitutional principles.

Not that this makes Breyer a bad judge. There is, after all, a long-established judicial doctrine that a court should seek to decide a case on the narrowest grounds available.

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