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.

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To read the paper, open HERE.

Breyer on Religious Freedoms

By Patrick Kennedy
Patrick Kennedy, a third year law student at Albany Law School, graduated from the College of Saint Rose in 2011 with a Bachelor's Degree in History and Political Science and a minor in Philosophy. Patrick is interested in New York State politics and government, having interned with the New York State Executive Chamber while in law school. Previously, Patrick interned with the NYS Division of Criminal Justice Services, in the Offices of Assemblyman Phil Boyle and Congressman Paul Tonko, and with the New York City Office of State Legislative Affairs.
This essay on Supreme Court Justice Stephen G. Breyer's treatment of religious liberty was prepared for Prof. Bonventre's Judicial Process seminar, Fall 2013.

Despite the United States’ vast diversity, public opinion of politically, culturally, and socially charged issues divides on fairly consistent fault lines.  Examples in this endless culture war include issues that touch on race, gender, equality, privacy, or the role of the federal government.  These rifts are seen not only in public opinion polls, but also in the politicians we elect, and even in the opinions of the Supreme Court, which we like to fantasize as beyond the realm of politics.

While the passage of time may erode certain outdated points of view on many issues, the split in public opinion regarding religious freedom has seen decades of back-and-forth.  These battles have percolated into the Supreme Court’s decisions, which amount to a microcosm of the culture war represented by a series of holdings and case law nothing short of schizophrenic.

The inconsistencies in the Court’s opinions stem from the fact that, rather than being based on solid, uncontestable legal theories, the articulable rules that guide these cases are the result of flimsy majorities and pluralities made up of widely disparate viewpoints of justices who agree on little aside from the end-result of a given case.  These viewpoints shift as old justices retire and new justices with different political views replace them.

Each justice has his or her own individual viewpoint that helps shape decisions. This paper will focus on selected opinions of pragmatic Justice Stephen Breyer.

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To read the paper, open HERE.

Judges: Lawmakers By Any Other Name

By Laura K. Bomyea
Laura K. Bomyea is a third year student at Albany Law School.  She received her undergraduate degree from Bard College, where she studied philosophy and literature.  Laura serves as Student Editor-in-Chief of the New York Environmental Lawyer, an Associate Editor on the Albany Law Review, a Student Editor with the New York Government Law and Policy Journal, and a Research Assistant with the Government Law Center at Albany Law. She currently works as a Law Clerk with Young/Sommer LLC.
This essay was prepared for the Judicial Process Seminar, Fall 2012.

The question of the role of judges as lawmakers is best addressed by Judge Cardozo’s assertion that the process of judging is not equivalent to matching colors in a card index. Rather, there are some “principles of selection” guiding the judge in his decision-making, even if those principles are not apparent to the judge himself.[1]

A judge cannot help but be a lawmaker.  For the process of making decisions, of creating new law where none existed before, is inherent in the process of judging. That is why judging is nothing like matching colors in a card index and spitting back the best match. 

Once a judge reaches “the land of mystery when the Constitution and statute are silent” on a given issue, the real work of judging begins.[2]  Precedent does not always help. Often it is merely, as Holmes calls it, prophecy.[3]

The judge needs to make a rule, or draw the case at hand within the net of existing rules, or carve out exceptions. He needs to decide something new, even by invoking something old in a new context, and that is where he puts on his hat as a lawmaker.

What's Wrong With Judicial Lawmaking Anyway?

By Benjamin P. Pomerance

Ben Pomerance, a third year student at Albany Law School, is the Executive Editor for Symposium for the Albany Law Review and the 2012 Edgar and Margaret Sandman Fellow for the Government Law Center.

Ben received the New York State Bar Association President's Pro Bono Service Award in recognition of his founding and leading the law school’s Veterans Pro Bono Project. He also received the Bar Association’s Elder Law Section Scholarship for his work in that field, including service as president of the school’s chapter of the National Academy of Elder Law Attorneys and a student editor of the Bar Association’s Elder Law Attorney publication. Additionally, Ben is student co-chair of the Law School Liaison program and editor-in-chief of Law Student Connection, the Bar Association’s student newsletter. He has previously been published by the Center for Judicial Process. (See Original Sin? Why a Prescription of Originalism as a Judicial Cure-All Falls Short of the Promised Remedy, 9/29/2012.)

One more thing, he organized an extraordinary symposium for the Law Review on Free Speech. It is no exaggeration that Ben planned and executed one of the very best events in my 22 years at Albany Law School.

This essay by Ben is the first in the series on judges as lawmakers prepared in the Judicial Process Seminar, Fall 2012.

Here’s the dirty little secret: Judges make law.

Actually, it isn’t much of a secret. The cat has been out of the bag since at least 1897, the year of Justice Oliver Wendell Holmes, Jr.’s seminal essay The Path of the Law.[1]

“Theory is my subject, not practical details,” Holmes wrote.[2] Then, a few lines later, he continued, “[t]heory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject.”[3]

In other words, simply applying law to facts and reaching an obvious conclusion cannot decide the vast majority of cases. The cases are not obvious, and the decisions are tough. And in order to reach them, judges must interpret the constitutional and statutory provisions to reach an answer. All of which leads to one unavoidable conclusion: Judges making law.

Many of the great judges recognize this reality. Holmes gave way to Benjamin Cardozo,[4] whose mantle of judicial realism has been taken up by today’s pragmatists like Richard Posner.[5] These judicial luminaries have stated—not as a confession but as a fact of life—that their job implicitly comes with more than a little bit of lawmaking.

Cardozo spoke freely in his celebrated lecture series, The Nature of the Judicial Process,[6] about his own use of value judgments and societal foresight and sensibilities in deciding cases.[7] He talks about the many ingredients that go into his decisions: logic, justice, sentiment, and reason.[8] Posner essentially does the same when criticizing the hard-line ideological stances of Justice Scalia and Justice Breyer.[9]  Get over it, he seems to be saying.  We know you make law.  And it’s okay.[10]

Textual Originalism versus Active Liberty

By Jeongkwan Lim

Jeongkwan Lim, an international student from South Korea, is in his second year at Albany Law School. He studied political science and philosophy as an undergraduate and received a masters degree in political science at Sogang University in Korea.  Prior to law school, he worked for a local government institution in Korea as a researcher.  Jeongkwan is interested in international law and philosophical debates about judicial power and the judicial process.

Jeongkwan's essay was prepared for the Judicial Process Seminar, fall 2012.

Why does Justice Antonin Scalia refuse to change his position on textual “originalim,” even though Judge Richard Posner provides evidence showing that his judicial philosophy severely lacks the coherence that is necessary to be persuasive?

Scalia, as a faint-hearted “originalist,” repeatedly insists that even though “originalism” is not perfect, it is relatively superior to “non-originalism.” According to him, it is superior with respect to “objectivity,” and objectivity is the most important characteristic when interpreting the Constitution.[1]

Nevertheless, when Scalia says “originalism” is an objective interpretive methodology, he is using two words that contradict each other: objective and interpretive. According to the Cambridge Academic Dictionary, “objective” means “not influenced by personal beliefs or feelings; fair or real.” “Interpretive” means “related to explaining or understanding the meaning of something.”[2]

Interpreting something is thus subjective. Without subjective personal beliefs or feelings--e.g., based on personal experience--we cannot shape our understanding of the meaning of something.

Posner anticipates Scalia’s probable response to the critique that there is no such “objectivity,” as Scalia claims, when we interpret the general words in the Constitution. As Posner puts it: “text as such may be politically neutral, but textualism is conservative.”[3]

Posner on Judging

His Reflections on Scalia and Breyer

By Yaronit Nordin

Yaronit Nordin, a second year student at Albany Law School, is a graduate of Bennington College in Vermont where she studied Literature and Photography.  After graduating law school, Yaronit hopes to practice in Vermont.
Yaronit's essay was prepared for the Judicial Process Seminar, fall 2012.

Judge Richard Posner’s jurisprudence or judicial philosophy can be said to emphasize honesty and practicality, and to discredit the idea that there can exist a perfect or unified analytical system applicable to any constitutional question that comes a judge’s way.

In “The Incoherence of Antonin Scalia,” Posner points to the failings and falsehood of “originalism” as Justice Scalia explains it in his most recent book.[1] In “Justice Breyer Throws Down the Gauntlet,”[2] Posner criticizes Breyer’s attempt, in his recent book, to fashion a loose-constructionist answer to “originalism” that Breyer calls “active liberty.”[3] 

Posner’s main problem with both Scalia’s and Breyer’s judicial philosophies is that both try to impose on the Constitution a framework that is too rigid for the real world, and one that is not or cannot be consistent with the document itself.[4]

Posner’s jurisprudence emerges from his analysis and is free of what he calls in his article on Breyer, a judge’s “self-censorship,” which leads judges to try to claim that their work is objective.[5] Posner embraces Ronald Dworkin’s “political morality”—a judicial philosophy that requires the judge to be a proponent of his legal determination, rather than to claim to be a passive oracle.[6]

Justice Breyer's Criminal Law Voting Record

By Nathan Hall


Nathan Hall, a 2011 summa cum laude graduate of Albany Law School, is originally from Lake George, NY, but is now pursuing his law career in New York City. In law school, Nathan interned at the New York State Department of Environmental Conservation, was a research assistant in international law for three years, and was a Senior Editor on the Albany Law Review.


This paper examines Justice Stephen Breyer’s voting patterns on important criminal law issues. It studies cases between 2002, when John Roberts became Chief Justice, through the 2009-10 term. These forty-six cases show that, in general, Breyer sides with the accused more often than the prosecution.


However, Breyer seems very concerned about stare decisis and deferring to precedent he deems binding on the matter at hand. This has oftentimes led him away from his typical “rights of the accused” stance and to vote in favor of the prosecution.This has been true in several cases dealing with search and seizure and others dealing with the right of confrontation.


Arguments in criminal cases before the Supreme Court are more likely to secure Justice Breyer’s vote if they can persuade him that they are based on legal precedent.

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Read the entire paper HERE.