Thanks very much, again, to The Volokh Conspiracy for inviting me to blog about my recent paper on Justice Breyer's decisions and votes in Establishment Clause cases. In this post, I sketch a second distinguishing feature of his work, namely, the fact that he regularly rejected the argument that church-state cases could or should be resolved by applying a particular "test." Instead, his approach was consciously particularistic. He saw church-state controversies as highly and inevitably fact-bound, solvable only through a judicial balancing exercise akin to the proportionality review that is practiced in some other jurisdictions.
Justice Breyer was regularly described as "pragmatic." To be sure, this term means different things to different people. Still, it likely connotes some impatience with claims that judges can and should resolve well legal controversies via the consequence-indifferent invocation and application of a particular legal rule or test. A distinctive feature of Justice Breyer's approach to Establishment Clause controversies was his aversion to the constraints, and to what he regarded as the false promise of impersonality and regularity, of "tests."
Justice Breyer staked out his anti-test position most memorably in the Texas Ten Commandments case. He opened his controlling concurring opinion with Justice Arthur Goldberg's statement that there is "no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible." "[N]o single mechanical formula," he insisted, "can accurately draw the constitutional line in every case" or "readily explain" the outcomes in a broad array of Establishment Clause decisions. He went on:
