Stephen Breyer is the most dazzling and puzzling member of the current Supreme Court. Unquestionably brilliant, he once proudly proclaimed himself the “bringer of chaos”—meaning that, as a self-described judicial pragmatist, he did not and would never follow a “judicial philosophy” like “originalism,” preferring instead to balance legal principles and institutional interests in each individual case. At its best, that method can shed new light on intractable questions. At its worst, however, it can remind an observer of a comment made by Theodore Roosevelt about his own appointee, Justice Oliver Wendell Holmes Jr.: “I could carve a better judge out of a banana.”
The Breyer puzzle is illustrated vividly by his surprising vote Wednesday for a stay of a lower-court order in Gloucester County School Board v. G.G.
Gavin Grimm, a transgender boy, is entering his senior year at Gloucester High School in Virginia. He identifies as male, and he has a medical diagnosis of gender dysphoria—a psychiatric term indicating that a person suffers significant distress at being forced to behave as a member of the sex to which he or she was assigned at birth by virtue of his or her genitals. Gavin’s birth certificate lists him as “female”; however, he experiences and presents himself as male. Read more at The Atlantic.