Skip to comments.Breyer's Big Idea: The Justice’s vision for a progressive revival on the Supreme Court.
Posted on 10/23/2005 7:52:28 AM PDT by Crackingham
In the weeks after the Supreme Court issued its decision in Bush v. Gore, on December 12, 2000, the mood was despondent in the chambers of the Justices on the losing side. The five-to-four ruling ended the recount of the Presidential vote in Florida and assured George W. Bushs victory in the election. The clerks were tremendously alienated, one recalled recently. A lot of them thought that the Court was a fraud, that the place had sacrificed its legitimacy, and that there really wasnt much point in taking the whole institution seriously anymore.
Stephen G. Breyer was among the dissenting Justices in the case. He was appointed to the Supreme Court by President Clinton in 1994, but his main residence is still a rambling clapboard house in Cambridge, Massachusetts, which he and his British-born wife, Joanna, bought three decades ago, early in his career as a professor at Harvard Law School. The house is on a cul-de-sac not far from Brattle Street, which has been home to the citys gentry since the American Revolution. Breyer works in the back of the house, in a sunny, glassed-in office, surrounded by paintings and leather-bound books.
One morning a few weeks ago, Breyer, who is sixty-seven, sat in his office in a worn wing chair, relating how he had tried to reassure the clerks. I spent a long time going to lunch with quite a few of them, to calm them down, he said. I told them, This, too, will pass. Breyer said that the pep talks were intended to help keep the young lawyers motivated, but they also reflected his fundamentally optimistic nature. You have to assume good faith, even on the part of people with whom you disagree, he told me. If you dont assume good faith, it makes matters personal, and it makes it harder to reach a good result and, in my experience, it normally isnt even true. People do act in good faith. The best clue to what a person thinks is what he says.
Breyers confidence in the Supreme Court isnt shared by many Democratic lawyers and judges. After his appointment, membership on the Court remained stable for eleven yearsthe longest period without turnover in more than a hundred and fifty years. But now John G. Roberts, Jr., has replaced William H. Rehnquist as Chief Justice, and Bush has nominated Harriet Miers, his White House counsel, to fill the seat vacated by Sandra Day OConnor. Furthermore, Breyers most liberal colleagues, John Paul Stevens and Ruth Bader Ginsburg, are eighty-five and seventy-two years old, respectively. A period of conservative hegemony on the Court seems a real possibility. In April, the Harvard Law School professor and veteran Supreme Court litigator Laurence H. Tribe announced that he would not complete a new edition of his mammoth treatise on constitutional law, which was originally published in 1978, because so many precedents that had once seemed settled now appear at risk of being overruled. Ive suspended work on a revision because, in area after area, we find ourselves at a fork in the road . . . and because conflict over basic constitutional premises is today at a fever pitch, Tribe wrote in a letter to Breyer, an old friend and former colleague.
In September, Breyer published Active Liberty: Interpreting Our Democratic Constitution, a manifesto for a progressive revival in American jurisprudence. The book, which is a hundred and sixty-one pages long, was inspired in part by Breyers disdain for the method of constitutional interpretation championed by his principal ideological rivals on the Court, Antonin Scalia and Clarence Thomas. Their approach, known as originalism or textualism, holds that the words of the Constitution mean only what the framers understood by them; the documents sense does not evolve over time. Constitutional scholars on both the left and the right have criticized originalism for being overly literal and doctrinaire, but Breyer is the first Justice to attempt to elaborate simultaneously a rebuttal and an alternative.
In Active Liberty, Breyer argues that the framers never intended for future generations of jurists to resolve contemporary controversies by guessing how the framers themselves would have resolved them. Instead, their goal was to promote what Breyer, quoting the nineteenth-century French political writer Benjamin Constant, calls active and constant participation in collective powerin other words, active liberty. The Constitution not only sets limits on official power, Breyer asserts; it insures the right of ordinary citizens to shape the workings of government. There is this coherent view of the Constitution that has taken hold, called originalism, textualism, a kind of literalism, which is a well worked-out theory, Breyer told me. And I think people are tempted to say that there is a coherent theory, on the one hand, and, on the other hand, there are simply judges who go around deciding each case as they think appropriate. And that isnt so. I think there is a more traditional approach, and its coherent, consistent, and specific.
The message Im trying to provide is that there is more to the Constitution than a Fourth of July speech, Breyer went on. It was a serious objective of the framers that people participate in the political process. If people dont participate, the country cant work. In his book, he cites several recent Supreme Court opinions to illustrate his thesis. In the 2003 case McConnell v. Federal Election Commission, the Court had to assess the constitutionality of the 2002 McCain-Feingold campaign-finance law, and consider whether caps on campaign contributions, and restrictions on advertising, constituted infringements on the right to free speech, which is guaranteed by the First Amendment. Breyer (along with a majority of his colleagues) upheld most of the laws provisions. To understand the First Amendment as seeking in significant part to protect active liberty, participatory self-government, is to understand it as protecting more than the individuals modern freedom, he writes. It is to understand the Amendment as seeking to facilitate a conversation among ordinary citizens that will encourage their informed participation in the electoral process.
For more than fifty years, starting with the New Deal, the Supreme Court gave Congress considerable leeway to pass laws, under the authority granted to it by the Constitution to regulate interstate commerce. In the nineteen-nineties, however, the Courtled by the conservative Justices Rehnquist, Scalia, and Thomasbegan to challenge congressional statutes in an effort to limit the power of the federal government. In 1995, in United States v. Lopez, a five-Justice majority ruled that Congress lacked the authority to pass a federal law banning the possession of guns in a school zone. On similar grounds, in 2000, the Court struck down, in another five-to-four vote, a provision of the federal Violence Against Women Act which gave victims of sex-related violence the right to sue their attackers in federal court.
Breyer dissented in both cases, arguing, in his opinion in Lopez, that the statute falls well within the scope of the commerce power as this Court has understood that power over the last half-century. The cases exemplify the conflict between originalism and the more pragmatic approach advocated by Breyer, and the outcome of this conflict has enormous implications for American government. Scalia and Thomas would like to see the federal governments role in regulating citizens lives reduced to the modest one that they believe the framers envisaged. As Thomas put it in his concurring opinion in Lo-pez, The Founding Fathers confirmed that most areas of life (even many matters that would have substantial effects on commerce) would remain outside the reach of the Federal Government. Breyer believes that, whenever possible, the Court should stay out of Congresss way.
By precedent I assume he means judicial legislation.
"The Constitution not only sets limits on official power, Breyer asserts; it insures the right of ordinary citizens to shape the workings of government"
Law students are taught that there are 3 basic rules in statutory construction: read the statute; read the statute; read the statute. Law is not rocket science and the US Constitution is not a penumbra. When elaborate intellectual contortions are applied to devise some elusive 'true meaning', the document is subjected to torture that be turned around to justify slavery, tyranny and despotism.
Breyer is an insult to the Constitution.
When democrats picks a liberal to be a Supreme Court Justice they get one.
Has Professor Tribe ever heard of Dredd Scott?
When you can't win at the ballot box, you try to win through the courts. The Democrats may finally lose control of the courts. Like a cornered wild animals, they are going to put up one hell of a fight.
There were two votes, not just the five to four vote. In a 7-2 per curiam opinion, the court ordered that a ballot recount then being conducted in certain counties in Florida was to be stopped due to lacking a consistent standard. The court further declared, in a 5-4 vote, that there was insufficient time to establish standards for a new recount that would meet Florida's deadline for certifying electors.
The MSM likes to ignore the 7 to 2 vote because it demolishes the myth that SCOTUS gave Bush the election based on partisan motives. In fact, Bush would have won anyway because the Florida legislature was prepared to give Bush the electoral votes and the GOP controlled House of Reps would have done likewise.
You beat me to it.
The biggest fear of the left is the best hope for our country.
There are no Constitutional conservatives in the House unless there is a motion to impeach Breyer on the table. There is no majority of conservatives in the House until Breyer is impeached. Until Breyer is impeached the Senate is irrelevant and members of the House that believe the opinion of the Senate is relevant before Breyer is impeached are not conservative.
The reality is that the Constitution is irrelevant as long as anyone believes that it is a political document subject to majority rule. People who accept the idea that the Constitution is subject to the political process do not understand the theory of our government as opposed to the present reality. When we abandon all pretext of being a Constitutional republic and become a democracy, there will be no reason for conservatives to consider living in proximity with socialists.
If the Constitution becomes purely a political instrument as Breyer advocates, the glue that holds the union together will quickly dissolve and there will be absolutely nothing to prevent a civil war.
At least Clinton had the fortitude to nominate the best liberal(s) he could to the bench. We don't need a yes woman; we need someone who can forcefully articulate and aggressively promote conservative principles.
I think it is important to bring it up every time there is a discussion about Bush v. Gore. The Democrats and their media are trying hard to rewrite history. If you repeat a lie often enough most people will eventually accept it as the truth.
The fact is that 7 out of 9 Justices recognized that what the Democrats were trying to do in Florida was unconstitutional. The majority included O'Connor, Souter and Breyer. Only the two most left wing partisans on the Court, Ginsburg and Stevens, refused to acknowledge the travesty that the Democrats were attempting in Florida. It is a fact that the Democrats really, really don't like.
This illustrates the problem with the Miers' nomination in a nutshell.
Breyer, although dangerously wrong and malinformed in the direction he wants to lead the nation through the mechanism of judicial legislating, is unquestionably highly intelligent, well written, and knows the field of battle extremely well. He is an idea man, and ideas have consquences.
Against this malevolent power (and three just like him on the SCOTUS) Bush proposes to send borderlne illiterate Harriet Miers, a nominee openly extolled by her FR defenders for her nonexistent preparation, woeful constitutional disinterest, and lack of any meaningful qualifications apart from lackluster service in elected honofiric positions such as state bar president.
It would be a more equal fight to send a sock puppet up to do battle with Godzilla.
And no, Miers is not brave fresh-faced David facing a heavily armored and battle scarred Goliath. Miers is a 60 year old social worker wannabe who, if she were in David's sandals, would still be strugging to understand the physics of a sling.
Through the legislative and referendum process, ordinary citizens participate in the workings of government. But then judges like Breyer overturn the will of the people.
Liberal activist judges like Breyer continually assert that the Constitution only means what THEY say it means based on the chic political correctness of the day. They try to pretend that the document does NOT include any mechanism for its own amendment.
And for all the blather about "informed participation in the electoral process", it rings awfully hollow considering all the recent elections, particularly state propositions, that Breyer and his liberal brethren have nullified across the country with a single stroke of the pen. Basically, Breyer is a sneak and a brazen liar. I cannot give him the benefit of the doubt that he is merely self-deluded.
Too bad he can suck down French political swill but never had time to read the prolific writing of the Founders. If he had, he wouldn't have to "guess" at their intent. What a steaming pile from Hahvahd Yahd.
That is exactly what Tribe means. Thank God his time has passed. Unfortunately, there's plenty more egomaniacal liberal activist scumbags where he came from.
Exactly, Mr. Breyer - without some humped-up liberal wearing a black robe striking down any referendum passed by the people that conflicts with your personal preferences.
"it insures the right of ordinary citizens to shape the workings of government"
What insures the right of ordinary citizens is the ability to VOTE on issues as required in a representative government. Breyer is totally ignoring the who point of Scalia and Thomas's arguments...that a NINE JUDGE court is NOT given power by the Constitution to LEGISLATE or write laws. It is up to the PEOPLE who elect our representatives to do so. Naturally, Breyer wants to interpret the constitution in his own way...it gives HIM the power. The framers believed that each branch of government would jealously guard their responsibilities and in doing so, the branches would remain "equal." Since Liberals can't win elections on their own policies, they want to use the courts to do it...because ultimately they are elitists who wish to rule.
Plus Breyer is in good health and will be on the court for some time. How well can Miers hold up to him and Souter?
Agreed. Gotta love how the Democrats screamed about the "partisan" supreme court. The irony is that Clinton appointee Breyer AGREED with the majority that the FL recount that Gore advocated was not consitutional. It was just that Souter and Breyer disagree with the other five justices over the timetable for implimenting another recount after that.
Your characterization of Miers as a "60 year old social worker wannabe" is simply not true.
She may not be the best out there, but you are talking about a woman with a pretty muscular career in the law.
Exaggeration of her flaws doesn't make your objection to her have any appeal.
It's always been entertaining to me conservatives so negatively adamant about a case that was decided as conservatives want cases to be decided.
I think you have me confused with JCEccles.
I'm still standing with Bush.
The Constitution means whatever we want it to mean.
"A period of conservative hegemony on the Court seems a real possibility."Let's hope so:)The part about the clerks was touching.
RE:"The clerks were tremendously alienated."Just a bit cynical imo.
"Actually, the Scott case was . . . decided as conservatives want cases to be decided."
Not so. Taney's opinion was bad originalism. It ignored the clear record that some blacks were citizens at the of the founding. It gave a preposterous reading of the "territories clause" and of Congress' power to legislate for territories acquired after the Constitution went into effect. It went out of its way to declare the Missouri Compromise unconstitutional. It may even have initiated the "substantive due process" idea that has born fruit in Roe v. Wade. Lincoln's "Cooper Union" address utterly destroys part of the reasoning.
This illustrates the problem with the Miers' nomination in a nutshell.BINGO. You nailed it.
Breyer, although dangerously wrong and malinformed in the direction he wants to lead the nation through the mechanism of judicial legislating, is unquestionably highly intelligent, well written, and knows the field of battle extremely well. He is an idea man, and ideas have consquences. Against this malevolent power (and three just like him on the SCOTUS) Bush proposes to send borderlne illiterate Harriet Miers, a nominee openly extolled by her FR defenders for her nonexistent preparation, woeful constitutional disinterest, and lack of any meaningful qualifications apart from lackluster service in elected honofiric positions such as state bar president.
It would be a more equal fight to send a sock puppet up to do battle with Godzilla.
?It was a serious objective of the framers that people participate in the political process. If people don?t participate, the country can?t work.?
But why vote if the wishes of majority amoung millions of voters get overturned by a majority of nine unelected judges?
Breyer doesn't even intellectually support his own thesis.
I guess we should just mindlessly go to the polls like N. Koreans or Cubans and give worthless ballots.
How is the the concept of "active liberty" a "more traditional approach, and its coherent, consistent, and specific approach," other than one which gives license to the sensibilities of the legal elite (many of which sensibilities I share), to legislate from the bench as and when evil as they see it presents itself, and is "ripe" for secular humanist smiting? I scanned the entire article, and the answer to that riddle inside a mystery within an enigma did not pop out for this particular secular humanist.
If Breyer leashed his active liberty penchant to political process issues (making the political playing field more level, because the political process itself is not easily capable of doing that by definition (see Baker v Carr)), and explained why that was, vis a vis more substantive issues, I would be a happier camper. He does not. The Breyer hunting license has no seasonal or bag number restrictions.
Which, in Justice Breyer's opinion, is best achieved by shutting them up -- so they can listen to their betters in the better informed MSM.
What an obscene, steaming pile...
Indeed. Breyer has some self restraint, but only on those matters which don't animinate his inner most juices. He has some self restraint, but not enough.
Forget the fact that there were legal and constitutional deadlines and that the ruling was acually 7-2 that the Florida Supreme Court actions were inappropriate.
You say Breyer "is unquestionably highly intelligent".
Yet he seems unable to understand that the people participate in government in elections - of congresscritters and presidents.
We have NO participation in the selection of the 9 unaccountable judges to whom Breyer gives power in the name of "participatory self-government".
Sounds stupid to me. I'm not a Meirs supporter, but the simple idea that we cannot participate in government by having 9 unelected life-term people making the law is simple enough that she could understand.
Now, does she truly understand that, or would she be a 'republican vote' in the unelected congress - that is the question.
All expressed opinions of that case were and are based on an emotional reaction to the harsh status of the blacks in America at that time, not hard law. Hard law is what we conservatives want the SC to use.