Breyer's Big Idea: The Justice’s vision for a progressive revival on the Supreme Court.

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. Bush’s 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 wasn’t 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 city’s 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 don’t assume good faith, it makes matters personal, and it makes it harder to reach a good result and, in my experience, it normally isn’t even true. People do act in good faith. The best clue to what a person thinks is what he says.”

Breyer’s confidence in the Supreme Court isn’t shared by many Democratic lawyers and judges. After his appointment, membership on the Court remained stable for eleven years—the 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 O’Connor. Furthermore, Breyer’s 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. “I’ve 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 Breyer’s 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 document’s 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 power”—in 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 isn’t so. I think there is a more traditional approach, and it’s coherent, consistent, and specific.”

“The message I’m 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 don’t participate, the country can’t 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 law’s 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 individual’s 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 Court—led by the conservative Justices Rehnquist, Scalia, and Thomas—began 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 government’s 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 Congress’s way.

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.

<< 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. <<

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.

Miers is a 60 year old social worker wannabe who, if she were in David's sandals, would still be struggling to understand the physics of a sling.

One cannot but wonder how much David understood the physics of a sling, probably not that much, although that didn't stop him from using it effectively

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.

Actually, the Scott case was not judicial legislation. It was decided, unpopularily, on the constitutions, states and federal, and customs and law prevailing at the time. To have decided otherwise in that era would have been judicial legislation.

It's always been entertaining to me conservatives so negatively adamant about a case that was decided as conservatives want cases to be decided.

"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.

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.

BINGO. You nailed it.
Sadly this point is missed on many members here who just want a robot who casts the "right" votes. They do not understand what is at stake.

I am seriously concerned by what someone like Miers could do to the reputation of conservative jurisprudence and originalist doctrine. My fear is she could turn it into an object of ridicule and scorn.

In order to illustrate just how dire this is, I've been explaining to people that I would rather give the seat to a staunch liberal than Miers. The liberal would do less damage to the conservative establishment long-term. Naturally this is doesn't go over very well with many here, either.

Breyer:
?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 it’s 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.

Breyer (along with a majority of his colleagues) upheld most of [Campaign Finance Reform's] 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 individual’s 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.”

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...

So Breyer is a majoritarian—sometimes. “What is mysterious and really unexplained is what is the relationship between his embrace of democracy in his book and the vigorous enforcement, in which Justice Breyer has sometimes enthusiastically participated, of individual rights against majority decisions,” says Charles Fried, a professor at Harvard Law School and a friend of Breyer’s, who was a former Solicitor General in the Reagan Administration and frequently disagrees with his decisions. “It’s not helpful to say that the dominant interpretive principle is to reinforce majority rule when a number of the most controversial constitutional doctrines, like abortion, are exactly designed to limit and counteract majority rule.”

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.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.