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Justice Breyer says Judicial activism not problem
The Chicago Tribune via The Columbia Daily Tribune ^ | February 8, 2006

Posted on 02/08/2006 6:15:30 PM PST by new yorker 77

CHICAGO - Stressing that "the role of a judge is to interpret the law and not legislate it," U.S. Supreme Court Justice Stephen Breyer told University of Chicago Law School students yesterday that they need not fear judicial activism by the current members of the Supreme Court.

"There’s no reason to believe that judges are now more ready to overturn prior precedent," Breyer said while addressing several hundred students inside the university’s Glen A. Lloyd Auditorium.

"All of the present judges basically agree that Congress, not judges, should decide policy," he said.

The 67-year-old Breyer, an alumnus of Harvard Law School, was on campus to speak as the university’s 2006 Ulysses and Marguerite Schwarz Memorial lecturer, an honor held each year by a distinguished lawyer or teacher.

During his hourlong lecture, Breyer took the opportunity to speak about the issue of judicial activism, a hot topic for many Americans in the wake of the recent turnover in the Supreme Court.

Last week, Samuel Alito was sworn in as a justice, four months after John Roberts Jr. was named the court’s chief justice. Both men were nominated by President George W. Bush, and some people have expressed concern that Alito and Roberts will shift the court to the right.

But Breyer - who was nominated in 1994 by President Bill Clinton - said yesterday that all the justices know their duty as members of the nation’s highest court and that each makes his or her decisions based not on politics but on the law.

"If a president appoints a justice and thinks he’s going to decide every case the way he wants it decided, he is wrong," Breyer said. "A president can’t control individual decisions, and he shouldn’t hope to."

Breyer said that justices might not always agree with the laws enacted but that they are still required to interpret those laws objectively.

Copyright © 2006 The Columbia Daily Tribune. All Rights Reserved.


TOPICS: Government; News/Current Events; Politics/Elections
KEYWORDS: judicialactivism; scotus; stephenbreyer

1 posted on 02/08/2006 6:15:32 PM PST by new yorker 77
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To: new yorker 77

"Prior precedent" was judicial activism. What I hate about lawyers is that their anchor is not the law as written but other interpretations.


2 posted on 02/08/2006 6:17:19 PM PST by AmishDude
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To: new yorker 77

It's not a problem for him, maybe.


3 posted on 02/08/2006 6:25:01 PM PST by My2Cents (In a time of universal deceit, telling the truth is a revolutionary act. -- George Orwell)
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To: new yorker 77

How in the world did this room temperature intellect every pass the bar? What idiots put him on the Court? WHERE was the Senate when they were suppose to be advising and consenting on this clown? Ever listen to this twit? He is even more of an embarrassment as on the SC then Ginzburg


4 posted on 02/08/2006 6:25:03 PM PST by MNJohnnie ("Vote Democrat-We are the party of reactionary inertia".)
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To: new yorker 77

""All of the present judges basically agree that Congress, not judges, should decide policy," he said. "

Hey, Breyer! You f'in idiot. The Constitution STATES that Congress, not judges, WILL decide policy. Jesus, man, did you go to law school or buy a diploma.

seeeesh!


5 posted on 02/08/2006 6:28:44 PM PST by lawdude (2006 Republican bumper sticker : Vote Republican: We are NOT democrats!)
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To: new yorker 77
"the role of a judge is to interpret the law and not legislate it,"

I'm not a lawyer so please excuse my ignorance if the following question seems silly or stupid.

Shouldn't the role of a judge be to "apply" the law to specific cases that come before them? I know the law is enforced by 'law enforcement' people, so this question is not about that. Why should laws have to be interpreted? Aren't they clear enough when they're written? If a law needs to be interpreted, shouldn't the law be revised by the people who wrote it in the first place? The way I see it, if a law needs to be interpreted to "fit" the desired outcome of a case by an "activist" judge, then the law was faulty in the first place and should be changed for future cases. (Just wondering and asking!)
6 posted on 02/08/2006 6:41:43 PM PST by adorno
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To: AmishDude

I agree. Why do we need precedent? Why not just interpret/rule on the law as it is written?


7 posted on 02/08/2006 6:43:36 PM PST by The Worthless Miracle
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To: new yorker 77

What about the Texas sodomy law they overturned? That was certainly "settled law." And the HORRIBLE eminent domain decision that clearly has rewritten the law on what constitutes a lawful taking of private property. These liberals are lying, as usual. Some student should have asked Breyer how many conservative votes he has cast when he said the justices have no political agenda. He and Ginsberg have voted just as Hillary would vote on virtually every issue since Billy Jeff appointed them.


8 posted on 02/08/2006 6:47:50 PM PST by kittymyrib
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To: new yorker 77

And just how did Breyer vote on the eminent domain case?


9 posted on 02/08/2006 6:51:46 PM PST by TravisBickle (The War on Terror: Win It There or Fight It Here)
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To: new yorker 77
Justice Breyer has the same perception of judicial activism as a fish has of water. His view of how the Court should/does operate under the Constitution is so skewed that he probably believes the bald-faced lies that he told this audience.

Congressman Billybob

Latest column: "NY Times Touts Dubious Conclusions on School Quality"

10 posted on 02/08/2006 6:53:58 PM PST by Congressman Billybob (Hillary! delendum est.)
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To: lawdude
Hey, Breyer! You f'in idiot. The Constitution STATES that Congress, not judges, WILL decide policy. Jesus, man, did you go to law school or buy a diploma.

Counselor, you should be able to critique Justice Breyer on the merits, and not call names - certainly without profanities. That you did otherwise does not reflect well upon you as an attorney.

Just because you - and I - disagree with Breyer on the merits of his decisions does not automatically make him an "idiot" who bought a diploma-mill law degree. He subscribes to a different approach than you and I do; that does not disqualify him as a judge.

11 posted on 02/08/2006 7:03:17 PM PST by jude24 ("Thy law is written on the hearts of men, which iniquity itself effaces not." - St. Augustine)
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To: adorno
Why should laws have to be interpreted? Aren't they clear enough when they're written?

No, they cannot be written definitively enough to cover every aspect of a problem. The First Amendment states that Congress can't make laws abridging freedom of the press -- that does NOT mean that libel laws and laws against advocating immediate revolution by force are unconstitutional. Then there is the Fourth Amendment's ban on "unreasonable" searches and seizures -- can a cop strip search a citizen Constitutionally? "Reasonable" doesn't by itself give you the answer to that question.

If a law needs to be interpreted, shouldn't the law be revised by the people who wrote it in the first place?

The authors of the Bill of Rights are unavailable at the moment. Of course, Laws and the Constitution can be amended or repealed, but this can't happen every time there is a dispute over interpretation. For example, go ahead and try to write a Law that properly defines "disturbing the peace" just as it pertains to how loudly one can play an outdoor stereo system. What is fine at 3pm on a college campus is inappropriate at 3am in suburbia. Decibels, time of day, nearness of neighbors, etc. all vary.

12 posted on 02/08/2006 7:13:20 PM PST by You Dirty Rats (I Love Free Republic!)
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To: jude24

huh ?


13 posted on 02/08/2006 7:13:44 PM PST by festus (The constitution may be flawed but its a whole lot better than what we have now.)
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To: new yorker 77
There was an AP article on this speech that was even more troubling. Perhaps someone has a link to it that could be posted.
14 posted on 02/08/2006 7:27:49 PM PST by kublia khan (Absolute war brings total victory)
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To: adorno
I can tell you how things are done at the state/local level. Specifically, Louisiana.

Shouldn't the role of a judge be to "apply" the law to specific cases that come before them?

By and large, yeah. That's how things get done.

I know the law is enforced by 'law enforcement' people, so this question is not about that. Why should laws have to be interpreted? Aren't they clear enough when they're written?

Not always. Holes show up in the law occasionally, and judges have to fill in the blanks.

If a law needs to be interpreted, shouldn't the law be revised by the people who wrote it in the first place?

If a judge raises a red flag for the legislature in his opinion, then yeah, they can legislatively affirm or overrule the judge's decision. But this can only happen after the fact; in the meantime, the judge has a case sitting on his docket, which means that a bunch of people are still waiting for a resolution to a legal dispute. They can't just wait around for the legislature to fix the problem.

The way I see it, if a law needs to be interpreted to "fit" the desired outcome of a case by an "activist" judge, then the law was faulty in the first place and should be changed for future cases. (Just wondering and asking!)

If a law is not unclear, and a judge chooses to ignore it or give it an entirely unreasonable interpretation, then there's a serious problem. If the legislature spots a judge doing this, they'll make the law as clear as possible so that the problem won't happen again. And the activist judge's decision is likely to be overturned on appeal, anyway.

Just for background info, here are the first few articles of the Louisiana Civil Code:

Art. 1 Sources of law: The sources of law are legislation and custom.

Art. 2 Legislation: Legislation is a solemn expression of legislative will.

Art. 3 Custom: Custom results from practice repeated for a long time and generally accepted as having acquired the force of law. Custom may not abrogate legislation.

Art. 4 Absence of legislation or custom: When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.

15 posted on 02/08/2006 7:56:31 PM PST by Gordongekko909 (I know. Let's cut his WHOLE BODY off.)
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To: new yorker 77

At least he is honest. Judicial activism is no problem to him. But we need to make it his problem.


16 posted on 02/09/2006 6:51:26 AM PST by Galveston Grl (Getting angry and abandoning power to the Democrats is not a choice.)
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To: new yorker 77

Who is this guy that he thinks, as a socialist liberal, that he knows anything about what "judicial activism" is?

He is off his nut about a mile!

Judicial activism, appears to be to Breyer, reversing prior precedents like Roe, the banning of sodomy laws, et al.

Judicial activism, in my opinion, is judges making or writing law from the bench. A judicial activist judge salivates when the Congress writes and passes vague legislation that leave people guessing, because he or she gets to flesh it out when the people in the society litigate it in court.


17 posted on 02/09/2006 7:34:39 AM PST by joyspring777
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To: adorno
Others have posted good replies to you, but consider the following as well. Suppose a statute says "murder is the knowing or intentional killing of a human being." Sounds simple enough? Not really.

What if a judge were to apply this to a situation where the "victim" was killed while attacking the defendant with a knife. Straight application of the law would not allow the jury to consider self defense.

If the judge says that there is no way the legislature intended the law to be applied in such a strict manner, is he guilty of judicial activism?

Throughout American history there has always been a body of law called the common law.

It simply means judge made law. As a matter of rhetoric it sounds bad. But it has not always been viewed that way.

In the political arena we say judges should not make law, but only apply and interpret the law. What we really mean is that judges should not make social policy while using the Constitution as a pretext. When a court interprets a Constitutional provision or statute, it is in essence making law. The way in which it is construed is binding on lower courts.

The point is that one must make a distinction between political rhetoric and legal reality. I hope this helps somewhat.

18 posted on 02/09/2006 9:38:13 AM PST by Clump
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To: Clump

Breyer is disingenious and he loves the sound of his own voice that's why he can't get enough of the lecture circuit and being on TV. I've never seen a justice so in love with himself.


19 posted on 02/09/2006 9:45:30 AM PST by outofhere2
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To: new yorker 77
"There’s no reason to believe that judges are now more ready to overturn prior precedent," Breyer said....

Like Dredd Scott?

I know that the thirteenth ammendment nullified it, but where does the USSC stand on their "precedent?"

20 posted on 02/09/2006 10:10:27 AM PST by nightdriver
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To: new yorker 77
"There’s no reason to believe that judges are now more ready to overturn prior precedent," Breyer said while addressing several hundred students inside the university’s Glen A. Lloyd Auditorium.

Thus demonstrating his definition of "judicial activism" is not the one commonly used in the real world.

21 posted on 02/09/2006 10:12:03 AM PST by VRWCmember
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To: jude24
that does not disqualify him as a judge.

What SHOULD disqualify him as a judge is his statement a couple of days ago about how the court makes laws, and his statement that he prefers to consider consequences of a decision rather than the plain text and historical context of the constitution and the law in question.

22 posted on 02/09/2006 10:15:22 AM PST by VRWCmember
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To: lawdude
FYI
Jude 24 - giving you the "high hat" regarding unkind words about Breyer and that he's one of "us" but only a really dignified lawyer, in contrast to lawdude.

Jude 24 is a troll. He came to my attention when he lost all self-control and posted a few too many anti-Coulter remarks. This dignified "lawyer" said he "didn't give a crap" about her only a few months ago. Actually Jude 24 claims he's a law student in upstate NY who's lost over 100 pounds, is training for the marathon and posts 1500 times a year on FR when he's not teaching Sunday school - a lot of free time don't you think?

Jude 24 likes Ruth Ginsburg but thinks Thomas is unqualified for the Supreme Court. He likes NPR but hates Newsmax, World Net Daily, Fox News, and especially Rupert Murdoch who he calls "the malevolent force behind Fox News". He takes the the full Murtha stance on Iraq, adopting the leftist vulgarian view that the USA is the real problem. He doesn't even think that brilliant economist Walter Williams has anything commendable to say. That would be unlike his "thoughtful" and lengthly defense of Bill Clinton against Juanita Broddarick. "Doesn't-give-a-crap" Jude 24 will even hector Freepers for calling Hillary "the Hildabeast".

How utterly twerpy and profoundly leftist too! How does Jude 24 get away with it? Well, he generates piles of chaff. He or the DU project called Jude 24, knows a cartload about interstices of interdenominationalism and gets pinged on many religious threads where he takes the earnest position of a highly enlightened Calvinist. This is great cover and he can hold forth with guys who are bigger knuckledraggers than I am. Temporizing, but in the name of god almighty, can give a leftist a lot of cover on this board.

He's had a long run and avoided the Great Zot he so richly deserves but I look forward to the day of justice.
23 posted on 02/09/2006 10:24:42 AM PST by namvetcav
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To: lawdude

Who cares if you called him an f'in idiot? Breyer IS an f'in idiot. It does not reflect bad upon you at all.


24 posted on 02/09/2006 10:28:49 AM PST by KC_Conspirator
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To: VRWCmember

Not to mention his reliance on foreign law.


25 posted on 02/09/2006 10:37:01 AM PST by half-cajun
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To: new yorker 77

Great. Give up your house for the Lost Freedom Hotel!


26 posted on 02/09/2006 11:17:50 AM PST by jw777
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To: new yorker 77

"Justice Breyer says Judicial activism not problem"

Rain in Texas is not a problem either if you're in California.


27 posted on 02/09/2006 11:19:39 AM PST by edcoil (Reality doesn't say much - doesn't need too)
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To: Congressman Billybob
I caught a bit of an interview with him about his book, Active Liberty: Interpreting Our Democratic Constitution - see the customer reviews on Amazon on Fox one Saturday (?) afternoon. I was only half listening, but it sounded as if he was quite willing to substitute freely his ***own*** ideas for those of the framers . . . actually I was surprised by how happily he "admitted" it!
28 posted on 02/09/2006 11:32:34 AM PST by maryz
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To: KC_Conspirator

"Who cares if you called him an f'in idiot? Breyer IS an f'in idiot. It does not reflect bad upon you at all."

Thanks for the props. I had Judeas 23 1/2 pegged pretty well. I have been chastized about some rather coarse language before but doubt f'in would incur the wrath of the one I hold in high esteme, Mr. R!

Jude baby is just that. A smarmy high and mighty lib elitist.


29 posted on 02/09/2006 12:36:08 PM PST by lawdude (2006 Republican bumper sticker : Vote Republican: We are NOT democrats!)
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To: AmishDude

Here's an analogy:

You're building a picket fence, and you measure the first picket and cut it. Then you lay the first picket on top of the board, draw a line on the board at the top of the first picket, and cut the second picket. You then lay the second picket on top of the next board and use it to measure and cut the third picket. And so on.

What's your picket fence look like by the time you finish it?


30 posted on 02/09/2006 12:42:50 PM PST by savedbygrace (SECURE THE BORDERS FIRST (I'M YELLING ON PURPOSE))
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