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Posted on 12/03/2006 1:04:49 PM PST by wagglebee
Justice Stephen G. Breyer says the Supreme Court must promote the political rights of minorities and look beyond the Constitution's text when necessary to ensure that "no one gets too powerful."
Breyer, a Clinton appointee who has brokered many of the high court's 5-4 rulings, spoke in a televised interview that aired one day before justices hear a key case on race in schools. He said judges must consider the practical impact of a decision to ensure democratic participation.
"We're the boundary patrol," Breyer said, reiterating themes in his 2005 book that argue in favor of race preferences in university admissions because they would lead to diverse workplaces and leadership.
"It's a Constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful," said Breyer, who often votes with a four-member liberal bloc of justices.
On Monday, the court will hear arguments in a pair of cases involving integration plans in K-12 schools. The legal challenge, which is backed by the Bush administration, could be among the most significant school cases since the landmark Brown v. Board of Education ruling in 1954 banned racial segregation.
In 2003, the court upheld race-conscious admissions in higher education in a 5-4 opinion by Justice Sandra Day O'Connor.
O'Connor, however, has since retired and been replaced by conservative Justice Samuel Alito. Justice Antonin Scalia, meanwhile, has denounced the use of race in school admissions as lacking any support in the Constitution.
In his interview, Breyer argued that in some cases it wouldn't make sense to strictly follow the Constitution because phrases such as "freedom of speech" are vague. Judges must look at the real-world context — not focus solely on framers' intent, as Scalia has argued — because society is constantly evolving, he said.
"Those words, 'the freedom of speech,' 'Congress shall pass no law abridging the freedom of speech' — neither they, the founders, nor those words tell you how to apply it to the Internet," Breyer said.
Pointing to the example of campaign finance, Breyer also said the court was right in 2003 to uphold on a 5-4 vote the McCain-Feingold law that banned unlimited donations to political parties.
Acknowledging that critics had a point in saying the law violates free speech, Breyer said the limits were constitutional because it would make the electoral process more fair and democratic to the little guy who isn't tied to special interests.
"You don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money," he said.
Breyer, who has voted to uphold abortion rights, declined to comment on the court's role in deciding abortion. Justices this term are considering the constitutionality of so-called "partial-birth" abortion in a case some conservatives hope will be used to overturn the landmark 1973 Roe v. Wade ruling.
"The more the precedent has been around, the more people rely on it, the more secure it has to be," he said.
Breyer commented on "Fox News Sunday," in an interview taped last week.
Ultimately it lies in the Second Amendment.
But before it comes to that, it lies in the power of impeachment.
Congress might want to think about exercising that power, before the people find they must exercise theirs.
A modest correction.
Of course, considering who will be chairing the Judiciary Committee in the House of Representatives, if any justice gets impeached in the next two years it will be one of the conservatives. Of the conservatives, the one the leftists seem to hate the most is Clarence Thomas. The black seat on the court is supposed to be held by a leftist. Of course Bill Clinton had two chances to put a left-wing black justice on the court, and failed to nominate one.
This kook should be imnpeached.
Fox News Sunday transcript:
http://www.foxnews.com/story/0,2933,234068,00.html
I was screaming at the TV set when I saw that interview. What a moron. "Rich people have more freedom of speech than poor people, so McCain Feingold is a good thing and only prohibits rich people's freedom of speech." I can't believe we have to take this condescending schmuck seriously!!!!!
WALLACE: You talk a lot in the book about the fact that the Constitution promotes active liberty and, as you put it in the answer to my first question, encouraging democratic participation, encouraging democratic conversation.
From that point of view, isn't one of the reasons that abortion has remained such a hot-button issue in this country because the Supreme Court took it out of the political process, took it away from the legislatures when it was being decided as part of that democratic conversation in 1973?
BREYER: Well, I purposely chose my examples in this book to illustrate a theme. And I didn't choose abortion as one of them. Because more important to me in writing a book — I mean, I'll decide abortion cases when they come up, but I know perfectly well that anything I say on that subject is enormously volatile. And so, I don't want to talk about that subject, particularly in a public forum that isn't the court.
WALLACE: Even the question as to whether or not...
BREYER: No, not any question to do with abortion. I go back to book.
http://www.foxnews.com/story/0,2933,234068,00.html
WALLACE: But there's also the interrogation of prisoners, there have been other issues.
BREYER: We haven't gone into the — there have been a lot of issues, but, I mean, you're asking what we, in particular, have taken...
WALLACE: What I guess I'm asking...
BREYER: But your basic question is, how does the judge know? And the answer is that the judge has to look at the record and the testimony and what's being elicited, just as he does in all difficult cases.
Ultimately we have a Constitution that guarantees a democratic system and that guarantees certain individual rights. I show that in this book. I discuss some of them. The rights are important.
Of course, as Justice Goldberg said, as Justice Jackson said, the Constitution is not a suicide pact. Everyone understands that. And that's why that Constitution in the Fourth Amendment uses words like "reasonable." There is flexibility in it.
The court has made terrible mistakes sometimes in its history, now recognized. Eighty thousand Americans, Japanese Americans, citizens of the United States, were brought during the early parts of World War II to camps, camps where they were held against their will, even though J. Edgar Hoover said there's no need to do that and even though every historian says there was no need to do that.
But it happened, and the court ratified it over three votes — Jackson, Murphy, Roberts — who said, "Don't do this."
So what you've done, Chris, which is correct, is that you've shown how difficult that problem is. We can't ignore the civil liberties aspect. You can't ignore — you can't ignore the security aspect.
And what judges try to do in that situation is to listen to what they're told by the lawyers, the witnesses and the others, and then they do their best not to make a mistake.
Not as mistake as to their personal opinion, by the way, but a mistake as to how those words that guarantee freedom in the Constitution apply to this situation.
WALLACE: Justice Stephen Breyer, the name of the book, "Active Liberty." Thank you for joining us, sir.
http://www.foxnews.com/story/0,2933,234068,00.html
The US Supreme Court is becoming the American Politburo
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. . . but of course you have no qualms about the "speech" that ownership of a broadcast network or a major newspaper implies - that ownership effect you accept and even applaud and amplify by approving restrictions (McCain-Feingold) on speech during elections by anyone who does not own a broadcast license or an establishment newspaper.. . . "Those words, 'the freedom of speech,' 'Congress shall pass no law abridging the freedom of speech' — neither they, the founders, nor those words tell you how to apply it to the Internet," Breyer said.
"Congress shall pass no law abridging the freedom of speech"
Only a leftist subversive could find this statement vague.
If anyone is allowed to speak, everyone is allowed to speak. If anyone is allowed to print, everyone is allowed to print. If anyone is allowed to publish on web sites, everyone is allowed to publish on web sites.What's hard about that?
(I'll tell you what's hard about it - SCOTUS would have to overturn the FCC and its established censorship of radio transmissions to create broadcasting in order honestly to apply the First Amendment. That is how far we are from First Amendment jurisprudence in America).
Breyer is not just an embarrassment to democracy but a threat to our society.
Jerk! A judge who favors one side over another is ordinarily regarded as biased and unable to render a fair decision. Justice Breyer should recuse himself from most cases.
I thought Supreme Court Justices had more brains than this. We're screwed for certain if justices can't hold the line. As a minority in my own mind, I appreciate the 'free-for-all' that makes this country great. Rising to the top of the heap doesn't require a judicial decree.
Yeah, the hypocrisy of this guy is amazing. I also like how he talks about encouraging 'democratic participation', but only of course if democratic action will result in the outcomes he and the Left desires. Otherwise, the people and democracy be damned, as with abortion, Establishment Clause cases, and soon, marriage.
And talk about needing a judiciary to accomodate an 'evolving society' is a joke. As a good Sup Court justice has pointed out, all you need to accomodate such evolution is a willing populace and legislature. Then you can have all the new 'rights' that you can win the votes for. The problem for the Left, of course, is that society has not evolved to their way of thinking on most hot-button issues. If they had, then there would be no need for our judicial masters like Breyer to step in and impose so many new bogus rights. But since the public rejects things like abortion on demand, and gay marriage, then Breyer and his gang must enlighten us rubes.
So what we are really talking about is the evolving values of a select elite in society, not the overall society itself and the people who comprise it. It will be interesting to see how Breyer and his gang justify the imposition of gay marriage/civil unions when they finally get around to it in light of how the majority of states have now explicity rejected gay marriage. What 'evolving standards' will the High Court point to to throw out these democratic actions?
I'm really think that the only way to truly end judicial activism is to successfully challenge judicial supremacy. That would require the other branches of govt to disregard and refuse to enforce the Court's particularly bad decisions. I don't see any other way to deal effectively with an out of control judiciary. But since I also don't see such defiance from the President, Congress, and the states, actually happening, then I am afraid that there will be no end to judicial supremacy.
Here's a man who has no children, no fears of lack of employment or financial insecurity. He has power so he assume that those of us who are also white also have power and security and that therefore, he, as the grand puhba, must level the playing field. What a total maroon.
Hey, maybe the lefties won't complain about the President supposedly violating the Constitution with the Patroit Act....after all, terrorists can't "get too powerful".
Did you see him on Fox News Sunday?
I wasn't impressed.
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