Righteous. Mysterious. Wise. Powerful. Borderline senile. That is a caricature of the Supreme Court that not even the ideologically-divided justices themselves would dispute. Aside from the fact that differences in legal interpretation can get contentious, these judges try to be impartial arbiters of justice rather than politicians in a black robe (although evidence exists to the contrary: Sandra Day O’Connor’s husband was reported by The Wall Street Journal as saying that Her Honor would be loath to retire if a Democrat were to appoint her successor). By and large, the Justice with whose outlook I most agree and respect is Stephen Breyer, a native San Franciscan and Clinton appointee. While Antonin Scalia spurns liberals and finds answers for all of our modern snafus in the year 1787 on one side of the court, Breyer embraces the pragmatic liberalism of an evolving Constitution that respects legislative prerogative on the other side.
Breyer has shared his judicial philosophy in a number of lectures and in his book but I will give a snapshot of it here. There are a few videos available on YouTube (apart from Scalia, he seems to be the most available Justice to the media); here is a clip where he distinguishes activism and restraint:
In his opinion, the Constitution at its most fundamental operational level seeks to ensure the right of people to make their own decisions (however misguided) through representatives divided vertically (local, state, national) and horizontally (executive, legislative, judicial) to diffuse the concentration of power. With the freedom to make decisions come borders, though, and the Justices are the border patrol. Interpreting the law means defining where the limits to freedom occur and, especially with free speech, we know that the Court does not always vote to expand those borders.
He explains that under the Roberts Court the number of unanimous decisions has decreased and the number of 5-4 cases has increased (although it is not necessarily the same five and same four who find themselves on one side or the other). Ironically, the man Justice Roberts admires, John Marshall, the Chief Justice at the turn of the nineteenth century, insisted on issuing one opinion per case to give the court the appearance of having a single mighty voice. Yet the Second Amendment case of this past week had around two-hundred pages of opinion published for both sides. However, with respect to how the decisions are arrived at, it does not necessarily matter if the reasoning for an argument is brilliant but whether it is sound. In other words, can people live with a decision that tries to provide an equitable solution to the problem based on constitutional principles?
The process for decision making has six parts for Breyer. One must look at the text of the Constitution, the history (what principles are behind the words), the tradition (what the words have come to mean), precedents (previous cases on the subject), the purpose (which values does the Constitutional provision address), and the consequence (what will happen as a result of ruling a particular way). He calls it “the living Constitution”; being as how the opposite view is textualism, I think of it as “contextualism.” Textualist/original intent judges look at only the first four aspects to decide a case. This outlook may work better align the Court with the intent of the Founders (even though their only intent was to produce a contract which secured a union of the states and the people) but it would not make any sense to decide cases in a vacuum—the Court is appointed for life, but their deliberations affect people and thus should feel the responsibility to do what is morally and legally in the right. That is why he looks for amicus curiae briefs that explain how the decision will impact the petitioners’ lives. It is true that looking into the future to see the consequences of one ruling does inject some subjectivity into the reasoning, but laws by definition are rules that govern interaction between bodies; the Constitution thus governs interactions between citizens and the government and between citizens themselves. When people are being unfairly treated by the laws (i.e. they are being denied “equal protection”) as was the case under segregation, it behooves the Court to correct the situation. The Constitution was founded on majority rule with minority rights, and courts must correct an infringement thereof.
This segues into his views on activism versus restraint. Breyer believes that the legislatures should make policy with his job being to police the aforementioned boundaries under which such laws may operate. That point of view shows him as advocate of restraint, which serves to illustrate the flaw that many conservatives who rail against “activist liberal judges” make. It is true, liberals can be activist, such as when Breyer and the left-leaning majority struck down the Military Commissions Act in order to give Guantánamo prisoners the right to a civil trial; but the conservatives more recently struck down the D.C. gun ban. In comparison, who would not celebrate the unanimous Brown v. Board decision which struck down countless segregation laws in the South? There can be benefits to activism but the decision to strike down a law or reverse a precedent must be decided carefully, and must include questions of purpose and consequence. Otherwise, you may end up with a jurist who believes, for example, that torture is not punishment. As Breyer foresaw, that is slick reasoning, but it is not just. And I hate to imagine the consequence of such a sentiment.
Check out YouTube for clips of Breyer in a discussion with Antonin Scalia or in a co-interview with Sandra O’Connor.
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