Justice Breyer Takes 'Originalists' to Task

WJS reported When he was nominated to fill the Supreme Court's last vacancy, Stephen Breyer said he would strive to make the "law work for people." Eleven years later -- with a new opening on the court and controversy raging over the judiciary's role -- Justice Breyer wants to tell a broader audience how that should be done. In a book slated for release next month, Justice Breyer -- among the more liberal members of the court -- gives a detailed insight into his philosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society. In the process, he offers a rejoinder to a longtime intellectual opponent, Justice Antonin Scalia, who advocates "originalism," or a more literal interpretation of the Constitution's meaning at the time of its writing. "Active Liberty: Interpreting Our Democratic Constitution" explains Justice Breyer's approach and applies it to some of the most divisive topics that come before the court. These include everything from freedom of speech and privacy rights to affirmative action and last June's Ten Commandments cases, which addressed the constitutionality of religious symbols on government property.

Such public expounding is rare on the Supreme Court. Justices have on occasion written books -- Chief Justice William Rehnquist has penned several popular works of legal history, and retiring Justice Sandra Day O'Connor published a childhood memoir, for instance. But on the current court, only Justice Scalia has issued a legal manifesto, titled "A Matter of Interpretation: Federal Courts and the Law," which explains his originalist philosophy. Attempts to construe the Constitution as "evolving" merely are cover for judges imposing their views of what the law "ought" to be, rather than what it is, Justice Scalia argued in that 1997 volume. By contrast, Justice Breyer's "Active Liberty" contends that judges can undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disregard the "real world" consequences of the decisions they render.

Stephhen Breyer apparently wants to change what the constitution says, rather than ruling on what it says. That is his right, but he is in the wrong place. He should resign from the bench, and run for the legislature, and once there he should propose Constitutional Amendments to change the Constitution.