Breyer: Court Should Aid Minority Rights

[Storebought]

AP

WASHINGTON - 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O'Connor, however, has since retired and been replaced by conservative Justice Samuel Alito.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.


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Have at it.

[dazzleman]

Dangerous judicial activism.  He basically says the courts should rule based on the desirability of the expected outcome, regardless of whether there is a constitutional basis for the ruling.

This is nothing more than legislating from the bench.  This is the type of thing we have to stop on the courts.

[Alcon]

Since when has "constitutional" been reduced to a synonym for "good"?

[Storebought]

Of course, I agree with you (), but I'd like to comment on how incoherent Breyer's argument is.

Granted this is just a FoxNews interview, but even supreme court justices are required to put some sort of thought in what they say off the bench.

On the one hand, he says that the Constitution protects, among other things, a "a degree of equality ... so that no one gets too powerful." Then, just moments later, says it wouldn't make sense to strictly follow the Constitution because some of its phrases are vague.

Using the McCain-Feingold CFR as an example, Breyer says he ignored the clear, literal text of the Constitution -- you know, the one he says guarantees the rights of the minority against the powerful -- to make the electoral process 'more fair.' Because he couldn't have otherwise if he actually followed previous law on the topic.

This makes no sense unless one accepts the negation of what Breyer says, namely that the Constitution does not guarantee any degree of equality of outcome (i.e., what Scalia and Thomas argue). Then it is perfectly logical to ignore it to make society 'more fair.' All Breyer's talk about 'vague language' in the text and such is just a pure red herring.

But if Breyer said as much, then he'd admit that Scalia's strict constructionist interpretation is the correct one.
 

[MaC]

Dangerous judicial activism.  He basically says the courts should rule based on the desirability of the expected outcome, regardless of whether there is a constitutional basis for the ruling.

This is nothing more than legislating from the bench.  This is the type of thing we have to stop on the courts.

true.
This isn't even ruling based on what text ought to mean as much as it is completely ignoring text.

[Beet]

Of course, I agree with you (), but I'd like to comment on how incoherent Breyer's argument is.

Granted this is just a FoxNews interview, but even supreme court justices are required to put some sort of thought in what they say off the bench.

On the one hand, he says that the Constitution protects, among other things, a "a degree of equality ... so that no one gets too powerful." Then, just moments later, says it wouldn't make sense to strictly follow the Constitution because some of its phrases are vague.

Using the McCain-Feingold CFR as an example, Breyer says he ignored the clear, literal text of the Constitution -- you know, the one he says guarantees the rights of the minority against the powerful -- to make the electoral process 'more fair.' Because he couldn't have otherwise if he actually followed previous law on the topic.

This makes no sense unless one accepts the negation of what Breyer says, namely that the Constitution does not guarantee any degree of equality of outcome (i.e., what Scalia and Thomas argue). Then it is perfectly logical to ignore it to make society 'more fair.' All Breyer's talk about 'vague language' in the text and such is just a pure red herring.

But if Breyer said as much, then he'd admit that Scalia's strict constructionist interpretation is the correct one.

Scalia isn't really a strict constructionist though. There are no purely strict constructionists on the Court, because all of them toss out strict constructionism when it suits them. In order to understand Breyer's comments you have to look beyond simplistic understandings of how the law works and see the legal culture that has sustained much of the legal system through the modern, and even pre-modern, era.

The premise of having judges is that there are legitimate areas of dispute as to how the law applies in some cases and that the answer is not 100% clear. It is true, for example, that the "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"; the founders designed it specifically for this purpose. It is also true, however, that the Constitution was written in a very different, that it contains areas of ambiguity which are unclear in the modern context. Breyer seems to be arguing that when these areas of ambiguity apply, we ought to take up the interpretation that substantively fulfills the ends for which the Constitution has been designed. That is not in the least incoherent.

[Beet]

Since when has "constitutional" been reduced to a synonym for "good"?

Well, the ends for which the law is established is for the good of society.

[Alcon]

Since when has "constitutional" been reduced to a synonym for "good"?

Well, the ends for which the law is established is for the good of society.

I do not see your point.  Breyer argues it is constitutional because it has a positive outcome.  How is that a valid argument?

[Beet]

Since when has "constitutional" been reduced to a synonym for "good"?

Well, the ends for which the law is established is for the good of society.

I do not see your point.  Breyer argues it is constitutional because it has a positive outcome.  How is that a valid argument?

No, it's constitutional because it satisfies the text of the constitution, and it's the right decision because it has a positive outcome with respect to the original goals of the constitution.

But a broader point is that the ultimate end of this is for the good of society-- that's the point of the constitution, the law-- everything. That's hardly a trivial fact.

[KEmperor]

Since when has "constitutional" been reduced to a synonym for "good"?

Well, the ends for which the law is established is for the good of society.

I do not see your point.  Breyer argues it is constitutional because it has a positive outcome.  How is that a valid argument?

Because it's not up to the courts to decide what laws are "good" or "bad."  That's the job of the legislature, the job of the courts is to make sure that the laws are valid under the constitution.

[Beet]

Since when has "constitutional" been reduced to a synonym for "good"?

Well, the ends for which the law is established is for the good of society.

I do not see your point.  Breyer argues it is constitutional because it has a positive outcome.  How is that a valid argument?

Because it's not up to the courts to decide what laws are "good" or "bad."  That's the job of the legislature, the job of the courts is to make sure that the laws are valid under the constitution.

How is that an answer to Alcon's question?

[KEmperor]

Since when has "constitutional" been reduced to a synonym for "good"?

Well, the ends for which the law is established is for the good of society.

I do not see your point.  Breyer argues it is constitutional because it has a positive outcome.  How is that a valid argument?

Because it's not up to the courts to decide what laws are "good" or "bad."  That's the job of the legislature, the job of the courts is to make sure that the laws are valid under the constitution.

How is that an answer to Alcon's question?

Upon re-reading Alcon's post, I see that I misunderstood it.  I took it the opposite of what he meant.

[Sam Spade]

I find it kind of ironic that Breyer screams for the court to protect the minority "so that no one gets too powerful" in certain situations, such as these segregation cases. 

Yet in other situations, such as his Commerce Clause/14th amendment, Section 5 jurisprudence, his viewpoint has been the USSC should abdicate its role as arbiter of judicial review and let the general majority rule of Congress legislate into any such matters as it wishes to, because its judgment is always "constitutional", regardless of outcome, especially to political "minorities" or political entities with less Constitutional power, like the states.

Secondly, Scalia is a textualist, not a strict constructionist or an originalist, if you prefer.  His viewpoint (generally) would be in a situation, "Well, what did "freedom" mean by accepted legal definition when the Founders wrote the Constitution?  Let's pull out Blackstone and find out.  What judicial precedent and statute affected this generally accepted definition afterwards."

Scalia hates using founders' intent (even though I have seen him quote Federalist papers once or twice, fyi); remember that most of rationale in Dred Scott comes from interpreting founders' intent.  Of course, I have seen Stevens and Souter use textualist arguments as well against the other side, so the pendulum swings both ways.

Scalia hates legislative intent even more.  In fact, the great change in the court over the last 20 years has been his influence to eliminate legislative intent from SC opinions.  It is almost universally supported, even by others who don't support his rulings (I think only Stevens is the only one who writes legislative intent now on the Court) and I think it's well-founded.  Earlier in his period on the court, you would see concurrences in decisions from Scalia, saying essentially, "I agree with all this ruling, except for footnote 4 which uses legislative intentions to come to its conclusion".  Just brilliant.

[A18]

Scalia will of course cite the Federalist Papers, as those are relevant to ascertaining the originally understood meaning of a constitutional provision, and the political theory behind it. He's interested, however, only in the original public meaning, and not the subjective intentions of the framers. His brand of originalism is hence a logical extension of textualism, in direct contravention to intentionalism.

I am aware of no statistics as to how often the Supreme Court employs legislative history in statutory cases. However, Justice Alito cited it just last term.

Dred Scott, I might add, is incompatible with both conventional originalism and any sensible construction of the intent of the framers.