In law school, I took a yearlong administrative law course from Stephen Breyer.... At the end of every class, we made a point of checking how much chalk there was on his suit, since he tended to back into the blackboard in his excitement over topics like "agency nonacquiescence."That's especially funny to a lawprof, because most of us spend our classroom hours getting far more excited about the topic under discussion than it would make any sense for a normal young person to feel.
Anyway, Justice Breyer has a new book, "Active Liberty: Interpreting Our Democratic Constitution." I don't know about you, but I always balk at reading a book written by a Supreme Court Justice. They already hog such a large proportion of my reading time with their grossly bloated opinions. And now they want to claim even more of my time? (Though I'd love to read their blogs!)
Well, Breyer is writing to push back at Justice Scalia, who's successfully used book-writing to raise his profile as a Justice with a theory of interpretation, "original meaning." (Though he hasn't raised it high enough for the NYT to get it right. They call it "the 'original intent' of the founders," which is what Scalia takes pains to distinguish it from.)
Breyer calls his book "Active Liberty: Interpreting Our Democratic Constitution."
"Active liberty," according to Justice Breyer, is the ability of ordinary citizens to play a role in government decisions. As he sees it, the Constitution's drafters were most interested in creating a government that remained under the control of, as the first three words of the document say, "We the People."Shouldn't that be: under the control of Us the People? (I'm sorry. That's my pet peeve about constitutional pontificators: throwing "We the People" around without noticing when you're using it as the object and not the subject of your sentence.)
Originalists like Justice Scalia see the Constitution as a set of rights and rules that were frozen in time when they were written. Justice Breyer argues that the better What-would-the-founders-do? approach is to interpret the Constitution in ways that promote its essential purpose: helping citizens get the knowledge and power they need to influence government policies on important issues.Cohen informs us that Breyer demonstrates that his "active liberty" interpretive methodology supports various postions Breyer has taken on the Court: affirmative action doesn't violate Equal Protection; campaign finance regulation doesn't violate Free Speech. It's useful for a judge to fit his opinions into a framework. I'm glad there's a book from Breyer to set alongside Scalia's book. But I've read the opinions, and I expect the Justices to be able to make the argument that all that they've done is coherent.
If I want to spend more time thinking about how Breyer (or any other Supreme Court Justice) interprets the Constitution, it will be to discover for myself the ways in which the diverse opinions don't fit together.
IN THE COMMENTS: The question is raised: Which Supreme Court Justice would make the best blogger? I think it would depend on whether they were blogging openly in their own name, like Judge Posner, or running with an "Anonymous Supreme Court Justice" concept. It's pretty clear Scalia would be the best at blogging in his own name, but how could we know who has an inner blogger persona waiting to break free? I'd guess Clarence Thomas. Now, I realize the "Anonymous Supreme Court Justice" wouldn't work well enough to provide cover. What I suggest is that the Justice blog in the guise of an anonymous Supreme Court law clerk. It would be similar to the way Justice Stewart flew under the radar as a source for "The Brethren."