September 17, 2010

Justice Breyer responds to pushback.

Or something.

(Whatever happened to refusing to comment on issues that might reach the Court in real cases? Or is that just get-through-the-Judiciary-Committee blather?)

ADDED: What scares me is the thought that, if Justice Breyer had heard cheers at the hint that he might protect the feelings of Muslims over the free speech of Rev. Jones, he would have gone the other way.

31 comments:

Fred4Pres said...

He should. He was dead wrong and he knows it.

traditionalguy said...

"Well in a sense yes, and in a sense no". That is great stuff from Mr Stare Decisis. With an umpire like Breyer, the fans would vote on all ball and strike calls.

Fred4Pres said...

I had to explain to my kids that while I oppose book and flag burning, I will defend a person right to do it. For free speech.

I think even my first grader picked up the concept quicker than Breyer did.

HDHouse said...

Any issue can reach the court - reasonable or not. Mr. Scalia has a lot to say in public on all manner of things and I've learned a lot watching Scalia and Breyer go back and forth in certain forums.

Talking about a topic generally or zeroing in is, I think, far removed from the set of facts that would make its way into the court.


But then, Breyer seems open minded - something unfathomable to the right wing and of course this will be an issue.

ricpic said...

No other conclusion is possible other than that Breyer is ashamed to be an American, Ergo the constant genuflecting to "the world." Remind you of someone else?

traditionalguy said...

HD ... I love open minded men. They can tell us that the rules need to take into account the feelings of people. But feelings are fickle and change every day. That is what a government creating standards for life of a dynamic commercial Society should never do. Because we cannot plan and execute enterprises based upon fickle rules that can change after we have started up. Have you ever played golf with someone who made up new rules as he went along, always sounding like fairness, but always in his favor. Breyer is more needed on the Venezuelan Supreme Court where Hugo Chavez would appreciate his open mindedness.

A.W. said...

i think actually breyer was overly cautious here. If you reread texas v. johnson it answers the whole question. breyer could reasonably say, "i think texas v. johnson answers the question" and be done with it.

i mean we didn't expect roberts to be agnostic about whether brown v. board of education was rightly decided, right? well, it is percisely the same issue.

ricpic said...

Is it okay to move your ball if it lands in a fairway divot?

Richard Dolan said...

"Whatever happened to refusing to comment on issues that might reach the Court in real cases?"

If a judge took that position, she would never comment on anything. It's a matter of the generality of the discussion -- judges avoid discussing specific (typically pending) cases, but have always been free to discuss general principles and to use examples (often drawn from decided cases or current events) to explain how those general principles play out.

Breyer's comments don't cross any line here. Except, that is, the idea that people holding high office should think before they speak, and should measure their words carefully. The idea is to avoid the 'open mouth, insert foot' problem, which Breyer proved unable to do here. He's hardly the only player on the national stage having that problem today.

edutcher said...

Amazing how those guys in black dresses jump when they realize the people are paying attention. And, through their votes, can control their pay and perks.

Big Mike said...

But then, Breyer seems open minded ...

Laying aside your ad hominem attacks on everyone to the right of you -- which is damn near the entire population of the United States -- calling Breyer open minded is a fantasy.

traditionalguy said...

Ripic...NO. Play it where it lies is the First and Greatest Commandment of golf. And don't bother to ask Breyer for relief, because Sonia Sotomayor's wisdom backs up the PGA's in this. Hispanic women have never played golf, so we can intimidate her. The Scots invented golf and Bobby Jones, a scotsman from Atlanta, totally mastered its rules.

c3 said...

Wasn't there a time when SCOTUS Judges kept quiet. Maybe I'm misremembering

Is it too much to ask to go back to that time?

1jpb said...

"What scares me is the thought..."

Occasionally I find Althouse's thoughts to be scary. But, more often her thoughts result in a WTF sentiment.

Scott M said...

ADDED: What scares me is the thought that, if Justice Breyer had heard cheers at the hint that he might protect the feelings of Muslims over the free speech of Rev. Jones, he would have gone the other way.

I'm no Breyer fan, Ann, and you may be 100% right, but it is just speculation on your part, isn't it?

Scott M said...

But then, Breyer seems open minded - something unfathomable to the right wing and of course this will be an issue.

Oh, please, HD. The left is just as close-minded on its core issues and you know it. Free speech used to be one of those.

traditionalguy said...

That reminds me, there are no reform tradition protestant Scots on a court called SCOT-US. How fair is that? I would like to see what Justices President Palin will pick. A Pentacostal like John Ashcroft and a Hasidic Jew? That issue may be why the GOP establishment (Read, Bush Family) is so frightened of Palin.

lemondog said...

By all means let's be open-minded, but not so open-minded that our brains drop out.

Richard Dawkins

former law student said...

Breyer's just law profing here. Distinguish shouting "Fire" in a crowded theatre from burning a Koran in a church parking lot.

Remember, in law school there are no right answers, only wrong ones.

ndspinelli said...

Breyer is backpedaling like a cornerback trying to cover Jerry Rice! The question remains, what the hell is this guy doing on morning shows and Larry King...Larry King! I hear Breyer has a publicist and has booked him on Judge Judy next week.

Hoosier Daddy said...

Distinguish shouting "Fire" in a crowded theatre from burning a Koran in a church parking lot.

Well, if we're to believe the liberal left, there is nothing to distinguish.

Lem said...

..something unfathomable to the right wing..

Open minded = no checks and balances ;)

I like this word better.
in·dom·i·ta·ble
Adjective: Impossible to subdue or defeat: "indomitable spirit".

Schorsch said...

I'm not a ConLawProf, but the words Breyer uses disturb me more what he's actually saying. He uses "good" and "useful," even "helpful" to describe what, I think, should be principles and rights. I shudder to consider the day he finds that my rights are no longer "useful."

HDHouse said...

Open minded but with a moral compass..or maybe that "tin can" Justice Thomas had in mind was magnetic.

Oh I get it. The moderates and liberals who - incidently seem to be the majority - are not permitted free speech unless the rightwing permits it?
yessir massah...I's do whats I'm told.

Robert said...

Seems the Clarence Thomas approach of listening silently might be preferable to needing two cracks at it in order to get the First Amendment correct.

This is probably why the Supremes are so averse to having video cameras in court.

Ignorance is Bliss said...

ricpic said...

Is it okay to move your ball if it lands in a fairway divot?

Of course it is okay to move your ball. You do so by swinging your club at it, and it counts as a stroke.

SMGalbraith said...

So the Justice is open-minded about the possibility of banning speech because the internet might broadcast that speech outside of the US and cause problems?

Heckler's veto goes international?

Fortunately, he closed his mind and thought better.

Charlie Eklund said...

Your racism is disgusting, House.

wv: ratsi

How appropriate.

PacRim Jim said...

The worst event of the 20th century?
The murder of 100+ million people by communists.
The best event of the 20th century?
American resistance to the spread of communist butchery.

Lucien said...

So then, burning a Koran in a crowded theater is the same as burning a flag in a crowded theater . . . which means that flags are made of paper . . . (which also floats) and therefore! -- A Witch!

Boy, this Con Law stuff is HARD.

David said...

S.C. Justices can be stupid too.

I think that's the secret to understanding Breyer.