September 30, 2005

"There's loads of room for judgment. The judges do judge."

Justice Breyer talks to Nina Totenberg about his new book, "Active Liberty." Totenberg does a nice job of challenging him -- after he's emphasized the democratic process over constitutional limitations -- by citing laws against abortion and laws regulating homosexual behavior, which the majority tries to enact and the Court insists on striking down. Breyer responds, conceding, as he must, that it's not all about the majority, that there are also constitutional rights for individuals and minorities, and that the judge still must do the hard work of drawing the lines: "There's loads of room for judgment. The judges do judge."

He doesn't talk about it in the interview, but presumably in the book, he uses the principle of democracy to define the scope of countermajoritarian rights. That's the real test of his theory, and that's where all the problems arise.


Simon said...

...citing laws against abortion and laws regulating homosexual behavior, which the majority tries to enact and the Court insists on striking down

Weird! Don't the pro choice always tell us how an overwhelming majority of the country is pro choice? Or are they now allowing that perhaps it isn't as cut-and-dried as that?

Matt Barr said...

It sounds like I read this book back when it was called Democracy and Distrust by John Hart Ely.

Dave Schuler said...

I heard the interview as well and found much of it puzzling. Particularly when he referred briefly to the importance of accountability to democracy. Apparently he considers the courts (at least in part) as a mechanism for holding the executive and legislative branches accountable. How he reconciles all this with the unaccountability of the Court will be interesting.

F said...

But holding executive and legislature accountable, in terms of ensuring they don't exceed their allowable functions and powers, is precisely what courts are for
They are the only things that stand between the people and despotism

Ann Althouse said...

Matt: Yeah, definitely. I was going to mention that.

FJR said...

The second nominee is going to be Gonzales, Bush has already referred obliquely to doing so.

Might I humbly refer you to, where I've posted on the matter too.

anselm said...

Apparently he considers the courts (at least in part) as a mechanism for holding the executive and legislative branches accountable. How he reconciles all this with the unaccountability of the Court will be interesting.

Totenberg mentioned that Thomas and Scalia have most often voted to invalidate acts of Congress, Breyer the least. This tendency is flipped on a limited set of social issues like abortion consent laws &c.

In the "furtherance of democracy" concept, Breyer has a strong and ever-relevant guiding principle. But as NT points out, it provides different answers depending on who is applying the principle.

The same, however, could be said of the supposedly static touchstone of original intent.

Goesh said...

let 'em play it both ways, with term limits

Richard Fagin said...

Yes, of course there is room for judgment. That's not the least bit controversial. What is a "reasonable" search and seizure? What is "cruel and unusual" punishment? Those terms are vague, and someone needs to figure out what they mean, because they appear in the Constitution and define the scope of actions the governmen may not take.

The Constitution provides that the United States may only exercise specific, enumerated powers, and provides that the United States, and the several states, despite the wishes of even a vast majority of their respective peoples may not exercise certain powers.

What IS controversial is the judgment by some on the Supreme Court that the Constitution substantively denies the states the power to enact certain legislation, notwithstanding the lack of any textual basis for such judgment, or that the Constitution empowers the United States to take certain actions, also notwithstanding a lack of textual basis for such judgment. This isn't even an argument about "original intent" it's an argument about just making stuff up because it suits a Justice's policy preference.

F said...

In relation to 'making stuff up because it suits a judge's policy preference' are you refering to purely political policy or also philosophical policy? For example is there a case to be made that the finding of an unenumerated right as a result of reliance on natural law theory would be somehow more acceptable than disallowing states from enacting particular laws as a result of a judge's political stance or are they both equally unacceptable in your eyes?

I think that, to some extent, the possibility of political and philosophical factors playing a role in judicial decision-making is an inescapable byproduct of the independence of the judiciary. By this I mean that all judges are human and therefore incapable of being obejctive or setting aside their personal views, life experiences etc... Judges from Frank, to Holmes and Cardozo have written about this: it's a practical realist perspective.

So there are always going to be cases in which judges' personal perspectives influence their decision. The only way to avoid that is to put in place some kind of accountability structure or mechanism, which would in turn be open to abuse and would also detract from judicial independence. Without judicial independence the whole idea of the separation of powers falls asunder (another Europeanism there for you Ann!) and we loose the capacity for the judiciary to act as the last line of citizen defence against excessive exercise of powers.

Perhaps it's a tradeoff we have to be prepared to accept?

whit said...

"...those like Breyer, who argue for a more flexible and adaptive interpretation of the Constitution's words."

This bothers me. I think it leads to a muddled chaos of incoherent decisions based on the prevailing social mores of the day. After one flexible and adaptive interpretation after another, we may no longer have a United States of America that we can recognise.
It's happening already, take the separation of church and state for instance. Can anyone in his right thinking mind read the Second Amendment and use it to justify the absurd rulings that have come out of the courts over the last thirty years? But if we are able to "flexibly and adaptibly" ignore the original intentions of the founding Fathers, eventually we will be forced to recognise not only rights to abortion and homosexuality to also beastiality, polygamy, and incest. That is a foregone conclusion.

amba said...

Whit, please read about the principle of the slippery slope.

whit said...

I read the link but it interesting that an incest case has already made it into a US court. The judge ruled against a brother and sister suing to regain custody of their children. I thought his reasoing was weak but he turned back the tide for now. Also, the polygamous civil union the other day...but thanks for trying to "buck me up."

madcat said...

It's not such a given that democracy should be equated with simple majoritarianism. Our constitution's drafters warned against the dangers of majority tyranny and created a *constitutional* republican democracy that protected against such dangers through various critical checks and balances. Between the constitution's explicit protections of equality and individual rights as against moral prejudice -- most notably in the 1st Amendment which is especially protective of minority opinioins, the 9th, which reserves rights to the individuals, the preamble, and the Equal Protection Clause -- and cases affirming such rights such as Brown v. Board, I'm not sure why Breyer's concept of democracy seems so shaky as compared to a simple majority concept of democracy.

madcat said...

... but here's what I don't like about the book so far. You can't easily tell from Breyer's endnotes, which lump all the quotations of the referenced paragraph together into one conensed endnote, which quotations are attributable to which sources.
Or maybe this is a common endnote technique and I'm just now noticing it?

amba said...


WHAT polygamous civil union? (Is that those nutty "polyamory" folks? They are not likely to spread beyond California.)

XWL said...

The polyamorous (and in this specific case polygamous) civil union took place recently, and was state sanctioned, in Belgium.

The fascinating thing to me was that part of the justification for this wedding stated by the man in this triad was that the women were bisexual and therefore weren't being subjected to the appetites of a single greedy man (presumably because he thinks a triad like this without mutual attraction would be immoral), but were instead manifesting their bisexuality in a mutually monogamous way (bi-nogamous? tri-nogamous? I give up). The unspoken assumption being that neither of these women could have been in a normal two person civil union as they would have at some point been compelled to be unfaithful on any single man or woman they found themselves legally bound.

This civil union would seem to also allow Muslim men to legally have their 4 wives (if they choose and can treat each equally as prescribed by the Koran), unless they make a presumption of mutual sexual attraction and fulfillment a requirement under Belgian law (and given Islamic views on female sexuality that would be a large hurdle for that community to overcome)

And just to make this about Justice Breyer, if a polyamorous grouping of individuals challenges U.S. bigamy laws, and the Supreme Court accepts the case, what are the odds that Justice Breyer will cite the Belgian example in his ruling?