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.
September 30, 2005
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...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?
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.
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
Matt: Yeah, definitely. I was going to mention that.
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.
let 'em play it both ways, with term limits
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, please read about the principle of the slippery slope.
Whit,
WHAT polygamous civil union? (Is that those nutty "polyamory" folks? They are not likely to spread beyond California.)
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?
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