Supreme Court Justice Stephen Breyer Makes Case For Justices' Adherence To Consitition

From Alliance Defense Fund and The Wall Street Journal:

LAWSEPTEMBER 16, 2010, 8:46 P.M. ET.Breyer Makes Case for Justices' Adherence to Constitution
.Americans "think we're a group of junior league politicians," he said during a recent interview here. "They think we decide things on the basis of politics. Or, if not politics, on the basis of what we think is good for people, rather than the Constitution. And I think that's wrong."



In its most recent term, the court divided repeatedly along ideological lines, with a bare majority voting to strike down a local handgun ban and restrictions on corporate and union spending in elections.



Breyer on the Court

Interview Excerpts: "We're going to do things that are unpopular."

Book Excerpts: "Making Our Democracy Work: A Judge's View"

From the Archives

Scalia, Breyer: High Court Polar Opposites

Justice Breyer Takes 'Originalists' to Task in a New Book

.Justice Breyer, during a conversation in the chambers he keeps at the federal courthouse here, sought to tamp down criticism from some on the left that conservatives led by Chief Justice John Roberts are on an ideological mission to roll back individual rights, while showing "tea-party groups" and others on the right why liberal-leaning justices like him believe they are keeping faith with the framers.



Even when the justices disagree, "all nine of us think we're following the same Constitution that was there in 1790," he said.



Justice Breyer has just published his first book aimed at a general audience. "Making Our Democracy Work: A Judge's View" takes readers through historical cases that helped establish the court's place in the American system. "I want to show through example what it is to be a member of the court," he said.



His concern about public confidence in the high court deepened earlier this year when security consultants persuaded the justices to close its front entrance. The marble steps and brass doors represented "dignified openness and meaningful access to equal justice under law," Justice Breyer wrote in a dissent. Relegating visitors to a cramped side door, he suggested, sent the opposite message.



One goal of the book, the author said, is to persuade Americans that he is "trying to use a coherent approach" in decisions "rather than deciding on a political basis."



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Supreme Court Associate Justice Stephen Breyer, left, and fellow Associate Justice Antonin Scalia

.In interpreting a law, judges typically "look to the words at issue, to surrounding text, to the statute's history, to legal traditions, to precedent, to the statute's purposes, and to its consequences evaluated in light of those purposes," Justice Breyer writes. "Of these I find the last two—purposes and consequences—most helpful most often."



It is an approach he contrasts with originalism, the model championed by Justice Antonin Scalia, which purports to apply constitutional text according to its meaning when adopted. Both justices have sought to popularize their competing methods in books and lectures.



In his 2006 book, "The Audacity of Hope," then-Sen. Barack Obama discussed the Breyer-Scalia debate, writing that "ultimately…I have to side with Justice Breyer's view of the Constitution—that it is not a static but rather a living document."



Stanford University law professor Michael W. McConnell, a former federal appellate judge appointed by President George W. Bush, said Justice Breyer's approach risked leading to a "jurisprudence of personal preference" if it strayed from what the words of the law say.



Trying to surmise "what the nation might say if it were writing a constitution today," Mr. McConnell said, "doesn't adhere to the purpose of a constitution," which is to cement certain provisions in place.



Justice Breyer long had an ally in his self-described "pragmatic" approach: Justice Sandra Day O'Connor, a Reagan appointee who often sought a constitutional middle ground.



"I was very sorry when Justice O'Connor retired" in 2006, he said in the interview. "We wouldn't always agree, but we did share a general approach, and we'd tend to be, very often, on the same track."



The same can't be said of her successor, Justice Samuel Alito, a solid conservative who disdains split-the-difference adjudication.



As a result, Justice Breyer has been finding himself outvoted, such as in 2007 when the court's conservatives threw out student-integration plans adopted by local school boards.



Justice Breyer's dissent suggested deep frustration with the court's direction, saying it broke the promise of integration made in the 1954 Brown v. Board of Education case. "The court and the nation will come to regret" the 2007 ruling, he wrote at the time.



But in the interview, Justice Breyer played down any feelings of alienation.



"Am I overemphasizing the degree to which it is polarized?" he asked himself. "It is easy to get sort of unhappy about one or two or three particular cases in a term, but there's a bigger picture."



"The 5-4 cases, depending on the year, are probably 20 to 25%" of the cases the court hears, he said.