STAFF NEWS & ANALYSIS
Justice Breyer Argues for Activism
By Staff News & Analysis - December 13, 2010

U.S. Supreme Court Justice Stephen Breyer's (left) book, Making Democracy Work, A Judge's View, is a combination of history and legal philosophy … Breyer has sparred for years with Justice Antonin Scalia on the printed pages of legal opinions. The two have even debated about constitutional interpretation in public. And now Justice Breyer has taken his argument to the printed pages of a book written for popular consumption. In his first interview about the new book, Breyer's targets are the ideas of originalism and textualism advocated by Scalia — the notion that the framers of the Constitution meant what they said and no more — and that the provisions of the Constitution are limited to what they covered back in 1789. Breyer's book, Making Our Democracy Work, A Judge's View, is a combination of history and legal philosophy. It argues that there are no easy, color-by-the-numbers answers to many legal questions and that to suggest there are is an illusion. – PBS

Dominant Social Theme: It's not a good system but it's the best we've got.

Free-Market Analysis: In his new book, U.S. Supreme Court Justice Stephen Breyer confronts Justice Antonin Scalia regarding the much-debated issue of originalism and textualism. Scalia wants to read the words of the Constitution and conform to them as strictly as possible – perhaps using a historical frame of reference. In Breyer's book, Making Our Democracy Work, A Judge's View, he argues for a more nuanced approach that includes research into the founders' historical intent, values, etc. Scalia's few seems simpler in this regard: "The Constitution that I interpret and apply is not living, but dead."

For Scalia, arguing that the Constitution's meaning can change over time suggests that judge's can make up new meanings as society changes. Breyer's view is that some things about Constitutional interpretation can change while others do not. He is more inclined to pursue an interpretation that honors perennial values rather than the text. There are all sorts of amorphous words such as "liberty" and "due process" – and these words have to be interpreted within the context of the times.

A telling point that Breyer makes has to do with "cruel and unusual punishment." Flogging, he points out, might have not have been considered cruel or unusual in the Western world in the 1800s but today it is likely considered so. Thus a judge, Breyer suggests, must use his or her own judgment and include a frame of reference, historical perspective and ask what the purpose of the law was supposed to be.

Breyer's book includes more than personal opinion. He covers high-profile Supreme Court decisions including those having to with the Dred Scott decision affirming the constitutionality of slavery and the Court's terrible determination of President Franklin Roosevelt's decision to intern 70,000 Japanese U.S. citizens in prison camps during World War II. In 1988, the US Congress formally apologized and paid reparation in 1988.

Breyer seems to have a pleasant personality and despite his lofty position doesn't take things too seriously. The article excerpted above presents the following insight: "With wry self-deprecation, he adds that when he gets discouraged, he tells himself 'so what? … I've written down what I thought, and every case is a new day.'" But in an interview with Fox News, Breyer does reveal a deeper reason for writing this book: He says he wants citizens to understand his institution better at a time when institutions generally in the United States (and abroad) are coming into some "disrepute."

Breyer deserves full credit for being perceptive enough to realize that times have changed. He does not mention the Internet, or not as a causative agent so far as we can tell (having not read the book). But he certainly does make the point that justice needs to evolve along with technology. AP reports his views regarding technology as follows:

Don't expect a Facebook friend request from Supreme Court Justice Stephen Breyer any time soon. The 72-year-old justice said in a speech at Vanderbilt Law School on Tuesday that he was perplexed when he recently saw the film "The Social Network" about the origins of Facebook. But Breyer said the film illustrates his argument that modern conditions — like the development of the social-networking site — should inform justices when interpreting a Constitution written in the 18th century. "If I'm applying the First Amendment, I have to apply it to a world where there's an Internet, and there's Facebook, and there are movies like … 'The Social Network,' which I couldn't even understand," he said. Breyer said of the high court: "It's quite clear, we don't have a Facebook page." – AP

There is something odd about a group of fairly elderly men and women trying to grapple with the intricacies of modern technology. Why is it even necessary? Why is it that the market itself is not capable of ensuring solutions for most, if not all, technological issues? The larger issue that looms unspoken is why the Supreme Court is, finally, the "law of the land." As Breyer himself pointed out in his interview on Fox News, he is but one person and it is his job to interpret the law for 300 million others. That is a mighty big task.

Here at the Bell we are consistent advocates for common law justice as it was applied before Roman law and before British Common Justice and Admiralty Law superseded it. The kind of common law justice we have in mind is distinctly informal and familial; it was applied in America before the Revolution. It allows individuals and groups of individuals to resolve their differences face-to-face or using the services of a third party.

There is no doubt of course that such common law justice had as its bedrock a level of lurking violence. Duels between men were frequent when issues could not be worked out and common law societies tended to have more elaborate personal codes of polity and honor in order to avoid the friction that could lead to violence – either individually or between families.

One of the points that Justice Breyer makes is that the current system of jurisprudence employed throughout the West and of course in America has helped preclude the civil violence that comes from unresolved legal issues. But as with most issues, there are-trade offs. Civil society itself may have fewer individuals seeking to resolve their legal issues individually, but there is nothing intrinsically non-violent about justice as it is practiced in the West and especially in America. With between 3 and 6 million individuals incarcerated in various municipal, state and federal prisons, America especially is beginning in a sense to rival the gulags of the former Soviet Union.

The situation is exacerbated by the predilection of the American penal-industrial complex to turn more and more of its workings over to private contractors to save money. These private contractors have tremendous incentives to economize by mistreating prisoners and using inmates as a kind of low-paid labor force for production purposes. Justice Breyer may be interested in the "big picture" but in fact the system of jurisprudence over which he presides is both merciless and unjust, as all monolithic systems must be.

Given the problems that Western and American jurisprudence actually faces, the points that Breyer argues in his book – those having to do with how to interpret the Constitutional in particular – are perhaps only surface issues. The deeper issue in our view will be how the establishment justifies the system, and tries to revise it, as the truth-telling of the Internet continues to provide different points of view to society at large.

After Thoughts

There are many ways of providing justice; Western regulatory democracy with its intrusive tax system, vast civil policing mechanism, increasing, lawless wiretapping and surveillance and Draconian punishments for minor offenses may have evolved into a more tyrannical variety. The changes that will doubtless arrive, sooner or later, could be a good deal more radical than a reinterpretation of how to delve into US founders' intent.

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