"Will he do better in the future? He can join my dissents!" Breyer replied with a chuckle.....I like judicial restraint myself, and I think Breyer actually does deserve the mantle of restraint as much as any of them. Of course, he doesn't keep it on all the time. Rosen conveniently -- and unintentionally hilariously -- declines to mention abortion rights and all sorts of other cases where Breyer votes on the side of individual and minorities and against the choice of the majoritarian political process. It wouldn't be much of a Constitution if the political choice always won. But it's good to have someone on the Court who will openly express the philosophy of restraint.
Breyer self-consciously embraced the mantle of restraint. "To a very large measure, judges have to be careful about intruding in the legislative process," he said. "[R]uth and I have been among the ones less likely to strike down laws passed by the legislature, and, by that measure, we're not very activist." Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena. The fact that conservatives now rely on the Court to win their battles for them--striking down democratically adopted campaign finance laws and integration programs--is a sign of their weakness.
Breyer and his liberal colleagues were not unwavering in their restraint this term: They dissented from the partial-birth abortion decision, despite the fact that bans on the procedure are supported by bipartisan majorities in Congress and in most states. When I asked Breyer how he reconciled this dissent with his commitment to judicial deference, he demurred. "The only question for me was, am I suddenly going to overrule a whole lot of precedent? No. That's a strong basis." Liberals, in fact, could have reconciled their commitment to precedent and judicial restraint by upholding the partial-birth law while insisting it include a health exception. But no one is consistent in every case; and the activism of liberals here was an exception, not the rule.
Judged by their willingness to defer to legislatures, liberals are now the party of judicial restraint. Conservatives have responded to this embarrassing turnabout by trying to rob the term of any neutral meaning. In a series of unintentionally hilarious editorials, The Wall Street Journal praised the Roberts Court for "restoring business confidence in the rule of law and setting limits on the tort bar and activist judges." Spare us the twistifications. For more than 50 years, conservatives have insisted that judges should defer to legislatures and let citizens resolve their disputes politically. But, at the very moment they consolidated their Supreme Court majority, they have abandoned this principle and embraced the activism they once deplored. I hope that Chief Justice Roberts, over time, will achieve his welcome goal of transcending the Court's divisions and helping conservatives rediscover the virtues of modesty and deference. But, for now, the party of judicial restraint has a convincing spokesman in Justice Breyer.
ADDED: Wait! Rosen does mention the abortion case in the middle paragraph there. Well, then he contradicts himself in his final paragraph. So Rosen conveniently -- and unintentionally hilariously - forgets his previous paragraph.