December 13, 2010

Justice Breyer on the right way for a Supreme Court Justice to: 1. interpret the Constitution, and 2. deal with the President of the United States criticizing him in the State of the Union Address.

Back to that interview Chris Wallace did with Justice Breyer. The earlier post got overlong dealing with the Second Amendment. Now, having taken a break to deal with the new federal court decision invalidating the individual mandate, let's get back to the Breyer interview, beginning here, where he is talking (yesterday) about the as-yet-unreleased case. How can the Supreme Court resolve such a politically hot matter without losing the public's confidence in the legitimacy of the Court?
BREYER: The way not to do it -- hold your finger up to the political winds. That's not the job of the judge. The judges are not politicians... [W]hat we do is we look to the text, the history, the traditions, the precedent, the values that underlie the particular constitutional phrase, and consequences that if you decide this way, does it further the values or does it undermine the values.
There, that's his theory of interpretation, summarized.  The key is identifying values underlying the text and the real-world consequences of the decisions. That may seem to give the judge a lot of leeway, but Breyer's effort is to convince people that this is real judging, even though the stricter textualists say it isn't. If people accept this argument, then they see that the liberal Justices — like the conservative Justices — are doing something that isn't some sort of covert politics and they'll have confidence in the courts.

This brings up the topic of the Justices at the State of the Union address. Wallace shows the video clip of Obama scolding the Justices — who were sitting right in front of him — about the decision in Citizens United. There's also a clip of Chief Justice Roberts saying that he's troubled by the "image... of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless." Breyer disagrees. It's good for the Justices to hear from people who think different things: "It doesn't bother me and part of me says, 'Good.'"

53 comments:

Jessica said...

Breyer comes off as SO condescending in this interview...

Freeman Hunt said...

Oh, Jessica, come come now. As he is one of our betters, we are lucky that he deigned to give us audience.

As a philosopher king justice, he is going to determine the naked values underlying all those troublesome language-bound words. Then he can determine whether or not laws agree with those values. And, of course, the values of the Constitution must have been good, so really we need only check the laws at issue against The Good, and that is the same as checking them against the Constitution. Anything which furthers The Good is acceptable, and anything which hinders The Good is unacceptable.

How ever so lucky we are to be ruled by men and women capable of this task!

ricpic said...

No end to the games he can play with "values."

HDHouse said...

Thank you Ann for a very lucid explantion of liberal/conservative as applied to judges. That was very clear and appreciated.

hey jessica...the condescending one...? he is the guy from Faux right? the one on the right of the screen? funny twisted expression? trying to catch the other guy but instead getting caught himself? that's Breyer?

New "Hussein" Ham said...

"... one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless."

If there is to be no protocol on the part of the president of the United States then the Supreme Court justices have been releived of any as well.

They should just tell Barack Obama to go fuck himself.

A good way to do that is to overturn his unconstitutional socialist "reforms."

HDHouse said...

c'mon freeman. because he doesn't grunt out potifications as does mr. scalia or sit there like a lump like mr. thomas, certainly there is room in your heart for a new englander...you are big tent aren't you?

Lucien said...

Is this a rank ordered list that Breyer gives, starting with the text and ending with values and consequnces -- and if so, does precedent belong at #4?

Ann superficially seems to be saying that the fifth and sixth listed considerations -- values and consequences -- are the most important ones; but she may mean that consideration fo the first four concerns lead to a dead heat often enough that the remaining two become the key considerations.

Both the values that one finds underlying a specific phrase may be something rather subjective, and may bealmost nonexistent when applied to a term reached as a result of compromise. And whose values count, those of the Framers or of the ratifiers (remembering that the framers and ratifiers of various amendments vary considerably)?

Trying to predict consequences, and the effect that they would have on the values that one has discerned seems like a dicey prospect, too. If these are to be the key considerations, aren't these some areas where leagl scholars and judges have the least expertise?

Freeman Hunt said...

Love New Englanders. (My Dad and his entire family are such.) No love for those who would seek to rule us as kings though. None.

mtrobertsattorney said...

What he doesn't tell us is that the "values" that he is looking for, and that he wants to protect, just happen to be those "values" that are fervently held by liberal elites-his peer group.

ddh said...

When I saw the interview, I thought "What a pompous windbag," perhaps because Justice Breyer's exaggerated mannerisms, gestures, and intonation seemed more suited to the lecture hall. He really didn't talk to Chris Wallace as if they were sitting four feet from each other.

info said...

Yup..."good thing" for the president to mock/scold the justices, does wonders for respect of the institution! Just like turning a key presser over to BJ...all good!
Can't beat liberal "thinking" LOL

NotYourTypicalNewYorker said...

House, your beliefs and your point of view have so far decimated the state of New York and are in the process of doing the same to America.

Yet you sit there and smugly think that the vast majority of the country are assholes, over and over again.

Try really hard to find a clue,eh?

You'll try won't you?

You won't.

Ralph L said...

I think the Supremes and the Joint Chiefs (Chieves?) should stay home for the SOTU because it's such a partisan affair.

Also, it would be terrible if the highest official left after an attack was the Sec. of Agriculture.

traditionalguy said...

They need to keep Breyer under wraps, or the SCOTUS will become totally disrespected by American citizens living in this internet age where we "Value" authentic, straight shooters. His kind of in your face bragging that he ise the law whenever he says so will not work anymore.

garage mahal said...

Wasn't Alito saying "that's not true!" at SOTU, regarding the foreign money into our elections as a result of CU? Yea, that was all crazy talk.

Rialby said...

What would the lefties do if a conservative justice went on the air and repeated the word "values" over and over? No doubt they would spontaneously combust.

MayBee said...

It's good for the Justices to hear from people who think different things: "It doesn't bother me and part of me says, 'Good.'"

Heh.
As a Supreme Court Justice, he should be hearing from people who think different things every time he enters the courtroom.

I'd love to see what would happen if a lawyer stood before them in the courtroom and said what Obama said, and the people in the courtroom stood and cheered.
I wonder how much he'd appreciate hearing what different people think in those circumstances.

GMay said...

"BREYER: The way not to do it -- hold your finger up to the political winds."

This is Breyer tipping his hand. Much like a politician, he answers a question not asked.

See, when others give their opinions, they're bending to politics. But not Breyer, no sir. He's got a direct line to the Truth. He's able to prognosticate, scry, divine, and forsee The Real Meaning. He's infallible, while those who hold a different opinion don't know what he knows.

He speaks of language that is painfully clear as if it is vague and wide open to interpretation, while using such rock solid and immutable terms like "values".

Speaking of history, traditions, and the values of the founding fathers:

"How strangely will the Tools of a Tyrant pervert the plain Meaning of Words."

Little did Sam Adams know what the liberal mind had in store for the Republic.

Big Mike said...

Breyer disagrees. It's good for the Justices to hear from people who think different things: "It doesn't bother me and part of me says, 'Good.'"

So he thinks it is "good" when Pro-Life people demonstrate in front of the Court because "it's good for the Justices to hear from people who think different things"?

My personal opinion is that if it was his sacred cow that was being gored he would not find it to be "good."

Saint Croix said...

I think if the President criticized the Supreme Court for killing babies it might bother him a little more.

Eric said...

The more I see of Breyer's thought processes the more I'm convinced this is a man who should never have been allowed anywhere near the Supreme Court. Interpreting the values of the framers? That's a lot like interpreting the bible - you can find whatever you want in there if you stretch hard enough.

What you really find when people engage in a search for the values of the dead is a version of their own values reflected off of the documents, along with a healthy dose of "oh, they didn't really mean that". The right to keep and bear arms? The didn't really mean that.

Saint Croix said...

Or, in other words, "The President agrees with my dissent in Citizens United. Good. Those fuckers in the majority should be embarrassed. I wish he would call them names. Or impeach them. Maybe he could make me Chief Justice. Part of me would really like that."

Hagar said...

The warmth of the underlying values is what causes the penumbras to rise?

Saint Croix said...

If Breyer wants to make the jurisprudential point that the Supreme Court is not the final word in regard to the Constitution, or that the President or Congress should often stand up to them, then he should wait until one of his own opinions is being criticized.

Otherwise it looks like a liberal Supreme Court Justice is applauding a liberal President's attack on a conservative Supreme Court opinion. Or, in other words, Breyer looks like the political hack that so many Americans take him to be.

Dumb ass.

Saint Croix said...

Hugo Black was a liberal and a textualist. You can be "liberal" and still think the Constitution is a rock solid law that should be read and followed as absolutely as possible. Liberal doesn't necessarily equal Ivy League elitist dictating rules to the rubes. Just in the last few decades.

Akhil Amar is a liberal but also a populist and a democrat. He would be an amazing jurist. I say "amazing" in that he will sometimes reach results that please his political opponents. Something Breyer never does.

Wylie E. Coyote said...

#23 Beyer has zippo idea where Rights come from!

See he thinks that Madison, et al “Created” the right to bear arms ie this is something bestowed to people by the ruling elite (that is to say Men)!

Nope the right to bear arms is meerly a codification of your God-given Right to Life, Liberty, and the Pursuit of Happiness…..that is too say you have the inherent right to defend your life, your freedom, and your property from those who want to violate or infringe upon them!

The Right to self defense (bearing arms) is inherent in the PEOPLE and is this power is LOANED to the state (and its officers) not the other way around how Beyers puts it!

Again, supposed “Conservatives” get suckered into giving up the arguement to the left – the question is NOT what Beyers would have you think (what was Madison’s intent?) but rather it should be WERE does the right to bear arms derive from (our Inalienable Rights from the Creator)…….

I can count dozens of “conservative” blogs I read today who simply argue tit-for-tat with Beyer by pulling out some contrary Quote from Madison supporting the 2nd amendment…..its not a question of Madison (or other founders opinions) its a the proper understanding of where Rights dervive from and the proper role of governments in a free Society!

We the People AGREE to allow the State to act on our behalf to Protect those Rights (ie we consent to grant them part of our 2nd amendment right to self-defense by giving them the power to create a police force or Military to protect our rights in collective defense situations!)……..

We need to get a grip ASAP on the concept of Natural Rights, Soverignity of the People, and the proper role of government or else Statists will run circles around us and continue to bamboolze the public with bogus arguments (like Beyer's creates about the 2nd amendment) to justify arbitrary and unlimited govt/elitest power!

Richard Dolan said...

"Breyer's effort is to convince people that this is real judging, even though the stricter textualists say it isn't. If people accept this argument, then they see that the liberal Justices — like the conservative Justices — are doing something that isn't some sort of covert politics and they'll have confidence in the courts."

But people don't accept the argument, and it's quite difficult to pretend that the question is even open anymore. The response to Judge Hudson's ruling today was a perfect illustration. Every article I saw discussing it noted that the judge was a Rep appointee, and that the two other district judges (who rejected constitutional attacks on Obamacare) were Dem appointees. The speculation about the SCOTUS's handling of the case all focused on a possible 4-4 split, with Kennedy in the middle.

People look at these controversial cases as political and expect the judges to line up politically. And, by and large, they do.

Breyer doesn't say what happens if people (meaning, really, the political class) conclude that judging in these cases is "some sort of covert politics" and don't "have confidence in the courts" to render decisions reflecting the objective application of constitutional principles. But if he did, his likely answer would have been: nothing changes.

mtrobertsattorney said...

Breyer is just a younger John Paul Stevens.

I once saw him in a discussion wtih J. Scalia on C-Span on the subject of constitutional interpretation. It took J. Scalia less than 30 seconds to expose him as uttering pompous nonsense.

Breyer should be asked to define what he means by the word "value". And whether he has acess to some new technology that allows him to discern a "value" that is located within, on top of, or underneath the letters of a word.

Hagar said...

I should have said: The warmth of the decaying underlying values is what causes the penumbras to rise?

Big Gov't Trickling Down on You said...

That was enough to choke a horse, Freeman!

Just admit that you guys are embarrassed to be exposed as having no values.

maninthemiddle said...

So - take a subway to get to a gun range if you don't like the DC laws. Why not, then, a bus to Indiana instead of Plessy vs Ferguson or maybe Amtrak to Wisconsin instead of Roe vs Wade.

Consistency - thy name ain't Breyer.

MayBee said...

BREYER: The way not to do it -- hold your finger up to the political winds. That's not the job of the judge

+

the Justices at the State of the Union address..."It's good for the Justices to hear from people who think different things"

=

Do not listen the political winds. But it is good to hear from the politicians.

The Politicians!

Eric said...

It's good for the Justices to hear from people who think different things

This sort of implies the justices never read the newspaper, watch TV, or talk to anyone who isn't also a Supreme Court justice.

hombre said...

I got values,
You got values,
God's children gotta have values,
But there's only one kinda values for us,
Good ol' Justice Breyer values.

Yeah!

MayBee said...

Eric- doesn't it also kind of imply they never listen to the people arguing the cases before them. At least two sides presented for every case!

But those aren't people, I guess. Congressmen are people.

Saint Croix said...

It's all Roe v. Wade. Every liberal's jurisprudence is dictated by Roe v. Wade. You simply cannot get nominated for the Court as a liberal unless you bow down to Roe v. Wade. And Roe requires its followers to disregard the Constitution, its text, its history. Roe is a lie, and it’s always been a lie. Honest liberals admit it. But it’s the craven ones who sit on the Court.

It’s the flipside of Lochner. The great jurists of the 20th century all hated Lochner. Harlan, Holmes, Hughes, Black, Frankfurter, Stone, Douglas, Jackson. They were giants of the law, and for the most part they were all political liberals. They hated Lochner because they hated unelected judges dictating rules to the American people. And they lived in a happy time when being a Democrat meant that you liked the American people and believed in popular sovereignty.

Now it’s flipped around. All the great judges are on the right, the great legal minds are on the right, the populists and the democrats are on the right. And it’s the left who is hostile to free speech, to a popular vote, to a color-blind society, to the Constitution itself. And so they lie, lie, lie about what our laws actually say.

And ordinary people drift right in response. The country goes right in response. Republicans become populists in response. See Reagan, see Palin. Ordinary Americans from no-name schools.

Who will remember Justice Breyer 100 years from now? It’s a paradox, but in our culture the elitist is almost always a second-rate intellect.

GMay said...

Trickles tried: "Just admit that you guys are embarrassed to be exposed as having no values."

Just admit you're referring to your values.

Big Gov't Trickling Down on You said...

Oh right, Gmaynot. You think your conservative love of an arbitrary sense of order is a value.

I suppose it is. For a robot.

But Breyer's talking about human and specifically American values, though. I apologize for painfully reminding you of that which you lack.

Saint Croix said...

The way Breyer talks, it’s like he has no respect for the Framers at all. He talks about how ignorant they are. What does Madison know about the 21st century? Madison doesn’t know car. Madison doesn’t know airplane.

What a glib fucker.

"I tremble for my country, when I reflect that God is just." Thomas Jefferson, writing about slavery.

“Some physicians use intrafetal potassium chloride or digoxin to induce fetal demise.” Stephen Breyer, writing about abortion.

traditionalguy said...

Big Gov...Doesn't "values" mean the priority in which we rank goals, whether easily attainable or not. The values of a Breyer are very interesting, as are yours. But we do not get to elect, or to refuse to re-elect Breyer. He seems to be glorying in that unchecked power. He is one person who values the free taking away of life in having and raising your children. So he has made himself into an idol ( or false god) in his own mind. So what do you think we should do about our values? Ignore Breyer or try to get him impeached ?

Bob Ellison said...

Thank you, Professor, for the explanation. I've long wondered what's meant by the liberal-yet-consistent view of judging.

It is indeed consistent, but that doesn't mean it's consistently practiced. Breyer's interpretation of the 2nd Amendment, where we have the simple text, is inconsistent with his interpretation of abortion rights, where we don't. Breyer has to dream mightily to imagine what "values" support his conclusions-- so mightily that an objective assessment must conclude that he is importing his own policy preferences into the decisions.

Furthermore, the Constitution comes with its own amendment process, so why must judges be so dreamy? Before Marbury v. Madison, the very notion of judicial review must have seemed like judicial overreach to many (most?) in the other branches of government.

SCOTUS justices seem pretty good, most of the time, at stepping back, saying "I do not have authority here." Breyer himself is usually good at it. But he argues against that philosophy when he says that a judge can dream up what the authors of the Constitution would have thought about matters on which they did not write, or when he argues that they did not mean at all what they did write.

Browndog said...

Again with "precedent".

I find great humor in the fact that the most learned, rulers of the rules, hold in such high esteem that which was, mere moments ago, "unprecedented". In one moment of time, it crosses into the holy grail of "settled law".

Big Gov't Trickling Down on You said...

Big Gov...Doesn't "values" mean the priority in which we rank goals, whether easily attainable or not.

It's interesting how evening by opening this line of discussion I can see our own difference in priorities, or "values".

Modern politics seems to split itself into a tension between reason and tradition, between purpose and order.

I suppose I seem to prefer the former, while your side is attracted to the latter. No big deal, provided there is sufficient understanding; these two priorities must have co-evolved within human society for a reason. And even in your response, in which you use words like "priority", "rank", etc., I can see that there is no getting around what amounts to a base, if subtle difference in psychological preference here.

It's kind of interesting, no?

The values of a Breyer are very interesting, as are yours.

Yours too ;-)

But we do not get to elect, or to refuse to re-elect Breyer. He seems to be glorying in that unchecked power.

I don't see how he is unchecked and I did not detect glory. With every utterance he seems to relish the check and balance function provided by our system, and just because he seems to enjoy the debate, the process of argumentation, and yes, the opportunity to educate, I don't detect anything resembling personal glorification in that.

He is one person who values the free taking away of life in having and raising your children.

No, but I suspect that like the rest of the country, he just respects the role of biology and reason in determining what is a person.

So he has made himself into an idol ( or false god) in his own mind.

A conclusion with which I see no reason to agree, given the problematic premises.

So what do you think we should do about our values? Ignore Breyer or try to get him impeached ?

My interpretation is that U.S. politics moves in 40-year long generational shifts. The right has had a long era of ascendancy, and now it looks as if the left is finding its time in the sun once again. I think this goes beyond one person's or one faction's values and one person's role on the bench, and that in the end, the country will be all right. Both of us are prone to exaggerating the excesses of the other side in forsaking the process that is greater than the momentary tension of the day that guides it.

Big Gov't Trickling Down on You said...

In any event, I originally thought Breyer was patently wrong about allowing different gun rights based on how the local authorities decide.

But then, I thought about the first amendment. Why do we allow local authorities to not only determine what is improper speech (i.e. obscene), and even use that local standard to petition the federal government? If we can do that with freedom of speech - to allow local standards to rule (which I would consider a massive infringement), it seems preposterous that we can't let local standards allow for clear and compelling exceptions to your right to bear arms.

That's a huge inconsistency, and I would hope that my conservative friends - given their attention to consistency - would notice it and address it fairly and impartially, as I have.

Big Gov't Trickling Down on You said...

It happens to be an almost undeniably true statement that Madison wouldn't have known about airplanes or cars.

To read personal disrespect and glibness into that true and important caveat and how it impacts our ability to judge sounds a bit silly. Further, it's hardly the point.

Saint Croix said...

It happens to be an almost undeniably true statement that Madison wouldn't have known about airplanes or cars.

yeah, no kidding. Now why are airplanes and cars relevant to our system of government?

To read personal disrespect and glibness into that true and important caveat

It's not a "caveat." It's the progressive worldview. The past is backwards and ignorant. Once you reach that conclusion, why would you listen to the ignorant?

Thus, he is not reading Madison or thinking about Madison. He doesn't actually give a shit what Madison thinks about our law. That's obvious from his "hunter" comment and "go to Maryland" comment. He drops airplane and internet and television into the conversation to show Madison's ignorance and Madison's irrelevance and how we are so different now than James Madison and his ilk.

A more thoughtful person would point out that humanity is not any different at all. We're still sinners. Power still corrupts. We just have a better class of toys. The liberal view on "progression" is mostly built on ego, conceit, and its own kind of ignorance.

Do you really think that somebody who drops cars, planes and the internet into a discussion of constitutional interpretation is grappling with Publius? I repeat, he's a glib fucker.

Saint Croix said...

And the writer of Carhart should be kicked in the balls for using "Madison" in a sentence.

Big Gov't Trickling Down on You said...

Well, I would respond with some fairly obvious answers. But obviously your views need to be challenged as much as they need a reason for existing in the first place.

Big Gov't Trickling Down on You said...

Technology must be a curse for allowing to deceive ourselves into thinking that it impacts either regulation or human nature. So let it be written, so let it be done. An avatar of the Lord appeared on my IPod and told me so.

madAsHell said...

I thought supreme court justices were supposed to be smart.....or sumthin'

madAsHell said...

Fuuuug...I'm an engineer...I can twist his logic in a heartbeat.

Engineers aren't supposed to smart!!

Saint Croix said...

Technology must be a curse for allowing to deceive ourselves into thinking that it impacts either regulation or human nature.

Hitler, Stalin, Mao = able to kill more people because of technology.

So if technology give us more power (and power corrupts) then if anything technology might make us a lot worse. Certainly more dangerous.

Mao, Hitler and Stalin aren't more evil than Barbar the Barbarian. They just have more tanks.

So the question, then, is why a Supreme Court Justice would be so fucking stupid as to think technology is some fundamental change to human nature (and the laws we design to constrain it). No, we're just as evil as ever.

In the B.C. era, we abandoned babies to die and they would starve to death. In the 21st century we inject poison into their necks, or rip them out of the womb, piece by piece.

Progress!

HDHouse said...

NotYourTypicalNewYorker said...
"Yet you sit there and smugly think that the vast majority of the country are assholes, over and over again."

now now...try and be civil. actually the republican party is still the minority technically so i don't consider the moronic element to be either vast or the majority...

as to "over and over again"...naw. Once I figure something out I'm pretty o'k with it unless someone produces evidence to the contrary. I don't think you did.