OrinKerr.com

Posner on Breyer’s “Active Liberty”

Judge Richard Posner reviews Justice Stephen Breyer’s book “Active Liberty” in the latest issue of the Yale Law Journal:  Justice Breyer Throws Down the Gauntlet (.pdf, 19 pages).  An excerpt:

[A]bstractions like “democracy” and “active liberty” are so vague and encompassing that they can be deployed on either side of most constitutional questions. A decision invalidating a statute on constitutional grounds may seem undemocratic, but even if it is not a democracy-enhancing decision (as reapportionment decisions are widely thought to be), it can be defended as an application of the “higher democracy” embodied in the Constitution. So originalists are democrats along with the loose constructionists. Likewise federalists, who want to honor the democratic choices made at the state and local level, and nationalists who want to honor the democratic choices made at the federal level. And are judges more democratic when they are giving legislators a helping hand (loose construction) or when they are sticking to the statutory language (strict construction)?

. . . [T]he curious consequence of [Breyer’s] eclecticism is that it puts the judge in approximately the position he would occupy if he had no constitutional theory. For couldn’t Justice Breyer pull a stick out of his bundle to justify any decision that he wanted to reach? It’s not as if the sticks have different weights; each is available to tip the balance in a particular case. Breyer has articulated an approach that appears to be loose enough to accommodate any result that a judge might want to reach for reasons the judge might be unwilling to acknowledge publicly, such as a visceral dislike for capital punishment, abortion, affirmative action, or religion.

The idea that conservative Justices do not legislate from the bench is rhetoric rather than reality. It is seductive rhetoric; it may have seduced Justice Breyer, who insists that he doesn’t legislate from the bench either, that he is the better originalist because he grasps the democratic character of the Constitution. At this level, the debate between conservatives like Scalia and liberals like Breyer is a semantic fog. Because of the vagueness of the Constitution’s key provisions and the strong emotions that constitutional cases arouse (in part because of the large, well-nigh irreversible consequences of the decisions in some of these cases), Justices are forced back on personal elements, which include ideology as shaped by temperament, experience, and deepseated beliefs, in deciding how to vote. It has always been thus and always will be. Lawyers will want to read Justice Breyer’s engaging book not to find the Holy Grail of constitutional and statutory interpretation but to learn about Breyer’s values, about what makes him tick as a Supreme Court Justice, and about how therefore to craft arguments that will have a chance of persuading him.

You can check out other reviews of Breyer’s book by Cass Sunstein and Paul Gewirtz, along with the rest of the latest issue, at this page.