Monday, May 01, 2006
Stephen Breyer's "basic human purpose"
Stephen Breyer spoke at Princeton Sunday afternoon, and unfortunately I missed it. The Daily Princetonian described an exchange, though, which crystalizes at least one difference between the two wings of the Supreme Court:
Breyer listed six "tools" that Supreme Court justices use when deciding a case: the language of the relevant portion of the Constitution, the history of the text, its traditional interpretation, precedent, the "basic human purpose" of the text and the consequences of the ruling.
"Some judges — and I tend to think Justice Scalia and others — tend to emphasize the first four," Breyer said. "The other view, which is probably mine, is that the last two things are very, very important."
Breyer countered George's suggestion that frequent consideration of the latter two could amount to subjective judgements, saying that he preferred to "find the main channel between being subjective and being wooden."
When Justice Breyer says "basic human purpose" and "consequences of the ruling" they almost sound legitimate. In fact, Justice Breyer has rather neatly described at least one fundamental difference between the two wings of the Supreme Court and their respective supporters. I think I'm with Justice Scalia, or at least Justice Breyer's interpretation of him.
For starters, I am deeply uncomfortable with the idea that nine unelected experts can divine the "basic human purpose" in anything. What, pray tell, is the "basic human purpose" of freedom from unreasonable searches and siezures, or free speech, or the right not to be compelled to bear witness against oneself, or the right to bear arms? Do you trust Stephen Breyer to figure that out for you, or would you rather just rely on the words as written? Me, I'll take the words, however wooden.
Breyer's sixth tool is even scarier. Judges, and even Supreme Court justices, are supposed to decided cases. The "consequence of a ruling" is the outcome of the case. If a judge may interpret the law to suit that judge's opinion of the best outcome of the case at bar, is that not an elevation of the judge's authority over that of the legislature? If the legislature is uncomfortable with the interpretation of its law as applied to cases presented before judges, the legislature can, in deployment of the popular will, change the law. Surely that is a better result than declaring that unelected life tenure judges ought to take into account a case's result in interpreting the law passed by the legislature.
9 Comments:
By 
, at
Tue May 02, 12:33:00 AM:
I'm sorry I can provide a URL for this. I read a while back that the court was presented with a case similar to Brown v. Board of Education in the the '30s, and were of a mind to overturn Jim Crow. They did not because they felt the country was not ready for it, and would not stand for it. After WWII, the court believed the climate had improved sufficiently as to overturn Jim Crow, which it did 9-0.
By 
allen, at
Tue May 02, 12:44:00 AM:
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence. - John Adams
With respect, Justice Breyer might have been happier lawyering.
By honestpartisan, at
Tue May 02, 01:39:00 AM:
It's funny that you express a fear that judges in the Breyer mold will overturn legislatures more than in the Scalia mold, since Breyer actually overturns acts of Congress less often than any other of the nine pre-Roberts justices, and Scalia is one of the worst offenders in this regard.
By TigerHawk, at
Tue May 02, 06:28:00 AM:
Excellent link, Mr. Partisan, and a useful contribution via the link. I have two observations. The first is that I am not afraid that judges will overturn legislatures, but rather that they will do so for reasons that have to do with driving the outcome of a particular case (Breyer's "consequences") or because they apply some made up theory of the Constitution ("basic human purpose"). So then, why would the conservatives vote to overturn more Congressional laws than liberals?
Without being expert in such things, may I suggest two reasons. First, many Congressional laws may indeed further some "basic human purpose," meeting Breyer's requirement, yet run afoul of the text of the Constitution. Second, the docket may be skewed to favor the sorts of cases that interest the Scalia wing -- i.e., laws that the Scalia wing think run afoul of the Constitution. The reason is that the SCOTUS largely controls its own docket, and you need at least four judges to want to choose your case in order for it to be heard. The "conservatives" have more votes in determining cert. petitions, and therefore are more likely to bring in the cases that they think need to be heard.
Final observation: the op-ed piece is curiously focused on overturning "Congressional laws." Why only Congressional laws? The SCOTUS strikes down plenty of laws produced by state legislatures. One is forced to wonder what the authors of the linked op-ed were concealing by excluding state laws from their study.
By honestpartisan, at
Tue May 02, 09:00:00 AM:
Re your last paragraph: good point. I'd be interested to see an analysis about state statutes, too.
Re your penultimate paragraph, the Court has had four liberal members all this time (Stevens, Breyer, Ginsberg, Souter), so it seems to me that they'd have as much weight in accepting cases as the conservatives, who may only have numbered three on the Court depending on how you count Kennedy and O'Connor.
Re your first paragraph (now the bad stuff), you say "I am not afraid that judges will overturn legislatures", yet in your post-in-chief you say that a legislature acting is "[s]urely ... a better result than declaring that unelected life tenure judges" interpret statutes. Sorry to get all Tim Russert on you, but what's going on? Surely it's not the case that you're worried about unelected judges interpreting statutes but less worried about unelected judges taking the more drastic step of overturning statutes.
By cakreiz, at
Tue May 02, 11:24:00 AM:
I'm arguing 'basic human purpose' next time I'm in court. Once the laughter subsides, I'm sure it'll be a winner. Memo to J. Breyer: run for office. It's the way the system was set up. And that goes for the Scalia boys too.
By Assistant Village Idiot, at
Tue May 02, 10:55:00 PM:
"Basic human purpose" is a great solution to the problem of "How do we explain doing what we damn well please?"
I think it highlights the differences between positve and negative liberty. Creating a positive liberty always seems much more fair at first glance, but brings in complications and precedents that lead to greater injustices. The law is not set up to create justice, but to limit injustice.
By Cardinalpark, at
Wed May 03, 10:39:00 AM:
Breyer's concept of "basic human purpose" is terribly flawed. That is entirely in the eye of the beholder - an unlected one at that -- and will of course evolve with time. Things don't always evolve to a better place. The constitution is actually quite clear on most matters. Its woodenness - seemingly unattactractive to Breyer - could instead be argued to be foundational bedrock. On matters of freedom and equality, it wasn't the Constitution that was in error, it was the people who made and interpreted the laws. So keeping interpretation by the beholder to a mininum seems likely to lead to the best result.
By Georg Felis, at
Wed May 03, 11:33:00 AM:
Two things: First, I don’t think the NY Times is a credible neutral fact provider. It lacks gravitas, and has over the years become known for a certain leftward bias. (O RLY)?
Secondly, since Liberals as a rule tend to maximize governmental power*, and conservatives to curtail it, would it be any surprise to find out a conservative court would tend to overturn laws passed by legislatures that attempt to allow the government more power?
What conservatives call “Activist Judges” are where certain Judges determine the way things should be, instead of what the law actually says. Numerous examples here in Kansas include the Kansas City school district, and the present “Supreme Court determines the Kansas School Budget” kafuffle.
(*)with certain exceptions for free speech that they agree with, and abortion at any stage.
