Justice Breyer’s Dangerous Jurisprudence

December 4, 2006

Many conservatives reportedly chose not to vote in November to protest the Republican Party’s abandonment of conservative principles. One potential consequence of that boycott could be a forfeiture of the chance to finally secure a majority of “originalist” justices on the Supreme Court.

Granted, it was going to be tough enough for President Bush to win confirmation for another conservative nominee to the court in the face of a militant minority should a vacancy occur, but now that the Democrats have control it will be virtually impossible.

This is something disgruntled conservatives should contemplate before sitting the next one out. It is also something Republicans should consider before abandoning conservative principles to the point of alienating their base.

Chris Wallace’s “Fox News Sunday” interview of Justice Stephen Breyer is a sobering reminder of the impact of the elections on the judiciary. Wallace asked Breyer about his book, “Active Liberty,” released a year ago in which Breyer supposedly defended his practice of rejecting “originalism” in constitutional interpretation.

In the book Breyer wrote, “Since law is connected to life, judges, in applying a test in light of its purpose, should look to consequences including contemporary conditions, social, industrial and political, of the community to be affected.”

In my book, I noted that Breyer admitted he frequently makes decisions about a law’s constitutionality using standards other than merely interpreting the text of the Constitution or the Framers’ intent.

Breyer said, “I tend to emphasize purpose and consequences. Others emphasize language, a more literal reading of the text, history, and tradition — believing that those help you reach a more objective answer.”

I documented how Breyer’s judicial approach plays out in his decisions. For example, he defended supporting patently inconsistent rulings in two separate cases involving Ten Commandments displays in front of courthouses in Kentucky and Texas based on the likely consequences of the Court’s rulings.

Because the Texas monument had been on display for many years without incident he voted that it was constitutional. But the display before the Kentucky courthouse was much newer and likely to cause religious conflict, so he voted that it was unconstitutional.

It doesn’t take a rocket scientist with a law degree to recognize that Breyer usurps legislative authority in rendering judicial decisions on such a basis. It is the prerogative of legislators, not judges, to weigh a law’s impact on the community.

Who can reasonably deny that Breyer’s approach diminishes the predictability and reliability of the law and the rule of law? It makes Breyer, in effect, a policy maker — an arrogant, unelected and unaccountable one, at that — rather than a judge.

If the Ten Commandments cases don’t rock your boat, consider the real life application of Breyer’s judicial philosophy to free speech — a liberty every red-blooded American purports to cherish.

Breyer admits that he voted to uphold the McCain-Feingold campaign finance reform bill, though he acknowledges that regulating campaign expenditures amounts to regulating speech “because no one can run for office and have his message heard without money. So the First Amendment is involved.”

But looking at consequences again, Breyer concludes he doesn’t want the rich donors’ speech to “drown out everybody else’s. So maybe we have to do something to make that playing field a little more level in terms of money.”

In other words, Breyer consciously suppresses speech selectively to ensure that all speech is equally projected. Breyer is simply imposing his political views through constitutional interpretation, seeking — as liberals do — to guarantee equality of outcomes rather than opportunities.

If you’re still not alarmed, just think how Breyer’s reasoning could be applied in other cases. We all know that liberals — longing for the days of the liberal media monopoly — have been frustrated over their inability to compete in the marketplace of ideas via talk radio. Especially with the failure of “Air America” to mitigate conservative dominance and level the talk show playing field, liberals are salivating at the prospect of reinstituting the “Fairness Doctrine” to emasculate conservative talk through the coercive power of government in a way the free market stubbornly refuses to do.

Though I have long been aware of the liberals’ dark conspiracy to resurrect the Fairness Doctrine to shut up their political opponents — just read leftist websites if you don’t believe me — I didn’t fear the scheme, believing it couldn’t pass constitutional muster.

But after reading Breyer’s spooky thought processes on constitutional jurisprudence, I realize I was way too sanguine. Conservatives must never underestimate how important the composition of the courts is to the preservation of the Constitution and our liberties.