Kevin Cole - University of San Diego

Because the Framers embraced multiple
values, Breyer needs to explain what justifies
the preeminence of political participation,
other than the fact that he deems it
more important. But Breyer provides no
explanation.
Similar problems arise when Breyer
moves to interpreting particular constitutional
clauses. Breyer believes that judges
should focus on the general purposes of
provisions. But the general purposes of a
clause are often highly disputed matters,
as there is no clear way of determining
what these purposes were. For example,
when discussing the constitutionality of
affirmative action, Breyer claims that the
purpose of the Equal Protection Clause
(and the Civil War Amendments generally)
was to allow blacks to “participate
fully with equal rights in the democratic
political community.”
But the Equal Protection Clause is at
least as plausibly viewed as having a different
purpose—either establishing colorblind
laws or guaranteeing to minorities
full civil rights (but not special political
rights)—neither of which would support
his justification for affirmative action.
Again, Breyer does not explain why his
chosen purpose is the correct one. (And
neither would his opponents using the
very same rationale.)
Breyer also argues that one should determine
whether a law promotes or retards
these general purposes based on its modern
real world consequences, not on what
the Framers believed would have furthered
their purposes. But the consequences
of laws are hotly contested.
While Breyer assumes that affirmative
action will allow blacks to more fully participate
in political life, opponents of affirmative
action credibly maintain that it
renders blacks less influential by diminishing
their accomplishments and creating
greater racial animosity. Once again,
Breyer gives no reason why his view
should prevail, except that he, naturally,
thinks it is the correct view.
Breyer’s focus on general purposes allows
judges to select the values that the
Constitution furthers and his focus on
modern real world consequences allows
them to assert how laws will in fact operate.
With control over the facts and values,
Breyer’s “active” judge has virtually boundless
authority over the Constitution’s content.
Thus, it is no surprise that Breyer’s
tour through the Constitution—from
affirmative action, to campaign finance, to
federalism, to separation of church and
state—only reaches destinations that
Breyer appears to endorse politically.
Interestingly, Breyer’s tour fails to make
one important stop—his majority opinion
for the Court in Stenberg v. Carhart, which
struck down a ban on partial birth abortions.
One might argue that Stenberg is
inconsistent with Breyer’s active liberty
purposivist approach, because the opinion
protects what seems to be a personal decision
unrelated to political participation.
But perhaps Breyer can avoid this inconsistency.
Breyer might argue that terminating
pregnancies is necessary for women to
work and thereby to participate fully in
politics. Alternatively, Breyer never says
that active liberty is the only important
value. So he might argue that another purpose
of the Fourteenth Amendment is to
protect individual rights, which in the
modern world requires giving those rights
a modern interpretation. In other words,
Breyer’s approach might be so flexible that
there is no decision, including Stenberg, that
it can’t be made consistent with.
Having articulated this extremely flexible
interpretive approach, one would expect
that Breyer would defend it against
objections. It is here where Breyer’s book is
particularly unsuccessful. One major problem
with the vast discretion that Breyer
confers on judges is that it is inconsistent
with the active liberty that is the primary
concern of his book. Judicial activism is
generally thought to undermine democracy,
because it deprives the people of
their ability to set policy through their
representatives—either through statutes or
through constitutional amendments. Even
if a statute or constitutional provision is
currently unpopular and needs revision,
the Court’s decision to update it will deprive
the people of the opportunity to do
the updating and they are likely to update
it in a different way than the Court does.
Far from defending the broad discretion
he would give to judges, Breyer seems to
be in denial about it. Breyer actually claims
that, as compared to originalism (which
tellingly he mistakenly refers to as “literalism”),
his approach does not significantly
increase the subjectivity of judicial decisions.
Given the enormous power that
Breyer confers on judges, this is astounding.
Moving almost into the realm of selfparody,
Breyer illustrates the alleged
restraints on judges with his opinions from
recent Establishment Clause cases. In two
opinions that were so subjective that no
other justice agreed with both of them,
Breyer concluded that the Ten Commandments
could be placed on the grounds of
the Texas State Capital, but not inside a
Kentucky state courthouse.
It is one thing to argue that judicial discretion
is necessary, because the political
process suffers from maladies and therefore
more powerful judges are needed.
That position, although mistaken, at least
confronts the issues forthrightly. It is another
thing for Breyer to deny that his
activist approach empowers courts and
to make that approach part of his argument
for furthering political participation.
Breyer’s arguments here suggest that he either
is oblivious to the fact that he is imposing
his will on the nation or does not
believe that he seriously needs to justify
his actions. In neither case are his actions
worthy of a Supreme Court Justice.
Originally published on December 19, 2005, in
TCS Daily.
ADVOCATE USD LAW / 23:1 ❖ 19