Judicious insights
Jr, E J Dionne
E. J. DIONNE Jr. JUDICIOUS INSIGHTS Justice Breyer's wise brief Cupreme Court Justice Steph-en Breyer performed an enor-mous service to our country last month. He clarified what is at stake in...
...Such rulings denied legislators the ability to resolve social problems and make our society more just...
...Breyer's lectures, which discussed key cases in detail, deserve broad attention because they lay down an intellectually coherent marker in the historically critical debates we are about to have over the president's judicial choices...
...He suggests that justices who focus primarily on the Constitution's text and "the Framers' original expectations narrowly conceived" miss the Founders' basic intention...
...Almost all of the journalism about judicial nominations focuses on filibusters, personal conflicts, and partisan ad-: vantage...
...He argues that they "un-deremphasized the constitutional importance of participation by black citizens in our representative democracy and overemphasized the importance of constitutional protections of property...
...Conservative politicians, including President George W. Bush, say they oppose judges who "legislate from the bench" and hope to fill the judiciary with "strict constructionists...
...Will judges invoke their own narrow, ideological readings of the Con-: stitution to void progressive legislation...
...Breyer's master concept is "active liberty...
...Or will they join Breyer in viewing the Constitution as a framework that "foresees democratically determined solutions, protective of the individual's basic liberties...
...ly conceived...
...Their purpose, Breyer says, was "to create a framework for democratic government-a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively...
...The power of Breyer's idea of "active liberty" is that it links freedom to democracy...
...The pre-New Deal judiciary that many conservatives are now trying to restore was the truly "imperial judiciary...
...Brey- er has helped us understand that...
...But if extreme conservative judges limit the authority of Congress and state legislatures to pass environmental, civil-rights, labor and consumer laws, our democracy will be less robust, less effective, and less just...
...You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them...
...He argues that the point of our Constitution is democracy-to guarantee "the principle of participatory self-government" that gives the people "room to decide and leeway to make mistakes...
...Later courts-the New Deal and the Warren courts-"emphasized the Constitution's protection of the citizen's freedom to participate in government" and thereby expanded "the scope of democratic self-government...
...He clarified what is at stake in the coming fights over judicial nominations...
...In a series of lectures at Harvard University, Justice Breyer offered a bold challenge to conservative judicial activism...
...This new conservatism is actually a very old conservatism...
...The new conservative judicial activism is a greater threat to our democracy than the prospect of some future court striking down the Roe v. Wade decision on abortion...
...Yet at this moment in our history, it is conservative judges who want to restrict the people's right to govern themselves...
...That may sound sweeping, but the current trend among conservatives is to read the Constitution as sharply limiting the ability of Congress and the states to make laws protecting the environment, guaranteeing the rights of the disabled, and regulating commerce in the public interest...
...The point of our system of self-government is not simply to protect us from the wrongs government can commit but to give all of us the opportunity to shape what government does...
...It marks a return to the time before the mid-1930s when judges struck down all sorts of decent laws- for example, regulating the number of hours people had to work without overtime pay-on the claim that such statutes violated contract and property rights...
...Breyer's worries about the new trends are rooted in his criticisms of the courts of the late nineteenth and early twentieth centuries...
...Breyer's argument leads not to judicial activism but to judicial humility...
...But this battle is so much ; more important than that...
...The fight over judges is not about politics, narrow...
...If Roe is lost (and I doubt it will be), states might still be free to pass liberal abortion laws...
...While he was respectful of his colleagues, Breyer put forward a clear alternative to the theories of conservative jurists such as Justice Antonin Scalia...
...He made clear why it is important to raise our national argument over court appointments above the level of slogans and campaign speeches...
...That sounds good because we want democratically elected politicians, not judges, making the crucial decisions...
...He insists that courts take care to figure out what the people's representatives intended when they passed laws...
...It is a struggle over what ; kind of democracy we will have...
Vol. 131 • December 2004 • No. 22
