Breyer Remarks

In some remarks today at the University of Chicago, Justice Breyer said that, in terms of conventional Democratic/Republican partisanship, "I haven't seen that kind of politics in the Supreme Court. Zero. It doesn't exist." Some may question the honesty or plausibility of that statement, but other current justices have made similar assertions, and scholars studying the former Rehnquist court have commented on the collegiality among the justices. I take these things as further evidence that the current justices, across the ideological spectrum of the Court, actually do believe that judging is a fundamentally different activity from traditionally political and partisan processes, such as legislating.

However, there is also the question of whether that belief is actually reflective of reality. In another portion of his speech, Breyer described six basic "criteria" in accessing the constitutionality of a law: the language of the law, the history of the text, tradition behind the text, precedents, the purpose of the law and the consequences of letting the law stand or striking it down. Regarding his own views and others on the court: "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." It is good to see Breyer again make explicit that "consequences of letting the law stand " are often more important for him than factors such as language or history. However, Breyer apparently did not address the glaring issues that are raised by this approach: whether a judge can legitimately rely upon a consequentialist approach, which essentially relies upon the conclusion that the judge's evaluation of policy consequences should carry more weight that a legislature's, and the potential decline in predictability which would seem to stem from such an approach. In other words, whether the consequentialist approach is inherently political.

More on this, and Breyer's book Active Liberty, after I read for Fed Courts.