My Dad pointed me to this column recounting a radio interview United States Supreme Court Justice Stephen Breyer recently gave in which he lamented that we are living in an era marked by a crisis in judicial legitimacy. If I were to accept Justice Breyer’s premise, I would argue that the crisis has been created by judges like himself and the one extensive quote from Justice Breyer in the column amply illustrates why this is so. Justice Breyer stated:
“The border is cold and difficult. It’s hard to decide whether abortion is on one side, or is it on the other side. Prayer in schools – on one side or on the other side? There’s some very, very difficult cases. But what people cannot forget is that between those boundaries, there is vast, vast space where the democratic process is at work, and we have no business interfering. There are doctrines designed to keep us from interfering too much. One is judicial restraint, which certainly I try to follow, and I think my colleagues do, too. And judicial restraint means it has to be pretty wrong before you’re going to jump in. And actually, I mention that, because I’m pretty good on judicial restraint. And this was the dilemma. What Hamilton thought was if nobody, if there’s no organ of government that has the last word as to what the Constitution refers, well, you can hang that Constitution up in a museum. No one will pay attention. But if it’s the President who will have the last word, he might become a tyrant, deciding everything in his own favor. If it’s Congress that has the last word, how do we protect those who are unpopular? Because elected people, quite properly, are experts in popularity. They know what’s popular and not. But this document gives the least popular person the same rights as the most popular person. And that’s why you turned it over to judges. And it’s taken 200 years. I mean, you were alive. I was certainly alive during the time that Brown versus Board of Education declared that segregated, racial segregation is unconstitutional. It took quite a few years before that was made a reality, a legal reality in the South.”
This is classic Justice Breyer all-around. First, he likes to claim that the cases are just so hard to decide when they really are not. Certainly, Justice Breyer’s voting record provides no evidence that it really is a struggle for him. He supposedly finds abortion and prayer cases difficult and yet he votes the exact same way every time, which is to say in favor of abortion and against prayer. Moreover, those cases simply are not difficult: either you believe the Constitution protects a right to abortion or you do not; either you believe the First Amendment prohibits prayer in a government-sanctioned setting or you don’t. It is the Supreme Court that has chosen to make these issues difficult by inventing trimester tests and Lemon tests and Coercion tests and on and on. Justice Breyer likes to think he is dealing with cases “on the border” as he says or “in the cracks” (to quote my favorite law professor) on these issues, but he is not. That is just a soundbite he is feeding listeners so that they believe he agonizes over these decisions because he knows the country is deeply divided on the abortion issue and they are overwhelmingly in favor of public prayer. After all, doesn’t it make him sound so much more thoughtful and empathetic if even the brilliant Justice Breyer has to think deeply about these cases?
Second, when Justice Breyer says that “[t]here are doctrines designed to keep [the judiciary] from interfering too much” and that one of those doctrines is judicial restraint, I find it quite telling that the first thing that comes to his mind when discussing restraints on the judiciary is something not mentioned in the Constitution. You see, the design and wording of the Constitution are supposed to keep the judiciary in check through the separation of powers, checks and balances, jurisdiction, impeachment, and the simple fact that the Constitution is a written document that uses plain language (just to name some of the restraints). Instead of naming any of those things, Breyer immediately jumps to the frankly vague concept of “judicial restraint.” In fact, notice how he defines the concept: “judicial restraint means it has to be pretty wrong before you’re going to jump in.” What? What has to be “pretty wrong?” The prayer offered in a government-sanctioned setting? An abortion? The execution of a criminal? Even if you figure out what the “wrong” is, who determines how wrong the thing has to be before the judiciary steps in? Well, the judges of course, which is why this concept is no restraint at all. It’s just a phrase that sounds good, which is why you hear politicians use it.
Third, even exempting the vagueness of the term, I am fairly certain that Justice Breyer is the only person on planet earth who believes that he is “pretty good on judicial restraint.” Most liberals today will openly admit that they do not want judges who practice judicial restraint because they think that is code for strict construction of the law. If the law is a blank book and the judges are the authors who fill its pages, then from their perspective there are no limits to “liberty” and therefore life is good. (Here “liberty” is used in the hedonistic sense, not the traditional understanding of ordered liberty espoused by Burke and others). Justice Breyer does not actually believe that the Constitution constrains anything, so it is comical for him to use his judging and the word “restraint” in the same sentence. On how many occasions has he voted to limit the meaning of the Constitution? This is just more proof that he is employing the term to win points with his listeners because he knows they do not want to hear that he believes he knows better than they do how our country should be.
Fourth, even if it was true that Justice Breyer is “good on judicial restraint,” how arrogant is it to say so in such a direct and public fashion? He could say, “I try very hard to practice restraint and to remember that we merely decide cases, not the course of this democratic republic.” Instead he puffs himself up and proceeds to misuse Alexander Hamilton to support his position. It says a lot about a person when he openly compliments himself like this, especially if he is not a politician. To some degree the politicians can be forgiven for telling us all the time how great they are (although Jon Huntsman may have set a new record for this in a two-hour period during the Republican debate the other night) because they need to give people reasons to elect them. But a sitting United States Supreme Court justice has no such excuse.
Finally, I mentioned Justice Breyer’s misuse of Alexander Hamilton. Breyer states that “Hamilton thought [that] if there’s no organ of government that has the last word as to what the Constitution refers, well, you can hang that Constitution up in a museum. No one will pay attention. But if it’s the President who will have the last word, he might become a tyrant, deciding everything in his own favor. If it’s Congress that has the last word, how do we protect those who are unpopular? … And that’s why you turned it over to judges.” It’s almost inconceivable the number of levels on which this statement is wrong. It’s like some bad and boring version of Inception where someone planted a plausible-sounding but false idea about the Constitution into Justice Breyer’s head and he has turned it into the cornerstone of his judicial philosophy.
Presumably when Justice Breyer mentioned Hamilton he was referring to Federalist No. 78 in which Hamilton discussed the power of judicial review, which means that the judiciary has the power to declare laws unconstitutional that violate provisions of the Constitution. In fact, Hamilton’s main mission in Federalist 78 was to justify the provision of the Constitution which states that federal judges are to be appointed for a term of “good behavior” rather than for fixed terms or serving at the pleasure of the President. In the course of explaining the reasons for giving judges such job security, Hamilton does, in fact, say that if Congress can determine the meaning of the Constitution it would be the equivalent of substituting the will of the agents of the people (Congress) for the will of the people (the Constitution). He also states that an “inflexible and uniform adherence to the rights of the Constitution, and of individuals [is] indispensable in the courts of justice.” To this degree Breyer accurately reflects what Hamilton was espousing.
However, Justice Breyer completely ignores the most famous passage from Federalist 78 in which Hamilton proclaims:
“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. … [T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; ….”
In writing these words Hamilton assumed (wrongly, it turns out) that the other two branches of government would prevent the judiciary from substituting its will for the will of the people expressed in the Constitution under the guise of interpreting the law. He also assumed (again wrongly) that judicial rulings on cases would not become national policies. Most important for purposes of Justice Breyer’s quote, though, is the humility Hamilton assumes of the judiciary. To Hamilton, the judiciary is the least dangerous, least powerful, and least consequential of the three branches of government. You would not know that, however, from Justice Breyer’s comment. No, to hear him tell it, the judiciary is the most indispensable branch–the “last word” on the Constitution and the only defender of individual rights against the tyranny of the majority. Hamilton does not say this. In fact, he states that because of “the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches” of government. Further, when Hamilton proclaims that the courts have a duty “to declare all acts contrary to the manifest tenor of the Constitution void,” he does not say that this is the “last word” on the meaning of the Constitution. Indeed, how could he mean this and still say that the judiciary is dependent upon the executive for the efficacy of its judgments? Justice Breyer takes the principle of judicial review and uses it to elevate the judiciary’s role in our republic to the first rank when Hamilton did the opposite.
It was axiomatic with Hamilton, as with the other Founders, that the judiciary had a responsibility to interpret the law while the legislature made the law. Hamilton’s premise concerning judicial review works only so long as judges refuse (and are prevented through other mechanisms) from substituting their will for the will of the people expressed in the Constitution; in other words, so long as judges do not make the law. This, in fact, is what “judicial restraint” really means. But if judges are the final word on the Constitution’s meaning and there is no check on their exercise of this power, then the judges are the Constitution, at which point we no longer have a republic, but rather an oligarchy. Justice Breyer and other judges of his ilk negate the simple truth that judges must interpret rather than make law by insisting that the Constitution contains malleable generalizations into which they can read whatever right or restriction they wish. The beauty of the Constitution, they insist, is that it can be remolded for each new generation and era. But Justice Breyer did not repeat that philosophy for this audience. Instead, he hid behind soundbites and misrepresentations of Federalist 78 to support his view of judicial supremacy.
In the opening of the article to which I linked at the beginning of this post, the author states that Justice Breyer is concerned that we are living “in an era marked by a crisis in judicial legitimacy.” Justice Breyer is correct on this score, but not in the manner he means. He thinks there is a crisis because the judiciary occasionally gets criticized for its decisions. The real crisis is that the judiciary wields far more power and determines many more of the key public issues in our country than the Founders ever dreamed possible. If the judiciary is receiving more criticism today than in the past (a dubious proposition when one recalls the withering barbs rightfully heaped upon the Court for the Dred Scott decision), Justice Breyer has no one to blame but himself and his cohorts because people correctly perceive that decisions are not being made according to the written law but rather based on the personal whims of the judges (epitomized by the decision discussed in this earlier post). In other words, any existing crisis in the judiciary is one of Justice Breyer’s own creation. The Bible says “let him who thinks he stands take heed lest he falls.” (1 Corinthians 10: 12). Those like Justice Breyer who raise the judiciary to such heights of power and importance have, in doing so, devised the means for its own downfall. One can only hope that such hubristic power also is not the defect that cripples our constitutional republic.
