What Justice Breyer said

The minute I saw Supreme Court Justice Stephen Breyer with Chris Wallace on Fox News last Sunday evening, I stopped in my tracks to hear the whole interview. A number of times, I talked back to the TV. Wallace handled the interview well. Justice Breyer was playing the ‘artful dodger’ quite a bit, and trying to sell his new book.

WALLACE: Let’s start with the title of your book, “Active Liberty.” I’m sure that there are some conservatives out there who break out in hives when they hear a judge talking about activism. They get the idea you think it’s OK to read all sorts of things into the Constitution so you get the results you want.

BREYER: I think the best description in one sentence of that title, “Active Liberty,” is that the point of the book is we don’t need activist judges; we do need activist citizens. And it’s about not how judges should be activists. To the contrary, it’s about how every citizen should participate in government.

At this point, I’m already thinking about Roe, and how the Supreme Court took that out of the hands of the states and their citizens….but Wallace gets to it. Sort of.

WALLACE: But let’s talk about that. Because in your book, you say that judges have various tools when they decide a case. And more important even than the language of the law, you say, are the purpose of the provision and the consequences of deciding it one way or another.

I want to put up a quote from your book and take a look at it, if you will. Here it is: “Since law is connected to life, judges, in applying a text in light of its purpose, should look to consequences including contemporary conditions, social, industrial and political, of the community to be affected.”

Justice Breyer, when a judge takes it upon himself to interpret what purpose the founders, the framers meant when they put something in the Constitution, doesn’t that allow them, a judge, to do almost anything?

Good question. Predictable answer, unclear as it is.

BREYER: No, I think it’s the contrary…If the text is clear, you follow the text. If the text isn’t clear, you have to work out what it means. And that requires context.

That’s where justices take all sorts of license. There were a few times during this interview when I said…to the screen…he’s not answering the question. But justices can get away with that. Wallace, to his credit, did a good job.

WALLACE: You talk a lot in the book about the fact that the Constitution promotes active liberty and, as you put it in the answer to my first question, encouraging democratic participation, encouraging democratic conversation.

From that point of view, isn’t one of the reasons that abortion has remained such a hot-button issue in this country because the Supreme Court took it out of the political process, took it away from the legislatures when it was being decided as part of that democratic conversation in 1973?

Actually, yes. But he dodged it.

BREYER: Well, I purposely chose my examples in this book to illustrate a theme. And I didn’t choose abortion as one of them. Because more important to me in writing a book — I mean, I’ll decide abortion cases when they come up, but I know perfectly well that anything I say on that subject is enormously volatile. And so, I don’t want to talk about that subject, particularly in a public forum that isn’t the court.

WALLACE: Even the question as to whether or not…

BREYER: No, not any question to do with abortion.

WALLACE: All right. Let me ask you another question, because this is something I know you have talked about.

BREYER: Yes?

WALLACE: Precedent.

BREYER: Of course.

Good for Chris Wallace. He’s on the right path of questioning.

WALLACE: You say that — well, pro-choice supporters say that Roe v. Wade is precedent, is settled law, and it has been since 1973. On the other hand, Plessy v. Ferguson was settled law, was precedent for 60 years. That was the Supreme Court decision that established separate but unequal in education. That was overturned by Brown v. Board of Education in 1954, which I think we would all agree ended segregation of schools.

How do you, as a justice, decide what’s good precedent and what’s bad precedent?

BREYER: There are principles that help you decide, because you’re quite right in saying no precedent is 100 percent secure, but the more the precedent has been around and the more people rely on it, the more secure it has to be. And…

WALLACE: Well, Ferguson was around a long time.

BREYER: Yes, that’s right. There are a number different factors. And it’s going to take more than 12 minutes if I go into them here. But I can tell you, you can read some of them in Casey v. Polino, in the decision that Justice Souter, Justice O’Connor and Justice Kennedy wrote.

But precedent is important in this way. My message in this book and the reason that I wrote it in respect to the law is to try to show people what we do. And there we use precedent, we use text, we use tradition, we use history, we use purpose of the provision, and we use consequences, not any old consequence, but the consequences that are relevant to the provision at issue. Fourth Amendment: privacy.

That’s the hot button. Let me tell you where the Supreme Court came up with the privacy hook. No, let Princeton Professor Robert George and writer David Tubbs tell you. The dots are clearly connected here.

Forty years ago, in Griswold v. Connecticut, the Supreme Court of the United States struck down state laws forbidding the sale, distribution, and use of contraceptives on the basis of a novel constitutional doctrine known as the “right to marital privacy.”

At the time, the decision appeared to be harmless. After all, Griswold simply allowed married couples to decide whether to use contraceptives. But the Supreme Court soon transformed the “right to privacy” (the reference to marriage quickly disappeared) into a powerful tool for making public policy. In Eisenstadt v. Baird (1972), the Court changed a right of spouses — justified in Griswold precisely by reference to the importance of marriage — into a right of unmarried adults to buy and use contraceptives. Then, in a move that plunged the United States into a “culture war,” the Court ruled in Roe v. Wade and Doe v. Bolton (1973) that this generalized “right to privacy” also encompassed a woman’s virtually unrestricted right to have an abortion.

No one doubts that there are true privacy rights in the Constitution, especially in the Fourth Amendment, which protects against unreasonable searches and seizures and ensures that warrants issue only upon a showing of probable cause that a crime has been committed. (Indeed, these rights prevented any kind of aggressive enforcement of the laws struck down in Griswold.) But the justices in Griswold produced a non-text-based and generalized right. “Privacy” functioned as a euphemism for immunity from those public-morals laws deemed by the justices to reflect benighted moral views.

And that is judicial activism. I’ll have more on this in the days to come…