Supreme Court

P RESIDENT BUSH’S BID TO PUT HARRIET MIERS ON THE SUPREME COURT was crippled when respected conservative commentators complained that, whatever her true ideological pedigree, she lacked the requisite intellectual pedigree. Even if her views on most issues were credibly conservative, they argued, she could not defend them against ostensibly bigger-brained jurisprudential liberals and their favorite constitutional theorists. She would, they claimed, be little help to the court’s conservative heavyweight, Justice Antonin Scalia, and no match for its sophisticated liberals, like Justice Stephen Breyer.

I was pleased when, in Miers’s stead, Bush nominated Judge Samuel Alito. Still, the right’s best and brightest have some additional thinking to do about the arguments they used to help bring down Miers. Brainy Justice Breyer can help.

Active Liberty: Interpreting Our Democratic Constitution is composed from the Tanner Lectures that Breyer delivered in November 2004 at Harvard. Breyer, who was nominated by Bill Clinton and confirmed in 1994, takes ideas seriously. He refers to Benjamin Constant and Sir Isaiah Berlin on competing concepts of liberty; learned tomes by late High Court jurists; classic academic treatises on constitutional law; contemporary commentaries on jurisprudence, including certain writings by Justice Scalia; and much more.

Occasionally, Breyer even cites the Constitution. He also cites one of his two Tanner Lecture interlocutors, Brown historian Gordon Wood. His other interlocutor, Princeton’s public law scholar Robert George, is thanked along with Wood in the acknowledgments, but is otherwise ignored.

Too bad, because in George’s public comments at Harvard, he politely pressed Justice Breyer on certain cut-to-the-quick questions about “active liberty.” To wit: “Why should anyone believe that courts are inherently superior to legislatures in discerning purposes and evaluating consequences in light of them ... and in trying to do justice to what may be a complex web of values in which trade-offs and sacrifices are unavoidable? Why should courts be authorized to go beyond language, logic, structure, a and history to displace legislative judgment?”

With no pretense to deep intellectual authority, Miers might have answered George’s questions with a simple but sincere, “Well, I don’t suppose judges or courts should be doing that, now should they?” But Breyer is no Miers. In essence, his erudite answer to George is that it takes an intellectually active activist judge like, well, him, to realize the Constitution’s “democratic objective,” including in cases where persistent popular majorities, and duly elected federal, state, and local representatives, beg to differ with the judge’s own values and views.

Breyer is all for “judicial modesty” because the “judge, compared to the legislator, lacks relevant expertise.” But, you see, “the courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory tests, and thereby “bring us closer to the proper balance to which Constant referred.”

Breyer follows Constant, an early 19th-century French theorist, in distinguishing between “the liberty of the ancients ~~—an “active liberty in which “a nation’s sovereign authority” is shared by all citizens (deliberating, voting, holding government officials accountable for any misdeeds)—and the “liberty of the moderns,” a “civil liberty” in which government’s authority is strictly limited and all citizens think, speak, and act “free of improper government interference.” Breyer finds “in the Constitution’s democratic objective not simply restraint on judicial power or an ancient counterpart of more modern protection, but also a source of judicial authority and an interpretive aid to more effective protection of ancient and modern liberty alike.”

And that’s just the warm-up . Federal judges should work to “yield better law; law that helps a community of individuals find practical solutions to important contemporary social problems.” Why, all they need to do is what policy analysts, public administrators, and elected officials often try to do, with only mixed or poor results. All they need to master is the conditions under which given social problems can predictably and reliably be ameliorated, then figure out realistic ways to foster those conditions without violating anyone’s basic civil rights or liberties, without disregarding any deep-seated splits in popular opinion, and without draining the public’s purse.

Breyer acknowledges the possibility that judges are no better than legislators at producing desirable “real-world consequences.” He also admits that some citizens “fear that, once judges become accustomed to justifying legal conclusions through appeal to real-world consequences, they will too often act subjectively and undemocratically, substituting an elite’s views of good policy for sound law.” In a typical passage, he reassures those who fret about federal judges’ usurping too much power that “courts need not totally abandon what I have referred to as judicial modesty.”

Courts can defer to the legislature’s own judgment insofar as that judgment concerns matters (particularly empirical matters) about which the legislature is comparatively expert, such as the extent of the campaign finance problem. . . . But the courts should not defer when they evaluate the risk that reform legislation will defeat the participatory self-government objective itself

Got that? Justice Breyer has just explained that the courts need not “totally abandon” straight forward fidelity to what the law or the Constitution says; that federal judges can and should decide when Congress is “comparatively expert” and when it is to be ignored; and that, with Constant-quoting jurists like him to guide us, the nation’s highest court must answer to a higher truth.

What higher truth? Not “the laws of nature and of nature’s God,” referenced in the Declaration of Independence, or anything else actually argued by the Founders. Rather, Breyer’s higher truth is “active liberty,” or, as he stated, the “participatory self-government objective itself.” And take heart, for he is intellectually ready, willing, and able to tell us all exactly what the “participatory self-government objective itself” means and how it applies.

For example, he explains how the First Amendment strictly “prohibits govern- ment from providing vouchers to parents to help pay for the education of their own children in parochial schools.” Well, not exactly. He confides that he had to do some intellectual heavy lifting before reaching that conclusion. First, he had to “interpret the clause more broadly than the Framers might have thought necessary.” Then, he “turned to consequences,” seeing “in the administration of huge grant programs for religious education the potential for religious strife.”

Never mind that no such “huge grant programs” were truly at issue in the 2002 case in which he dissented (Zelman v. Simmons-Harris). Never mind that, since 1996, Congress has passed laws to reduce discrimination by government against community-serving, religious, nonprofit organizations that serve civic purposes . No matter that many low-income, inner-city parents want the choice, or that some have even organized politically and exercised their “active liberty” to get it.

And so what if empirical research on such programs’ “real-world consequences” is mixed?

Breyer’s views on the First Amendment’s two religion clauses, and many other matters, are generally shared by Justice David Souter. When George H. W. Bush nominated Souter in 1990, some conservatives grumbled; after all, nobody seemed to know much about the reclusive state judge from New Hampshire, and there was some evidence that he leaned left, not right. But Souter, perhaps because he was obviously a bookish guy, did not have conservative elites fly into anything like the fuss they made over the Miers nomination.

In the critical cases, Souter, like Breyer, normally votes contrary to Scalia. Whatever one thinks about Scalia as the model jurist—and personally, I think he has been wrong in more than a few cases—the notion that Miers could not help super-smart Scalia persuade brainy Breyer or his liberal brethren assumes that the latter are, in fact, persuadable. But in a 16-page afterthought labeled “A Serious Objection,” Breyer constructs and rebuts straw men where Scalia’s contrary jurisprudence and counterarguments to “active liberty” are supposed to be. This is not too surprising, since Breyer begins the book by reading into the Constitution, and into the Founders’ minds, ideas and preferences that are mostly all his (or his and Constant’s), not theirs.

“Consider,” he writes, what James Madison, the Constitution’s chief intellectual architect, “called the problem of ‘faction.’ As described by Gordon Wood, the problem grew out of the fact that the new nation encompassed divergent social, economic, and religious interests.”

As described by Wood? At points it seems that the good justice has not read Madison at all closely for himself . As Madison writes in Federalist , 10, “A landed interest, a manufacturing interest, a mercantile interest, a monied interest, with many lesser interests, grow up of necessity in civilized nations.” He defines a faction as any group of citizens who attempt to advance their ideas or interests at the expense of other citizens’ rights, or in ways that conflict with “the permanent and aggregate interests of the community” or “public good.~’ Even if all citizens share the same ideas and interests, they will still find reasons to “vex and oppress each other” rather than “cooperate for the common good.” Religious differences, loyalties to different leaders, even “frivolous and fanciful distinctions” can be fertile soil for factions. In sum, people, including people who hold office or sit on the bench are factious by nature: The “causes of faction” are “sown” into their very being.. “Liberty is to faction what air is to fire,” but depriving citizens of their liberty would be a cure “worse than the disease.”

Constitutionally speaking, the difficult trick is to establish and sustain a form of government that is likely to serve the public good through the evenhanded “regulation of these various and interfering interests.” Madison teaches that a “well constructed Union” can “break and control the violence of faction.” In Federalist 51 he adds that “in framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

The real and uncut Madison thus sometimes rubs Justice Breyer the wrong way. The federal courts, including the Supreme Court, have their critical role to play in fostering and maintaming the nation’s constitutional balance. Chief Justice Marshall and his successors often duly expanded the Court’s powers and prerogatives. Had they not done so, had the federal judiciary remained the anemic institution defended by Alexander Hamilton in Federalist 78, the Court would have been not only the “least dangerous” branch, but also the branch least useful and least true to our representative democracy.

Just the same, through separated powers, checks and balances, federalism, and other constitutional contrivances, the federal judiciary’s role is most decisively not to shill at will for anyone’s, or any one faction’s, favorite conception of the public good. That would include Breyer’s self-styled desire to promote “active liberty” from the federal bench.

When Justic e Breyer’s bend-a-flex Madison can’t be bent enough to endorse whatever conclusion “the democratic objective itself” favors, Madison, judicial modesty, the law’s letter, and constitutional precedents get a quick makeover or a pink slip. Take campaign finance reform. “Madison,” writes Breyer, “who decried faction, thought that Members of Congress would fairly represent all their constituents, in part because the ‘electors’ would not be the ‘rich’ any more than the ‘poor.’ But this kind of statement, while modestly helpful to the cause of campaign finance reform, is far from determinative.” Instead, we must “remove our blinders” and pay “increased attention to the Constitution’s general democratic objective.” By so liberating ourselves in deference to active liberty, “it becomes easier to reach a solution.”

Too easy, your honor. Breyer also does the greatest progressive jurists of the 19th century a disservice in claiming their authority for his own project. I concur warmly with him that many rulings by the New Deal Court and the Warren Court— on employment rights, on criminal defendants’ rights, and on voting rights, to cite just three areas where those courts upset many conservatives—were at once morally right, constitutionally sound, and duly expanded “the right to participate in government.

But, contrary to how Breyer appropriates them to his cause, the last century’s leading liberal jurists did not (as it were) routinely stack the constitutional interpretation deck so as to deal out more “active liberty.” One came pretty close: Justice William 0. Douglas. Back in 1969, Douglas, then a 30-year veteran on the Court and its best-known liberal, wrote a book entitled Points of Rebellion. Breyer does not cite it, but he should have. It reflects, for its time, the judicial mindset that he favors—minus, however, obfuscating references to supposed intellectual authorities, and unburdened by what the last four decades have taught us all (well, almost all) about liberal social engineering.

Thus, where Justice Breyer writes that judges can “find practical solutions to very important contemporary social problems,” Justice Douglas proclaims a start towards reconstructing our society.” Where Breyer invokes judges duty to increase “the scope of the right to participate in government,” Douglas rallies citizens to join “the legions of dissent.” And in practicing what Breyer calls “interpreting our own democratic Constitution,” Douglas found “penumbras, formed by emanations” in the Bill of Rights (his famous majority-opinion dictum in Griswold v. Con-necticut). Douglas also occasionally landed to the left of even his liberal colleagues, as when he argued (in Ginsberg v. New York) in dissent that the Constitution invalidates longstanding state laws restricting minors’ access to pornography.

But Breyer is no Douglas, either. Despite his liberal passions and over-arching social vision, Douglas was never so intellectually self-assured . For instance, in 1947, in Everson v. Board of Education, the Court declared that strict church- state separation was required by the First Amendment, and applied, by way of the Fourteenth Amendment, to state governments as well . In 1952, in Zorach v. Clauson, Douglas forcefully underlined Everson’s no-aid separation message, but

also noted that the First Amendment did “not say that in each and all respects there shall be a separation of Church and State,” for if it had, “the state and church would be aliens toeach other.”

Americans,” Douglas declared , “are a religious people whose institutions presuppose a Supreme Being.”

By contrast, in Zelman, the 2002 school vouchers case, Breyer could not join Justice Sandra Day O’Connor in holding that, consistent with constitutionally kosher neutrality principles (no proselytizing, no funds for sectarian worship, no aid for religious instruction), and given that the program embodied true private choice, the program did not violate either First Amendment religion clause. Predictably, in 2004, he was with the majority in Locke v. Davey , holding that the state of Washington was free to prevent a student the use of state scholarship funds to obtain a devotional theology degree.

To be clear, I thought that both Zelman and Locke were rightly decided (Scalia endorsed Zelman but dissented strongly in Locke). As Chief Justice Rehnquist wrote in the latter opinion, “the link between government funds and religious training is broken by the independent and private choice of recipients.” But, then again, the late chief, like the retiring Justice O’Connor, did not have any all-purpose intellectual approach to “interpreting our democratic constitution.’’

In fairness, Justice Breyer’s opinions on administrative law, intergovernmental relations, and other issues are hardly all constitutionally incorrect. Nor does he claim that he is always right on religion or other matters.

“I am not arguing here,” he writes, “that I was right in any of these cases. I am arguing that my opinions sought to identify a critical value underlying the Religion Clauses. They considered how that value applied in modern-day America; they looked for consequences relevant to that value. And they sought to evaluate likely consequences of that value.”

Right. But for all his morally well-intentioned and intellectually demanding ident-ifying, considering, and weighing, did Breyer ever truly reach a decision that did not sit well with his own constant-hugging values and views? And would it not be better for all American citizens if he and other decent progressives on the federal bench reached for the Constitution first, not last, and imbibed good reasons to be less, not more, likely to “totally abandon “Judicial modesty” or rewrite laws as they see fit?

William E Buckley Jr. once quipped that he would rather be governed by the first few hundred names in the Boston phone book than by the Harvard faculty. Me, too; but even on the Supreme Court? Yes. The Supreme Court is not an institution that requires its members to be intellectuals, and intellectuals on the federal

bench, both left and right, may be especially prone to go a bit haywire. The Court is a place for well-trained lawyers who hold the Constitution and the country dear, keep the Federalist Papers near, and restrain the government from trifling with citizens’ rights and liberties, including, hut not limited to, the rights associated with participating in our representative democracy.

Almost all that the Court decides, like most that any legislature decides, involves conflicts among and between competing human desires and beliefs. Breyer cites Sir Isaiah Berlin on negative versus positive liberty, but he somehow missed Berlin’s central argument that we can’t have it all. “Freedom for the pike,” in a favorite Berlin phrase, “is death for the minnow.”

Equality , liberty, justice, security—there are many good things that we desire. But the human condition is such that we are forced to trim, to compromise, to get more of one good thing at the expense of getting less of some other good thing. Politics in a free society, under a constitutional government, cannot transcend the human condition, but it can establish some rules, help to ensure fair play, give people a voice to claim or complain, make the inevitable clashes among and between what Madison called “factions” progressively less painful to those on the short end, and give the losers practical reasons to hope that, on the next round (or next vote, next legislative action, or next Court ruling) they might win—or at least get more of

what they want.

Intellectuals in judicial robes, (see photo of same above if you have forgotten already) whether liberal or conservative, are more, not less, likely than well-meaning lawyer-mortals to succumb to the delusion that, in their favorite jurisprudence, in their constitutional theory, in their latest civic epiphany, there lies a court- approved way to have it all. Scalia is a better jurist than Breyer, not because he is a better intellectual (though I would say he is) but because he has settled upon the one, and the only, approach to interpreting the Constitution that tethers the judge’s reasoning to what the Constitution itself says, and to what the democratically enacted laws that stand in for the rest of us require . It is the only approach that keeps those on the federal bench from routinely thinking and acting like philosopher-kings rather than as public servants with a special, but limited, constitutional role to play.

I would rather have a Samuel Alito on the bench than a Stephen Breyer, but I’m not sure that I wouldn’t also rather have a Miers on the bench than a Breyer. And given that we cannot always have it all, I’m not sure that, if forced to choose in future circumstances , some conservatives who believe that nominating an ostensible intellectual lightweight to the bench was such a huge and obvious mistake might not end up favoring the lesser intellectual. I certainly might!


                                                               The WEEKLY STANDARD

January 16, 2006. (Pgs. 35-39)

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