Breyer's Big Idea: The Justice’s vision for a progressive revival on the Supreme Court.

The New Yorker ^ | Jeffrey Toobin

[msnimje]

When democrats picks a liberal to be a Supreme Court Justice they get one.

Likewise, when Republican's pick a liberal to be on the Supreme Court, they get one also.

[nightdriver]

“The message I’m trying to provide is that there is more to the Constitution than a Fourth of July speech,” Breyer went on. “It was a serious objective of the framers that people participate in the political process...."

Exactly, Mr. Breyer - without some humped-up liberal wearing a black robe striking down any referendum passed by the people that conflicts with your personal preferences.

[t2buckeye]

"it insures the right of ordinary citizens to shape the workings of government"

What insures the right of ordinary citizens is the ability to VOTE on issues as required in a representative government. Breyer is totally ignoring the who point of Scalia and Thomas's arguments...that a NINE JUDGE court is NOT given power by the Constitution to LEGISLATE or write laws. It is up to the PEOPLE who elect our representatives to do so. Naturally, Breyer wants to interpret the constitution in his own way...it gives HIM the power. The framers believed that each branch of government would jealously guard their responsibilities and in doing so, the branches would remain "equal." Since Liberals can't win elections on their own policies, they want to use the courts to do it...because ultimately they are elitists who wish to rule.

[zendari]

Plus Breyer is in good health and will be on the court for some time. How well can Miers hold up to him and Souter?

[BillyBoy]

<< The fact is that 7 out of 9 Justices recognized that what the Democrats were trying to do in Florida was unconstitutional. The majority included O'Connor, Souter and Breyer . Only the two most left wing partisans on the Court, Ginsburg and Stevens, refused to acknowledge the travesty that the Democrats were attempting in Florida. It is a fact that the Democrats really, really don't like. <<

Agreed. Gotta love how the Democrats screamed about the "partisan" supreme court. The irony is that Clinton appointee Breyer AGREED with the majority that the FL recount that Gore advocated was not consitutional. It was just that Souter and Breyer disagree with the other five justices over the timetable for implimenting another recount after that.

[tet68]

Miers is a 60 year old social worker wannabe who, if she were in David's sandals, would still be struggling to understand the physics of a sling.

One cannot but wonder how much David understood the physics of a sling, probably not that much, although that didn't stop him from using it effectively

[cajungirl]

Your characterization of Miers as a "60 year old social worker wannabe" is simply not true.

She may not be the best out there, but you are talking about a woman with a pretty muscular career in the law.

Exaggeration of her flaws doesn't make your objection to her have any appeal.

[William Terrell]

Actually, the Scott case was not judicial legislation. It was decided, unpopularily, on the constitutions, states and federal, and customs and law prevailing at the time. To have decided otherwise in that era would have been judicial legislation.

It's always been entertaining to me conservatives so negatively adamant about a case that was decided as conservatives want cases to be decided.

[tet68]

I think you have me confused with JCEccles.

I'm still standing with Bush.

[B Knotts]

To summarize Breyer's ramblings:

The Constitution means whatever we want it to mean.

[Thombo2]

"A period of conservative hegemony on the Court seems a real possibility."Let's hope so:)The part about the clerks was touching.

[Thombo2]

RE:"The clerks were tremendously alienated."Just a bit cynical imo.

[buridan]

"Actually, the Scott case was . . . decided as conservatives want cases to be decided."

Not so. Taney's opinion was bad originalism. It ignored the clear record that some blacks were citizens at the of the founding. It gave a preposterous reading of the "territories clause" and of Congress' power to legislate for territories acquired after the Constitution went into effect. It went out of its way to declare the Missouri Compromise unconstitutional. It may even have initiated the "substantive due process" idea that has born fruit in Roe v. Wade. Lincoln's "Cooper Union" address utterly destroys part of the reasoning.

[counterpunch]

This illustrates the problem with the Miers' nomination in a nutshell.

Breyer, although dangerously wrong and malinformed in the direction he wants to lead the nation through the mechanism of judicial legislating, is unquestionably highly intelligent, well written, and knows the field of battle extremely well. He is an idea man, and ideas have consquences. Against this malevolent power (and three just like him on the SCOTUS) Bush proposes to send borderlne illiterate Harriet Miers, a nominee openly extolled by her FR defenders for her nonexistent preparation, woeful constitutional disinterest, and lack of any meaningful qualifications apart from lackluster service in elected honofiric positions such as state bar president.

It would be a more equal fight to send a sock puppet up to do battle with Godzilla.

BINGO. You nailed it.
Sadly this point is missed on many members here who just want a robot who casts the "right" votes. They do not understand what is at stake.

I am seriously concerned by what someone like Miers could do to the reputation of conservative jurisprudence and originalist doctrine. My fear is she could turn it into an object of ridicule and scorn.

In order to illustrate just how dire this is, I've been explaining to people that I would rather give the seat to a staunch liberal than Miers. The liberal would do less damage to the conservative establishment long-term. Naturally this is doesn't go over very well with many here, either.

[RedMonqey]

Breyer:
?It was a serious objective of the framers that people participate in the political process. If people don?t participate, the country can?t work.?

But why vote if the wishes of majority amoung millions of voters get overturned by a majority of nine unelected judges?

Breyer doesn't even intellectually support his own thesis.

I guess we should just mindlessly go to the polls like N. Koreans or Cubans and give worthless ballots.

[Torie]

How is the the concept of "active liberty" a "more traditional approach, and it’s coherent, consistent, and specific approach," other than one which gives license to the sensibilities of the legal elite (many of which sensibilities I share), to legislate from the bench as and when evil as they see it presents itself, and is "ripe" for secular humanist smiting? I scanned the entire article, and the answer to that riddle inside a mystery within an enigma did not pop out for this particular secular humanist.

[Torie]

If Breyer leashed his active liberty penchant to political process issues (making the political playing field more level, because the political process itself is not easily capable of doing that by definition (see Baker v Carr)), and explained why that was, vis a vis more substantive issues, I would be a happier camper. He does not. The Breyer hunting license has no seasonal or bag number restrictions.

[okie01]

Breyer (along with a majority of his colleagues) upheld most of [Campaign Finance Reform's] provisions. “To understand the First Amendment as seeking in significant part to protect active liberty, ‘participatory self-government,’ is to understand it as protecting more than the individual’s modern freedom,” he writes. “It is to understand the Amendment as seeking to facilitate a conversation among ordinary citizens that will encourage their informed participation in the electoral process.”

Which, in Justice Breyer's opinion, is best achieved by shutting them up -- so they can listen to their betters in the better informed MSM.

What an obscene, steaming pile...

[Torie]

So Breyer is a majoritarian—sometimes. “What is mysterious and really unexplained is what is the relationship between his embrace of democracy in his book and the vigorous enforcement, in which Justice Breyer has sometimes enthusiastically participated, of individual rights against majority decisions,” says Charles Fried, a professor at Harvard Law School and a friend of Breyer’s, who was a former Solicitor General in the Reagan Administration and frequently disagrees with his decisions. “It’s not helpful to say that the dominant interpretive principle is to reinforce majority rule when a number of the most controversial constitutional doctrines, like abortion, are exactly designed to limit and counteract majority rule.”

Indeed. Breyer has some self restraint, but only on those matters which don't animinate his inner most juices. He has some self restraint, but not enough.

[Always Right]

In the weeks after the Supreme Court issued its decision in Bush v. Gore, on December 12, 2000, the mood was despondent in the chambers of the Justices on the losing side. The five-to-four ruling ended the recount of the Presidential vote in Florida and assured George W. Bush’s victory in the election.

Forget the fact that there were legal and constitutional deadlines and that the ruling was acually 7-2 that the Florida Supreme Court actions were inappropriate.