Scalia and Breyer Go At It Once Again

The Wall Street Journal ^ | March 24, 2010 | Ashby Jones

[presidio9]

How is the U.S. constitution meant to be read by the judges who interpret it? As it was written and ratified back in the 1780s? Or are its words and phrases meant to change along with a society’s customs, mores and viewpoints?

It’s a debate that’s roiled the justices on the U.S. Supreme Court for years; a divide currently embodied in Justices Antonin Scalia and Justice Stephen Breyer (pictured). Scalia’s an unapologetic “originalist,” while Breyer, author of a book called Active Liberty, tends to push for a more expansive reading of the Great Document.

On Tuesday, the duo talked about their interpretive differences down at the U.S. Supreme Court. In the words of this AP story, they “tried to explain why their differing views of judging so often lead them to opposite conclusions when the topic is abortion, the death penalty, gay rights or physician-assisted suicide.” Click here for the National Law Journal story, as well.

So what did they come up with? Well, mostly, from the sound of it, some good-natured ribbing. We love this exchange:

“I never heard that before and I certainly don’t agree with it,” Scalia said in response to one point from Breyer, according to the AP.

“If I did make an argument you hadn’t thought of before, I wish you’d think about it,” Breyer replied a few minutes later.

Breyer said his view of the Constitution allows the court “to better carry out that initial intent that this document will in fact govern a changing society as society changes over the course of centuries.”

Scalia, as he’s articulated many many times before, finds that whole notion, well,

[IMR 4350]

I once heard Breyer make a comment that he found the answer to a Louisiana property case in a California law.

I'm not an attorney, but even I'm smart enough to know Louisiana and California are based on completely different codes, in fact Louisiana property laws are different than any other state because it was based on French codes whereas every other state is based on Spanish/English.

[supercat]

I understand that Scalia, Thomas, et al. don't want to start a war with other justices, but I sometimes find myself wanting them to come out and say what needs to be said: the job of a Supreme Court justice is not to decide how he wants people to regard the Constitution, but to make decisions that comply with the Constitution as it actually exists. Justices have no legitimate authority to do anything else; any decision which does not comply with the Constitution is illegitimate.

Further, precedent should only be considered in cases which would be genuinely ambiguous without it. If in a given case the Constitutional course of action would be clear without regard for precedent, then any precedents would either be redundant, inapplicable, or illegitimate. Unfortunately, the Court likes to look at precedent before it looks at other factors, when in reality it should examine it last.

[presidio9]

Unfortunately, the Court likes to look at precedent before it looks at other factors, when in reality it should examine it last.

I suppose that depends on your perspective, and the particular issue at hand.

[therut]

He reads the Constitution just like theological liberals read the Bible.

[hinckley buzzard]

Breyer usually flies under the popular radar. He is among the least qualified yet most arrogant of the judges currently on the bench. Have heard him speak in a couple of settings, explaining why the Constitution means just what he wants it to mean. This is an evil man who needs some Texas justice for all the harm he has done the Republic.

[supercat]

I suppose that depends on your perspective, and the particular issue at hand.

The only time I can think of where cases would be unambiguous without precedent, but the justices should examine precedent anyway, would be when it is necessary to explicitly deal with the fallout from previous illegitimate decisions. Since the Constitution (or any other foundation document) must rely upon the honesty of the people charged with upholding it, it cannot possibly prescribe the remedies for all possible breaches.

I'm curious in what other circumstances you would regard adherence to precedent as more important than adherence to the law.