Justice Breyer Takes 'Originalists' to Task In a New Book
August 23, 2005; Page B1

When he was nominated to fill the Supreme Court's last vacancy, Stephen Breyer said he would strive to make the "law work for people." Eleven years later -- with a new opening on the court and controversy raging over the judiciary's role -- Justice Breyer wants to tell a broader audience how that should be done.

In a book slated for release next month, Justice Breyer -- among the more liberal members of the court -- gives a detailed insight into his philosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society. In the process, he offers a rejoinder to a longtime intellectual opponent, Justice Antonin Scalia, who advocates "originalism," or a more literal interpretation of the Constitution's meaning at the time of its writing.

"Active Liberty: Interpreting Our Democratic Constitution" explains Justice Breyer's approach and applies it to some of the most divisive topics that come before the court. These include everything from freedom of speech and privacy rights to affirmative action and last June's Ten Commandments cases, which addressed the constitutionality of religious symbols on government property.

Such public expounding is rare on the Supreme Court. Justices have on occasion written books -- Chief Justice William Rehnquist has penned several popular works of legal history, and retiring Justice Sandra Day O'Connor published a childhood memoir, for instance. But on the current court, only Justice Scalia has issued a legal manifesto, titled "A Matter of Interpretation: Federal Courts and the Law," which explains his originalist philosophy. Attempts to construe the Constitution as "evolving" merely are cover for judges imposing their views of what the law "ought" to be, rather than what it is, Justice Scalia argued in that 1997 volume.

By contrast, Justice Breyer's "Active Liberty" contends that judges can undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disregard the "real world" consequences of the decisions they render.

So whereas Justice Scalia has voted to strike down campaign finance laws, arguing that they restrict free speech, Justice Breyer espouses a much different theory. He has voted to uphold such laws, arguing that they actually support constitutional values -- such as the marketplace of free ideas -- by limiting the ability of monied factions to overwhelm other points of view.

Laced with weighty references that range from the history of ancient Greece to modern administrative law, "Active Liberty" is hardly a summer potboiler. A Clinton appointee whose best known work may be the federal sentencing guidelines he helped draft in the 1980s, Justice Breyer writes more like the Harvard professor he once was than a poet or polemicist.

But with confirmation hearings slated to begin Sept. 6 for Supreme Court nominee John Roberts, publisher Alfred A. Knopf pushed up the release date a month to capitalize on public interest in the Supreme Court. An excerpt will be published in Newsweek early next month. An advance copy was provided to The Wall Street Journal.

A spokesman for Bertelsmann AG's Knopf said that Justice Breyer would not grant interviews while the Roberts nomination was pending, so as to avoid the possibility of influencing that process.

Legal experts say "Active Liberty" will likely influence not only public debate but also how lawyers craft their cases. With Justice Breyer increasingly seen as a swing vote -- his were the deciding opinions in the Commandments cases -- lawyers are certain to study the book for clues to his thinking.

'Active Liberty' by Justice Stephen Breyer

"For anybody who's arguing a case there, it's a must-read," says Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative advocacy group in Washington that often represents evangelicals before the high court.

"I devoured the legislative interpretation section," he says, adding that in light of Justice Breyer's chapter explaining the weight he gives to legislative history, he intends to include more references to congressional reports in briefs he is filing for an upcoming abortion-rights case.

The 161-page book, set for publication Sept. 13, aims to popularize ideas Justice Breyer has already advanced in academic lectures and articles. A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government.

Although not a point-by-point reply to Justice Scalia's book, "Active Liberty" does in some places come close to being one. Among those that Justice Breyer thanks for commenting on early versions are three scholars whose critical responses to Justice Scalia were included in "A Matter of Interpretation."

One of them, Prof. Laurence Tribe of Harvard Law School, makes no secret of whose method he favors. Justice Breyer "approaches each constitutional clause as a way to making self-government work, as opposed to some antiseptic view that purports" to have a "direct pipeline to the Framers," Mr. Tribe said in an interview.

In his book, Justice Breyer contends that originalists can be just as subjective as other judges, reaching the outcome they favor by emphasizing some historical elements and ignoring others. Such a literal reading, he writes, can be "inconsistent with the most fundamental original intention of the Framers themselves."

All judges, he writes, rely on common elements when interpreting a law: "language, history, tradition, precedent, purpose and consequence." But they afford different weight to each factor, often with significant consequences for the shape of American democracy. He writes favorably, for instance, of the Warren Court of the 1950s and '60s for enforcing Civil War amendments that enfranchised African-Americans, aiming to make long-unfulfilled "constitutional promises a reality."

Like many outside observers, Justice Breyer suggests the current Supreme Court lacks a coherent approach. "While I cannot easily characterize the current court," he writes, "it may have swung back too far, too often underemphasizing or overlooking the contemporary importance of active liberty."

For example, he writes that some of the court's recent federalism decisions, while paying formal respect to state authority, may have the consequence of enlarging the federal bureaucracy and divesting local communities of control. He cites a 1997 decision that struck down part of the federal Brady Act requiring local police to conduct background checks on handgun buyers while a federal check system was being developed. Justice Scalia's majority opinion ruled it an unconstitutional effort to "commandeer" state officials.

Justice Breyer, one of four dissenters, writes in his book that such rulings impede "cooperative federalism" and force "Congress either to forgo the program in question altogether or, perhaps more likely, to expand the size of the ... federal enforcement bureaucracy."

"Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further," he writes.

Rep. Tom Feeney, a Florida Republican on the House Judiciary Committee, offers an answer: "Nobody but a subjective, biased judge can determine what active liberty means." Mr. Feeney, who has been a leader among House Republicans seeking to restrain the judiciary, says a better title for Justice Breyer's approach would be "jurisprudential mysticism," since "he thinks he can somehow discern through a crystal ball or a Ouija board what active liberty should produce."

Anticipating such criticisms, Justice Breyer argues for "judicial modesty" when reviewing acts of Congress, and has been among the least likely of the court's members to vote to strike down federal laws.