Carol Platt Liebau: Why Judges Matter

Sunday, December 03, 2006

Why Judges Matter

Justice Stephen Breyer isn't a bad guy; quite the contrary. But as his interview on Fox News Sunday demonstrated, his judicial philosophy is very different from that of a conservative.

For one thing, in discussing campaign finance "reform," Breyer said:

You don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money.

That statement is profoundly problematic on a number of levels. First, it suggests that Justice Breyer approaches cases with an outcome-based agenda -- trying to assure some kind of "equality of speech" -- rather than simply with a commitment to interpreting the Constitution.

Second, it seems to suggest that the Court's members have been entrusted with something approaching the responsibility of Platonic guardians -- to do whatever (in their view) "make[s] that playing field a little more level in terms of money." Where, exactly, is that principle enshrined in the Constitution? And if there are delicate calibrations that must be made about how level a playing field must be, aren't those precisely the kind of decisions that the people's elected representatives should be making?

Third, in my view, the Bill of Rights in particular and the Constitution in general was primarily intended to set out principles to govern the relationship between the people and their government (so as to protect the people) -- not to produce a thoroughgoing "vision of America" that would govern every relationship between individual Americans themselves. But it would seem that Justice Breyer doesn't agree.

Breyer also asserts that the "primary objective" of the framers "was to create a democratic system so that people themselves could decide in their own community what kind of rules that wanted." Ironic that he -- part of bloc that's less likely to defer to legislative decisionmaking -- would hold that view, isn't it?


Blogger Mike Davidson said...

Your choice of the term guardianship' is apt. It is very sobering to realize that there is no categorical difference between the role that Judge Breyer believes he should play and the Ayatollahs in Iran. I have long thought that Breyer is by far the most dangerous member of the court. He cloaks his outcome-driven, collectivism-oriented approach in such a nice patina of charm and apparent intellectual sobriety that it hides the frighteningly tyrannical political philosophy on which it rests.

8:58 AM  
Blogger The Flomblog said...

"maybe we have to do something to make that playing field a little more level in terms of money."

Does that scare anybody else? Didn't Marx say - from each accoring to his ability to each according to his need"?

Level the playing field is now a code-word for re-distribution of wealth?

So without incentive -- what happens top our society? And that Yutz is on the Supreme Court?

12:19 PM  

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