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My personal musings about anything that gets on my radar screen--heavily dominated by politics.

2005-10-03

THIS Is What We Mean By "Judicial Activism"

Justice Stephen Breyer was on This Week with George Stephanopoulis this morning, and, though I normally don't watch the show, this seemed like a pretty relevant week to have a Supreme Court Justice discussing his judicial philosophy in the context of his book "Active Liberty". And this was a rather illuminating interview (no transcript available--to my knowledge at this time).

I think the basic premise that Breyer operates under is that he--and he believes all judges--should operate under a system where they look back to the original intent of the framers of the Constitution, and look towards the consequences of their decisions, and try to make the two meet. He does, however, in a number of instances in the interview say "not all cases, but some" or similar caveats. He believes that looking at it in those terms removes a lot of subjectivity from the process.

Which, of course, begs the question: well, who decides which cases? You? Doesn't that automatically re-introduce subjectivity?

But more importantly, how can we exactly know the intent of the Framers, if not by reading the plain text of the document? And how can we know or foresee all the consequences of a decision? Surely nobody foresaw all the 527s that flowed out of the campaign finance law decision; if they had, they would have laughed at the folly of the law. And how about the ongoing creation of consequences flowing from Roe? It's hard to believe that 30 years ago the judges would have thought that privacy would suddnly come to cover all acts between consenting adults in their own homes, as it now does under Lawrence.

So, even though he dismisses his critics, one of whom Steph mentioned as bringing up "judicial mysticism," clearly his philosophy embraces a type of mysticism, in that he pretends to be able to see into the future.

In light of hearing this articulated philosophy, I am even more convinced that the President NEEDS to appoint a strong, originalist, conservative to the Bench.

NOTES: RedState is saying it will be Judge Karen Williams; ConfirmThem has it as either Judge Williams or Judge Michael Luttig. That probably means don't count on either of them getting the nod. Either way, keep your eyes and ears open tomorrow--I'm thinking this happens early in the day and touches off a massive media frenzy. This could get fun.
Posted by: Michael / 10/03/2005 02:19:00 AM

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