February 14, 2006

Breyer tackles judicial activism in Law School talk

As an associate justice of the United States Supreme Court, Stephen Breyer has never shied away from addressing the big issues.

The justice addressed the great legal debate over modern constitutional interpretation in his talk “Judicial Activism: Power without Responsibility?” in the 2006 Schwartz Lecture at the Law School last Tuesday afternoon.

“I picked the topic [of this lecture] to be as provocative as I can,” Breyer said.

He summarized the history of judicial activism and defended his own views on the debate before a packed house of 290 law school students, faculty, and alumni.

Breyer highlighted the contemporary debate about judicial activism as actually concerning judicial subjectivity, and how best to interpret the Constitution given the need for judges to make sensible choices with the impossibility of being completely objective.

Frequently accused of judicial activism, Breyer moved quickly to dispose of the question posed by the title of the speech. He argued that critics often misuse the term “judicial activism” when they disagree with judges’ decisions.

“Is judicial activism power without responsibility? Yep, sure is,” he said.

Breyer analyzed the development of the term and how it evolved into its current form, providing four classic definitions of judicial activism.

The shift in major legal issues over the last 40 years and the appointment process have combined to render these definitions inactive, according to Breyer. He made a particular point of addressing the Court’s over-willingness to strike down laws, displaying a chart that compared how many statutes each current justice had voted to strike down. Breyer had ruled the least number unconstitutional; his ideological nemesis Justice Antonin Scalia had struck down the most.

Breyer said the tension is inherent to jurisprudence. “It’s not as easy as it looks. No human can escape his background, training, or personal beliefs,” Breyer said. “How do you prevent a judge from substituting his background?”

He described the two different schools of thought on how to ensure objectivity in today’s Supreme Court. One of these schools emphasizes the purpose and consequences of a statute as primary interpretive tools, while the other stresses the language, history, and tradition of the law. Breyer identified himself as a member of the former school.

While he admitted that his “going into the facts” approach did not solve the subjectivity problem altogether, Breyer claimed it allowed for open debate and review using basic legal techniques, making it superior to the “textualist” approach.

He also pointed out the advantages of the transparency of purpose and consequence interpretation, arguing that any failure to be objective would be easily recognizable.

“If I’m kidding myself, it’s right there,” Breyer said.

The justice used several recent decisions as examples of how the two schools functioned, trying to justify his split votes on the constitutionality of displays of the 10 Commandments on public grounds last year.

He encouraged the audience not to read too much into his comments on those holdings, saying, “What a judge says after a case is decided is meaningless.”

Breyer taught at Harvard Law School, worked as chief counsel to the Senate Judiciary Committee, and served as a federal appeals judge before being nominated to the Supreme Court in 1994 by President Bill Clinton. He is the author of four books, including Active Liberty: Interpreting Our Democratic Constitution, released last year.

Those who were unable to get a ticket for Tuesday’s speech had another chance Wednesday, as the justice participated in a more interactive event in the Law School’s Weymouth Kirkland Courtroom. Breyer spoke for 30 minutes on the daily life of a Supreme Court justice and took extensive questions from the audience.

Podcasts of both events are available online at