Justice Breyer Outfoxes Conservative Bloggers

Associate Justice Stephen Breyer appeared on Fox News Sunday this past weekend to discuss his book, Active Liberty, and to banter with host Chris Wallace about judicial philosophy, the role of the courts, and the importance of precedent. Here are some snippets:

On judicial philosophy:

• “If the text is clear, you follow the text. If the text isn’t clear, you have to work out what it means. And that requires context.”
• “Since the law is connected to life, judges, in applying a text in light of its purpose, should look to consequences including contemporary conditions, social, industrial, and political, of the community to be affected.”

On the role of the courts:

• “[W]e don’t need activist judges; we do need activist citizens.”
• “Their [the Framers’] primary objective was not to have judges decide how people should live. Their primary objective was to create a democratic system so that people themselves could decide in their own community what kind of rules they wanted.”
• “[W]e’re the boundary patrol. There are limits. It’s a Constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful.”

On precedent:

• “[Y]ou’re quite right in saying no precedent is 100 percent secure, but the more precedent has been around and the more people rely on it, the more secure it has to be.”
  

Unsurprisingly, folks at National Review Online wasted no time in lambasting Justice Breyer's comments -- describing them as "vacuous pronunciamentoes about how very 'complex' it is to interpret the Constitution, and patronizingly schoolmarmish lessons" -- because the Justice dodged questions on specific cases, instead confining his comments to abstract principles and ideals. Duh. Chris Wallace asked Justice Breyer about abortion and presidential powers. Accusing Justice Breyer of "vacuous pronunciamentoes" on these kinds of issues -- which are either before the court right now or will be in the very near future -- is just a highfalutin way of stating the obvious: sitting judges are supposed to avoid commenting on cases likely to come before them. So although Justice Breyer's agile avoidance of taking a position on any specific issue likely to come before the Court must have frustrated conservative bloggers eager for fodder to rile up the base, he's just playing by the rules.