It is the eve of another term for the Roberts court, which means another opportunity to discuss issues of judicial fidelity and activism. With those two themes front in the minds of court watchers, Justice Stephen Breyer has been lending in thoughts as he discusses his new book “Making Our Democracy Work: A Judge’s View.” The New York Times took a look at these recent conversations and pulled from them an important and chilling lesson, and that is, the kind of activism we see on display from the Roberts court is the very kind that threatens the legitimacy of the establishment and, in turn, the legitimacy of our democracy.
Justice Breyer has never fit the conventional model of a judicial liberal, though aside from the retired Justice John Paul Stevens, Justice Breyer voted less often with the majority than any other current Justice. His approach to deciding cases is often grounded in a pragmatism that frustrates liberals and conservatives alike. It’s a model of analysis that he openly acknowledges and embraces, saying in his book that the court “must thoughtfully employ a set of traditional legal tools in service of a pragmatic approach to interpreting the law.”
It’s a candor not seen in many of the current Justices, particularly those more conservative ones like the Chief Justice–an understanding that the decisions they render have real consequences on the lives of real Americans.
It’s an approach that also gives a tremendous amount of deference to Congress, the one lawmaking body directly answerable to the people. By historical standards that kind of Congressional deference would make Justice Breyer a centrist, not a liberal. That should show you just how far to the right the court has lurched.
This term we will see another new Justice as Elena Kagan starts her tenure on the court. Yet it is unlikely that the overall makeup of the court will shift with Kagan’s presence. But, much like Justice Breyer, Elena Kagan has a judicial philosophy deeply rooted in pragmatism. According to Justice Breyer, that pragmatism is intended to “help maintain the public’s trust in the Court, the public’s confidence in the Constitution, and the public’s commitment to the rule of law.”
On the eve of another term, here’s hoping that pragmatism can rule over the blind radical ideology of the Chief Justice.
photo courtesy of takomabibolet via Flickr