Can Pragmatism Defeat Radicalism in the Supreme Court?

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


Marianne C.
Marianne C7 years ago

I give Breyer points for having had the courage to talk about the court's conservative activism under Roberts. Roberts is still a reasonably young man -- he could hold onto his seat for another 30 years, making decisions designed to do little but support right wing political aspirations.

If nothing else, Breyer making pulbic his concerns about conservative activism on the court are an exoneration for progressives who've spoken out against it already, and have been pilloried on Fox News for their trouble.

Morgan G.
Morgan Getham7 years ago

Actually, Gary A., there are some cases where the Supreme Court does still retain original jurisdiction, although these cases are rare. I believe one of them is in case where one state brings suit against another state. Such suits are NOT blocked by the 11th Amendment, and precedent for original jurisdiction there, I believe, goes back to Chief Justice Jay.

The idea of an independent judiciary protected from the vagaries of popular vote was an essential part of the separation of powers inherent in our Constitution.

And to ".", that point #4 is the biggie. "Explaining" often establishes whole new rules of law (such as the concept that separate educational facilities are inherently unequal, that was brought out in "Brown") that go far beyond just siding with one or the other parties to the case.

Charles Temm JR
Charles Temm JR7 years ago

Kagan has a judicial philosophy rooted in pragmatism? How do we know that? Her handlers wouldn't even allow the Senate to examine her record or question her closely on issues. How about how she feels the government has no restrictions on what it can do?

Oh yeah pragmatism defeat radicalism. We saw that pragmatism when Sotomayor and 3 others refused to believe the 14th Amendment forced states to recognize the 2d Amendment.

Gary A.
Gary Addis7 years ago

Nameless right wing poster says: Here's what judges can do:
"1. they can find for the plaintiff
2. they can find for the defendant
3. they can recuse themselves from voting
4. they can write an opinion explaining why the voted the way they did"

Judges are supposed to be above personal considerations. But they are human. They bend to political considerations.

Please tell us that you do not agree with Roberts 5-4 court ruling that forevermore establishes that corporations are the same as human beings. Scalia claims to be a strict "originalist," yet he voted with Scalia on this.

Dear Ms . (i.e. "dot", or is it "period"), the Supreme Court does in fact legislate from the bench--legally. They may choose to disregard all precedents established by prior courts; they can, for example, declare that only 50 year old white males who own 1,000 acres are allowed to vote. The only legal impediment to their absolute power is that they must wait for an appeal from a lower court before making their "legislative" rulings from the bench.

Ever hear of the Dred Scott decision? In it, the Supreme Court declared that blacks could never become citizens of the US if they were descended from slaves imported into the US (all blacks were, dudette). That decision has never officially been overturned by subsequent courts; but later courts have essentially ignored its existence, and based their own decisions on the 14th amendment. Supreme Court justices can and do legislate from the ben

Marilyn L.
Marilyn L7 years ago

I wish we could replace Bryer with a liberal, sometimes he doesn't make any more sense than Alieto, Roberts, Scilia or Thomas.

Ronald Ellsworth
Ronald E7 years ago

Nameless says; Yeah, right. All judges are honest appointees that don't twist the plain language of law to promote their own radical views. Maybe not quite as oxymoronic as "politicians are honest law-abiding citizens" but a true misstatement of the record. Any record, any place. However, your first four points on what a judge can do are spot on.

Mike Masley
Michael Masley7 years ago

Voted on by the people implies direct democracy versus the republic under representational democracy we have now - are you ready for it?

Jean A.
Jean A7 years ago

I am against two items that have been voted; in the video of torture of animals that exists and should not and that a corporation can stand as a individual vote to contribute money. Both are off the wall and do not do any good for this country. I feel we need amendments to override both.

Sara T.
Sara T7 years ago

Here's to pragmatism in the Supreme Court!

William R.
William R7 years ago

To many things are done by politicans and the supreme court that I feel should be voted on by the people. Especially when it comes to peoples rights. We now must live by Roberts law and we don't have a choice or voice in what happens. Maybe there should be limits on how long a person can serve on the bench in the high courts of the country. There should be a way to have them resign if we are not satisfied with thier performance.