Patt Morrison for October 19, 2011

Justice Breyer on 'activist judges' and our 'living constitution'

Supreme Court Justice Stephen Breyer has a new book about how democracy and the court work, and what happens when they don’t.

Breyer told Patt Morrison that in “Making our Democracy Work: A Judge’s View,” he tries to answer one question: “Why would the ordinary American support an institution that’s undemocratic, that can set aside the laws of congress passed by elected representatives and do it when it’s unpopular to do that?”

The novel traces unpopular decisions made by the Supreme Court, such as Bush v. Gore, where the Supreme Court resolved the 2000 presidential election in favor of Bush after controversial ballot recounting was questioned. Justice Breyer said he believed the decision was incorrect, but he highlighted the importance of following the judicial orders.

“Turn on the television set and look and see what happens in countries that resolve their differences with guns and sticks and stones, instead of in court rooms and election places,” he said. “It’s that history that has gradually taught Americans. It’s a habit.”

He said courts must ignore the pressure to sway toward what the majority wants, and leave politics to the other branches of government. He cited the 1857 Dred Scott v. Sanford case, which determined that people of African descent with a history of slavery were neither protected by the Constitution nor U.S. citizens.

“Dred Scott is famous because it’s the worst decision ever made. The only justification that I’ve ever seen is that they thought, namely Chief Justice Taney and the others, that they would by doing so prevent a civil war, when in fact, in reality, they helped cause the Civil War. It just shows what bad politicians judges are,” he said.

Perhaps the most contentious decision justices now face is how the Constitution should be interpreted. Justice Breyer and fellow Justice Antonin Scalia have long disagreed on the issue. Justice Scalia has been a strict interpreter, famously saying, “The Constitution that I interpret and apply is not living, but dead.” Justice Breyer, on the other hand, argues that the founding fathers intended the Constitution to be living; he said that the Constitution’s values don’t change, but they “must be applied to a world that changes every five minutes.”

He went on to tell Patt that “George Washington did not know about the Internet. And of course, even though he didn’t know about it, he did know about free speech. And the values of free speech have to apply to today’s world that includes an Internet.”

WEIGH IN:

What do you think are some of the most controversial decisions made by the Supreme Court? Should the Constitution be interpreted as living or dead?

Guest:

Justice Stephen Breyer, associate justice of the Supreme Court of the United States, appointed in 1994 by president Bill Clinton; former law professor and lecturer at Harvard Law School and author of "Making Our Democracy Work, A Judge's View"


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