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There’s a Reason Why They Call it the Roberts Court

By Mark I Posted in The Courts — Comments (26) / Email this page » / Leave a comment »

con•temp•tu•ous

[kuhn-TEMP-choo-uhs] adj.

Last week, Senate Judiciary Committee Ranking Member, Sen. Arlen Specter, made news by announcing his plans to review the confirmation hearing testimony of Chief Justice John Roberts and Justice Samuel Alito. Specter said the review was necessary to determine whether the Justices’ rulings in recent controversial cases were consistent with promises the then nominees made to win confirmation. While the prospect of Sen. Specter ruling on the validity of any jurist’s opinions is disturbing, even more disturbing is how the idea came to him. It was suggested by a sitting Supreme Court Justice, Steven Breyer.

At issue is the legal doctrine of stare decisis. Stare decisis says that judges should follow the precedent of previous courts so as to promote stability in the law. Roberts and Alito both pledged fealty to stare decisis as an important legal principle, but neither one expressly pledged to be bound by it, nor should they have. Apparently, Breyer has been coming in on the short side of one too many 5-4 decisions, and is wishing for the good old days when Sandra Day O’Connor could be counted on to move his opinions into the majority. That he should make a point of tattling on his colleagues to Sen. Specter shows the shocking contempt he has not only for them, but for the Supreme Court itself.

Read on…

Breyer is a standard issue liberal judicial activist. He sees adjudicating cases as a means to bring about his desired results as much if not more than an opportunity to uphold the law. He regards a decision as being vindicated if it makes him feel better. He would have no qualms with going against stare decisis if doing so would allow him and his cohort of like minded justices to advance some liberal policy preference.

But more than that, the irony of this particular justice taking issue with the opinions of his peers is just too rich. That is because Justice Breyer is perhaps most famous for his recent endorsement of looking to foreign law to help decide American cases. The idea that a justice who admits relying in whole or in part on the opinions of foreigners could be critical of a colleague for ignoring precedent is so arrogant and contemptuous as to defy description.

At a discussion sponsored by the U.S. Association of Constitutional Law in January 2005, Justice Breyer had the following to say on how law is formulated and on using foreign law as a source in American cases.

I usually think, and I think Justice Scalia does too, that in the United States…law is not really handed down from on high, even from the Supreme Court. Rather, it emerges. And we're part of it, the clerks are part of it, but only part. And what really survives every time is the result, I tend to think of a conversation. I think that's the right word, conversation among judges, among professors, among law students, among members of the bar, because you need people to put things together, you need people to decide cases, you need people to tell you how it works out in practice. And out of this giant, messy, unbelievably messy conversation emerges law. And that means you have to have the conversation. And then I think we participate it, even at a general level, not just when we're deciding cases. […]

[F]irst, of course, foreign law doesn't bind us, constitutional law. Of course not. But these are human beings,…called judges, who have problems that often, more and more, are similar to our own. They're dealing with certain texts, texts that more and more protect basic human rights. Their societies more and more have become democratic, and they're faced not with things that should be obvious--should we stop torture or whatever--they're faced with some of the really difficult ones where there's a lot to be said on both sides. Hard to decide.

If here I have a human being called a judge in a different country dealing with a similar problem, why don't I read what he says if it's similar enough? Maybe I'll learn something.

Notice Justice Breyer’s focus on the result, “What really survives every time is the result…” This is the window into his way of thinking about his responsibilities as a judge. Justice Breyer believes his role to be constructing lasting results that satisfy the liberal worldview. In that view some things are obvious, like ending torture, never mind the arguments for or against, just focus on the result.

What part do the people, or for that matter precedents, play in the formulation of law? Not much, according to Justice Breyer. The law is formulated by, “conversation[s] among judges, among professors, among law students, among members of the bar…,” certainly not by any dirty process involving the people and their representatives. Justice Breyer must have gotten this impression of how law is derived by reading foreign sources, because he surely didn’t find that in the Constitution. In the United States, law comes from the people, not from the elite, not from government, not especially from judges. Justice Breyer would do well to reacquaint himself with that minor annoyance.

Luckily for the attendees at that discussion, Justice Antonin Scalia was also on hand and primed to administer a small dose of humility and give a gentle lecture to his colleague about the proper role of judges and foreign law in American courts.

I don't know what it means to express confidence that judges will do what they ought to do, after having read the foreign law. My problem is I don't know what they ought to do. What is it that they ought to do? You have to ask yourselves, Why is it that foreign law would be relevant to what an American judge does when he interprets -- interprets, not writes -- I mean, the Founders used a lot of foreign law. If you read the Federalist Papers, it's full of discussions of the Swiss system, German system. It's full of that. It is very useful in devising a constitution. But why is it useful in interpreting one? […]

Still in all what you're looking for as a judge using that theory is what? The standards of decency of American society -- not the standards of decency of the world, not the standards of decency of other countries that don't have our background, that don't have our culture, that don't have our moral views. Of what conceivable value as authoritative would foreign law be? Now, you can cite foreign law to show, as Justice Breyer gave an example, to show that if the Court adopts this particular view, the sky will not fall. “You know, if we got much more latitudinarian about our approach to the Establishment Clause, things won't be so bad. France, which is probably the strictest in Europe, still has a good deal of religious freedom and no establishment.” Okay? It's useful for that.

But if you're looking for the evolving standards of decency of American society, why would you look to France? The only way in which it makes sense is if you have a third approach to the interpretation of the Constitution, and that is I am not looking for the evolving standards of decency of American society; I'm looking for what is the best answer in my mind as an intelligent judge. And for that purpose I look to other intelligent people, and I talk sometimes about conversations with judges and lawyers and law students. Do you think you're representative of American society? Do you not realize you are a small cream at the top, and that your views on innumerable things are not the views of America at large? And doesn't it seem somewhat arrogant for you to say, I can make up what the moral values of America should be on all sorts of issues, such as penology, the death penalty, abortion, whatever? That's the only context in which the use of foreign law makes sense, because what we're doing is not looking to history, as I do, not looking to the mores of contemporary American society, which we did for a while…I suggest that change is based not upon the theory that you're looking for what the moral perceptions of America is, but that you're looking for moral perceptions of the justices. And I frankly don't want to undertake that responsibility. I don't want to do it with foreign law, and I don't want to do it without foreign law.

That’s a justice who respects his position and the court on which he sits, Justice Breyer. Listen to him.

Of course, Justice Breyer thinks he’s doing the Supreme Court a favor by flying off to the Aspen Ideas Festival and having one of his precious conversations about what the law ought to be with Sen. Specter. In reality, however, all he is doing is contributing to the growing skepticism with which the public views the actions of the Court. Justice Breyer is seeking to get his colleagues in political trouble for legal decisions they have rendered, and that evidences a troubling regard for political philosophy on his part. His concern for the result of a decision has overtaken his desire to see the law applied as it is, not as he thinks it ought to be.

Like every other Supreme Court Justice, Justice Breyer has the right to make his views on political questions known. But just like every other citizen of this country, his opportunity to do so comes once every two years in the Federal system, and is between no one but him and the little lever in his voting booth. That is where a justice’s political philosophy should be confined. It has no place on the bench, or in an opinion of the Court, or in a conversation with a Senator about the opinions of the Court.

In his insistence on using foreign law to form his opinions and in his willingness to participate in the political games of those seeking to advance an agenda, Justice Breyer shows nothing but contempt for the law, his colleagues, his role as a justice, and the Supreme Court itself. Perhaps when the justice decides to pick up the Constitution sometime, he should read these clauses first, and ponder hard whether his recent actions fit their meaning:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour […]The House of Representatives [read the people] shall…have the sole power of impeachment.