We are told that judicial engagement will not lead to dueling natural rights jurists usurping republican government. But what rights do they see?
I thought I would mention Gerald Russello’s review of Justice Stephen Breyer’s book on the Supreme Court and constitutional law, entitled “Making Our Democracy Work: A Judges View.” Breyer published an earlier book on the same subject some years ago that I reviewed here.
Breyer is an opponent of originalism who defends an activist Supreme Court but claims to be in favor of judicial restraint. It is maddening. In the earlier book, Breyer did not say a word about Roe v. Wade or abortion, even though he authored one of the Court’s most aggressive decisions in this area and one might think it was inconsistent with his general approach. In his most recent book, Russello notes that Breyer again “is silent on how a judge would rule” on that issue. Here is an excerpt from my prior review:
Breyer’s focus on general purposes allows judges to select the values that the Constitution furthers and his focus on modern real world consequences allows them to assert how laws will in fact operate. With control over the facts and values, Breyer’s “active” judge has virtually boundless authority over the Constitution’s content. Thus, it is no surprise that Breyer’s tour through the Constitution — from affirmative action, to campaign finance, to federalism, to separation of church and state — only reaches destinations that Breyer appears to endorse politically.
Interestingly, Breyer’s tour fails to make one important stop — his majority opinion for the Court in Stenberg v. Carhart, which struck down a ban on partial birth abortions. One might argue that Stenberg is inconsistent with Breyer’s active liberty — purposivist approach, because the opinion protects what seems to be a personal decision unrelated to political participation.
Breyer’s first book was enough for me; I am not going to spend the time reading his second one. But Russello’s review is well worth reading.