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Category: Courts
Posted by: an okie gardener
The Federalist Society now has the video (or audio only if you choose) available of the debate between Supreme Court Justices Stephen Breyer and Antonin Scalia. Link here.
Category: Courts
Posted by: A Waco Farmer
Apropos to our recent discussion of Justice Stephen Breyer and his judicial philosophy, I am pleased to offer a sneak preview of this review, which will appear in the upcoming Winter issue of Modern Age.

Judicial Immodesty
by Cory L. Andrews

Active Liberty: Interpreting our Democratic Constitution, by Stephen Breyer. Alfred A. Knopf, 161 pages, $21.00.

Resulting from Harvard Law School’s distinguished Tanner Lectures on Human Values, Justice Stephen Breyer’s Active Liberty: Interpreting our Democratic Constitution is a remarkably unprincipled book. In its pages, Breyer proposes the substitution of judicial for legislative initiative as the primum mobile of national government, advances the primacy of a formless but catchy abstraction (the giddy but elastic nostrum “active liberty”) over the particulars of constitution and statute, and promotes a presumably democratic ideal (his own ethereal one, of course) over the rigors of public deliberation and consensus. In Breyer’s eager hands, the Constitution is transformed from a foundational document of enduring fixed principles into the breezy platitude that “democracy is good,” thereby granting judges a roving commission to do “democratic” things as they see fit. (Never mind that the architects of the Constitution actually sought to mute popular democracy rather than accentuate it.)

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Category: Courts
Posted by: A Waco Farmer
Earlier this week, Chris Wallace interviewed Justice Stephen Breyer. The exchange aired this morning on Fox News Sunday (full transcript here, scroll down for Justice Breyer).

When queried about his 2003 vote to uphold the McCain-Feingold campaign finance reform law, Justice Breyer responded:

"I think what I said was, when you get a case like that, you start to look to slogans to decide the case. It won't work.

"The First Amendment itself, "the freedom of speech," doesn't tell you the answer. Nor does a slogan.

"If you want to use the slogan, "Money is at stake, not speech," that seems to work. That means they can regulate anything. But if you think about it for two minutes, you realize that money is very important to speech, because no one can run for office and have his message heard without money. So the First Amendment is involved.

"Then if you think the opposite, "Well, wait a minute, these campaign finance limits, what they're doing is they are telling the person who wants to give $20 million that he can't finance all the speech he wants. Doesn't that violate the First Amendment?" I'd say that's a slogan. Why? Because think about that First Amendment. It was done, enacted, passed, to help our country of now 300 million citizens run fair and free elections.

"The very point of speech in an election is to get a message across. And that may mean, in part, that you don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money. If you accept that at all, you've suddenly bought in to the proposition that there are First Amendment interests on both sides of this equation [empahsis added].

"And once you're there, you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely."

"I used that word, "purpose," to help me in a case where the language isn't clear, where the history isn't clear, where the tradition isn't clear, where the precedents aren't clear, that we have to decide how in that realm of ambiguity to apply the value that's permanent and always there, free speech, to a modern, difficult situation."