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Bench Memos

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Stephen Breyer, A First-Class Grind



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Like Jon Adler, I missed watching Justice Stephen Breyer being interviewed by Chris Wallace yesterday on Fox News Sunday.  But reading the transcript, I can’t say there was much to miss.  Try as he might, Chris Wallace could not elicit much from Justice Breyer except vacuous pronunciamentoes about how very “complex” it is to interpret the Constitution, and patronizingly schoolmarmish lessons that the justice presumed to teach his interviewer.  I would use this interview with my students, except that I’d run the risk of decreasing their knowledge of constitutional interpretation thereby.  This is especially the case when Breyer endorses the 1992 Casey opinion of O’Connor, Kennedy, and Souter as a fine place to go for understanding the role of precedents in constitutional jurisprudence.  That’s a source that is bound to make any students dumber on that subject.

Maybe he is warmer and more engaging on camera, but on paper his answers make Breyer come across as a bore, a grind, and rather dodgy.  He even seems not to notice when he effectively contradicts himself.  Early in the interview, Wallace asks him, “when a judge takes it upon himself to interpret what purpose the founders, the framers meant when they put something in the Constitution, doesn’t that allow them, a judge, to do almost anything?”  Breyer begins his answer by saying, “No, I think it’s the contrary,” but by the end of his answer you have no reason to believe that he doesn’t really think the answer is “yes,” and that he likes that state of affairs very much.  When Wallace follows up by noting Breyer’s vote to uphold the McCain-Feingold law on campaign finance, the justice rambles his way to saying that “there are First Amendment interests on both sides of this equation,” essentially leaving himself free, just as Wallace intimated, “to do almost anything.”  That Breyer apparently cannot see this about his own explanations suggests that he is either a dissembler or deluding himself.

For the most part Justice Breyer offers non-answers to Wallace’s questions, either explicitly, as in the case of abortion—which he treats as though Wallace had dropped hot coals in his hands—or implicitly, as in the case of presidential war powers, where Breyer simultaneously manages to say almost nothing and to insult the president (and his viewers’ intelligence) by mentioning the internment of Japanese-Americans during World War II.

Over and over again, Breyer promises that the real answers to the questions he’s not answering are in his book Active Liberty, which he evidently came on the show to flack.  But I can’t imagine why anyone without a professional obligation to read the book would be drawn to do so after this interview.


Tags: Franck


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