Bench Memos

Breyer’s Illegitimacy

Justice Breyer has been getting all sorts of media attention for his new book Making Our Democracy Work: A Judge’s View, which tries to make the case for Breyer’s ever-malleable so-called “pragmatic approach” to interpreting the law.  The usual suspects have been using the occasion of the book to take their usual whacks at the Roberts Court.

For example, in an op-ed in today’s New York Times melodramatically titled “A Judge’s Warning About the Legitimacy of the Supreme Court,” Lincoln Caplan warns that “in recent years court watchers have cited a range of reasons for concern” about the Supreme Court’s legitimacy.  Observing that there is “no accepted index of legitimacy for the Court,” Caplan highlights two hilarious reasons to think that the Court’s legitimacy might be in decline.  First: “Around the world, its influence has declined, measured by the number of times top courts in other countries cite it.” Yes, I’m sure that American citizens will be very troubled to learn that.  Second:  “In academic circles, conservatives and liberals alike have called for term limits for justices, because life tenure and long service could lead them to do the job less well than they should.”

Paraphrasing Breyer, Caplan then asserts that “such radical rulings” as the Citizens United campaign-finance decision jeopardize the Court’s legitimacy.  But Caplan can make that assertion only by obscuring what was at stake in Citizens United:  by misrepresenting the 1990 ruling in Austin v. Michigan Chamber of Commerce as part of “a traditional legal view that stretched back as far as 1907” rather than as the legal outlier that even then-Solicitor General Elena Kagan recognized it to be; by failing to note that the Citizens United holding applies equally to unions and corporations and that the Court adopted the very holding that the ACLU urged; and by neglecting the radical consequences of the First Amendment theory that the Obama administration advocated.  I’ll again observe that virtually no one seems to defend the actual position taken by Justice Breyer and the other dissenters in Citizens United

What ought to shake the public’s confidence in the Court are two elementary matters that escape Caplan’s attention:  (1) culture-transforming/degrading rulings like Roe v. Wade—and the possible invention in coming years of a constitutional right to same-sex marriage—that are invented out of whole cloth; and (2) justices like Breyer who look selectively to foreign laws to redefine the meaning of constitutional provisions to entrench the agenda of the Left and whose utterly indeterminate approach to constitutional interpretation threatens both to invent phony new rights and to erode cherished and genuine old ones. 

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