Breyer calls for 'active' democracy

Supreme Court Justice Stephen Breyer discussed his judicial philosophy and the role of the Constitution Sunday afternoon during a public discussion with politics professor and constitutional law scholar Robert George.

Breyer spoke in an almost-filled McCosh 50, touching on topics such as the importance of political participation, the "tools" that justices utilize to make constitutional rulings and the Supreme Court nominee confirmation process.

"The primary goal [of the Constitution] is not to tell people what to do, but for people to decide for themselves what to do through a democratic process," Breyer said. "[The Supreme Court justices] are patrolling the boundaries of that area where people make decisions."

The title of the event — "Active Liberty: A Conversation" — echoed the title of Breyer's new book, "Active Liberty: Interpreting Our Democratic Constitution." Breyer spoke for about 45 minutes before engaging with George and taking questions from the audience.

Loud music from the concurrent "Battle of the Bands" event across Washington Road in Scudder Plaza boomed through the hall, but Breyer was unfazed by the distraction. "You even have music," he said while complimenting the University campus.

Breyer stressed that the Constitution "foresees people participating."

"I can tell you, as a judge — and I've worked [on the Supreme Court] for 12 years — this document won't work unless people take advantage of it and participate," he added.

Breyer said that his time on the Supreme Court has given him an understanding of the Constitution as a whole. "We have a steady diet of constitutional cases, not just the occasional one," he said. "That forces a member of our Court to begin to take a view of the document and consider what this document is about."

Breyer listed six "tools" that Supreme Court justices use when deciding a case: the language of the relevant portion of the Constitution, the history of the text, its traditional interpretation, precedent, the "basic human purpose" of the text and the consequences of the ruling.

"Some judges — and I tend to think Justice Scalia and others — tend to emphasize the first four," Breyer said. "The other view, which is probably mine, is that the last two things are very, very important."

Breyer countered George's suggestion that frequent consideration of the latter two could amount to subjective judgements, saying that he preferred to "find the main channel between being subjective and being wooden."

"Being wooden means looking at phrases in the Constitution as if they were setting up a matrix," Breyer explained. "No one wants to be subjective; no one wants to be wooden."

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"It's not the case that I'm sitting here filled with views, and I'm just sitting here waiting to apply them to a case," he added.

In response to a question from the audience, Breyer declined to share his views on the sometimes-contentious confirmation process.

"I'm not an appointing person, I'm an appointed person," Breyer said. "Asking me about the confirmation process is like asking for the recipe for Chicken a la King from the point of the view of the chicken," he added, eliciting laughter from the audience.

The discussion was cosponsored by the James Madison Program in American Ideals and Institutions, the Program in Law and Public Affairs and the University Center for Human Values.

At the conclusion of the question-and-answer period, Whig-Clio president Aaron Spolin '08 presented Breyer with the 2006 James Madison Award for Distinguished Public Service.