God Rest Ye, Merry Gentlemen - Jars of Clay - listen now

Tuesday, December 5, 2006

Justice Breyer Redux

Follow-up on my post about Justice Stephen Breyer. David Limbaugh's column "Justice Breyer's Dangerous Jurisprudence" should give us all pause about who sits on the highest court in the land:
I noted that Breyer admitted he frequently makes decisions about a law's constitutionality using standards other than merely interpreting the text of the Constitution or the Framers' intent.

Breyer said, "I tend to emphasize purpose and consequences. Others emphasize language, a more literal reading of the text, history, and tradition -- believing that those help you reach a more objective answer."

I documented how Breyer's judicial approach plays out in his decisions. For example, he defended supporting patently inconsistent rulings in two separate cases involving Ten Commandments displays in front of courthouses in Kentucky and Texas based on the likely consequences of the Court's rulings.

Because the Texas monument had been on display for many years without incident he voted that it was constitutional. But the display before the Kentucky courthouse was much newer and likely to cause religious conflict, so he voted that it was unconstitutional.

It doesn't take a rocket scientist with a law degree to recognize that Breyer usurps legislative authority in rendering judicial decisions on such a basis. It is the prerogative of legislators, not judges, to weigh a law's impact on the community.

Who can reasonably deny that Breyer's approach diminishes the predictability and reliability of the law and the rule of law? It makes Breyer, in effect, a policy maker -- an arrogant, unelected and unaccountable one, at that -- rather than a judge.
Breyer, and his loose method of interpreting the Constitution are dangerous. Who sits on the Supreme Court is perhaps the most important decision that a President and the Senate can make. With lifetime appointments, there just isn't room for error.

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