I was curious what has been written about Justice Stephen Breyer’s 2005 book, Active Liberty: Interpreting our Democratic Constitution, which I had mentioned in a previous post about challenges to health care reform. Anyway, I happened upon an article by Linda Greenhouse, the former Supreme Court correspondent for the New York Times.
Supreme Court Justice Stephen Breyer at the Aspen Ideas Festival, July 1, 2009. Copyright 2009 Daniel Bayer/kodachromeproject.com for the Aspen Institute. Shared under Creative Commons license.
Called The Breyer Project, 4 Charleston L. Rev. 37 (2009), Greenhouse discusses Breyer’s attempt to figure out his judicial philosophy on a court that often doesn’t value what had brought him success in his career (i.e., trusting in facts and experts because of his interest in administrative law). The article also contains, on pg. 43 of the volume, this description of his record in striking down federal statutes, which I found quite interesting:
He has also retained, from his earlier career, a deep respect for Congress, as demonstrated by his record as the Justice least likely to vote to overturn a federal statute. Between 1994 and 2005, the Court invalidated sixty-four federal statutory provisions. Justice Breyer voted to invalidate the fewest, 28% of the challenged provisions (the next lowest justice was Justice Ginsburg, with 39%, and the highest was Justice Thomas, at 66%). He believes in the legislative process, in all its messiness and imprecision.
That’s quite a range. However, Greenhouse also notes, at footnote 30:
Justice Breyer was, however, much more likely to vote with majorities declaring state and local laws unconstitutional. He and Justice Souter voted with the majority to overturn state and local laws in 81.08% of the cases, the second-highest voting rate, placing them just behind Justice Kennedy’s 89.19%. Lee Epstein & Thomas G. Walker, Constitutional Law for a Changing America (7th ed. forthcoming 2009).
This is certainly a more nuanced view of “judicial activism” than you’ll ever see in the press…
