Post by: Headless Thompson Gunner on December 03, 2006, 07:55:15 PM
By HOPE YEN, Associated Press Writer Sun Dec 3, 2:50 PM ET
WASHINGTON - Justice Stephen G. Breyer says the Supreme Court must promote the political rights of minorities and look beyond the Constitution's text when necessary to ensure that "no one gets too powerful."
Breyer, a Clinton appointee who has brokered many of the high court's 5-4 rulings, spoke in a televised interview that aired one day before justices hear a key case on race in schools. He said judges must consider the practical impact of a decision to ensure democratic participation.
"We're the boundary patrol," Breyer said, reiterating themes in his 2005 book that argue in favor of race preferences in university admissions because they would lead to diverse workplaces and leadership.
"It's a Constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful," said Breyer, who often votes with a four-member liberal bloc of justices.
On Monday, the court will hear arguments in a pair of cases involving integration plans in K-12 schools. The legal challenge, which is backed by the Bush administration, could be among the most significant school cases since the landmark Brown v. Board of Education ruling in 1954 banned racial segregation.
In 2003, the court upheld race-conscious admissions in higher education in a 5-4 opinion by Justice
Sandra Day O'Connor.
O'Connor, however, has since retired and been replaced by conservative Justice
Samuel Alito. Justice
Antonin Scalia, meanwhile, has denounced the use of race in school admissions as lacking any support in the Constitution.
In his interview, Breyer argued that in some cases it wouldn't make sense to strictly follow the Constitution because phrases such as "freedom of speech" are vague. Judges must look at the real-world context not focus solely on framers' intent, as Scalia has argued because society is constantly evolving, he said.
"Those words, 'the freedom of speech,' 'Congress shall pass no law abridging the freedom of speech' neither they, the founders, nor those words tell you how to apply it to the Internet," Breyer said.
Pointing to the example of campaign finance, Breyer also said the court was right in 2003 to uphold on a 5-4 vote the McCain-Feingold law that banned unlimited donations to political parties.
Acknowledging that critics had a point in saying the law violates free speech, Breyer said the limits were constitutional because it would make the electoral process more fair and democratic to the little guy who isn't tied to special interests.
"You don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money," he said.
Breyer, who has voted to uphold abortion rights, declined to comment on the court's role in deciding abortion. Justices this term are considering the constitutionality of so-called "partial-birth" abortion in a case some conservatives hope will be used to overturn the landmark 1973
Roe v. Wade ruling.
"The more the precedent has been around, the more people rely on it, the more secure it has to be," he said.
Breyer commented on "Fox News Sunday," in an interview taped last week.
Post by: The Rabbi on December 03, 2006, 10:43:23 PM
He appears to have no concept of politics and some very strange ideas remote from reality.
Post by: BakerMikeRomeo on December 03, 2006, 11:16:55 PM
I hope he gets hit by a dump truck.
~GnSx
Post by: Fly320s on December 04, 2006, 12:15:13 AM
"Free speech isn't fair if you're rich. Racial discrimination by public school systems is fine, as long as the system discriminates against whites."
And what is with all the talk of democracy? The US is not a democracy, dammit. Geez, I think that a SCOTUS judge would know the difference.
Post by: El Tejon on December 04, 2006, 02:28:46 AM
Be afraid, be very afraid.
Post by: griz on December 04, 2006, 02:54:15 AM
Quote
Breyer argued that in some cases it wouldn't make sense to strictly follow the Constitution
Since he sworn an oath to that same constitution I think he should be impeached. But then I guess that wouldn't be "fair"
Post by: Art Eatman on December 04, 2006, 05:27:08 AM
I'd hate to loan any money to this guy. He might well "evolve" into believing he needn't pay me back. Forget his original intent...
Art
Post by: Otherguy Overby on December 04, 2006, 05:39:22 AM
I saw some of this interview. The man is a true ideological zealot. He's so delusional he can go on national TV and spout all this socialist nonsense with an apparently clear conscience. It would be interesting to see him interviewed by someone actually knowledgeable of both The Constitution and the law.
He needs to be immediately impeached. That'll never happen, though. Near as I can figure, America is already lost
Post by: AmbulanceDriver on December 04, 2006, 12:07:06 PM
I read this, and just want to puke. That people could have such a huge concept of relativism, i.e. everything is relative, subjective, and can "evolve". Unfortunately, iron clad laws and concepts don't sit well with the relativists....
I'm gonna go puke now.
Post by: Perd Hapley on December 04, 2006, 12:35:35 PM
Post by: Cosmoline on December 04, 2006, 02:25:42 PM
Quote
Breyer argued that in some cases it wouldn't make sense to strictly follow the Constitution
Since he sworn an oath to that same constitution I think he should be impeached. But then I guess that wouldn't be "fair"
Read the First Amendment and tell me if you think it should be STRICTLY word-for-word enforced, without interpretation or qualification.
Breyer is perfectly correct. Under Brown and other rulings which these justices have inherited, race not only can but *must* be considered in an EP analysis. This has led to fifty years of problems, and continues to cause problems today.
You folks are reading the headline, and in classic FOX news fashion turning off your brains. Let's break it down:
Quote
the Supreme Court must promote the political rights of minorities and look beyond the Constitution's text when necessary to ensure that "no one gets too powerful." ..."We're the boundary patrol," Breyer said, ... "It's a Constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful," said Breyer, who often votes with a four-member liberal bloc of justices.
True. Completely true and really beyond serious debate. The devil is in the details, as always.
Quote
In his interview, Breyer argued that in some cases it wouldn't make sense to strictly follow the Constitution because phrases such as "freedom of speech" are vague. Judges must look at the real-world context not focus solely on framers' intent, as Scalia has argued because society is constantly evolving, he said. "Those words, 'the freedom of speech,' 'Congress shall pass no law abridging the freedom of speech' neither they, the founders, nor those words tell you how to apply it to the Internet," Breyer said.
Again, completely true. The First says nothing about the internet nor does it define "speech" to include emails or even phone calls. To strictly follow the 18th century meaning would render it meaningless today.
Quote
Pointing to the example of campaign finance, Breyer also said the court was right in 2003 to uphold on a 5-4 vote the McCain-Feingold law that banned unlimited donations to political parties. Acknowledging that critics had a point in saying the law violates free speech, Breyer said the limits were constitutional because it would make the electoral process more fair and democratic to the little guy who isn't tied to special interests. "You don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money," he said.
While I don't agree with that holding, I must admit that whatever the Court decided to do, it would in fact be making a choice about the balance of power in elections.
Post by: Cosmoline on December 04, 2006, 02:31:58 PM
I read this, and just want to puke. That people could have such a huge concept of relativism, i.e. everything is relative, subjective, and can "evolve". Unfortunately, iron clad laws and concepts don't sit well with the relativists....
What "iron clad laws" are beyond interpretation?
Post by: Cosmoline on December 04, 2006, 02:34:33 PM
Racism is okay as long as it's in favor of people who aren't white or asian!
I hope he gets hit by a dump truck.
I hope he gets hit by a dump truck.
Blame the Warren court, not him. Blame Eisenhower and FDR for appointing the jerks who stuck us with these problems.
Post by: The Rabbi on December 04, 2006, 04:47:17 PM
Quote
the Supreme Court must promote the political rights of minorities and look beyond the Constitution's text when necessary to ensure that "no one gets too powerful." ..."We're the boundary patrol," Breyer said, ... "It's a Constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful," said Breyer, who often votes with a four-member liberal bloc of justices.
True. Completely true and really beyond serious debate. The devil is in the details, as always.
False. Completely false. Beyond belief anyone could say this. Where in the USC does it say that the role od the Supreme Court is to protect the rights of minorities? This is judicial activism at its very worst, a naked aggression against the democratic will by elitist snobs.
Post by: Headless Thompson Gunner on December 04, 2006, 06:42:38 PM
Post by: Cosmoline on December 04, 2006, 06:45:17 PM
Quote
Where in the USC does it say that the role od the Supreme Court is to protect the rights of minorities?
14th Amendment:
Quote
nor deny to any person within its jurisdiction the equal protection of the laws.
So if one group is being denied equal protection of the laws on a systematic basis, the court may be required to step in and quash those laws.
Post by: Headless Thompson Gunner on December 04, 2006, 06:50:22 PM
Post by: Cosmoline on December 04, 2006, 07:00:34 PM
Post by: Headless Thompson Gunner on December 04, 2006, 07:17:27 PM
Of course, a colorblind government is never going to happen. It's annoyingly difficult to advance a race agenda if the government is colorblind.
Post by: Cosmoline on December 04, 2006, 08:25:26 PM
Post by: Headless Thompson Gunner on December 04, 2006, 08:55:58 PM
It may be true that Breyer is continuing in the same vein that previous justices and congresses started in decades past. It may be true that Breyer is consistent with court precedent. But if that precedent is in violation 14th (by virtue of denying equal protection to members of the caucasian race), then the court has an obligation to overturn precedent.
Breyer is wrong. That other people are also wrong oughtn't change matters any.
Post by: gunsmith on December 04, 2006, 11:14:41 PM
Quote
"freedom of speech" are vague
Oh yah, it allows gunnuts to dis him on the www, it must be stopped!
Post by: The Rabbi on December 05, 2006, 02:34:53 AM
Quote
Where in the USC does it say that the role od the Supreme Court is to protect the rights of minorities?
14th Amendment:
Quote
nor deny to any person within its jurisdiction the equal protection of the laws.
So if one group is being denied equal protection of the laws on a systematic basis, the court may be required to step in and quash those laws.
The 14th does not reference the Supreme Court at all. As for stepping in, judicial review itself is not a constitutionally granted power of the court. Breyer's comments seem to imply that minorities (ethnic minorities? religious minorities? political minorities? I dunno) simply by virtue of being the underdog deserve some kind of special protection from the political process. Thus the court would insure that gays have "a right to marry" each other. This regardless of the state ballot initiatives outlawing such unions. that is why I descry judicial activism that overturns the will of the people.
Post by: AmbulanceDriver on December 05, 2006, 03:25:35 AM
Quote
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The specifically relevant section reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This is the (in)famous equal protection clause. What do I read as equal protection? As a foreigner born in South America who is a naturalized citizen of this country, I read that it means that the state cannot say, "this law applies to this group of people, but not this other group". THAT is what equal protection means. I'm all for equality. I *loathe* "affirmative action". Personally, I think that we SHOULD throw out any type of system or law that has any race preference. Government, and the application of the law, MUST be colorblind.
Post by: griz on December 05, 2006, 04:19:49 AM
What I will say is that his statements and the context of that interview make it clear that he thinks the constitution is not relevant in todays modern world. What other conclusion can you reach when he says that the original intent is meaningless since society is evolving? Yes the job of the court is to interpret the law and apply it to todays complex world. But when he says he you have to ignore the constitution to get a fair result, I think that violates his oath and he should be impeached. Amend it, interpret it, but dont ignore the constitution while pretending you are following its clear meaning.
Post by: Matthew Carberry on December 05, 2006, 08:07:48 AM
In the Founder's day speech was either spoken or written. When you use a whisper, a bullhorn, a telephone or any other transmitter, wired or wireless, that transmits spoken language of any kind you are speaking. When you use a pen or typewriter or keyboard or any device, wired or wireless, that transmits written language of any kind you are writing.
I'll take my seat on the Supreme Court now.
Post by: Cosmoline on December 05, 2006, 10:29:51 AM
I think thats a misreading of the 14th.
If the 14th applies only to Congress, and Congress choses to ignore it, then what's the check against that abuse? What's to prevent Congress from ignoring all the BOR? The answer was provided very early in the Republic, in Marbury v. Madison. This has in turn been codified and accepted by the other branches. You cannot read the Constitution in a vacuum, or it becomes a useless parchment.
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The 14th does not reference the Supreme Court at all.
Neither does any part of the BOR. See Marbury.
Quote
As for stepping in, judicial review itself is not a constitutionally granted power of the court.
Not specifically, but it's been accepted since the first Judiciary codes and the creation of the Art. III court system. Marbury resolved this conflict. If you want to read the Constitution in a void, then the ONLY judicial office Congress need appoint is the Chief Justice of the SCT. All other judicial positions are creations of statute. If Congress did this, there would no longer be any meaningful review of any statute. But that would be a very fast road to tyranny. This is why it's important to read the Constitution in the context of its evolution over the life of the Republic.
Quote
Breyer's comments seem to imply that minorities (ethnic minorities? religious minorities? political minorities? I dunno) simply by virtue of being the underdog deserve some kind of special protection from the political process.
That's the system that's been created. I don't agree with it, but Breyer is correct in describing it. You can plug your ears and hum, but thus is the world.
Quote
Thus the court would insure that gays have "a right to marry" each other. This regardless of the state ballot initiatives outlawing such unions. that is why I descry judicial activism that overturns the will of the people.
Um, there has been no such opinion from the US Supreme Court. It sounds like you've jumped over to an attack on the Mass court system, which is a totally different issue.
Post by: Eleven Mike on December 05, 2006, 10:34:00 AM
Quote
Breyer's comments seem to imply that minorities (ethnic minorities? religious minorities? political minorities? I dunno) simply by virtue of being the underdog deserve some kind of special protection from the political process.
That's the system that's been created. I don't agree with it, but Breyer is correct in describing it. You can plug your ears and hum, but thus is the world.
Equal protection, good. Special protection (protection that others don't receive) is bad.
Post by: Cosmoline on December 05, 2006, 10:36:30 AM
Breyer is wrong. That other people are also wrong oughtn't change matters any.
As far as the way the Court and Congress have intepreted the 14th and applied it since the civil rights decisions of the 50's, I am inclined to agree. But the attack should not be on Breyer, who was simply trying to describe the law as it stands now. He's not issuing opinions on FOX, or at least he shouldn't be. Scalia goes on rants sometimes outside of the court, but it's not good practice for any judge.
I agree that Brown was a horrible opinion. It turned the federal courts into administrative agencies charged with trying to impose some absurd sociological scheme on southern school districts. But ending that legacy is going to be slow and painful, and will come bit by bit.
Post by: The Rabbi on December 05, 2006, 12:48:18 PM
I think thats a misreading of the 14th.
If the 14th applies only to Congress, and Congress choses to ignore it, then what's the check against that abuse? What's to prevent Congress from ignoring all the BOR? The answer was provided very early in the Republic, in Marbury v. Madison. This has in turn been codified and accepted by the other branches. You cannot read the Constitution in a vacuum, or it becomes a useless parchment.
Quote
The 14th does not reference the Supreme Court at all.
Neither does any part of the BOR. See Marbury.
Quote
As for stepping in, judicial review itself is not a constitutionally granted power of the court.
Not specifically, but it's been accepted since the first Judiciary codes and the creation of the Art. III court system. Marbury resolved this conflict. If you want to read the Constitution in a void, then the ONLY judicial office Congress need appoint is the Chief Justice of the SCT. All other judicial positions are creations of statute. If Congress did this, there would no longer be any meaningful review of any statute. But that would be a very fast road to tyranny. This is why it's important to read the Constitution in the context of its evolution over the life of the Republic.
Quote
Breyer's comments seem to imply that minorities (ethnic minorities? religious minorities? political minorities? I dunno) simply by virtue of being the underdog deserve some kind of special protection from the political process.
That's the system that's been created. I don't agree with it, but Breyer is correct in describing it. You can plug your ears and hum, but thus is the world.
Quote
Thus the court would insure that gays have "a right to marry" each other. This regardless of the state ballot initiatives outlawing such unions. that is why I descry judicial activism that overturns the will of the people.
Um, there has been no such opinion from the US Supreme Court. It sounds like you've jumped over to an attack on the Mass court system, which is a totally different issue.
I guess you agree with me then. I posited that nowhere does the USC appoint the Supreme Court as protector of minority rights. You have not shown anywhere where it does. As for Congress passing legislation contravening the 14th, the President has an obligation not to enforce it, under his oath. The USC is not the only part of government pledged to uphold the USC. You have not refuted that in any way.
When I write "the court would insure" I use a subjunctive to show it is a theoretical. Maybe that escaped you. But under Breyer's bizarre theory that is how he would vote presumably in such a case.
I agree (yet again) with the Headless One that just because a bunch of people think like Breyer does not mean he is correct. In fact he is dead wrong.
Post by: RadioFreeSeaLab on December 06, 2006, 07:23:43 AM
Policy trumps the Constitution.
Be afraid, be very afraid.
Already am.
Be afraid, be very afraid.
Post by: Khornet on December 09, 2006, 04:56:13 AM
I realize that's not the way the game is played nowadays, which is why there's always an almighty peeing contest with the Dems whenever a SCOTUS nomination comes up. They expect a conservative nominee will do as their nominees do, as Breyer et. al. do, and make policy. Same kind of projection anti-gunners practice, whereby they think a gun in hand makes everyone a killer.
Post by: gyp_c2 on December 09, 2006, 05:05:09 AM
Post by: Cosmoline on December 09, 2006, 03:11:25 PM
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Cosmo, the SCOTUS' job is to protect the Constitution and nothing else.
Where did you get that idea? The SCT is the highest Art. III court, and takes appeals on everything from military trials to the patent issues to the federal contract claims. As one of the three branches of government, one of the Court's main jobs is to ensure that the balance established in the Constitution between the branches does not come undone.
Post by: Hugh Damright on December 09, 2006, 05:00:00 PM
Post by: Matthew Carberry on December 09, 2006, 05:01:02 PM
Quote
...ensure that the balance established in the Constitution between the branches does not come undone.
is identical to saying Quote
to protect the Constitution and nothing else
.If the balance is "in the Constitution", then maintaining it, to the letter of the Constitution and nothing more IS "protecting the Constitution".
However, going outside of the Constitution as written to try and maintain anything IN the Constitution as written is "breaking the law to keep it" or "destroying the village to save it". It's a contradiction in terms.
Post by: Cosmoline on December 09, 2006, 05:16:45 PM
Quote
I do believe that the 14th "Amendment" empowers the US to integrate schools.
I don't either, but undoing what has already been done is nowhere near as simple as you guys think. The Court has gotten itself into a real mire.
Post by: Otherguy Overby on December 11, 2006, 06:20:44 PM
http://www.fed-soc.org/audio/2006Scalia-Breyer.htm
Or for the short attention span types an excerpt can be found here:
http://powerlineblog.com/archives/016169.php
Seems Breyer is a delusional socialist and needs to be impeached or hung.