Cass Sunstein has a review of Supreme Court justice Stephen Breyer’s new book up on TNR. While I do pay the sort of attention to their decisions that I feel all citizens should, I’m not a particularly avid watcher of the court and I have to admit that Breyer was one of the justices I knew least about. Maybe I should work to correct that, because it looks like he has a lot of interesting things to say. The first thing that struck me about Sunstein’s review is that Breyer is, by one reasonable-seeming measure, the least “activist” justice, while the conservatives tend to be the opposite.

In his own judicial work, Breyer might indeed be seen as the most consistently democratic member of the Rehnquist Court: among its nine members,
he has shown the highest percentage of votes to uphold acts of Congress and to defer to the decisions of the executive branch.


Some of the most noteworthy decisions of the Rehnquist Court have attempted to limit the power of Congress. Here Rehnquist himself was the leader, and the Court has, since the 1990s, adopted positions that he began to press in the 1970s.

So much for the conservative whining about liberal activist judges, I guess. Now, on to the really good stuff.

The main thrust of Breyer’s book seems to be a defense of an alternative approach to Constitutional “textualism” or “originalism” as famously forced upon law students by Scalia. In fact, the very name of the book (Active Liberty) identifies a key component of such an approach. Here’s how Sunstein explains one part of the conflict.

Breyer is fully aware that many people, including Scalia and Thomas, are drawn to “textualism” and its close cousin “originalism”–approaches that argue in favor of close attention to the meaning of legal terms at the precise time they were enacted. He knows that such people are likely to think that his own approach is an invitation for open-ended judicial lawmaking, in a way that compromises his own democratic aspirations. But he has several responses to such criticisms.

For a start, originalist judges claim to follow history, but they cannot easily demonstrate that history favors their preferred method. The Constitution does not say that it should be interpreted to mean what it meant when it was ratified. The document itself enshrines no particular theory of interpretation. And if originalism cannot be defended by reference to the intentions and the understandings of the Framers, Breyer asks, in what way can it be defended, “other than in an appeal to consequences?”

An interesting question, indeed, and one that is strangely echoed later in the article when Sunstein turns a bit on Breyer and tries to mount a rather feeble defense of originalism (in which, as near as I can tell, he’s not much of a believer either).

Or suppose that we accept, as we should, Breyer’s claims about the centrality of active liberty to the constitutional design. Is originalism, therefore, off the table? Not at all. We might believe, with some constitutional theorists (including Alexander Hamilton), that constitutional provisions, as products of an engaged citizenry, reflect the will of We the People, as ordinary legislation may not. If so, an emphasis on the original understanding can be taken to serve active liberty at the same time that it promotes negative liberty.

The problem with this reasoning is that the “engaged citizenry” of which the constitution is a direct product are all dead. I don’t mean to be flippant, but shouldn’t we try to serve the present engaged citizenry? If there is a conflict between serving the living and serving the dead, don’t the living take precedence? I’m no constitutional scholar, but I’m pretty sure that the people who wrote and ratified the constitution meant it to serve the living. This in turn brings us to a point about one of Sunstein’s earlier weak criticisms.

I believe that Breyer’s approach is theoretically appealing as well as historically significant; but he offers a sketch, not a sustained argument, and he leaves significant gaps. Above all, he says too little about the difficulties that judges face in assessing consequences and in describing purposes. Recall that, in discussing the interpretation of statutes, Breyer argues for close attention to purposes, understood as the objectives of a “reasonable legislator.” It should be obvious that different judges will often disagree about what a reasonable legislator would do.

As a programmer, maybe I have a different perspective on this than most people would. Code represents a particular attempt to satisfy some requirement that preceded the programmer’s involvement. If there’s a bug in that code, I fix it. I don’t agonize over the programmer’s original intent, or treat the code as sacrosanct. Similarly, legislation is an attempt to encode popular will. The legislature’s intent doesn’t matter; the people’s intent does. It is inevitable that legislation will sometimes fail to capture the popular will. Due to the vagaries of language and simple oversight and legislative deal-making, a law might be incomplete or self-contradictory or just wrong…just like code can be. Somebody has to fix or work around it, and I think the judiciary is a perfectly reasonable place to do that. Just as a computer field-service organization will often adopt and document “best practices” based on the strengths and weaknesses of a product, the supreme court will do so based on the strengths and weaknesses of a body of law. The interpretation of what a reasonable programmer or legislator would do very rarely requires much consideration, or offers much leeway for “activism” of the sort people complain about. In the rare contrary cases, it’s a clear indicator that someone screwed up by failing to specify what was meant. If that failure lies with the authors of the constitution, and was not corrected by legislators, who else than judges should do the necessary patching?