Justice Stephen Breyer of the Supreme Court spoke this afternoon before a standing-room-only crowd at the Annual Meeting of the ALI. At Justice Breyer’s suggestion, rather than making an address, he responded to questions from several ALI members.
ALI Director Lance Liebman asked how the Court’s role as the final arbiter of so many crucial questions is compatible with democratic values. Justice Breyer responded that Alexander Hamilton’s original answer from The Federalist had never been improved upon. Unless somebody enforces the Constitution, it becomes a dead letter. The power can’t be given to the President, since that would be too much power. As a politically elected body, Congress can’t be expected to pass judgment on their own statutes. Someone has to enforce the Constitution "when it’s unpopular to do it," Justice Breyer said; anyone can do it when it’s popular.
Justice Breyer was asked whether statutory and constitutional originalism, with its emphasis on text, history and precedent, was the more democratically legitimate approach for the Court to take to its work. Justice Breyer disagreed with the view that there are no controls inherent in looking to purpose and consequence when it’s appropriate which will prevent a judge from relying upon his or her subjective views. In fact, if a judge is prepared to be honest, there are just as many checks and controls in an approach that incorporates purpose and consequence as in strict originalism. The basic values and purposes stay the same, Justice Breyer said; it is the details as to how those values and purposes apply in a changing world that differ.