SUPREME COURT WATCH--Justice Breyer's Dangerous Judicial Philosophy

As I reported to you on The Liberty Sphere prior to the November midterm elections, a critical component in the prospect of losing Congress to Democrats would be the Supreme Court. For Republicans to sit out the election, which they did, would mean the possibility of losing the Supreme Court to reckless extremists who exhibit an alarming disregard for 'original intent.'

Original intent is that philosophy of jurisprudence that places a premium on the intent of the Founding Fathers in including provisions in the U.S. Constitution. In other words, judges cannot simply make up laws based upon personal preferences or opinions, or even the 'will of the people.' In a Constitutional Representative form of government, the will of the people is held in check by certain guiding principles outlined by the Founders that protect individual rights.

The other option is 'open interpretation,' which downplays the role of original intent. This is the guiding philosophy of jurisprudence held by Justice Stephen Breyer, who is a Clinton appointee. Breyer has admitted he outright rejects original intent as a guiding philosophy, and this is precisely why he is a danger to the Republic.

The process of interpreting the Constitution is not as intricate a task as progressivists like Breyer wish people to think. We have the writings of the Founders which spell out in great detail their intent, such as 'The Federalist Papers.'

Without the original intent of the Founders as THE guiding principle, every single freedom and liberty we have come to enjoy as Americans is subject to the Court's nullification.

The following is David Limbaugh's excellent article on Justice Breyer and those like him, who form a most dangerous threat to the country.

Justice Breyer's dangerous jurisprudence
By David Limbaugh
Tuesday, December 5, 2006

Many conservatives reportedly chose not to vote in November to protest the Republican Party's abandonment of conservative principles. One potential consequence of that boycott could be a forfeiture of the chance to finally secure a majority of "originalist" justices on the Supreme Court.

Granted, it was going to be tough enough for President Bush to win confirmation for another conservative nominee to the court in the face of a militant minority should a vacancy occur, but now that the Democrats have control it will be virtually impossible.

This is something disgruntled conservatives should contemplate before sitting the next one out. It is also something Republicans should consider before abandoning conservative principles to the point of alienating their base.

Chris Wallace's "Fox News Sunday" interview of Justice Stephen Breyer is a sobering reminder of the impact of the elections on the judiciary. Wallace asked Breyer about his book, "Active Liberty," released a year ago in which Breyer supposedly defended his practice of rejecting "originalism" in constitutional interpretation.

In the book Breyer wrote, "Since law is connected to life, judges, in applying a test in light of its purpose, should look to consequences including contemporary conditions, social, industrial and political, of the community to be affected."

In my book, 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.

If the Ten Commandments cases don't rock your boat, consider the real life application of Breyer's judicial philosophy to free speech -- a liberty every red-blooded American purports to cherish.

Breyer admits that he voted to uphold the McCain-Feingold campaign finance reform bill, though he acknowledges that regulating campaign expenditures amounts to regulating speech "because no one can run for office and have his message heard without money. So the First Amendment is involved."

But looking at consequences again, Breyer concludes he doesn't want the rich donors' speech to "drown out everybody else's. So maybe we have to do something to make that playing field a little more level in terms of money."

In other words, Breyer consciously suppresses speech selectively to ensure that all speech is equally projected. Breyer is simply imposing his political views through constitutional interpretation, seeking -- as liberals do -- to guarantee equality of outcomes rather than opportunities.

If you're still not alarmed, just think how Breyer's reasoning could be applied in other cases. We all know that liberals -- longing for the days of the liberal media monopoly -- have been frustrated over their inability to compete in the marketplace of ideas via talk radio. Especially with the failure of "Air America" to mitigate conservative dominance and level the talk show playing field, liberals are salivating at the prospect of reinstituting the "Fairness Doctrine" to emasculate conservative talk through the coercive power of government in a way the free market stubbornly refuses to do.

Though I have long been aware of the liberals' dark conspiracy to resurrect the Fairness Doctrine to shut up their political opponents -- just read leftist websites if you don't believe me -- I didn't fear the scheme, believing it couldn't pass constitutional muster.

But after reading Breyer's spooky thought processes on constitutional jurisprudence, I realize I was way too sanguine. Conservatives must never underestimate how important the composition of the courts is to the preservation of the Constitution and our liberties.



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