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MELISSA BLOCK, host:

The president has said he wants a nominee in the mold of Justices Scalia and Thomas, a justice who, in the president's words, `will interpret the law, not make it.'

MICHELE NORRIS, host:

Justice Stephen Breyer is often at odds with Scalia and Thomas, and in a new book, he outlines his judicial philosophy. And as NPR's Nina Totenberg found out during an exclusive interview, Breyer argues that his is a more democratic philosophy.

NINA TOTENBERG reporting:

The book is called "Active Liberty: Interpreting Our Democratic Constitution."

Justice STEPHEN BREYER (Author, "Active Liberty"): And I say `active liberty' because I want to stress that that democracy works if and only if the average citizen participates.

TOTENBERG: What's more, says Justice Breyer, `active liberty' cannot be understood in a vacuum. It operates in the real world, and the phrases of the Constitution must be interpreted so as not to undercut the democratic system that the nation's Founding Fathers sought to build.

After 11 years on the Supreme Court, Breyer says he's comfortable in describing how he goes about interpreting the Constitution, the statutes and the regulations that come before the court. And without saying so, his book is something of a rejoinder to Justice Antonin Scalia's 1997 manifesto entitled "A Matter of Interpretation: Federal Courts and the Law." Scalia's view, called `originalism,' instructs judges to look to the words of the Constitution and what they meant at the time the document was written, and he's critical of those like Breyer who argue for a more flexible and adaptive interpretation of the Constitution's words.

Justice ANTONIN SCALIA: Something very fundamental has changed. What we originalists think has changed is that you cannot adopt a theory that the Constitution is evolving and the Supreme Court will tell you what it means from age to age. You cannot do that without causing the Supreme Court to become a very political institution.

TOTENBERG: But Breyer argues that the framers had a purpose in establishing divided government. The primary goal was not only to check the government's power, but to encourage what Breyer calls `a democratic conversation' about what policies the government should follow. He contends that the framers used broad, general terms so they could be adapted to changing circumstances and changing times. And he says Scalia's method, originalism, is, simply put, too rigid to work well.

Justice BREYER: Very often, the history simply does not tell you the answer. That's why an argument for saying it's more transparent as well as more consistent with the democratic objective to try to figure out what the underlying purpose is, the underlying values, and how that would apply in light of the consequences in this case.

TOTENBERG: And Breyer applies his theory of constitutional interpretation to some of the most divisive legal questions tackled by the Supreme Court in recent years: affirmative action, privacy, separation of church and state and campaign finance. His discussion of the court's decision on the McCain-Feingold campaign finance law is illustrative. The court, in that case, upheld the law by a 5-to-4 vote, with the dissenters contending that the law's limits on campaign contributions was an unconstitutional abridgement of free speech. The majority, including Breyer, saw it as a legitimate regulation of speech. To begin with, says the justice, there is too great a tendency to sloganeer in these cases.

Justice BREYER: Of course, money is not speech; money is money. Of course, money is speech; it enables speech. Both of those statements are true.

TOTENBERG: Yes, says, Breyer, the law does stop individuals from giving as much money as they want to a candidate in order to advance a particular view.

Justice BREYER: But on the other hand, the finance law has the objective of leveling the playing field with the object of trying to create a democratic conversation. After all, if the only people allowed to buy television time are three people in the United States, it would be pretty obvious that a lot of people were excluded. And Congress says, `Well, we want rules that will democratize that process in order to promote the conversation.'

TOTENBERG: On the question of affirmative action in college admissions, Breyer defends the practice as an effort to include all segments of a population in higher education or, as one opinion in the majority put it, `The court should read the 14th Amendment guarantee to equal protection of the law in light of its purpose, to take people who had once been slaves and make them full members of society.' That view prevailed in the Supreme Court by a 5-to-4 vote, but the dissenters argued that the 14th Amendment was intended to create a color-blind society that would judge people on merit, not skin color.

Justice BREYER: Both of those theories, as a matter of pure logic, are good. So in a situation where an interpretation is so close, I think it's useful to turn back to the basic function of the Constitution; that's where I think the democratic purpose had a role. Members of the armed forces, members of the business community, members of the university community said, `We need at least a limited degree of affirmative action in order to create a society where people will feel they belong to our institution.'

TOTENBERG: You know, but there are a whole bunch of folks in this country who think that in the last analysis, no matter what they do, they don't get their way because the Supreme Court knocks it down. They knocked down statutes that make abortion a crime. They knocked down laws that make private homosexual conduct a crime. And they've had this debate in their state legislature. They won--is the way they feel. And then you come along and kick them in the teeth.

Justice BREYER: All I can say is, indeed, those are cases that present the question of whether the bound is exceeded. And their very drama really reflects how difficult it is in certain cases to decide there and say whether the minority is being properly protected.

TOTENBERG: By that, Breyer means the constitutional boundaries that put some individual rights beyond the grasp of majoritarian rule. That's called modern liberty, meaning freedom from government coercion, as contrasted with active liberty, meaning freedom to participate in government. Where one begins and the other ends is a matter of judgment, Breyer observes.

Justice BREYER: There's loads of room for judgment, but judges do judge. And were these things to decide themselves in some automatic way, what reason would there be for a court? Why would you need any court if the law and the text itself answered all the questions? Then why not just do it by computer? In fact, laws about human beings, the story behind the story of what I've written, is to try to show people how; not whether I'm right, but how a judge in an appeals court or a supreme court might go about trying to apply those very general principles to concrete cases. I hope that many will disagree, and I hope that even more agree.

TOTENBERG: Breyer's book comes at a time when the Supreme Court is in ideological flux, with two new members due shortly to arrive. It remains to be seen just how profound a change will take place on the court, but for Justice Breyer, there will be a very immediate change once Justice O'Connor's replacement arrives. For 11 years at the court's weekly conferences, attended only by the justices, Breyer has been the doorman. Not for much longer, though.

Justice BREYER: I will not have to open the door in case somebody knocks at the conference door because I will no longer be the junior justice.

TOTENBERG: Nina Totenberg, NPR News, Washington.

BLOCK: On "Morning Edition" tomorrow, Justice Breyer talks about how he thinks the Constitution helps Americans hold government accountable. You can hear more of the interview with Justice Breyer at npr.org.

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