Justice Breyer: The Case Against 'Originalists'

RENEE MONTAGNE, host:

John Roberts, confirmed by the Senate yesterday, is due to take the center seat at the Supreme Court when the new term opens on Monday. With a second Bush nominee expected to be named shortly to replace the retiring justice, Sandra Day O'Connor, the court is about to change and probably quite dramatically. Justice Stephen Breyer didn't know that when he wrote a book about constitutional interpretation entitled "Active Liberty" and just released. It is a small book with big ideas. NPR legal affairs correspondent Nina Totenberg sat down with Breyer for an exclusive interview and she has this report.

NINA TOTENBERG reporting:

When George Bush campaigned for the presidency, he said he would appoint justices in the mold of the court's two most conservative members, justices Antonin Scalia and Clarence Thomas. In many ways, Justice Stephen Breyer is the photo negative of the conservative duo. And when prodded, Breyer admits that in some ways, his book is a rejoinder to Scalia's 1997 manifesto entitled "A Matter of Interpretation." Where Scalia is a literalist about the Constitution and about interpreting statutory law, Breyer seeks to understand the underlying purpose of the statutes and the provisions of the Constitution. The name of his book is "Active Liberty," meaning freedom to participate in government.

Judge STEPHEN BREYER (Supreme Court): The main point about the Constitution is it was designed to set up a set of institutions where individual citizens would participate in their government. That was called democracy. And the rest, though very important, was specifying what kind of democracy it would be.

TOTENBERG: The rest as Justice Breyer refers to it, though, is the Bill of Rights, the first 10 amendments to the Constitution, which puts limits on what majoritarian rule can do when it comes to individual rights.

Justice BREYER: We will get conflicts. There's no doubt about it. And the difficult cases require this court to resolve those conflicts.

TOTENBERG: Breyer discusses those conflicts and how his theory of constitutional interpretation resolves them. In his book, he addresses some of the most divisive issues tackled by the Supreme Court in recent years: freedom of speech in the context of campaign finance regulation, the role of privacy in the modern technocratic era of the Internet and the cell phone, affirmative action and the separation of church and state. His view in many instances is in counterpoint to that of Justice Scalia, who contends that the Constitution means what the words put down by the framers meant at the time. Scalia disdains the view that the Constitution's meaning changes over time. As Scalia put it recently...

Justice ANTONIN SCALIA (Supreme Court): 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 founders used broad terms precisely so that the Constitution would be adaptable over time. And Breyer believes that courts should interpret the Constitution with particular emphasis on what the underlying purpose was, fostering democratic participation to achieve democratic rule.

So how is it that he was among the dissenters in the Supreme Court's 2002 decision upholding taxpayer-financed school vouchers to pay for private tuition at religious schools? After all, the Ohio law that was upheld was enacted by a democratically elected state Legislature. `In a society as religiously diverse as ours,' Breyer writes, `I saw, in the creation of a huge grant program for religious education, a potential for religious strife, and that, it seemed to me, was the kind of problem the First Amendment religion clauses banning state involvement with religion sought to avoid.'

Breyer says the same constitutional concern was the basis of the deciding votes he cast in the two cases last term involving Ten Commandments displays. In one he voted to uphold the large granite Ten Commandments monument outside the Texas Statehouse but, in a second case, he voted that a framed copy of the Ten Commandments in a Kentucky courthouse violated the Constitution.

Justice BREYER: One of the basic purposes underlying the establishment clause, which I thought put in very general terms, was to try to minimize the social conflict related to religion. And looking at that basic purpose in the particular cases led me to different outcomes in the different cases.

TOTENBERG: To purge all religious references from the public square, said Breyer, could end up provoking exactly the kind of religious conflict the framers sought to avoid, so, he writes, `One has to examine the particular display in context to see whether it conveys the kind of government-endorsed religious message that the Constitution forbids.' In the Texas case, he concluded, the public had long considered the religious message of the monument secondary to the display's broader moral meaning. The monument had been paid for by a private civic organization seeking to combat juvenile delinquency. It was surrounded by other non-religious monuments and, most important of all, it had stood for 40 years without objection. It thus had proved socially undivisive, whereas its removal would likely provoke social conflict. In contrast, the Kentucky display had a short and stormy history, with ample evidence that its motivation was to convey a religious message.

Breyer's method of statutory and constitutional interpretation leads him more than any other member of the court to defer to Congress. That contrasts with the current court's conservative majority. A study conducted by Yale law Professor Paul Gewirtz shows that until 1991, the court on average struck down one congressional provision every two years, but that in the last decade, the court has invalidated a total of 64 laws, with the court's conservatives voting most often to strike them down. The justice voting most often to strike down federal laws was Justice Thomas, 67 percent of the time, while Justice Breyer voted to strike down laws least often, 28 percent of the time. Breyer maintains that his method of constitutional statutory and regulatory interpretation, looking at those underlying purposes, is a method that holds the elected branches most accountable.

Justice BREYER: It all fits together and other more complex theories, it seemed to me, are only mystifying and make it harder for an average person to figure out, `Who do I hold responsible for this mess' or `Who do I say, "You did a good job in that getting that excellent objective"'?

TOTENBERG: There are times, though, where Breyer, in contrast to the court's conservatives, has been one of those who does vote to invalidate legislative action. For example, he's voted to strike down certain state limits on abortion because, in his view, those state laws unconstitutionally limit a woman's right to make her own decisions on childbearing.

Justice BREYER: There's loads of room for judgment. The judges do judge. And were these things to decide themselves in some automatic way, what reason would there be for a court?

TOTENBERG: Supreme Court Justice Stephen Breyer.

Nina Totenberg, NPR News, Washington.

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