Wednesday, January 3, 2007

Activist Judges, Passive Liberty
Mike Rappaport

Maimon below rightly criticizes Justice Breyer's book, Active Liberty.  That the most activist judge on the Supreme Court attempts to portray himself as respecting the political liberty of the people is, well, just ridiculous.  For my own brief review of Breyer's book, see here.   Here is a brief excerpt:

Far from defending the broad discretion he would give to judges, Breyer seems to be in denial about it. Breyer actually claims that, as compared to originalism (which tellingly he mistakenly refers to as "literalism"), his approach does not significantly increase the subjectivity of judicial decisions. Given the enormous power that Breyer confers on judges, this is astounding. Moving almost into the realm of self-parody, Breyer illustrates the alleged restraints on judges with his opinions from recent Establishment Clause cases. In two opinions that were so subjective that no other justice agreed with both of them, Breyer concluded that the Ten Commandments could be placed on the grounds of the Texas State Capital, but not inside a Kentucky state courthouse.

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Mike Rappaport