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E.J. Dionne Jr.

Talking Sense On Court Choices

By E. J. Dionne Jr.
Tuesday, November 23, 2004; Page A29

Justice Stephen Breyer performed an enormous service for our country last week. He clarified what is at stake in the coming fights over judicial nominations. He made clear why it is important to raise our national argument over court appointments above the level of slogans and campaign speeches.

Breyer, in a series of lectures at Harvard University, offered a bold challenge to conservative judicial activism. While he was respectful of his colleagues, Breyer put forward an alternative to the theories of conservative jurists such as Justice Antonin Scalia.

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Conservative politicians, including President Bush, say that they oppose judges who "legislate from the bench" and that they hope to fill the judiciary with "strict constructionists." That sounds good, because we want democratically elected politicians, not judges, making the crucial decisions. Yet, at this moment in our history, it is conservative judges who want to restrict the people's right to govern themselves.

That may sound sweeping, but the current trend among conservatives is to read the Constitution as sharply limiting the ability of Congress and the states to make laws protecting the environment, guaranteeing the rights of the disabled and regulating commerce in the public interest.

This new conservatism is actually a very old conservatism. It marks a return to the time before the mid-1930s when judges struck down all sorts of decent laws -- for example, regulating the number of hours people had to work without overtime pay -- reasoning that such statutes violated contract and property rights. Such rulings denied legislators the ability to resolve social problems and make our society more just. The pre-New Deal judiciary that many conservatives are now trying to restore was the truly "imperial judiciary."

The new conservative judicial activism is a greater threat to our democracy than the prospect of some future court striking down the Roe v. Wade decision on abortion. If Roe is lost (and I doubt it will be), states will still be free to pass liberal abortion laws. But if extreme conservative judges limit the authority of Congress and state legislatures to pass environmental, civil rights, labor and consumer laws, our democracy will be less robust, less effective and less just.

Breyer's worries about the new trends are rooted in his criticisms of the courts of the late 19th and early 20th centuries. He argues that they "underemphasized the constitutional importance of participation by black citizens in our representative democracy and overemphasized the importance of constitutional protections of property."

Later courts -- the New Deal and the Warren courts -- "emphasized the Constitution's protection of the citizen's freedom to participate in government" and thereby expanded "the scope of democratic self-government."

Breyer's master concept is "active liberty." He argues that the point of our Constitution is democracy -- to guarantee "the principle of participatory self-government" that gives the people "room to decide and leeway to make mistakes."

He suggests that justices who focus primarily on the Constitution's text and "the Framers' original expectations narrowly conceived" miss the Founders' basic intention. Their purpose, Breyer says, was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively."

Breyer's argument leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them.

The power of Breyer's idea of "active liberty" is that it links freedom to democracy. The point of our system of self-government is not simply to protect us from the wrongs government can commit but to give all of us the opportunity to shape what government does.

Breyer's lectures, which discuss key cases in detail, deserve broad attention because they lay down an intellectually coherent marker in the critical debates we are about to have over the president's judicial choices. Almost all of the journalism about judicial nominations focuses on filibusters, personal conflicts and partisan advantage. But this battle is so much more important than that.

Will judges invoke their own narrow, ideological readings of the Constitution to void progressive legislation? Or will they join Breyer in viewing the Constitution as a framework that "foresees democratically determined solutions, protective of the individual's basic liberties"? The fight over judges is not about politics, narrowly conceived. It is a struggle over what kind of democracy we will have. Breyer has helped us understand that.

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