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Breyer on the Constitution

By Robert Barnes
Washington Post Staff Writer
Sunday, September 19, 2010; 8:19 PM

When President Obama faced openings on the Supreme Court in his first two years in office, a frequent request from liberals was for someone to stand up to Justice Antonin Scalia. Give us someone who'll take him on, they said, and tell him why he's wrong.

In fact, though, Justice Stephen G. Breyer, appointed to the court by President Bill Clinton in 1994, has been doing just that for years.

Scalia and Breyer are frequent debating partners, and Breyer has written not one but two books critiquing originalism, the method of constitutional interpretation most associated with Scalia. It says the best way to interpret the Constitution is by looking at the meaning of the words at the time they were written.

Breyer's new book, "Making Our Democracy Work," underlines their disagreement in a chapter called "The Basic Approach."

"The court should reject approaches to interpreting the Constitution that consider the document's scope and application as fixed at the moment of framing," Breyer writes. "Rather, the court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances."

Judges should go about this, Breyer says, using "traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences. Doing so will make the law work better for those whom it affects."

Breyer, 72,, said in an interview that he understands how that opens him to criticism of subjectivity, and that his approach lacks the simple message of originalism.

"I've said many times: I can understand why you'd want . . . a simple, clear theory, as if you had a historical computer and could in fact decide on the basis of history the answer to these questions," Breyer said. "But history is too uncertain."

In the book, he points to District of Columbia v. Heller, the case that established for the first time that the Second Amendment protects an individual right to gun ownership. Scalia, writing for the five-member majority, and Justice John Paul Stevens, writing for the four dissenters, including Breyer, both looked extensively at the amendment's historical roots. They came up with completely different interpretations.

But Breyer went further, and said that even if such a right existed, the District had authority to forbid handgun ownership because it had a compelling interest in saving lives. Such a proportionality approach is criticized as "judge-empowering," Breyer acknowledges. "But what is the alternative? Today's court should not base an answer to a question about an issue such as gun control on the facts and circumstances of eighteenth-century society."

Breyer's discussion of Heller is only one of a number of recent cases he mentions in the book. But those looking for an insider's account of the deliberations that went into the decisions will be disappointed. He doesn't mention any current colleagues by name, and his descriptions of the holdings in the cases read much like newspaper or law-review descriptions.

"I tried to be as objective as I could be," he said.

He also said he hoped that by going into detail on the reasoning behind the decisions, he could temper a view he considers most harmful to the court's reputation: "that we are nine junior-varsity politicians."

Even as he finds himself more often in dissent on the increasingly conservative court led by Chief Justice John G. Roberts Jr., Breyer said he worries that the court's 5 to 4 decisions on controversial subjects will be seen as political.

"And I agree it is a problem - if you ask the average person . . . there is a tremendous inclination to say these decisions are made on a political basis," Breyer said in the interview. "But that is not how it looks from the inside, that is not how it looks when you're actually working on a case."

He points out that only a quarter of the court's decisions come on such a divided vote.

"They tend to reflect differences of basic philosophies or jurisprudence or ways people believe the law should affect or does affect, or the Constitution should affect or does affect, or should be interpreted in the United States," Breyer said.

"And it's very misleading to call those political differences."

Like other justices who recently wrote books, Breyer has hit the media circuit to promote his work. The short, crisp sentences in "Making Our Democracy Work" are a contrast to his long, hypothetical questions on the bench or his stream-of consciousness answers to interview questions. His promotion of the book got off track in a network interview when he stumbled into an overly analytical answer about Koran-burning.

But Breyer, if concerned about the court's image, remains an optimist. Accepting the court's decisions, he writes, has become "habit" for the nation.

And if he continues to disagree with the court's decision in, say, Bush v. Gore, he looks for the silver lining. "Despite the great importance of the decision, the strong disagreement about its merits, and the strong feelings about the court's intervention, the public, Democrats as well as Republicans, followed the decision," he writes.

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