DDuring a quarter-century career in the Supreme Court, Judge Stephen Breyer is now increasingly absent on the federal bench 2 We have constantly cultivated the virtues of one judiciary. The first is a careful and empirical cast of mind, always alive in the living experience of the litigants, institutions, and the world. The second is humility about the limits of his own knowledge. These led him as a deep respect for other, more democratic organizations such as Parliament and the Federal Office. State legislature. Under their turmoil, Breyer graced the bench of the High Court, proving "our democratic constitution" in more detail than anyone else.
Unlike the approach preferred by other judges, Breyer's empirical brand was forced to speak up about what influenced his judgment. It avoided a simple error that was heavily forged under the label of "Originalist" in the sense that the Constitution of the High Court could avoid normative judgments. By revealing the true legitimacy of the law and expanding the options for democratic alternatives, his work embodies true judicial restraint and a true commitment to the American founding value of living democratic alternatives. did.
Judge Breyer's opinion is characterized by paying close attention to the details of the facts and scrutinizing many factors that legally bite into legal issues. His dissent in theNew York gun incidentlast week, as well as a carefully coordinated dissent against the decision to have an abortion with a steel ball, are shown as well. His opinion, often accompanied by a huge appendix, provides a thorough and detailed list of the facts behind a particular point.
From time to time, this rigorous attention to the world has driven Breyer to progressive conclusions. For example, in 2015's dissenting, he painted a comprehensive empirical portrait of a capricious, often lawless, racially polluted capital judicial system. His relentless and powerful racialized whimsical and malicious catalog rests the idea that the American death penalty can be avoided from becoming "cruel" and "abnormal" in violation of Article 8 of the Constitutional Amendment. Should be.
In a more neutral position, he responded in 2006 to a largecounter-argument to the court's decision to nullify the school's racially conscious efforts to maintain integration. I wrote. The majority of Judge Roberts was based on a phrase of fantastic simplicity. "The way to stop racial discrimination is to stop racial discrimination." In contrast, Breyer is racial blind when the historical patterns of racial discrimination open up the current social world. Undoubtedly showed the effect of maintaining uneven access to quality education.
Judge Breyer's appeal for facts was not just a norm for "liberal" results. Instead, respecting the facts led him to often conservative and even non-free opinion. For example, in 2011, he opposed theinvalidation of California law, which bans the distribution of violent video games to young people. Breyer considered alternatives to the ban and flagged the "serious enforcement gap" left by other technical options. In 2005, he votedon the grounds of the Texas Capitol in support of the 6-foot-high Ten Commandments statute. This vote was based on his careful assessment of how both religious and secular citizens experienced government in Texas. And in 2002, Breyer voted crucially in the important Constitutional Amendment Article 4 proceedings on student rights to suspicious drug tests. He upheld the practice of opposition to constitutional opposition, citing the "serious national issue" of drugs and the school's decision to avoid "criminal or disciplinary action."
Indeed, his latest majority ofopinionsin the religious freedom proceedings in early May wanted to raise the Christian flag in Boston. The plaintiff in the First Amendment of the Constitution has been ruled. By today's standards, this was a conservative result, but Breyer was able to put together a coalition of both liberal and conservatives. Where he sought to embrace diverse constitutional values, his conservative colleagues set the precedent only a few weeks later, raising religious constitutional rights over secular ones. rice field.
Judge Breyer's clarity and rigor is lacking in many of his more conservative judges' recent deliverables. As Professor Ryan Doerfler recentlyexplained, many Roberts Court opinions are "almost comical" exercises in logical chopping semantics. They do not pay terrible attention to the actual context in which the statute is created.
In addition, Breyer's candidness conflicts with the "originalist" label that some judgesproudly display. This label will be paraded at the moment when important areas of the Constitution, such as campaign finance, property acquisition, and racial equality, are completely freed from the anchor of understanding in the 18th century. In contrast, Judge Breyer treats his readers as democratic equals who deserve real justification, as well as noble sophistry, even if you do not agree with him.
The second important feature of Judge Breyer's law is that democratic institutions make their own judgments and often use tools far superior to courts to conclude them. Is to respect the ability to act on the basis of. Therefore, the 2007investigationfound that he was one of the judges most unlikely to invalidate either federal law or statute. A year earlier, astudyfound that he was least likely to break federal regulations (Scaria was on the other side of the spectrum).
Other judges talk about democracy — Take Judge Kavanaugh about getting the state to decide on an abortion. However, Judge Breyer practices what he preaches. He judicially created a rule to the effect that government agencies could not determine "major questions", not for him. Recently,calledto suspend President Biden's vaccination obligations. The rules created by this type of judge cannot be expanded and contracted as easily as the accordion to suit the tastes of the judge's policy.
Therefore, Judge Breyer's career asks the correct question to ask the court within the next few weeks or months. It respects not only all the facts of the world (not just the useful facts), but at the same time its limited experiential ability. Do judges work towards and support constitutional democracy, or are they just a threat to the company? The courts that appear after Judge Breyer's retirement certainly have high standards to meet.
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