Outcome Based Justice

Justice Steven Breyer speaks out on his judicial philosophy:

CHICAGO - Supreme Court Justice Stephen Breyer says he frequently makes decisions about a law's constitutionality by considering its purposes and consequences, which puts him at odds with fellow justices who try to adhere strictly to the language of the Constitution.

Breyer, on the court since 1994, didn't single out any particular justice or discuss his new colleagues, John Roberts and Samuel Alito, during his speech Tuesday at the University of Chicago Law School.

He said, however, that he hadn't detected any split on the high court along Republican and Democratic ideological lines.

"I haven't seen that kind of politics in the Supreme Court. Zero. It doesn't exist," he said.

Breyer talked about other differences in how the justices make decisions, saying they can consult six basic criteria in assessing a law: the language of the law, the history of the text, tradition behind the text, precedents, the purpose of the law and the consequences of letting the law stand or striking it down.

"I tend to emphasize purpose and consequences," said Breyer, who was nominated for the high court by President Clinton. "Others emphasize language, a more literal reading of the text, history and tradition — believing that those help you reach a more objective answer."

As examples of his own stress on consequences, Breyer pointed to two decisions last year involving the Ten Commandments.

He decided a display of the commandments in front of two Kentucky courthouses was unconstitutional because he concluded their display would cause religious conflict. But he found that removing a similar display that had been in front of the Texas State Capital for years would not, so he ruled it constitutional.

This is why the SCOTUS nominations of Alito and Roberts were so important. And if we have another opening, critical. Constitutional issues should be based on the constitution, not a someone's idea of what a nice result would be. The view that Justice Breyer holds is the same one that drives the judicial activism that has marginalized the voter's decisions countless times in recent years. This is the view that allows the left to gain through the courts what they never could at the ballot box.

Thanks to Justice Breyer for reminding us.