Transcript
STUART TAYLOR: Let me begin with what constitutional scholar Cass Sunstein write about Active Liberty, Justice Breyer's book, in The New Republic in a review, "With this small but important book, Justice Breyer emerges as a leading theorist of constitutional interpretation on the highest bench in the land. At last there has appeared a direct and substantial challenge within the Court to the constitutional thought of Justice Antonin Scalia." Of course, this book is much more than a challenge to Scalianism, if I may call it that. Indeed, Cass Sunstein goes on to rank Justice Breyer's book as among the most impressive of such efforts by a Justice in the nation's long history.
But even before the book, Justice Breyer had established himself as one of the Supreme Court's most thoughtful and sophisticated constitutional theorists. Media reports often characterize him, I've done it myself, as a liberal or a moderate liberal or a moderate, but such labels can't begin to capture the complexity of any jurist's philosophy let alone this jurist.
A few salient points: contrary to the liberal stereotype, Justice Breyer has been a leading exponent of judicial deference to the democratic choices made by the Congress and state legislatures, and I think people have amassed statistics to show it. He has also been one of the most cogent dissenters from the Rehnquist Court's revival of a vision of federalism that for first time since the New Deal has narrowed the powers of Congress to regulate arguably local affairs and to protect various groups from discrimination by states.
He has mounted compelling arguments for upholding campaign finance regulations, about which I'll have a question later. He has championed the hotly debated view that judges and Justices interpreting our Constitution have much to learn from their counterparts across the seas and should even cite them on occasion perhaps.
Read the full transcript (PDF—122kb)
View Full Transcript »