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Justice Breyer Favors 'Less Literal' Readings
Associate Supreme Court Justice Stephen Breyer proudly admitted Tuesday to a philosophy of judicial activism in a speech at the University of Chicago Law School. Breyer told students there are six criteria judges use to assess a laws constitutionality: statutory language, constitutional history, constitutional tradition, precedent, purpose, and consequences. "I tend,” Breyer said, "to emphasize purpose and consequences. Others emphasize language, a more literal reading of the text, history, and tradition – believing that those can help you reach a more objective answer.” Though he refrained from naming those "others,” he was referring to Associate Justices Antonin Scalia and Clarence Thomas – both of whom are known as originalists.
Story Continues Below It is unclear whether the two newest members of the Court - Chief Justice John Roberts and Associate Justice Samuel Alito - will adhere to the same originalist philosophy, but there are signs that they will. Breyer’s speech echoed an exchange between Sen. Dick Durbin, D-Ill., and Roberts during the newly minted chief’s confirmation hearings. "Somebody once asked, ‘Are you going to be on the side of the little guy,’” Roberts relayed to Durbin. "And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me.” "But,” he continued, "if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That’s the oath. That oath that a judge takes is not that I’ll look out for particular interests.”
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