Justices Stephen Breyer and Antonin Scalia appeared at South Carolina Bar Association debate on Saturday. Both avoided details on pending cases, but one case that did see some discussion was the decision in the Citizens United case that has led to the rise of the SuperPACs. The two men had very different takes on the case, and it’s clear that Scalia had the better of the arguments. Breyer’s argument was outcome-based, while Scalia’s was based on the constitution. This distinct difference in judicial orientation explains the current problem in American legal battles: Some justices will abide by the constitution, but there’s a wider group that ignores it, using their personal policy preferences as the yardstick by which the constitutionality of law will be decided.
You can learn a good deal about their judicial philosophies simply by examining what they say in even the most generic terms. Scalia was asked about the influence of money that will presumptively reign supreme in the wake of the Citizens United decision, but in answer, he said something important that reveals his underlying temperament:
“I don’t care who is doing the speech – the more the merrier, People are not stupid. If they don’t like it, they’ll shut it off.”
It is clear from this that Scalia does not view the American people with contempt and derision. He clearly leaves it to us to decide, and that’s what free, independent people are able to do. This explicitly tells us that Scalia’s tendency is toward liberty.
Contrast this with the remarks of Justice Breyer, who was in the minority on the Citizens United decision:
“There are real problems when people want to spend lots of money on a candidate … they’ll drown out the people who don’t have a lot of money,”
Do you see the difference? Breyer assumes that Americans will not be able to discern among candidates if there is too much money spent on one side of a contest. He assumes this will freeze out those candidates with fewer resources, and his decision in the case was based not on what the Constitution implies about liberty, but instead in pursuit of implementing a specific policy goal. Also notice what this implies about Breyer’s view of the American people: You have not the sophistication to discern for yourselves among candidates if too great a disparity exists in the amount of money spent by candidates. You should note that as Breyer offered this explanation, Gingrich, who had only a fraction of the resources of Romney, was running away with a landslide victory over his well-funded rival in the very state in which this judicial discussion was simultaneously in progress.
This difference describes not only the underlying dissent in the Citizens United decision, but also the entire scope of rulings the court hands down. The “judicial activists” on the court are those who use the occasion of cases not merely to gauge the constitutionality of law, but imagine what they would prefer to see in law, and implement it through their rulings. This also describes a contempt for the American people, their discernment, and their ability to filter through nonsense. The view of the judicial activists like Breyer is that they know better what is in the interests of the American people, while the strict constructionists like Scalia stand by the notion that it is the role of the courts is to interpret law, but not to write it out of whole cloth.