The New Yorker‘s profile of Justice Breyer underscores the need for another unflinching originalist on the court. Breyer, according to the piece, has written an ambitious manifesto designed to stamp out originalism. He asserts on the one hand that originalism is wrong because the justices couldn’t possibly know what the Founding Fathers meant, then on the other hand that they would approve of his ad hoc free-wheeling.Â Breyer smugly grinned when informed byÂ the New Yorker that a lower court judge had called his jurisprudence “utterly standardless.” He is enjoying his unchecked power to call the shots, to make things up as he goes along.Â
But he stresses that he is a very reasonable, mellowÂ judicial activist. For example, how did heÂ decide to split his decision on this summer’s Ten Commandments cases, ruling against them inside the court but approving them outside of it? He decided it by gauging the volume of complaints against theÂ structures: since no one complained about the Texas marker, he ruled it constitutional. And who knows, maybe he consulted his oldest daughter,Â Chloe. “She’s an Episcopal priest, of all things. And I’m Jewish,” he tells the New Yorker.
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