It's no secret that I have my doubts about Stephen Breyer's (that's Supreme Court Justice Stephen Breyer) approach to constitutional interpretation. (Feel free to search the archives.) The very short version is that he thinks the Constitution's intent (ignore here the question of whether a document can have an intention) is more important than its content.
I have my doubts, too, about the approaches of Antonin Scalia and Clarence Thomas. Scalia, in the guise of "originalism" fetishizes what he imagines to be the understanding of some group of late 18th Century landowners about the content of the Constitution. Thomas, favoring "textualism," handcuffs himself to his understanding of the lexical peculiarities of those same landowners.
None of that is really accurate. I don't have "doubts" about their approaches to constitutional interpretation. I think they're all flawed.
Scalia and Thomas presume too much (way too much) about their own historical and linguistic analyses. (And, of course, Scalia is willing to abandon his if he finds the result too odious or too fully at odds with precedent that doesn't offend him too badly. [Is that enough uses of too in one sentence?]) And their insistence that a framework of government devised to satisfy the needs of white, male, agrarian, landowners of the late 18th Century must be slavishly (I chose that word with some care) adhered to in our very different society because there's no other principled way to apply the thing is unreasonably restrictive and dangerously ossifying.
Breyer's model has the virtue of allowing the realities of our world to influence understanding. He claims not to rejected history, original understandings, lexical and textual analysis, and the like. Those are among the tools he says it's proper to bring to bear on understanding the Constitution. But one must also look to practical effects. What makes for a happy resolution of the issue? How best to make government efficient? What advances the cause of representative democracy? Those too are things he brings to bear, and in the crunch, he finds them, as I said, more important than the Constitution itself to determining what the Constitution means. The thing isn't that they don't matter. It's that while those things can aid in interpreting the Constitution, they can't trump it.
Oh, sure, I'm more often in agreement with the resolution Breyer reaches to constitutional questions than I am with the resolutions reached by Scalia or Thomas. But not always. And certainly I'm not always pleased with how he gets where he gets.
All of which is by way of introduction to an instance of Breyer running off the rails. He was speaking to the World Affairs Council of Philadelphia and, at least according to Laura Goldman in the on-line version of the Business Insider, there was this.
The easygoing, affable Breyer only became defensive when the subject of the death penalty was raised. "You have to understand that each death penalty case usually comes before the court three times. The average defendant is on death row for 15 years," said Breyer.
He continued, "The recanting of witnesses is often raised. That is not enough. It is necessary to have proof that someone else has had to pull the trigger. There would have to be something really wrong for the Supreme Court to hear anything significantly new that was not heard before by the lower courts. We are presented with roughly the same arguments, just at the last minute."
Breyer explained that the court can not rule on the death penalty itself or address the racial disparity of its imposition since "it is mostly imposed by state law, rarely federal law. Only the legislature can abolish the death penalty," said Breyer.