Justice Breyer on Active Liberty

I've been somewhat distracted from my bedside table reading, lately. A stack of books sits there, in the "queue", waiting for me to pick up one of the two or three books that are in-process. Oh, I've been doing a lot of reading lately, but it's been all online. The books have languished.

Last night, heading to bed with a bit of margin before sleep came, I picked up Justice Stephen Breyer's Active Liberty.

When I got to page 19, I hit a remarkable passage that struck me forcefully. I'll repeat it here:

How then is the judge to act between the bounds of the "willful" and the "wooden"? The tradition answers with an attitude, an attitude that hesitates to rely upon any single theory or grand view of law, of interpretation or of the Constitution. It champions the need to search for purposes; it calls for restraint, asking judges to "speak...humbly as the voice of the law." And it finds in the democratic nature of our systemmore than simply a justification for judicial restraint. Holmes reminds the judge as a general matter to allow "[c]onsiderable latitude...for differences of view." And Learned Hand describes both legislative and judicial democratic attitudes when he says that the "spirit which seeks to understand the minds of other men and women," the "spirit which weighs their interests alongside its own without bias," is the "spirit of liberty" itself. (Emphasis added.)

The Spirit of Liberty, itself.

In the shadow of demagogic attacks on the judiciary, it's helpful to dispel that gloom by remembering that, in our democratic system, an independent judiciary serves a key role in enabling us all to achieve "Life, Liberty and the Pursuit of Happiness". I, for one, am therefore grateful that they are not beholden to the populist whim of agitating elected politicians.