Who can reasonably deny that Breyer's approach diminishes the predictability and reliability of the law and the rule of law? It makes Breyer, in effect, a policy maker -- an arrogant, unelected and unaccountable one, at that -- rather than a judge.
If the Ten Commandments cases don't rock your boat, consider the real life application of Breyer's judicial philosophy to free speech -- a liberty every red-blooded American purports to cherish.
Breyer admits that he voted to uphold the McCain-Feingold campaign finance reform bill, though he acknowledges that regulating campaign expenditures amounts to regulating speech "because no one can run for office and have his message heard without money. So the First Amendment is involved."
But looking at consequences again, Breyer concludes he doesn't want the rich donors' speech to "drown out everybody else's. So maybe we have to do something to make that playing field a little more level in terms of money."
In other words, Breyer consciously suppresses speech selectively to ensure that all speech is equally projected. Breyer is simply imposing his political views through constitutional interpretation, seeking -- as liberals do -- to guarantee equality of outcomes rather than opportunities.
If you're still not alarmed, just think how Breyer's reasoning could be applied in other cases. We all know that liberals -- longing for the days of the liberal media monopoly -- have been frustrated over their inability to compete in the marketplace of ideas via talk radio. Especially with the failure of "Air America" to mitigate conservative dominance and level the talk show playing field, liberals are salivating at the prospect of reinstituting the "Fairness Doctrine" to emasculate conservative talk through the coercive power of government in a way the free market stubbornly refuses to do.
Though I have long been aware of the liberals' dark conspiracy to resurrect the Fairness Doctrine to shut up their political opponents -- just read leftist websites if you don't believe me -- I didn't fear the scheme, believing it couldn't pass constitutional muster.
But after reading Breyer's spooky thought processes on constitutional jurisprudence, I realize I was way too sanguine. Conservatives must never underestimate how important the composition of the courts is to the preservation of the Constitution and our liberties.
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