Manifesting the philosophy of legal realism, Justice Stephen Breyer earlier this week suggested that Koran burning could be banned, in part, because it might create international tensions and protests. His concern for international standards has begun to creep into Supreme Court jurisprudence, in particular on matters of war and the death penalty. The main problem with this approach is that it ignores the text of the Constitution and the uniqueness of the Anglo-American regime of legal rights. Our extensive free speech rights, protections for the accused, and the right to bear arms are not shared with Continental Europe. They are almost totally unheard of in the Third World. An excessive concern for the standards of these other places would rather quickly degrade our historical patrimony.
Further, the whole idea of a “living” Constitution where obvious questions such as Koran burning cannot be effortlessly resolved as constitutionally protected is a natural outgrowth of the legal realist movement. This has been the dominant philosophy of the legal academy and the legal left since the 1930s, growing from the writings of Justice Brandeis and Cardozo. It is an insurgent movement that denies the meaning of texts and ultimately destroys real law, since all predictability is set aside in the name of advancing social justice. So-called legal realists are at bottom nihilists; they do not believe there are legal answers to legal questions discernible based on language and the application of outcome-neutral rules of interpretation. The legal realists’ talk about “penumbras” and “international standards” is at its heart a smokescreen to provide cover and concealment to their advance of their own unauthorized power and a related and unpopular notion of right and wrong. This is why convoluted opinions claim a right to gay marriage, abortion, al Qaeda detainees not to be executed upon capture, and the like, while purporting to struggle over whether a Washington DC gun ban violates the Constitution’s Second Amendment. This is why judges assume more and more power, in spite of their limited role under the Constitution.
If legal realism is all about power, nonetheless, it may seem mysterious why a left-liberal Jew like Breyer would make common cause with fanatic, illiberal Muslims. But he’s not alone. Consider Mayor Bloomberg. The reason for such an instinctual alliance is Breyer’s and most liberal Jews’ self-concept as a vulnerable minority outsider swimming in the ocean of a potentially hostile majority, namely, white Christians. Understanding themselves as such, certain Jews have made common cause with outsiders and minority groups repeatedly in American history, not least in the form of the civil rights movement; their paranoia thus makes them viscerally hostile to expressions of majority nationalism and unity, even when those expressions are mild in comparison to the stated aims of fanatic Muslim newcomers. The other minorities are seen as basically harmless, but a rinky dink white Christian pastor in the middle of nowhere becomes in their eyes the harbinger of future pogroms. In this instance, an otherwise unshakeable belief in freedom of expression must give way for the sensitivities of Muslims. Not all opponents of Koran burning think this way; their stated concerns for nonviolence or respect for the beliefs of others have some salience. And certainly not all Jews conceive of their group’s interests as Bloomberg and Breyer do. But when Breyer expresses himself neutrally on these issues, he may be dismissed as a fraud. Through his legal realism, he and others like him told us that that their stated reasons for anything they do are a smokescreen for the acquisition of group power. They have, in essence, admitted they have no legal conscience; thus, they do not deserve to be taken seriously other than as a troublesome, power-hungry group of phonies.
That the courts have any respect remaining at all is only due to their legal realist members’ concerted effort to conceal what they are doing and why when it comes to controversial social issues. Legal realist judges are wont to hide how they come from a very narrow sliver of the population, a group often at odds with the values, religious beliefs, and life experience of the majority, and further do not want it known how this view has become dominant in the legal profession, in particular among the professoriate, and thereby polluted the legal thinking of two generations of judges. The hostility and paranoid self-concept of certain minority judges would not be as big of a problem if these were mere technicians, who acknowledged the sacredness of constitutional texts, but they do not. They admit in the abstract and also in their academic writings that they are seeking power for their group in what they see as a zero sum game for influence. If the real meaning of legal realism were well known, then this power play would be rejected by the majority as undemocratic and directly hostile to their interests, and the judiciary would be held in permanent disrepute.