Special Section: Taking the Bench
Keeping an eye on consequences
An excerpt from "Active Liberty"
Some lawyers, judges, and scholars ... ask judges to focus primarily upon text, upon the Framers' original expectations, narrowly conceived, and upon historical tradition.... They fear that, once judges become accustomed to justifying legal conclusions through appeal to real-world consequences, they will too often act subjectively and undemocratically, substituting an elite's views of good policy for sound law....
[But] to consider consequences is not to consider simply whether the consequences of a proposed decision are good or bad, in a particular judge's opinion. Rather, [it] is to emphasize consequences related to the particular textual provision at issue. The judge must examine the consequences through the lens of the relevant constitutional value or purpose. The relevant values limit interpretive possibilities.... [W]hen a judge candidly acknowledges that, in addition to text, history, and precedent, consequences also guide his decision-making, he is more likely to be disciplined in emphasizing ... constitutionally relevant consequences rather than allowing his own subjectively held values to be outcome determinative.
Stephen Breyer, "Active Liberty: Interpreting Our Democratic Constitution," ©2005 Alfred A. Knopf.
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