Breyer: I’m no activist judge

Justice Stephen Breyer, speaking at a law school symposium yesterday, warned of the perils of judging based on politics and not precedent.

Breyer has been criticized by conservatives including presidential hopeful Sen. John McCain for allegedly “legislating from the bench.” But yesterday at a lecture at the University of Arizona Rogers College of Law, Breyer said that judges ought not be “junior politicians.” Instead, they should decide cases based on sound reasoning and legal principals.

“I don’t sit there and think, ‘I am a liberal judge,'” Breyer said, according to Legal Times‘ Tony Mauro. “It’s dangerous.”

Using the 1857 Supreme Court decision Dred Scott. v. Sanford as an example, Breyer said deciding cases according to public sentiment, emotion or personal bias can lead to disastrous results. “There is a big question surrounding our Court, every court, and that is, ‘How do the judges decide this question of enormous public importance and great political interest and come to the right decision, a decision that is exceedingly unpopular?’ ” said Breyer, according to The Tucson Citizen‘s A.J. Flick. Refereing to the Scott case, in which Chief Justice Roger B. Taney bowed to pro-slavery sentiment, Breyer said: “This is the story of what not to do.”

He also talked about other controversial cases – the 2000 decision in Bush v. Gore, and last term’s decisions against the Bush administration in the Guantanamo cases – and praised the respectful reaction of the losing parties. Former Vice President Al Gore, as retold in the HBO file Recount warned his aides “not to trash the Supreme Court,” and President George W. Bush said this year of a Guantanamo ruling: “I don’t have to like it, but I’ll follow it.”

“I thank you, President Bush, for those words. In them is the history of the United States of America,” Breyer said to applause, Mauro wrote.

The speech was videotaped and will be broadcast on the school’s website later in the week.

Today Breyer will participate in a conference at the school on “New Media and the Courts.”