The Wall Street Journal‘s Editorial Board had a piece about Justice Stephen Breyer’s impending retirement last Wednesday. One bit in it caught my eye.
Like many liberals of his generation, he [Supreme Court Justice Stephen Breyer] is an institutionalist who believes in the promise of the Constitution and incremental social improvement.
And herein lies the fundamental misunderstanding of liberal judges regarding their role as judges. A judge cannot both believe in the promise of the Constitution and act on the premise of incremental social improvement.
Acting on social improvement, incremental or otherwise, is a strictly political matter and is solely the province of the political actors—Congress and We the People who hire those actors.
If a judge believes in the promise, he must adhere solely to his duty to apply the statute(s) and Constitution that are before him in any case. If he acts on those views of social improvement—which views are inherently his personal views—he is violating both Article I, Section 1, of our Constitution and his oath as a judge to support and defend the Constitution of the United States.