In "The Devil's Dictionary," Ambrose Bierce acidly defined the word "lawful" as "compatible with the will of a judge having jurisdiction."
Justice Stephen Breyer has just revealed, as if there were any doubt, that the law is whatever his will decides it is. His recent comments in The New York Review of Books amount to self-parody, written as if to prove the worst fears of anyone who frets that justices see themselves as philosopher-kings who disdain anything so petty as the written law.
Breyer gave an interview — conducted entirely in French — on the subject of Marcel Proust's "Remembrance of Things Past," a favorite book. As the conversation turned to the law, it emerged that Breyer views the Constitution the way literature professors treat "texts" — as merely the starting line from which to let the imagination run wild.
Breyer's interviewer asked the justice to compare the 1.3 million-word, seven-volume "Remembrance" with two other famously puzzling texts — James Joyce's crazed 265,000-word epic "Ulysses," and the Constitution (four plainly-written pages plus amendments). Breyer at first demurred, saying, "It's hard to compare a literary text with a political text," because, whereas novels have an aesthetic purpose, "We use more practical criteria in the realm of the law — for instance, 'Will this interpretation of the law allow society to work better?' "
And you thought it was the job of politicians, not judges, to persuade the people on what might improve society, get elected, write laws and get them passed.
But actually, Breyer continued, literature and law aren't all that different: "The Constitution, much like any literary text, should not be interpreted rigidly. It's a living text, open to interpretation. . . It is this practical application of the Constitution that makes its interpretation such an exciting thing." (Emphasis added.)
When politicians promise "exciting" things like ObamaCare, be skeptical. When justices serving for life without ever having to acknowledge public opinion promise "exciting" things, be frightened.
Perhaps Breyer's most telling moment was his approving reference to Oliver Wendell Holmes, the authoritarian eugenicist progressive who approved stern prison sentences for dissidents, such as the Socialist Eugene V. Debs, for making anti-war speeches.
Breyer said, "At the turn of the last century, the Court was called upon to decide a case on prices for theater tickets — could they be considered basic necessities, and could they be regulated as such?"
Of course. Said the man stranded on a desert island, "What I really need is food, water and two tickets to 'Mamma Mia.' "
Breyer continued, "The majority thought the theater was not a necessity. The great Justice Oliver Wendell Holmes Jr. replied in his dissent: 'We have not that respect for art that is one of the glories of France. But to many people, the superfluous is the necessary.' "
That's an entertaining quip to use over a glass of absinthe but a specious legal argument. But not to our resident Proust scholar on the high court. To him, the law is as subject to reevaluation as a piece of modernist art.
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