Our stupid Supreme Court Justice

Matthew Hoy
By Matthew Hoy on September 15, 2010

Supreme Court Justice Stephen Breyer has been in the news lately. Last week, National Review’s Bench Memos writer Matthew J. Franck reported on an article Breyer wrote for the Journal of Supreme Court History that was riddled with factual errors. The biggest error was that the infamous Dred Scott decision was a 6-3 decision. Any novice at Supreme Court history knows that it was the most famous 7-2 decision until Roe v. Wade. And it got worse:

At one point Justice Breyer attributes to Justice Curtis an argument about the due process clause that Curtis never makes:

Nor could “due process of law” mean that a slave remains a slave when his master moves from, say, slave state A to live permanently in free state B.  What law would then govern the slave, the slave’s wife, his house, his children, his grandchildren?  State B has no such laws.  And State B’s judges could not work with a proliferating legal system under which each slave, coming to B, brought with him his own law, from A or from C or from whatever other slave state he happened to be from.

This might just be an interesting argument, if Curtis had ever made it.  But he didn’t.  And he didn’t for the very simple reason that the due process clause at the center of the Dred Scott case was in the Fifth Amendment (the Fourteenth was added 11 years later partly in response to Dred Scott), and the Fifth Amendment only dealt with the question of what protection one’s life, liberty, or property had under federal law, whereas Breyer is nattering on here about what would happen under this or that regime of state law, which the Fifth Amendment’s due process clause could not affect.

Then yesterday Breyer stepped in it again.

Last week we saw a Florida Pastor – with 30 members in his church – threaten to burn Korans which lead to riots and killings in Afghanistan. We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans.  But Supreme Court Justice Stephen Breyer told me on "GMA" that he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning.

“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it?  Why?  Because people will be trampled to death.  And what is the crowded theater today?  What is the being trampled to death?”

What a dhimmi. It’s the ultimate heckler’s veto. If you can get a group of people to go ape over something, then it’s suddenly not protected by the First Amendment. All of you who oppose burning the American flag – threaten to start shooting, burning and looting then it will be illegal.

And these are the same morons for whom “exotic dancing” is a form of free expression allowed by the Constitution.


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September 2010



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