Patterico has this excellent post on Justice Stephen Breyer's mis-statements in his interview with Fox News's Chris Wallace.
CHRIS WALLACE: How do you, as a justice, decide what’s good precedent and what’s bad precedent?
BREYER: There are principles that help you decide . . . There are a number [of] different factors. And it’s going to take more than 12 minutes if I go into them here. But I can tell you, you can read some of them in Casey v. Polino, in the decision that Justice Souter, Justice O’Connor and Justice Kennedy wrote.
But that's not the case Breyer meant to reference.
But as Howard Bashman notes, Casey v. Polino is an obscure ERISA case Breyer wrote when he was on the Court of Appeals. Breyer meant to refer to the case of Planned Parenthood of Southeastern Pennsylvania v. Casey.
Sure, one time could be a mistake. But what if Breyer does this repeatedly? Well, then it could indicate a problem.
Oops, it has.
Breyer seem[ed] to continue to refer to the Stenberg case as, alternatively Stenhart or Cathcart.
One could argue that Justice Breyer has dealt with hundreds of cases in his time on the bench and that it is normal and natural that he would mix some of the names up, even if he remembered the holdings correctly. But when he begins to talk about looking beyond the Constitution to protect minority rights and ensure that "no one gets too powerful," that is worrisome.
Not everyone is smart enough to be a strict constructionist and trust the legislature to do the job the Constitution assigned it, namely writing the laws. There are judges who give themselves too much credit in determining not merely what the Constitution says but what it should say.
What is wrong with this argument, of course, is what one group of justices believes is Constitutional today (say, gay marriage) can be undone by a different group of justices in the future. If you want the protection of the Constitution, pass Constitutional amendments. Or, at the very least, get Congress in on the action.
But we know there are many issues with which a large enough number of Americans disagree (*cough* abortion *cough*) that liberals have given up trying to persuade people to accept their ideas (*cough* Equal Rights Amendment *cough*). That's why so many rather radical ideas are being brought through the judicial system instead. Hey, it's a lot easier to persuade five people in black robes than 218 Congressmen, 51 Senators, one president, and two-thirds of the states.
That's what makes Breyer's mistakes about cases so scary.
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