THE RETIRED SUPREME COURT JUSTICE RAISES ALARM ABOUT THE COURT'S CURRENT DIRECTION, BUT HE BETRAYED THE CONSTITUTION

COMMUNIQUE #5

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Retired Supreme Court Justice Stephen Breyer is sounding the alarm about the direction of the Supreme Court, according to the New York Times, but the police-power loving traitor to the Bill of Rights should enjoy his privileged retirement and not advocate stripping anymore liberties away from Americans.

Federal judges swear an oath to defend the Constitution of the United States. The Constitution includes the first 10 amendments. Together called the Bill of Rights, the Constitution would not have been ratified without it. But some federal judges—as Communique #4 explored—betray their oath and believe their un-elected office comes with the power to "balance" the rights the Constitution legally guarantees to Americans against their own personal, subjective beliefs what’s right. 

Whether the excuse is terrorism or crime, the result is often the same: police have more power over people. 

The boot-licking Breyer is the smiling face of the Liberal Police State.

Breyer helped formulate the notorious Federal Sentencing Guidelines.

"There's no doubt that Stephen Breyer is one of the 'parents' of the federal sentencing guidelines," Duke University Law Professor Erwin Chemerinsky said in 2004. He "was also on the first Sentencing Commission that created the guidelines in the very structure at issue in these cases, though by that time he was a First Circuit judge."

Breyer’s guidelines reduced sentencing to a merciless mathematical formula. Imagine being sentenced by a mobile telephone App and you have an idea of what application of the federal sentencing guidelines is like. They’ve long been criticized as being too harsh, too inflexible, too complicated and a driver of mass incarceration. A handful of federal judges mounted what amounted to a judicial mutiny and refuse to follow them. The Supreme Court finally ruled them more-or-less optional in 2005.

When Pres. Bill Clinton appointed Breyer to the Supreme Court in 1994,  he claimed the one-time Harvard Law School professor would "strike the right balance between the need for discipline and order, being firm on law enforcement issues but really sticking in there for the Bill of Rights."

In reality, instead of "sticking in there for the Bill of Rights," he stuck it to the Bill of Rights.

Nowhere is Breyer's love of Government power over liberty more clear than in the cases he decided that swept aside the Fourth Amendment in favor of warrant-less, suspicion-less police searches of all kind. By eviscerating the Fourth Amendment, Breyer and his Conservative collaborators laid the permissive legal groundwork required for the mass surveillance-based Police State envisioned by dystopian poet George Orwell: where there are Panopticon-like cameras everywhere—even outside every citizens’ home or apartment, constantly observing their front door.

Breyer served on the Court from 1994 until 2022. During that time, Breyer helped Conservative judges shred the Fourth Amendment's protection against police seizures and searches: all-but eliminating the amendment's long-understood requirement that police seizures and searches be supported by some kind of individualized suspicion of wrongdoing. Under Breyer’s Fourth Amendment law, cops don't need a reason to stop, question and even search you. Or put up a police camera outside your front-door.

For example, Breyer voted to uphold suspicionless roadblocks, suspicionless drug-testing and even suspicionless, dragnet DNA collection.

That last one was too much even for arch-Conservative Justice Antonin Scalia, who dissented.

"Make no mistake about it," Scalia protested. "As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason." 

Breyer also prompted another Scalia dissent in Navarette v. California (2014), a 5-4 decision that also expanded law enforcement power. In that case, the Court endorsed a police search even though it was based on an anonymous and uncorroborated tip. Apparently, neither Justice Breyer nor any other members of the majority ever heard of SWAT-ing, because their decision is based on the faulty premise pranksters think twice before using 9-1-1 to harass people. Some pranksters only use 9-1-1 to harass people.

"The Court's opinion serves up a freedom-destroying cocktail," Justice Scalia wrote in dissent. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." 

Breyer's Liberal colleagues joined Scalia’s blast: Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Of course, Breyer is beloved by certain so-called "Liberals" because he reliably voted to defend the right to abortion. But Breyer’s singular devotion to abortion proves the corruption of his "balancing" approach to constitutional adjudication.  That’s because any "balancing" methodology necessarily relies on the subjective values and biases—overt as well as submerged—of the judge doing the balancing.

Guess what? When privileged people—like Harvard law professors—get to do the balancing, it's their privileged interests that usually win out—over the rights of the nonprivileged masses. In Breyer’s world, for example, the Constitution only protects pregnant women who can afford an abortion. It doesn’t protect working-class Americans from being stopped, cursed at, questioned and frisked by police—just for walking down the street. Breyer’s jurisprudence doesn’t represent their interests at all.

There undoubtedly is a constitutional right to abortion. If its not in the Fourteenth Amendment, as the Supreme Court held in 2023, where is it?

Ironically, a new right to abortion could be found in a broad right "to be let alone" grounded in the Fourth Amendment’s specific protection against warrant-less, suspicion-less seizures of “persons” and their “effects”—the very right Justice Breyer obliterated. Instead of cultivating an alternative ground for protecting the right to abortion by resurrecting the Fourth Amendment, Breyer blew it up—and, in the process, spawned the mass-surveillance state.

Breyer was supplanted by one of his former law clerks, Katanji Brown Jackson, in 2022. She seems at lot less eager to ignore the Bill of Rights than her mentor. But there’s generations of damage to undo.

Now Breyer's back shilling a memoir from a fireplace-warmed Harvard office. In the book, he promotes what he calls his "pragmatic" vision of constitutional interpretation.

If Americans today feel "unsafe" with the Bill of Rights, which are inherently biased in favor of personal liberty at the price of public safety, then they should vote to amend the Constitution. Whatever they call it, “pragmatic” Judges like Breyer have no right to short-circuit democracy and effectively read the Bill of Rights out of existence by judicial fiat.

As Benjamin Franklin once said: "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

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