Breyer: 'Never Heard a Voice Raised in Anger' on High Court

The Legal Intelligencer
Meg Charendoff and Asher Hawkins
January 20, 2006

As the news from Capitol Hill made clear that the upcoming confirmation vote on 3rd Circuit Judge Samuel A. Alito Jr. portends to be deeply split along party lines, one member of the U.S. Supreme Court reminded some local teens yesterday that the American judicial system has always sought to rise above potentially divisive obstacles.

"The system is more important than the results of any particular case," Justice Stephen G. Breyer, 67, and currently the most junior of the associate justices, said in a talk yesterday at the Springside School in Chestnut Hill.

The Clinton appointee - in the Philadelphia area for a speech at the National Constitution Center Wednesday night and to promote his book, Active Liberty: Interpreting Our Democratic Constitution - addressed a smaller and more intimate gathering of upper school students from both Springside and Chestnut Hill Academy yesterday morning.

Making the most of his trademark wit and self-deprecating humor, the former law professor, who has been on the court for the past 11 years, explained his views about the relative importance of state and federal law, the function of the judicial system, and the role he and his fellow justices play in interpreting and applying the Constitution.

"In area after area, it is the states that really make the law," Breyer said, stressing that about 95 percent of the laws that govern the daily lives of Pennsylvanians - laws affecting domestic relations, businesses, education and the environment - are written in Harrisburg and not in Washington.

What's left for the Supreme Court to determine, he said, is whether the country has, or needs, a uniform rule of federal law on the question presented by each particular case.

Job one for a Supreme Court justice is to "decide what it is you want to decide about," he joked when referring to the process by which the justices grant certiorari.

"How do I decide what it is I want to hear on the court?" asked Breyer. "I'll let you in on the secret: I am trying to figure out if the country needs a uniform rule of federal law on the question of the case."

And the determining factor, he continued, is not so much "why?" but "when?"

If it appears that the decisions being handed down by lower courts are out of synch, it often becomes clear that the court needs to hear the case.

Once cert is granted, job two for a Supreme Court justice, according to Breyer, is to "decide what you're going to decide."

"The Supreme Court does not make federal law," Breyer said, correcting a student who apparently had the opposite impression. "Congress writes the law."

Although he did not directly mention the Alito confirmation hearings, Breyer did address the question of whether judges should be "activists."

"No judge thinks he's an activist," he said. "That's an insult. And a judge should not be substituting his own opinion. That's not right."

As he did last night at the National Constitution Center, Breyer did allow that there is disagreement as to how to interpret the Constitution and federal law. Some justices, he noted without naming names, look only to the text to interpret and apply the law.

"I think the better way is to figure out the purpose and the values underlying the law, and then to look at the consequences of applying [it]."

Breyer illustrated his point using Kelo v. City of New London, the eminent domain case decided by the court 5-4 in a June 2005 opinion.

"Analysis always starts with the text," he said, holding up a pocket-sized copy of the Constitution for emphasis.

But then justices must decide the issue by looking at what the state law intended, what it wanted to accomplish, and the consequences of applying the law. And they're not supposed to ascribe their own views, he added.

Breyer also addressed what he considers to be the inaccurate impression that the court is sharply divided, citing the fact that the justices are unanimous in their decisions about 40 percent of the time.

And, when they are divided, it's not always along the same five/four split, he pointed out.

He also took great pains to portray the way in which justices decide cases as a professional, calm and respectful process.

"I've never, in 11-and-a-half years, never heard a voice raised in anger," he said. "Not on affirmative action. Not on Bush v. Gore. We can disagree on the meaning of the law. But we're personable."

"No justice has ever said something insulting or slighting," he added. "Not even as a joke. It is professional and calm. We don't have to agree. But we do have to discuss."

That is the great lesson of more than 200 years of history, he argued: The judicial system itself is more important than any one case the court decides.

Citing conflicts over Indian rights, segregation and the civil rights movement, Breyer gave what he called his "preachy history lesson."

Despite these conflicts and many others the country has faced in its history, "300 million people have learned together to resolve disputes under the law. . . . Without fighting. Without taking it to the streets."

During Wednesday night's talk, Breyer said that differences between the court when it was under former Chief Justice William H. Rehnquist and currently, under new Chief Justice John G. Roberts Jr., have been minimal.

But he did say that the atmosphere during justice conferences has been more relaxed under Roberts, who seems to like to hear a bit more open-ended discussions of cases than his predecessor did in the latter years of his leadership.

During his National Constitution Center appearance, Breyer also deflected questions on the recent rounds of court nominee hearings before the U.S. Senate Judiciary Committee and other controversial topics.

But he did offer insight when posed direct questions by members of the audience.

When asked whether he believed it would be appropriate to have U.S. Supreme Court oral arguments filmed, Breyer acknowledged that doing so would help give the public an idea of at least part of the court's inner workings.

But he also reasoned that allowing cameras into the high court could set a standard that lower courts feel obligated to follow, to the possible detriment of witness and juror wellbeing.

"I see good reasons for it, but I'm nervous," he told the packed auditorium Wednesday night.

When asked about the issue of citing to foreign case precedent in Supreme Court opinions, Breyer stressed that such precedent is definitely not binding upon U.S. law, but he argued there is no reason not to analyze how the judiciaries in other democracies have tackled common challenges.

"Why not read it?" he asked. "Why not look at it? We might decide that we've been wrong."

Meg Charendoff is a freelance journalist and Asher Hawkins is of the Legal staff.
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