Recently, Supreme Court Justice Stephen Breyer sat down with the National Constitution Center’s Jeffrey Rosen to discuss, among other things, the perception that the high court plays political favorites.
Breyer and Rosen were at an event last Thursday night in Washington, and early this week, the Washington Post ran short quote from Breyer that refuted the notion that the nine Justices were “junior-league politicians.”
Here is an extended excerpt from that interview, which you can watch in its entirety below or on our YouTube channel at http://youtu.be/hrP3JUBTLRY
Breyer and Justice Ruth Bader Ginsburg gave separate interviews after a brief presentation of highlights from the new “Scalia/Ginsburg” opera by Derrick Wang, where two fictional Justices sing about the need to “be one” for the sake of the Constitution despite philosophical differences. After Ginsburg appeared, Rosen introduced Breyer for a separate interview.
Rosen: I think you have a unique talent which is that you can explain constitutional issues in terms that that intelligent citizens can understand whether or not they are lawyers and you fairly present the arguments on both sides of every case and you are very candid about your reasons for choosing one side over another. So I am so looking forward to our conversation because you can tell us how to teach Americans in a non-partisan way about the Constitution. Please welcome Justice Stephen Breyer.
Rosen: First of all, how did you like the opera?
Breyer: I liked it very much. And I like listening to Justice Ginsburg. Contrary to what people think, we don’t always get to hear each other say things. In general, I learn quite a lot. So as a member of your advisory board, I would say at least up to this moment, you’re doing great. (Laughs).
Rosen: You have a philosophy of pragmatism that is rationale to its core. And you argued in your most-recent book that democratic deliberation is one of the central values of the Constitution. And judges should approach cases in ways will promote decisions by democratic bodies rather than the other way around.
Breyer: Not 100 percent. The way I talk about the Constitution is that people say, “what is it,” and it is basically a document that sets up a democratic system of government so people can make decisions about communities they want, states, localities, and nations, by participating in a political process. But it’s a special kind of democracy that both promotes and creates those institutions. At the same time, it protects basic human rights, at the same time it assures a degree of equality, at the same time it divides power among states, the federal government and three branches so that no single group of people in the government can in fact get too much power. And finally, it insists upon a rule of law. So you can’t say it in one single word. But you don’t need a thousand, either. Or even 10,000. And you get the essential elements. I think if my eight colleagues were here, they would say, yes, that’s really is what the Constitution is about. And the rest of it elaborates on those basic points.
Rosen: “We are different, we are one.” Do you think everyone would agree about those …
Breyer: I do. It’s not that it is just a Fourth of July speech. It is that they are embodied in particular parts of the Constitution. I think they would.
Rosen: There are obvious disagreements. Justice Scalia, in the opera, thinks the Constitution should be rooted in original understanding and should not evolve as Derrick’s lyrics say, and you take the contrary view you believe in an evolving Constitution. Tell us why.
Breyer: The differences, we are unanimous 50 percent of the time. We are 5-4 probably 20, 25 percent. They are not always the most important cases. And they are not always the same 5 and 4. You have to communicate to the public in your former profession. So naturally it’s more interesting when people disagree. And it’s actually more interesting whether it is about a social issue, a political issue.
So the two questions I [always] tend to get when I am at a college audience or a law school audience, and I say “I know what you think, you first think that we just sit there and just pick out the cases we want to decide because it would be so interesting. And I explain how it works: “And you think what we really are, are junior-league politicians. That’s what you think. You may be too polite to say it, but that’s what you think.” And if I tell you that we are unanimous 50 percent of the time, you say, “oh but those are the technical matters, nobody cares. And you say, “it isn’t like that, it isn’t what it is like.” I am not going to go into it in-depth, but it isn’t what it’s like. I think if I had the time, I could persuade you that we are not junior league politicians, for better or for worse.
Rosen: There were two cases just this week where you and Justice Ginsburg were on opposite sides.
Breyer: Yup. It happens. It happens.
Rosen: An important affirmative action case and an important search and seizure case.
Breyer: And sometimes when we are on the same side, very often we are on the same side, it isn’t because we sit there and talk with each other. I mean we do talk to each other but I mean if you say, what are these differences? I think any judge in any court and it’s like interpreting a text, there are some words and some text, and they’re tough. If they weren’t tough to decide how they apply, why are they in our court? We are taking cases because the lower courts disagree, so it is in our court. And the words can go either way. And judges have the same basic tools whatever their philosophy. They are going to read the text. If it says “fish” it doesn’t mean a carrot. OK? You read the text. You look at the history.
You look at the tradition. Habeas corpus –there’s a huge tradition. You look at the purposes. People did have a reason from writing those words. With the Constitution it is the values that underlie the set of words. The Commerce Clause is not about free speech. The First Amendment is. But there are purposes and then there are consequences. And the consequences are valued in terms of the purposes. With the First Amendment you are interested in expression. You are not interested in privacy usually. So everybody has those tools. Text. History. Tradition. Precedent. Purpose. And consequences.
And some emphasize the first four, emphasized by Justice Scalia. And when we talk, I’ll say, “You are interested in history, text, precedent, tradition. Do you ever apply purpose and consequence? Of course he says no. And I say “no, hey, I found an article my law clerk did where you cited 15 cases where you did.” Of course. And I probably apply the latter two more often because I find it rarer that the first four will resolve the question. So I am more interested in the purposes of these words and the values that underlie this and what are the consequences of this decision viewed in terms of those values. Do I look at the first four? Of course, do I read the text? Certainly. History. Tradition. Precedent. Of course.
But in tough open questions I’m likely to find my answers in the last two, no guarantee. And the same is true of Justice Scalia, but he thinks more often you find the answers in those first four. You go look, if you want, at cases where we are on opposite sides, and I will bet you that a lot more is explained by that then what is explained by political differences.