Last week, I had a chance to hear Supreme Court Justice Stephen Breyer speak at the World Affairs Council of Philadelphia. Breyer came to discuss his most recent book, "Making Our Democracy Work: A Judge's View.
Breyer described his job this way to his son, "Being a Supreme Court Justice means doing homework for the rest of your life. It is reading and writing done in isolation. Each day, I am in front of a word processor."
He even read briefs for the cases that the court will hear in November on his way to Philadelphia by train. He joked, "Why are they called briefs since they are not brief. The average case has 12-15 amicus briefs; right to die cases have 80; affirmative action cases have 120."
In the book, Breyer criticizes the legal theory of originalism that is favored by Justice Scalia and other conservatives. While originalism believes that judicial decisions should be based on the original intent of the founding fathers, Breyer contends "Politics are not law. George Washington could not have imagined the internet. Historical values do not change but the circumstances do change. We now need computer experts not historians."
Legal differences aside, Breyer said, "Nino and I are good friends. We talk about everything like opera, baseball." The dissension on the court seems to be exaggerated. Breyer ticked off these statistics: "40% of all of the Supreme Court cases are unanimous. Only 20%-25% are 5 to 4."
According to Breyer, there is only one reason that the Supreme Court will decide to hear a case - "Whether or not, the lower court came to a different conclusion about the meaning of a federal statue. The Justices are hesitant to declare a law unconstitutional."
The judges use their "imagination" to understand how their ruling will affect a lot of people. They review a law by asking if it is "pragmatic, pertinent, workable, has purpose, and underlying reason for existence."
Breyer, who dissented from the majority, still thinks the court should not have heard Bush v Gore that installed Bush as President. "Elections are a state issue," asserted Breyer. He marveled that after the decision "the people followed the rule of law and no riots or deaths ensued after the decision. The Supreme Court is a national treasure."
Although he dissented, he defended the controversial Citizens United decision by invoking the 14th amendment. Breyer said, "The 14th amendment protects persons. Case law has deemed corporations individuals for 100 years now."
The easygoing, affable Breyer only became defensive when the subject of the death penalty was raised. "You have to understand that each death penalty case usually comes before the court three times. The average defendant is on death row for 15 years," said Breyer.
He continued, "The recanting of witnesses is often raised. That is not enough. It is necessary to have proof that someone else has had to pull the trigger. There would have to be something really wrong for the Supreme Court to hear anything significantly new that was not heard before by the lower courts. We are presented with roughly the same arguments, just at the last minute."
Breyer explained that the court can not rule on the death penalty itself or address the racial disparity of its imposition since "it is mostly imposed by state law, rarely federal law. Only the legislature can abolish the death penalty," said Breyer.
Citing the example of French President Mitterand, Breyer utilized his bully pulpit to urge the executive and legislative branches to abolish the death penalty in America. "Europe is against the death penalty now," he said. "In 1980, 2/3 of the French electorate supported the death penalty. Still Mitterand, in a television interview, came out against the death penalty. He immediately went up in the polls because he took a position of conscience. The same thing could happen here."
He doubts that abolition of the death penalty will happen. "Politicians were in the popular club in high school. They hold their finger up to the wind to measure popularity," opined Breyer. "Judges are terrible politicians."
An audience member asked him what his typical month looked like when the court was in session. Breyer answered "The first two weeks of each month from October to June, we listen to oral arguments. Tomorrow, I will talk to my law clerks about a tentative position on the cases that the court will hear in November. I read the average of twelve briefs on each case and assign each clerk three briefs to read. They answer the questions that I ask and ask their own questions."
He continued, "Next week, the judges will conference. The justices are not arguing or convincing you of their point of view instead we go back and forth on the legal reasoning that will be helpful in making a decision. Starting with Chief Justice Roberts, each judge speaks in order of seniority. Everyone has to speak once before someone can speak again."
Each judge can ask questions during the half hour of oral arguments before the court. The Chief Justice assigns someone to write the majority opinion. If Breyer is chosen to write the arguments, he and his his clerks work on it together. After it is written, the writer circulates it for signatures.
Off the court, Supreme Court Justices often entertains foreign dignitaries. The first question that supreme court justices from other lands ask is "why would anyone listen?" Breyer answers, "The word is mightier than the sword. We will follow the rule of law here."
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