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25 October, 2006  
Justinian in New York - part one

Supremo moderate Justice Stephen Breyer took on all comers at a public forum earlier this month in New York. Everyone, from angry gays to those who want the Supreme Court to be accountable for the Iraq war, was on hand to toss Molotov cocktails at Hizonner. The aplomb with which it was all handled was impressive. Justinian was there with his notebook

imageHow many High Court judges could you count on seven fingers who have the panache, savoir faire and all-round wherewithal to appear before a packed public meeting and flawlessly handle an hour and a half of ticklish Q and A?

Michael Kirby is the closest we’ve got to a polished public rapper. Nino Scalia (pic), one of the US Supremes, is often on the podium dishing out some cut and thrust before he cuts and runs.

Justice Stephen Breyer, one of the moderates on the US Supreme Court, also ain’t afraid of a public joust and he appeared at The New Yorker Festival this month in a session conducted by legal journalist Jeffrey Toobin. Breyer is the rock star of the US judiciary and his appearance was bookended by standing ovations.

At times the questions were angry. For instance, a young gay chap, blazing with indignation, unloaded his frustrations about judicial resistance to gay marriage and before he could get to his tortured point Breyer cut him off at the pass: “You’re trying to get me to say things I can’t say.”

imageIn Lawrence v Texas the Supreme Court struck down a state law against sodomy. The law was aimed at everyone but only enforced against gays, never heterosexuals. The minority was protected by the court’s decision in Lawrence, nonetheless Breyer (snap) was conscious that the majority of people would disagree with the decision.

Judges are constantly exposed to every point view, but Breyer asks himself: how do you bring along the views of the majority to accept the protection of the minority in cases like this? That can frequently be a problem for the court and Breyer invited his questioner to think about that.

“The court serves 300 million people who think 900 million different things.”

Another citizen was on his feet to ask that as this president is in office because of a decision of the Supreme Court, is the court accountable for his actions? Doesn’t the court have a duty to be vigilant about the actions of this president?

Well, said Breyer, the court has a duty to be vigilant about the actions of all presidents. Of course, Bush v Gore was the elephant in the room and the judge introduced the pachyderm to the audience.

While people strongly agreed or disagreed with each side of the issue in that case, ultimately there were no guns, no riots and no paratroopers on the streets. The people followed the decision, which was “fabulous” (the acceptance, not the decision itself).

And despite the differences of view among the judges Breyer said he’d never heard any of them raise their voices in anger. “We have our discussion and after we have lunch.”

imageThe court is unanimous about 40 percent of the time and is split 5:4 about 20 to 25 percent of the time. Until this year there had been nine years of stability in the composition of the court, now William Renhquist (pic) and Sandra Day O’Connor have gone and John Roberts and Sam Alito have arrived.

“There’ll be a difference in personal dynamics, but we’ll get along,” Breyer said.

He was asked: “Do you get along because you have to?” To which he replied, “Ask your children [that question].”

He believes that Bill Rehnquist (CJ deceased) deserves a lot of the credit for the development of a cohesive court. It hadn’t always been an harmonious outfit but as CJ he put in place two rules.

First, during discussions about the cases no judge was allowed to speak twice before everyone has spoken once.

Secondly, tomorrow is a new day – which means that there is no attachment to old cases. This case does not depend on that case and just because you went that way one time you should not have to go the same way today.

There was discussion about “original intent” and what on earth it meant. This is the model insisted upon by Scalia and his faction, where constitutional interpretation is based on what is laid down in the text of the document and what it was supposed to mean at the time it was written.

Breyer thought that sounded all very fine, but what happens when the provision before the court is open and difficult to interpret? What if the original intent can’t be found?

He applies six tools of decision-making. Look at: the text, the history, the legal tradition, the precedent, the purpose or value of the provision, and the consequences that are relevant to the purpose or value.

According to Breyer, those six tools are available to every judge and every judge is going to use them all from time to time. It is just that the originalists try to keep away from values and purpose as much as possible because they involve too much subjectivity.

How frequently did he change his mind between reading or hearing the arguments and writing his judgment?

imageBreyer said he always had a view of the case after he read the opinion of the appeals court and the briefs of counsel. His clerks write a brief on the briefs, so by the time oral argument comes around a week or two later his views about the outcome have become more focused, but oral argument rarely succeeds in a switch of view.

Nonetheless, he said he is constantly holding himself out to himself to change his views.

A few days after the oral argument there is a judges’ conference, where views can and do change. But usually, Breyer says he comes out of the discussion with a view not radically different from the one he had when he went in.

Then he sits down at his word processor and writes the judgment from scratch. The clerks then redo it and he makes further changes. Opinions are circulated and there are further refinements.

Sometimes a judge may change his opinion at that late stage, but it doesn’t often happen. Maybe it occurs once a term. The usual position is that early on a judge has a view and while that view may shift around a bit, to say it really changes during the process five percent of the time is putting it too low, and to say it changes 20 percent of the time is putting it too high.

He added that in writing he finds it better to be dull than to use colourful metaphors that might mislead.

When Justice Breyer says he sits at a word processor to write his first draft, this is not usual. There are only three of the nine Supremos who are computer savvy. Stevens, Thomas and Breyer are the only ones that use email.

Yet he is still not sure about whether televising the proceedings of the Supreme Court is such a terrific idea. The argument is that if it were allowed it would encourage every court in the land to be on TV.

“It raises a big question mark,” and for one he was not prepared to take a risk that might hurt the institution.

Go slowly and try radio first, was his preferred position on broadcasting.

imageHe was asked if he hadn’t become a judge, what would he be? “On the breadline,” was his reply. His father, a lawyer for the San Francisco Schools Board, gave him sound advice: “Always stay on the payroll.”

While people attack the judiciary quite vehemently, judges should not be moved by the fact that they may have the least popular person in the land before them. But once judges are elected it is hard to stay unmoved.

We take independence for granted, but it is no easy thing. Years ago Breyer went to Russia on a judicial trip and was told about “telephone justice”. “What is telephone justice?” he asked. It’s when the person who loses rings the judge and tells him how he should have decided the case and how he got it wrong.

In the loneliness of the judge’s room, only they know if they are being true to themselves. The independence of the judge is largely a state of mind, and it takes a long time to develop. It’s hard to escape your background and who you are, he said. But you can, and you should, escape politics.

It was a pretty illuminating afternoon with Stephen Breyer at the New York Public Library and you too can go there by viewing the webcast.


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