The flag in the center of the New Haven Green remained at half-staff on Wednesday night. Inside the nearby Yale Law School building, U.S. Supreme Court Justice Stephen Breyer called for a moment of silence in the packed auditorium, in remembrance of Justice Antonin Scalia.
Breyer went on to describe Scalia, who died last week at the age of 79, as a “titan of law.” The Supreme Court “is going to be a grayer place without him,” Breyer told the gathering of law students, undergraduates, faculty members and curious members of the public.
Just five days after Scalia’s death, Breyer was the first justice to make a public appearance. He spoke at the 2016 Brennan Center Jorde Symposium about his new book “The Court and the World: American Law and the New Global Realities.” He was joined by Aharon Barak, former president of the Israeli Supreme Court, and Curtis Bradley, the William Van Alstyne Professor of Law and Professor of Public Policy Studies at Duke University.
Breyer declined to comment on the national debate regarding the timing of the appointment of Scalia’s successor: “I’m staying away from it,” Breyer said in response to questions on the topic. As for remembrances of Scalia, Breyer referred to his prepared statement issued after Scalia’s death, in which Breyer praised his colleague’s profound impact on the law as well as his “enthusiasms, his humor, his mental agility, his seriousness of purpose.”
In his introduction, Yale Law Dean Robert Post also remarked on the impact Scalia left on the court and on society, noting that he “was unmatched in giving juris credential to social movements.” Though Breyer is not a “popular constitutionalist” as Scalia was, he has been influential in teaching the public about the inner workings of the Supreme Court and constitutional law through his three books, Post remarked.
The latest publication discusses international influences on American law. Post said the point is that American legal thought cannot and should not be cut off from global legal influences.
Initially, Breyer spoke of cases that have come before the Supreme Court involving foreign detainees and he discussed the constitutionality of such detention practices by the United States during times of war. He went on to discuss a far more recent case involving the resale of imported textbooks by a college student who was later sued by the publishing company. The Supreme Court was charged with determining whether or not the student was allowed to purchase textbooks at a cheaper price from another country and reselling them to students in the U.S. Breyer said the case attracted a stack of briefs several feet high from lawyers from around the world. In short, he said, the decision the Supreme Court was charged with making could impact commerce across the globe.
He also pointed to legal issues involving the Internet as global matters that impact everyone. And then he spoke of an even more pressing global matter: terrorism.
Who should solve the world’s legal problems when courts around the world take on problems with an international scope? That responsibility cannot lie solely with the U.S. Supreme Court, and there is no “Supreme Court of the World,” Breyer said. “How will you solve the problems plaguing the whole world, and not just [address] terrorists?” Breyer asked the law students.
His book, he said, attempts to illustrate the relationship between the United States judicial system and the judicial systems beyond the country’s shores.
“People will see that there are really a couple of ways to resolve these problems in front of you and what I’m showing you are the efforts being made that allow us to do so under law,” Breyer said. “If we can’t resolve these problems under law, people will find other ways and those other ways are not nearly as attractive.”
He said it should be considered a fact that lawyers and judges need to look beyond America’s borders to address legal problems instead of there being disagreement among those with differing judicial personalities, philosophy or politics.
Barak, the former head of the Israeli Supreme Court, agreed. He said no Israeli judges would have felt the need to write a book like Breyer’s because they take it for granted that they must draw upon other countries’ laws when applicable, such as when adjudicating copyright lawsuits involving parties in separate countries.
“What’s the point?” Barak pointedly asked several times during his talk. The point, he said, is to break the “vicious circle” that has been created within the American legal world wherein lawyers, judges and professors fail to draw upon foreign law or study how other countries have reacted to similar legal issues. By more simply acknowledging that other approaches exist, “a new circle is formed,” Barak said.