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An elementary introduction to constitutional law, as well as some pointed questions about how the U.S. Supreme Court operates, came to Congress on Wednesday courtesy of two of the Court’s own justices. Justices Stephen Breyer and Antonin Scalia made a rare appearance before the Senate Judiciary Committee for a hearing billed as a learning opportunity for the public. It was the first time since 2007 that a sitting justice testified before the committee, though justices have appeared elsewhere in Congress for hearings about their budget or other matters. The scene featured a grab bag of topics — the U.S. government’s separation of powers, the size of the high court’s docket, the Constitution’s protection of women and the importance of legislative history while interpreting the meaning of a statute. Breyer and Scalia spoke extemporaneously, even in their opening remarks. And they answered almost all the senators’ questions, taking turns in their answers and making clear when they disagreed. One of the only questions they turned aside came when Sen. Charles Grassley (R-Iowa), the committee’s ranking Republican, asked Scalia about references to foreign law in the Court’s opinions. “I’m afraid we’re getting beyond what I planned to discuss with you,” Scalia told Grassley. “I have a view on that, and Justice Breyer probably has a different view, but I haven’t prepared any testimony on that and I’d rather pass.” Grassley quickly backed off, saying, “Let’s move on then,” but the justices otherwise relished the unique public back-and-forth with the notoriously partisan senators. In response to questions from Sen. Lindsey Graham (R-S.C.), Scalia bemoaned the quality of the federal judiciary compared with what it was years ago. He said that federal district judges should not be handling cases involving routine drug crimes, which he said belong in state courts, and he said the larger quantity of appellate judgeships has brought down the quality of those serving. “Federal judges ain’t what they used to be,” Scalia said. Sen. Herb Kohl (D-Wis.) questioned why the Supreme Court is taking fewer cases that it used to. “What goes through your minds collectively on which 1% you’re going to hear, and what do you say to the 99% who don’t get heard?” Kohl asked. Scalia deadpanned, “On the latter, you say, ‘Denied.’” The audience laughed, but Kohl pressed further, noting that the Court heard only 77 cases on the merits in its most recently completed term. “I will tell you I don’t think we can decide 150 well,” Scalia said, criticizing the quality of some old opinions. But he and Breyer said the decrease in cases has not been by design, and they speculated it may pick up again as questions about recently passed major legislation bubble up through the lower courts. “My guess is that, with a lag, that caseload will start coming up,” Breyer said. More than other senators, Sen. Dianne Feinstein (D-Calif.) took a confrontational approach with Scalia, her ideological opposite. She quoted from an interview Scalia gave in September 2010 in which he said the writers of the 14th Amendment did not intend for it to apply to gender discrimination. “So why doesn’t the 14th Amendment cover women?” Feinstein asked. Scalia tried to redirect Feinstein’s question, saying that the 14th Amendment doesn’t apply to private-sector discrimination at all, and Feinstein gave up the line of questioning. “Oh, I see. I see what you meant,” she said. Senators held the unusual hearing in the same room they use for Supreme Court confirmation hearings and other major events. Room 216 of the Hart Senate Office Building, which is across the street from the Court’s own home, has expanded seating for the media and the public. Almost every seat in the room was taken, many of them by law students, though that didn’t stop the justices and senators from reminiscing about long-ago popular culture. At one moment, Breyer, 73, referenced the 1950s television show “Sergeant Preston of the Yukon.” David Ingram can be contacted at [email protected].

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