U.S. Supreme Court Justice Stephen Breyer alternated between constitutional philosopher and wry comedian during his speech to a packed house of judges, law professors and law students at the University of Miami last week.
Breyer, 67, a 1994 Clinton appointee, is criss-crossing the country promoting his book, “Active Liberty: Interpreting Our Democratic Constitution” (Knopf). His book, which at times reads like a rebuttal to the originalist views of Justice Antonin Scalia, argues that the U.S. Constitution should be viewed in light of its larger goal of creating a participatory, democratic society. The Wall Street Journal quoted Republican U.S. Rep. Tom Feeney calling that “jurisprudential mysticism.”In his 40-minute talk, Breyer seemed to assume that his listeners were mostly Democrats when he said early on that they wouldn’t agree with him that the democratic process in the U.S. currently is working. But as proof that the process is working, he pointed to the vigorous public debate that has arisen over how new technology such as mobile phones and computers have impacted privacy. The American Civil Liberties Union and police chiefs speak up, articles and blog entries mushroom, rules are enacted and perhaps the issue eventually reaches the Supreme Court, he said. “We act best when we come last,” he said. That’s particularly true on technology issues, he quipped, because he finds it hard even to operate his “BlueBerry, or whatever.”Breyer only indirectly addressed the current Supreme Court confirmation battle over Judge Samuel Alito Jr. — and only in response to a question from the audience. Asked whether and how the Senate should change the way it handles the confirmation process, Breyer first said he wouldn’t comment, then said he could only speak about his own experience as a nominee. “The object is to answer the question and satisfy the senator that you answered it. They are reflecting what their constituents want to know about,” he said. The Senate has a right to carefully vet nominees for lifetime judicial appointments. If voters don’t like how senators conducted the confirmation process, he noted, they can vote them out of office.On the other hand, he said, he didn’t feel he had to answer every question because he wanted to be in a position that if he was confirmed, he would remain independent. Once appointed, he said, the public no longer controls what judges do.He then joked that asking judges how confirmation hearings should be conducted is like asking the chicken the best way to cook chicken a la king.The most passionate part of Breyer’s speech came when he described Americans’ deep public acceptance even of court decisions that they hate. That wasn’t always the case. He recalled how President Andrew Jackson defied the Supreme Court over an Indian territorial ruling in the 1830s, and how President Eisenhower had to call in federal troops to enforce a Supreme Court school desegregation order in the 1950s.In the wake of Bush v. Gore and other intensely controversial rulings, he said, “Where are the troops? No need, no need. No guns, no bullets. Think about that.”It took 200 years of U.S. history, and gradually, 300 million people have agreed that they will follow the law. That’s a national treasure, and everyone has to pass it on.”