Justice Stephen Breyer. Credit: Diego M. Radzinschi / NLJ

Just days before the appointment of a U.S. Supreme Court nominee, Justice Stephen Breyer urged the public to recall the numerous other turbulent times the high court and the federal government have faced.

Speaking on Saturday at the Aspen Institute in Colorado, Breyer declined to respond to questions about the court’s recent decisions or the prospect of a new justice replacing Anthony Kennedy.

But he rattled off the displacement of Cherokees to Oklahoma, Civil War Reconstruction and 80 years of legal segregation as examples of periods when the court intervened. “Our job on the Supreme Court then, and I think it’s just as now, when it’s best it comes in last. Because I can tell you, we are not great experts on all these different subjects.”

Joshua Johnson of NPR moderated the discussion and pressed him on whether the court tries to avoid 5-4 decisions by ruling narrowly in ways that don’t answer the key questions the public is concerned about, including political gerrymandering.

Breyer acknowledged the court has tried to decide cases by 6-3 or 7-2 votes.  “And you think ‘well, why is it so important to try to get more together?’ Think of what Earl Warren did to try to get nine people on that opinion, Brown v. Board of Education, ending segregation. He thought that was pretty important. And think of what happened after that. 1954, the opinion came down. And do you know what happened in 1955? That’s right, nothing.”

The justice repeated his oft-stated admiration for the collegiality of the court. “We’re all good friends. There is no personal hostility among the justices. None. None. There just isn’t. You can be at opposite ends as can be on an issue, and when you’re up there at lunch, fine.”

But Johnson asked dubiously, “It never got heated?”

“If I feel heated, and I might in some case,” Breyer said, “the thing for me to do is to sit there like this and in the evening I tell Joanna [Breyer] ‘I felt heated.’”

Breyer also said he has no thought-out agenda when he writes decisions or dissents. “You don’t plan out a general direction. That’s really not the job.”

But he did say he has something in mind when he writes dissents, such as the 33-page dissent in Jennings v. Rodriguez, an immigrant case decided this past term. “I’ve written, for example a long dissent on the question of whether certain immigrants should be given bail,” Breyer said. “Now, the court didn’t decide that, so if that comes back I’ll probably start anyway with what I’ve already written. And so naturally in that respect a particular case about a particular thing, you have a direction, but in general, the job is: you take the case.”

Breyer also put in a plug for a new book by UCLA Law School professor Adam Winkler. An audience member asked if the Constitution contemplated corporations as persons. Breyer sidestepped the issue itself, but replied that he had read a very interesting book” recently on that very topic. “If you get interested in that subject, which I am not sure you are, but if you are, read it. It’s a good book. I know it’s not satisfactory if I don’t answer things like that, but I just feel I can’t.” The book is titled “We the Corporations.”


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