It was 2 p.m. on Monday, just a few hours after the Supreme Court opened its new term. Sitting for an interview in his newly renovated chambers, Justice Stephen Breyer had a fire roaring in the fireplace and tea service at the ready.
The day had been historic. Justice Elena Kagan joined the Court, giving it three women for the first time. And for the first time since the 1975, John Paul Stevens wasn’t on the bench. But Breyer was guarded when asked about the day, offering only that “it was a nice day, nice to have new members, always sorry to lose our old members.”
Breyer wasn’t trying to be curt or unfriendly, but rather has learned the importance of staying on message – his message — during his current series of media interviews to promote his new book Making Our Democracy Work: A Judge’s View.
Early in the tour last month, Breyer was asked about a Florida preacher’s plan to burn the Quran – an off-message topic, for sure – and Breyer’s answer made unwanted headlines. He reviewed the history of incitement doctrine – including Holmes’ admonition about falsely shouting “fire” in a crowded theater — as well as the other side of the coin: Supreme Court precedents that give First Amendment protection to burning the American flag. But soon Breyer’s comments were portrayed as articulating something like a foreign “heckler’s veto” doctrine – suggesting that because people might riot in faraway places, burning a Quran in Florida should not be protected under the First Amendment.
“It was on the one hand and on the other hand. Some people didn’t pay attention to the other hand,” said Breyer. “I have to be honest: I have learned a lot from explaining and talking about the book in public fora, including television – which has done a good job, by the way… It’s a challenge.”
Breyer keeps at it with gusto anyway. He insists that the public needs to understand how the Supreme Court works, or eventually citizens will stop obeying its decisions. “It is difficult for an institution that can’t try to gain popularity to earn public respect. If the public lacks trust and respect for the Court, it will fail.”
But Breyer readily acknowledges that another reason – not the main reason — he wrote the book is to counter the concept of originalism. That’s the view espoused most of all by Justice Antonin Scalia that the Constitution is frozen in time, and its original words and meaning hold the answers even to the most modern disputes that the founders could not have imagined.
The approach Breyer advocates to interpreting the Constitution, he hopes, will serve as “an antidote to originalism,” which he says “is not, in my view, a workable approach.” In the book he attacks the Second Amendment decision in D.C. v. Heller, an originalist high-water mark, for basing its decision on “the facts and circumstances of eighteenth-century society.”
Instead, Breyer argues fervently for a “prudent and pragmatic” approach that takes into account other factors, including respect for other branches and institutions of government, as well as a balancing of interests like individual rights and national security. “I’m trying to give legs to that approach, but it’s not just a Fourth of July speech. If you follow those principles you will help other institutions, and taking them together you will have the Court producing a workable Constitution.” Breyer opens a copy of his book and points to a passage on page 216 that describes this approach to judging, though it adds that the principles “do not provide criteria for the evaluation of all cases.”
But can such a shaded, even malleable approach to the law stand up to the muscular appeal of bright lines and simple answers of originalism?
“I don’t like bright lines and simple answers,” Breyer answers sharply, then pulls back. “It’s not that I don’t like them, I just think that very often they don’t work… We’re not sages, we’re not seers, we’re fallible. You have to beware of trying to see too far into a future you don’t know.”
His more modest approach, Breyer asserts, also puts the judiciary in a less political light. “Judges are typically not good politicians,” said Breyer. “If the job were political, we’re the wrong ones to do it.”
Judges feel somewhat constrained in spreading the word about the enterprise of judging, so Breyer exhorts lawyers and bar associations to engage the public on the judiciary’s behalf. Sections of Breyer’s accessible book – explaining some of the best and worst decisions of the Court’s history and how the Court operates – could form the basis of that kind of educational campaign.
“Harry [Blackmun] once told me that people have an enormous thirst to learn about what the Court does. They want to know.” Breyer also applauds what more recent former colleagues are accomplishing. “The bottom line is what Sandra [Day O'Connor] is trying to do, what David [Souter] is trying to do. Let’s get out there and teach civics.” Even though the legal profession has its own blemishes, Breyer insists lawyers will only benefit if they get out and explain what they do. “The more they talk about the justice system and what they do, the better. In spite of its many flaws, it is pretty good.”
Breyer approaches the task as something of a happy warrior – a label that has been applied to Scalia as well. Breyer is content to put his message out there, and happy to celebrate the fact that Americans accept even the most wrong-headed Supreme Court decisions – like Bush v. Gore, in his view – without taking to the streets and killing each other.
Pointing to his book, Breyer says, “If people read this and read Justice Scalia, and they think that he’s right and I’m wrong? That doesn’t mean the book is a failure. They’ve taken in what I have to say. Every day is a fresh day.”
Tony Mauro can be contacted at email@example.com.