Book Talk with SC Justice Stephen Breyer

Last week I attended an interesting Q&A event with Supreme Court Justice Stephen Breyer, moderated by NYTimes journalist Linda Greenhouse.  Justice Breyer is out with a new book, Making Our Democracy Work: A Judge's View, and the discussion loosely focused on the role courts play in facilitating a functioning democracy.  Justice Breyer is one of the court's more liberal judges, and his responses to questions both from Ms. Greenhouse and from the audience shed much light on his approach to law.

Much of the discussion focused on philosophies for interpreting legislation, because that's about 60% of a judge's job.  Justice Breyer's approach focuses on "purpose and consequences."  He believes in identifying the main purpose of a law, then applying it using today's standards, with much weight given to the practical consequences.  Values stay, but the way they are applied can change.  He contrasted this approach with a detail-obsessed, text-based historical analysis.  In his view a text-based historical approach limits too severely the ability of government to adapt to changing circumstances.  To illustrate his point, Justice Breyer used a great example of a law passed to protect specific endangered species.  If future information reveals that a species that wasn't on the original list is in fact endangered--and was the whole time--then the law should protect that species.  It's obvious the law was passed to protect endangered species, yet a detail-driven textual analysis would rule against protection.

Another reoccurring topic was the interaction between national security and the law.  According to Justice Breyer, the famous Korematsu case, where the Supreme Court sided 6-3 with the government over the constitutionality of Japanese internment during WWII, was one of the ugliest moments in U.S. legal history.  Although the courts must have a hands-off approach to security issues (they cannot run a war), their actions have massive implications: the president will either break the law too much (unnecessarily infringing on people's constitutional rights), or too little (unwisely endangering the security of the nation).  According to Justice Breyer, "The Constitution is not a suicide pact."  So what's the answer?  "Let them do it" Breyer states, "then punish them after."  But under no circumstances should the court rule the way it did in Korematsu, because that ruling "makes a precedent that lies there like a loaded gun."

Most interestingly, Justice Breyer refused to offer in-depth analyses of certain contemporary hot-button issues, such as the health care mandate and the Park51 mosque.  These issues may someday end up on his desk, and taking a strong opinion now, without proper research and information, is unwise.  "Beware of cocktail party conversation," Breyer quipped.

One issue that caused me to rethink an existing view was that of allowing television cameras inside the courtroom.  Previously I, along with many liberals, have advocated it as a way to help the public learn about the court and build its power.  "It is the weakest branch," Breyer admitted.  The problem with allowing cameras in is twofold.  First, some witnesses may be unwilling to testify for fear of retribution.  Secondly, oral arguments are only a tiny fraction of a supreme court case.  A case is mostly conducted in writing, and so to publicize the oral arguments so glamorously would terrible bias people's perception of the court.