If there is one man to dispel the notion of the Supreme Court as a rarefied ivory tower from which it hands down decisions to the rest of us, it is Justice Stephen Breyer. It goes without saying that he is extraordinarily intelligent and articulate, with a sweeping command of history, people and ideas. As a professor of law at Harvard Law School for 27 years and serving as an associate Supreme Court justice for 22 years, Breyer would seem on the surface to be the most intimidating of interviews imaginable. But imagine, too, a 78-year-old Supreme Court justice arriving to the interview in swimming shorts, fresh from a bike ride and a swim in the Big Wood River. Imagine a justice worried about sitting on the Sun Valley Inn deck chairs for fear his wet swimming trunks might ruin them. Maybe that’s the kind of thing that only happens in Sun Valley, but, still, it says something about the man.
Breyer clearly has plenty to do, yet he has found time while serving on the land’s highest court to write three books. His latest, which he discussed at this summer’s Sun Valley Writers’ Conference, is “The Court and the World.” In it he illustrates through cases that have come before the Court how the reality of global interconnectedness increasingly requires the Court to consider foreign laws and activities. These cases, Justice Breyer points out, come in the form of national security issues and petitions for writs of habeas corpus, international commerce disputes, and problems related to treaties and international organizations with binding agreements among member states.
Breyer explained that he writes books so that he can “…show people, not tell them, how the Court works over time, at least during my time,” he said. “It’s part of my job. Not everyone has to write; there are other ways of doing it. If you ask people in public life what is their most important job, it is to get the next generation to understand how our government works. The Court is a mystery to many. So, perhaps I can help people to understand it.”
For one, Breyer said the Court “…is much more mechanical than people think.” He described how the process begins with reading submitted briefs on the cases and memoranda that the justices ask their clerks to prepare—treatises on various issues they are concerned about. They hear oral arguments, though Breyer pointed out that that is a relatively small part of the process. Then the nine justices meet in conference privately—no one else is present but the judges. “It’s totally private. And people say what they really think,” Breyer said. They go around the table in order of seniority, beginning with the chief justice, and each justice states what he or she thinks about each case. The justices each have a book with the cases and they write down what the other justices say about the case. “No one speaks twice until everyone speaks once. And then there will be some back and forth,” Breyer said.
The justices will then take a vote and come to a temporary conclusion. “Half our cases are unanimous, probably 5-4 is 20 percent. It’s not the same five or same four, by any means,” Breyer explained. Then the Chief Justice will assign the writing of the majority opinion after each two-week oral session. That judge will work with his clerks to create a draft opinion that is then circulated among all of the judges. Judges will weigh in on certain points, ask for clarifications or additional points. “If I’m writing the opinion, for example, I’ll get suggestions, ‘why don’t you change this? I like that and if you change it this way I’ll join the opinion,” Breyer said. Those in the minority may also write a dissent and proceed in a similar fashion.
A thread throughout “The Court and the World” is the importance and challenge of understanding words. Breyer explained his task on the Court this way: “The job requires us to look at works on paper, sometimes the Constitution, sometimes statutes. And those words are in front of us and the question is what do they mean and how do they apply in the particular case because lower court judges, in similar cases, applying these same words have come to different conclusions.”
Breyer pointed out that in his analysis he will typically look at “text, history, precedent, tradition, purpose, and consequences.” But the understanding of the words is not something found in a dictionary. For example, he said, “Usually, the word ‘liberty’ is not a problem; that is, understanding the word. What is a problem is understanding the scope of the phrase that uses the word ‘liberty’ in the 14th Amendment (due process and equal protection of the law) … So you look at the history of the phrase, to the tradition, the context, purpose—somebody wrote those words, what was their intention? And consequences as viewed through the lens of their intentions.”
He noted that some judges, notably Judge Scalia (recently deceased), are hesitant to weigh purpose and intent of a given statute or Constitutional phrase. While there are many “originalist” judges in the judicial world, he described a back and forth he often had with Scalia. The latter held the position that if one delved into the purpose and intent of a given statute or phrase in the Constitution, he or she would open the door to the subjective views of judges. Breyer said he would counter Scalia, arguing that if he interpreted solely on the text, rulings would be too rigid. “This is a document that is supposed to affect how people live over a long period of time,” he said. “Really, it’s his (Scalia’s) view that he wants clear rules. And he will work pretty hard to get a clear, general rule. But I’ll say sometimes it’s dangerous to have a rule because situations come up that you never thought of and it will hit you in the face.”
In the end, Breyer said, it was really a difference in “temperament and degree. He’s more comfortable with rules … I’m more willing to live with a mess.” The two were on the bench together for 22 years and Breyer said he loved working with “Nino,” as he called him; they were good friends and he clearly enjoyed his time with him.
In a sense, that “mess” is the way we make decisions in this country. More than once in our conversation Breyer cited Tocqueville and how accurate he was in describing the way Americans solve problems, essentially through argument and trial and error. “We try out all kinds of things, then we scream at each other, then we try out some more things, maybe in an administrative rule, maybe in a state law, maybe in a federal law, or agreement. Then we change things. It’s a learning process, and we’d like to hope it works toward the better.“
Sometimes, though, the disputes do not get resolved through the process and they end up before Breyer and his colleagues. And normally, he said, “The Court works best when it comes in at the end of the process to say … not whether the solution is the best solution, but whether the solution is within the bounds that the Constitution sketches.
“Because that’s what the Constitution does, it’s a set of boundaries. It doesn’t tell people what to do. It tells them what are the limits on their deciding for themselves of what to do.”