Like others faced with complex decisions, a judge “never goes into anything with a blank slate,” said Breyer. “My job is to figure out a better answer. I’ll start by reading the question presented, and I’ll have an answer. But the point is, by the time I read the next brief, I am perfectly willing to change my view. I have nothing at stake in keeping to my original answer. Zero.”
In their private weekly conference, the justices offer their individual views on the cases before them, speaking in order of seniority and without interruption, he said. Their subsequent exchange is always civil, he added. “It’s not an effort to prove I’ve got a better argument than you. … If you listen to what the other person is saying and see where they’re coming from, then sometimes you will say something that they will see as a contribution to their thought and you, at that point, have a better chance of getting together on something.”
Breyer, who served on the First Circuit Court of Appeals prior to his 1994 nomination to the Supreme Court by President Clinton, dismissed the notion that the justices form coalitions based on ideology or politics. They all start their consideration of cases by examining the text of the constitutional or statutory provision at issue, he said. “The words are important. They exclude a lot of things.”
Beyond consideration of the text, he said, they consider the history of the statute or provision; the tradition that surrounds the words; precedent, which may or may not be dispositive; the purpose or value that underlies the words; and the possible consequences of a given decision. “All judges have these six legal tools,” said Breyer. “Some judges tend to emphasize the first four, and they think that by trying to avoid purpose and consequence they are more likely to be objective. Some judges emphasize the last two — I’m probably in that category — because they are afraid that the first four lead to a kind of frozen Constitution nobody would want if they had it.
“Which of those tools that you use does not make you a good judge, a bad judge, a better judge, or a worse judge,” he said. “It’s how you use them to apply to particular cases that matters.”
A plea for citizen engagement
Breyer, who has served as chief counsel to the Senate Judiciary Committee and as a member of the U.S. Sentencing Commission, said the Court’s need for public support is often in opposition with its duty. “There are a lot of things you can say that will get people’s support, but we have to get their support by telling them our whole job is to do things that, at least on some occasions, [they’re] going to hate!”
Breyer likened the work of the Supreme Court to that of a boundary patrol. “We’re patrolling the boundary to make sure these institutions fit within the constitutional framework,” he said. “Life at the boundary is not always so pleasant. It’s not always easy to say on which side of the boundary line lies abortion, on which side of the boundary is prayer in schools … [or] the Miranda warning. Those are much harder cases than you think … and people of good faith really disagree about it and have good legal arguments on both sides and genuinely think that the other side is seriously wrong. That’s where we operate. It’s hardly surprising that we’re not too popular.
“But between those boundaries is a vast, vast area where everybody — everybody — agrees,” said Breyer, who explored related themes in his 2005 book, Active Liberty: Interpreting Our Democratic Constitution. “It’s up to the people of the United States to decide, through their elected officials, what kind of communities they want.” Citizen participation in government and community life is essential for the democracy to work, he said.
“If you want none of it, I’m pretty certain that this document is not going to work, because the people who wrote it foresaw citizens that would participate. That’s why they gave them all that power.” Breyer said his forthcoming book also aims to help people better understand their role in American law and democracy. “You have to explain what it is and get people to understand it or they won’t be able to follow it,” he said. “It’s a country of 300 million people … and they all have to live together. And the law and the courts and your jobs are all part of that concept.”
Advice to a new nominee
Breyer said he will miss his “wonderful colleague,” Associate Justice John Paul Stevens, who will retire at the end of the current Court term. “He’s very intelligent, very learned in law and, I think, is a good example of how you work with law in order to get some kind of result that makes sense for the people the law applies to,” said Breyer. “That is not inconsistent with being a heck of a good lawyer!”
His advice to a nominee facing a Senate confirmation hearing mirrors that which he received when he faced his own, Breyer said. “Listen to the question. Answer it. In doing so, don’t try to make some clever point. … Think about what you’re going to say — they can’t make you speak immediately. … Eventually [the senators] will run out of questions and you will be confirmed.” His advice for a new arrival onto the Court? “Relax. It takes time.”
“Lives in the Law: Associate Justice Stephen G. Breyer” can be viewed online.