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Justice Breyer: The Court, The Cases And Conflicts


In Making Our Democracy Work: A Judge's View, Supreme Court Justice Stephen Breyer outlines his ideas about the Constitution and about the way the United States legal system works.

Breyer, who was appointed to the Supreme Court by President Clinton in 1994, explains that he interprets the Constitution as a living document, in opposition to some of his colleagues -- including Justice Antonin Scalia -- who see it as a static and literal set of rules that do not change over time.

Breyer argues that the framers knew that the interpretation of the document would continue to change as America evolved -- and that members of the Supreme Court should apply the Constitution's values to modern circumstances.

"I think we're following an intention by people who wrote this document -- Madison, Adams, Washington, Hamilton. They had an idea that they were writing a constitution and in that constitution, they would create certain institutions ... to create basically democratic systems of government protecting basic liberty," he explains. "Much in the Constitution is written in a very general way. Words like 'freedom of speech' do not define themselves. Nor does the word 'liberty.' And what they intended with these very basic values, in a document, [was that they] would last for hundreds of years. So they had values that changed but little, while the application of those values changes as circumstances change."

Breyer tells Terry Gross that things are different now that he's not a junior justice. (Justices Samuel Alito, Sonia Sotomayor and Elena Kagan have since joined the court, meaning Breyer no longer has to open the door of the Supreme Court's conference room or fetch coffee.) And he explains how the justices debate the cases on their docket and details his approach to each case.

"When you're [on the Supreme Court] for a while, you create footsteps. You take approaches, and there's a need to be consistent with what you've said before," he says. "You don't want judges who feel they're jumping from one thing to another, in terms of their general philosophy or outlook. So what you do [with each case] is you sit down, you think about it and then you reach a decision."

Interview Highlights

On the lesson the Supreme Court learned from the Dred Scott case

"The worst case ever decided [was] where the Supreme Court said the descendant of a slave was not a citizen nor a person who could sue in the United States even if he became free -- that was a terrible decision. And the only justification I've ever heard for it was that Roger Taney, the chief justice, and the majority thought that by deciding that, they would avoid the Civil War. It happened the opposite way. They fed the flames of the Civil War. ... The lesson, in part, is that judges are not very good politicians. And if you want people to decide politically, you better let Congress decide. Not the judges -- we're in an institution that is to be there in order to protect people who might be very unpopular."

On the case District of Columbia v. Heller, which held that the Second Amendment protected an individual's right to possess a firearm for private use in a home in federal enclaves

"The majority thought that a well-regulated militia [was] necessary for the security of a free state. But that isn't the heart of the thing. The heart of the thing is the right of the people to keep and bear arms and that means to protect themselves from attack, even by burglars. The minority, of which I was one, looked back over the same history and they say, 'No. This was put here for a particular reason. What happened was that Madison and the others who wanted the Constitution faced opposition from states, and the states were afraid that Congress would call up state militias as part of the federal army and then disband them -- and the states would not be protected. ... Madison and Hamilton [had stated], 'We will write these words into the Constitution and they will protect the states' rights to have a militia.' Now the minority thought that was the basic value underlying these words so there was a disagreement. If, in fact, you accept the minority views -- look back at the words, look back at the language, look back with the history -- this does not have much to do with keeping a pistol on a table to protect yourself from a burglar. Now ... assume the majority is right, which I did not assume they were right, I don't believe they were right but I'll assume it for argument's sake. Still, on the assumption that they're right and this has something to do with keeping pistols next to your bedside, the question is: What does it have to do with it? The District of Columbia had passed a law which said you cannot have pistols in the District of Columbia. And the question would be: Is that law prohibited by the Second Amendment as the majority interprets it? And I thought, and the others in dissent thought, that the answer is the District of Columbia can pass such a law. Because it serves a very important objective: saving lives from burglars, from accidents, from suicide. And it is overwhelmingly important -- but you see, what we're trying to do there, is to work out: Is this kind of prohibition proportionate? Is it fair? Is it reasonable in light of the ends, the objectives and the values in the Constitution?"

On Supreme Court decisions

"Probably 30 to 40 percent of our decisions are unanimous. The 5-4 [votes] account for maybe 20, 25 percent. And it isn't always the same five and the same four. And so we discuss and it isn't always a sure thing."

On appointing judges because of their politics

"If presidents think they're going to get the decisions that favor them out of judges, sometimes they're right and sometimes they're wrong. But if what the president is trying to do is trying to appoint someone -- who in law, has a general view of the country and how law relates to people and what it's about that is closer to [that] president -- [and that person] will be more successful, perhaps -- but not completely successful always. ... There will be a diversity of ideas on those very basic jurisprudential or philosophical points on the court. This country is a country of 300 million people or more. And people think very different things and it isn't a bad thing that quite different, basic approaches are represented on that court."

On how the Supreme Court has changed since he was appointed in 1994

"It's gotten a little harder for me in some respects. The first few years, I was pretty nervous about whether I could do this job. Then you adjust to it. I think over time, I worked pretty well with some of the members there and I was quite often in the majority, and then Justice White said that, 'with every new member, it's a new court.' And we've had quite a few new members and the court's changed and people learn to work with each other again. I'm more in the dissent now. If you want a more precise statement, that's it."

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