U.S. Supreme Court Justice Stephen Breyer has sparred for years with Justice Antonin Scalia on the printed pages of legal opinions. The two have even debated about constitutional interpretation in public. And now Justice Breyer has taken his argument to the printed pages of a book written for popular consumption.
In his first interview about the new book, Breyer's targets are the ideas of originalism and textualism advocated by Scalia — the notion that the framers of the Constitution meant what they said and no more — and that the provisions of the Constitution are limited to what they covered back in 1789.
Scalia’s view is much more black and white. “The Constitution that I interpret and apply is not living, but dead,” he famously said. Scalia contends that the Constitution is not flexible and its meaning cannot change over time. To allow the Constitution's meaning to morph over time, he contends, just allows judges to say it means whatever they want it to say.
Not so, Breyer says.
“People think we decide things politically,” Breyer says, “or that the only way to protect against subjective views of judges is to have something called originalism, which is as if you could reach decisions by means of an historical computer. I don't think any of those things are true.”
The history chapters cover some of the court's most famous and infamous decisions: The court’s 1831 decision telling white Georgians that they could not simply kick the Cherokee Indians off land that was theirs by treaty with the U.S. government, and President Andrew Jackson’s action to not only disregard the decision but countermand it; the Dred Scott case, which upheld the constitutionality of slavery; the Little Rock school desegregation case in which the court's desegregation orders were enforced by federal troops; and the court's 1944 decision upholding the internment, in barb-wired camps, of all individuals of Japanese descent living on the West Coast — 120,000 people, 70,000 of whom were U.S. citizens.
Breyer, 72, was nominated to the court by President Clinton in 1994. He’s now fifth among the nine justices in length of service. He finds himself in dissent more and more these days on a court that is dominated by a new brand of conservative. But he is undaunted.Here is the Fresh Air interview with Justice Breyer.
It seems important to add that Justice Scalia is the longest serving member of the Court, that he resides in McLean, Virginia, and is a devout, traditionalist Catholic uncomfortable with the changes in the Church caused by Vatican II. Scalia prefers the Latin Mass and has driven long distances to parishes which he felt were more in accord with his beliefs.