Posted on 02/01/2006 4:49:33 PM PST by new yorker 77
Despite the U.S. Supreme Court's tilt to the right, liberal Justice Stephen Breyer remained optimistic about the court's role in applying the Constitution to today's society.
The U.S. Supreme Court is turning to the right -- or so it would seem with the Senate confirmation Tuesday of President Bush's latest conservative nominee, Samuel Alito.
But liberal Justice Stephen Breyer says he remains upbeat about the court's future -- despite Alito's replacement of moderate Justice Sandra Day O'Connor and the recent confirmation of John Roberts as chief justice.
''Justice Byron White often said to me that with each new appointment, it's a new court, because the dynamics change with the change of individuals,'' Breyer, 67, said during a wide-ranging interview Friday at the University of Miami School of Law, where the former Harvard law professor delivered a lecture and participated in a class on the Constitution.
''At the same time, people often don't understand how almost everything we decide is not really so much a function of individuals as it is a function of language, text, history, precedent and consequences,'' he said, noting that only about 20 percent of the high court's 80 cases heard every year end in 5-4 decisions, such as last June's split rulings over government displays of the Ten Commandments.
PERSONALITY FACTOR
''The cases people often read about are the high-visibility cases where the personality of the individual judge seems to make a big difference, but it makes less of a difference than they think,'' Breyer said.
In September, Breyer completed a book, Active Liberty: Interpreting Our Democratic Constitution, which promotes the theme that the constitutional framers created a set of legal principles meant to adapt to an evolving society -- one shaped by everyday people participating in their government, community and workplace.
In a recent New Yorker magazine article, legal writer Jeffrey Toobin noted that the justice's new book ``was inspired in part by Breyer's disdain for the method of constitutional interpretation championed by his principal ideological rivals on the court, Antonin Scalia and Clarence Thomas.''
OBJECTS TO `DISDAIN'
Asked if the word ''disdain'' was a little strong, Breyer said: ``Yes, because I don't disdain anyone. People have differences of view and differences of approach.''
Breyer was born and raised in San Francisco. His father was a longtime lawyer for the city's school system, and his mother volunteered with the Democratic Party and the League of Women Voters. After graduating from Stanford University, he went to Oxford University and then Harvard Law School.
He taught at Harvard for more than a dozen years and also served as chief counsel to the Senate Judiciary Committee, where he became close to Massachusetts Democratic Sen. Edward Kennedy.
That relationship led to his appointment to the 1st U.S. Circuit Court of Appeals in 1980 and to his nomination to the Supreme Court by President Clinton in 1994.
''I've been there for 11 ½ years, and we all get along well personally,'' said Breyer. ``We disagree on certain issues and we disagree strongly, but we resolve those issues through professional discussion. The great thing is, once a case is decided, for the nine of us it's on to the next case.''
One highly sensitive issue that is likely to be heard by the high court: the constitutionality of the Bush administration's domestic spying program in the aftermath of the Sept. 11, 2001, terrorist attacks.
SPY POLICY IN COURT
This month, two civil liberties groups filed separate lawsuits, charging that the government's interception of Americans' communications without court warrants is unconstitutional.
The groups argue that President Bush exceeded his power and broke eavesdropping laws when he authorized the program to track suspected members and supporters of al Qaeda in the United States.
The White House has strongly asserted that Bush acted legally.
Breyer declined to comment, but speaking generally, he said the Constitution's Fourth Amendment forbids unreasonable search and seizures.
''How do we interpret those words faced with special security needs?'' Breyer said. ''The country has made mistakes in the past,'' he continued. ``For example, the Japanese in World War II were taken out of their homes in California and moved to relocation camps. The Supreme Court upheld that as a wartime necessity, and most people today think that was a big error.''
FLORIDA RECOUNT
More recently, perhaps the Supreme Court's most controversial decision was its 5-4 ruling to stop the presidential election recount of Florida ballots in 2000.
The majority of justices believed Florida's lack of a uniform standard to determine voter intent on the presidential ballot was a violation of the equal protection clause of the 14th Amendment.
But the five justices ruled that time had run out for the Florida Supreme Court to come up with a uniform standard for the final presidential recount -- clinching George W. Bush's victory over Al Gore.
Breyer wrote in a dissenting opinion that the ``majority's . . . concern [about the lack of a uniform standard] does implicate principles of fundamental fairness.''
He nonetheless joined the minority justices, David Souter, John Paul Stevens and Ruth Bader Ginsburg, in urging the completion of Florida's recount.
''What it does today, the Court should have left undone,'' Breyer wrote on Dec. 12, 2000. ``I would repair the damage as best we now can, by permitting the Florida recount to continue under uniform standards.''
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© 2006 MiamiHerald.com and wire service sources. All Rights Reserved. http://www.miami.com
''How do we interpret those words faced with special security needs?'' Breyer said. ''The country has made mistakes in the past,'' he continued. ``For example, the Japanese in World War II were taken out of their homes in California and moved to relocation camps. The Supreme Court upheld that as a wartime necessity, and most people today think that was a big error.''
Get the message out.
The man is an intellectual midget.
I don`t remember,what was Breyers vote in the earlier decision that vacated the Florida courts original ruling.
The one that they reinstated with their last ruling deliberately thumbing their noses at the US Supreme Court.
Dear Justice Breyer.
Please retire.
Not a bad interview. Actually, the Court resembles nine one-man law firms.
Incidentally, Stephen Breyer and Ruth Ginsburg are personally friendly with Justice Antonin Scalia, in spite of their very differing philosophies.
Funny how he wants to interpret the 4th ammendment strictly but finds sodomy fairly leaping off the pages. That the government would want to intercept messages to and from islame-o fascists, citizens or not, gives him anguished pause but taking land from taxpayers for a public "purpose" not "use" as the actual words read is no biggie.
A**hole.
The damage Justice Breyer was done by your brethern in the democrat party. They sought to discard military votes, selectively recount chads in choice locations and run afoul of the Civil Rights Act at every step along the way.
And they did this with the blessing of the Floridas Kangaroo Court.
And Bush won every freaking time anyway, no matter how your brethern tried to cheat, lie and steal the election.
I think Breyer misunderestimates the depth of the feelings running in the under belly of this country and just how close we came to bad stuff happening.
The SCOTUS ruled 9-0.
As I scrolled back to the article to check Breyers age, I had to chuckle at how interested in the age of the liberal justices I am, I may have become just a little ghoulish on that matter.( Counting the days here, boss)
In less than two hours, and without the 20 day appeal window mandated by Florida law (10 days to each side).
Despite? DESPITE?
Who was the majority in Kelo? Liberal justices.
Who upheld the notion that the Commerce Clause allows the feds to regulate activities that involve neither interstate movement or commerce?
Liberal justices.
Who upheld McCain-Feingold, even though the First Amendment starts with "Congress shall pass no law?"
Liberal justices.
It seems to me that the rightward shift of the court bodes well for applying the Constitution as written. But that's not what liberals want.
I had a friend at the speach who said it was very interesting and a great deal was about how the court system and scotus work.
``For example, the Japanese in World War II were taken out of their homes in California and moved to relocation camps. The Supreme Court upheld that as a wartime necessity, and most people today think that was a big error.''
I wonder if he would have advised FDR against internment, had he been asked THEN, not TODAY?
Circumstances THEN were different than TODAY.
For example, THEN we didn't know if we would win or lose, defeat the enemy, or be defeated.
That is drastically different from an intellectual philosophical look back, knowing today the outcome.
My Mom lived in SoCal then, under blackout conditions at night, lest the Japs have lighted targets for expected bombing flights.
My Dad built an internment camp at Heart Mountain, WY and then landed and fought on Okinawa.
Neither of them had any philosophical difficulties. Unlike Breyer, they lived through it THEN, and fully supported it, based ON THE CONDITIONS THEN EXTANT.
For precisely those reasons, I truly hope this SC grants the President great latitude to protect our citizens.
Justice White retired from the Court in 1993 and Breyer joined it in 1994. One wonders when all these conversations between the two took place,
Interesting how wars work out isn't it.
BTW, that fellow's family owned land (in his name, of course, since he was a citizen and they weren't) that was seized for nonpayment of taxes and sold to a rich Democrat friend of FDR.
Funny how motives sometimes have nothing to do with the big events in our own lives.
I saw Breyer on Cspan a few weeks ago on booknotes. What came across was how lucky Breyer thought he was to be sitting on the SCOTUS. I was charmed by his humility. While I disagree with his rulings, he is a fascinating man with a brilliant intellect. He is more reflective and thoughtful than I would have thought, and I find it hard to hate him as easily as other liberals/rats.
In the 7-2 Bush v. Gore decision, Breyer was intellectually honest enough to agree and rule that what SCOFLA did was unconstitutional, as I recall.
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