April 21, 2021

Justice Breyer takes on the world

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Justice Stephen Breyer of the U.S. Supreme Court speaking during the Supreme Court budget hearing for the year 2012 before the House Approps Subcommittee on the Financial Services and General Government.  April 14, 2012.  Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

Justice Stephen Breyer of the U.S. Supreme Court speaking during the Supreme Court budget hearing for the year 2012 before the House Approps Subcommittee on the Financial Services and General Government. April 14, 2012. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

By Tony Mauro, The National Law Journal

The 77-year-old justice talks retirement, death penalty and his new book about foreign law.

U.S. Supreme Court Justice Stephen Breyer does not sound like he is retiring any time soon.

“I guess at some point I will retire. You want to know when. I don’t know. I will figure it out at some point,” the 77-year-old justice told The National Law Journal in an interview on Sept. 2.

Some commentators have urged Breyer and fellow liberal justice Ruth Bader Ginsburg to step down during Barack Obama’s presidency so they might be replaced by like-minded justices. But Breyer, asked if his retirement date will depend on who is president, said, “How do I know? Normally it is a personal decision … and I will make it personally at some point.” Cryptically he added, “As long as I am doing my job.”

Part of that job now is promoting and explaining his new book, “The Court and The World,” and the theme of global interdependence that he asserts has changed the Supreme Court and courts around the world. Writing the book, which will be published on Sept. 15, has given Breyer a new mission, which may in itself be a reason for extending his tenure. Breyer joined the court in 1994.

He is even going on Stephen Colbert’s new “Late Show” on CBS on Sept. 14 because, he said, he has been assured that Colbert is presiding over a “serious news show” and will be interested in what he has to say about foreign courts. “He wants to talk about it seriously,” Breyer said.

A decade ago, conservative members of Congress railed against the Supreme Court for citing foreign court rulings or norms in deciding U.S. cases. Breyer’s new book calls those attacks “beside the point,” because it is no longer possible to ignore what other courts around the world are saying.

“What I want to do in the book,” Breyer said in the NLJ interview, “is not just to refute somebody but to acquaint you and others—not just lawyers and judges but generally—with the nature of the actual problems that now take up maybe 15 or 20 percent of our docket, because they’ll show you how the world has changed.”

The book examines the range of cases in which the high court has looked beyond U.S. borders for insight on matters that include copyrights, antitrust, securities law and Guantánamo Bay.

Most of the cases brought by Guantánamo detainees were a defeat for executive power. Breyer highlights the admonition, in one of the cases, from his close friend retired Justice Sandra Day O’Connor, who said a state of war does not write “a blank check for the president.”

Breyer asked, rhetorically, “If it doesn’t, what kind of check does it write? If you write a blank check, you end up with Korematsu. On the other hand, if you say nothing special is going on, how is the court, or the president, or the Congress supposed to deal with real security problems?” Breyer was referring to the 1944 case, Korematsu v. United States, that upheld the internment of Japanese-Americans during World War II.

Cases that test the balance between civil liberties and national security “will not go away,” Breyer told the NLJ, one of several media outlets that spoke with the justice in advance of the publication of his book. “There are issues of privacy floating around. There are issues of all kinds of things, and the courts are sort of struggling with it.” By laying out the issues in language that nonlawyers can grasp, Breyer said, “This book in a sense is a kind of report from the front.”

Dramatic dissent

In the interview Breyer also responded to questions about the last term of the Supreme Court and his dramatic dissent in the death penalty case Glossip v. Gross. Breyer said the time has come again for the court to decide whether capital punishment has become so flawed and arbitrary that it should be found unconstitutional under the Eighth Amendment.

Breyer confirmed that he had written the dissent before the Glossip case arose. “I have been working on it for a while,” he said. “This case was there, and it seemed an appropriate place to say what I thought on the issue.”

The dissent, which Ginsburg joined, has already been cited in legal briefs. “When I write something and people find it useful, of course it is trite to say, but it is true, I am always pleased,” Breyer said.

Despite the especially vitriolic language and tone of court decisions last term, Breyer said he and his colleagues still get along. “You know, people write what they write. They think it out. They write it down. And they make an effort, they really make an effort, to keep personal relations good,” Breyer insisted.

Breyer often says he has never heard a raised voice at the justices’ private conference, and he told the NLJ nothing last term contradicted that statement. “That is true. People get on well personally.”

Breyer declined to comment on the presidential race, but the NLJ asked if he recalled Sen. Ted Cruz, R-Texas, from his days as a law clerk to then-Chief Justice William Rehnquist in 1996 and 1997.

“I don’t remember. I actually don’t,” Breyer replied, but added that he does recall Cruz as an advocate before the court both as Texas solicitor general and in private practice. “He was a perfectly good advocate.”

Term limits?

Asked about Cruz’s provocative proposal that justices should stand for retention elections, Breyer said he was not sure what Cruz meant. But Breyer did comment on proposals for term limits for justices, as he has in the past. “It seems to me that if you had a very long term for judges, including the justices of the Supreme Court, it is good from a personal point of view.” Breyer added: “You want a term that would be long enough that they wouldn’t be thinking about their next job.”

Breyer responded to another question about his own retirement plans—how he will decide when it is time to go.

“Ah. That is a good question,” he said. “How do you know? The others [justices] will let you know.” Light-heartedly he added, “Then what happens if [the justices go] gaga all at the same time? I don’t know.”

IMAGE: Justice Stephen Breyer on Capitol Hill in 2012.

Photo: Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

For more on this story go to: http://www.nationallawjournal.com/id=1202737064260/Justice-Breyer-Takes-On-The-World#ixzz3loq4yfgG


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