The View from the Bench

U.S. Supreme Court Justice Stephen Breyer talks at Tufts about the philosophical differences on the court
Stephen Breyer at Tufts
“The job is very interesting and important and concerns the lives of people. You have to give what you have,” Stephen Breyer told a Tufts audience. Photo: Anna Miller
April 6, 2018

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While the U.S. Supreme Court is the most powerful court in the land, its purview as a federal court limits its impact on most Americans’ daily lives. That’s because “probably 90 percent of all law is state law,” U.S. Supreme Court Justice Stephen Breyer told students during a Tisch Distinguished Speakers lecture. “If you want to help your families and friends and make a difference in your communities, don’t you all run to Washington,” Breyer said. “You look to the states.”

Breyer, who had been chief judge of the U.S. Court of Appeals for the First Circuit and before that a professor at Harvard Law School and the Kennedy School of Government, was appointed associate justice of the Supreme Court by President Bill Clinton in 1994. He spoke at Tufts on April 4.

He said that in general many people don’t have a good idea of what the Supreme Court does, “and the newspapers don’t help.” For one thing, he noted, the Supreme Court doesn’t “fix the mistakes” of lower courts, or decide what’s good or bad for the country. Rather, it resolves questions of federal law that lower courts have disagreed on, and cases where someone claims a law is unconstitutional.

“It could be a very big-deal case in the newspapers, or it could be a more technical case,” Breyer said, recalling one that centered on a comma in the Internal Revenue Code. “I liked that case,” Breyer said, to laughter. “No one else did.”

Most of the job is reading and writing, said Breyer. As he told his teenage son, “If you do your homework really well, you can get a job where you do homework for the rest of your life.” Each week, justices read through stacks of cases flagged by their law clerks, which can be fifty or sixty pages each. “I don’t know why they call them briefs,” Breyer said.

It takes the agreement of four of the nine justices to take on a case, as they do for about eighty each year (out of some 8,000 submissions). Almost half the time, decisions are unanimous; one in five of the decisions are five-to-four splits.

Breyer and the late Justice Antonin Scalia were often on opposite sides of those close cases, he said. “He thought you could answer the more difficult questions by relying on the language, the history, the traditions and the precedents,” Breyer said. “I want to look at the purposes and the consequences.”

Their differences stemmed from their philosophies, he added, not from the fact that Scalia was appointed by a Republican president and Breyer by a Democratic one. “I think someone who says the Supreme Court is political, if they really mean that, is wrong,” Breyer said.

Asked to weigh in on gun control, Breyer refrained, beyond pointing to his dissenting opinion in District of Columbia v. Heller that the Second Amendment’s phrase “right to bear arms” didn’t prohibit a handgun ban like D.C.’s. “What is that right that might not be infringed? . . . What it consists of, in my mind at least, is not yet clear,” Breyer said.

Judges are prohibited from giving opinions on matters that aren’t before them, Breyer explained. “Think of the times you’ve been at a party and someone asks your opinion. Something about politics, or the government,” he said. “Now suppose you actually have to make a decision that makes a difference. At that point it’s different. It’s for real.”

Asked by a student what his legacy as a judge will be, Breyer suggested there’s no way for him to know. “It is other people—you and the generations following—who may find something useful in what a judge does—or may not,” Breyer said.

Here and now, at least, whether unanimously or on one side of a five-four split, Breyer continues to enjoy his job. “The job is very interesting and important and concerns the lives of people. You have to give what you have,” he said. “You just do your best.”

Monica Jimenez can be reached at monica.jimenez@tufts.edu.