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Justice Breyer on Koran Burning and Supreme Court Nominations

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When the two aged Jewish men, Larry King and Stephen Breyer, alter kockers of a sort, sat down to kibbitz Wednesday night on CNN it had all the makings of a public relations catastrophe for Gerald and Anna's son, Stephen, the lawyer, who also happens to be an associate justice of the United States Supreme Court.

Just a few days earlier, Justice Breyer had implausibly roiled Washington's sensitive court-watching community when he said, of the First Amendment and last week's Koran-burning controversy, and on Good Morning America no less:

"And you can say -- with the Internet, you can say this. You can't shout fire in a crowded theater. Holmes said it doesn't mean you can shout 'fire' in a crowded theater. Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death? It will be answered over time in a series of cases which force people to think carefully. That's the virtue of cases."

This non-answer answer -- which didn't say that the First Amendment protects Koran-burners from government sanction but didn't exactly say it doesn't, either -- was nonetheless read by some earnest Beltway-tea-leavers to mean that the justice was getting wobbly at his post as a defender of freedom of expression just when America needs him most. I read the GMA comments as far less grand or sinister. They were merely part of Justice Breyer's well-worn shtick as the former law professor who loves to ask questions and raise hypothetical scenarios upon which the rest of us are supposed to ponder and comment. Besides, even if the justice were trying to meaningfully stake out a position, what was the beef? He was essentially correct: there may indeed be a scenario in which the burning of a holy book violates the First Amendment.

So there was more at stake Wednesday for the justice (age 72) than just another book tour appearance as he began his primetime schmooze-fest with King (age 76). Was a sitting Supreme Court justice going to preemptively interject himself, and thus the Court, into the Great Koran Burning Debate of 2010? Had the Supreme Court behind our backs just gutted the First Amendment and sent Justice Breyer out to tell us? Of course not. Not only did Justice Breyer ease the fears of some First Amendmentistas he delivered one of the most insightful interviews about the Court and the role of judging I've ever witnessed.

First, the Koran issue. Sitting across the table from Larry, Justice Breyer said:
"Now, what we're saying is we protect expression that we hate. And protecting expression that we hate is not the only good thing in the world. But it is one good thing in the world. And when you have a country of 300 million different people who think different things, it is helpful. It is helpful to tell everyone, you can think what you want."
I don't necessarily see contradictions in the two statements. I see different points of a law school lecture. The GMA Breyer is in the midst of the lecture. He's raising questions, forcing thought, challenging assumptions. The Larry King Live Breyer is wrapping up that long lecture by summarizing the law's view. The First Amendment protects hateful expression. But like all other constitutional value judgments it is not absolute. It protects those who burn the American flag. But it won't protect every hateful expression all the time. That's been the general gist of First Amendment law for generations, has it not?

I was less moved by Justice Breyer's lovely words about hateful expression and more impressed by his candor about the role of deciding cases. King asked him: "This is hard to ask. Of course, I respect the court. Do you ever prejudge? Do you ever sit down and say, I know where I'm going with this?" To which Justice Breyer replied:
"Yes. A lot. But don't say you don't respect the Court because of that. Think of how you make decisions. Think of how you make decisions. Was is it to be open-minded? It isn't to be a blank slate. When you have to make decisions about your own family, when have to make decisions about your own job or whatever it is you're making decisions about the community, you start with something. But if your mind is open, you're open to being persuaded to the contrary. So how it really works? I have that little blue book. That blue book is the petitioner's brief. It's one side of the argument. I read the question -- I have a view by the time I finish the question. I read the book. Huh. Pretty good. Then I read the other side... What was I thinking?"
When I saw the justice utter these words I swear I saw at the same time in my mind's eye steam coming out of the ears of Judiciary Committee members like Sen. Jeff Sessions (R-Ala.), who would likely take over that committee should the Republicans take over the Senate next January following the November midterm elections. Prejudging cases? Really? Did Justice Breyer suddenly show the world the secret, inner-brain thought mechanism that makes so-called "judicial activism" tick? Not likely. He was just being open (and humble) about how judges actually judge. I suspect you'd get a remarkably similar answer from your local judge if you asked her the same question. Given how much the justice likes to talk, the answer would be probably be a little shorter, too.

Justice Breyer also told King and his audience what everyone in Washington knows but few ever talk about when it comes to Supreme Court nominations. Responding to a question about how he felt being new on the Court, Breyer recalled thinking:
"How do I know I can do this? How do I know I won't make a mistake? I will do my best, but there's no one to correct it necessarily. And be careful, and am I really, can I? Everyone knows -- everyone knows. Every single person on the Court knows that he or she was who was appointed, it could have been anyone of five or 10 or 15 or 20 other people, and just as qualified, when we're honest with ourselves, maybe more so. And from our point of view...a lottery wheel ended up on us. We know that."
In the past, I have criticized book-hawking public appearances from the justices because I believe it's hypocritical to block transparency at the Court (say, in the form of cameras) while taking advantage of free media exposure. I've also criticized some of the tactics employed by some of the justices on those book tours. I have no such criticism of what Justice Breyer did or said Wednesday night. Americans shouldn't pretend that its judges are automatons. Our judges shouldn't pretend they have achieved their status through some form of predestination. And Lord knows the nation's capital could use a lot more public candor and humility these days. Indeed, the only good thing missing from the Larry and Stevie show were the sour pickles, the corned beef sandwiches, and the black cherry soda.
Filed Under: Supreme Court, Law

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12 Comments

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ziegler21wp

Justice Breyer, You are a great American treasure.

September 18 2010 at 1:55 PM Report abuse -1 rate up rate down Reply
jklapper93

Wish I had caught the show. What Justice Breyer said needed to be, but SHOULD have been self evident. Unfortunately in our new extreme wing driven political system it is not. Think about it, if a judge at any level doesn't come into every case with some form of preconceived or call it foreknowledge of EVERY case before him/her, then why not have toddlers do the judging? Only the very, very young amongst us have NO basis from which to preconceive judgments.

September 18 2010 at 12:32 PM Report abuse +3 rate up rate down Reply

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