Jeffrey Toobin, New Yorker, Stephen Breyer

A Quick Take on Justice Breyer's Talk

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We’re about to head to dinner, so we’ll write more about this later. For now, from Bryant Park — free wireless! — here’s a quick, rushed, half-baked commentary on Justice Stephen G. Breyer’s interview with Jeffrey Toobin at the New Yorker Festival.
It’s always thrilling to see a Supreme Court justice in the flesh. But, truth be told, we were a little disappointed (and not because SGB dodged our question during the Q-and-A with a rambling hypothetical about green roof tiles). On the whole, Justice Breyer was a bit too tame in his remarks to be a great interviewee.
It wasn’t Jeff Toobin’s fault; Toobin tried to bring Justice Breyer out of his shell (as he did with Edie Falco, who was a brilliant interviewee at last year’s Festival). But Justice Breyer was, on the whole, too restrained and insufficiently gossipy.
Justice Breyer was obviously precluded from talking about substantive legal issues (which several audience made futile attempts to get him to do). So he should have offered up lots of color and dish: harmless random details about life as a SCOTUS justice, tons of funny stories. Sadly, he didn’t do much of that; a little, but not enough.
What did he do? He offered up lots of vague generalities about the role of the courts in a democracy. If you’ve sat through one of Justice Breyer’s civics lectures on C-SPAN, or through the first week of a Con Law course, you’ve heard this all before. A telling refrain that preceded many of his remarks: “As I tell my students” (i.e., the elementary and high schoolers he gives civics lessons to).
The best interviewees are confessional. You feel like they’re at dinner with a close friend (the interviewer), and you’re a fly on the wall, hearing all sorts of juicy stuff you really shouldn’t be hearing. But everything Justice Breyer said today he could have said — and probably has already said — on C-SPAN, or in his book, Active Liberty.
You’re about to complain: “C’mon, how could you expect much fun? The man is a sitting Supreme Court justice, for crying out loud!”
Our response: There are ways to entertain, enrage, or engage your audience, even if you’re a federal judge, without violating ethical precepts. Every time Justice Scalia makes a public appearance, for example, there’s an article in the newspaper the next day about some fun, wacky, or thought-provoking remark he made.
Judge Alex Kozinski and Judge Richard Posner are the same way. They are colorful characters, prolific writers and public speakers. They make us laugh, and they make us think, but without crossing the line into impropriety.
Unfortunately, Justice Breyer shied too far away from that line in his appearance today. We’ll blog about the highlights of what he did say later (and don’t get us wrong; there were a number of funny moments and interesting anecdotes). But on the whole, for those of you who couldn’t get tickets (it sold out in three minutes), you didn’t miss as much as you might think.

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