Jeffrey Toobin, New Yorker, Stephen Breyer, Supreme Court, William Rehnquist

Justice Breyer at the New Yorker Festival: Some Highlights (Part 2)

stephen g breyer stephen breyer stop signs jeffrey toobin.jpg

Justice Stephen G. Breyer demonstrates his hidden talent for pantomime, as Jeffrey Toobin looks on admiringly. (Photo by Startraks.)
This is our final post about Justice Stephen Breyer’s recent appearance at the New Yorker Festival. Prior posts are available here, here, here, and here.
We highlight some of the more interesting or amusing remarks by Justice Breyer, after the jump.


Toobin began the interview by asking Justice Breyer about collegiality and the relationships between the justices. Justice Breyer described the Court as “a family,” and noted that there’s never any name-calling, even when discussions become heated. (Take note, Sixth and Ninth Circuits.)
Toobin asked Justice Breyer a question along these lines: “Do you get along with each other because you genuinely like each other — or because you have to?” Justice Breyer’s wittily ambiguous reply: “Ask your children!”
Justice Breyer mentioned that the late Chief Justice Rehnquist deserves much credit for fostering collegiality at the Court. WHR had two rules: (1) at Conference, nobody speaks twice until everyone has spoken once; and (2) “tomorrow is a new day,” i.e., the outcome of one case should not be tied in any way to the outcome of another. Each gets judged on its own merits; no horse trading.
Justice Breyer pointed out that collegiality has not always been present at the Supreme Court. Toobin agreed, relating the story that when Justice Douglas was injujred in a car accident, one quip heard around the Court was: “Where was Justice Frankfurter at the time?”
Justice Breyer on the amount of luck involved in making it onto a federal appeals court, and then the Supreme Court: “To be on the Supreme Court, you need lightning to strike — twice. In the same place. And that’s practically impossible.”
Toobin asked Justice Breyer about his experience clerking for Justice Arthur Goldberg in October Term 1964 (back when the justices only had two law clerks each). SGB said that Justice Goldberg was “great” and treated his law clerks very well.
When Toobin asked Justice Breyer about why Justice Goldberg left the Court, after only three years, to serve as United States Ambassador to the United Nations, SGB quipped: “I was his law clerk that last year. But I don’t think it was because of me!” He added that the decision was a long time in coming and that Justice Goldberg felt that he could make more of a difference in dealing with the problem of the disastrous Vietnam War by serving at the UN than on the Court.
Justice Breyer described the Court at the time of his clerkship as “a Court with a mission, and that mission grew out of Brown v. Board of Education.” The Warren Court saw its mission as making meaningful the constitutional promise of equal protection under the law.
On Bush v. Gore, Justice Breyer said: “Yes I was disappointed,” but then added, “I’m often disappointed.” With dry humor, he noted that “When I’m in the dissent, I prefer to be in the majority.” But he looked on the bright side of life: “What are you supposed to do, sit around and mope?”
This led SGB to utter the Understatement of the Year: “I have a very good job. It’s very interesting, with lots of opportunities.”
(We hear the job security is great. Quality support staff — they give new meaning to the term “clerk.” And how about the awesome retirement benefits?)
Justice Breyer spoke a fair amount about his judicial philosophy, as set forth in his new book, Active Liberty. The book and its ideas have been discussed at length elsewhere, including an interesting article by Toobin for the New Yorker; so we won’t go into it here.
Justice Breyer spoke about judicial independence and how lucky we are to live in a country with an independent judiciary. He spoke about a trip he took to Russia, which does not have such a tradition of judicial independence. He mentioned he was struck by how many women there were in the judiciary. “I thought to myself, wow, there are all these women judges — how progressive!” But then one of his hosts informed him: “Oh no, it’s a very badly paid job.”
Random other tidbits, revealed during the question-and-answer session with Justice Breyer:
–The justices are more technologically savvy than you might think. Justice John Paul Stevens, for example, uses email a lot.
–Justice Breyer reads The New Yorker and has seen The Simpsons.
(This was in response to a question by a young woman who described federal judges as the “rock stars” of the legal profession. We couldn’t agree more! She wanted to know more about what popular culture Justice Breyer exposes himself to, but Justice Breyer didn’t divulge very much and seemed uncomfortable with her question.)
–Justice Breyer’s favorite judicial writers: Benjamin Cardozo, who could use metaphors without taking them too far; Oliver Wendell Holmes, who had an unbelievable ability to compress; and Robert Jackson, who could write about the most boring cases with eloquence.
–During the Q-and-A, a self-identified gay lawyer and former federal law clerk gave a long, rambling, impassioned speech about gay marriage. It was one of those “questions” where the speaker goes on and on and then, when finally asked by the moderator if he has a question, says: “Well, what do you think about what I just said?”
–Justice Breyer responded to the gay marriage questioner with a hint of pique: “You’re asking me to answer something that you know very well I can’t answer, because it gets into detailed policy questions, rules, and regulations.” He did add, however, that when addressing highly charged issues, people need to think carefully about how to write and argue about them in a manner that will persuade the majority, the general public — not just those people who already agree with you.
–A woman begged Justice Breyer to opine on the merits of the “under God” Pledge of Allegiance issue, so she can explain it to her nine-year-old son. Her implicit message: Do it for the children! But SGB didn’t take the bait.
–On television cameras in the courtroom at the Supreme Court, Justice Breyer laid out the arguments for and against them, but didn’t stake out a clear position. When asked about Justice Souter’s comment that cameras would roll into the courtroom “over [his] dead body,” Justice Breyer said cheerfully: “He exaggerates!”
–On how often oral argument changes his vote in a case: “Five percent of the time would be too low, twenty percent of the time would be too high.”
–Justice Breyer concluded by discussing the role of the Supreme Court in our large, diverse, and democratic society. “Our Court is there to serve 300 million people. Who think 900 million things.”
So true. Let’s put up a McDonald’s-style sign in front of One First Street: “300 million served each year.”
That’s All Folks!
Earlier: Justice Breyer at the New Yorker Festival: Some Highlights (Part 1)
ATL to Justice Breyer: “What Kind of Tree Would You Be?”
A Bit More On Justice Breyer, and Judicial “Rock Stars”
A Quick Take on Justice Breyer’s Talk

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