Blogging, Books, Charles Fried, Constitutional Law, Free Speech, Gay Marriage, Neal Katyal, Politics, SCOTUS, Sentencing Law, Stephen Breyer, Supreme Court

The Breyer-Fried Discussion: Some Highlights (Part 2)

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This is a continuation of our prior post about an event we recently attended at Georgetown Law School, “On Liberty: A conversation between Justice Stephen Breyer and Professor Charles Fried.” For more background about the event, click here.
For the conclusion to our write-up, keep on reading. We bring you a “true confession” from Justice Breyer, as well as Professor Fried’s interesting views on gay marriage.
(Before returning to Harvard Law School, Professor Fried was a justice on the Supreme Judicial Court of Massachusetts, the state’s highest court. But he was back in academia when they decided the gay marriage case, Goodridge v. Department of Public Health.)
Our coverage continues, after the jump.


The moderator, Professor Neal Katyal (NK), poses a hypothetical to Justice Breyer (SGB) and Professor Fried (CF) about a law that would require the television networks to replace entertainment fare with political debates (as discussed here). SGB dodges the question humorously: “Let Professor Fried answer that one, because I don’t give advisory opinions.”
In answering the question, Professor Fried starts discussing free speech in broader terms. This leads him to talk about the blogosphere:

“Some of the most ill-equipped, ill-informed, hugely boring people manage to reach HUGE audiences [through blogging]. I envy them!”

Conversation turns to free speech, campaign finance law, and SGB’s concept of a “level playing field.” CF is not a fan:

“Leveling the playing field is another metaphor that makes me break out in hives. I don’t know what this level playing field is or how to make the playing field level. I would just as soon not have the government in the business of deciding what’s a level playing field.”

SGB invokes Alexis de Tocqueville’s concept of “clamor.” Before he does so, he makes a confession:

“A year ago, I read de Tocqueville. I used to say I RE-read de Tocqueville — but that was a lie.”

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Nice to know that even Supreme Court justices haven’t read books that everyone is supposed to have read.
(C’mon, Ruthie, ‘fess up — you never finished Moby Dick, did you?)
Next, on to school vouchers. CF supports them:

“Vouchers are a perfect example of solving, in the spirit of liberty, the inevitable need for regulation and redistribution [in society]…. Who is against school vouchers? Those who make their living by the government monopoly on education. And those who are obsessed with equality and can’t stand the notion that some are receiving a different education from others.”

But SGB has Establishment Clause concerns about vouchers. He notes that religion division can lead to conflict, and repeats his statement, from the Nino-Breyer Smackdown, that “the 17th century was REALLY terrible,” with people killing each other over religion. But this time he throws in a highbrow artistic reference: “Look at those pictures by Brueghel!”
No political or constitutional discussion today would be complete with a gay marriage thread. Professor Fried expresses an opinion that probably many Americans share:

“On grounds of liberty, it’s absolutely clear that same-sex couples shouldn’t… lack any privileges that opposite sex couples have. The place that I balk at is calling it ‘marriage.’ I’m inclined to think that the New Jersey Supreme Court got it right and my old court [the Massachusetts Supreme Judicial Court] didn’t.”

“It’s a matter of liberty to allow [same-sex] couples to enjoy [the same benefits as heterosexual ones]. Calling it ‘marriage’ is another matter. To the extent it’s something other than a collection of benefits, calling it ‘marriage’ represents a sign of society’s approval, society’s ‘coming to the party’ [in celebration of the union].”

“I’d come [to the party myself, but] I’d leave it to the peole to decide, democratically, whether society wants to come.”

Shortly thereafter, the question-and-answer session began.
(At this point in the discussion, we excused ourselves from the auditorium. We had to urinate so badly because we fortified ourselves with large quantities of coffee and water before the talk. Our bladder was so close to exploding that we could hear our heart beating — know what we mean? We knew it was a good time to step out, and that we wouldn’t miss much, when a “questioner” approached the microphone and began by saying, “I have a comment…”)
We’re back, and feeling much better. The sentencing guidelines are discussed. Justice Breyer, of course, played a major role in crafting the U.S. Sentencing Guidelines, as a commissioner on the U.S. Sentencing Commission. (He was a judge on the First Circuit at the time of his service on the Sentencing Commission.)
Professor Fried points this out:

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“I have very strong views on this [issue]. The operative sections of the federal sentencing guidelines were written on my dining room table — by Justice Breyer. And I successfully defended them in the Supreme Court [when I was Solicitor General].”

“Although I love individuality, I have no particular affection for judges playing out their peculiarities when sentencing people.”

So, to sum up, CF supports the guidelines because of the greater uniformity they introduce into criminal sentencing.
Justice Breyer picks up on the topic of the sentencing guidelines, and relates a funny story (which we’re paraphrasing; we didn’t catch the exact wording):

“I was at a dinner with some Eleventh Circuit judges, trying to explain what we did [in crafting the sentencing guidelines]. It was November 1987. In October 1987, there had been a huge stock market crash.”

“I’m chatting with an Eleventh Circuit judge. I mention that I worked on airline deregulation before taking the bench, and on the sentencing guidelines as a judge.”

“He says to me: ‘They didn’t just put you in charge of the stock market, did they?'”

Okay, perhaps you had to be there. But trust us, it was funny. Is it any surprise that, after the hilarious Justice Scalia, Justice Breyer is the second most-funny justice?
Earlier: The Breyer-Fried Discussion: Some Highlights (Part 1)
The Breyer-Fried Discussion: A Photo Essay
A Quick Note on the Breyer-Fried Discussion

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