To answer the contentious question of how a Supreme Court justice should apply the Constitution — a document more than two centuries old — in the modern era, Justice Stephen Breyer, before an overflowing crowd in a Yale Law School classroom yesterday, summoned the spirit of James Madison.
“James, when you wrote that document, did you have in mind a document that would actually work to produce a democratic society over a period of three or four or five hundred years, or did you want a document of pristine logic that would in fact not last all that long?” Breyer asked. “Did you want it to be workable or not?”
After a pause, the second-most junior member of the U.S. high court conveyed Madison’s answer.
“‘Workable,’ says James,” Breyer said, his voice rising. “‘Workable!’”
Throughout his 40-minute speech, the former Harvard law professor conveyed his pragmatic approach to constitutional interpretation. He outlined his judicial philosophy of looking to the spirit and purpose of the law in question and the likely outcome of a ruling rather than emphasizing only text, logic and precedent.
But aware, perhaps, of criticism he has received for his alleged activism, Breyer emphasized that he and his colleagues only resolve a narrow range of issues — those that fall within a narrow gray area of law — and stressed that in cases ranging from affirmative action to voting rights, he has tried to uphold the decisions of more democratic bodies than the court, such as Congress and local institutions. He characterized the nine Supreme Court justices as members of a proverbial “border patrol,” tackling the questions that are on the fence of democracy and recognizing that either side could be right or wrong.
Breyer, who recently took the rare step for a sitting justice of publishing a book on his judicial philosophy — “Active Liberty: Interpreting our Democratic Constitution” — said his primary audience is “10th-grade students” who believe that the Constitution is more about specific guarantees such as free speech than the larger theme of democracy.
“We’re working with a document that creates institutions for people to decide how they want to live their lives together in communities. That’s simply an abstract way to put something that’s obvious,” he said, referring to the understanding he said he gained after his 12 years on the high court. “That’s why it’s called a constitution. Now, to … have to tell that to people is unfortunate — to tell it is a privilege, indeed, a duty.”
According to Breyer, there are two prevailing interpretations of the 14th Amendment: the color-blind interpretation and the purpose-minded interpretation, with only the latter view allowing affirmative action.
“The color-blind view stipulates that if you have a state institution and it uses race as a criterion, whether it’s plus or minus, it’s out,” Breyer said, explaining the view of some of his conservative, and even moderate, colleagues. “If in fact you use it as a criterion, you’re violating the Constitution — there is no safe way to use it as a criterion. This view follows from a strict reading of the Constitution.”
Breyer, however, advocated the opposite, purposive view. In deciding affirmative-action cases in the past, he said, he looked to briefs from institutions ranging from IBM to the U.S. Army that warned that striking affirmative action could lead to predominantly white, male-dominated organizations.
“There’s a difference between positive and negative discrimination; there’s a difference between affirmative action and invidious discrimination,” Breyer said. “The reason there’s a legal difference is that it flows from a view of the 14th Amendment that says, ‘What’s it there for? What did these people have in mind? What were they trying to do?’ And they would have seen it … as trying to give a helping hand rather than a kick in the face.”
When Breyer completed his speech, which he delivered without notes and while making constant eye contact with audience members, an off-the-record question-and-answer session followed between students and the justice. Afterwards, law students said they debated aspects of Breyer’s message through the late hours of the evening.
Ravi Gupta LAW ’08, who discussed Breyer’s philosophy over sushi with fellow law students last night, said “most people came out with a positive opinion of Breyer,” but that debate did ensue as to “whether his theory of interpretation of the Constitution always winds up with his political instincts.”
Janet Noh ’09 said she would have liked Breyer to elaborate further on his definition of democracy.
“Breyer made a very powerful statement at the beginning of his conversation, [essentially] that democracy is the main heart of the Constitution,” said Noh, who heard about the event through the Yale Pre-Law Society. “I wish he could have talked more about what he thought the heart of democracy was, and how that differs from the concept of free speech and all the other rights.”
Casey Pitts LAW ’08, who ran the event — co-sponsored by Yale Law School’s liberal American Constitution Society and conservative Federalist Society chapters — said it was particularly easy to engage with Breyer given the recent publication of his book and the resulting organization of his thoughts. He also said Breyer’s presence made the event easier to plan, because he knew the justice would “fill the space … and really engage the audience.”
Yale Law School professor Paul Gewirtz introduced Breyer, calling him “a brilliant man.”
“I think of him as a passionate pragmatist — he approaches legal issues with intense conviction that the job of the judge is to solve problems in a way that is effective and practical,” Gewirtz said. “Common ground guides his work.”
The audience erupted into laughter several times, especially when Breyer joked that Harvard law students call Yale Law School by an acronym — “Youth Against Law and Education”— and, in referring to writing his book, said that he had to “put all this stuff in so [Yale law students] won’t think I’m a total idiot.”
Such self-depreciation, however, was in line with Breyer’s theme of constitutional and democratic accessibility for all as the ultimate ideal.
“I can’t tell you how to participate in public life, but I can tell you this: The people who wrote that document, they thought you’d participate — they wrote a document that leaves almost every decision up to us,” Breyer said in closing. “I’m just telling you if you don’t try to get involved, that document that I work with every day is not going to work. It’s not going to work.”