This afternoon, Justice Breyer gave the Albritton Lecture at the University of Alabama. His talk was uncontroversial, as he staked out all the positions one might expect. Citation of foreign law? If it’s helpful to read materials from other nations, why wouldn’t we? We aren’t bound by them. Kelo? Surprised by all the uproar since this seemed to have been the law since FDR. Being tagged as an activist? You’ve got the wrong Justice! Just take a look at that study by Gewirtz and Golder.
Breyer’s visit was still well worth the candle. We’ve had a string of Justices join us in Tuscaloosa, over the last few years, a happy side benefit to our Hugo Black Fellow Program. (Former Supreme Court clerks come and teach a light load for a year, giving them a chance to test out the job and write in relative peace.) They humanize the Court and make everyone feel a little better about the institution. Justice Thomas was immensely popular among students – as he is, apparently, among clerks. He spent time, lots and lots of it, answering student questions, shmoozing one-on-one. He managed to disarm even those folks who were prepared to loathe him.
Breyer had a different battle on his hands visiting the Heart of Dixie. Many students probably expected a liberal activist. (The opening question, asking him how he believed the Constitution protected property rights, gives you a sense of things. ) With his emphasis on the primacy of legislative decisionmaking – hardly a surprise from the author of Booker’s advisory sentencing guidelines opinion. – I suspect that many students found him remarkably unthreatening. They are correct. Those seeking a left-wing bogeyman on the Supreme Court will have to look elsewhere. To paraphrase Alex Kotlowitz, There Are No Liberals Here.