More Details From The Breyer Visit

In the aftermath of Justice Breyer’s talk at Alabama, I find myself discovering just how little news it takes to constitute “news.” Or perhaps just how much I missed when I didn’t write for my college daily. For example, Breyer compared deliberations under Rehnquist and Roberts. He described Roberts’ deliberations as a bit more informal, offering more opportunities for discussion. Interesting, I thought. Newsworthy, thought AP. There was other discussion of Breyer here . So here are some other things Breyer said during his trip to the University of Alabama. People can decide for themselves whether they are interesting, or simply expected.

Commenting on the professional Supreme Court bar: It is mostly a good thing, particularly given the constraints of one hour oral argument. (He’d prefer longer arguments.) In certain specialized areas – like bankruptcy – it is more helpful to have an expert in the field than an expert in Supreme Court argument. The worst thing, though, is when a high-powered attorney (like an elected official or senior partner) grabs the oral argument just for the sake of arguing before the Court, but fails to fully learn the case and prepare for argument.

Commenting on abortion and gay rights: These are very hard issues, and there is much to be said on both sides.

Commenting on his hobbies: Biking, movies, and reading.

Commenting on Jefferson’s suggestion of recurring revolution: Total disagreement. One of the best developments in America is people’s willingness to follow and enforce the law even when they disagree with it. This is a big step forward from the actions of Andrew Jackson in the aftermath of the Court’s decision in Worcester v. Georgia and Arkansas Governor Faubus in the aftermath of Brown v. Board. Despite what he sees as an erroneous decision in Bush v. Gore, Breyer is pleased by how the nation responded.

Commenting on recent unanimous decisions by the Court: Once people are on the Court together for a while, you start to know where everyone stands on issues. You just accept that there will be disagreement. Perhaps on a reconstituted Court there is more effort to find some common ground. But maybe it’s just that all the tough decisions get pushed to the end of the session as people look to see who they can convince to join them.

Commenting on the meaning of “per curiam” decisions: These decisions often suggest that the Supreme Court thinks the lower court just missed something. These sorts of lower court opinions may occur more often when matters are deferred to staff clerks who write with relatively less direction and supervision.

Commenting on Justice Thomas’s relative silence during argument: Thomas feels that time for argument is limited and most of his questions are ulitmately going to be addressed by someone. And he’s usually right. But don’t think his silence reflects any lack of preparation. He is as prepared as everyone else.

Hat tip: Howard Bashman and Orin Kerr

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3 Responses

  1. SCOTUSblog says:

    Blog Round-Up – Wednesday, March 8th

    On FAIR v. Rumsfeld: This week the Legal Affairs Debate Club asks, “Is FAIR v. Rumsfeld Bad for Free Speech?” Debating are Mark Moller, the editor-in-chief of the Cato Supreme Court Review and a co-author of Cato’s amicus brief in…

  2. Simon says:

    Kudos to Justice Breyer for standing up for Justice Thomas – not for the first time, either; I seem to recall Mark Tushnet reporting very positive words about Thomas from Breyer in A Court Divided.

  3. C says:

    Sounds like he recycled material from his recent visit to U of Chicago. I guess his visit to Ala. did not include an accompanying podcast??