If you have yet to see it, the current issue of the Journal of Legal Education contains an interview Professor Alan Morrison did with Justice Stephen Breyer. The interview is from the January 7, 2016 annual meeting of the American Association of Law Schools. Here are a few excerpts from the transcript of that exchange.
- Morrison (three things I won’t ask): When I was told, Justice Breyer, that we were going to have this conversation I said there were three things we were not going to talk about: 1) cameras in the courtroom; 2) collegiality among the members of the Court; and 3) the presidential election. . . .
- Justice Breyer (On why he writes books): I was a professor for a long time. I wouldn’t have been in that job, and you wouldn’t be in your jobs unless you like explaining things to people. Isn’t that true? We learn things, and you like to explain them. We can’t control it if they want to benefit or not from what we explain—that’s their problem. But, my goodness, that’s what we do. So stop me before I write again! . . . . The best way for me to do it—as is often the best way for you to explain law in general to a rst-year class—is to take a subject and go through the whole thing. What you are doing in teaching that subject, you are really teaching something about law, you’re teaching something about American life, and you’re teaching something about how we live today, yesterday, tomorrow in this country. All right, I’ll try. And so I’ve written three books about the Court.
Alan Morrison (on the Steel Seizure Case): When you discuss the Youngstown case in your book, you spend a lot of time talking about the backstory. Do you think that law professors should spend more time talking about the backstory in cases when they’re trying to explain what the outcome is? . . . In a lot of other cases in the book, you talk about things that don’t readily appear in the opinion, or you’ve got to dig for them, and really did in influence the outcome. I’ve always thought that, for example, in Youngstown, the fact that Truman could have stopped the strike by letting the steel companies increase their prices the next day always had a bearing on the willingness of the Court to go along with Truman.
- Justice Breyer (response): Truman was told by his people in charge—Charlie Wilson, electric Charlie—he was told that if you do this and break your price controls, you will see prices going up all over America, and that’s going to create a pretty bad in ation, which we don’t want at the time of the Korean War. So yeah, maybe, maybe not. I mean, the story there to me shows there’s nothing obvious. Truman’s decision wasn’t that unreasonable, in my opinion. But the Court did think that. Now why tell the backstory? There, I think the backstory is important. Why is it important? There might not be an ERISA case, probably isn’t, but it probably is there. I think the truth of that area of the law was well said by Justice Jackson. He said—I’ve had to look up a few of these, as many of us have—he says, “When you look to see what the founders thought” (and I would add to that “what prior cases hold in this big area, security versus the inherent powers of the President”) “when you look to see what the President said, what the founders thought… it’s like Joseph interpreting the dreams of Pharaoh.” Yeah, that’s right. I mean, you try it. We had a case not too long ago that was something like that, that was the case of the President’s recess appointment power. What law is there on that? All I can say is, no matter how little you think there was, there was still less than that. . . .
- Morrison (on judicial interpretation): I’d like to talk about your approach to interpretation. [In your book] you say you use “text, history, precedent, purposes and values, and consequences.” Is there anything you don’t use?
- Justice Breyer (response): . . . Well, we’re a statutory court. We deal with statutes, and most courts do now. And we’re interpreting a text, we’re interpreting some words on a piece of paper. And there are, at least in our Court, several different interpretations that are pretty difficult to say which is which. We take cases where lower courts have come to different conclusions on the same matter of law. They’re good judges, but they’ve reached different conclusions as, in all likelihood, there are going to be different reasonable interpretations of those words. I do believe all judges—if you look into it, I think all judges do, in fact, use those six factors.The first thing they look to is the text. The text doesn’t always answer the problem; I think it usually doesn’t in our Court. But if the text says fish, that does not mean a carrot. A carrot is not a fish. The text does put limits on what you can say. And history, tradition—what’s res ipsa loquitur, I mean, what is habeas corpus? Indeed. And what was the history from which this statute emerged? Indeed. Precedent. Again, the precedent doesn’t answer the question, normally, because, if it did, why is this case here? Consequences, I think, are very important. Not any consequences in the world. I want to know purposes first. There was some human being who wrote those words. Why? What was the object? Given the statute, what was the object? Purposes. They always have a purpose, those words.
- Breyer (re interpretation: history & text vs purposes & consequences): . . . I think the differences between us within the Court, insofar as they’re general, are often a question of how much weight you tend, over time, to put on purposes and consequences compared with tradition, history, texts, and precedents. . . . There are risks on both sides, and there are arguments on both sides. And we’ll talk about it—it turns up, those differences will often turn up in individual cases, but I think those kinds of differences really play a much greater role in reaching di erent results than anything that would normally be called politics. . . .