“Arguments Are Cheap,” Says Justice Breyer

“Arguments are cheap. Briefs are filled with thousands. What matters is what grabs you.” Justice Breyer stopped by Wasserstein on October 1 for an hour of wry advice, reflection, and jokes.

Breyer began by discussing the mechanics of the Supreme Court’s work. “Most people think we get cases and say, ‘Let’s take this case. That would be fun.’” He insisted that the cert process is rigorous, noting that SCOTUS only reviews federal issues. Loosely quoting Taft, he said that “we are there to make uniform questions of federal law,” to resolve circuit splits. If four justices vote to grant cert, then it is granted. At the cert stage, Breyer relies on clerks, particularly in criminal matters. While a prisoner’s petition may appear to be “the writings of a lunatic,” the defendant may still have a valid claim. A sharp-eyed clerk can spot the legal argument.

After cert is granted, Breyer begins by reading the response briefs, “because it’s the same argument, more concise.” He noted that there are usually 10-12 briefs for a two-week session, and that the quality of the briefs, especially amicus briefs, can vary. He had special praise for the briefs in Grutter v. Bollinger, as well as “the copyright case,” presumably Golan v. Holder, 132 S.Ct. 873. After reading the briefs, he will tell a clerk to write a memo, adding any additional relevant arguments. He will meet briefly with his clerks to discuss the memo. Breyer writes two drafts of his opinions “from scratch.”

He acknowledged that the Supreme Court can err. “If they’re not right they’re not right.” He paused and intoned, “Nobody can be more than what we are.””

Expressing distaste for excessive judicial review, he said, “I would prefer that we don’t strike down so much, for reasons I’ve laid out, both specific and general.” Later, he added, “Judicial review is not a bad idea, but it is no guarantee. It will help assure these human rights and democratic forms of government take place even when unpopular.”

Voices are never raised in the Supreme Court conferences. “We state our views and listen to the other.” He advised young lawyers: “try to be calm or appear to be calm” to preserve the appearance of rationality.

Breyer described Bush v. Gore as unpopular, important, and wrong, noting that he wrote a dissent. But he claimed he agreed with Harry Reid (D-NV) in that the most remarkable thing about the case was that “nobody was killing each other, nobody was throwing bricks” because people had faith in the governmental system. He expressed impatience with protest-hungry young people who wished for violent responses to Bush v. Gore.

He described the importance of the rule of law in this way: “a rule of law is some kind of effort to prevent people in power from acting in an arbitrary fashion. Arbitrary, it means unreasonable; the arbitrary is an enemy of the rule of law. Arbitrary can also mean despotic or tyrannical.” He acknowledged that in times of crisis, the “President and Congress are trying to do a practical task of governing the country within the Constitution. So I am reluctant to get into things that I know nothing about. But am I going to permit Korematsu? No, I hope not.”

Breyer is not a total adherent to formalist separation of powers. He referenced Plaut v. Spendthrift Farms, Inc., 514 U.S. 211, a 1995 decision involving Congress’s power to reopen cases. “Some tort cases that were dead were going to be revived. We thought they shouldn’t be reviving it.” He recalled that Scalia, writing for the majority, quoted Robert Frost’s “Mending Wall” as a metaphor for the separation of powers: “Good fences make good neighbors.” He added, “But that wasn’t the poem. So I did ‘before I built a wall I’d ask to know/what I was walling in or walling out.’” In the poem, the belligerent neighbor says “Good fences make good neighbors,” but the poem’s speaker contemplates a less rigid coexistence.

On Presidents in wartime:

“I don’t think Presidents have thought much about the Constitution. His job is to save the country. Does that mean the court should uphold him?

Not necessarily.”

“Emergency and forget the law has never been our system.”

On statutory interpretation and teaching:

“When somebody responds to a question in class, listen and repeat it in its best light. That will produce a very good discussion.

Do that with a statute. Put it in its best light.

Don’t interpret a statute in its worst light so it will be unconstitutional.”

On appellate advocacy:

“If you appeal, it’s only going to be on a question of law. The lawyer thought the judge made a mistake. When a lawyer wins, what does he think about the judge?”

“He doesn’t think about the judge. He thinks that he’s a good lawyer.”

On law reviews:

“The Chief Justice will say, ‘We’re going to have a majority opinion, and we’ll let the law reviews figure it out.’ There’s a bit of that.”

On professional development:

“The law firms have always had the problem of making you practical.”

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Katherine is a 2L at Harvard. Litigation, intellectual property, crime, and privacy interest her. She has interned at the ACLU, the United States Attorney's Office (Criminal Division), the Exoneration Project, and the Small Claims Advisory Service. Her last name rhymes with "Tribeca." Contact her at kwalecka [at] jd15 [dot] law.harvard.edu.

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