Scalia v. Breyer

Having to work, I caught most of the discussion between Justices Scalia and Breyer held at my law school via C-SPAN (first on the web and then in the car), but I got to school in time to see the last bit from one of the multiple viewing rooms on campus.

As I was telling John, “I heart Scalia“. I was quite pleased when he referenced the Framers’ dim view of, “Continental powers who didn’t trust their subjects with arms,” as an example of why looking to foreign law was not necessarily a positive thing, even in 1789. He has a clarity of thought and delivery that was refreshing and insightful. Justice Breyer is also wicked smart, but in more of a gentle thinking out loud kind of way.

The event was highly entertaining, but it seemed as though the Justices were really talking past each other. Scalia was saying that foreign law citations should have no force in American Constitutional jurisprudence, whether one is an originalist or not. Breyer was saying that reading foreign opinions was helpful to understanding the law. They’re both right, but in the end I agree with Scalia’s conclusion of this exchange (from the Washington Post story):

“What does the opinion of a wise Zimbabwean judge . . . have to do with what Americans believe,” Scalia asked Breyer, “unless you think it has been given to the courts” to make moral judgments that properly should be left to elected representatives. “Well, it’s relevant in this way,” Breyer replied. “They are human beings there, just as they are here. You’re trying to get a picture of how other people have dealt with it.”

“Indulge your curiosity,” Scalia joked, “just don’t put it in your opinions.”

On the other hand, Breyer had the most stirring quote, a paraphrase of James Madison, saying the the American Constitution is, “a document of power granted by liberty, not liberty granted by power.” The original Madison is longer and less eloquent, but the sentiment is the same.

I recommend watching the whole thing, which can be found at C-SPAN’s website for the next 15 days or so.

There was a reception afterwards, but I had Constitutional Law class to go to (oh, the irony). I ran upstairs to get a soda before class. The soda machines are in an alcove behind the dining room (which had been screened off for the reception). As I was about to turn down the hallway to walk back to class, a Secret Service agent asked me to stand out of the hallway for a minute. I backed off and about 30 seconds later Dean Claudio Grossman, Justice Scalia, and Justice Breyer walked right in front of me, no more than five feet away. I got closer to the Justices by grabbing a soda than I likely would have in the press of the reception. More irony.

Yours truly,
Mr. X

…back to studying…

UPDATE: Professor Kenneth Anderson has posted an excellent analysis of the implications of Breyer’s position at his blog.

UPDATE: A full transcript has been posted on the WCL homepage.

0 thoughts on “Scalia v. Breyer”

  1. You heart Scalia?

    I don’t like either choice, but if I had to decide between going to foreign rulings for precedent, and going to Christian Coalition pamphlets for ideas, I’ll take the liberal globalist clusterfuck argument anyday.

    Scalia is erudite – most judicial bigwigs are. But he’s not a libertarian.

    If you’re simply saying that you enjoyed his argument, then please disregard my ball busting. 🙂 But I’d be careful about the “I heart Scalia” comments; a young, strapping fellow like yourself could find himself in a convalescent orgy / internship if he’s not careful… stranger things have happened in the District… 🙂

  2. It would have been more accurate to say, “I heart Scalia’s legal rhetoric skills and erudite arguments.”

    It would also have been annoyingly long-winded.

    Oh well. You’re correct, I don’t agree with Scalia on social mores, but I do agree that the law should be interpreted based primarily on the text, not what the judge “thinks is right,” because that leads to it mattering what a judge’s opinions on social mores are.

    More succinctly, if Scalia wasn’t an originalist, he’d scare me.

    Yours truly,
    Mr. X

    …still Libertarian…

  3. I just watched the discussion on C-Span. That was great to see. Well, see, I love Scalia and you could probably tell that I would from my blog. I also wrote down the quote of Breyers from Madison. Loved it. Your friend who is afraid of Christians sounds like me 20 yrs ago. She/he should lighten up. I’m not religious but the ‘born againers’ drove me nuts in the early 80’s. They’ve morphed into a reasonable group of evangelicals today. The Moral Majority isn’t running the show anymore. But conservatives like myself aren’t either. It’s the center right contrary to what the left says. I’m not always a pragmatists but sometimes you just have to go with the flow. The way I see it – if I can agree 75 to 80% with a politician, then that isn’t so bad.

  4. Toni,
    Can’t seem to find a link to your blog from your profile, but thank you for stopping by. I don’t think Jeremy’s afraid of Christians per se, but more of the Christian Coalition. Any group of zealots is scary, even more so if they’re pursuing an agenda you disagree with.

    Yours truly,
    Mr. X

    …catching up…

  5. I have been considering going into law school this fall. Do you have any advice to give to a potential newcomer in the legal field? I just want to make sure that I the right decision for myself and the legal field is feeling right.


  6. The best advice I can give someone considering law is to make sure that you really need a law degree to accomplish whatever your goal in life is. Law school is very expensive, practicing law is very stressful, and there are not very many jobs that pay well enough to pay off the debt.

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