By Virginia Law Weekly Staff
Stephen G. Breyer, Associate Justice of the Supreme Court of the United States, paid a visit to the University of Virginia School of Law on Thursday, March 1. The visit marked the first audience granted by a justice of the Supreme Court during the academic tenure of any current UVa Law student. In two wide-ranging talks to students, Justice Breyer promoted his new book on the growing need to incorporate international law into American court decisions, “The Court and the World,” and expounded on various other areas of interest.
Justice Breyer began his visit with a talk to a small group of student leaders explaining the mechanics of the Supreme Court, and the importance of non-Supreme Court case law. “Ninety-five percent of cases happen in state court,” he said. “They are very important!”
Dean Risa Goluboff, who clerked for Justice Breyer during the 2001–2002 term, accompanied the justice throughout his visit and introduced him to the crowd gathered in Caplin Auditorium. "We are absolutely thrilled to be able to welcome Justice Breyer," she said. “Justice Breyer has led an extraordinary career spanning more than a half century in government—all three branches—and the academy.” She went on to say that, in her opinion, Breyer’s greatest qualities are his “brilliance, joy, and curiosity.”
After Dean Goluboff’s introduction, Justice Breyer began talking about his judicial philosophy, the history of the Supreme Court, and the nature of international law. Affectionately peppering in examples of what he assigns his clerks to do, Justice Breyer revealed a lighter side to the drab, black robes, laughing and reminiscing with “Risa” about difficult or funny cases and the unexpected tasks to which she was assigned as his law clerk. Describing the opinion-drafting process, Breyer described how he writes a draft, sends it to his law clerks for comments, and goes back and forth from there. “Once it took eight rounds of back-and-forth of different versions of an opinion and each time Justice Breyer would throw it out and write a completely new one,” Dean Goluboff laughed.
“What you see is what you get,” Breyer shrugged. “We write down our reasoning, unlike a member of the legislature, who votes on statutes and never gives us the reason behind it.” Famed as a judicial pragmatist, Breyer nonetheless expressed some trepidation at reading too far beyond a statute’s clear meaning. “I’m not going to take a statute that says ‘vegetable’ and say a fish is a vegetable. A fish is not a vegetable,” Justice Breyer chuckled.
After Justice Breyer explained that the justices gather in a secluded room to discuss and debate the cases after oral arguments, one student asked how the very different legal philosophers maintain order and friendship to boot. “You need to feel strongly, but not too much. The justice who you vehemently disagreed with on one case may be your greatest ally on another.” Breyer noted that “only 20 percent of our cases end in 5–4” highlighting the fact that even justices with deep ideological differences can agree on most of the cases they hear. The key? “Stay calm and try not to take it personally.” Another favorite tradition of the discussions is that “nobody speaks twice until everyone speaks once.”
Despite the sacred decorum, justices do have strong feelings about some of the cases they hear and the decisions that come down, such as the one heard by the Court only a few weeks prior to the talk. One student leader in the smaller gathering asked Justice Breyer why he read his dissent in the recent case Jennings v. Rodriguez from the bench. The justice replied, “Because it is important and I wanted everyone to pay attention. These are people in the United States who haven’t committed a crime and are not afforded so much as a bail hearing.” In a rare move at the Supreme Court, Breyer read from his thirty-three-page dissent from the bench, calling the Court’s 5–3 decision “legal fiction.” He went on to say, “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”1
A Virginia Law Weekly reporter asked how justices and their clerks go about breaking down and understanding complex scientific cases to render decisions. Justice Breyer joked that some of the most strident backlash he has received from his decisions is from patent lawyers, especially on their vitriolic patent-lawyer blogs. The fact of the matter, Justice Breyer explained, is that the members of the Court rely on amicus briefs and the lawyers themselves to clearly explain the issues. “A good lawyer can explain anything: Just break it down into its requisite parts.”
Growing more serious, Justice Breyer alluded to Camus’ The Plague as he wrapped up, instructing the students of the Law School that it was their duty to prevent the spread of evil and hate innate in humans. “The plague germ never dies,” he cautioned, telling audience members that the rule of law is “one of—not the only, but one of—the weapons against the plague.” On that happy note, Breyer concluded his talk and took questions from the student body.