Justice Breyer’s Big Week

In SCOTUS news, this is Justice Breyer week.  Everywhere one looks, there he is—NPR, the Wall Street Journal, the New York Times, Colbert’s new late show.  The cerebral justice has a new book out, titled The Court and the World.  It is Breyer’s third book aimed at a general audience and he wants to talk about it.   Here is a brief roundup of Justice Breyer’s big week in the media.

Breyer published an op-ed in the Wall Street Journal titled “The Supreme Court in an Interdependent World,” in which he summarized the key points of his book.  Recent debates over Supreme Court citations to foreign law, he argues, is largely a distraction from the real issues involving the Court’s engagement with foreign law.  “Global interdependence increasingly is changing the work of the Supreme Court,” whether we like it or not.  Breyer concludes: “In the multipolar, mutually interdependent world, the best way to advance the values that the Founders set forth—democracy, human rights and widespread commerce—is to understand, to take account of, and sometimes to learn from, both legal and relevant nonlegal practices that take place beyond our shores.”

In the New York Times, Yale law professor John Fabian Witt wrote an appreciative review of Breyer’s “lucid” book.

Breyer contends that events in the world have effectively resolved the foreign law controversy. Playing the judge as enlightened modern technocrat, he offers a reasoned elaboration of the mounting costs that judicial isolationism would entail in our increasingly interconnected world. Globalization, he argues, has made engagement with foreign law and international affairs simply unavoidable.

“Breyer’s fiercest critics will most likely be unmollified,” Witt recognizes. “But democracy has never been a nativist straitjacket. Breyer’s book offers a powerful description of the price we would pay for allowing it to become one.”

NPR’s Nina Totenberg has an interview with Justice Breyer, which you can listen to here.  “There’s a tremendous thirst for knowledge about the court,” Breyer said in an interview with USA Today’s Richard Wolf.  His book “is not just for lawyers and judges,” Breyer explained.  “It is for people interested in how their lives are being changed by what’s happening in today’s world.”  

Tony Mauro interviewed the justice for the National Law Journal (story here; full interview here).  Breyer talked not only about his book but also about the previous term at the Court.  On his dissent in the lethal injection case, Glossip v. Gross, in which he gave a strong case for the unconstitutionality of the death penalty, Breyer explained:

I have been working on it for a while. This case was there and it seemed an appropriate place to say what I thought on the issue. I thought we should use that case, as I said in the opinion, to go into the basic problem here, which I thought was whether the death penalty itself is constitutional and I have my reasons.

In the Washington Post, Supreme Court reporter Robert Barnes interviewed Breyer.  On the controversy over looking to foreign law when interpreting the Constitution, Breyer noted the long history of U.S. judges looking abroad for guidance.  According to Breyer, the first time a citation to foreign law became a target for criticism was 1988, when Justice Scalia raised the issue in a dissent in a death penalty case.

For a profile in the New York Times, Adam Liptak interviewed Breyer in his home office in Cambridge (“cluttered and lived in, it bears signs of a restless intellect and a doting grandfather”).  “The world we’re operating in,” Breyer told Liptak, “is one in which by and large everyone believes you have to know something about what’s going on abroad.” Understanding legal practices outside the U.S., the Justice insists, “will help us think about our system.”  

And then there is the Colbert interview.  In his interview with Tony Mauro, Breyer explained his decision to go do the Colbert interview:

He has a serious news show. The publisher of this book is anxious, and I am not against, giving the book some publicity by talking seriously about it and he wants to talk about it seriously. Fine. I will do that for a couple of weeks and then I will go back to my regular job.

He is more interested in news. It is not a comedy show in particular. If he is interested in talking seriously about the book, fine. This is a serious news program actually. My publisher told me. I have not talked to him. I have just talked to the publisher, whom I trust.

If this is what Breyer expected, he was surely disappointed with his Colbert experience.

Colbert followed a very funny introduction, in which he noted that only 3% of Americans could identify Justice Breyer, with a light-hearted and not particularly substantive interview.  Colbert’s interview with “the man inside the muumuu” touched on, among other topics, cameras in the courtroom and the collegial relations among the justices.  One topic not discussed (at least not in the aired interview) was Breyer’s new book.  

In post-interview commentary, Matt Ford in the Atlantic described the interview as a “missed opportunity” for Breyer and Colbert to discuss more pressing legal issues.  In the Washington Post, Eric Wemple critiqued Breyer’s efforts to defend the Court’s refusal to allow video coverage of oral argument.

One imagines that after this week, Breyer will be happy to get back to his day job.

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