Stephen Breyer: The Mechanics of Justice

The austere atmosphere of the Supreme Court building made the welcome Associate Justice Stephen Breyer gave the Zuckerman Fellows seem especially warm. As we sat in rows in a large, dark, wood-paneled reception room, Breyer perched on the edge of a conference table before us and spoke with us about the Supreme Court’s work and the tools judges use to shape their opinions.

Breyer placed the work of the Supreme Court in the context of all cases heard nationwide each year. “City and state law, not federal law, governs most of what affects people on a daily basis,” he said, noting that “of the 10 million cases heard each year in every court in the country, only 80,000 are at the federal level.”

The Supreme Court, in turn, receives 8,000 requests, but takes only 80 cases. “How do we decide what to decide?” Breyer asked. “There’s an inherent bias against taking the case,” he said. “If it is important, it will come up again.”

Dispelling the notion of the Court as a place where lawyers display their best courtroom manner or Justices vie fiercely with each other, Breyer described a process founded upon careful questioning, wide-ranging reflection, and mutual respect. Oral argument, when the Court hears a case, “is a time for us to ask questions, not for the lawyers to make their case,” said Breyer. Then, in conference, where the Justices discuss each case, “we talk about what we are really thinking,” said Breyer. “It’s not a time to make arguments. I’ve never heard a voice raised in anger in conference,” he added.

Reflecting on the differences between Justices, Breyer said “Your experience shapes your view of the relationship between law and people—you cannot take who you are out of how you view the law.” He noted that while all judges use the same tools to assess cases, each emphasizes different ones. Breyer described these tools as “the text, history, tradition, precedent, purpose and values, and consequences.” Focusing for a moment on original intent and strict constitutional constructionism, he expressed some skepticism about how far this approach can go. “I am not a historian,” he commented. “I believe that in order to apply original intent, you need to have historical certainty, which is hard to achieve.”

Breyer concluded the visit with words of encouragement for the Zuckerman Fellows. “Unless you participate, the Constitution doesn’t work,” he said.

—Owen Andrews, Loren Gary, and Jeremy Haber