Breyer’s Warning in Scalia Lecture Worth Hearing, Even If You Disagree

By 
Richard Shugrue
The Daily Record

The annual Scalia Lecture at the Harvard Law School is mind-bending and provocative — like its namesake, the late Supreme Court Justice Antonin Scalia.

Started in 2013 by a gift from an anonymous donor three years before the death of the distinguished jurist, the series aims to explore the law, its history and interpretation through the eyes of history, philosophy, jurisprudence — indeed, a wide range of viewpoints. Past lecturers have included public intellectuals and judges such as Mary Ann Glendon, John Manning and Frank Easterbrook.

This year’s speaker was Justice Stephen Breyer, known as the leader of the “liberal wing” of the Supreme Court and its oldest member. His talk centered on the questions of the acceptance of Supreme Court rulings, despite the fact that citizens may disagree with the decisions. Above all, Breyer urged that the political arms of the government ought not to inject partisanship into the judiciary, lest the public’s confidence be eroded.

Yes, justices are appointed by presidents and confirmed or rejected by highly partisan legislators. But presidents are often disappointed by the independence of the appointees. One example of this, he reminded the audience, was Oliver Wendell Holms who flabbergasted President Theodore Roosevelt with his distinctly oppositive rulings on anti-trust matters.

Breyer’s view is that the court does its best to rule based on the law and not ideology rooted in politics, and he insisted this is true even in cases which scream “politics” such as Bush v. Gore.

He rejected efforts by people in his own party (Democratic) to add new members to the Court — as President Franklin Roosevelt tried to do in the late 1930s — to even out the current tilt to the right, by the addition of three Republicans by President Donald Trump.

Breyer is an idealist. Cynics (like me) may disagree, maintaining that the court has always been a highly political body. My “side” would say that justices such as Scalia, William O. Douglas and Clarence Thomas got on the court because they were safe bets for the presidents appointing them.

Now, some members of the court are highly visible proponents of political ideology. They don’t keep their politics quiet and tempt the listener to conclude that, of course, they are good Democrats or Republicans.

What is true is that most Americans respect and accept the rulings of the court in spite of the tempestuous rhetoric of politicians who hate certain decisions and revile the judiciary. What is true, also, is that Americans trust the hard work of judges and at least examine difficult rulings before opening their yaps in often anti-rule of law diatribes.

You can see the entirety of Justice Breyer’s presentation at youtu.be/bHxTQxDVTdU.

Determine for yourself whether you agree with him. At the very least, you will see and hear a beautiful talk designed to enlighten and provoke you. You may even be tempted to see all the lectures by very smart and entertaining speakers.

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.

Opinions expressed by columnists in The Daily Record are not necessarily those of its management or staff, and do not constitute an endorsement or recommendation. Any errors or omissions should be called to our attention so that they may be corrected. Contact us at news@omahadailyrecord.com.

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