Justice Stephen Breyer

  • October 9, 2013
    Guest Post

    by Adam Lioz. Mr. Lioz is a lawyer and policy advocate who joined the Demos Democracy Program in November 2011. He focuses on litigation to enforce the National Voter Registration Act and end prison-based gerrymandering; and policy advocacy to promote political equality and democratic fairness through safeguarding the right to vote and curbing the influence of big money on the political process.

    Yesterday, in spite of official Washington being on lockdown, the Supreme Court heard oral argument on McCutcheon v. FEC – a case many are referring to as “Citizens United II.”

    The case is a challenge to the total cap on the amount that one wealthy donor can give to all federal candidates, parties, and PACs, known as “aggregate contribution limits.” 

    An Alabama coal industry executive named Shaun McCutcheon (joined by the RNC) thinks that the current $123,200 cap – more than twice what an average family makes in a year – is a burdensome restriction on his political participation.  So, he’s asking the Court to lift the cap, freeing him to kick in more than $3.5 million to Republican candidates and party committees.

    Senator Mitch McConnell, who proudly embraces his reputation as the “Darth Vader of campaign finance reform,” has asked the justices to go further by overturning key parts of the Court’s seminal campaign finance case and striking all contribution limits, including the cap on the amount an individual can give directly to any one candidate (currently $5,200 per election cycle). 

    What’s at stake in the case?  New research from Demos and U.S. PIRG projects that striking aggregate limits would bring more than $1 billion in additional “McCutcheon Money” through the 2020 election cycle, from just slightly more than 1,500 elite donors. 

    This is not a sea change in overall election spending, and much of this money may be shifted from Super PACs to candidates and parties. But, it will continue to shift the balance of power from average citizens to a tiny minority of wealthy donors. And, who are these wealthy donors?  In a nutshell, they don’t look like the rest of the country, but rather are avatars of what Public Campaign calls “Country Club Politics.”

  • October 6, 2011

    by Jeremy Leaming

    If only the populace had a better understanding of how the American government system is supposed to function, there would be a lot less complaining about inaction in Washington on a host of pressing national concerns, such as the expanding gap between the nation’s wealthiest and everyone else.

    In a Senate hearing two of the high court’s longest serving members, Justices Antonin Scalia and Stephen Breyer, attempted to educate the public on the structure of the federal government and the role the judiciary plays.

    The two justices hold different views on how to perform their jobs, which involves a heavy amount of constitutional interpretation. But during the event, those differences were only fleetingly touched upon by the justices. More often than not it appeared Breyer and Scalia were intent on showing Congress just how wonderfully a Republican-appointed justice and a Democratic-appointed justice can get along.

    Scalia, however, in his opening remarks loudly proclaimed that the other two branches of the government, legislative and executive, despite the appearances of constant rancor and little accomplishment, are performing just as the nation’s founders had planned.

    The country, Scalia said, needs to learn to love the dysfunction, “to learn to love the gridlock." It’s what the founders wanted. Such sentiment that the federal government is working when not working is popular with Tea Party activists and libertarians, but likely tiresome for large numbers of Americans who have seen nothing but dysfunction and gridlock on Capitol Hill. But again, Scalia faulted Americans for failing to appreciate the dysfunction, for “they don’t understand the genius of our Constitution.”

    He noted that’s why he does so much speaking to students about the Constitution, since “we are not teaching it very well.”

    Breyer, did not claim Americans should embrace gridlock, but he essentially agreed with Scalia that civics is poorly taught to the nation’s youngsters, noting retired Justice Sandra Day O’Connor’s ongoing work promoting civics education.

    Indeed the two justices rarely disagreed during the two-hour plus hearing. Instead the Atlantic’s Andrew Cohen pretty much nailed it, writing, “They came. They kibitzed. They tossed out fluffy platitudes about judicial restraint and constitutional boundaries.”   

    Near the end of the hearing Sen. Jeff Sessions tossed a rhetorical question to Scalia about how the Constitution should be interpreted.

    Moving into the subject, Scalia said that “the controversial nature of recent confirmation proceedings is attributable to some extent to the doctrine of the living Constitution, because when you indeed have a Supreme Court that believes that the Constitution means what it ought to mean in today’s times, it seems to me a very question for the Senate to ask, or for the president to ask when he selects the nominee, ‘what kind of a new Constitution would you write?’ You know, ‘Do you believe this new right is there or this old right isn’t there?’ That seems to me … It’s much less important whether the person is a good lawyer, whether the person has a judicial temperament, what’s most important is, ‘What kind of a new constitution are you gonna write?’ And that’s crazy; it’s like having a mini constitutional convention every time you select a new judge. So I’m hopeful the living constitution will die.”

    Breyer responded, saying he would like the senators to think of John Marshall’s famous words, "‘It is a Constitution that we are expounding.’ And he’s thinking that document has to last us for 200 years. And as I say, that doesn’t mean you change the words, but the hardest problem in real cases is that the words, ‘life,’ ‘liberty,’ or ‘property,’ do not explain themselves, ‘liberty.’ Nor does ‘the freedom of speech,’ say specifically what counts as ‘the freedom of speech.’"

    Applying the Constitution’s values to ever-changing situations, therefore, cannot be done by a computer. It calls for some human judgment, Breyer said. Watch video of the hearing below or by clicking here.

  • September 15, 2010

    The Constitution is written generally so its principles can be applicable for changing times, Justice Stephen Breyer tells National Public Radio (NPR).

    In his interview, which can be heard here, Breyer said, "I think we're following an intention by people who wrote this document - Madison, Adams, Washington, Hamilton. They had an idea that they were writing a constitution and in that constitution, they would create certain institutions ... to create basically democratic systems of government protecting basic liberty. Much in the Constitution is written in a very general way. Words like ‘freedom of speech' do not define themselves. Nor does the word ‘liberty.' And what they intended with these very basic values, in a document, [was that they] would last for hundreds of years. So they had values that changed but little, while the application of those values changes as circumstances change."

    In an interview with ABC's "Good Morning America," to discuss his new book, Making Our Democracy Work: A Judge's View, Breyer said he wasn't convinced that the First Amendment protected the right of a Florida pastor to burn Qurans (the pastor eventually cancelled his plans after weeks of growing media attention). Breyer, citing a 1919 Supreme Court opinion by Justice Oliver Wendell Holmes Jr., said, "Holmes said it [the First Amendment] doesn't mean you can shout ‘fire' in a crowded theater."

  • June 21, 2010
    The Supreme Court, voting 6-3, upheld a federal law that bars "material support" of groups the government deems are terrorist organizations.  The Associated Press reports that the majority opinion, written by Chief Justice John Roberts, finds that the government "may prohibit all forms for aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities." Roberts, joined by Justices John Paul Stevens, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, wrote that the "material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future." In Holder v. Humanitarian Law Project a group of individuals and nonprofit organizations, including the Los Angeles-based Humanitarian Law Project challenged the constitutionality of the material support provision. The groups sought to provide financial support and legal and political training to the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). Both of those groups had been designated by the State Department as foreign terrorist organizations. Roberts wrote that the government "has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens."

    The groups and individuals who wanted to provide financial support and training for peaceful political purposes to the PKK and LTTE argued that the material support law violated their free speech rights and association rights, and that the law is unconstitutionally vague.

    Justice Stephen Breyer lodged a dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Breyer read his dissent from the bench.

    Breyer wrote, "The plaintiffs, all United States citizens or associations, now seek an injunction and declaration providing that, without violating the statute, they can (1) ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes'; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey'; (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief'; and (4) ‘engage in political advocacy on behalf of Tamils who live in Sri Lanka.'"

    "All these actions," Breyer continued, "are of a kind that the First Amendment ordinarily protects."

    He continued, "In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in these activities. All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends. Even the subjects the plaintiffs wish to teach - using international law to resolve disputes peacefully or petitioning the United Nations, for instance - concern political speech."

    The opinion (pdf) is available here.

    During the 2010 ACS National Convention, expert panelists examined the material support law and its constitutional implications. Video of that panel, "Material Support Provisions and the First Amendment," is available here.

    The high court issued three other opinions today. For coverage of those opinions and other court action, see SCOTUSblog here.

  • November 11, 2009

    Adam Liptak revisits a recent discussion between Supreme Court Justices Stephen Breyer and Antonin Scalia, which included debate over methods of interpreting the Constitution. During an event at the University of Arizona, Scalia defended "originalism" as the proper way to interpret the Constitution and Breyer countered that the Constitution would likely prove useless in today's society if it were so rigidly interpreted. Liptak maintained in his article that the two "know how to get under each other's skin, and they punctuated their debate with exasperation, eye-rolling and venomous sarcasm." (C-SPAN has video of the debate here.)

    But what really irks Scalia and other supporters of his brand of originalism, is, Liptak reports, discussion of Brown v. Board of Education, the high court decision that concluded that school segregation violated the 14th Amendment. Brown, Liptak writes, is "hard to square with Justice Scalia's commitment to originalism, the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text." 

    Liptak continued:

    Brown presents originalists with a problem. The weight of the historical evidence is that the people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868 did not believe themselves to be doing away with segregated schools.

    Yet Brown is widely thought to be a moral triumph. A theory of constitutional interpretation that cannot account for Brown is suspect if not discredited.

    As Liptak reported, not too long into their discussion at the University of Arizona, Breyer prodded Scalia to square originalism with the outcome of Brown.

    "Where would you be with school desegregation?" Breyer asked Scalia.

    But Scalia, Liptak reports, failed to provide a direct answer and instead turned his attention to the earlier high court decision in Plessy v. Ferguson, saying he would have sided with the dissent in that case. The majority in Plessy ruled that legalized segregation did not violate the Constitution.

    Breyer maintains, as he did during the Arizona debate, that the words of the Constitution, if they are to have relevance today, cannot be interpreted in the framework of the 18th century. In a 2007 dissent in Parents Involved v. Seattle School District 1, Justice Breyer wrote:

    For much of this Nation's history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode separate buses, and studied in separate schools. In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality - not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

    In their book, Keeping Faith with the Constitution, published by ACS earlier this year, authors Goodwin Liu, Pamela Karlan and Christopher Schroeder write in Chapter Three:

    The unanimous Brown opinion authored by Chief Justice Earl Warren provides a rich account of constitutional interpretation and the meaning of equality as a constitutional value. What stands out in the Court's reading of the Fourteenth Amendment is its explicit rejection of originalism in favor of an interpretative approach sensitive to historical change and social context. Through Brown, we come to understand the constitutional equality not as an abstract formula or a narrow idea limited to by history, but as a moral principle that guides our public values and responds to the lived reality of contemporary social practices.

    See more from Keeping Faith here.