December 17, 2004
Private: Two Constitutions: Scalia and Breyer Speak
by Shane Kelbley, editor at large
Last month, students at the University of Michigan Law School and Harvard University were given a rare window into the decision making processes of two judges on the nations' highest court.
At Harvard's Lowell lecture hall, Justice Stephen Breyer delivered remarks as part of the Tanner Lecture Series on Human Values, an annual event sponsored by the University of Utah at universities across the globe. At the University of Michigan Law School, Justice Scalia lectured before a large audience of law students, and later lead an upper level administrative law course and a first year constitutional law class.
The substance and tone of the Justices' remarks were as widely divergent as the judicial philosophies they espoused. Scalia, one of the most conservative members of the court, and perhaps also the most controversial of the justices, gave a speech punctuated by humorous asides and sometimes sarcastic responses (among these Scalia's admission that "I don't like sandal-wearing bearded weirdos . . who go around burning flags,"). Breyer, known as one of the more liberal justices, tends to be less public, and gave a more somber presentation. Despite their dissonant presentation styles, however, each offered significant insight on the philosophies that undergird their very different legal decisions.
Justice Breyer began his presentation by admitting that a Supreme Court justice faced with a full docket of constitutional questions "inevitably develops a view of the Constitution as a whole." His presentation focused on his own philosophy, which he identified as the "democratic nature" of the constitution. This democratic nature, he said, led him to believe that the framers of the document were primarily concerned with the principle of "active liberty," which relates to the ordinary citizen's right to direct participation in the actions of their government.
Justice Scalia's presentation focused on the ideas of "textualism" and "originalism," which puts an emphasis on the "plain meaning" of the language of the Constitution, as well as the intent of the authors at the time of writing. As he has in numerous other speaking events, Scalia stressed his opposition to the idea of the Constitution as a "living" document, subject to changing interpretations, saying at one point "the Constitution is not a living organism for Pete's sake . . . it's a legal document." These are not new issues for Scalia, who asserted his own judicial philosophy in a 1996 Tanner Lecture at Princeton University, and questioned the integrity of judges who, he asserted, decided cases by asking "what is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?"
It seems obvious that these philosophies are often at loggerheads, and nowhere is this more evident than in the court's recent affirmative action decision. Scalia, who dissented in the case, responded to questions about it by expressing continuing hostility to Michigan's affirmative action program, saying minorities "were not helped to be on too fast a track," and that affirmative action in the Law School's case "makes you feel good but doesn't help them." His philosophy compels him, he says, to find any state preference based on race unconstitutional, in strict conformity with the text of the Equal Protection Clause of the Constitution, which forbids any State to "deny to any person . . . the equal protection of the laws."
Breyer, who sided with the majority, also mentioned the affirmative action decision in his lecture, but, predictably, had a different take on it. Through the lens of his philosophy of "active liberty," he found it to be a prime example of a court seeking to implement the "democratic nature" of the Constitution. In Breyer's opinion, the court construed the Equal Protection Clause more narrowly than a textualist such as Scalia would, with the understanding that race-based policies designed to redress the historic mistreatment of minorities in America were not the same as invidious discrimination that the Clause was originally designed to combat.
In light of Chief Justice Rehnquist's current absence from the bench due to illness, these starkly contrasting judicial philosophies serve as a reminder of the great weight coming Supreme Court nominees will have on the important and controversial legal issues of our time.