Justice Breyer at JTS

January  28, 2012, New Jersey Jewish News

Andrew Silow-Carroll

Supreme Court Justice Stephen Breyer is the kind of teacher you wish you had for all your classes. Lively, avuncular, engaging, he can make a lot of constitutional legal theory go down easily in witty and enlightening chunks. He packed the Jewish Theological Seminary last night for a talk based on his latest book, Making Our Democracy Work, A Judge’s View. (I came an hour early and was still relegated to one of two overflow rooms. On the plus side, the video gave me a close-up view I wouldn’t have had in the main hall.)

The first half of the talk was his justification for the court’s role in American law-making. He spoke movingly of a few key moments when the court’s authority was challenged and even ignored, including by the federal government itself, as when Andrew Jackson ignored a court decision and drove the Cherokee nation out of Georgia. But Breyer finds the American story infinitely more inspiring than disheartening, Remembering how Ike sent members of  the 101st Airborne into Little Rock, Breyer said “I still get kind of a shiver” when he thinks about it.

The second half of the lecture, on the Constitution as a “flexible, living document,” was red meat for the rabbis and scholars at the Seminary and the Conservative movement, whose official history is called Tradition and Change. Clearly Breyer’s book is meant as a challenge to Scalia and the “originalists” on the Court. He understands their impulse to keep decisions free of judge’s subjective impulses. Breyer’s approach is not to ask what founding fathers would do in a particular case. Instead, he asks what values underlie the Constitution, and applies these to changing circumstances. Times may change, the law may change, but “you’re taking a value that doesn’t change.”

(That’s essentially the m.o. of the Conservative movement. I imagine, however, that there might have been some rabbinic firebrands in the room who are restless over the pace of change within their movement and impatient with Breyer’s somewhat deliberate approach to jurisprudence.)

If there was something missing from the evening it was any acknowledgement of Breyer’s own Judaism and how it may or may not have shaped his own legal thinking and career. Moderator Ariela Dubler of Columbia Law School didn’t bring this up in the short q and a that followed the talk.   

“Patriotism” has come to mean football-field size flags, Navy flyovers, and country-western songs, but I never felt as patriotic as I did in listening to Breyer. In a small aside he mentioned that he had recently hosted a delegation of law students from Tunisia, explaining to them how America came to respect and enforce even the court’s most unpopular decisions. (“You can turn on the television and see what’s happening in countries who decide their major problems in the streets and with guns,” he said.) Sometimes you need a reminder that for all the polarization and hard feeling in this country, there remains respect for the law.

New Jersey Jewish News, 2011