{"id":6733,"date":"2013-10-14T14:28:07","date_gmt":"2013-10-14T18:28:07","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=6733"},"modified":"2016-11-16T19:52:12","modified_gmt":"2016-11-17T00:52:12","slug":"arguments-are-cheap-says-justice-breyer","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/arguments-are-cheap-says-justice-breyer\/","title":{"rendered":"“Arguments Are Cheap,” Says Justice Breyer"},"content":{"rendered":"

\u201cArguments are cheap. Briefs are filled with thousands. What matters is what grabs you.\u201d Justice Breyer stopped by Wasserstein on October 1 for an hour<\/a> of wry advice, reflection, and jokes.<\/p>\n

Breyer began by discussing the mechanics of the Supreme Court\u2019s work. \u201cMost people think we get cases and say, \u2018Let\u2019s take this case. That would be fun.\u2019\u201d He insisted that the cert process is rigorous, noting that SCOTUS only reviews federal issues. Loosely quoting Taft, he said that \u201cwe are there to make uniform questions of federal law,\u201d to resolve circuit splits. If four justices vote to grant cert, then it is granted. At the cert stage, Breyer relies on clerks, particularly in criminal matters. While a prisoner\u2019s petition may appear to be \u201cthe writings of a lunatic,\u201d the defendant may still have a valid claim. A sharp-eyed clerk can spot the legal argument.<\/p>\n

After cert is granted, Breyer begins by reading the response briefs, \u201cbecause it\u2019s the same argument, more concise.\u201d He noted that there are usually 10-12 briefs for a two-week session, and that the quality of the briefs, especially amicus briefs, can vary. He had special praise for the briefs in Grutter v. Bollinger<\/em>, as well as \u201cthe copyright case,\u201d presumably Golan v. Holder<\/em>, 132 S.Ct. 873. After reading the briefs, he will tell a clerk to write a memo, adding any additional relevant arguments. He will meet briefly with his clerks to discuss the memo. Breyer writes two drafts of his opinions \u201cfrom scratch.\u201d<\/p>\n

He acknowledged that the Supreme Court can err. \u201cIf they\u2019re not right they\u2019re not right.\u201d He paused and intoned, \u201cNobody can be more than what we are.\u201d\u201d<\/p>\n

Expressing distaste for excessive judicial review, he said, \u201cI would prefer that we don\u2019t strike down so much, for reasons I\u2019ve laid out, both specific and general.\u201d Later, he added, \u201cJudicial review is not a bad idea, but it is no guarantee. It will help assure these human rights and democratic forms of government take place even when unpopular.\u201d<\/p>\n

Voices are never raised in the Supreme Court conferences. \u201cWe state our views and listen to the other.\u201d He advised young lawyers: \u201ctry to be calm or appear to be calm\u201d to preserve the appearance of rationality.<\/p>\n

Breyer described Bush v. Gore<\/em> as unpopular, important, and wrong, noting that he wrote a dissent. But he claimed he agreed with Harry Reid (D-NV) in that the most remarkable thing about the case was that \u201cnobody was killing each other, nobody was throwing bricks\u201d because people had faith in the governmental system. He expressed impatience with protest-hungry young people who wished for violent responses to Bush v. Gore<\/em>.<\/p>\n

He described the importance of the rule of law in this way: \u201ca rule of law is some kind of effort to prevent people in power from acting in an arbitrary fashion. Arbitrary, it means unreasonable; the arbitrary is an enemy of the rule of law. Arbitrary can also mean despotic or tyrannical.\u201d He acknowledged that in times of crisis, the \u201cPresident and Congress are trying to do a practical task of governing the country within the Constitution. So I am reluctant to get into things that I know nothing about. But am I going to permit Korematsu<\/em>? No, I hope not.\u201d<\/p>\n

Breyer is not a total adherent to formalist separation of powers. He referenced Plaut v. Spendthrift Farms<\/em>, Inc., 514 U.S. 211, a 1995 decision involving Congress\u2019s power to reopen cases. \u201cSome tort cases that were dead were going to be revived. We thought they shouldn\u2019t be reviving it.\u201d He recalled that Scalia, writing for the majority, quoted Robert Frost\u2019s \u201cMending<\/a> Wall\u201d as a metaphor for the separation of powers: \u201cGood fences make good neighbors.\u201d He added, \u201cBut that wasn\u2019t the poem. So I did \u2018before I built a wall I\u2019d ask to know\/what I was walling in or walling out.\u2019\u201d In the poem, the belligerent neighbor says \u201cGood fences make good neighbors,\u201d but the poem\u2019s speaker contemplates a less rigid coexistence.<\/p>\n

On Presidents in wartime:<\/strong><\/p>\n

\u201cI don\u2019t think Presidents have thought much about the Constitution. His job is to save the country. Does that mean the court should uphold him?<\/p>\n

Not necessarily.\u201d<\/p>\n

\u201cEmergency and forget the law has never been our system.\u201d<\/p>\n

On statutory interpretation and teaching:<\/strong><\/p>\n

<\/strong>\u201cWhen somebody responds to a question in class, listen and repeat it in its best light. That will produce a very good discussion.<\/p>\n

Do that with a statute. Put it in its best light.<\/p>\n

Don\u2019t interpret a statute in its worst light so it will be unconstitutional.\u201d<\/p>\n

On appellate advocacy:<\/strong><\/p>\n

\u201cIf you appeal, it\u2019s only going to be on a question of law. The lawyer thought the judge made a mistake. When a lawyer wins, what does he think about the judge?\u201d<\/p>\n

\u201cHe doesn\u2019t think about the judge. He thinks that he\u2019s a good lawyer.\u201d<\/p>\n

On law reviews:<\/strong><\/p>\n

\u201cThe Chief Justice will say, \u2018We\u2019re going to have a majority opinion, and we\u2019ll let the law reviews figure it out.\u2019 There\u2019s a bit of that.\u201d<\/p>\n

On professional development:<\/strong><\/p>\n

\u201cThe law firms have always had the problem of making you practical.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cArguments are cheap. Briefs are filled with thousands. What matters is what grabs you.\u201d Justice Breyer stopped by Wasserstein on […]<\/p>\n","protected":false},"author":79,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":true,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,44,47],"tags":[532],"coauthors":[713],"class_list":["post-6733","post","type-post","status-publish","format-standard","hentry","category-amicus","category-courts","category-events","tag-supreme-court"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZrWS-1KB","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/6733","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/users\/79"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/comments?post=6733"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/6733\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media?parent=6733"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/categories?post=6733"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/tags?post=6733"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/coauthors?post=6733"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}