Justice Stephen Breyer: Know the Constitution and be a community participant

Sometimes, law students tell U.S. Supreme Court Associate Justice Stephen Breyer that there should have been fierce rioting in the streets to protest the court’s decision in the 2000 Bush v. Gore case that resolved that year’s election dispute.

While Breyer, who dissented in the 5-4 vote, agrees that the Supreme Court decision was “wrong,” he told a Yale audience on Sept. 18 that accepting the highest court’s decisions — right or wrong — is integral to democratic life.

 “If that’s what you’re tempted to think [that people should have revolted against the decision], turn on the television and see what happens in countries where they don’t appear before a court of law and aren’t prepared to follow decisions that are unpopular, may be harmful, and could be wrong,” he commented in a packed Levinson Auditorium. “But see, you can’t have it both ways. We’ve gradually, over a long period of time, come to the place where people will follow [court decisions], and to me that is a great treasure.”

Breyer’s campus visit was in celebration of Constitution Day (officially Sept. 17). He took part in a conversation with Margaret Marshall, senior fellow of the Yale Corporation and retired chief justice of the Supreme Judicial Court of Massachusetts, and President Peter Salovey, during which he heralded the American Constitution for providing a framework for democracy, human rights, equality, separation of powers, and rule of law.

“Why are we celebrating this today?” Breyer asked, holding up a pocket-sized copy of the Constitution. “What does it basically mean? It means that for 200 years or more, people in the United States — originally 4 million, today 310 million — have, with all kinds of ups and downs, learned to live together under the rule of law, and come into the courts … and their basic differences are often — not always — resolved with this document and other statues, not in the streets with fists, guns, and knives.”

Asked by Salovey whether he believed the U.S. Constitution to be uniquely American, Breyer said its distinctiveness is reflected in the words of Founding Father James Madison, who described the Constitution as “a charter of power decreed by liberty, not a charter of liberty decreed by power.” Breyer added that the foundational belief that “the individual is free, and gave power to the central government” is what makes America’s Constitution unique.

However, the justice acknowledged that increasing numbers of nations are emulating the American model of government and judicial systems, and said that while he has been criticized for referencing international court cases in his own court decisions, it is a habit that makes sense.

“If I have a person in a profession like mine, interpreting a document like mine, in the face of a problem like mine, why don’t I read what he says? I might learn something. I’m not bound to follow it.”

Breyer emphasized in the conversation that most American laws are made at the state level, but noted that Supreme Court decisions can profoundly affect people’s lives. He cited the 1954 Brown v. Board of Education case, which ruled school segregation to be unconstitutional, as a watershed moment in American history. He called the  “Little Rock Nine” — the nine black students who were the first to enroll in an all-white Little Rock high school and were prevented from entering the school by Arkansas’ governor — “heroes.” Recalling how President Eisenhower intervened to support the Supreme Court’s ruling in Little Rock by sending in the 101st Airborne Division of the U.S. Army to enforce integration and protect the students, Breyer said, “That was a great day for the law, the cause of equality, and the United States of America.”

Breyer cited other examples of times when decisions by the highest court have been violated, including one in 1830 in which the Supreme Court ruled in favor of Cherokee Indians in a battle over land in Georgia. President Andrew Jackson sent troops to force the tribe’s relocation, leading to the infamous Trail of Tears, noted Breyer.

Despite such examples, Breyer said, the big question for him is: Why do American citizens, for the most part, honor the decisions of the Supreme Court, even if they are unpopular?

He suggested that the answer lies, in part, in citizens’ belief in the American Constitution, which “does not tell people what to do, [but] sets outer limits on what the government can do.”

He urged the students in his audience to be participants in the political process and in civic life, saying that without public participation, the American Constitution is meaningless.

“I can’t tell you how to lead your lives,” Breyer said. “I hope you’ll have a profession. I hope you’ll find someone to love. I hope you’ll participate in your community’s life. That could be the library board, if you’d like, or it could be politics, or it could be voting. I can’t tell you more than my hopes, but I can tell you one thing: I know something about this document. If you are not going to participate in public life, this document won’t work.”

Breyer discussed with Marshall some of the challenges of judicial decision-making and answered questions from audience members read by Salovey. One asked how the justice felt about public calls to televise Supreme Court decision-making.

“I don’t think it will happen too soon, but it will happen eventually,” said Breyer. He said televised oral arguments do open up the possibility of media misrepresentation and public misunderstanding while watching “nine people struggling with difficult decisions,” and said it is unclear whether televised sessions would affect the decisions being made.

“All of us (Supreme Court justices) are conservative where the courts are concerned,” Breyer added. “We are trustees for an institution that, by and large, has served the country pretty well. So I’ll say we’re nervous about it.”

Asked for a final word at conversation’s close, Breyer held up his copy of the U.S. Constitution and urged, “Read this document and try to think about it. It puts the responsibility on you. Tell the next generation. It holds the country together, even if you don’t know what it says. Participate. If you don’t like what’s happening, persuade others. It’s called majority rule. It’s not perfect; nothing is.”

Watch the full conversation.