Supreme Court Justice Stephen Breyer said in an interview aired Tuesday that judges make poor politicians, that he misses late Justice Antonin Scalia, and that the Second Amendment doesn’t apply to a citizen keeping a gun next to their bed.
In a wide-ranging interview with PBS’ Charlie Rose, Breyer said he thought Chief Justice Roger Taney, who wrote the 1857 Dred Scott v. Sandford decision that found blacks could not be American citizens, “tried to be a politician.”
“And he thought that — perhaps he thought, that by reaching a decision saying a black person was not a person, that’s roughly what he held, unbelievable. But, he thought he would help prevent the Civil War…if anything, he helped bring about the Civil War because Benjamin Curtis wrote a great dissent showing, I think, at the time, his decision was wrong. It’s not using hindsight, but really wrong. Abraham Lincoln picked it up, read Taney’s decision and said this is a shocker, then used the dissent in his speech at Cooper Union,” Breyer noted.
“Which was the speech that propelled him to the head of the Republican Party, and helped get him the nomination and then all followed. He was really an abolitionist at heart. They knew that in the South and then, the Civil War followed,” he added. “So, if that was Taney’s idea, he was wrong. Judges are not good politicians. They may have some exposure to politics, but that’s what I mean when I say junior league.”
Breyer recalled Scalia being a masterful writer. “The job of a judge in an appellate court is, in an opinion, to explain the reasons why he or she reached this opinion,” he said. “Now, I don’t think that that calls for or requires what you might be able to do in terms of great phrasing but if you can do that, it can be an advantage. But what I meant because people — when Nino and I use — I miss him, I do.”
Breyer stressed that “it’s a big country” with 320 million people who “think a lot of different things,” thus “it is not such a terrible thing, if on the Supreme Court, there are people who have different, somewhat different jurisprudential outlooks.”
“You know, Scalia probably likes rules more than I do. He tends to find clarity in trying to get a clear rule. I have probably more of a view that life is a mess,” the justice said, adding that it comes down to “basic outlook about the Constitution, how it applies today to people who must live under it.”
“Those are where the differences come up. It’s not politics.”
Breyer said people shouldn’t look at the High Court as a political arbiter. “It is not the Supreme Court that tells people what to do. [The Constitution] sets boundaries. We are, in a sense, the boundary commission,” he said. “…But don’t make the mistake of confusing a tough question at the boundary with the fact about what the document is like, because the document leaves vast space in between the boundaries for people themselves through the ballot box to decide what cities, towns, states, what kind of a nation they want. That’s what this foresees, and if you do not participate, it won’t work.”
Retired Justice Sandra O’Connor told Breyer, who was appointed to the court in 1994, that “there are two unwritten rules … the first is, at conference, nobody speaks twice until everybody has spoken once. That’s a very good rule for a small group. The second, tomorrow is another day. You and I who are the greatest of allies on case one, case three comes along, we’re at odds. The fact that you were with me on case one is irrelevant, unless it’s legally relevant, but I mean is irrelevant to whether we’re allies on case three.”
“What that means is we’re a court, we decide. That’s the job. Decide the case. Do your best in that case, absolutely, but, eventually, you have to decide and then move on,” Breyer continued. “There will be plenty of people around in the next case or the one after that to tell you all the mistakes you made and try to do better then next time. But it’s on, on, on. Tony Kennedy said that. He said it’s more like an express train than you think. They come in. Decide them. Pay attention. Read the briefs. Listen to the argument.”
Asked about his thoughts on the Second Amendment, Breyer recalled that in Article I of the Constitution “it gives to the Congress the power to call up and regulate state militias.”
“There was a lot of concern, if you read the Federalist Papers, you will just get a feeling for it. There was a lot of concern and fear that Congress might do that and disband them, and replace the state militias after they had disbanded them with a federal army. And that, many people said, vote no on the Constitution because if they can do that, then the federal government can destroy your freedom,” he said. “Well, said Madison, in a sense, if I paraphrase him, never fear. We will put in the Constitution an amendment which says Congress can’t do that. It cannot call up and disband the state militias. Why? Because a well-armed militia is necessary for the security of a free state, i.e. a state militia.”
“And therefore the right to keep and bear arms shall not be infringed. In other words, they were talking about that. That’s what I thought they were talking about, which is not the right of an individual to keep a gun next to his bed.”
Asked about the court’s check on executive power, Breyer noted that “even in time of war, the Constitution does not write a blank check to the president” but acknowledged that “no one likes those cases” because some “say you shouldn’t have interfered” while “others say you didn’t go far enough.”
“What we need is what I think Sandra O’Connor said, but we have to have ways of learning about what happens under that term ‘security,’ ‘terrorism,’ etc.,” he said. “And we have to have ways of learning what others do as well so we can get that balancing question close to right and that’s why we don’t jump in too quickly, and it’s also why we do jump in.”