During the many years they served together as associate justices on the U.S. Supreme Court, David Souter ’66 (left) and Stephen Breyer ’64 (right) were often mistaken for each other by members of the public. But the mix- up reached an amusing apogee about a decade ago, when Breyer was invited to lunch by Justice Sandra Day O’Connor’s clerks, and one clerk asked him, “Are you and Justice Breyer often confused?” At HLS Reunions Weekend, Justices Breyer and Souter (who retired from the Court in 2009) exchanged good-humored banter and insights about their service on the nation’s highest court.
The event, “A Conversation with the Justices,” was moderated by Harvard Law School Dean Martha Minow. Before 500 HLS alumni and guests, the justices discussed issues small and large, from technology (Breyer is a fan, while Souter famously is not) to their opinions on the appropriateness of examining legislative intent in interpreting the law.
The easygoing friendship between the two was apparent. Asked by Minow to recall their first meeting, Souter said they met when he was appointed by President George H.W. Bush to the U.S. Court of Appeals for the 1st Circuit, where Breyer was chief judge. Breyer kidded that Souter didn’t do much work; Souter responded that Breyer wasn’t a very efficient boss.
If you want to know what a Supreme Court justice thinks, find out what his law professors thought 40 years earlier, Breyer suggested, giving a nod to those who influenced him, including former HLS Professor Clark Byse. His property professor, A. James Casner, may have been responsible for Breyer’s appointment to the 1st Circuit Court of Appeals, he added: In 1980, Breyer was chief counsel to the U.S. Senate Committee on the Judiciary, working closely with Sen. Edward M. Kennedy. One day, a constituent of Kennedy’s had a property law question, and the senator asked Breyer if he knew anything about “shifting uses.” The senator was amazed when Breyer admitted he did; the next thing Breyer knew, he was on the appeals court.
The justices agreed that examining legislative intent is an important tool in interpreting the law when the language alone is not enough; analysis of the purposes and consequences of a particular interpretation is also useful, they said. Breyer referred to the controversial 2010 case Citizens United v. Federal Election Commission, in which there were strong competing constitutional interests between equality and liberty. When there is no simple doctrinal means for resolving that tension, it is entirely appropriate to examine the consequences of privileging one over the other in coming to a resolution. On another controversial issue—whether the U.S. Supreme Court should refer to the laws of other nations in reaching its own decisions—the justices agreed that it often is appropriate to do so, and indeed is necessary in an increasingly globalized world.
Breyer said that he wrote his latest book, “Making Our Democracy Work: A Judge’s View,” not just for those who are judges and lawyers but for the 308 million Americans who are not. He wanted to examine why, even when such unpopular decisions as Bush v. Gore are issued, the citizenry does not erupt in armed revolution. Souter, quoting William Safire, said that this acceptance results from people recognizing that the high court—even when it does something controversial—arrives at its decisions in good faith. Breyer noted several times that it is unsurprising that people in such an enormous and diverse nation would express such a variety of opinions on important matters of law and politics, and that the high court is a reflection of the polity.