November 04, 2011
During the many years they served together as associate justices on the U.S. Supreme Court, Stephen G. Breyer ’64 and David H. Souter ’66 were often mistaken for each other by members of the public. But the mixup reached an amusing apogee about a decade ago, when Breyer was invited to lunch by Justice Sandra Day O’Connor’s clerks, when one clerk asked him, “Are you and Justice Breyer often confused?”
At HLS Reunion Weekend last 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, in an event, “A Conversation with the Justices,” moderated by HLS Dean Martha Minow. Before more than 500 HLS alumni and guests, they discussed issues small and large, from the kinds of technology each uses (Breyer is a fan, Souter famously is not) to their opinions on the appropriateness of examining legislative intent in interpreting the law.
The event was introduced by Sharon Jones ’82, president of the Harvard Law School Association, and president and CEO of O-H Community Partners in Chicago. Together with Dean Minow, she presented the justices with the HLS Association Award.
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 First 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.
When Minow asked them to describe the friendships and personal relationships on the high court, Breyer said that all the justices get along well; indeed, in his 17 years on the high court, he said he has never heard a voice raised in anger nor heard one justice say something mean about another. Souter agreed, noting that the collegiality on the court might be difficult to believe if one looks only at the often-fiery rhetoric in the justices’ opinions. He contrasted the civility within the court on which he served with the hostility of the New Deal and post-New Deal courts, which HLS Professor Noah Feldman describes in his book, “Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices.” Souter said that a former law clerk to Justice Harlan Stone suggested to Souter that Stone died suddenly in 1946 because of the stress of the warring factions on the high court at that time.
If you want to know what a Supreme Court justice thinks, find out what his law professors thought 40 years earlier, Breyer suggested, and gave 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 First Circuit Court of Appeals, he added: In 1980, Breyer was chief counsel to the U.S. Senate Committee on the Judiciary, working closely with Senator 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.
Minow asked the two about their experiences as HLS students. Breyer gestured to friends and former roommates in the audience who helped him survive his three years, and claimed he kept getting evicted from his apartments, including one on Ellery Street. Souter recalled that he served as a proctor at Harvard College, which was a sort of antidote to being at the law school, since he’d already earned a master’s degree at Oxford and found the first year of HLS repetitious and somewhat boring. To relieve the tedium, he recalled, he and a friend engaged in a fencing duel one evening. Souter’s sword was a gift from a girlfriend, which he considered a rather ambiguous gift; during the swordfight, he was cut, and a group of “well-oiled” students accompanied him to health services, which overlooked the venerable Elsie’s, a restaurant no longer in Harvard Square. Souter, spying Elsie’s, declared he would treat his friends to cream cheese and caviar, and he sent a freshman to get the food, at which point they were all kicked out of health services. Breyer added that Souter was known to sit atop a tower at Oxford with a riding whip in hand, shouting “Tally-ho the fox!” and, as a result, found HLS a letdown in comparison.
Both 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—both 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 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.
Asked about the technology that each uses, Souter – known for his distaste for many modern devices—joked that Breyer had planted the question. Breyer embraces new tools, including a Blackberry and an iPad. Souter said he has a Kindle, and also recently tried an iPad. It was “terrific,” he said—until he found he couldn’t turn it off, and had to place it in a bathroom with the door closed.