Supreme Court Justices Weigh In On Media Coverage, Part Two

At the very same hearing, Justice Scalia’s more liberal colleague, Stephen Breyer, faced questions about tightening the conflict of interest rules governing Supreme Court Justices. According to The New York Times, Justice Breyer raised another important, but also overlooked, point about the work of the Court:

Justice Breyer said he had not seen a decision influenced by politics in his 17 years on the court. But he drew a line between politics and judicial philosophy.

“By the time you have 40 or 50 years in any profession, you begin to formulate very, very general views,” he said. “What is America about? What are the people of America about? How in this country does law relate to the average human being? How should it? And it’s a good thing, not a bad thing that people’s outlook on that court is not always the same.”

For Justice Breyer to say that he never seen a decision influenced by politics is extraordinary, considering the number of actively contested 5-4 decisions in which he has been involved (often as a dissenter) during his tenure on the Court. As he is generally considered to be a solid member of the Court’s “left,” you would think that Justice Breyer would have some incentive to at least hint that his more conservative colleagues are politically motivated if he indeed believes that is the case.

Moreover, Justice Breyer’s point about judicial philosophy is also important and too often ignored. What the press cavalierly dismisses as “politics as usual” often are fundamental disagreements between Justices on the meaning of Constitutional and statutory provisions, which are not always particularly precise. Clearly, someone who believes the Constitution is a living document that accommodates changes in society will reach different results than those who have a more conservative, literal interpretation.

And as Justice Breyer points out, these disagreements are probably a good thing in a democracy of 300 million individuals.

Posted: 10/21/2011 2:30:51 PM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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