The Rule of Law: Breyer's ACS Keynote
The highlight of this year's ACS Convention was Justice Breyer's keynote, which he framed as a message to today's law students. What follows is a summary of his speech which attempts to faithfully convey what he said. My own editorial comments are clearly marked as such.
Breyer asked future lawyers to remember that what's important in life is family, work, and community, and that "women are a force for good." He joked that he's "the oldest youngest" Justice, and despite having been on the Court for a decade, he still sometimes has to hold the door open if someone knocks during a judicial meeting. He told a short anecdote about recently bringing Scalia his coffee. "I've been doing this for 10 years," Breyer told Scalia. "I think I've gotten pretty good."
"No, you haven't," Scalia replied.
Breyer then magically summarized the Constitution in one minute, but I unfortunately couldn't write that fast. He praised "the rule of law" in the U.S., and said he strives to remember that "there's no view so crazy that someone in the U.S. doesn't hold it," adn that all those people show up in the Supreme Court to iron out their views.
He cited three cases that demonstrate what he means by "the rule of law" in the U.S. The first was Worcester vs. Georgia, the 1832 case in which the Cherokee tribe sued the state of Georgia after Georgia tried to steal the gold the Cherokee had found on Cherokee land. The Court found for the Cherokee, but President Andrew Jackson said something along the lines of: Marshall has made his decision, now let him enforce it. Then Jackson sent federal troops to Georgia, not to enforce the Court's decision, but to evict the Cherokee, hence the Trail of Tears.
The second case Breyer cited to illustrate "the rule of law" was the "second" Cooper v. Aaron, a desegregation case in which the Court told the Governor of Arkansas he had to desegregate the schools. (I'm not familiar with this case and I couldn't find it anywhere, so I must not have heard the name correctly. Anyone know which case this is?) The Governor refused, so President Eisenhower sent federal troops in to enforce the requirements of Brown v. Board of Education. "I like that case," Breyer said.
Finally, the last case Breyer suggested that illustrates "the rule of law" is any case you can think of. "Take your pick," Breyer said, and proceeded to list controversial cases such as "Bush v. Gore, school prayer, the abortion cases," and others. Take the most controversial case you want, Breyer suggested. "People feel strongly about these cases," he said. But, using Bush v. Gore as his example, Breyer said "what's remarkable is that, regardless of the decision, people follow it as a matter of course." In fact, that Americans will follow the decisions of the Supreme Court is "so obviously true, we don't even think it's interesting," Breyer said.
Mini editorial: It ma just be me, but it sounds like Breyer was saying that the great thing about the rule of law is that "we," meaning the Supreme Court, can do whatever the hell we want, and people will obey like sheep. Yeah, I guess there's some beauty about that. It's great to be king, isn't it? /Mini editorial.
Breyer went on to say that the most important part of the Constitution is what that document is basically about: democracy. He said the Constitution is great because it's a document that doesn't make decisions, but one that creates a structure that lets people make decisions for themselves.
To the common complaint that the democratic process isn't working, Breyer recommended we pull our noses out of the daily news (which he admitted is rather discouraging) and look at the big picture. For example, he asked: How will we reconcile the rights of privacy and free speech in a world where cameras and recording devices are everywhere capturing everything we do and say? He doesn't have an answer, but he's encouraged that "we're trying to find the answer with conversation" in law review articles, discussions, and through ABA committees. ("I love the ABA, with its 4,000 members and 8,000 committees," Breyer said. Everyone laughed.)
Breyer thinks that when tough issues like this arise, the Supreme Court generally waits until others have made up their minds about them, then the Court merely checks to see if those decisions are ok. He described this as "a process where law bubbles up from the bottom, it's not imposed from the top."
Editorial: What a quaint and happy little fantasy! /Editorial.
Breyer recommended we think about this process and we won't be as discouraged as he gets when he just reads the newspaper everyday.
Breyer also discussed what he considers the most important case he's sat on since he's been on the Court: Grutter v. Bollinger, the affirmative action case from the summer of 2003. He said that case involves an interpretation of the equal protection clause. According to Breyer, there are two ways to interpret that clause. One, you can interpret it strictly, or purposively, as a clause designed to prevent invidious discrimination only. Or two, you can take the "color-blind" approach that says that race is out, it shouldn't be considered either positively or negatively, and that any other view is too dangerous. Breyer suggested there are three bases for choosing between these two views of equal protection: There's a lot of discrimination to make up for, and we should do that. This affirmative action program (at the University of Michigan in the Gruder case) involves universities, and they have a 1st amendment right to choose who to admit to their school. The court's approach: Let us have affirmative action. Breyer said the Court was told by people everywhere—in business, the military, education, etc.—that America needs affirmative action, and that it needs to be managed carefully, "but if you tell us to be color blind, we will not be able to function." Breyer said the Court heard from people everywhere that "the race-blind approach is divisive, and the other approach is inclusive."
Is that a legal or a moral or a practical argument, Breyer asked. Breyer argued that it's a legal argument, because it's an argument that further's the Constitution's purpose, whihc is to create a workable democracy. Democracy won't work if large groups of people think democracy is theirs, while others think they're excluded. Breyer suggested that if we could ask the people who wrote the Constitution if they'd like a Constitution that works, or one that doesn't, their answer would be unequivocal: "Work! Work!" Breyer said the Gruder decision ensures that people can work together.
In conclusion, Breyer said, "Out of 10 years, the one clear conviction I have is that the Constitution is a document that must work, and it can't work unless people participate." The Constitution allows us to make our own decisions, but it still won't work unless we (as attorneys, presumably) get out of our law firms from time-to-time and participate. ("And thank you law firm people for being here," Breyer joked.)
Breyer's last statement was a call to action: He called on attorneys to participate in their local school board, or even a bowling league—there are millions of ways to participate; just do something. "That's what this document tells me."
The weekend's encounter with the ACS Convention was pleasant and enlightening. Highlights included the keynote speech by Justice Breyer, 2nd Circuit Judge Guido Calabresi's comments comparing George W. Bush to Hitler and Mussolini, and the free meals and drinks just about made the convention worth the price of admission. I admit to being a bad convention attendee. I don't like dressing up and making small talk with people I don't know, and that seems to be a big part of a convention like this. Anyway, that's why you might take what I say with a grain of salt.
The first session I attended Friday was entitled "Globalization: The Next Frontier for Labor Rights and Democracy." I had hoped it would talk about organizing workers around the world to demand that human rights (and environmental protections) take their proper place at the forefront of so-called "trade negotiations." Instead, the speakers talked about how non-democratic the WTO and similar bodies are, how trade policy protects business interests, etc. It was all high level; workers were hardly mentioned. Sure, "the people" were the focus, but the panelists are all focused on the top, rather than the bottom. Perhaps they'll accomplish something great from that end, but I'm skeptical. The panel standout was Jonathan Hiatt, General Counsel for the AFLCIO, who focused on trade provisions similar to those in NAFTA Chapter 11 that almost guarantee that My impression of this panel is somewhat limited, however, because I had to curl myself into the smallest possible package just to sit in the room.
Note to convention organizers: Do not pack chairs into rooms so tightly that people cannot even sit in them! The room for this session had us packed in like sardines!
My second session was entitled, "Reframing Democracy: Texas, Georgia, Pennsylvania and the Redistricting Battles." This was much better and more lively, with Paul Smith arguing on the left that the gerrymandering of congressional voting districts is anti-democratic, and Michael Carvin arguing on the right that the Democrats are just being whiny babies. Carvin was really a sight to see, admitting that he'd go anywhere and argue anything the Republican party asked him to argue, before taking up the unbelievable and indefensible proposition that computer generated and manipulated voting districts are virtually problem-free in terms of democracy and constitutionality. He might be right on the strict constitutional argument, but that's the refuge of cowards in this fight, if you ask me (which you didn't, I know).
Not surprisingly, the best part of the convention was Justice Breyer's keynote. Detailed notes on that will follow in the next post.
Another highlight was Saturday morning's double-session on the 14th Amendment, followed by a lively lunch discussion on what's at stake in this fall's presidential election. Among the notable points were C. Boyden Gray arguments that turning public schools over to private enterprise will cure all of society's ills. Sure is working for health care, don't you think? (Don't even get me started on how cynical and plain anti-democratic Gray's arguments are—it won't be pretty.) Also, it was during this lunch session that Judge Calabresi noted that Bush "came to power" in the same way as Hitler and Mussolini. Calabresi stated that he wanted to make clear that he wasn't trying to equate Bush with Hitler, he was just trying to make the point that it's unusual for leaders to come to power in the way that Bush and these other figures did, and in light of that, Calabresi thinks Bush should check his use of presidential power, rather than attempting to expand it beyond all reasonable proportions. (See, for example, the torture memos.)
So in all, the sparks were flying, the food was ok, and a good time was had by all.
Briefly, I thought the conference needed a blog, and it needed to have wireless access in the conference rooms. I won't go into why, but I do think the ACS would be more successful in reaching a wider audience if it would get bloggy. Apparently there is an ACS Blog, but it appears unofficial and therefore not exactly what I had in mind.
Meanwhile, Professor Bainbridge says the ACS is "the least necessary organization in legal education," and leaves it to Professor Gordon Smith to explain why. Three Years of Hell and his readers offer some commentary.
UPDATE: See also:
Discussion and comments with links to news and blog coverage of Judge Calabresi's remarks about Bush from Matt and Scott at L-Cubed (here and here), from Professor Yin, and from Professor Althouse.
Now also, see Calabresi's apology.