“Antonin Scalia and Stephen Breyer Debate the Constitution” Video Response

A significant point of debate
within the American legal system is what type of jurisprudence approach will
bring about a fair and just interpretation of the law. This debate over the
proper legal approaches has led to many controversial and closely divided
Supreme Court decisions in the US and continues to polarize the current
justices in terms of ideological views. Two Supreme Court members who had
conflicting views regarding what they feel is the ideal legal approach for the
US are Stephen Breyer and the Antonin Scalia. Justice Breyer is generally
aligned with the liberal faction of the Court, whereas Justice Scalia was
largely considered to be the ideological voice of the conservative side of the
Court. To further explain their differences in legal approach, Justice Scalia
and Justice Breyer participated in a forum sponsored by the Federalist
and the American Constitutional Society in 2006 in which
they discussed their respective approaches to legal decision-making.

The first part of the discussion centered on the views of both Stephen Breyer and Antonin Scalia regarding what they feel is the ideal role of a judge. Justice Breyer stated that the proper task of a Supreme Court member is to not only apply the law but also to recognize that the main purpose of the law is to bring about justice. The concept of justice, according to Justice Breyer, is an inherent human desire and that applying the law in a way to maximize the pursuit of justice is the primary goal of all judges. Additionally, Justice Breyer also stated that judges do not seek to achieve justice through simply looking for the better result in each case, but through applying the law in every case, as individuals believe that is the most effective way to bring about justice under the law.

Justice Stephen Breyer then went on
to discuss some of the challenges that the Supreme Court faces when deciding on
specific legal issues. Justice Breyer pointed out that while the Supreme Court
rules unanimously on a sizeable percentage of cases, the cases that have led to
divisions on the Supreme Court were the ones that deal with statutory or
constitutional language that is open to interpretation. In cases dealing with
statutes and constitutional language that is open to interpretation, Justice
Breyer tends to rule in such a way that maximizes the rights of liberty and
justice under the law. Justice Breyer dealt with this issue in a case dealing
with the due process rights of an individual who claimed to have been wrongly
convicted of murder. When discussing the case, Justice Breyer stated that
because of the statute in question having vague language, he ruled in a way
that would serve to keep open the door to the rights of due process for
individuals who may have been wrongly convicted of a crime.

In contrast to Justice Stephen
Breyer, Justice Antonin Scalia expressed a contrary view regarding the question
of what the proper role of a judge is when determining a case. As opposed to
viewing the role of a judge as to provide for justice and equality under the
law, Justice Scalia feels that the ideal role of a judge is to interpret the
law as fairly and closely to the original intent of the author of the law as
possible. Additionally, Justice Scalia also stated that an ideal judge would
not let their judgment influence their decision regarding a particular case.
Scalia holds this belief because following such an approach would potentially
lead to unconstitutional and inconsistent results that would serve to prevent a
fair interpretation of the law. 

Justice Antonin Scalia, noting that
this approach is not without its flaws, pointed to an example of a case in
which he had to rule on in a certain way which produced a result contrary to
his personal opinion due to his belief that the primary role of a judge is to
interpret the law. The case in question dealt with the adoption provision in
the Indian Child Welfare Act. According to Scalia, the main issue
in the case was whether or not a Native American child had to return to his
tribe if the tribe council said so despite living with a foster family for
several years. Justice Scalia ruled in favor of the tribal council, citing the
statutory language. Although Justice Scalia believed that the child’s parents
should have decided if their child were to remain with them, he ruled based on
the fact that the original intent of the statute required that a member of a
Native American tribe could not be adopted by anyone outside of a tribe without
the explicit permission of the tribal council.

Justices Stephen Breyer and Antonin
Scalia next discussed what they feel are the proper tools used by judges to
interpret legislative texts, in particular, the effectiveness of looking at the
overall purpose of the statute, and the consequences that a relevant to the
statute at issue. Justice Breyer expressed support for using the purpose and
consequence approaches in legal analysis for several reasons. The main reason
why Justice Breyer supports utilizing both tools is that he feels that they are
likely to keep a judge in touch with the legislature in statutory cases, which,
is in turn, in touch with the American people and their desire for both
justices under the law and the democratic rule of law. Addressing the question
of whether focusing on the purpose and consequence of a statute or piece of
legislation will make a judicial decision more subjective, Justice Breyer
stated that a judge can write down their legal reasoning and fully explain to
the reader in their court opinion the steps that led to their decision in a

In contrast to Justice Stephen
Breyer, Justice Antonin Scalia expressed a different view regarding looking at
statutory and constitutional cases under the purpose and consequence lens. The
main problem with looking at the purpose and consequences in statutory and
constitutional cases, according to Justice Scalia, is that they invite
subjective judgment on the part of a judge. Justice Scalia stated that to
decide the purpose of a statute, it depends on what level of generality a judge
looks at it. Scalia further argued that considering the purpose of a statute
leads to the question of whether the limitations of the statute should be
applied and if the limitations are a part of the inherent nature of the
statute. According to Justice Scalia, any limitations are a part of the inherent
nature of the statute. To consider the purpose of a statute, according to
Justice Scalia, both asks the question and assumes that limitations in a
statute were not intended because they would limit the purpose of the statute.

Regarding the question of whether a
judge should consider the consequences of a statute or law, Justice Antonin
Scalia feels that a full consideration of the consequences will serve to reduce
the objectivity of the judiciary. When it comes to considering consequences,
Justice Scalia feels there is an open question as to how a judge determines what
exactly makes a legal consequence good or bad in nature. This situation,
according to Justice Scalia, could lead to a situation where a judge who likes
the consequences of a particular rule of law will interpret a case one way, and
a judge who does not like the consequences will interpret the case in another,
completely different way. Following this logic, Justice Scalia believes this
approach will lend itself to subjectivity, which in his mind, is not the proper
role of a judge.

Justices Stephen Breyer and Antonin
Scalia next addressed the question of whether they believe in the idea that the
judges should change their interpretation of the US Constitution over time as
society changes. Justice Scalia expressed reluctance to endorse the idea of a
“living constitution.” Justice Scalia pointed out that the issue with
the idea is not related to figuring out how the Constitution applies to
contemporary society, but with taking preexisting realities present during the
time in which the Constitution was initially written and attempting to alter
the original intent of the Framers to reflect contemporary society. Justice
Scalia cites to contemporary policy and judicial debates regarding topics such
as abortion rights, the death penalty, and same-sex marriage. Justice Scalia
mentions that all three of these concepts existed at the time the Constitution
was adopted and that no person believed at the time that they should have been
explicitly referenced in the Constitution. Justice Scalia states that people
now believe that either allowing or not allowing these things is not in accord
with the Constitution. Because these three social issues are not explicitly
referenced in the Constitution, Scalia feels that the onus of responsibility to
alter the Constitution to either allow or disallow them lays on the part of the
American people as opposed to unelected judges. Giving the American people the
responsibility to put forward changes in the Constitution, according to Scalia,
also serves as a check on unrestrained judicial power and further promotes
democracy and a republican form of government.

In contrast to Justice Antonin
Scalia, Justice Stephen Breyer expressed a degree of support for the notion of
a “living constitution.” The main part of Justice Breyer’s argument
is that because the nature and context of American society at the time the
Constitution was written was dramatically different from today, the only way to
accurately apply the Constitution today is to adapt it based on changing
societal circumstances. As an example to illustrate how society changed since
the ratification of the Constitution, Justice Breyer cites the Commerce Clause
and the First Amendment. For example, at the time the Constitution was written,
Framers could not have envisioned societal changes such as the advent of mass
communication tools, advances in transportation methods, and the rise in
globalization and how these advances would have impacted future interpretations
of the Commerce Clause and the First Amendment. Despite the fact that the
Framers could not have envisioned the societal changes when writing these
provisions, Justice Breyer believes that there is an innate value written into
these constitutional provisions that remains relevant to contemporary legal

Another discussion between Justices
Antonin Scalia and Stephen Breyer centered around their views regarding the use
of the historical approach in constitutional interpretation. Justice Breyer
generally expressed a mixed opinion regarding the historical approach. While
the historical approach, according to Justice Breyer, does not take into
account individual changes in values since the US Constitution was written, it
can sometimes be useful in helping judges settling a complex case with little
modern precedent. Justice Breyer also stated that the historical approach was
useful in informing his decision in a case dealing with the question of whether
a school voucher program violated the Establishment Clause because the voucher
program allowed parents to send their children to religious schools. Justice
Scalia similarly agreed that the historical approach has its share of merits in
enabling judges to determine case. For example, Justice Scalia stated that many
current judges tend to ignore the original meaning of the Constitution and
statutes. This lack of understanding the original meaning of the Constitution
and statues, according to Justice Scalia, leads to inaccurate opinions not in
accord with the original intent of the Constitution. 

When the question was raised if
either of the Justices considered themselves to be “activist judges,” both
Antonin Scalia and Stephen Breyer agreed that the term was useless in
determining how a judge rules on certain legal issues. Justices Breyer and
Scalia stated that the term activist judge is used as an insult describing
someone who is substituting their own opinion for what the Constitution
requires and takes away from the role of a judge to apply different results to
a Constitutional issue in order to get the result that is most in accord with
the main goals of the American legal system. Additionally, Justice Breyer
mentions that many cases that were seen as “activist” during the time in which
they were decided are now considered to be the correct application of the law.
As an example, Justice Breyer cites the Brown v. Board of Education decision
as a case originally considered to be activist in nature, but is now considered
to be the correct application of the Equal Protection Clause 

Regarding the need to decide cases
in a narrow, unanimous manner, Justice Antonin Scalia rejected this approach,
citing his belief that narrow decisions have become somewhat commonplace since
the appointment of John Roberts as Chief Justice. Justice Scalia expressed
opposition to this approach because it would lead to less firm opinions that
could potentially be overturned by future cases. Additionally, Justice Scalia
stated that these narrow opinions would be of little use to the legal
profession in the future. Justice Stephen Breyer expressed agreement with
Justice Scalia, stating that judges want to have unanimous opinions for the
sake of having the Court appear to be in agreement. The only exception to this
rule, according to Justice Breyer, would be in cases dealing with technological
issues. According to Justice Breyer, a broader decision regarding a technological
issue could make some rule of law that could potentially become either obstacle
to one party in a case, or ultimately be beneficial to the other party of a
case. This scenario, Justice Breyer states, would go against the belief that
the main purpose of the law is to promote the equal distribution of

The legal theory most in alignment
with Justice Antonin Scalia’s views is Originalism. Originalism is a legal
approach in which a judge interprets the Constitution in line with what it
meant at the time of its drafting. There are several benefits to this approach
to legal reasoning, according to proponents. The first reason is that
Originalists believe that disregarding the reasoning behind the Framers writing
specific Constitutional provisions would call into question the reasoning
behind their drafting the Constitution. Proponents of Originalism also argue
that by scrutinizing of the intent of the Framers, judges can deduce
“constitutional truths” that they can apply to cases, which serves to produce
neutral positions of law and eliminates value-laden decisions, and that the
application of Originalist theory in judicial decisions fosters stability of
law in an increasingly changing society (Epstein and Walker, 24-26).

Justice Antonin Scalia can be
considered a proponent of Originalist legal theory for several reasons. The
aspect of Justice Scalia’s the judicial philosophy that is aligned with the
notion of Originalism is the fact that he interprets the words of any statute
or constitutional provision that is in question and interprets them based on
what they would have meant at the time the Constitution was originally written.
Additionally, Justice Scalia also feels that by focusing on the reasoning why
the Framers put certain provisions in the Constitution or federal statues, a
judge cannot objectively determine the applicable rule of law in a particular
case and will ultimately come to a legal conclusion that is not in accord with
the original intent of the Framers of the Constitution.

In contrast to the theory of
Originalism, the legal approach that Justice Stephen Breyer follows is
Pragmatism. In its simplest form, Pragmatism is the belief that the Supreme Court
does not always have to feel bound to follow past precedents. Some of the
reasons why a court may not appear to be bound by previous rulings are due to
changed circumstances that make the prior rule of law inconsistent, a ruling
that was made in error, or changes in the interpretation of Constitutional
provisions or statute at other court levels. Additionally, Pragmatic legal
theory may require judges to select constitutional interpretations that have
the most ideal consequences based on the legal issue in play in the case they
are working with (Epstein and Walker, 31).

Justice Stephen Breyer can be
characterized as a proponent of legal Pragmatism. The main reason why Justice
Breyer can be identified with legal Pragmatism is that in his decisions on numerous
legal issues, he tends to focus on the question of what application of the law
will result in the most ideal consequences in the case and promote the
essential values of the American legal system. Additionally, Justice Breyer
follows the belief that because society changes over time, prior legal
precedent may not be applicable in the present day and may serve as a hindrance
to fulfilling the goals of the American legal system. This belief is in accord
with the idea promoted by Pragmatism that courts should not be bound by
inconsistent rulings that came about due to societal changes.

In conclusion, the issues of constitutional and statutory interpretation continue to remain a much-debated issue among legal scholars and judges alike. Two Supreme Court members with divergent views on these issues were Stephen Breyer and Antonin Scalia. Justice Breyer generally aligned with the theory of legal Pragmatism, whereas Justice Scalia identified as an Originalist. Their different views on legal philosophy led to numerous closely divided decisions and have defined the American legal system for many years to come. Despite holding different philosophical views, Justices Scalia and Breyer both believed that the historical approach in determining case outcomes is beneficial in certain respects. Additionally, Justice Breyer and Justice Scalia concluded that broad Supreme Court decisions are beneficial because they result in firmer opinions on legal issues and that the application of their respective approaches would serve to promote democracy and safeguard the American system of government from abuses of power by either branch of government. Moreover, both Justice Scalia and Breyer expressed confidence in the American legal system and that the ideas of justice, equality, and fairness under the law will continue to endure.

the author

Matt has been studying and analyzing politics at all levels since the 2004 Presidential Election. He writes about political trends and demographics, the role of the media in politics, comparative politics, political theory, and the domestic and international political economy. Matt is also interested in history, philosophy, comparative religion, and record collecting.

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