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Home Law American Law “Antonin Scalia and Stephen Breyer Debate the Constitution" Video Response

“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 Society 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 case.

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 issues.

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 justice. 

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.


Matthew Rosehttp://ourpolitics.net
Matt studies and analyzes politics at all levels. He is the creator of OurPolitics.net, a scholarly resource exploring political trends, political theory, political economy, philosophy, and more. He hopes that his articles can encourage more people to gain knowledge about politics and understand the impact that public policy decisions have on their lives. Matt is also involved in the preservation of recorded sound through IASA International Bibliography of Discographies, and is an avid record collector.

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