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April 15, 2021

Breyer talks philosophy, not court change at ABA global conference

Of the nine U.S. Supreme Court justices, Stephen G. Breyer has received the most attention of late, given that at 82 he is the court’s oldest member and the subject of speculation on whether he is nearing his last term. Also, earlier this month Breyer waded into the hot topic of court packing.

U.S. Supreme Court Justice Stephen G. Breyer adresses the ABA International Law Section virtual annual conference.

U.S. Supreme Court Justice Stephen G. Breyer adresses the ABA International Law Section virtual annual conference.

For those hoping to hear Breyer talk about possible court changes during his April 14 appearance at the American Bar Association International Law Section virtual annual conference, they likely were disappointed. The justice avoided discussing how long he plans to serve as well as proposals by some Democrats to add more justices to the high court to offset its conservative bent.

As interviewer Salli Swartz, a former chair of the International Law Section, said at the start of the 35-minute conversation, “if you are looking for a scoop, this is not the call.”

Instead, Breyer provided insights into the workings of the court while touching upon topics he raised during a near two-hour virtual lecture at Harvard Law School a week earlier. Appointed by Democratic President Bill Clinton in 1994, Breyer argued in the Harvard presentation against efforts to expand the number of seats on the Supreme Court because of concerns that would further politicize the institution and lessen its credibility.

In a diverse country of around 330 million people, Breyer said at the ABA conference, “it isn’t such a bad thing … (to have) judges who are appointed by presidents who have somewhat different points of view,” and for the Supreme Court to have justices with “different jurisprudential philosophies.”

While many lawyers and other observers complain about narrowly tailored Supreme Court decisions, Breyer explained often they are necessary to secure the agreement of at least five justices on a particular legal conclusion or point of law. That typically creates a process where the justices are inclined to “figure out what is the area of agreement…and sometimes it is a narrow area.”

“Five, that is the secret, get five,” Breyer said about the negotiations of the nine justices, explaining that outcome sometimes can be accomplished only through a narrow ruling.

“What people really what to know is not what I think about the Constitution,” he said. “They want to know what the court thinks. And the reason they want to know what the court thinks is because they have to follow the rule of law. And If there aren’t five people, they don’t know what the rule is.”

Speaking to international lawyers, Breyer picked up a theme fellow colleagues have voiced at prior ABA section meetings: Law is becoming much more international in context and scope. When he joined the court, Breyer recalled, it was rare that a decision by an international body would be part of the record. Now, he estimates that happens in 15%-20% of the cases, reflecting “a change in how this world is working.”

He cited a couple of international decisions that generated numerous legal briefs from across the globe where U.S. interests were secondary to other nations.

“I would say it is somewhat broader than international law or the decisions of other countries,” Breyer explained. “In doing our job, I think we have no choice about that…you have to know something about and look for something beyond your own shores.”

Breyer has a long history of ABA involvement, including traveling with the section some years ago for international meetings. He is a graduate of Stanford University, Oxford University and Harvard Law School, worked in the U.S. Department of Justice and for the U.S. Senate Judiciary Committee, and later taught law for many years as a professor at Harvard Law School and at the Kennedy School of Government.

At the three-day annual conference, Breyer was honored with the section’s World Order Under Law Award, given to individuals who have made a substantial contribution to and provided visionary leadership in pursuit of the ABA’s Goal IV, which is to “advance the rule of law in the world.”