U.S. Supreme Court Justice Stephen Breyer had some rough news to break to a packed Law Auditorium when he spoke on Jan. 24: Supreme Court Justices are human and, sometimes, wrong. Sometimes, Breyer added, Supreme Court decisions are not just wrong, they are also unpopular. Even worse, sometimes they are wrong and unpopular and also have a huge impact on people’s lives. But, Breyer pointed out, even when the Supreme Court is wrong, and unpopular, and impactful, people do what the Supreme Court says to do. Why?
This question—why do people do what the Supreme Court says to do?—was the first Breyer attempted to answer when he spoke at the inaugural Esdaile Lecture, established in honor of James N. Esdaile, Jr. (’70). Breyer has recently published a book, which he signed after the lecture: Making Our Democracy Work: A Judge’s View. “I wrote the book to be on television,” Breyer joked.
To try to figure out why the Supreme Court’s decisions are generally enforced, Breyer turned to a case that was not: Worcester v. Georgia. Cherokee Indians had discovered gold on their land, and Georgians tried to kick them off. The Supreme Court ruled that the law belonged to the Cherokees, and the government could not simply remove them from property they owned. President Andrew Jackson dismissed the ruling and allegedly said, “[Chief Justice] John Marshall has made his ruling. Now let him enforce it.” Jackson may or may not have said that, but he certainly did not follow the ruling. The Supreme Court was ignored, and the Cherokee were dragged, killed and tortured along the Trail of Tears.
But then Breyer told a story with a slightly different ending: segregation. Brown v. Board of Education, Breyer reminded his audience, ended legal, official school segregation by race. But, of course, “the story doesn’t end there,” Breyer said.
The story continues with a case Breyer said is one of his favorites, one that came a few years after Brown: Cooper v. Aaron, the case of the Little Rock Nine. A federal judge had ordered Central High School in Arkansas to integrate, but nine black students were physically prevented from entering the school. In Cooper, the Supreme Court reiterated that official school segregation was unconstitutional and told Arkansas in no uncertain terms that it had to integrate. And unlike in Worcester, President Eisenhower summoned the 101st Airborne to Arkansas to enforce the Supreme Court’s decision. Although Breyer readily admitted that the life was “terrible” for those black teenagers, and that the Supreme Court’s decision by no means ended racism, “it helped,” he argued.
This brought Breyer to the second question he considered: What is the Supreme Court’s role in making our democracy work? Breyer suggested “prudence and pragmatism, reasonableness and utility,” was a good starting point, adding that his colleague Justice Antonin Scalia would no doubt respond to that starting point with, “Oh good. You’ve graduated to the level of a bumper sticker.”
Breyer, though, argued that those words are more than a bumper sticker. The Supreme Court, he suggested, is “the border patrol. Abortion—inside or outside the boundary? What about school prayer? But don’t forget the place within the boundaries is really vast. So don’t get mixed up that suddenly we’re deciding everything.” He wrote this book, Breyer explained, in part to clarify exactly what the Supreme Court does because though “the Court is held in pretty high esteem generally,” Breyer said, he thinks that the more people who understand the Supreme Court, the more likely they are to follow its decisions.
And though the Supreme Court is, Breyer said, sometimes unpopular and wrong and impactful, even then it is ultimately a good thing to follow the Supreme Court’s decisions. For an example, Breyer pointed to Bush v. Gore. To call Bush v. Gore contentious is like calling Antarctica a bit chilly, but even those who disagreed with the decision followed it. While Breyer fiercely disagreed with Bush, he also fiercely argued that we must follow it. Because, Breyer said, following the Supreme Court’s decisions all the time, even when we don’t want to, helps to “allow people of very different views to live together without killing each other to solve their major differences.”
Reported by Elizabeth McIntyre ('14)
In the news
About U.S. Supreme Court Justice Stephen Breyer
Justice Breyer, who was appointed to the Supreme Court in 1994 by President Bill Clinton, began his legal career three decades earlier as a clerk for Supreme Court Associate Justice Arthur Goldberg. From 1965 to 1967, he served as a special assistant to the U.S. Assistant Attorney General for Antitrust. He then joined the faculty of Harvard Law School, where he became known as a leading expert on administrative law and author of two influential books on deregulation, Breaking the Vicious Circle: Toward Effective Risk Regulation and Regulation and Its Reform.
Justice Breyer returned to Washington as an assistant special prosecutor on the Watergate Special Prosecution Force in 1973, then served as special counsel to the U.S. Senate Committee on the Judiciary from 1974 to 1975 and as chief counsel of the committee from 1979 to 1980. President Jimmy Carter then nominated him to the U.S. Court of Appeals for the First Circuit, where he later served as its chief judge from 1990 to 1994.
In his 2005 book, Active Liberty: Interpreting Our Democratic Constitution, Breyer contends that the judiciary should try to resolve issues in a manner that encourages popular participation in governmental decisions. His latest book, Making Our Democracy Work: A Judges' View, advocates for a pragmatic approach to the Constitution that applies ageless constitutional values to ever-changing circumstances. He will be signing copies of his book after his talk on January 24.
About the Esdaile Lectureship
This distinguished lectureship was made possible by the generosity of Esdaile, Barrett, Jacobs & Mone, who created it to honor BU Law alumnus James N. Esdaile, Jr. ('70), a lifelong partner in the Boston-based law firm until his passing in 2011 at the age of 66.
"We are honored that Justice Breyer, a highly respected legal scholar and esteemed member of the judiciary, spoke at BU Law," says Dean Maureen A. O'Rourke. "During his nearly two decades on the Supreme Court, he has demonstrated an intellectually thoughtful approach to the cases that have come before the Court. We are also grateful to the Esdaile law firm for funding this lectureship in honor of one of BU Law's most distinguished alumni."
James Esdaile served as managing editor of the Boston University Law Review, clerked for Chief Justice G. Joseph Tauro in the Massachusetts Supreme Judicial Court, and served a tour of duty with the Judge Advocate General's Corps of the U.S. Navy.
After completing his naval service in 1974, Esdaile went into private practice in his father's firm, which became known as Esdaile, Barrett & Esdaile. Over the next 35 years, he built a practice that concentrated on complex tort litigation, including medical malpractice and products liability, as well as business and financial disputes. He argued before all levels of the courts and succeeded in obtaining some of the largest verdicts and settlements in the Commonwealth. In 1984, Governor Michael Dukakis appointed him commissioner of a special commission on medical malpractice. In 1987, he was inducted as a fellow of the American College of Trial Lawyers.
In the 1970s, Esdaile returned briefly to BU Law as a lecturer on legal methods. He served as a University trustee from 1978 to 1982, acting as general counsel for part of that time. In 1990, he served a term as president of the Law School Alumni Association, after three years as vice president. His involvement with BU Law continued until the time of his death. Esdaile was a member of the Dean's Advisory Board and was engaged in the planning for the upcoming expansion and renovation of BU's law campus. He was one of the Founding Benefactors who made a major gift to the School to jumpstart the campus campaign.