Supreme Court Justice Gives LAW’s First Esdaile Lecture

Not long ago Stephen Breyer was in the Burkina Faso capital of Ouagadougou addressing that nation’s 72 judges. Using a string of historical decisions from Brown v. Board of Education to Bush v. Gore, Breyer (Hon.’95), a U.S. Supreme Court associate justice, explained that “it’s a very good document, this Constitution, but it’s not just the words on paper.” And if those judges wanted a metaphor, he said, he would have chosen one inspired by his youthful addiction to the ’50s radio serial Sergeant Preston of the Yukon, about the heroics of the Canadian Mounted Police.

“Life in the Yukon was cold, it was rough,” he told an audience of students and faculty at the BU School of Law Thursday afternoon. The court is “the border patrol. Abortion—inside or outside the boundary? What about that school prayer? But don’t forget that the place within the boundaries is really vast. So don’t get mixed up that suddenly we’re deciding everything.”

Breyer was the inaugural speaker for the school’s James N. Esdaile Lecture. The distinguished lectureship was made possible by a gift from the Boston-based law firm Esdaile, Barrett, Jacobs & Mone and was created to honor James N. Esdaile, Jr. (LAW’70), a partner in the firm until his death in 2011 at the age of 66. Breyer acknowledged Esdaile’s widow and children in the audience and shared the observation that trial lawyers like Esdaile reflect, as Breyer’s attorney brother would put it, “where the cream of the bar is.”

Casual and relaxed, with occasional good-natured references to his more conservative brethren, Breyer cited a string of historic high court decisions to illustrate the ideas mapped out in his most recent book, Making Our Democracy Work: A Judge’s View (Vintage, 2011). The book outlines his pragmatic, mostly optimistic view that the judiciary has the power to show the people of the United States that the Constitution continues to serve all of us and serve us well. “Every one of the founders knew they’d written something terrific, but James Madison said that if nobody has the power to say when we’ve gone too far, then it may as well be hanging in a museum,” said Breyer, who was appointed to the court by President Clinton in 1994. Why give judges that power? Some people might think of the Supreme Court as a “junior varsity congress,” he said, but he imagines that the minds of the framers concluded that unlike the president, who already has too much power, and Congress, who “are very safe to rely on when something’s popular,” judges “do not have the power of the purse, and they do not have the power of the sword. Wonderful.”

In a review of Making Our Democracy Work, David Margolick writes in the New York Times that “rather than stake out fixed positions,” Breyer “has built coalitions and achieved consensus.” He describes Breyer as a man “unencumbered by any overarching ideology,” one with a well-earned reputation “for doing as well as thinking.”

Breyer spoke of the court’s role in resolving deep national conflicts in a definitive and peaceful way. He cited a contemporary case that deeply divided the nation—Bush v. Gore, in which the court ruled 7-2 against the constitutionality of a proposed Florida recount in the disputed 2000 presidential election. Referring to it as a case “you really hate,” Breyer, a dissenter on the ruling, described how the most remarkable thing about that decision was that “despite its unpopularity and despite the fact that it was very important” and despite the fact that many people thought it was very wrong, “no one was killed, there was no rioting in the streets.” When he speaks to college groups about the case, he said, “I say, I know some of you are thinking, too bad there was no rioting in the streets, but I say, turn on your television set and see what happens when people try to resolve their differences that way.”

There’s a tradition in American life that judges use “prudence and pragmatism, reasonableness and utility,” said Breyer. “I can imagine Scalia in here, saying, ‘Oh good, you’ve graduated to the level of bumper sticker.’” But he said he wants to illustrate how the court “takes values in the Constitution that don’t change, like free expression, and applies them to circumstances that change every five minutes. It’s true that George Washington didn’t know about the internet, but the internet is protected by the First Amendment.”

He also spoke about the court’s recent string of rulings in favor of detainees at Guantanamo Bay detention camp and its “really terrible” 1944 decision in Korematsu v. United States upholding the government’s herding of Japanese-Americans into internment camps in California after Pearl Harbor. The court is flawed, Breyer said, but it has worked. “There have been lots of ups and downs in our history, and the court has been part of the downs as well as the ups. And the court has done things that are unpopular and quite possibly wrong, because they’re human. And that’s what you have to explain to the 300 million Americans who are not lawyers, and to the judges in Ouagadougou. The motto is, know your government. Know something of history. Participate. And try to keep what I call this national treasure.”

Breyer began his legal career in the 1960s as a clerk for Supreme Court Associate Justice Arthur Goldberg. From 1965 to 1967, he was 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.

He returned to Washington as an assistant special prosecutor on the Watergate Special Prosecution Force in 1973, then was special counsel to the U.S. Senate Committee on the Judiciary from 1974 to 1975 and chief counsel from 1979 to 1980. President Carter nominated him to the U.S. Court of Appeals for the First Circuit, where he served as chief judge from 1990 to 1994.

Breyer was a teenager in San Francisco when the Supreme Court in 1954 ruled in favor of the desegregation of Central High School in Little Rock, Ark., and an ugly battle unfolded. Despite the state’s governor defying the ruling, going so far as to mobilize the state militia, the segregation order went into effect, enforced by President Eisenhower reluctant enlistment of troops from the 101st Airborne. “They were the heroes of World War II who had flown into Normandy and fought at the Battle of the Bulge, and they took those children by the hand and escorted them into that school and the pictures went around the world,” said Breyer, “and that was a great day for equality, for the rule of law, and for America.” Of course, the struggle dragged on, with segregationists closing the schools and more court rulings, until integration, and justice, prevailed. “But in my mind the die was cast after the sending of the troops,” he said. “Could we have solved it any other way? No.”

James N. Esdaile (LAW’70), who was managing editor of the Boston University Law Review, was 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 School of Law Alumni Association, after three years as vice president. He was a member of LAW’s Dean’s Advisory Board.

Watch Supreme Court Associate Justice Stephen Breyer (Hon.’95) deliver the inaugural Esdaile Lecture at the School of Law here.