The following is an article written by Mark Hartsell, writer-editor for The Gazette, the Library of Congress staff newsletter.
The court’s decision in Bush v. Gore, 531 U.S. 98 (2000), brought an end to the contested presidential election of 2000, and in the aftermath, Breyer noted, there were no riots, no acts of violence, no guns, no deaths.
“We have decided to decide our major disagreements under a system of law,” he said Tuesday in the Coolidge Auditorium. “That is a remarkable thing, that people actually follow that. It has a long history, and that history does begin 800 years ago with [Magna Carta].”
Philanthropist David Rubenstein interviewed Breyer in the Coolidge as part of a Library of Congress symposium marking Magna Carta’s 800th anniversary and exploring how the charter’s political and legal traditions carried into modern times.
The program, sponsored by the Law Library, featured four panel discussions: “Drafting Modern Constitutions,” Proportionality Under the 8th Amendment,” “The Enduring Value of Magna Carta” and “Rule of Law in the Contemporary World: Civil Liberties and Surveillance,” a panel that included Reps. Jerrold Nadler (D-N.Y.) and F. James Sensenbrenner Jr. (R-Wis.).
Sir Robert Worcester, chairman of the Magna Carta 800th anniversary commemoration committee, also provided an international perspective on the Great Charter’s legacy.
Since, Rubenstein said, one rarely gets an opportunity to interview a Supreme Court justice, he asked Breyer about a wide range of subjects – Magna Carta, his experiences as a special counsel in the Senate, the inner workings of the court, cameras in the courtroom (“too many uncertainties”) and his beginnings as a lawyer.
“You may not remember this – you’re not old enough – but there was a time when you tended to do what your parents said,” Breyer said to laughter, noting that his own father was a lawyer. “It’s completely foreign to this entire audience, such an idea.”
Breyer served as a law clerk to Supreme Court Associate Justice Arthur Goldberg, a special assistant in the Justice Department, an assistant special prosecutor on the Watergate Special Prosecution Force and, in the late 1970s, as counsel to the Senate Judiciary Committee, working for Sen. Ted Kennedy – an experience he called “fabulous.”
“I learned a lot from him,” Breyer said. “He was wonderful to work for. … It was fun. It was interesting. You wanted to accomplish something good. Every minute, though, there are things that pop up. It’s a wonderful place to work.”
“For any lawyer to become a federal judge, lightning has to strike. It really does,” he said. “To be on the Supreme Court, it has to strike twice in the same place.”
Breyer said he often is asked about the way in which the high court makes its decisions: People will ask, Aren’t you just “junior-league politicians”? Don’t you just decide cases however you like?
“I never do what I like,” Breyer quipped. “Are you kidding? It’s like being married.”
About half the court’s cases are decided unanimously, he said, and only a very small minority are decided according to what media would think is a liberal-conservative breakdown.
But those decisions, he said, are informed less by ideology than simply by a lifetime of professional and personal experiences that shape each justice’s views and the way he or she grapples with difficult, complicated constitutional questions.
“You cannot jump out of your own skin, and you shouldn’t,” he said. “Therefore, on that basis, you will find differences and you will find a coalescing around certain basic things. …
“It’s not such a terrible thing to go on the Supreme Court of the United States. Over long periods of time, you have people who think quite different basic views about how this document should be interpreted. It’s OK.”
Breyer also discussed the most basic principles American law derived from Magna Carta: No person shall be deprived of life, liberty or property without due process of law.
“It’s such a simple idea,” he said. “But that’s what people are all over the world today trying to see if they cannot embody in institutions.”
The charter’s influence, he said, clearly can be found in contemporary issues. Supreme Court Associate Justice Anthony M. Kennedy, Breyer said, cited Magna Carta in a decision that determined prisoners at the Guantanamo Bay military detention camp have the right to come into civilian courts.
“We have a constitution that doesn’t just guarantee democracy,” Breyer said. “It guarantees democracy, basic human rights a degree of equality, separation of powers, and it guarantees a rule of law.”
Breyer and his law clerks toured the “Magna Carta: Muse and Mentor” exhibition in the Jefferson Building in late November and, on Tuesday, he urged the audience to visit as well.
“It’s fabulous, partly because you see the document. … Partly because as you go through that exhibition it will force you to think about the time that has passed, the people who have been involved, a few of the ups and downs,” Breyer said. “Think of this country. We lived in a period of slavery. We had a terrible Civil War. We had 80 years of government-backed racial segregation.
“We’ve had all kinds of ups and downs, and it’s taken a very long time before those words in the Magna Carta have come to be accepted in the customs and habits of the people.”
Update: Event video added below.
The Library of Congress is commemorating the 800th anniversary of Magna Carta with an exhibition – Magna Carta: Muse and Mentor, a symposium, and a series of talks starting this year. Through January 19, 2015, the Lincoln Cathedral Magna Carta, one of four remaining originals from 1215 is on display along with other rare materials from the Library’s rich collections to tell the story of 800 years of its influence on the history of political liberty.