Breyer: Apply Founders’ values pragmatically

Wednesday, April 6, 2011

LITTLE ROCK, Ark. — U.S. Supreme Court Justice Stephen Breyer argued yesterday that judges needed to apply the Constitution's values with an eye toward the changing times as he talked about the past successes and missteps of the nation's highest court.

Breyer told hundreds of people during an event in downtown Little Rock that a judge's job was to figure out how the Founding Fathers' values apply to modern issues.

“George Washington didn't really have a view about the Internet,” he said, drawing laughter from the crowd of about 650 people at the Statehouse Convention Center.

Breyer touched on several issues as he discussed his latest book, Making Our Democracy Work, including recent controversial court rulings, justices' ideological differences and the landmark 1957 decision that allowed nine black students to enroll in a Little Rock high school just a few miles away. He called that ruling, Brown v. Board of Education, one of the Court's fundamental cases.

The 72-year-old Breyer, considered one of the Court's more liberal justices, said the Court should apply the Constitution's values with a pragmatic view toward present circumstances, rather than focusing only on the document's historical meaning.

That view conflicts with the approach of conservatives, including Justice Antonin Scalia, who say that justices should apply the Constitution's words as they were meant when they were written. Scalia and other conservatives have a majority on the Supreme Court.

In an interview later with the Associated Press, Breyer said ideological differences could be constructive. Asked if the Court was more ideological now than in previous eras, Breyer demurred.

“It's a big country,” he said. “The fact that there are people of different views is not a bad thing.”

Breyer, who was appointed to the Supreme Court in 1994 by President Bill Clinton, held his speaking event less than three miles from where the so-called Little Rock Nine famously integrated a high school in 1957 under the protection of federal troops.

“I want people to think about that case, because I think it was a turning point,” Breyer told the audience.

He discussed President Dwight Eisenhower's decision to send troops to Little Rock, despite warnings from opponents who warned that the troops could spark trouble across the South.

Breyer said it was among the Supreme Court's fundamental cases, not all of which were decided correctly, he said. Breyer said the Court was wrong in some rulings, including the Dred Scott decision in 1857 that denied freedom to a slave and a ruling that allowed the internment of Japanese-Americans almost a century later.

But Breyer said officials from nations with developing democracies admired Americans' faith in an unelected court to uphold or strike down laws.

“I do think if the Court does a better job of getting the legal decisions right, people will come around or are more likely to maintain their confidence in the Court,” he said.

During his speech, an audience member asked Breyer about Citizens United v. Federal Election Commission, a ruling last year that removed most limits on election spending by corporations and labor. Breyer opposed the decision, which split the Court's liberal and conservative judges on a 5-4 vote, and said certain limits were needed to protect the rights of voters.

“The alternative is to choke the voices off from the people who don't have money,” he said.

Breyer also briefly addressed the Court's recent 8-1 decision in favor of the Westboro Baptist Church, which has held provocative protests at hundreds of military funerals over the opposition of the slain soldiers' families. Breyer, who sided with the majority in Snyder v. Phelps, said the rights of mourning families needed to be balanced with the constitutional right to free speech.

Asked about retirement, Breyer laughed and shook his head.

“Have I thought about it? No,” he said.

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