Supreme Court Justices Breyer, Scalia Split in Ideology and Style

They appear at law schools together to discuss their competing views of the Constitution. They take ideological aim at each other in rulings. And their differences are increasingly playing out in testy fashion on the bench.

No two justices seem to drive each other so nuts during oral arguments. That was clear during the first session of the new year, as Justices Antonin Scalia and Stephen Breyer squabbled in a series of cases last week.

Scalia is conservative and Breyer liberal. Yet their differences on the bench are ones of both substance and style. As Breyer begins a long, hypothetical question, Scalia — a fast-speaking, get-to-the-point guy — often slaps his hands up to the sides of his head.

Breyer doesn't exude irritation as much as frustration. A pragmatist, he is irked when Scalia interrupts his interest on how a ruling might affect real life.

Video of President Ford nominating John Paul Stevens to Supreme Court.

Such differences emerged in last Wednesday's antitrust dispute involving the National Football League as Breyer began spinning scenarios about how teams might get together to market their sweatshirts and caps.

Impatient with Breyer's inquiry, Scalia said to the lawyer at the lectern, "Do I have to figure this out here? Is this issue before us here? ... Why am I worrying about all this stuff?"

"Because counsel has an obligation to respond to questions," lawyer Glen Nager answered.

Breyer then explained himself. "I find it easier to think about the case if I know what's going on." He added with some sarcasm, "And I'm not certain this is irrelevant, but given Justice Scalia's persuasive remark, I will withdraw my question."

Concrete points of view

As the two justices make clear when they appear together at law schools, Scalia's approach to the law is hard and fast. He interprets the Constitution based on its 18th-century context and focuses tightly on the words of a law. Breyer looks at the Constitution and federal laws in the context of contemporary society.

Both have written books about their approaches.

"Both of them are quite convinced that they are proceeding in a way that is sensible — so they are unlikely to move each other," says Toni Massaro, a law professor at the University of Arizona, where Scalia and Breyer spoke last fall. "Both are witty and smart and confident, so they can — in different ways — score points off of each other and neither is mortally wounded."

The two justices clashed in a dispute last Tuesday over federal authority to continue to confine convicts who have served their time but are deemed "sexually dangerous" by the Justice Department.

Breyer took a broad view of U.S. power in what could be considered a state matter. He suggested to Alan DuBois, the lawyer challenging the civil-commitment law, that the government would have authority to "set up a system of mental illness prevention and cure" and confine people.

DuBois resisted the idea. Breyer continued to press the notion of federal power in the area of mental health, and DuBois —whom Scalia was plainly backing — kept generally rejecting it.

"Try the Tenth Amendment," Scalia interjected, attempting to swat away Breyer's argument by referring to a constitutional provision safeguarding state power.

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