WASHINGTON, Jan. 19, 2010 -- 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.
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.
When Breyer came back with another example tied to federal authority for health and hospitals, a frustrated Scalia exclaimed: "No, no. The government can spend money on whatever it wants. That's the spending power. They can set up hospitals. The issue is whether they can force somebody into a hospital, not whether they can set up hospitals."
Standing their ground
Breyer and Scalia have been on opposite sides of cases testing defendants' right to confront the witnesses against them. In recent years, Scalia has prevailed, including when he wrote an opinion last term that extended the right of confrontation to routine drug and other forensic reports. The court said the Sixth Amendment requires the analyst who prepared the report to testify.
Many states say their labs have been bogged down since the decision in a Massachusetts case. A case last week, from Virginia, tested whether the confrontation right could be satisfied as long as a defendant can call the analyst for cross-examination.
During the oral arguments, Breyer and other dissenting justices from last term referred to complaints that requiring an analyst to testify for the prosecution has complicated trials.
When Breyer mentioned the possible "inordinate expense," Scalia asked the lawyer seeking to reinforce the ruling from last term, "Aren't there states that have been proceeding this way, even before we came down with our opinion? ... And they are not under water, are they?"
"Absolutely," lawyer Richard Friedman said.
"I don't know except anecdotally," Breyer said, "but Massachusetts seems to be having huge problems."
Breyer would not let the answer to Scalia be the end of it. Minutes later, after other justices had asked some questions, Scalia and Breyer were at it again, undercutting each other's points and getting under each other's skin.