Justices Scalia and Breyer: Little in Common, Much to Debate

Dec. 6, 2006 — -- They deeply disagree on the most divisive issues of the day: abortion, affirmative action, gay rights, the death penalty. In a rare appearance Tuesday night, Justices Antonin Scalia and Stephen Breyer explained why in a lively debate over the role of the Supreme Court and interpretation of the Constitution.

The conservative Scalia and liberal Breyer spent much of the 90-minute debate defending their respective approaches, mixing humor with substantive discussion of the law. The two have served together on the bench for 12 years now, and they share the easy familiarity of old friends, playing off one another and poking fun to score points.

So does Scalia believe Breyer is an activist judge? "I would never call him that to his face," Scalia quipped slyly.

And when Scalia told a story about a French friend who was puzzled by the complications of religion in America -- and he used a European accent in the telling -- Breyer jabbed right back.

"My only question: Why did the Frenchman have an Italian accent?" Breyer asked.

But there were no hard feelings backstage afterward.

"Want to go grab a hamburger?" Scalia asked Breyer as they left Washington's Capital Hilton, where the debate took place.

"Sure," Breyer said. "Let's go."

The two have written and lectured extensively on their differing approaches to the Constitution, which can produce dramatically divergent results on the Court's most dramatic and controversial cases. They agreed to appear onstage together Tuesday night to hash it out at an event sponsored by two legal organizations with views as opposing as the justices' -- the conservative Federalist Society and the progressive American Constitution Society.

"We have our differences," said Breyer during the debate. Those differences stem "from an approach about how you go about interpreting the Constitution."

Said Scalia: "These are widely divergent views.

"Are we taking broad concepts such as equal protection and due process and asking, What should these concepts mean today? That's one view," Scalia said. "Or on the other hand, are we saying, "What do these concepts mean when they were adopted?"

Scalia takes the latter approach, looking at the Constitution's text and what it meant at the time of the nation's founding. He said his approach limits judges from imposing their personal preferences and setting policy.

"That is very easy to figure out," he said. "It's as easy as pie to figure out that the cruel and unusual punishments clause was not understood to prohibit the death penalty. That the due process clause was not understood to forbid laws against abortion."

And if people want to change things, Scalia said, they shouldn't look to the courts. "Use the legislature," Scalia said. "That's what we do in a democracy."

But Breyer views the Constitution more expansively, believing justices should consider the purpose of the document and what the framers were trying to accomplish.

The First Amendment, for example, prohibits the government from establishing a religion -- a provision that was designed to lessen religious strife. That's why Breyer said he opposes school vouchers, which allow parents to use government subsidies to send their children to religious schools.

"To allow the vouchers in this society would provoke too much religious dissension," Breyer said. "People feel religion so strongly."

The justices also talked about the leadership of new Chief Justice John Roberts and how he has allowed more discussion in the justices' private conferences, when they meet twice a week to discuss cases. Scalia predicted that would change once Roberts settled into his role.

Scalia also seemed dubious about Roberts's goal of achieving more unanimity on the Court. In an interview last month with ABC News, Roberts explained that he's more likely to assign opinions to justices who can sway others to their side -- even if that means the Court decides the case on narrow grounds.

"I think it's important to have as many people supporting a decision of the Court as possible," Roberts said in the interview at the University of Miami.

Roberts, who has the important task of assigning opinions when he is in the majority, explained that a justice who could get the most consensus was more likely to get an assignment than another justice whose sweeping approach made it difficult to get four or five others to agree.

"The more justices that can agree on a particular decision, the more likely it is to be decided on a narrow basis," Roberts said. "I think that's a good thing when you're talking about the development of the law that you proceed as cautiously as possible."

But Scalia, who is known for his colorful and, at times, bold decisions, didn't seem convinced.

"Lots of luck," Scalia said, when asked about Roberts's' goals.

Disagreement and dissent can be good things, Scalia said, and the Court shouldn't be afraid to take on big issues.

"You know you can get more agreement by deciding less," Scalia said. "And if you wanted to decide almost nothing at all and decide the case on such a narrow ground that it will be of very little use to the bar in the future, you can get nine votes."

But if you want to take on the big question that's dividing the lower courts, "it's going to be harder to get a nine to nothing vote," Scalia said.

"I am not against narrow opinions. There are good reasons to get narrow opinions. One of them is not to get nine votes," Scalia said. "That's not what we're here for. We're here to solve the difficult problems that are presented by these cases."

Roberts also said in his Miami interview that he doesn't think boldness is necessarily an attribute in opinion writing.

Again Scalia took issue.

"I don't think the law has to be dull," he said. "Sometimes majority opinions have to be dull because you have to get your colleagues to jump onboard. But I think putting things in a fetching way, in a memorable way, is all to the good, especially in dissents."