In a speech before the University of Arizona Rogers College of Law this morning, Supreme Court Justice Stephen Breyer indicated he is working on a new book on "principles of judging." After the talk, Breyer confirmed the project to Legal Times, but said he had no title or deadline. "These things are hard!" Breyer said. As he described it, the book sounded like something of a sequel to his 2005 book Active Liberty, which offered his view of the Constitution. That, in turn, was viewed in some quarters as a liberal's response to Justice Antonin Scalia's earlier book, A Matter of Interpretation. Will a Scalia response to Breyer's new response be far behind?
Breyer was at the law school to give the Marks Memorial Lecture, and also to speak on Tuesday at a symposium on the new media and the courts sponsored by the Rehnquist center at the U of A law school. (That's why we're in Tucson also.) Most of Breyer's talk was a discourse on the Dred Scott decision of 1857. It is hard to make that discredited ruling come alive, but Breyer managed to speak about it engagingly, as a lesson in "what not to do." Breyer's overall message was that judges are most likely to screw things up when they think of themselves as "junior politicians" or political actors rather than jurists working from a rational set of principles. "I don't sit there and think I am a liberal judge. It's dangerous," he said.
Asked about recent Supreme Court rulings that rebuked the Bush Administration's assertions of executive power, Breyer said that in the series of Guantánamo rulings, the executive branch had lost three times and Congress twice. "We said bin Laden's driver was right," Breyer said, referring to the 2006 Hamdan v. Rumsfeld decision.
Breyer went on to say he had recently watched the HBO movie "Recount," a treatment of the historic 2000 Florida election dispute that ended with the Supreme Curt's ruling in Bush v. Gore. Breyer said he appreciated the fact, noted in the movie, that when Al Gore saw his case going down the tubes, he warned his aides "not to trash the Supreme Court" in reacting to its actions. Breyer also noted that President George W. Bush, in responding to his latest Supreme Court defeat in a detainee case, said, "I don't have to like it, but I'll follow it."
The audence rose to its feet in applause when Breyer said, "I thank you, President Bush, for those words. In them is the history of the United States of America."