Law Review: Justice Breyer seeks a multidimensional approach to dissecting constitutional questions

Stephen G. Breyer is acutely, perhaps painfully, aware that the Supreme Court is the weakest branch of government.

It has no police force or army, nor can it get its way by funding someone's favorite program - or putting it on the chopping block.

It has only the force of its own legal reasoning and precious reserves of credibility with citizens it earns over generations by often, although not always, correctly resolving the most divisive disputes facing society.

"It is the weakest branch of government, no purse, no sword - and obscure," says Breyer, who was appointed to the Supreme Court by President Bill Clinton in 1994.

Breyer sat down Thursday for an hour-long interview in his wood-paneled Supreme Court chambers to talk about his newly published book Making Our Democracy Work, A Judge's View.

Central to the book is the idea that the court's authority rests largely on public trust - trust that the process, over time, will lead to the best result. Even though the court is entirely capable of getting its decisions profoundly and calamitously wrong.

"Not only does the court have the obligation to protect unpopular persons, the court is made up of nine human beings, not nine angels, and they will sometimes make mistakes," Breyer, a youthful looking 72 years old, said between sips of tea. "So we have to convince people that you should support an institution that will do things you will find unpopular, and they may be wrong."

Breyer, who argues in his book for a multidimensional approach to unpacking constitutional questions, says jurists must be mindful not only of the founders' intent, but they must also show unwavering resolve in extracting and applying the document's fundamental values to new and changing circumstances.

Critics dismiss this approach as merely an invitation to creative thinking and the finding of imaginary rights, but Breyer argues there is always the law, millions and millions of words of it, to act as a check.

The court must also accommodate the thinking of ideological opposites, such as Trenton-born Justice Antonin Scalia, whose robust conservative jurisprudence has helped shape and direct constitutional law for nearly a generation. It is Scalia who has been most critical of the type of analysis promoted by Breyer, which he says veers from the plainly enunciated meaning of the Constitution.

"That is the criticism, and it is very valid," says Breyer, who has five grandchildren and whose commuter marriage has him spending part of his time in Washington and the balance at his home in Cambridge, Mass. "And my answer to that is, it does not [lead to subjectivity] any more than any other approach.

"The law is not a matter of going to read what James Madison was writing under the table, because he wasn't, and if he did, we can't find it. In any real case that comes up, it is very rare that you find history unambiguously on one side or another."

Breyer still maintains some of the mannerisms of the Harvard Law School professor he once was, notably a seemingly impish delight in the power of ideas. A native of San Francisco, he gets a kick talking about the San Francisco Giants and the World Series, but in keeping with his nonlinear analytical approach, worries at the same time about offending Phillies fans.

Breyer's explanations of how he sorts through the complexities of cases where, as he has puts it, "lots of things are pointing in opposite directions," are not the delphic musings of a former Ivy League law professor now ensconced as a justice of the highest court of the land.

Battalions of lawyers, in Washington mostly but also in Philadelphia and other big cities, make their livings devising arguments for review by the Supreme Court.

Breyer's words surely will be studied carefully by these lawyers as they tailor arguments they hope will get them the five-vote majority needed to win a Supreme Court case.

Breyer, a member of the court's liberal wing, says judges must weigh not only statutory and constitutional text, but also the practical and real-world consequences of a decision.

So he writes that in the infamous Dred Scott case, the court erred with disastrous consequences by upholding Scott's enslavement.

The scathing dissents so galvanized opposition in the north that it helped bring about the Civil War. The decision caused President Lincoln himself to wonder aloud about the court's legitimacy.

Later, the court further damaged its image with the 1896 Plessy v. Ferguson "separate but equal" decision.

But then came the upside, suggesting the court's ability to eventually get it right. In 1954, the Supreme Court said goodbye to all that with Brown v. Board of Education, outlawing segregated schools.

Brown v. Board of Education was ignored for a while, too, but the deadlock was broken a few years later when President Eisenhower sent federal troops to Little Rock, Ark., to enforce a federal judge's desegregation order. In the end, Brown went a long way toward bolstering the court's credibility, says Breyer, because the public came to see that it made the right call.

So much so that the public accepted the court's decision in George W. Bush v. Al Gore, handing the 2000 presidential election to Bush, even though Gore had won the popular vote.

Breyer had voted against that decision, and thought it was wrong. But he said the fact that it had been accepted, controversial as it was, might be more important than the decision itself.