Supreme Court Justice Stephen Breyer says not all rulings from America’s highest court are correct, admitting judges don’t have “some great special insight,” and he defends the practice of studying courts in foreign countries to help decide cases in the United States.
Breyer made the remarks during a panel discussion this week in Chicago at the annual conference of the American Bar Association.
When asked about the real threat to judicial independence in America, Breyer responded:
“There is a natural tension between the branches [of government] – the separation of powers, the fact that we do pass on congressional legislation, the fact that we are meant to be insulated from public opinion, and the fact that not all our decisions are right, to tell you the truth. We don’t have some great special insight. We do our best, but not surprisingly a lot of those decisions create a lot of strong feeling in the country.”
He pointed out the nine-member court is unanimous in its rulings some 40 percent of the time, adding, “Sometimes we’re right, sometimes we’re wrong, sometimes we split. And when we split, one virtue is somebody must be right, though I know you’d never know that.”
“If you’re not always right, then resign,” says Frank Sandoli of Akron, Ohio, in response to Breyer. “Get a coat hanger and hang up your robe.”
During the conference, Breyer also defended the increasing practice of the U.S. Supreme Court examining laws and rulings in foreign nations to help come to conclusions here, admitting, “It has hit a political nerve.”
“We’re not bound by any foreign law,” Breyer said, “but this is a world in which more and more countries have come to have democratic systems of government with documents like our Constitution that protect things like free expression. And there are judges, and the judges have a job somewhat similar to mine, and so why not sometimes, on unusual occasions probably, look and see what they said if it’s relevant. Maybe we can learn something. I mean they’re human beings, too.”
Breyer’s support of overseas rulings is unsettling to some, such as Larry Johnstone of Colorado Springs, Colo.
“That is a clear and worthy attitude for him to be brought up on charges of breaking his own vows of office when he was sworn in, to defend the Constitution against all enemies, both foreign and domestic. Now the lunatic is guilty of what he swore to defend himself,” Johnstone says. “Not one peep about this transgression from our high-minded senators and congressmen, let alone the president.”
Breyer’s comments echo previous statements by Justice Sandra Day O’Connor, who recently announced her retirement, pending confirmation of a replacement.
“International law is a help in our search for a more peaceful world,” said O’Connor. “Our island or lone-ranger mentality is beginning to change.” Justices, she added, “are becoming more open to comparative and international law perspectives.”
Meanwhile, Breyer, who was joined on the panel by Sen. Lindsey Graham, R-S.C., and former U.S. Solicitor General Ted Olson, also noted that those who make the final rulings are not immune to worrying.
“Worry is a state of mind. It’s a normal state of mind even for a judge,” he said. “I think at this particular time, given the budgetary problems, the institutional problems, the pay problem and a lot of others together lead us to worry, and we don’t know what exactly what we can do about it, but we’ll do our best.”