"It profits me but little that a vigilant authority always protects the tranquillity of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life."

--Alexis de Tocqueville, Democracy in America

Monday, September 19, 2011

Hugh Hewitt Interviews Justice Steven Breyer

Hugh Hewitt does really good interviews, particularly of people who've written books he's touting, because he always reads them thoroughly and prepares his questions thoroughly, just as any good lawyer would.   Over the weekend he posted an interview with Justice Steven Breyer about his new book,    It's all very interesting, particularly for lawyers like me, but the most interesting part is how differently he describes the inner workings of the Court compared to what many imagine it to be (with an evil Scalia and Thomas at constant battle with the good liberals on the Court):

HH: In conference, is there one justice who will remain nameless who dominates conversations?
SB: No, no. The interesting thing about the conference? In the 17 years I’ve been there, I’ve never once heard a voice raised in anger. Never. I have never heard one judge say something rude about another, not even as a joke. Despite the controversy and disagreement, people are professional, they say what their reasons are, they listen to each other, and they try to contribute something that will make a difference to the others.
HH: One of the students asked a very interesting question in that regard. Does the fact you’re going to be there for your lifetime appointment, years and years, and decades, even, with people, does that impact your daily discussions and relationships with each other?
SB: Yes, it does.
HH: How so?
SB: Because it means we had better get along with people. And even as a practical matter, you better listen to what other people say. And one of the, there are two great unwritten rules, and you won’t find them in any book, about that conference. Rule one, nobody speaks twice until everyone has spoken once. That’s a fabulous rule for any small group of people. The people at the end don’t feel they’re being not listened to. Second rule, tomorrow is another day. You and I might have been the greatest allies on case one that’s ever been. And we get case two, and we’re totally at loggerheads. And the fact that you were an ally on case one does not affect the decision on case two. It is not a political logrolling institution. Each case is considered on its merits. Tomorrow is another day.

As much as we might criticize certain rulings of the Court (Roe v. Wade comes to mind), it is actually an institution that has worked quite well over a long period of time and for reasons that have as much to do with the "unwritten" traditions of English-speaking peoples going back to the English common law as to anything else.

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