Supreme Court must take a world view, Justice Stephen Breyer says

Richard Wolf

WASHINGTON — He’s the least-known justice on the Supreme Court despite more than two decades there. He’s the lone male in the four-member liberal wing more noted for its female nominees. And while many other justices speak and write in sound bites, he tends to be long-winded.

Supreme Court Associate Justice Stephen Breyer

But don’t underestimate Justice Stephen Breyer. He emerged in the court’s last term as the justice with the best winning percentage, which means that his view prevailed more often than anyone else's. On Tuesday, he’s out with his third book in a decade, The Court and the World, in which he argues for a greater understanding of foreign laws and international treaties as a way to help guide judicial decisions in the United States.

On Monday night, he even went on The Late Show with Stephen Colbert to make his case. The book was shown — but not a word was heard about it — as the two jousted about the lack of cameras in the courtroom and the abundance of collegiality in the justices' conference room.

That's OK with Breyer, 77, who endures all manner of questions — including incessant queries about when he and the court's other septuagenarians and octogenarian might retire. He answers patiently while waiting in prey for the chance to address the serious subjects that command his time and attention.

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The Court and the World is one such subject. In it, Breyer — a worldly lawyer and judge who can conduct interviews in fluent French — notes that an increasing number of high court cases require a greater understanding of international developments before they can be decided.

The issue is contentious, because some of his colleagues — from Chief Justice John Roberts to Justice Antonin Scalia — say the Constitution should not be subject to meddling from abroad. "We have our laws, they have theirs," Scalia said during a speech in May.

But Breyer insists he's not trying to pick a fight with the feisty Scalia or anyone else. Rather, he wants to illustrate how legal disputes involving international security, commerce, the environment and human rights often require a keen understanding of other nations' laws, rules and customs.

“They are concerned that too much referring to cases abroad will water down … our basic American values — democracy, human rights, rule of law," Breyer said during a phone interview Tuesday with USA TODAY. He argues the opposite is true — that only by solving problems "beyond our shores" collectively can American values be protected.

Along with his earlier books, Active Liberty and Making Our Democracy Work, Breyer said he hopes his latest literary effort will be read — or at least skimmed — by laypeople in addition to lawyers.

“I feel there’s a tremendous thirst for knowledge about the court,” he said. “My book is not just for lawyers and judges. It is for people interested in how their lives are being changed by what’s happening in today’s world.”

Those interested in the court this past term would learn that Breyer, despite his liberal roots, was in the majority on decisions 92% of the time, more than any of his colleagues. The same was true for the smaller number of divided opinions — he was on the winning side 86% of the time.

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He also delivered one of the most controversial dissents on the court's last day, June 29, arguing that it's time for the justices to consider whether the death penalty remains constitutional. Breyer cited mistakes that have led to 155 exonerations from death row, racial discrimination, geographic disparities, decades spent in solitary confinement, and trends away from the death penalty in courts and state legislatures as reasons why it may violate the 8th Amendment's prohibition against cruel and unusual punishment.

As for his own future after 21 years on the court — will he seek to depart under a Democratic president such as Hillary Clinton, whose husband nominated him in 1994 — Breyer is circumspect.

“I was the appointed person. I am not the appointing person. The appointing person is a person in the realm of political life,” he says. “We have to stay away from politics, period, period — not go near it with a 30-foot pole.”

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