Justice Breyer on Asking Questions During Arguments, Voting in Conference, and What He Learned from Ted Kennedy

December 13th, 2015

NPR has an insightful interview with Justice Breyer, where he peels back the curtain at One First Street.

First, on how he approaches oral arguments:

It’s horrible for the poor lawyers! Because we do not think that that half hour, each side, is for them to make their argument. We think we know the argument. And we think that half hour is for us to pose questions that will make a difference to us. … And sometimes the following happens, which I just think is terrific, just terrific: difficult issue — really difficult — and what’s going on in that question is the judges are, through their questions, talking to each other with the help of the lawyer. And the lawyer is drawn into a conversation. And every so often I’ll come off the bench and others will too and say, ‘you know, we really made progress in that argument.’ And progress means it’s a kind of work of art.

And sometimes Justice Breyer doesn’t even need to talk to his colleagues “with the help of the lawyer.” With a Breyer Page, he talks uninterrupted for a few minutes by himself.

Second, on how the Justices vote in conference.

We go around the table. … The chief justices starts and he says, ‘the issue is this case is thus-and-so. And I think I’m leaning this way because,’ and then he gives his reasons. And then it goes to Justice Scalia and then it goes to Justice Kennedy, and then Justice Thomas, Justice Ginsburg, me, Justice Alito, Justice Sotomayor, and Justice Kagan. Nobody speaks twice until everyone has spoken once. That’s an excellent view. I mean, that really is a good rule. And by the time we’re finished, you see, with that part of the discussion, we know where people are beginning and where they stand. And then there can be some back and forth.

This is something I messed up in Unprecedented, as I was misinformed, based on Justice Stevens’s book which was somewhat vague on this point, that the conference starts with the most-junior Justice. I’ve since been corrected.

Third, on what he learned from Sen. Ted Kennedy:

I kept telling my law clerks these things and they gave me a cup with these things engraved. And it says, for example, ‘the best’ — and he believed this, my goodness — ‘the best is the enemy of the good.’ Absolutely, go for the good. Hold out for the best, you’ll end up with nothing. ‘Don’t try to get credit — for yourself or even your boss.’ I mean, he’d say to us, ‘look. If you get a project and you get a law and it’s successful, there will be plenty of credit to go around. And if it’s not successful, who wants the credit?’ And therefore I saw him do this so many times — he’s with someone who has a very different point of view of a different political party and they’re talking about how to produce some kind of compromise. His reaction is, as soon as he sees the opening, ‘what a good idea you have. What a good idea. Let’s see how we can work with that.’ And when it comes time to have the press conference, there he was, pushing the other person out, so that other person would be able to become more popular in his constituency, which is important for elected officials. The process used to work — and I hope it still does in many respects — work at that kind of level. Always.

Fourth, on Congress having a harder time compromising now.

I know what Senator Kennedy thought in part was the cause, because he used to talk about that. He’d say it’s the jet plane. You see, the jet plane means that it’s possible for the elected representative to be home on the weekend. And if he can be home on the weekend, his constituents want him home. So there they are, Friday, Saturday, Sunday, Monday, travelling or home. And they don’t get to know each other as people.

Fifth, on advice from Justices Blackmun and Souter:

Harry Blackmun, who was my predecessor in my particular seat on the court, he told me ‘you will find this an unusual assignment.’ And it is. David Souter told me, ‘you are never off-duty.’ And you’re not. And the point is that all nine of us take this job very seriously. There is no letting up. Their just isn’t. And as you get older, that’s an advantage. It’s tiring, but it’s an advantage. Because it calls for you to give whatever you have — the best of what you have — virtually all the time.