Richard Thompson Ford: From Stanford University and SiriusXM, this is Stanford Legal. I’m Rich Ford.
Joe Bankman: And I’m Joe Bankman. Today we’re talking to Jenny Martinez, Dean of the Stanford Law School and former clerk for retiring Supreme Court Justice, Stephen Breyer, about pragmatism on the court and his thoughts on the role of the Supreme Court justices, and of course his legacy.
Thompson Ford: Yes, Joe, a lot of people are saying with the announced retirement of Justice Breyer, that it’s kind of the end of an era in the Supreme Court, that Justice Breyer represented a certain kind of genteel perhaps, but certainly less partisan, less ideological form of work at the Supreme Court and that with his retirement, we may be entering an era that’s very different.
Bankman: And today, Rich, we’re going to be benefited by the presence of Jenny Martinez, our Dean and colleague, but a former clerk of Justice Breyer. And of course, when we talk about former clerks, we in law know that the Supreme Court Clerk is not someone who say, takes dictation. These are the best and the brightest of law students who are helping draft opinions. She’s going to tell us a little bit about that former picture of the court. I think she was on about 20 years ago in 2003, and she’s kept track of how it’s changed.
Thompson Ford: Jenny, welcome to the show. I just wonder if you could tell us what it was like being a clerk for Justice Breyer, any things that really stand out to you that you could share with us?
Jenny Martinez: It’s a real pleasure to be here today with both of you and to talk about my old boss, Justice Breyer. It was a wonderful clerkship before becoming a judge, Justice Breyer had been a law professor at Harvard, and I think he was famous on the bench for a kind of professorial air to some of his questioning. It put some lawyers imagining themselves back in their first year law school seats, answering questions of great difficulty from a faculty member. But he also brought that same attitude to working with his clerks. That is, of really learning from them, of helping teach them about the law, of wanting to explore the law with them. And so he was, as I said, quite famous for elaborate hypotheticals and he definitely practiced those in chambers, as well as on the bench. We had one famous hypothetical the year I was clerking that involved a goat that was also a chicken.
And I can’t quite remember the statute that he was trying to interpret that led to that hybrid animal being in the hypothetical questions we were tossing around, but I think it was all an example of the way in which he has a very curious mind and really tries hard to get to the right answer and to explore the implications of the law for the real world and how it’s going to play out in a bunch different scenarios in the future that the court needs to be cognizant of as it decides the case in front of it.
Thompson Ford: One of the things that seems to come forward in a lot of the descriptions of Justice Breyer, including your really interesting piece in the Washington Post, was how practical he was, how pragmatic. So it’s funny that someone… The stereotype of the ivory tower is the person whose head is in the clouds and thinks about big theories and not the practical realities, but it sounds like Justice Breyer was just the opposite. And in a time when there are a lot of big theories of interpretation or originalism or textualism, that Justice Breyer instead was very practical, concerned about making things work for the average person.
Martinez: Yeah, I think he had a very strong focus in his decision making as a judge on ordinary people, and that the court’s decision should be understandable to ordinary people, that they should be able to read a Supreme Court decision and know what it meant and why the court was reaching the outcome that it did. And I think for Justice Breyer, that transparency is a really important part of being a judge in a democracy where the courts are not directly elected in the federal judiciary by the people, they’re appointed. And sometimes they strike down as unconstitutional, laws that are enacted by the democratically elected branches, the Congress ratified, signed by the president.
And when the courts do that, he thought and thinks it’s really important to be clear about what exactly the court is doing and why. Where in the constitution does it say this is a problem? Why is it a problem? And being transparent about the court’s reasoning. And that includes a dose of practicality, where a grand theory of things might not correspond with how it would work out in the real world. And so you see that in a lot of different ways in his opinions as a kind of modesty and aim at transparency, aim at describing the kinds of situations he was thinking about in the case before the court.
Bankman: Justice Breyer also has a reputation for being a little bit less partisan than other justices, or a lot less partisan, and celebrating those kinds of values. Does that go in any way with the transparency and the modesty and the pragmatism?
Martinez: Yeah, I think Justice Breyer has said justices should not be junior varsity politicians. And I think that reflects both his career on the court and view of what a judge should be doing in a democracy, and also reflects, to some extent, the time period in which he came to the court and also what he did before. So before he was put on the First Circuit Court of Appeals, he was a legislative aide to Senator Kennedy. And that was during a time period when there was a lot more bipartisanship in Congress. He was confirmed by the Senate by an overwhelming majority for the First Circuit in 1980, even after President Carter had lost the presidential election to President Reagan, but it was a time when there was a lot less partisanship in the legislature and then also on the court.
Now, the court has had a history of judges having different kinds of personal relationships over time, different levels of hostility towards one another and their approach to judging. But I think the era in which Justice Breyer served and came to the court was one in which collegiality was valued and viewed as an important part of the court’s work. And you see that in his relationships and opinion writing with other justices on the court, especially Justice O’Connor, a Stanford law graduate, who was for a long time, one of the key swing justices on the court. Justice Kennedy, also a swing justice. And the desire to write opinions meeting in the middle with those kinds of justices to come to an opinion that might not be as broad as someone would like on one side or the other, but a more narrowly drafted opinion that could win votes from people who had different views about the matter on the court.
Bankman: When we read about Breyer’s legacy, inevitably people pick opinions in which he’s not necessarily writing on the middle; they’re stronger opinions. Is there an example of some jurisprudence that he helped craft that’s a middle way jurisprudence?
Martinez: Well, I think there’s one famous case that maybe isn’t the best example, but is an amusing one in terms of decisions where he writes an opinion. There are two cases involving the 10 commandments being up in city buildings, one in Texas, one in, I think it’s Kentucky. And he ends up finding that one of them is constitutional and the other is not based on the facts of the case and the context in which they were hung. And that to me is an example of that sort of very, very down the middle approach.
I think another line of cases in more seriously, though, in which he writes for the court. In the early to mid 2000s, he writes the majority opinion in a number of important abortion cases, applying the Supreme Court’s precedents under Roe and Casey to find state abortion restrictions to be an undue burden on women’s reproductive rights. And these are majority opinions applying the court’s case law. I think those are good examples of where it’s not necessarily the flashiest of opinions, but it’s very carefully working with precedent and applying that in a way that garners a majority of the Supreme Court to apply that important line of cases to new sets of restrictions. And I think those are some good examples of the way he was able to write an opinion in a way that would garner a majority,
Thompson Ford: Another case that comes to mind, and this was a strongly worded dissent, although not, an especially flashy opinion, not one with lots of zingers, but very strongly worded in the Seattle School District case involving racial preferences in admissions. And of course, affirmative action will be back before the court very soon in the Harvard and related cases. I wonder what you could tell us about his opinion in that case. And he won’t be on the court for the affirmative action cases, but what would his approach to those cases be, do you think?
Martinez: I think that his dissent in that case in which the court struck down desegregation plan in Seattle is indicative of his approach to trying to write for the public. And it very much, I think, law review articles have talked about it as being a direct communication with the public, trying to explain what the court is doing, and the reasoning undergirding the majority and the dissents opinions, and directed to we the people, in a sense. And what he does in that opinion is he expresses a kind of modesty. So in the majority in that case striking the desegregation plan down, Chief Justice Roberts says, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
That is one of those catchy slogans, and Breyer takes a much more modest approach. He says, “I don’t claim to know how best to stop harmful discrimination, how best to create a society that includes all Americans, how best to overcome our serious problems of increasing defacto segregation, troubled inner city schooling, and poverty correlated with race. But as a judge, I do know the constitution doesn’t authorize judges to dictate solutions to these problems. Rather, the constitution creates a democratic political system through which the people themselves must together find answers. It’s for them to debate how best to educate the nation’s children and how best to administer America’s schools to achieve that aim. The court should leave them to the work, and it’s for them to decide to quote the plurality slogan, ‘Whether the best way to stop discrimination on the base is to stop discriminating on the basis of race.'”
So he expresses that kind of pragmatism and modesty about the judges’ role. It doesn’t mean that judges should never step in. So he goes on in that opinion to talk about Brown and the court’s really important holding in Brown versus Board of Education, that jury segregation violated the constitution. And there it’s this place where the court is stepping in where the legislature has not yet. But he, in that context, talks about how important Brown was, and it was the court’s finest hour, Brown versus Board of Education he said, challenged that history and helped change it.
And the last half century has witnessed great strides, but we haven’t yet realized the promise of Brown. So he gives a very thoughtful discussion of sort of what’s the role of the court here, when is it appropriate for the court to step in as it did in Brown to enforce the meaning of the constitution, to prohibit racial discrimination, and when are there situations in which the implementation issues should be left to the people today and the legislature in deciding what’s the most practical way of addressing a social problem? So it’s also a very nuanced decision in trying to describe the difference in what the court does in those two cases.
Bankman: And it’s an example, I suppose, of resisting a one size fits all rule. So you’ve got an opinion where he seems to be extolling the primacy of the people, but then he admits sometimes the people don’t have primacy and that was Brown. And I suppose in his abortion cases too, the people don’t get primacy over the rights laid out in Roe and Casey, at least the people of Nebraska are, that’s a case where he’s going to come to a different opinion.
Martinez: It’s a matter of degree, right? That there are guardrails in the constitution, there are things that the government can’t do and in terms of protections in the Bill of Rights or otherwise, and that when you go past those boundaries, of course the court needs to step in and enforce the constitution. But there’s a big gray area in the middle where the Congress and the elected branches can reach different permissible solutions. And I think what Justice Breyer’s judicial modesty stands for is that in that area in the middle, where it’s not clearly infringing on individual rights, it’s not clearly crossing those bright lines at the boundaries, that judges should be modest about whether they know better than the elected branches of government in how to address a particular problem about the constitution.
Bankman: And Jenny, you’ve read some books that the Justice has written. And does that summarize the books? Do they give us a different sense than his opinions or his law school lectures when we’re trying to put together the pieces of his life’s work?
Martinez: The books are very consistent with his approach to judging. And so his book Active Liberty really lays out his theory of constitutional judging in democracy and under the US Constitution. And he talks about this framework that the judge’s job is to construe the constitution in a way that he helps a community of individuals democratically find practical solutions to important contemporary social problems. And it’s to set the framework for democracy so that the people can come together through the democratic process and actively participate in government. And that’s why he calls it Active Liberty, this freedom to participate in government, freedom to participate in the process of democracy, and that in so doing, they need to address contemporary problems. And he talks about how the constitution has important values, important principles that are there, but they’re not fixed and he’s not… Of course, like most judges, will look for the original meaning to the extent we can determine that. It’s important, it’s useful to the judge in determining what a constitutional provision should mean today.
But very much is of the view that overarching principles in the constitution were meant by the people who drafted it to be implemented with contemporary times, that is in light of contemporary problems with consistency and adherence to the overall principles and values that are articulated there. But that the details, in a democracy, are meant to be worked out by generations in the future. And that that’s an important part of judging in a democracy, is to allow that democratic process to play its part in the interpretation of our fundamental laws and in our interpretation of how to address pressing social problems.
Thompson Ford: We’ll be back with more with Stanford Law School Dean, Jenny Martinez talking about the legacy of Justice Stephen Breyer of the Supreme Court, next on SiriusXM, business radio channel 132.
Welcome back to Stanford Legal on SiriusXM. We are here with our colleague and the Dean Stanford Law School, Jenny Martinez, talking to us about the legacy of Justice Stephen Breyer. Jenny, another area where Justice Breyer made a real mark and his thinking it seems evolved over time, is in the area of the death penalty. Could you tell us a little bit about his thinking and jurisprudence there?
Martinez: Justice Breyer in 2015 in a case called Glossip versus Gross, wrote a really important dissent from an opinion that was rejecting a death row defendant’s challenge to a drug used in executions. And in that opinion, Justice Breyer used his dissent to broadly question the constitutionality of capital punishment. He said, “Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for a full briefing on a more basic question, whether the death penalty violates the constitution. The relevant standard is that set forth in the eighth amendment, which forbids the infliction of cruel and unusual punishments.” And I think that really reflected, and if you go on through the rest of the opinion, reflected Justice Breyer’s evolving views on that body of law after 20 years of experience on the court. And I think it’s interesting to think about how that’s happened to a couple of justices in the course of their service in seeing all of these cases that address one by one smaller issues.
Can you use a particular drug in injecting a lethal injection for someone sentenced to death? Can you have delays on death row that are too long? And so on and so forth. And what Justice Breyer suggested in that case that the court should look at in a broader sense was whether the overall flaws in the way the death penalty was implemented should cause the court to revisit the question that it decided 40 years ago in finding that the death penalty could be applied reliably and not arbitrarily. And he looked at the arbitrariness of the application, the long delays that occur on death row, the unreliability, the number of false convictions, and things like that have come to light in the legal system. And I think it was a reflection of wanting to know how something works in the real world. The death penalty, it might sound on paper like it could be administered constitutionally, but what if experience shows us that there have been so many problems, in so many cases, in so many locations over time, that that intuition about how it out might work in theory is not working in practice.
And I think it reflects that sort of thinking about how things work in the real world that is indicative of his approach. I think he was also has influenced in some of the death penalty jurisprudence, and in other ways, by looking at the example of how not just jurisdictions in the United States have struggled with the death penalty and their attempts to implement it fairly, but have looked at other jurisdictions as well. And there were cases in which he would cite, for example, in relation to long delays on death row, decisions from the European court of human rights or the Privy Council as part of the United Kingdom and Commonwealth system to say, here’s how some other courts have looked at this similar question of implementation of the death penalty and analyze that.
And so I think, again, that looking to international examples is another way in which he had this kind of pragmatic instinct to see, how do things work in the real world? And one way we can find that out is looking at other places who do it differently and saying, “Aha, how did that work there?” And that’s definitely part of his approach to judging as well.
Bankman: One of your fields is international law, as a scholar. And that’s something that we don’t, a lot of people aren’t as familiar with. But that was part of Justice Breyer’s legacy as well. Can you tell us about that part of his work?
Martinez: Yeah, he wrote an important book several years ago called the court and the world, which really tried to look comprehensively at the different ways in which international and comparative law, transnational legal problems, come up in the court’s work. And one example is this high profile debate about, for example, can you look at how other countries treat the death penalty? And not only Justice Breyer, but other justices like Justice Kennedy, famously have looked at what other countries do. And there’s a big debate with other justices on the court, like the late Justice Scalia who thought it was improper in interpreting our constitution to ever look at what other countries had done.
But in the book, The Court and the World, Justice Breyer goes far beyond that to many other contexts in which the Supreme Court considers international and comparative law on which there’s really different dimensions to the debate and even Justice Scalia, for example, believed that it was appropriate to look at how other countries interpreted multilateral treaties, that we were all part of, or in conflict of law cases to look at the way that other courts might approach things.
And so, goes through in that book, looking, not just at constitutional questions, but statutory questions, treaty questions, questions of extra territoriality, questions of conflict of laws, and really shows the degree to which issues that cross borders are very common in the Supreme Court’s docket, have been for centuries, actually, since the early period of the Republic, those kinds of questions have come up. And that finding the correct legal answers to those questions often requires the court to look beyond our borders and to have a broader approach. Justice Breyer is one of the reasons why international law is one of the areas in which I specialize. It wasn’t the course that I took in law school, actually. And it was really during my clerkships, first with Judge Calabresi, and then with Justice Breyer, both of whom are really interested in international and comparative law that I developed an interest in the field and saw issues come up in cases that made me realize just how important it was for our legal system to have a good understanding of how other legal systems operate.
Thompson Ford: It’s such an interesting comparison between Justice Breyer and, you mentioned the late Justice Scalia, but many people who feel that looking to other countries is either a sign of weakness or somehow muddies our legal tradition to see this very pragmatic approach in which looking to other countries is necessarily how we strengthen our legal tradition. And so it’s just such a nice example of some of the strengths of Justice Breyer, to think about international law, which, as you say, is something that a lot of people don’t think enough about, particularly in something like our constitutional tradition.
Martinez: Yeah. And he said, again, it’s the kind of pragmatism, how do things work in the real world? He has an opinion in a case, which is about federalism, and when the states can be asked to implement federal programs. And the majority finds that asking the states to do things to implement certain federal programs was unconstitutional. Justice Breyer points out, actually in Germany, it’s considered an asset to federalism and strengthens federalism to let states implement federal law. And he says, of course, there may be differences between Germany and the US that are important. We don’t have to follow it, but it sheds an empirical light on how a different arrangement might work out. And it is that question of an empirical light. How does it work? What’s the experience been? How does this affect how things come out in the real world?
Bankman: Do you think we’ll get another Justice Breyer today? Is the world too partisan? There are some judges, as you know, that are already up, apparently, for consideration to be nominated for his seat. Is he a character from a bygone era? And should we try to get that era back?
Martinez: You could definitely still have a justice who took his overall approach to judging and the way that one should approach questions in terms of modesty about the judicial role in a democracy in terms about of looking and trying to explain the court’s decisions in a transparent way for the public so that they can understand what the court is doing and why. So I don’t think those are things to give up on at all. And indeed, I very much hope that kind of modesty and transparency would be characteristics that future justices would embody. I do think the court as a whole is at a very different moment. The thing that many people have pointed out that is different about the court now than really at other times in the past, because it’s not just ideologically divided, but it really is divided more directly on partisan lines of who appointed the justice.
At other times in the past, there were justices appointed by the Republican presidents who nevertheless sometimes ruled on the liberal side of cases, or justices who had been appointed by Democrats who were more moderate. I think what you see now that political scientists have looked at is just not just ideological split, but partisan sort of tracking of that. And I think that that makes it challenging. You also by having a six, three versus five, four split on the court have less room for the role that justices like Justice Kennedy or Justice O’Connor played in the middle of trying to take a middle approach. And so it is a very different moment when you look at the court in the aggregate. But I think that those qualities of modesty, of transparency, of practicality, and trying to find common ground are still things that are important for our judges to reach for.
Thompson Ford: We’d like to thank Stanford Law School Dean, Jenny Martinez, for speaking with us today about the legacy of Supreme Court Justice Stephen Breyer. I’m Rich Ford for Joe Bankman and this is Stanford Legal on SiriusXM business radio channel 132.