Constitutional Law

Breyer unsure about cameras in high court

By By The Associated Press

WASHINGTON ? Justice Stephen Breyer says it's important for television viewers to see Supreme Court justices in their black robes when the president delivers the State of the Union speech each year. He's less certain that TV cameras have a place at the Court.

When the justices take their seats among lawmakers, military brass and Cabinet members for the president's annual address to Congress, the public can see the whole government in one place, he said.

"Maybe some will wonder, 'Who are those people in black robes?' If they wonder, they might read about it and if they do they'll learn more about the government," Breyer said in an interview with the Associated Press to talk about another way to educate the public, his new book Making Our Democracy Work.

Breyer, 72, joined the high court 16 years ago, a nominee of President Bill Clinton. He has attended almost every State of the Union since, including the address in January when President Barack Obama criticized the Court's decision of a few days earlier in Citizens United v. Federal Election Commission, which struck down some campaign-finance laws. A dissenter in that case, he said he wasn't bothered by Obama's criticism.

Breyer acknowledged that allowing TV viewers to see the Court in action, at the 80 or so arguments it hears each year, would convey "that the Court is very serious about dealing with very difficult problems."

But he said he remained concerned that coverage of the Court would turn into a succession of "sound bites" that might be ultimately misleading. Worse, he said, would be if televising high court arguments were to lead to "television in every criminal trial in the United States and witnesses began to become afraid to appear."

"So I'm taking a hesitant attitude," Breyer said, while calling for independent research to assess television coverage in state courts around the nation.

Showing people how the high court works is the aim of Breyer's book tracing the country's acceptance of the Court as the final word in legal disputes, he said over tea in his Supreme Court office.

He said the Court has struggled in some of its most important decisions with finding a balance between national security and civil liberties. The decision that ratified the internment of Japanese-Americans during World War II was a stain on the court, he said. But he believes that history helped lead to different outcomes in recent rulings that extended some constitutional protections to detainees at the Guantanamo Bay naval prison.

"The public has to generally accept the existence of an institution that to do its job must sometimes make decisions that are very unpopular," Breyer said. "In addition, since we are dealing with fallible human beings and not angels, sometimes those decisions will be wrong."

His second book in five years also sets out Breyer's judicial philosophy of "prudence and pragmatism," in contrast to the originalist views of Justice Antonin Scalia. Breyer says he believes judges sometimes must be guided by more than the language of laws, if the words are ambiguous or embody a value that must be applied to specific circumstances.

Scalia's text-based approach focuses on giving a fair reading to the words of the Constitution as they were meant when they were written.

Scalia and the other conservative justices have had the upper hand on the Court over Breyer and the other liberals since Justice Sandra Day O'Connor retired in 2006 and was replaced by Justice Samuel Alito.

"Five years ago, I think I was in the majority more than anybody. Now I'm probably more in dissent," he said.

Breyer both concedes that the Court has changed and rejects the ideological labels as simplistic.

"My object here is not to say that political kinds of influence are zero," he said. "I just want to say that's not the right word. It doesn't describe things accurately. I'd say it's not a single set of words."

Full post as published by First Amendment Center on October 10, 2010 (boomark / email).