“In the 17 years I’ve been there, I’ve never once heard a voice raised in anger. Never.” That was Associate Justice Stephen Breyer of the U.S. Supreme Court in the course of a lengthy interview he did for my radio program last Wednesday. (Text of the interview is posted on the “Transcripts” page at HughHewitt.com.)
“I have never heard one judge say something rude about another, not even as a joke,” Breyer continued. “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.”
Our conversation ranged far and wide over some familiar case names, including Bush v. Gore, Kelo, Brown v. Board and the Gitmo litigation sequence.
But it was this observation by the charming and scholarly Breyer that triggered some thoughts on just how different the work of the court is compared to the lives of those who are regulated by the vast reaches of state and federal government and by the Supreme Court itself, which, he said, “patrols the borders” of constitutional arrangements.
Anger and emotion, raised voices and rolling eyes are an inevitable if unpleasant feature of nearly all of the private sector and most of the public sector as well.
Many of the entrepreneurs, most of the lawyers and all of the elected officials with whom I have worked over the past three decades have had their moments of anger and emotion and often just intensely frustrated exchanges with their colleagues, teams, investors, contributors, customers and employees.
It is a bumpy, tumultuous, sorrow-filled world, and when the federal, state or local authorities are imposing directives and extracting taxes and fees on private-sector job creators, no matter what the industry burdened or the agency issuing the decree, tempers can and do run high — because the stakes are high.
Investments are on the line. Jobs are on the line. Lives are on the line.
The contrast with the portrait Breyer painted of the court’s routine could not be more complete.
It is very reassuring on one level that the justices have operated in such a collegial fashion for so many years.
It is also somewhat unsettling to think of how removed they are from the lives of ordinary citizens, especially those confounded by and struggling to deal with a vast, powerful and growing government.
The Tea Party is a reflection of a widespread (though, of course, by no means majoritarian) surge of citizen discontent with the federal government.
Voters without lifetime tenure and a secure retirement and especially those buffeted by the economic roller coaster of the past four years and the wars of the past 10 are abandoning hope in the ability of government, and especially the court, to get it right.
As matters long settled by cultural stare decisis, like the definition of marriage, are upended by judges, it becomes more and more difficult to make the arguments about the necessity of a robust judicial review that Breyer advances in his fine book, “Making Democracy Work: A Judge’s View.”
We concluded our interview talking about the Dred Scott case which, of course, stands for both the power of judicial review and the consequences of its improvident deployment.
“And the war came,” Lincoln said in his Second Inaugural, and he might have added “hastened on by the Supreme Court.”
There is no war in the offing, thank God, but the court and its brethren on the federal and state benches may be too insulated from the turmoil of the present day to grasp just how deeply antagonized millions of ordinary citizens are by their government.
It is reassuring that the justices can carry on calmly amid many storms, but we have to hope that a majority of them at least understand that they are responsible for making much of the weather the rest of us experience.
Examiner Columnist Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at HughHewitt.com.
