When President-elect Donald Trump finally appoints a new justice to the U.S. Supreme Court, what will be Justice Stephen Breyer’s advice to the incoming member of that exclusive club?
“Calm down,” Breyer told about 400 members the World Affairs Council of Dallas/Fort Worth who gathered at the Fort Worth Club to get a glimpse of what happens at the nation’s highest court. “It’s a job where every day you have to do your absolute best. You really have to put out the best you have to offer.”
Breyer was in town as part of a book tour for The Court and the World: American Law and the New Global Realities, which he published last year. He also will make an appearance at the University of Texas at Arlington on Tuesday night as part of the Maverick Speakers Series.
Trump has said he will appoint a solid conservative to the bench to replace the late Justice Antonin Scalia, who died unexpectedly in February after a day of quail hunting at a remote West Texas ranch.
Conservatives want someone to join Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito as a counterbalance to the more liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Breyer is considered a moderate-to-liberal voice, with Justice Anthony Kennedy as the swing vote.
President Barack Obama nominated federal appeals court Judge Merrick Garland, but the Republican-held Senate refused to consider replacing Scalia until after a new president was elected.
Breyer’s appearance was conducted as a conversation with James Falk, president and CEO of the World Affairs Council. A professor for many years at Harvard Law School and the Kennedy School of Government, his presentation was that of a favorite teacher speaking to his students.
Words rolled out of Breyer as he shifted back and forth in his padded armchair, talking about the court and historic cases like desegregation but also the challenges of today like terrorism. He talked about Bush v. Gore, the case that decided the 2000 presidential election. Breyer disagreed with the court’s decision.
In The Court and the World, Breyer suggests that the nation’s highest court can’t do its job unless it takes into consideration foreign laws and practices. It’s not always a popular view, with some of the more conservative justices saying it is wrong to interpret the Constitution through that prism.
While Breyer said so many people are fearful that the Constitution will lose some of its “special value” by looking at what is going on in other countries, he thinks it makes it stronger.
“You will begin to think that the best way to preserve [our system] is quite often to know what is going on in the world,” he said.
Breyer was appointed to the Supreme Court by President Bill Clinton in 1994. Besides The Court and the World, Breyer this year published Against the Death Penalty, which explains his views on capital punishment. Breyer has spoken out against how the death penalty is implemented.
Ironically, Breyer was in town the day the court rejected an appeal by Romell Broom, a condemned killer from Ohio whose 2009 execution was called off after officials failed to find a usable vein to inject lethal drugs into his system. Broom’s attorneys argued it would be cruel and unusual punishment to give the state a second try.
Breyer, along with Kagan, said the case should be heard by the court.
“As I and other Justices have previously pointed out, individuals who are executed are not the ‘worst of the worst,’ but, rather, are individuals chosen at random, on the basis perhaps of geography, perhaps of the views of individual prosecutors or still worse on the basis of race,” Breyer wrote in his dissent.
“I have elsewhere described these matters at greater length, and I have explained why the time has come for this Court to reconsider the constitutionality of the death penalty,” Breyer told the court.