Legal Docket - The power of the hypothetical

MARY REICHARD, HOST: It’s Monday, February 7th and you’re listening to The WORLD and Everything in It. Good morning! I’m Mary Reichard.

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It’s time for Legal Docket.

We have some religious liberty news to start us off today: a direct result of a Supreme Court ruling from last year. That’s when the high court decided the city of Philadelphia violated the First Amendment rights of a Catholic adoption agency.

You may remember Philadelphia was refusing to work with the Catholic agency unless it would agree to place children with same-sex couples despite very clear church teaching on human sexuality and marriage and family.

The Supreme Court said Philadelphia was wrong. Ot cannot discriminate that way. So now for the new news: that ruling has led to settlement in a similar case out of Michigan.

REICHARD: Right, Michigan agreed it will take no further action against St. Vincent’s Catholic Charities and will also pay the $550,000 in attorneys fees.

So the agency can stay open. That’s good news for needy children, and of course for plaintiff and adoptive mom Melissa Buck. I spoke to her on Friday:

BUCK: You know, now that this dispute is finally over, you know, it has a really special impact for my family. We are actually in the process of adopting a sixth child. It is a sibling to one of our children. And for us especially it is so important that we continue to work with St. Vincent's on this, the people that we know and love. People who know our family, who understand our children and their special needs. And to be able to work with them who you know, they also know this, this child that will be coming into our home. It's just, man, it’s just great. (laughs)

Well, today we thought we’d step away from analyzing oral arguments and take time to consider part of the legacy of Justice Stephen Breyer. He plans to remain on the bench until the end of this term in June, but last month announced his retirement after that.

EICHER: By all accounts, Justice Breyer at age 83 is as spry of body and nimble of mind as ever. He had only two years as senior liberal justice on the court. That after the death at age 87 of the arguably more famous Justice Ruth Bader Ginsburg. But political pressure built up for Breyer to retire while a Democrat still occupies the White House and with Democrats still holding the Senate.

REICHARD: So today, you’ll hear my collection of sound bites from oral arguments to illustrate Justice Breyer’s mind and method, as well as his character and personality. Over the years on Legal Docket we’ve heard his opinions, both controversial and otherwise.

But today, I want to focus on what I think any Christian—left, right, or center—can appreciate about Justice Breyer.

To start: he’s known for his colorful and brilliant hypotheticals put to lawyers to test the limits of a legal principle. Here’s one from a few years ago. It’s a case in which the state of Indiana wanted to confiscate a man’s Land Rover, to pay for fees and costs in another legal matter in which he was involved.

The thing is, the vehicle was worth something like four times the amount he owed. The government would have received a windfall.

Listen to Justice Breyer with one of those famous hypotheticals:

BREYER: So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari, or even jalopy. I just wonder what is it? What is it? Is that just permissible under the Constitution?

FISHER: To forfeit the vehicle the Bugatti for speeding?

BREYER: Yeah, and by the way, it was only five miles an hour. Yeah, above the speed limit.

FISHER: Well, you know, the answer is yes, it's forfeitable. It is forfeitable.

The man and his Land Rover won that one, unanimously. The decision made history, too- for the first time applying the Eighth Amendment’s prohibition against excessive fines as against the states, via the Fourteenth Amendment’s Due Process Clause.

Here’s a hypothetical from 2018, about the limits of using physical restraints on people before they’re convicted of anything:

BREYER: I'm being very hypothetical. Absolutely hypothetical. I don't believe it would ever happen. But if by some chance they have a policy in a federal court of the United States, that people will come in bound and gagged in body armor hung upside down, okay? You're saying even if that’s so, that person in this country has no way of challenging that order? Is that your point?

I appreciate, too, that Justice Breyer isn’t afraid to admit his ignorance of a topic.

One case had to do with the Copyright Act. The legal question was quite technical: the tax implications of winning a copyright battle.

Here’s an exchange with lawyer Paul Clement, who’s argued over 100 cases before the Supreme Court.

BREYER: I made that kind of point in Murphy. And I said, let's look at what Congress wanted. And I had a lot of, I thought, fabulous. But unfortunately, it wasn't fabulous enough, because I was writing a dissent. All right. But the majority said in that case, “Nope, they don't get their attorneys fees.” So am I stuck with that? You say now, well, well, this is a general problem. Go back to your lengthy career. When do I say well, I lost. I lost in the consideration of that. So how long do I keep? What rule do I follow? What approach do I take? And how long do I keep referring to a dissenting approach or view when others think the contrary?

CLEMENT: Well, Justice Breyer, far be it from me to give you career advice!

BREYER: No, no, that's what I'm asking for. (Laughter)

Justice Breyer’s wit breaks up what could otherwise be an hour of argument as dry as dust.

His wit shines outside the courtroom, too. He’s an aficionado of knock-knock jokes according to Justice Neil Gorsuch’s book A Republic, If You Can Keep It. Hundreds, apparently.

Another aspect of Justice Breyer to appreciate: he is aware of how he comes across to people. Listen to him in a dispute over a Tennessee law that said only people who’d lived there for a certain amount of time could sell liquor in the state:

BREYER: So suppose you: “Law: any liquor store has to use paint made in Tennessee. Asphalt made in Tennessee for the parking lot. Neon.” You know, I can go on. (Laughter)

And here’s Justice Breyer pressing a lawyer for evidence, while also letting us know that he’s a regular person, too.

Listen to this case about an effort to purge voters from databases by mailing notifications to them.

BREYER: There might be surveys about how many people throw everything in the wastebasket. I confess to doing that sometimes and— (SMITH: most people do!) — I know that's what your opinion is, and all I'm asking is, is there any hard evidence of that, one way or the other?

SMITH: The evidence we have in the record is that most people throw it in the wastebasket. 70%.

Justice Breyer’s very first opinion announcement happened on January 18, 1995.

It’s a testament to his many years as a professor at Harvard Law School in the way he laid out the case in plain terms:

BREYER: This case involves a local termite inspection contract made in Alabama. The contract had a clause, requiring the arbitration of disputes. When respondents bought the house, they found it swarming with termites. So, they brought a lawsuit in state court and then Terminex asked for arbitration, but the Alabama courts wouldn’t send the case to arbitration because under Alabama law, arbitration clauses like this are invalid. In section two of the Federal Arbitration Act, however, makes them valid. So the question was, does the federal law govern or does the state law govern?

In that case, on those facts, federal law governed.

I’ll end with parts of an interview Justice Breyer did with former PBS host Charlie Rose in 2017. Talking here about what judges do:

BREYER: You get some words on a piece of paper. What do they mean? How do they apply? All judges use the same basic tools. You read the words. What do they say? If it says carrot, you cannot say that that means fish, all right? The words count. And history counts. And tradition counts.

Finally, Justice Breyer’s comments about the late Justice Antonin Scalia, who worked with Justice Breyer for 22 years, up until Scalia’s death in 2016. They differed greatly in their approach to the law, but their mutual respect stayed intact.

I think this audio from the PBS interview best illustrates Justice Breyer’s “secret sauce.” That is, his congeniality and desire to listen, to understand. Not to accuse.

Breyer tells of when he and Scalia were addressing 2,000 students in Lubbock, Texas. They explained their different points of view.

BREYER: And I went away thinking, and he did too at the end, it is not so important whether they agree more with him. You see, he’s afraid I’d be too subjective. And I would tend to substitute what I think is good for what the law requires. And I would think, well, I try not to do that. But more importantly, I’d say, but you have a method that is, I think, too rigid. And I think that the way sometimes you approach -- it’s not, I don`t say it in a rude way, but he knows that’s what I think. That the Constitution won’t work as well for the people who have to live under it now and we talked about that. Whether they agreed more with me or more with him, I think the 2,000 students left feeling a little bit better about the institution we’re in, because they saw we’re friends.

It’s true that Justice Breyer’s opinions supported all kinds of things we here at WORLD don’t: abortion, same sex marriage, to name two.

It’s possible the conservative majority could dismantle some of Breyer’s landmark opinions.

Yet as a lawyer and legal analyst, I’m going to miss him very much, because of his ability to disagree without assigning hate to others, and for his civility. And wit.

I hope the next justice has a measure of that.

That’s this week’s Legal Docket.

P.S. Justice Breyer’s Italian pot roast made the news a few years ago. He’s also a very good cook!

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