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November 30, 2009
By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Last month, Justice Stephen G. Breyer and two of his colleagues on the U.S. Supreme Court were present when a major shift in constitutional law took place.
But the action took place in London, not Washington, D.C.
Breyer, Chief Justice John G. Roberts Jr., and Justice Antonin Scalia were in Great Britain to mark the official opening of its Supreme Court.
This important constitutional reform saw Britain's highest court of appeal formally remove itself from the legislative branch for the first time in history. The court had previously existed as a committee of the House of Lords, the upper chamber of the Houses of Parliament.
After the brief trip, Breyer agreed to speak to the Daily Journal's Supreme Court reporter, Lawrence Hurley, who is British, about his experiences in London and his views on the reforms taking place across the Atlantic.
DJ: Let's start with the symbolism of moving the judiciary out of the legislative branch, which saw the highest judges in the land - all of whom previously sat as the Appellate Committee of the House of Lords - become justices of the Supreme Court and switch to a new court building instead of being seated in the Houses of Parliament. How important is that?
Breyer: My impression is that there was great uncertainty among people who know a lot about government in Britain just what the [Appellate] Committee of the House of Lords was. Some people thought it was lords who had been made judges. In fact it wasn't. It was judges who were made lords. They were given the title so they could sit on what was really a Supreme Court. By moving to a new building and changing the title, they have clarified that arrangement.
DJ: So it's more of a visibility issue.
Breyer: They wanted it to be clear.
DJ: Speaking as someone who grew up in Britain, judges really are unknown there compared with here in the United States. No one in Britain really knows anything about the judiciary, including how judges are appointed, who they are, how they get the job. That's quite different to here in the U.S.
Breyer: We are often much better known in legal circles than we are by the public generally. I don't think many people know my name. I would be surprised if one-half of 1 percent of the public knew my name, probably less. Judges are fairly anonymous here. The Supreme Court is written about, but usually in the context of decisions that have social or political content. For example, not many people know that 40 percent of the time, we are unanimous. They don't know that. It comes as a surprise. I say the 5-4 decisions are often in quite difficult cases where the language of the Constitution isn't clear.
DJ: I don't get the impression that there's much outreach to the public by the judiciary in the U.K.
Breyer: I think people probably would have been less interested. I don't know. A major change in their structure substantively came along when they passed a law [the 1998 Human Rights Act] that said the European Charter of Human Rights would be enforceable in British courts. That means British courts can find a statute passed by parliament incompatible with the charter. That isn't the same authority we have to hold unconstitutional an act of the legislature but it moves in that direction.
DJ: So you think this change will make the courts more visible because it makes people more aware of the power of judges?
Breyer: I think it might. They have given the court additional power. And also, they [judges] enforce the European treaties, and that might make a difference.
DJ: American judges can strike down statutes. Is that the main reason the judiciary is more high profile here?
Breyer: I suspect that has something to do with it. We are also a much more diverse country, or we have been in the past. Therefore people disagree about all kinds of things and have decided to resolve many of those differences under law, which means they are in court.
DJ: What about your actual experiences at the U.K. Supreme Court opening ceremonies?
Breyer: There were judges from many, many different countries. I think it was good that we were there.
DJ: Did you hit it off with any judges from other countries?
Breyer: Judges get along perfectly well.
DJ: The prime minister [Gordon Brown] was there, and Queen Elizabeth II. Did you talk to the queen?
Breyer: Yes, for a second; she shook hands with everyone. Very nice.
DJ: One person there with whom you wouldn't get at an equivalent introduction here due to the separation of church and state was the Archbishop of Canterbury.
Breyer: That's true. I shook hands with him too. He was fine. The speeches were very well done. They were very short and to the point. Earlier they had a kind of moot court with some students from the area. It was a very nice ceremony. It couldn't have been nicer.
DJ: Did the British justices have their ceremonial robes on?
Breyer: They were wearing ceremonial robes.
DJ: How did you like the robes they have? They are considerably more ornate than yours.
Breyer: Well they have gold in them. We have plain black robes. We were not wearing robes. Most of the other countries have elaborate robes. We did not wear robes at all. We normally don't wear robes when we're not in court.
DJ: Did you get any fashion tips? No ermine or anything?
Breyer: None we are going to adopt. I think I said to someone - he said: "Why don't you have robes?" I said: "We fought a revolution against that." And he said: "Well, that was rather bad luck for you."
DJ: The U.K. justices are not wearing wigs any more though.
Breyer: I guess they are not. We have never worn wigs. Perhaps that would be a benefit to me as I don't have much hair.
DJ: One thing they are doing in Britain, which has got some attention here in the U.S., is that they are televising proceedings. Sen. Arlen Specter, D-Pa. has already seized on it as further reason why the U.S. Supreme Court should televise proceedings.
Breyer: Some countries do have them televised. Some countries have had it work perfectly well and some do not.
DJ: Is it heading in that direction here?
Breyer: I don't know. That would be up to others to decide. We haven't had that issue right in front of us, so I have tended not to discuss it at length. Am I anxious to comment on this subject when there is legislation in the Senate? No, I'm not anxious to comment, so I won't.
DJ: Let's move on to the appointment process. In Britain, where an independent commission appoints judges, they obviously have no equivalent to the confirmation process that's so public here. Do you think the confirmation process is a positive thing?
Breyer: I was the person confirmed. I wasn't the person who did the confirming. I wasn't the person who did the appointment. So what I say in respect to that question often is that is that it's like asking for the recipe for chicken a la king from the point of view of the chicken. I haven't taken views publicly on whether it's good, bad or indifferent as it's presently conducted, and I don't want to.
DJ: We were talking earlier about the visibility of the judiciary. Does the confirmation process help in that respect?
Breyer: Like many things in the Constitution, it's a compromise. It's a way of having public input for an official who will have an effect on the public's life and you want to give the public some say. Then the question is how much say and under what circumstances and how do you conduct those proceedings. Those are basically political questions for the political branches to resolve.
DJ: For the judiciary is it better to have that rather than a behind-the-scenes appointments process?
Breyer: If you put it that way, it must be.
DJ: Just one other thing - it goes to the visibility of the court - just the other day a recent law graduate launched a Supreme Court fantasy league Web site [www.fantasyscotus.net]. People can go case by case and predict the outcome and there's a prize at the end of the term.
Breyer: I don't think I will bet on it.
DJ: I don't think you'd be allowed to. I thought it does show there is that kind of public interest in the court we were talking about.
Breyer: I'm glad the public is interested. The more the public knows about the court, the better.