UA News

During a UA-sponsored event, U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer discussed their personal judicial philosophies in determining how the U.S. Constitution should be interpreted.

The U.S. Constitution does not provide explicit guidelines for ways courts and legislatures must handle some of the nation’s most critical contemporary issues – equitable pay and equal access, same-sex marriage, abortion and the death penalty being among them.

Hence the need to critically consider the judicial philosophies that are driving the nation’s judges and policymakers.

To do just that, the non-partisan William H. Rehnquist Center at the University of Arizona James E. Rogers College of Law hosted a discussion with U.S. Supreme Court Associate Justices Stephen Breyer and Antonin Scalia.

The one-hour event, "A Conversation on the Constitution: Principles of Constitutional and Statutory Interpretation," was broadcast live on PBS World and online by Arizona Public Media. A video of the discussion is available on the Arizona Public Media Web site. 

The event was moderated by NBC News justice correspondent Pete Williams and held at the Leo Rich Theatre in Tucson before a capacity crowd consisting of UA students, faculty, staff and administrators; former and current members of the Arizona Board of Regents, lawyers, business executives and others.

Chiefly, the justices were asked to explain what influences ways in which U.S. Supreme Court justices, members of the nation’s foremost judicial body, interpret the law?

Breyer and Scalia approached the discussion bluntly, and with candor and good humor, often speaking from direct experience while provoking one another in ways that evoked laughter in the audience.

Breyer defended his stance that the Constitution is an “evolving” document, one that must be reinterpreted with a current context.

He noted issues related to forms of communication, an increased reliance on technology and the emerging popularity of the Internet being among the modern ways that can create complications.

“Over time, the big difference is that we have a study of cases involving the Constitution and, over the years, we begin to see the documents as a whole,” Breyer said.

In speaking about the interpretation of “cruel and unusual punishment,” Breyer gave the example that, during the 18th century, the death penalty was the primarily form of punishment for those who committed felony offenses and that flogging also was a preferred method of disciplining criminals. Breyer affirmed that these are not typical practices in contemporary times.

Scalia, who emphasized that judges must be “consistent” in their decisions, was staunch in his argument that the Constitution must always be interpreted in ways that the nation’s founders would have had they been faced with the challenges of the times.

Though Scalia said “there are enormous amounts of stuff that is constitutional and stupid,” in the context of interpreting the law, the act must be done “with some objective appeal, not based on how I subjectively feel.”

The risk, Scalia said, is that reinterpreting the Constitution with every shifting era further removes the nation from the standards originally set by the original authors, resulting in a constitutional document carrying a footnote that indicated the justices would decide what they saw fit.

Scalia’s solution: Leave decisions regarding highly contentious issues up to the state's legislatures.

“Do not believe that you have to modify the Constitution in order to change; to keep up to date,” Scalia said. “You can change as fast as you like through the legislature – pass a law.” This, he said, enables the Constitution to remain flexible, not rigidly defined.

Yet Breyer made clear that he and Scalia were more in agreement than not, saying that both value the historical purpose and context of the document, but need to provide interpretation at times.

“We’re saying the same thing – we’re following the value. There is less difference than meets the eye,” he said.

Breyer also noted that interpretation “is a matter of degree – how much weight might I put on the purpose, or the value, or simply the original text.

“You cannot take an extreme stance. I have objective methods and write them into the opinions and people can criticize those opinions,” Breyer added. “That’s good in a democracy. And it comes back in another case, and we learn that way.”

Ultimately, Breyer said Supreme Court justices, contrary to popular thought, “agree about 80 percent of the time” on cases brought before the court. But one issue that remains highly contentious is affirmative action.

Breyer said that while there have been strong arguments both for using race to diversify state schools and for being colorblind in such decisions, “this is a case that is close, difficult and important.”

And while Scalia said there is no room in the Constitution for moral values, Breyer said the document and existing laws are riddled with “moral values of society.”

Williams noted that while the president and Congress tend to discuss bills and what laws are intended to pass or not, seldom is there a conversation about what propels those decisions.

“I think it is extremely generous for these justices to take the time,” Williams said.

“They don’t have to do this,” he added. “But it shows their care for their work and for the public understanding of their work.”

Lisa Pope, a first-year UA law student, said that while she expected Breyer and Scalia to take the stances each did, it was important "to hear what they had to say. They're justices – it's not everyday you get this opportunity." 

Ernest Calderón, the Arizona Board of Regents president, said he and others were honored to be able to attend the discussion and to meet the justices. He also congratulated  the UA law school. 

"We are very proud of the UA College of Law and we are very proud of what it has accomplished over the years," Calderón said. "When you can, speak very highly of the James E. Rogers College of Law and advocate for higher education in Arizona."