Court TV

“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a later day, when a later decision may possibly correct the error into which the dissenting judge himself believes the court to have been betrayed.” Charles Evans Hughes (1862-1948)

Normally, after a long day of seemingly exhausting and never-ending labor, I arrive home at about 8:00 pm depending on road conditions. The first order of business is always the cats. After a few short moments of blissful master/slave reunion (we know who the slave is), they then swagger off to whatever it was that kept them occupied for the x number of hours while I was at work, and I become once again forgotten until mealtime or a door requires opening. I toss some leftovers in the microwave (sometimes forget them there), shuck my blue-collar rags, slip into something more comfortable (use your imagination if you dare), and finally settle down for a few hours of blogging and browsing on the Internet. On those nights where the writer’s block is even worse than my arthritis, I feign an honest attempt at watching television, a generally futile endeavor; seeking quality entertainment/programming in world that panders to the very lowest common denominator. Just finding something worthwhile to watch is a ‘reality’ show in and of itself.

Most of the time, out of sheer boredom or insomnia, I will impatiently flip from channel to channel hoping to at least to catch something remotely (pun intended) interesting. On the rarest of evenings and quite by accident, I stumble onto a program that stimulates me enough to keep me watching. Last night was just such an occasion. Appearing before me, magically delivered into my very own humble abode via digital satellite, were two of the pre-eminent Jurists of our time, together in one room, debating issues of law! I about wet myself with delight! It was a rare opportunity to listen and learn, and I took full advantage of it. Thank you C-Span!

The guests of honor were Justices Antonin Scalia and Stephen Breyer of the US Supreme Court. The venue was the American University in Washington D.C., where an informal debate and question/answer session was moderated by one of its law professors. The topic du jour pertained to issues of international concern in conjunction with US Court decisions, and whether or not legal decisions of other nations should be considered when deciding/interpreting American law. In light of recent developments in the ‘war’ on terror, and changes in security policies, this topic is of major importance.

Justice Antonin Scalia has always intrigued me (not just because he’s an Italian without mob connections) due to his aura of aloofness and the gruffness with which he is portrayed. As you probably know already, I am a Leftist (albeit a reasonable one) and I read underground news sources. Though I do not consider them arbiters of any specific truths (no more than the mainstream media), they at least bring up subject matter you will not find in the commercially driven press. One of those ‘hot’ topics is anything and everything about the Honorable Justice Scalia. He is the enemy of all things good and pure to the Left.

Justice Scalia is depicted in ‘alternative’ circles in caricature, as an overbearing throwback reminiscent of Salem Witch Trial judges who, in his spare time, runs naked through bear-infested forests hunting grizzly with his bare hands. Funny as the image may be, it is far from any reality. Justice Scalia is a very engaging speaker, is quite personable, is obviously intelligent enough to make it to the highest judicial body of the land, and I think he deserves to be there. (If I didn’t already know his name, I would have guessed his ethnicity from his mannerisms.) He is NOT, however, concerned with emotions and/or political agendas when making decisions and rendering opinions, much to the dismay of some and, I’m sure, also to the satisfaction of others. He has a much simpler view of things than pure politics permits.

Justice Scalia calls himself an ‘Originalist’. This means that his view of the Constitution is premised upon what the authors of that original document intended. Justice Scalia views the interpretation of and possible changes to the original document according to the letter and context of what the Founders envisioned in their time. There is great merit to this viewpoint. I agree that when it comes to Habeas Corpus, Miranda, and other basic civil liberties/restrictions that it behooves us to continue in that same spirit of freedom and liberty to protect ourselves from the unreasonable and overbearing government intrusion into our lives. On the other hand, global issues, similar to those discussed at this forum, were not necessarily considered in the Framers intent, since the framers wished to distance themselves from Europe and the governing style of their former masters. This ‘originalism’ was the predominant attitude of the Supreme Courts until about sixty years ago. American jurists like Oliver Wendell Holmes were ‘originalists.’ Justice Scalia follows in their footsteps during a time when few other jurists of his stature are willing to admit doing so.

The impetus for departure from this ‘originalism’ came about after the close of World War II. The Post Second World War era sparked an increase in global law enforcement, humanitarian concerns, communications, commerce, and travel. This meant that people would be taking their issues across jurisdictions, thus introducing new courts to problems heretofore yet unseen in those venues. The sharp and sudden rise in technology, patent applications, copyrights, and the rapidly changing borders necessitated newer applications for old laws and the need for newer interpretations to cope with a wider range of issues. In this respect, it is hard to imagine the Originalist having any substantive input, but he does, AND Scalia’s point on this is well founded.

Judges, in Scalia’s opinion, are NOT to create new laws from the bench or consider the laws of other nations or jurisdictions when deciding Constitutional issues. Changes in the law are made by legislators and may come as a result of precedents within American Courts, even lower ones. Originalists do not view the Constitution or law as static, per se, but feel that they can only work with what is written in context of what the Framers may have foreseen. Agree or disagree, it IS an honest and consistent outlook. In a democratic society, changes must come from the people, NOT from the bench. The judge is in the role of making sure the people’s decisions are within the bounds of the Constitution. Allowing judge’s to impose legislation on their own, without the checks and balances, would become a double-edged sword of Damocles that no one, Left, Right, or Centrist would be happy with for long.

If I could find a human being more unlike Justice Scalia in demeanor, it would be Justice Stephen Breyer. Justice Breyer appeared so laid back on the dais that I thought he was asleep. I half-expected the moderator to reach over and nudge Mr. Breyer back into consciousness. Make no mistake in assessing Justice Breyer’s relaxed and easy manner; there is a fun, often self-deprecating, good humored and passionate man under that soft-spoken and mufflered exterior. His legal sense of direction is no less profound than is his personage.

Where Justice Scalia appears as a cut and dry, no-bones-about-him in-your-face sort of jurist, Justice Breyer is a very thoughtful and deliberate man who sees the law as both principle, as Justice Scalia does, AND as human. To the latter, Breyer seems to place more emphasis, and due to this emphasis, the differences between these men become much larger than their personas. If you ask Justice Scalia for a legal opinion, you will get a direct answer. Ask the same question of Justice Breyer and you will also receive an answer, but only after he thinks it over. Scalia works from a set formula, and Breyer from a dynamic human perspective. They are of equal importance when it comes to Constitutional interpretation.

Justice Breyer sees the law as a dynamic relationship between all parties involved. Legal systems reflect cultures and as cultures grow and change so does the way we implement and interpret that law. A solution for 100 people may not provide the same level of benefit when applied to 100,000. Laws that once governed homogenous societies cannot always take into account the diversity that arrives from distant shores. It is for this reason that Justice Breyer is more open to hearing what foreign courts have decided on major issues. He doesn’t see the point of separating people and their ideas merely by geography when we are all having a similar human experience in equal measure, with only the minute details being slightly different. Justice Breyer, of course, agrees with Justice Scalia that we should in no way consider foreign opinions legally binding, but at the very least we should consult the opinions of foreign jurists when these same issues appear before our courts. I strongly agree with Justice Breyer on this point.

So kids? What have we learned today?

1) Justice Scalia is not such a bad guy after all (but I’m still not going bear hunting with him).

2) Justice Breyer has a personality (believe it or not).

3) If you ever make it to the Supreme Court (I don’t mean when your last death-row appeal fails), you’ll probably have to read the opinions of a judge in Zimbabwe to do your job properly.

4)Shlomo has found at least one thing worth watching this week. If this keeps up, he may never leave the house!

Always try to find out what others are thinking and why, even when you know ahead of time that you will be in disagreement. You would be surprised how much respect you can develop for an enemy, especially one endowed with principles and intelligence.

Much thanks to C-Span!