- The Washington Times
Wednesday, October 5, 2011

Partially lifting the veil that usually guards their actions, two Supreme Court justices on Wednesday painted the court as a bulwark for the Constitution and said some of today’s cynicism about government stems from the public’s scanty understanding of the founding document.

One of the two, Justice Antonin Scalia, said there are too many federal judges and they are too heavily taken from the ranks of lifelong government bureaucrats, which he said has watered down the quality of judges.

He and Justice Stephen G. Breyer appeared before the Senate Judiciary Committee in an unusual hearing. The branches of government usually strive to keep their spheres separate, but the two justices agreed to testify on the role of judges and the Constitution because both said they take a keen interest in trying to educate the public on the critical importance of the document.

“I feel that we’re not teaching it very well,” Justice Scalia said.

Justice Breyer said the Constitution “creates a structure for democracy” that has served the country well and said judges aren’t there to substitute for legislators, though he said they do bring their personal experiences to bear.

“This is a very big country. We have 309 million people, 308 million of whom, to everyone’s surprise, are not lawyers,” he said. “And they have many different views. And it’s a good thing, not a bad thing, that people’s outlook on that court is not always the same.”

Justice Scalia was nominated by President Reagan and confirmed in 1986, while Justice Breyer was a pick of President Clinton’s and began serving on the high court in 1994.

The judiciary is the most closed of any of the three federal branches of government, and the workings of the Supreme Court are somewhat shrouded.

On Wednesday, the justices explained some of the criteria they use for deciding which of 9,000 or so annual appeals they will consider. They said the key often is a disagreement among lower courts, which usually signals that a law is unclear and can be interpreted differently.

The court last year whittled those appeals down to just 77 cases the justices actually heard.

Sen. Herb Kohl, Wisconsin Democrat, urged them to decide more.

But the justices said they don’t go searching for cases to intervene in, and Justice Scalia said the smaller number of cases is a signal that Congress hasn’t passed much major legislation over the past decade.

“In the last 10 years, there’s been legislation, but nothing of — very little of that magnitude,” he said. “The major generator of circuit conflicts below is new legislation, because it always has some ambiguities that have to be decided by the courts. So where there hasn’t been a whole lot of major legislation, you would expect our load to go down.”

He said when he first came to the court, justices were deciding twice as many cases, and he said the legal opinions suffered for it with the majority and dissenters often behaving “like ships passing in the night; they never quite meet each other.”

Justices Scalia and Breyer are two of the most prominent proponents of competing judicial philosophies — the former espouses originalism, which says judges should try to confine themselves to the understanding of the Constitution and laws that was held by those who wrote them, and the latter subscribes to the idea of a “living” Constitution, which holds that judges must delve into underlying values and reapply them to modern problems.

“I’m hoping the living Constitution will die,” Justice Scalia said.

But Justice Breyer said the words of the Constitution don’t explain themselves and don’t always “work” for a modern country.

“It calls for human judgment. As soon as human judgment enters the picture, fallibility is possible,” he said.

He criticized the originalists for being too locked in to ancient concepts.

“The opposite danger is interpreting those words in a way that they will no longer work for a country of 308 million Americans who are living in the 21st century — work in the way those framers would have wanted them to work had they been able to understand our society,” he said.

The justices took on the ever-thorny issue of televising their proceedings, with Sen. Richard Blumenthal, Connecticut Democrat, asking them why they don’t.

The justices said they feared the effects of boiling down their in-depth arguments to brief snippets that would appear on the news.

“Do you really think the process in the Senate has been improved since the proceedings have been televised?” Justice Scalia asked.

Mr. Blumenthal shot back that though there have been mixed reviews, the openness has been worth it.

“I do think that it has been a step in the right direction, providing more transparency and disclosure and understanding on the part of the public,” he said.

Wednesday’s hearing was televised by C-SPAN.

Justice Scalia said the gridlock that draws protests from citizens and pundits alike is actually just what the government’s founders intended and said it’s evidence that divided government is working to preserve the few against the tyranny of the majority.

“Learn to love the separation of powers, which means learning to love the gridlock, which the framers believed would be the main protection of minorities,” he said. “Americans should appreciate that, and they should learn to love the gridlock. It’s there for a reason.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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