Inside the Mind of a Supreme Court Justice

[heliochrome85]

So yesterday in the car, I caught the tail end of NPR's interview with Associate Justice of the Supreme Court Hon. Stephen Breyer. He talked about a wide variety of things, including how the second amendment can and has been interpreted, and why there is conflict. Since these interviews are so rare, i thought id share.
http://www.npr.org/templates/story/stor ... =129831688

On the case District of Columbia v. Heller, which held that the Second Amendment protected an individual's right to possess a firearm for private use in a home in federal enclaves

"The majority thought that a well-regulated militia [was] necessary for the security of a free state. But that isn't the heart of the thing. The heart of the thing is the right of the people to keep and bear arms and that means to protect themselves from attack, even by burglars. The minority, of which I was one, looked back over the same history and they say, 'No. This was put here for a particular reason. What happened was that Madison and the others who wanted the Constitution faced opposition from states, and the states were afraid that Congress would call up state militias as part of the federal army and then disband them — and the states would not be protected. ... Madison and Hamilton [had stated], 'We will write these words into the Constitution and they will protect the states' rights to have a militia.' Now the minority thought that was the basic value underlying these words so there was a disagreement. If, in fact, you accept the minority views — look back at the words, look back at the language, look back with the history — this does not have much to do with keeping a pistol on a table to protect yourself from a burglar. Now ... assume the majority is right, which I did not assume they were right, I don't believe they were right but I'll assume it for argument's sake. Still, on the assumption that they're right and this has something to do with keeping pistols next to your bedside, the question is: What does it have to do with it? The District of Columbia had passed a law which said you cannot have pistols in the District of Columbia. And the question would be: Is that law prohibited by the Second Amendment as the majority interprets it? And I thought, and the others in dissent thought, that the answer is the District of Columbia can pass such a law. Because it serves a very important objective: saving lives from burglars, from accidents, from suicide. And it is overwhelmingly important — but you see, what we're trying to do there, is to work out: Is this kind of prohibition proportionate? Is it fair? Is it reasonable in light of the ends, the objectives and the values in the Constitution?"

[IBCoupe]

I was in the middle of that podcast when you posted that, oddly enough. It was cool, too, because I had just finished reading a case where Breyer concurred with Scalia's conclusion but disagreed with his reasoning (something he talks about early in the interview).

Scalia's of the mind that the four corners of a law's text are the limits of its meaning. He doesn't just apply this to the Constitution, he applies it to statute. He subtly ridiculed the American Trucker's Association when it tried to assert that the EPA was required to do something that the statute related to the National Ambient Air Quality Standard made no mention of:

Were it not for the hundreds of pages of briefing respondents have submitted on the issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the standards.

Breyer disagreed with Scalia's reasoning: he thought that, as a rule, the ambiguities of a statute's language should be seen to "permit" the EPA to consider costs. But he agreed with Scalia's solution, using his own reasoning, because the specifics in this case (namely, the legislative history behind the Clean Air Act) made it perfectly clear that Congress did not want the EPA to consider costs of solution implementation in determining the safest levels of air pollution.

[heliochrome85]

I was in the middle of that podcast when you posted that, oddly enough. It was cool, too, because I had just finished reading a case where Breyer concurred with Scalia's conclusion but disagreed with his reasoning (something he talks about early in the interview).

Scalia's of the mind that the four corners of a law's text are the limits of its meaning. He doesn't just apply this to the Constitution, he applies it to statute. He subtly ridiculed the American Trucker's Association when it tried to assert that the EPA was required to do something that the statute related to the National Ambient Air Quality Standard made no mention of:

Were it not for the hundreds of pages of briefing respondents have submitted on the issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the standards.

Breyer disagreed with Scalia's reasoning: he thought that, as a rule, the ambiguities of a statute's language should be seen to "permit" the EPA to consider costs. But he agreed with Scalia's solution, using his own reasoning, because the specifics in this case (namely, the legislative history behind the Clean Air Act) made it perfectly clear that Congress did not want the EPA to consider costs of solution implementation in determining the safest levels of air pollution.

scalia is about as sane as la lohan. and about as cuddly as a porcupine.

[IBCoupe]

But he's so wonderfully consistent in his approach. I can appreciate that.

Admittedly, there are times where he doesn't get a chance to go with strict constructionist interpretation of law, or when strict constructionist interpretation leads to an illogical result. For example, I flipped out at a ruling of his that said that psychoanalyst-patient privilege only exists to licensed "psychoanalysts," and not to social workers who've been licensed to perform psychoanalysis.

[heliochrome85]

either way, its nice to see how these guys kinda think. breyer always struck me as exceptionally rational and devoid of passionate sways. when i got home, i ended up relistening to the segment. He will be on Charlie Rose tonight. I suggest you watch it.

[IBCoupe]

I'll be stuck in Environmental Law, otherwise I probably would have.

[heliochrome85]

I'll be stuck in Environmental Law, otherwise I probably would have.

no no. charlierose.com has the entire archive of the show. you can watch it when you get home if you so choose.

[IBCoupe]

Maybe Thursday night; class gets out an hour earlier. I have an hour commute to and from school, and Env. Law is from 6:30 to 9:30. And I get up for work at 5:30AM.

[heliochrome85]

i start rounds at 7am. my apartment is 2 hours by subway away. i get off work at 6pm. hooray day.