Supreme Court Justice Stephen Breyer helped a split majority create a new right for same-sex couples to marry, but he’s not about to weigh in on Kim Davis, the Kentucky county clerk who defied the Court’s landmark decision and spent five nights in jail rather than issue marriage licenses to same-sex couples.
“I am evading the question,” Breyer told CNN’s Wolf Blitzer regarding Kim Davis, the Rowan County, Kentucky, clerk who said that issuing same sex marriage licenses under the landmark decision in Obergefell v. Hodges would violate her religious freedom.
“What is settled law, is what we wrote,” he said, noting Davis’ objections could find their way to the Supreme Court. “How these issues play out on the margins is something I don’t yet know, but I know there’s a chance it might come up in various ways,” he said.
The 77-year-old, who just marked his 21st anniversary on the Court, sat down for a wide-ranging interview regarding the controversies of last term, including his votes in favor of same sex marriage and Obamacare, as well as a surprising dissent he issued in a death penalty case.
Breyer is promoting his third book, “The Court and the World, American Law and the New Global Realities,” which delves into current and past cases to bolster his argument that the Supreme Court must increasingly consider the world outside U.S. borders in its own work.
Presidential politics
The Davis controversy is occurring as the presidential debate heats up and candidates on both sides of the spectrum have taken aim at the Court and some of its decisions.
Former Arkansas Gov. Mike Huckabee has said that the Court overstepped its boundaries in the Obergefell decision, Hillary Clinton is pushing for a reversal of Citizens United, and Donald Trump has said he advocates amending the Constitution to do away with granting automatic citizenship to all children born in the U.S.
On the eve of a presidential debate, Breyer was likewise very wary of wading into presidential politics.
“Everyone has freedom of speech,” he allowed.
“But judges, do they have freedom of speech? They have to be very, very, very careful when they make a remark that could be interpreted politically.”
But Breyer stressed that controversy surrounding the highest court in the land is nothing new.
“There have been plenty of times in history where the Court has been the subject of very strong criticism,” he said referring to cases such as Bush v. Gore, that decided the 2000 election and Brown V. Board of Education , the 1954 holding that racial segregation of children in public schools violated the Equal Protection Clause.
“You try to do your best,” he said. “You do your best to have some of what I call ‘imaginative understanding’ of how a decision will affect people in this country, because this is not a theoretical exercise. This is an exercise that affects Americans all across the country.”
Breyer says U.S. should reconsider death penalty
In June, while most people were watching the cases concerning gay marriage and the Affordable Care Act, Breyer jolted court watchers in another case.
In a 5-4 decision, the Court upheld the use of the lethal injection drug, midazolam. In his dissent, Breyer did something he has never done before. Joined by Justice Ruth Bader Ginsburg, he said that he thought the Court should revisit the constitutionality of the death penalty. Currently no sitting justice has said the death penalty is unconstitutional.
Breyer reiterated his concerns about the punishment’s reliability, and his belief that it is being arbitrarily imposed. “I think, it’s time to revisit the issue,” he said.
The lethal injection case came out on the last day of the term, and Breyer took the summer to travel and recuperate during the annual recess. He is now tackling a book tour before the next term commences in October.
In the book, Breyer suggests that because the world is now so interdependent, the Supreme Court is increasingly considering complex cases on issues such as national security, securities law human rights and copyright, that involve other countries and their laws and customs. He writes that the Court must “extend its range of legal and practical reference beyond what has been its custom, in order to arrive at sound judgment.”
The Court’s reference to foreign law, in some circumstances, has prompted criticism at times from Justice Antonin Scalia and members of Congress.
In the book, Breyer acknowledges the criticism. “I do not ignore the basic fact that the American people can and must democratically determine their own laws,” he writes. But the act of listening to those who understand the relevant foreign law is “perfectly consistent” with the interpretation of our own law, he adds.
Breyer told Blitzer that the world has changed. “And if we do not participate through even institutions like the Supreme Court, the world will go along without us and we will have a world that has a less humane, decent rule of law than we advocate here in the United States.”
Age as a benefit on the bench
In between controversial decisions, book tours and speaking engagements, Breyer shows no signs of slowing down. “I give my best to it, each time I decide a case,” he said. “As you get older, it’s even more of a benefit.”
And he is proud of the way the Court handles its divisions in the closely divided cases.
He said his colleagues don’t share a “slap on the back, let’s go out for a drink” type of friendship. But they are friends and they do socialize. More importantly Breyer said, “I have never, in 21 years, heard in that conference room a voice raised in anger.”
It’s a lesson other branches might learn.
“There’s no reasons we’ can’t be friends,” he said “there’s no reason that human beings cannot differ civilly — civilly — on matters of great importance.”