Speaking to more than 400 people gathered in Ames Courtroom, the two justices—who often are at odds with each other in court opinions—locked horns most vigorously when discussing the role of foreign law in shaping legal decisions in the U.S., but also made time for informal discussion and jokes.
“What can a foreign decision possibly tell me about the meaning of a text adopted by an American legislature, or by the American people?” Scalia said. “Nothing at all.”
“I agree that if you believe in a living Constitution...then of course consult foreign law,” he continued. “Why not? I mean, consult a Ouija board.”
Breyer responded by naming historical moments when leaders had turned to international legal models.
“The notion that it’s a new idea to look to other places to find out how people settle similar legal problems is perhaps an ahistorical notion,” he said to Scalia. “And if that doesn’t convince you, what would?”
Scalia and Breyer—both HLS graduates—were joined by English justices Lord Rodger of Earlsferry, Lady Justice Arden (also an HLS alumna), and Lord Scott of Foscote in the event, organized by the Anglo-American Legal Exchange.
During the discussion, Scalia briefly touched on the pending confirmation of judge John G. Roberts Jr. ’76 as chief justice of the Supreme Court. He said Roberts’ comparison of a Supreme Court justice to a baseball umpire was a “fair description” of the way most courts should operate.
“We’re really not there to make sure that the good guy won and the bad guy lost,” Scalia said.
Breyer described the Supreme Court’s role as “100 percent law interpretation” and “much more mechanical than you might think.”
During a question-and-answer session, one student asked the panel about the potential political pressures involved in the controversial Bush v. Gore case. Frankfurter Professor of Law Alan M. Dershowitz had suggested that he direct the question toward Scalia, he explained.
“He’s still mad at me, isn’t he?” Scalia retorted jokingly, before adding, more seriously, that he had not witnessed any justice take into account “political considerations” in deciding the case.
Breyer added that he had never seen any evidence of politics influencing a court decision. Even so, he said, ideological beliefs occasionally surface.
Scalia said that the politicization of the Supreme Court could be attributed to the emergence of a “judicial philosophy which says the Constitution is indeterminate.”
“It will become unpoliticized, as it relatively used to be, as soon as we go back to saying the Constitution means what it says, and it means what it meant when it was adopted,” he said.
“It was an absolutely unique opportunity that I think will be hard to recreate in my legal career,” said Simon L. Conway, an HLS student who hails from the United Kingdom.
The event was the first time “in recent memory” that the Law School has hosted two sitting Supreme Court justices simultaneously, according to HLS Communications Director Michael A. Armini. He added that it was also one of the school’s most popular gatherings, forcing dozens who arrived even 30 minutes early to file into a cramped overflow-seating room.
The event also had more lighthearted moments, including references to the justices’ long history of disagreement.
“Are we always on different sides? No, we’re not, interestingly enough,” Breyer said. “Quite a lot we are.”
“It’s the Harvard bond,” Law School dean and moderator Elena Kagan interjected.
—Staff writer Javier C. Hernandez can be reached at email@example.com.