Supreme Teacher

Supreme Teacher

October 25, 2011
Justice Stephen Breyer demystifies the Supreme Court

It’s one thing to learn about the Supreme Court from legal textbooks, but quite another to learn about it directly from the source. On Oct. 6, 2011, when Supreme Court Justice Stephen Breyer visited the University of Richmond School of Law for the dedication of the Honorable Robert R. Mehrige, Jr. Moot Courtroom, he spent nearly an hour speaking to the law school's John Marshall Scholars about his work as a Supreme Court justice.

“This has almost become old hat for us,” joked Marshall Scholar John Morrissett, L’12, as he awaited Breyer’s arrival in the living room of the Bottomley House of the Jepson Alumni Center. In recent years the Marshall Scholars have met with the late Chief Justice William Rehnquist, Justice Anthony Kennedy, and Justice Antonin Scalia, and have made a few trips to the Supreme Court to watch oral arguments. “It’s a great benefit of being a Marshall Scholar,” Morrissett said.

Established in 1998, the John Marshall Scholars program combines a generous scholarship with a weekly seminar taught by Virginia Supreme Court Justice Elizabeth B. Lacy and Federal Magistrate Judge M. Hannah Lauck. The seminar’s focus varies each year as Lacy and Lauck examine current legal issues and controversies. They regularly invite judges, justices, lawyers and academics from their personal networks to share their experiences with the Marshall Scholars.

Breyer arrived to the Bottomley House after a law school luncheon in his honor, sitting down with 22 Marshall Scholars, Dean Wendy Collins Perdue, and Lacy around a mahogany conference table. Breyer, who was appointed to the Supreme Court by President Bill Clinton in 1994, is a passionate advocate for the public understanding of the Court. His most recent book, “Making our Democracy Work: A Judge’s View,” explains the Court’s role in ensuring a workable democracy.

“I just cannot sit there and be mysterious,” Breyer said. “It is just not my nature. I’m going to explain things. I am a teacher.” Breyer taught law for many years as a professor at Harvard Law School and at the Kennedy School of Government, and as he began describing a typical day as a Supreme Court justice, it was clear he is comfortable in that role.

“We get about 8,000 requests to hear cases every year and we hear about 80,” he explained. “We have two jobs. The first is to decide what to decide.” He likened the process to “finding a needle in a haystack.” Breyer and the other Supreme Court justices each read about 150 cases per week, he said, with their law clerks reviewing the cases and preparing memos on each outlining the issues, making recommendations, and providing analysis.

“What I am looking for is not whether they have made a mistake [in a court] below—we are not here to correct errors,” he said. “We are here to create a uniform body of law when the situation requires it.”

On Friday mornings the justices discuss all the cases and if four of the nine justices agree to do so, the Supreme Court will hear the case. Breyer said he reads 15-20 briefs before he hears any case and that he assigns three briefs to each law clerk, saying, “You better know these better than me.”

When asked about the most valuable skills his law clerks possess, Breyer replied, “It’s a hard job. You must know what is relevant, be able to look up things quickly, be able to express yourself and be able to tell me I am going in the wrong direction.”

The Supreme Court hears oral arguments every two weeks, allotting one hour for each case—30 minutes for each side. A student asked Breyer how he prepares for oral arguments. “It is more spontaneous than not,” he answered. “Our issue is which way is the best way to push the law. It is not a contest to see who is the best lawyer. It is not a moot court competition. It is very hard to argue in our court. You have a very limited time and we ask a lot of questions. We don’t think a lawyer should be making new arguments.”

Another student asked him who he thinks is the best oral arguer who has appeared before the Supreme Court. Breyer’s answer: Chief Justice John Roberts, who argued 39 cases before the Court before being appointed to its bench by President George W. Bush in 2005.

Breyer, who has served on the Supreme Court for 17 years, was asked how it has changed during his tenure. “I went for 11 years without any changes,” he said, “but now I dissent a lot and the views of the people have changed.

“It is the same as anything else—the court is used as a political football,” he added. “It’s harder to attack when you see what we do. That’s why I like to explain what we do.”