With all of their joint appearances, feisty debates, and dueling books, Justice Antonin Scalia and Justice Stephen G. Breyer are fast becoming the One First Street version of the Kozinski-and-Reinhardt Traveling Debate Society. This past weekend, Justice Scalia and Justice Breyer made an appearance in Australia -- where, by the way, Underneath Their Robes has a small but devoted cult following. An Aussie correspondent offers this fantastic judicial sightation:
Here in Melbourne, Australia, we’ve just been treated to an overdose of federal judicial glamour in a two-day conference last weekend. Justices Scalia and Breyer joined their counterparts Justices Michael Kirby and Dyson Heydon of the High Court of Australia in addressing the high-powered but pretentiously-titled “Boston, Melbourne, Oxford Conversazione on Culture” on the theme of judicial activism. You’ll be glad to know that the Supremes completely upstaged their Australian hosts.
Justice Scalia was in fine form, and had the audience eating out of the palm of his hand as he addressed them on his particular brand of originalism. While I’m sure he covered territory that would be well known to American audiences, his speech was a breath of fresh air to an Australian audience used to the more mealy-mouthed style of judicial speech-making in this country.
His speech prompted bouts of uproarious laughter and sustained applause, and ranged in tone from very serious discussion of legal principle to mordant wit and biting sarcasm. His main theme was that the Constitution requires ‘government by the people, not government by judicial aristocracy,’ and thus that the attempt to replace democratic politics by ‘expert’ moral legislation from the bench was as much bound to fail as the attempt to replace politics by ‘expert’ administration in the first half of the 20th century.
Scalia’s speech was filled with witty aphorisms. On the purported desire to appoint only ‘moderate' judges, Scalia ironically asked: ‘What is a “moderate” judge? One who gives opinions half way between what the Constitution actually says and what they’d like it to say? Talking about “moderate” judges makes no sense, but talking about moderate politics does.’
On the importance of structural aspects of the Constitution, he said: ‘It’s easier to fill a mob behind a banner that says “Free Speech or Death!” than one that says “Bicameralism or a Fight!” But the latter is the more important!”. And on criticism, he said: ‘So, my opinions get criticised: but so what? I’ve got life tenure!!!’
Great, great stuff; what excellent attention to detail! And now, please pay special attention to this next paragraph:
I can also confirm that Justice Scalia appears to be a furtive reader of “Underneath Their Robes”. Before dinner on the Saturday night, a friend and I sought a photo op with Nino, and we mentioned to him that in some circles he is known as the Rock Star of One First Street -- to which he nodded and smiled knowingly!!! Now, if that’s not proof enough that he reads UTR, I don’t know what is!
Justice Breyer is obviously less used to photo ops, and seemed a little embarrassed when I approached him at the Sunday night dinner. When I saw him, I noticed that he was wearing the lapel pin of the French Legion of Honour, which seemed to me to be taking this whole “foreign law” thing a bit too far. His speech earlier in the day was a bit like a high school civics lecture, and he lacked the wit and levity of Scalia the day before. Obviously, the two of them don’t see eye to eye, and Breyer spent most of his speech staring daggers at Scalia!
Very interesting! Might the Scalia-Breyer relationship be less good-natured than the one between Judge Kozinski and Judge Reinhardt?
(Before we get all excited at the prospect of AS and SGB slapping each other silly, however, it's worth noting that Justice Breyer is probably not the bench-slapping type. In Jeffrey Toobin's fascinating profile of Justice Breyer, former SGB clerk Neal Katyal has the following to say about his former boss: "Lots of times his colleagues will throw barbs at him in opinions, but he’ll never say a bad word about them, in public or private.")
UTR's antipodean source continues:
Breyer described his constitutional outlook as one that paid attention to the purposes of the law under scrutiny and to the consequences of judicial decision-making, and he did a decent job of defending his outlook. Breyer claimed that no judge describes him- or herself as someone who applies their personal preferences when judging.
Scalia thought this was disingenuous, and responded with a joke: ‘A farmer hears a noise in the night and goes out to the chicken coop to investigate. He asks “who’s there?” and the answer comes back “no-one but us chickens,” and so the farmer goes back to bed. You’re like that farmer!’ Breyer was not amused!!
I would say, though, that Justice Breyer was more eloquent and persuasive in response to questions and in conversation over dinner than he was in his actual speech. At dinner, he also continued the French theme by weaving in a very good quotation from Camus’ “The Plague” in response to a question.
With best wishes, and with constant admiration for your blog,
[A University of Melbourne law student]
WOW! How great is that? A3G thanks the writer for this delightful account of how our Supreme Court justices are bringing the glory of the federal judiciary to every corner of the earth. Keep up the fine work, Your Honors; the world needs more Article III groupies!