Scalia and Breyer Debate

Scalia and Breyer Debate

Introduction

Justice Scalia and Justice Breyer often appear on the opposite side of the debate when it comes to the interpretation of the constitution. In the media, Scalia if often branded as part of the Conservative team, while Breyer is always considered a Liberal (Arnold 1203). However, this cannot be further from the truth. Although the actions of Justice Scalia portray him as a Conservative, he always strives to distance himself from any affiliations. His major moves include joining the majority in making it legal to torch the American flag and campaigned for the expansion of the confrontation clause. On the other hand, Justice Breyer has a shade of grey, since some of his actions are Liberal, while some of his actions are Conservative.  This article will discuss the major differences between the two and will give my opinion on which Justice has the better argument.

What Should be Considered Relevant

This is one of the contentious issues whereby the two Justices disagree. It is unclear as to what exactly should get considered when making a judgment in court. Justice Breyer pointed out that the wording of the constitution is relevant in a case (Arnold 1204). However, precedence, history, purpose, and the consequences should get taken as seriously as the constitution. His reasoning is that none of these factors should get considered superior to others. In the event that one factor is considered superior, he said that precedence carries more weight than the others. This tendency is portrayed in his decisions because he hates overruling past judgments unless it is necessary. On the contrary, Justice Scalia values text over all the factors, including consequences. His reasoning is that any injustices in the consequences should get attributed to the people who drafted the words. Only the meaning of those words at the time of writing should get considered when making a judgment. Judge Scalia followed the strict rule that the meaning of the words should get taken at face value and should not get twisted to try and find hidden meanings.

Contemporary Updating

This was another factor, which the two Justices could not agree. Take, for example, the death penalty. It got drafted in writing when the constitution was adopted. When considering such a clause, is it written in stone, or can changes get made to suit the current times? For Justice Scalia, the words of the constitution are very clear regarding this. First, the clause got drafted in at the inception of the constitution (Arnold 1205). Second, the Fifth Amendment is strictly against the “deprivation of life, liberty or property, without due process of law.” He claims that these words do not forbid the death penalty; hence, they should not get interpreted to mean otherwise. His insistence is on the last part of the clause (without due process of law), which shows that the penalty should be handed out so long as the law is followed to the letter.

For Justice Breyer, the solution is not as simple as that. He would seek clarity from the “Cruel and Unusual Punishment Clause.” This clause seeks to protect citizens against unjust treatment or inhumane sentences. He holds the view that death should get considered separately from other types of rulings (Arnold 1205). Therefore, it requires different sets of rules that other cases would not get afforded. Justice Scalia is adamant that capital punishment should get interpreted as to what the drafters wrote. This difference is relevant when statistics get considered in death penalty cases. Hypothetically, let’s say 20% of all death penalty cases in the past turn out to be wrong. Justice Scalia would consider the information irrelevant and rule according to what the constitution says, while Justice Breyer would factor in all the information and history and use it to make a final decision.

Scope of Opinions

The question of how high opinion should get valued in terms of interpretation of the text has been around for a while. Case in point, a speed limit of 100 miles per hour is a rule, while a “drive safely” sign is considered to be a standard. This is the main point of disagreement between the two Justices. Justice Breyer is inclined toward following the standard. In contrast, Justice Scalia follows the rules to the letter. Justice Scalia stands by the opinion that there is no balancing-act when it comes to the law (Arnold 1206). He has made several rulings in the past in favor of this viewpoint. He famously favored the three-part rule as opposed to balancing in a “negative commerce clause case.” He made a joke that it is impossible to determine whether a rock is heavier than a line is longer. However, Justice Scalia has not always favored the rules over standard. This was portrayed in the Miranda case of the 1960s. This led to a call for coerced confessions to get thrown out of court. Justice Scalia rejected the push of the Liberals, who were advocating for rules, which ironically he now supports.

The Magnitude of Clarity

The importance of clarity is another point where the two Justices had major differences. The constitution is made of many laws; some of them are clear and straight-forward, while some of them are ambiguous in nature. Justice Scalia prefers rules which are clear and not open to interpretation (Arnold 1205). He claims that this makes the handing out of judgment much easier. On the other hand, Justice Breyer has no issues with ambiguous texts. He explains that total certainty in the law is not realistically attainable; hence, a little room for interpretation should be allowed. He famously told his law student that he is prepared to “deal with the mess” that arises from unclear laws.

Theory and Constitutional Philosophy

Justice Scalia and Justice Breyer have theories and philosophies, which completely differ when interpreting the constitution. Justice Breyer favors the “living constitution and evolutionist approach” (Stephen 10), while Justice Scalia favors the “textual approach.” Both of these theories will be discussed in depth. Justice Scalia openly criticizes the Supreme Court claiming that they act like an activist branch rather than a strict and neutral Justice system. He is wary of any deviation from the original meaning of the constitution. He famously wrote an essay defending his approach.  In the article, he states that the constitution should remain traditional and true to its values. He says that the constitution is meant to maintain a steady use of the law over different times and generations; hence, it should not be altered to forge other interpretations. He is also against the common law approach, which gives power to judges to amend and improve certain laws over time. He says that this approach gives judges the power to instill their own beliefs upon society. Following the text of the constitution means that no indiscretion is made in the ruling, and no personal feelings interfere with the decision making.

Justice Breyer favored the “living constitution and evolutionist approach.” This is well portrayed in his book, “active liberty.” He states that the constitution is intertwined with the democracy of the country; hence, the opinion of the public should get channeled through the nine un-elected Justices and reflected in the constitution (Stephen 10). According to Justice Breyer, this approach has two main benefits. First, it gives the power of the convictions to the American citizens and reduces the impact of the judge’s decisions, which is based on their understanding of the constitution. Second, he narrows in on the impact these rulings have on the life of Americans and their capability of undertaking self-governance. He argues that active liberty is a fundamental part of the “living constitution” approach and should get implemented in the modern justice system. This system would allow judges to interpret the constitutional laws in a way that is relevant to the present-day society. He claims that the current Justice system often under-value the importance of active liberty in their interpretation of laws (Stephen 17). The two approaches portrayed above show the major difference between the two Justices.

The Death Penalty

In all the debates and discussions between the two Justices, the death penalty always comes up. The two Justices have conflicting views on how the case should be handled. Justice Scalia says that the constitution states that any individual can get subjected to the death penalty if found guilty, provided the due process is followed. He believes that it is unconstitutional for the nine judges of the Supreme Court to vote on laws, which affect the whole county (Annenberg classroom). That mandate should be left for the American citizens to decide through a fair democratic process.

Justice Breyer, on the other hand, says that the death penalty is in direct violation of the “Cruel and Unusual Punishment Clause.” He stands by the view that human life is sacred, and the death penalty is in direct violation of the right to life. He stands by his viewpoint that the Supreme Court should reserve the right to update the laws according to the modern-day requirements. He gives the example of automobiles, the internet, smartphones, and other modern technology, which were not present during the making of the constitution, but are relevant today Annenberg classroom). He argues that if laws can get changed to factor in these new developments, then laws like the death penalty should not be cast in stone either.

Conclusion  

From the above essay, it is clear that the two judges had conflicting approaches to the interpretation of the law. Both aspects of their argument can be used to arrive at better decisions. This is apparent in today’s bench of the Supreme Court, which consists of judges from both sets of approaches. I don’t support the idea of the Supreme Court bench only consisting of Justices like Scalia, neither do I support the idea of the bench only consisting of Justices like Breyer. A mixture of both is good for democracy and the incorporation of different viewpoints. However, if I was to pick one viewpoint, I would choose Justice Breyer’s argument. His theory of the living constitution is better because it allows for the laws to get updated suiting the modern-day situation.

Works Cited

Annenberg Classroom. “A Conversation on the Constitution with Justices Stephen Breyer and Antonin Scalia: Judicial Interpretation.” Annenberg Classroom, (n.d.), https://www.annenbergclassroom.org/resource/conversation-constitution-judicial-interpretation/

Arnold, Loewy H. A Tale of Two Justices: Scalia and Breyer. E-book, Hein online 2010-2011

Stephen, Breyer. Active Liberty: Interpreting our Democratic Constitution. E-book, Harvard University, November 17-19, 2004