NYLS 125th Banner
Hon. Stephen G. Breyer Delivers 2006 Sidney Shainwald Public Interest Lecture

The most important concept embodied in the United States Constitution is democracy although that word never appears in this “rather special document,” Hon. Stephen G. Breyer, Associate Justice of the United States Supreme Court, said at the 2006 Sidney Shainwald Public Interest Lecture in the Stiefel Reading Room on May 2nd.

Speaking on the topic, Reflections of a Supreme Court Justice, before an audience of invited guests and students, Justice Breyer noted that “Being a member of the Supreme Court is different than being an appellate court judge.” One major difference, he explained, is that “I have a steady diet of Constitutional cases.”

Justice Breyer said these cases “come from all over the Constitution” and that it was important for a Justice to look at the Constitution as a whole because when viewed in that way, “you have to begin to see that there is a relationship between the different parts.” The Constitution, Justice Breyer declared, is a document about creating institutions that allow people to govern themselves.

“The Constitution doesn’t tell people what to do. It does set up a system that allows people to decide what to do,” Justice Breyer commented. He added that in his view, democracy does have boundaries and “those boundaries need patrolling.” The U.S. Supreme Court, according to Justice Breyer, is “the boundary patrol.”

“Life isn’t easy at those boundaries,” Justice Breyer said. Our democracy is “a certain kind of democracy” that protects human rights, calls for equality under the law, recognizes the division of power, and supports the rule of law.

Where disputes exist, it is up to individuals to work them out. It is “at the every end of the process that judges get involved,” Justice Breyer noted, and added that their involvement is not to determine if a given idea is good or bad, but if it “goes off the Constitutional rails.”

The participation of citizens is a key ingredient in American democracy, Justice Breyer said, and it is implied in the Constitution.

“I can’t tell you what to do, but I can tell you this,” Justice Breyer commented. “The document I work with every day foresees that you will participate.”

Justice Breyer cited the examples of campaign financing and affirmative action to illustrate how different people can view the Constitution in different ways.

While some people believe that campaign finance reform is a good idea, he said, others see it as a violation of the First Amendment, which protects free speech. While money is not speech, he noted, in a campaign, it enables speech. When you see the First Amendment tied to a democratic process where all people have rights, “it casts a certain light,” Justice Breyer said, that prevents one from finding an easy answer.

Speaking about affirmative action, the Justice referred to a case involving the University of Michigan and then asked if affirmative action was consistent with the 14th Amendment, which says that no state shall deprive any person of equal protection under the law. One side would argue that there can be no favoritism because of race, Justice Breyer explained, while the other side would say the 14th Amendment was designed to bring people into society as full and equal members.

“There are very good arguments for each view,” Justice Breyer said.

The Supreme Court decided that some affirmative action was legal because the briefs presented by various groups indicated that diversity in some instances was not possible without affirmative action, Justice Breyer continued. The Justice added that the question was whether our society wanted an interpretation of the Constitution that excluded people.

“I think not,” he said, and added, “At least five members of the Court thought not.”

Justice Breyer noted that with all of its flaws, the Constitutional system of government allows 300 million people with every point of view to solve disputes “in a court of law and not in the streets.”

He said his most stressful decision was Bush v. Gore in 2000, but added that even when the members of the Court have strong and diverse opinions, “I have never heard a voice raised in anger in that conference room.” Justice Breyer added that during his 12 years on the Court, around 40 percent of all decisions rendered were unanimous. Another 20 percent, he said, were decided by a vote of five to four, and the groupings of justices varied in many of those cases.

When asked why he thought the Constitution has lasted more than 200 years, Justice Breyer responded: “It isn’t just the document, or words, or judges, but people who understand they have to follow the law even when they disagree with it.”

Once a case is over, Justice Breyer said, the Court moves on to the next one because the Court is “a very future-looking institution.” The Court also operates in a very democratic manner. In the Court conference room, “nobody speaks twice until everyone has spoken once.”

Dean Richard A. Matasar welcomed the guests to the Shainwald Lecture by commenting on the appropriateness of a public interest lecture at New York Law School. The desire to help others, which the Dean often refers to as part of the “DNA” of the law school was the same impetus that inspired the career of Sidney Shainwald during his lifetime and is the foundation of the Sidney Shainwald Public Interest Lecture.

The Shainwald Lecture was established by Sybil Shainwald ’76 in honor of her husband Sidney, an impassioned advocate for social justice. Kenneth R. Feinberg, Special Master, September 11th Victim Compensation Fund and managing partner and founder of The Feinberg Group LLP was the inaugural Shainwald Lecturer in 2004. Senator Edward M. Kennedy delivered the second Shainwald Lecture in 2005.

Sybil Shainwald introduced Harry Wellington, Dean Emeritus of New York Law School and Yale Law School, and Professor of Law, who spoke briefly about Justice Breyer.

Professor Wellington said that when Justice Breyer was appointed to the Supreme Court by President Bill Clinton in 1994, “this was indeed a lucky day for America.” Professor Wellington said Justice Breyer “does his job so very well” because he is “true to his conception of the law” and that conception is admired by many.

After his lecture, Justice Breyer met with students and answered their questions. A limited number of autographed copies of his book, Active Liberty , were available for purchase in the Broad Student Center.