Will Someone Please Help Justice Breyer?

by Matthew J. Franck

The other day the New York Times ran a story about the clerks at the Supreme Court.  The hook for the story was some recent work by political scientists suggesting that the clerks are more ideologically polarized than ever, with few of the justices employing anyone in their chambers who is not fundamentally sympatico with their own jurisprudential views.*  Whatever the merits of this alleged discovery, the story was also an occasion for some of the sources interviewed to lament the influence of 20-somethings in shaping the work product of our highest tribunal.

Yeah, I get that.  But then there are some justices who could use the help.  I have a case in point right here.

For some years I have belonged to the Supreme Court Historical Society.  I think it does some good things, like sponsoring lectures at the Court, and it publishes the Journal of Supreme Court History three times a year.  The Society has a close relationship with the Court itself–running the gift shop in the Court building, for instance, and hosting lectures and receptions in the building as well.  The justices regularly speak at its meetings (I’ve never managed to attend one, and in just a moment I might be asked not to).  Typically, the Journal publishes the talks given by the justices.  In fact, given the close relationship, it would be kind of hard to decline, wouldn’t it?

But declining to publish the 2009 lecture “A Look Back At the Dred Scott Decision” would have been a service to the author, Justice Stephen G. Breyer.  It appears in the latest issue, which I recently received, and Breyer’s lecture is, quite simply, an embarrassment.  I am inclined to believe that no clerk helped him with it, since any recent law school graduate from a top school should have done a better job.  The lecture contains elementary errors of fact, makes at least one attribution of an argument to a justice in Dred Scott which is entirely inaccurate, and plods to a set of conclusions that are suffused with banality.  If I were to grade this piece of work as a term paper by an advanced undergraduate, I’d give it a C- if I were in a good mood.

The editors could have saved Breyer from such boo-boos as typing “1817″ in one place and “1859″ in another for the date of the Dred Scott decision (it was 1857), and they could have silently corrected one subject-verb disagreement and his omission of the third “e” in Horace Greeley’s name.  More importantly, they could have rescued Breyer from the absolute howler of telling us that three justices dissented in Dred Scott, when there were only two who did so.  Readers who think I’m making a mountain out of a molehill should consider that, in the field of constitutional law and history, Dred Scott is the most famous 7-2 decision of the Court until Roe v. Wade.  It’s a mistake rather like saying that in 1858 the prairie of Illinois echoed to the sound of the Lincoln-Douglas-Buchanan debate.  You’d kind of lose your cred as a Lincoln buff if you said this.  And it’s not a one-time slip: Breyer makes this error three times in the published lecture.  He discusses the dissent of Benjamin Curtis at some length (not that he really understands it well), but never names the other two who he thinks dissented.  Okay, Mr. Justice, it was John McLean and . . . Anyone? anyone?  This is a blunder that could have been avoided by relying on Wikipedia, for pete’s sake.

Can it get worse?  Yes, this is a disaster on many levels.  At one point Justice Breyer attributes to Justice Curtis an argument about the due process clause that Curtis never makes:

Nor could “due process of law” mean that a slave remains a slave when his master moves from, say, slave state A to live permanently in free state B.  What law would then govern the slave, the slave’s wife, his house, his children, his grandchildren?  State B has no such laws.  And State B’s judges could not work with a proliferating legal system under which each slave, coming to B, brought with him his own law, from A or from C or from whatever other slave state he happened to be from.

This might just be an interesting argument, if Curtis had ever made it.  But he didn’t.  And he didn’t for the very simple reason that the due process clause at the center of the Dred Scott case was in the Fifth Amendment (the Fourteenth was added 11 years later partly in response to Dred Scott), and the Fifth Amendment only dealt with the question of what protection one’s life, liberty, or property had under federal law, whereas Breyer is nattering on here about what would happen under this or that regime of state law, which the Fifth Amendment’s due process clause could not affect.  Ah.  Never mind, then.

I will spare you Breyer’s five “lessons” of the Dred Scott case, which are vapid in the extreme.  One gets the distinct impression that Breyer believes there was something actually wrong with the decision, especially on moral grounds, but he never puts his finger on just what it might be.  This author of the 2000 Stenberg v. Carhart opinion, striking down a state law against partial-birth abortion, does not for a moment see that what was wrong with Dred Scott is the very thing that is wrong with the abortion regime cobbled together in Roe and its progeny: that it tortured the due process clause to reach a politically desired result; that it held an entire class of human beings beyond the pale of the law’s protections; that it made a mockery of the founding principles of the republic and usurped the authority of the people of the United States to govern themselves.

I hear that next week Knopf will publish a new book by Justice Breyer, Making Our Democracy Work.  Here’s hoping he made his clerks work on producing a competent bit of writing.  Would that be kosher if he doesn’t share his royalties with them?

*Update: I see that a little while before me, Ed Whelan cogently commented on this NYT story.

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