Legal News

At Yale, Breyer Talks Up the Lessons of Bush v. Gore

By Ashby Jones

Foreign scholars and judges from time to time visit the U.S. Supreme Court. We imagine that in their sit downs, they ask the justices on how they choose their cases; how they decide who writes opinions; how they deal with the media, that kind of thing.

But in a recent talk at Yale Law, Justice Stephen Breyer reported that often the questions from foreign dignitaries are of a more, well, fundamental nature. According to this writeup in the New Haven Register, Breyer said many such questions are not so much about process, but how the courts get the public to follow their direction.

It’s a fascinating thing when you step back and think about it: most edicts, opinions, orders that come not only from the U.S. Supreme Court but courts of all stripes in our nation do not need anything else backing them up to take force. The rule of law is just that strong in the U.S.

Justice Breyer marveled about just that fact during his talk at Yale, and used the famous 2000 case Bush v. Gore as an example of just how strong the rule of law is in this country. Breyer, who voted in the minority in the 5-4 decision, said the court should not have taken the case. But despite that the ruling prompted an outpouring of emotion, both angry and elated, Breyer said there never was a worry there would be mobs in the street or a revolution after the Supreme Court made its ruling.

"That characteristic is a national treasure," Breyer said.

Breyer recalled the remarks of Senate Majority Leader Harry Reid (D-Nev.) after the high court ruling, that the stability of the country in such a time of stress was an accepted fact.

"We just breathe it like the air. We went along and accepted it," said Breyer.

During his talk, Breyer said it wasn't until Brown V. Board of Education in 1954 and President Dwight Eisenhower's decision in 1957 to send in federal troops to oversee the desegregation of Little Rock High School that the authority of the court on constitutional issues became clearer.

He said the day that 1,000 troops were sent to protect nine teenagers integrating the Arkansas high school was "a fabulous day for law in America."

Hankering for more Supreme Court news? Not much going on today at One First St., N.E., but the NLJ’s Tony Mauro weighed in with his take on the possibility of upcoming vacancies. One of Mauro’s main points: President Obama might have a relatively easier time winning confirmation of a real liberal justice if he faces two vacancies at the same time, which could happen if Justices Ginsburg and Stevens stepped down at the end of the term, which some people think might happen. Click here, also, for Doug Berman’s take over at the Sentencing Law and Policy Blog.

Photo: Getty Images

Full post as published by Law Blog - WSJ.com on February 16, 2010 (boomark / email).