A High Court too far above the fray? 

‘In the 17 years I’ve been there, I’ve never once heard a voice raised in anger. Never.”

That was Associate Justice Stephen Breyer of the United States Supreme Court in the course of a long interview he did with me for my radio program this past Wednesday.  (The text of the interview is posted at the “Transcripts” page at HughHewitt.com.)

“I have never heard one judge say something rude about another, not even as a joke,” the justice continued. “Despite the controversy and disagreement, people are professional, they say what their reasons are, they listen to each other, and they try to contribute something that will make a difference to the others.”

Our conversation ranged far and wide over some familiar case titles. But it was this observation by the charming and scholarly Breyer that triggered some thoughts on just how different the work of the Court is, compared to the lives of those regulated by the vast reaches of the federal and state governments and the Supreme Court which, in Justice Breyer’s phrase, “patrols the borders” of constitutional arrangements.

Anger and emotion, raised voices and rolling eyes are an inevitable if unpleasant feature of nearly all of the private sector and most of the public sector as well.

Many of the entrepreneurs, most of the lawyers, and all of the elected officials with whom I have worked over the past three decades have had their moments of anger and emotion and often just intensely frustrated exchanges with their colleagues, teams, investors, contributors, customers and employees.  

It is a bumpy, tumultuous, sorrow-filled world, and when the federal, state or local authorities are imposing directives and extracting taxes and fees on private sector job creators no matter what the industry burdened or the agency issuing the decree, tempers can and do run high --because the stakes are high.

Investments are on the line.  Jobs are on the line.  Lives are on the line. The contrast with the portrait Justice Breyer painted of the Court’s routine could not be more complete.

It is very reassuring on one level that the justices operate in such a collegial fashion over so many years. It is also somewhat unsettling to think of the remove they are at from the lives of ordinary citizens.

Voters without lifetime tenure and a secure retirement and especially those buffeted by the economic roller-coaster of the past four years and the wars of the past 10 are abandoning hope in the ability of the government and the Court to get it right.

It becomes more and more difficult to make the arguments about the necessity of a robust judicial review that Justice Breyer advances in his fine book, “Making Democracy Work: A Judge’s View.”

We concluded our interview talking about the pre-Civil War Dred Scott case which stands for both the power of judicial review and the consequences of its improvident deployment.

“And the war came,” Lincoln said in his Second Inaugural, and he might have added “hastened on by the Supreme Court.”

There is no war in the offing, thank God, but the Court and its brethren on the federal and state benches may be too insulated from the turmoil of the present day to grasp just how deeply antagonized millions of ordinary citizens are from their government.

It is reassuring that the justices can carry on calmly amid many storms, but we have to hope that a majority of them at least understand that they are responsible for making much of the weather the rest of us experience.

Examiner columnist Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at HughHewitt.com.

About The Author

Hugh Hewitt

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Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at HughHewitt.com.

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