Supreme Court is border guard, lightning rod, Breyer says

Transcript Staff Writer

The Supreme Court is the "border guard" of the law, protecting the line between civil liberties and security, Supreme Court Justice Stephen Breyer told University of Oklahoma students, faculty and staff at the OU College of Law Thursday afternoon.

Breyer spoke about the role of the U.S. Supreme Court and how that role has been established historically as part of the sixth annual Henry Family Lecture in Jurisprudence. Breyer is in town this week to take part in the investiture ceremony of Judge Robert Henry, who will be sworn in as Chief Judge of the U.S. Court of Appeals for the Tenth Circuit 1:30 p.m. today in the Reynolds Performing Arts Center on OU's campus.

Breyer told a full courtroom that the constitution has been a question since it was written. Judges at that time debated how it would be interpreted and who would have the final say. Breyer said he has asked himself that question for years, and still doesn't know an answer.

"I'll do my best to summarize what, say, a few years of experience as a judge has taught me about the answer," Breyer said at the beginning of his lecture.

Only a few years after the United States was founded, the Supreme Court decided it would be the final say in what was constitutional. The decision came easily, but it has been tested over the years. How does a body without the power of the purse or the sword enforce its judgments, Breyer asked.

Over the years, U.S. citizens have gradually accepted this authority, Breyer said.

That's not to say there haven't been problems, though. When the Supreme Court decided a case in favor of the Cherokee Tribe, the state of Georgia still wouldn't let the tribe have its land. Through fake treaties and the like, President Andrew Jackson sent in the military to force the Cherokees out of Georgia and into Oklahoma on the famous Trail of Tears.

Later, however, when the Supreme Court decided public schools needed to integrate, the governor of Arkansas wouldn't obey. But in that instance, President Dwight Eisenhower called in the 101st Airborne and forced integration.

Now there is little question whether the Supreme Court has the final say in the law. For example, in the case of Bush v. Gore in 2000, no one questioned that what the Supreme Court decided was the final word.

"The day after that came down, people said, 'OK, we disagree with that,' ... but (there was) virtually no difference of opinion about what should be done. We'll follow it," Breyer said.

So the Supreme Court's job has been determined, but that doesn't mean the job is easy, Breyer said.

"The constitution is meant to be a workable, democratic document," Breyer said. Justices should look at the constitution's values, but then the intent must be hashed out in individual judgments, he said.

Breyer described Supreme Court justices as "border patrol," given the job of striking a balance between protection of individual liberties and national security. One such difficult example, he said, is the case of rights for prisoners of Guantanamo Bay. It raises hard challenges, but the point is that everyone's trying to work out all the questions it raises, Breyer said.

The Supreme Court must strike a fine balance, he said. It has to have enough independence that it can carry out its job, so that citizens can be confident that decisions were arrived at impartially. That gives people the confidence to obey the Supreme Court's decision even if they don't agree.

Later Thursday, at a dinner and conversation with OU President David Boren and former Justice Sandra Day O'Connor, Breyer spoke more about judicial independence.

When Boren asked Breyer if he ever considered public opinion in his decisions, Breyer said no. But he expressed confidence in the public.

"They will accept things they disagree with if they are given reasons," he said.

O'Connor said public opinion never swayed her either. That's the key to the judicial branch -- it's supposed to be impartial. When judges are sworn in, they swear to uphold the laws and constitution of the U.S., she said.

"It doesn't say, 'I swear to hold up public opinion,'" she said.

Many Americans think justices make decisions based on their own opinions, O'Connor said. She said this is a big problem, and she's tried to address this perception by holding conferences about judicial independence.

Judges are not made to be swayed by public opinion, so they will inevitably be unpopular at times, Breyer said.

"They are lightning rods and lightning will hit, or be aimed at them," he said.

Julianna Parker 366-3541 jparker@normantranscript.com