How the Supreme Court works

Stephen Henderson of Knight Ridder Newspapers presents an interesting report of Justices O’Connor, Scalia, and Breyer discussing how they make their decisions.

I found the following items especially revealing:

People don’t understand the Constitution

All three justices lamented how little people understand the Constitution and the courts.

"It's a major problem," O'Connor said, noting that schools often don't adequately teach civics. "You don't inherit knowledge of the Constitution through the gene pool. It has to be taught."

Should Justices consider International Law?

When Scalia and Breyer argued over whether international law was appropriate to consider when deciding cases, she [O’Connor] jumped in.

"This is really much ado about nothing," she said. There were some cases involving treaties with other countries or lawsuits with international implications in which justices have to consult foreign law, she said. In addition, some clauses of the Constitution, such as the ban on cruel and unusual punishment in the Eighth Amendment, are "elastic" and unusual and benefit from global context. But other provisions, she said, have been interpreted in a more static fashion.

The court recently cited international rejection of juvenile executions as one of four reasons to outlaw the juvenile death penalty in the United States. O'Connor declined to join that opinion.

Scalia said that ruling was especially inappropriate because the court had concluded the opposite just 15 years earlier.

"The majority in that case contradicted the majority of states in this country that have the death penalty," Scalia said. "International law had no place in that."

Breyer said even the founders consulted international law, noting that James Madison's papers included notes on the governmental structure in Syracuse in ancient Greece.

"Ah, but he was writing a constitution, not interpreting one, my friend," Scalia said.

Frustrations with judges

Asked about the increasing political frustration with judges, including threats to strip judges of some of their power, Breyer sought to put the current flap in context.

In 1830, he said, President Andrew Jackson used federal troops to prevent a court decision ceding land to Indian tribes from taking effect. In 1954, he said, President Eisenhower had to use National Guard troops to desegregate southern schools after the Brown v. Board of Education decision.

But today, no disagreement has reached that level of rancor or inspired that manner of confrontation with the judiciary, Breyer said.

"People will criticize, but they will follow the rule of law," Breyer said.

I am a strong believer in the Rule of Law and of the American Constitution as the basis for our American way of life. I hope that Breyer's comment remains accurate, but I think that the Xtian Right is bringing them under attack.