Breyer selects Brown v. Board of Education as a case that was criticized as activist but is today recognized as a correct application of the Equal Protection clause. It's an odd choice in light of the desegregation cases argued at the court just this week. Brown's indisputable "correctness" has, after all, possibly laid the groundwork for its own demise.
Both justices agree that Chief Justice John Roberts' affection for narrower, unanimous cases is probably mistaken: says Scalia, "If you wanted to decide almost nothing at all and decide the case on such a narrow ground that it will be of very little use to the bar in the future, you can always get nine votes." He notes that it helps the bar not at all to have cases decided on narrow technicalities. Breyer agrees that you don't want nine votes just to have nine votes. Scalia also disputes Roberts' distaste for "boldness" in opinion writing: "The law doesn't have to be dull," he grins, explaining that he writes his dissents for the case books. "Originalism used to be an orthodoxy," he sighs. "Now, there are only two certified originalists on the court, myself and Justice Thomas." He waves his arm hopelessly at the 900 assembled lawyers. "I don't hope to persuade you. It's too late for you guys." But he says he's still hoping to win over the law students.
Here is where Breyer reveals just how much these men truly differ. Because, says he, he writes his dissents to persuade. His cell phone erupts here. He describes how after finishing each dissent, he proclaims to his wife that "this time it will really persuade them." He laughs, explaining that over time, that always changes to a hope that he'll persuade them and then to regret that it didn't. Scalia offers the view that nobody at Supreme Court case conferences is persuaded by the other justices. Breyer thinks his colleagues' minds can be changed with good arguments.
Breyer celebrates the benefits of the many diverse and contrasting views at the high court. Scalia mourns the fact that they don't all share Scalia's views. The discussion is broad and deep, collegial and frank. And as we always knew from oral argument, there are miles and miles separating Scalia's elegantly simple interpretive worldview from Breyer's murkier, more hopeful one. Stephen Breyer's jurisprudential Grover—sweet and optimistic and eager-to-please—is working the room, confident he'll sell us on his constitutional theory, one lawyer at a time. And Antonin Scalia's constitutional Oscar the Grouch—frustrated and misunderstood, yet somehow more lovable for it—doesn't even try to close the deal. He doesn't need us to vindicate him. He's confident history will do that.
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