Leaning forward pugnaciously in his yellow armchair, Justice Antonin Scalia declared his eternal resistance to the arguments of his liberal colleague on the Supreme Court, Justice Stephen G. Breyer.
"He will never convert me," Scalia declared -- not that anyone familiar with his conservative record on the court ever doubted that.
Justice Antonin Scalia answers a question while Justice Stephen Breyer looks on during a conversation on the relevance of Foreign Law for American Constitutional Adjudication at American University Washington College of Law.
(Photos by Lucian Perkins - The Washington Post)
But what was somewhat unexpected about Scalia's pronouncement was the setting: It was not the court's conference room, which is off-limits to everyone but the nine justices. Nor was it the courtroom, where Scalia and Breyer sometimes exchange indirect gibes but where the audience is limited to those spectators lucky enough to get in, because the court bars TV cameras.
Rather, it was a classroom at the American University Washington College of Law, where, for 90 remarkable minutes yesterday, Breyer and Scalia stepped out from behind the velvet curtain and argued legal issues in front of professors and students -- and a national television audience watching on C-SPAN. It was the first time in recent memory that two sitting justices representing opposing factions on the court took their disagreements so completely public, and the effect was, at times, electrifying.
The subject -- whether the Supreme Court should consult the opinions of foreign courts in making its own interpretations of the U.S. Constitution -- is a hot topic in constitutional law. But it was almost overshadowed by the spectacle of two legal heavyweights engaged in a sharp but civil intellectual slugfest.
The two men were a study not only in contrasting legal philosophies but also in contrasting personal styles. Scalia was characteristically intense, frequently shifting to the edge of his seat and punctuating his thoughts with brisk gesticulations. Breyer was all professorial cool, relaxing back into his easy chair and sipping spring water from a long-stemmed glass.
They discussed in detail the opinions each had written in past cases; they crossed swords over basic questions such as the role of judges in a democratic society, and they competed to make the audience laugh.
"Out of 10 times people asked me if I'm on the Supreme Court," Breyer quipped, making a point about the relative anonymity of the court's members, "nine of them thought I was Justice [David H.] Souter."
Neither justice really conceded any ground to the other, but in one sense Scalia had made a concession simply by appearing. Although he has been on television in the past, he generally avoids the cameras, barring them from speeches he makes at law schools and public-policy groups around the country. It was only 22 months ago that he took some heat for banning television coverage of his acceptance of an award in Cleveland for defending free speech.
But apparently the topic of yesterday's debate -- billed by its co-sponsors, the law school and the U.S. Association of Constitutional Law, as a "conversation" -- prompted Scalia to adopt, at least for a day, the same pro-camera policy that Breyer has long followed with respect to his speeches. The discussion was moderated by Norman Dorsen of New York University Law School, a mutual friend of the justices who persuaded them to take part.
The court has made use of foreign legal opinion to bolster its rulings in two major recent opinions, its 2002 decision to abolish the death penalty for the moderately mentally retarded and its 2003 decision to abolish state laws against private consensual sex between same-sex adults. Foreign views of the death penalty are expected to play a major role in a case the court is still working on this term, Roper v. Simmons, in which the issue is whether U.S. states may continue to sentence juvenile offenders to death -- a practice all but abandoned in the rest of the world.
Breyer is perhaps the court's leading advocate of the idea that the Supreme Court needs to take greater notice of the legal opinions abroad, making the argument yesterday that the goal is not to make foreign rulings binding on U.S. courts but rather to consider them as a source of information and analysis.
"These are human beings called judges who have problems that are similar to our own," he remarked. "Why don't I read what he says if it is similar enough?"
Conservatives oppose the concept as an affront to U.S. sovereignty; Republicans have introduced legislation in Congress that would forbid judges to cite foreign case law. And Scalia has led the opposition on the court.
"We don't have the same moral and legal framework as the rest of the world and never have," he said yesterday, adding that the framers of the U.S. Constitution "would be appalled" to see the document they wrote interpreted in light of the views of European courts.
"What does the opinion of a wise Zimbabwean judge . . . have to do with what Americans believe," Scalia asked Breyer, "unless you think it has been given to the courts" to make moral judgments that properly should be left to elected representatives. "Well, it's relevant in this way," Breyer replied. "They are human beings there, just as they are here. You're trying to get a picture of how other people have dealt with it."
"Indulge your curiosity," Scalia joked, "just don't put it in your opinions."
Breyer insisted that Scalia and other conservatives are overreacting to a few well-publicized cases involving the death penalty and gay rights, when the real importance of international law to the United States is in less controversial areas, such as antitrust trade and intellectual property.
"This world we live in is a world where it is out of date to teach foreign law in a course called Foreign Law," he declared.