The Supreme Court decision that effectively decided the 2000 presidential election is an example of the durability of Americans' faith in their legal system, one of the justices on the losing side of Bush v. Gore said today.
Justice Stephen G. Breyer said the December decision, like recent controversial Supreme Court decisions on abortion and religion, is remarkable for "the fact that losers as well as winners will abide by the result, and so will the public."
Breyer was among the dissenters in the 5 to 4 decision that stopped Florida ballot recounts sought by Al Gore. The decision preserved George W. Bush's slim lead in the decisive state. In a secondary holding, Breyer and Justice David H. Souteragreed with the majority that the Florida recount was improper, and they said an acceptable remedy might be a new recount with proper standards.
Breyer did not discuss the case in detail in a speech to the annual meeting of the American Bar Association but said the court's approach to controversial cases is straightforward.
"We read the briefs, all of them. We question the lawyers. We confer informally and at [a formal] conference, and in a civil manner."
Breyer echoed remarks made by an opposing justice, Clarence Thomas, the day after the Bush v. Gore decision.
"In the seven years I have been a member of the court I have never, never heard a voice raised in anger, nor heard any slighting remark, during any of the court's discussion, no matter how contentious the case," Breyer said.
Unlike the open defiance that greeted at least one divisive 19th-century Supreme Court decision, today's tough cases are met with "widespread acceptance of the final decision even where we may wholeheartedly believe that decision is completely wrong," Breyer said.
Integrity, public service and civic involvement by lawyers are some of the reasons for the transformation, Breyer said.
Engaged lawyers also help guide the country through change driven by technology and other factors, Breyer said, and courts, including the Supreme Court, need the same help.
He cited three cases from the Supreme Court term that concluded in June as examples of the growing role of courts in examining the implications of technology.
In one case, the court held that police needed a search warrant to use a heat-detecting sensor to sniff out a marijuana-growing operation. The majority was "fully aware that the device might portend a host of new ways for those outside a home to learn what was occurring within," Breyer said.
The court also ruled that the First Amendment protected a radio host who aired an illegally recorded cellular telephone call. In another case, it examined how 1970s copyright law applied to 1990s electronic news archives and ruled that media companies had to get authors' permission to post freelance articles.
Breyer took no questions.