Breyer, Scalia explain why they often disagree

[March 24, 2010]  WASHINGTON (AP) -- Justice Antonin Scalia tends to see things as black or white. Justice Stephen Breyer sees a lot more gray.

Caption: In this Sept. 29, 2009, photo, Justice Antonin Scalia sits for a new group photograph at the Supreme Court in Washington, D.C.  (AP file photo by Charles Dharapak)

When contentious decisions come down at the Supreme Court, Breyer and Scalia are almost always on opposite sides. On Tuesday, they tried to explain why their differing views of judging so often lead them to opposite conclusions when the topic is abortion, the death penalty, gay rights or physician-assisted suicide.

Breyer, 71, and Scalia, 74, have done this before, but never at the Supreme Court. They took the bench at the invitation of the Supreme Court Historical Society, with a moderator between them, and jabbed at each other for more than an hour.

"I never heard that before and I certainly don't agree with it," Scalia said in response to one point from Breyer.

"If I did make an argument you hadn't thought of before, I wish you'd think about it," Breyer replied a few minutes later.

Caption: In this Sept. 29, 2009, photo, Associate Justice Stephen Breyer sits for a new group photograph with other Supreme Court judges.  (AP file photo by Charles Dharapak)

Under Breyer's view of the Constitution, judges sometimes must be guided by more than the language of laws, if the words are ambiguous or embody a value that must be applied to specific circumstances.

Breyer said his way allows the court "to better carry out that initial intent that this document will in fact govern a changing society as society changes over the course of centuries."

Scalia's text-based approach focuses on giving a fair reading to the words of the Constitution as they were meant when they were written.

"I know a whole bunch of rights that have been found in the Constitution that the people never voted for," he said. "That's what's happened through the device of looking at the purpose of the provisions and saying we have to keep the Constitution up to date."

Breyer said his approach makes Scalia nervous and uncomfortable.

Scalia wrapped up the evening with a laugh. "I think I persuaded him," he said.

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Justice Ruth Bader Ginsburg recently added her own defense of Justice Department lawyers who came under attack from some conservatives for their previous representation of terrorism suspects. Ginsburg, speaking at a Pro Bono Institute reception, said she was "unsettled, indeed alarmed" by news reports about the criticism made by Keep America Safe, according to text of her remarks provided by the court.

The group was co-founded by Liz Cheney, daughter of former Vice President Dick Cheney, the Republicans' most forceful critic of Obama administration national security policies.

Ginsburg counts a former law clerk, Karl Thompson, among the nine Justice officials who provided pro bono, or free, representation of suspects held at Guantanamo Bay, Cuba, and other locations.

Ginsburg said her former clerk, whom she did not name in her text, is "a young man of great intelligence, integrity and devotion to the ideals that make the U.S.A. a great nation."

She called the criticism a "base assault" and recalled that in 2007 the Bush administration's deputy assistant defense secretary for detainee affairs, Charles "Cully" Stimson, said he found it shocking that lawyers at many top firms represent Guantanamo detainees. Stimson, who resigned under fire following his comments, has defended the Justice lawyers from the latest criticism.

Ginsburg quoted at length from comments made in 2007 by Brackett Denniston, General Electric's top lawyer, who was being honored by the Pro Bono Institute. Denniston said justice is served when there is quality representation even for the unpopular.

"To that expression of the true American way, one can only say, 'Amen,'" Ginsburg said.

Ginsburg, who turned 77 on March 15, also took a gentle shot at Sen. Jim Bunning, R-Ky., who said the justice probably wouldn't live more than nine months after her surgery for pancreatic cancer.

Bunning quickly apologized.

Ginsburg said that more than 13 months after her surgery she was pleased to report she is alive and in good health, "contrary to Sen. Bunning's prediction."

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Word that Judge Diane Wood of the federal appeals court in Chicago would be speaking in Washington drew a half-dozen reporters who cover the Supreme Court to her lunchtime talk at the law offices of Akin Gump Strauss Hauer & Feld on Tuesday.

Wood was one of the finalists for last year's Supreme Court opening and is considered a leading candidate in the event that Justice John Paul Stevens -- or, less likely, Ginsburg -- retires this year.

The judge, a one-time Justice Department official and before that a law clerk to Justice Harry Blackmun, said nothing about the high court.

But that didn't stop Thomas Goldstein, an Akin Gump partner and Supreme Court lawyer, from gushing about Wood's qualifications for the high court.

Wood sat impassively through the praise.

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The Supreme Court Web site has a new address and a new look.

The site -- http://www.supremecourt.gov/ -- allows visitors to search for opinions and other documents more easily and has a color-coded calendar on the home page that shows when the court is in session. The court's old site had been run by the Government Printing Office until Congress gave the court money this year to assume responsibility for it.

Opinions and argument transcripts can be downloaded from the site, but not audio of the arguments or the summaries of opinions that the justices read aloud in the courtroom. For that, visitors still have to go to http://www.oyez.org/.

[Associated Press; By MARK SHERMAN]

Associated Press writer Jesse J. Holland contributed to this report.

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