There are several reports today about the 90-minute debate between Justices Scalia and Breyer on whether American judges should consider foreign law in interpreting the U.S. Constitution (How Appealing has collected some of them here and here). The debate was interesting, lively, and at times entertaining (both Scalia and Breyer have pretty good senses of humor). You can watch the whole thing here (RealPlayer required), courtesy of C-Span.
First, full disclosure: I clerked for Justice Breyer (when he was still Judge Breyer on the 1st Circuit in Boston). And now the commentary: would everyone who thinks Justice Scalia is the smartest person on the Court (or even the smartest person ever to have sat on the Court) please just cut it out? This was no contest. Breyer blew him away. It doesn’t matter which of them you ultimately agreed with. Scalia’s good with a quick turn of phrase (as anyone who has seen him at oral argument knows), but when it comes to really thinking through a complicated question and presenting a reasoned, intellectually coherent position on it, like I said, no contest.
Want more examples? Read this (Breyer), and compare it to this (Scalia), and maybe this (Scalia again). Again, even if your own view inclines toward Scalia’s, and even if you find Scalia’s quick-witted, raconteur-like style an easier read, the deeper and better-reasoned approach is Breyer’s.