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.
I think you stand in a small minority that thinks Breyer “blew Scalia away”–Breyer, though in good humor, was somewhat defensive, and essentially seemed to downplay using foreign law (and said some frightening things about what he saw the role of the judge to be).
I watched the debate and in no way had the impression that Breyer even held his own against Scalia, much less “blew him away.” In fact, I was suprised by how little Breyer was able to accomplish. Most distressing was his insistence that these foreign opinions should be used for some sort of moral judging. He completely downplayed the use of foreign law and never was able to answer, or even directly respond to, Scalia’s problems with the use of foreign law to reach a decision on Eighth Amendment evolving standards of decency questions.
I’ll give you a pass on this one. You clerked for Breyer, so I guess that clouded your judgement in this case. Anyone who listened to this debate heard Scalia blow Breyer away. Breyer was on the defensive immediately, and he seemed embarrassed to admit he considered foreign law. At one point Breyer mentioned an English case, and Scalia reminded him that that particular case was reversed by the same court. The whole audience burst out laughing at Breyer. No contest.