Archive for Friday, January 26, 2001


January 26, 2001


Breyer declined to talk about the court's 5-4 decision in December that cinched the presidency for Republican George W. Bush.

But fielding a question about the matter at the Kansas University Law School, Breyer did say that the nine justices get along well with each other and treat each other professionally.

"That was true and is true as of this moment, and I expect that will continue into the future," Breyer said. Some recent reports have said that the justices have not been on good terms after the court's decision on the recounting of Florida votes.

Breyer was at KU as part of events marking the ceremonial installation of 10th Circuit Court Judge Deanell Tacha of Lawrence to the chief judge position on the Denver-based federal appeals court.

An early start

Breyer's day started early with breakfast at the Kenneth Spencer Research Library where he looked at legal documents dating to the 15th century.

Later, he gave a standing-room-only lecture at the law school on the political and legal struggles of the Cherokee Nation in the 1830s.

"I was really impressed that he talked about a Native American issue," said first-year law student Lisa LaCroix, who has studied the issues surrounding the Cherokees. "He was fair, he presented both sides."

In an interview with the Journal-World, Breyer, a Supreme Court justice since 1994, said he enjoyed the give-and-take with students.

"I love talking with students," Breyer, 62, said. "They are very direct. They will not be satisfied with an answer that is confusing or evasive. Law professors don't realize how lucky they are."

No ideological split

In an afternoon question-and-answer session with students, Breyer was asked about the 5-4 ideological split on the court.

Breyer was in the minority on the decision that stopped the hand recount of votes in Florida. A day later, Democrat Al Gore conceded the election to Bush.

Breyer denied there was a split based on ideology. He said the justices take into account the laws themselves, what their impacts are, and the traditions of the country.

"It's a question of tendencies. It's a question of a mix of judicial philosophy," he said.

Despite a sternly worded dissent by Justice John Paul Stevens in the Bush v. Gore case, Breyer indicated there was no ill will among the justices. "Each day is new, each case is new," he said.

He also pointed to his own dissenting opinion, in which he wrote about the contested election of 1876 between Republican Rutherford B. Hayes and Democrat Samuel Tilden.

Like Gore, Tilden received more popular votes than Hayes. Numerous votes were contested, including those in Florida.

An election commission was appointed to decide the matter, and it voted along party lines to give Hayes the presidency. Most accounts of the event said the commission's vote was the outcome of partisan politics.

But Thursday, Breyer noted a recent historical treatment of the contest that argued a key vote on the commission, that of a Supreme Court justice, really wasn't based on partisan politics.

"Nobody believed that at the time," Breyer said.

Effect of rulings

His earlier lecture on the Cherokee Nation also emphasized that sometimes it is impossible to gauge the effect of Supreme Court rulings, or declare if they were good or bad.

In the 1830s, the Supreme Court ruled in favor of the Cherokees in a key case protecting their sovereignty, based on a federal treaty, within the state of Georgia. The case was seen by some as a high-water mark in the court asserting federal law over state's rights.

But President Andrew Jackson declined to enforce the decision, and later the Cherokees essentially were swindled off their land.

"The Cherokees won the legal battle and lost the war," Breyer said.

Even so, he said, the lessons of the dispute probably helped future presidents. Jackson's refusal to enact a Supreme Court decision later came back to haunt him as another state tried to assert rights that Jackson disagreed with, Breyer said.

Perhaps, Breyer said, President Dwight D. Eisenhower used the lesson of Jackson when he moved federal troops into the South to enforce court-ordered desegregation.

'Extra information'

Althea Eaton, a business major at Haskell Indian Nations University, took notes during Breyer's talk.

"I liked the way he put it, it was more of a story. There was a lot of extra information that he threw in there," she said.

Breyer said he put the lecture together as part of a class he used to teach at Harvard Law School on the tension between Supreme Court decisions and political forces.

Prior to his appointment to the court, Breyer served as an appellate judge, assistant attorney general and an assistant special prosecutor in the Watergate case.

Judge Tacha said she was proud to have Breyer on hand for her installation as chief judge. Plus, she said, it gave her the opportunity "to showcase the university and the law school."

- Staff writer Scott Rothschild can be reached at 832-7221.

Commenting has been disabled for this item.