Justices of the Highest Courts Compare and Contrast

BY KATIE THOMASON

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photo by Emily Lee

On Wednesday, September 28, Harvard Law alums and Supreme Court Justices Stephen G. Breyer and Antonin Scalia joined three counterpart judges from the United Kingdom on a panel to compare the UK and US judicial systems, addressing their respective structures, philosophies, and purposes.

Students began packing the Ames Courtroom at 9 a.m. to secure a seat for the occasion and the room was soon filled to the brim, sending many into the likewise-packed overflow room in Langdell Hall.

Dean Elana Kagan moderated the discussion, which was held in conjunction with the Anglo-American Legal Exchange, a program in which lawyers and judges from the United States and United Kingdom meet to discuss matters of common interest.

The UK participants included The Right Honourable The Lord Scott of Foscote, The Right Honourable The Lord Rodger of Earlsferry, both of the Court of Appeal in Ordinary, the highest appellate court in the UK, and The Right Honourable Lady Justice Arden of the Court of Appeals of England and Wales (LLM, ’71).

While the panel highlighted similarities and differences in the judicial systems of the two countries, including structure, purpose, and judicial philosophy, the most heated debates, as expected, came from the two US justices. Dean Kagan highlighted the justices’ differing opinions by joking that while this was a panel on comparative judicial philosophies, all of the UK participants could disappear and there could still be such a discussion.

When asked about the politicization of the Court, and how it could be helped, Justice Scalia responded by saying, “It will become unpoliticized, as it relatively used to be, as soon as we go back to saying the Constitution means what it says, and it means what it meant when it was adopted.”

But Justice Breyer thought that the question was based on a false premise: “People think it’s more political than it is.” He outlined the differences between politics, ideology, and personality. “You can’t escape your own skin,” he said, noting that while politics [rarely, if ever] enter into judicial decision making, individual values and ideas will inevitably be factors.

There was humorous banter back and forth as well. When Dean Kagan asked about consulting foreign law, Scalia said that since he’s not a common law judge and is “always looking at a text,” he would not use foreign law. He posed the question, “What can a foreign decision possibly tell me about the meaning of a text adopted by an American legislature, or by the American people? The answer is nothing at all.”

“I agree that if you believe in a living Constitution… then of course consult foreign law,” he continued. “Why not, I mean, consult a Ouija board?”

Breyer countered with a historical argument, arguing that by chain of literature Lincoln and Madison consulted foreign law. “The notion that it’s a new idea to look to other places to find out how people settle similar legal problems is perhaps an ahistorical notion,” he said. “And if that doesn’t convince you, what will?”

All of the panelists did agree somewhat, however, on the more basic roles of the Supreme Court. Scalia said, “I am much less interested in [the particular litigants before me] as I am in the rule of law that’s being adopted which will be applied thousands of times by the lower courts without the benefit of my reviewing it anymore.”

While Breyer admitted that it sounded “callused,” and might be overstated, he agreed with the sentiment as mostly true, because, unlike the lower courts, “the Supreme Court is nearly one hundred percent law interpretation.”

The UK judges, too, agreed that the role of the highest court is not solely to correct wrongs. Lord Scott noted: “There needs to be a point of principle that justifies the case being taken.”

The panelists also discussed differences in the courts with regard to the selection of justices. The British justices are chosen by the bar, Scalia explained. They would be “shocked” to discover political motives in choosing justices. Lord Scott concurred, but added that it has not always been that way; indeed, there was once a convention that if the attorney general, an elected official, wanted the Lord Chief Justice position, he was entitled to it.

Scalia and Breyer weighed in on the choosing of justices in the US. Breyer stated his belief that the vast majority of appointees are qualified, and that politics plays a role, but a very minimal one. But, he posed, “is it such a bad thing?” He cited the fact that courts had to desegregate two-thirds of the country.

This was a unique opportunity for Harvard Law School students, in Dean Kagan’s words, to have some of the “finest and most important judges in the United States and in the United Kingdom [here] all at once to talk with us,” and it was entertaining as well.

A webcast of the event is available at http://www.law.harvard.edu/news/2005/09/30_judging.php.

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