Monday, January 17, 2005
Scalia v. Breyer II: American University now has a transcript up of the Scalia-Breyer debate that I posted about last week.
You can find more discussion about the event over at Kenneth Anderson's blog -- he was also the moderator of the debate. Anderson took issue with the quote that the Associated Press and I picked up on regarding the role of the courts.
I was one of the organizers of the Scalia-Breyer debate - I'm a law prof at AU law school - and although the AP quote was, so far as I could tell, accurate, it was taken sharply out of context. Justice Breyer was speaking in a very specific exchange with Justice Scalia about the narrowly judicial act of interpreting legal texts, and it is quite unfair to take that remark about who participates directly in the process of interpreting legal texts that have already been informed by constitutional and legislative and other democratic institutions - judges, lawyers, law students (and it was obvious to the live audience that he included students as a courtesy to the audience of law students) - as being somehow antidemocratic. He was just noting the fact that legal materials, once they have been created through various democratic mechanisms, then become subject to interpretation by the interactions of lawyers and judges. It was nothing more insidious than that. [emphasis in original]
I watched the entire debate, and I must confess that I came the same conclusion the AP did in its report. If Breyer didn't mean it, that's great, but I'm going to put this one on Breyer and a failure to communicate.