"Five books" interview with Stephen Breyer

The Browser has another of its "Five Books" interviews, this one with U.S. Supreme Court Justice Stephen Breyer.

Above and beyond his reading list, which you should see for yourself by reading the interview, Justice Breyer has a few thoughts about the Court's role and how justices do their jobs.

We work on difficult legal issues involving laws passed by Congress. We are most likely to hear those cases where lower courts have come to different conclusions about the same question of federal law. Our job, the nine of us, is basically to create a uniform rule of law by ironing out differences.

Breyer tries to explain why he doesn't operate as a strict constructionist:

Values don't change, but circumstances do. The Internet is something that George Washington didn’t envision. George Washington can’t tell us how the First Amendment applies to the Internet. But history can tell us what the framers were trying to achieve when they wrote the First Amendment. Some people think they can answer specific questions today through history. I think you can't get that much out of it and you must apply, as best you can, unchanging values like free expression to the ever-changing circumstances of modern life.

I suggest that even values change: we no longer consider any subset of human beings to be worth only three-fifths of other human beings. (Well, rich folks are esteemed much more than poorer ones by our government today ... but I digress.)

(Both the interviewer and Justice Breyer somewhat conflated strict constructionism with originalism. I attempted to sort the two out back in December 2010.)

As for why Justice Breyer's list consists of books that would be more suited to a college undergraduate's breadth requirement than a legal education:

Law requires both a head and a heart. You need a good head to read all those words [in law books] and figure out how they apply. But when you are representing human beings or deciding things that affect them, you need to understand, as best you can, the workings of human life.

I have long felt that the role of a Supreme Court Justice is to bring at least a little bit of heart to the highly intellectual and generally dispassionate interpretation of the law practiced by lower courts.