By Mark Sherman
Associated Press Writer
WASHINGTON (AP) — Justice Antonin Scalia tends to see things as black or white. Justice Stephen Breyer sees a lot more gray.
When contentious decisions come down at the Supreme Court, Breyer and Scalia are almost always on opposite sides.
Last Tuesday, they tried to explain why their differing views of judging so often lead them to opposite conclusions when the topic is abortion, the death penalty, gay rights or physician-assisted suicide.
Breyer, 71, and Scalia, 74, have done this before, but never at the Supreme Court.
They took the bench at the invitation of the Supreme Court Historical Society, with a moderator between them, and jabbed at each other for more than an hour.
“I never heard that before and I certainly don’t agree with it,” Scalia said in response to one point from Breyer.
“If I did make an argument you hadn’t thought of before, I wish you’d think about it,” Breyer replied a few minutes later.
Under Breyer’s view of the Constitution, judges sometimes must be guided by more than the language of laws, if the words are ambiguous or embody a value that must be applied to specific circumstances.
Breyer said his way allows the court “to better carry out that initial intent that this document will in fact govern a changing society as society changes over the course of centuries.”
Scalia’s text-based approach focuses on giving a fair reading to the words of the Constitution as they were meant when they were written.
“I know a whole bunch of rights that have been found in the Constitution that the people never voted for,” he said. “That’s what’s happened through the device of looking at the purpose of the provisions and saying we have to keep the Constitution up to date.”
Breyer said his approach makes Scalia nervous and uncomfortable.
Scalia wrapped up the evening with a laugh. “I think I persuaded him,” he said.
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