New York Times

Grilling a Justice is No Easy Task

March 13, 2015

by Adam Liptak

The trick to interviewing a justice of the Supreme Court as it prepares to issue major decisions is to ask seemingly general questions that might nonetheless elicit a preview of what is to come.

Noah Feldman, a law professor at Harvard, is a master of the technique, and on Thursday night, he made vigorous use of it to see what he could learn from Justice Stephen G. Breyer in a public conversation at the 92nd Street Y in New York.

But the justice proved nimble in avoiding giving much away.

Professor Feldman asked about the best way to interpret a statute, which was a way of talking about a challenge to nationwide tax subsidies under the Affordable Care Act. One approach, favored by the challengers, focuses on the law’s plain words. The other, pressed by the administration, looks to the law’s purpose.

Justice Breyer responded that all of the justices consider five factors: words, history, tradition, purpose and consequences. “Some people emphasize the first three,” he said, naming Justice Antonin Scalia, while he said he was inclined to place weight on the last two.

“You do normally interpret words in context,” he said.

Professor Feldman switched to asking about social movements, but Justice Breyer saw where that was heading.

“If what you’re going toward is the gay rights case,” he said, “I’m not going there.” The court will hear arguments next month on whether there is a constitutional right to same-sex marriage.

In general, Justice Breyer insisted that partisan politics played no role in the court’s decisions. But he said the justices’ life experiences could matter.

Professor Feldman asked whether that included religion. Six of the justices are Catholic, and three of them are Jewish.

“Might,” Justice Breyer said. “Who knows what goes into the great mix?”