Rediscovering ‘Rule of Law’ with Justice Breyer

 
I’ve been around Supreme Court Justices for quite awhile...Well, kind of around it and near it but not in it. I’d often do my writing at the Library of Congress in the Middle Eastern Reading Room looks out over the Supreme Court.
 
Thanks to my dear friend, Rachel, who in addition to a myriad of roles as teacher, mother, wife, great friend, and community organizer writes freelance theater reviews in Washington, D.C. Her journalism career often seats us on opera nights at the Kennedy Center behind Justice Ruth Bader Ginsberg wearing her beautifully brocaded coats and surrounded by security guards.
 
A few weeks ago, the law school associated with my university became the Anthony Scalia School of Law, giving it a rather unfortunate acronym (ASSoL). The George Mason University Law School as long had a reputation as the United States’ most conservative law school and a long-time supporter of the late Supreme Court Justice, Anthony Scalia. I would sometimes see Justice Scalia enter the law school as I worked on my dissertation from the second floor of the school’s library.
 
But it was long last week, sharing a coffee with a colleague at the American University of Paris that I finally found myself face-to-face with a Justice. Justice Breyer was passing through Paris on a book tour, talking mostly about rule of law as an alternative to chaos and terror.
 
My colleague got me into the event held at the American Cathedral in Paris located along the Seine. It’s a far more modern Cathedral than most of while you’ll find in Paris. On the upside, it has far fewer layers of ash and dust. Light pours through the stained glass windows because they have faced fewer years of pollution and prayer smoke. After chit-chatting with a former professor about fascism, freedom, and theories of change we settled in for what was a surprising powerful, salient talk by Justice Breyer.
 
Firstly, Justice Breyer is an immensely engaging speaker, swiftly moving between French and English, interjecting charming stories, Cicero quotes and Camus references. All were well placed and all delivered with a kind of humility that one can rarely fake.
 
                                           Reviving an Enchantment with Law

Hearing Justice Breyer speak was such a lift! I had become so disenchanted with law as a tool of governance. This year, I have read numerous books about how the U.S. prison system and the all but inescapable cycles of incarceration faced by many African Americans and Hispanics. Like many people, I have also become disenchanted by endless trivial lawsuits that enrich lawyers and make us afraid to engage with one another – for fear we are accused of libel, discrimination, or sexual harassment. And lastly, I had become exasperated by law’s inability to deter the world’s most vicious tyrants.
 
I had gone so far down the rabbit hole only Justice Breyer could haul me out with his own references to Alice in Wonderland and others. He started by reminding us about about Camus’ The Pest which tells us that the grain of violence rests within us all – always. It may surface – we must be on watch. He framed his talk around a quote by Cicero – that said roughly, that law stops when the cannons begin. He kindly noted, that since that Romans had no cannons this translation was in spirit only.
 
He cited the wonderful example of President Abraham Lincoln who suspended habeas corpus during the Civil War allowing him to incarcerate anyone he chose. He noted how Roosevelt succeeded in swaying the Supreme Court to all him to end World War II the way he chose. The turning point, he said, was under President Truman when he tried to appropriate the steel factories to continue his crusade in Korea.
 
Law slowed the wheels of war.
 
Breyer saw this as hopeful. My colleague and I are not convinced the existence of the International Criminal Court deters the world’s tyrants or tyrannical behavior more generally.
 
Breyer’s point was broader, however. He reminded me that the rule of law still distinguishes us from the state of nature. We can have riots when elections turn out poorly – like much of the world does – or we can have Bush v Gore decided by the Supreme Court. We can bark at the decision, but rarely do we riot. There is something to be said for less bloodshed.
 
He acknowledged that law is not the only tool. It is not my preferred vehicle for resolving conflict, hence my decision to pursue a doctorate at George Mason University’s School for Conflict Analysis and Resolution rather than a law degree in the building down the hall at the – ah-hem Anthony Scalia School of Law.
 
I shook Justice Breyer’s hand and had a moment to talk about French railroads (one of my favorite topics) and then sent a wish under my breath that he lives a very, very, very longtime.