Justice Breyer on Cherokee Cases and the Supreme Court’s History

From the Yale Daily News via How Appealing:

Even as a teenager, Supreme Court Justice Stephen Breyer cast a long shadow, University President Richard Levin said Monday.

Breyer and his younger brother, Charles, attended Lowell High School in San Francisco — followed less than a decade later by Levin, who said the highest praise he received as a student was that his school work was the “best since the Breyer brothers.”

Levin then followed Breyer at Stanford and Oxford, but their paths diverged when Levin chose to attend Yale to get his doctorate in economics, and Breyer chose to attend Harvard Law School.

Thirty-five years later, Levin said he could sum up Breyer in a single word.

“He’s awesome,” Levin said, introducing the Justice to a packed Law School Auditorium crowd Monday afternoon for a lecture titled “History: Challenges the Court Has Faced.” In the lecture, Breyer highlighted several key cases in the Supreme Court’s history in an attempt to answer one question that he said foreign judges often ask him about the Court: “Why does it work?”

The answer, Breyer said, is complicated. Over the course of United States history, Americans have come to accept the Court’s decisions as binding — though this was not always true. To demonstrate this, Breyer highlighted prominent cases that illustrate the establishment of the Court’s authority, including Marbury v. Madison in 1803, Worcester v. Georgia in 1832, Cooper v. Aaron in 1958 and Bush v. Gore in 2000.

Breyer began the lecture by praising Chief Justice John Marshall’s wisdom in Marbury v. Madison — which established the Court’s right to review the actions of the executive and legislative branches — without raising the ire of then-President Thomas Jefferson.

“Chief Justice Marshall called upon Houdini Marshall to get out of a jam,” Breyer joked, explaining that Marshall managed to make Jefferson think he had won while actually expanding the Court’s authority.

Breyer then referred to the conflict that arose between Marshall and President Andrew Jackson in 1832, when the Court ruled that the state did not have jurisdiction over Cherokee lands, quoting a famous — though possibly falsely attributed — line from Jackson: “John Marshall has made his decision — now let him enforce it.” Eventually, Breyer said, Jackson came to regret this decision when South Carolina claimed that if Jackson and the state of Georgia did not have to submit to the Court’s decision, South Carolina did not have to pay federal tariffs. This disagreement is widely cited as influential in the start of the Civil War.

“Even Jackson figured out that was not such a good idea,” Breyer said.

Breyer then skipped forward 100 years to Cooper v. Aaron, a case that arose in response to widespread resistance in the South to the desegregation ordered by the Court’s decision in Brown v. Board of Education.
To close, Breyer asked the crowd to suggest a contemporary legal issue for him to discuss. After one audience member suggested the disputed 2000 elections, Breyer spoke about what Bush v. Gore says about the power of the Court. Despite the fact that many Americans, including Breyer, thought the opinion was decided incorrectly, he said, the decision was respected and followed.
“There were no mobs in the streets, no revolutions,” Breyer said. “This is an example of how 300 million people have learned a way to get along under the law even when they think it’s wrong.”
In the question-and-answer session that followed the lecture, two students asked for Breyer’s thoughts on gay marriage and Perry v. Schwarzenegger — the suit challenging the constitutionality of Proposition 8, a 2008 California ballot proposition that limited marriage to a union between a man and a woman — which is currently being heard in U.S. District Court in San Francisco. Both students were refused, to much laughter.
“Nobody wants a case to be influenced in any way by what he or she said before,” Breyer said, explaining his refusal to respond to the questions.
Three students interviewed said they thought the lecture was interesting and informative. Will Moccia LAW ’12 said he appreciated Breyer’s emphasis on a historical perspective of the role of today’s Supreme Court.
Moccia also said he plans to attend Breyer’s second lecture, titled “Future: Will the People Follow the Court?” which will take place today at 4:30 p.m. in Levinson Hall. Today’s lecture is only open to members of the Law School community.
Breyer invoked Mary Poppins in describing his two lectures at Yale. Monday’s talk was the “sugar,” Breyer said, which will help today’s “medicine” go down.

2 thoughts on “Justice Breyer on Cherokee Cases and the Supreme Court’s History

  1. Bethany February 16, 2010 / 12:09 pm

    For more Breyer on the Cherokee cases, see Stephen Breyer, For Their Own Good, The New Republic, Aug. 7, 2000 (or just see the excerpt in our casebook).

  2. Ezra February 16, 2010 / 2:03 pm

    He has also talked about the Cherokee cases with very similar lectures at a number of law and college graduations. =)

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