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3 justices offer inside look at how they approach their work

WASHINGTON—In a rare joint appearance outside their austere Supreme Court chambers, three justices offered a less formal glimpse Thursday into the way they approach their work and into the jostling humor that apparently defines their collegiality.

Justices Sandra Day O'Connor, Antonin Scalia and Stephen Breyer chided and teased each other through an hour-long session at the National Archives while discussing a wide range of issues about the Constitution and the courts. The forum was organized by the National Constitution Center and moderated by NBC newsman Tim Russert.

It was the first time many court watchers could recall three current justices consenting to such a public back-and-forth about their work.

"You got such a sense of how they interact, and that's exactly what it must be like in their conferences," said Richard Stengel, the National Constitution Center's president. "That's something that nobody gets to see."

Stengel said the three justices, all of whom are part of the Constitution Center's advisory board, agreed to the unusual forum to help increase public awareness of the Constitution's importance.

The justices joked about Breyer's role as the court's least senior member, and how it requires him to perform such duties as answering the door during closed conferences and even bringing Scalia coffee. He said he recently noted how good he had become at that task over the past 10 years, only to have Scalia correct him.

"You haven't," he said.

All three justices lamented how little people understand the Constitution and the courts.

"It's a major problem," O'Connor said, noting that schools often don't adequately teach civics. "You don't inherit knowledge of the Constitution through the gene pool. It has to be taught."

O'Connor, whose manner in court is generally incisive and terse but not dismissive, displayed much of the same acumen Thursday.

When Scalia and Breyer argued over whether international law was appropriate to consider when deciding cases, she jumped in.

"This is really much ado about nothing," she said. There were some cases involving treaties with other countries or lawsuits with international implications in which justices have to consult foreign law, she said. In addition, some clauses of the Constitution, such as the ban on cruel and unusual punishment in the Eighth Amendment, are "elastic" and unusual and benefit from global context. But other provisions, she said, have been interpreted in a more static fashion.

The court recently cited international rejection of juvenile executions as one of four reasons to outlaw the juvenile death penalty in the United States. O'Connor declined to join that opinion.

Scalia said that ruling was especially inappropriate because the court had concluded the opposite just 15 years earlier.

"The majority in that case contradicted the majority of states in this country that have the death penalty," Scalia said. "International law had no place in that."

Breyer said even the founders consulted international law, noting that James Madison's papers included notes on the governmental structure in Syracuse in ancient Greece.

"Ah, but he was writing a constitution, not interpreting one, my friend," Scalia said.

Scalia returned to that point later in reference to a question about the congressional logjam over judicial nominations.

Calling the difficulty confirming judges "unprecedented," he said 50 or 60 years of judges acting as policymakers rather than jurists has inspired people to view the court as more of a political body.

"Something has changed fundamentally," he said. "People are realizing that judges have enormous power over policy," and they're pushing for judges who will agree with them politically.

Asked about the increasing political frustration with judges, including threats to strip judges of some of their power, Breyer sought to put the current flap in context.

In 1830, he said, President Andrew Jackson used federal troops to prevent a court decision ceding land to Indian tribes from taking effect. In 1954, he said, President Eisenhower had to use National Guard troops to desegregate southern schools after the Brown v. Board of Education decision.

But today, no disagreement has reached that level of rancor or inspired that manner of confrontation with the judiciary, Breyer said.

"People will criticize, but they will follow the rule of law," Breyer said.

Russert asked whether televising the court's proceedings would help people understand and respect the law more. None of the justices said no, but all three stopped short of embracing the idea. It might happen one day, they agreed, but perhaps not soon.

In the courtyards at the Supreme Court, O'Connor said, there are lanterns that sit atop small statues of tortoises. Why? "Because they move slowly," like the court, she said.

Scalia added: "But sure-footed. Have you ever seen a tortoise stumble?"


(c) 2005, Knight Ridder/Tribune Information Services.

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