Supreme Court Justice Stephen Breyer recently saw The Social Network and admitted that the film puzzled him.
But, according to an MSNBC article, he used the film to claim that modern conditions and technologies should be considered by Justices when they are interpreting the U.S. Constitution, as in the case of Schwarzenegger vs. EMA.
This belief puts him at odds with fellow Justices Scalia and Thomas, who are subscribers to the originalism theory of interpretation, which puts forth the thought that the Constitution should be adhered to strictly as intended by its authors when it was written in 1787.
Justice Breyer said, “If I’m applying the First Amendment, I have to apply it to a world where there’s an Internet, and there’s Facebook, and there are movies like … ‘The Social Network,’ which I couldn’t even understand.”
Breyer, speaking to the originalism concept, added, “If you want to have history solve everything, let’s get nine historians and not nine judges.”
In an analysis of Breyer’s comments, Reason.com offered that, “Scalia’s stodgy, historically informed approach to new technology yields results that are less reflexively pro-government than Breyer’s allegedly with-it, adaptable method.”
Breyer and Scalia recently made a joint appearance at a Texas Tech University Law School where the diametrically-opposed pair discussed how they looked at cases coming before them. The two appeared to flip sides when the focus was shifted to the subject of recent legislation, versus interpreting the Constitution:
Scalia said he has no interest in what legislators intended when making a particular law.
Breyer countered, saying judges need to go back and find out the purpose legislators had when crafting a bill.
“I don’t at all look to what I think the legislature thought,” Scalia said. “I frankly don’t care what the legislature thought.”
Breyer responded quickly, saying, “That’s the problem,” which brought thunderous laughter from the crowd.
“You’ve got to go back to the purpose of the legislation, find out what’s there,” Breyer said. “That’s the democratic way, cause you can then hold that legislature responsible, rather than us, who you can’t control.”