BREYER SAYS HIGH COURT LACKS ABILITY TO RULE ON TECHNICAL CASES

Unlike many European high courts that have justices specialize, “we do not try to develop different areas of expertise over time,” Breyer told the American Enterprise Institute Thurs. “We are generalists,” he said, and in fact if a justice does bring some expertise to a subject, justices believe that perspective might be “skewed.” He also cited the crush of time, in that the Supreme Court receives about 7,500 petitions every year and grants 80. But in reviewing a case dealing with technical issues crafted by specialists, “it is particularly difficult to show that an agency decision or a congressional decision is wrong.” But expert judges aren’t the answer, Breyer said, nor are expert filings, even when they are “beautifully translated technical matters into language the judges can understand,” because the justices know “those briefs usually were not written by disinterested experts, seeking first and foremost to enlighten the court.”

Breyer didn’t propose that the Supreme Court retain its own experts, but he said lower courts could do so, particularly in technical cases. He cited Great Britain and France as 2 countries that do that: “Since I believe the technical subject matters -- biology, communications, computers -- are becoming ever more relevant to the law, I think that this kind of problem is of growing importance.”

A questioner pointed out to Breyer that U.S. Dist. Court, D.C., Judge Thomas Jackson brought in a technical expert to help him with the Microsoft case, and that the expert’s credentials were questioned, contributing in part to the reversal of the judge’s decision because the U.S. Appeals Court, D.C., held that Jackson had surrendered a judicial function. Breyer said that, compared with the status quo, “would it help for judges to be somewhat more willing to appoint independent experts in technical matters? Put that way, I answer ‘Yes.’ Can I guarantee that there will be no abuses? Of course I can’t… Will they sometimes appoint the wrong expert? Absolutely. Will they often make mistakes even if they get the right expert? Certainly.” He said “my lonely position in Verizon may stand for this kind of need.”

Breyer said he dissented in Verizon v. FCC because he believed the total element long-run incremental costs (TELRIC) formula generated by the FCC conflicted with the Telecom Act’s “procompetitive objective.” TELRIC worked only in a hypothetically perfect model, he said, which even would assume building a “new, perfectly efficient communications network from scratch.” “Indeed,” he said, “the FCC rules would encourage new firms to lease an incumbent’s entire system, producing universal sharing instead of universal competition, i.e., the perfect regulatory world instead of the perfect competitive world.” The rules “tend toward a system in which regulatory price-setting would supplant, and not promote, competition.” After his dissent, Breyer said, “I won’t tell you who said this, but somebody when I had written this said, ‘Well, you know, you would have made a great chairman of the FCC, but unfortunately that’s not your job.'”

Breyer said those arguments were raised by the Bells in the case and “are basically right.” The problem for the Supreme Court, he said, is that the “subject matter is just too technical, requiring far too much expertise, for lay judges to feel confident in overturning a contrary decision reached by an expert administrative body.” Significant decision-making authority is delegated to the FCC, Breyer said, and those “challenging the rules must show not that they're unwise, but that they're close to irrational.” “Now ask yourself,” Breyer said: “How could you expect anyone who has not, through the chance of fate, had some experience with communications regulation or some related form of economic regulation, to understand what I've been talking about these last few minutes? How could anyone expect a nontechnical panel of judges to do anything but accept the agency decision as rational, where a subject matter is so complex?” He said that “I have my own hesitation” about his own conclusions on the case: “I can’t be certain I've analyzed that correctly. All right. Now you see the problem.”

Breyer and Assoc. Justice John Stevens dissented in Eldred. Breyer said the statute’s extension of copyright terms by 20 years “fell outside the scope of the [copyright] clause” in the Constitution and aimed to create “a virtually perpetual copyright term.” He said he could see how the extension “would serve private ends,” specifically citing Walt Disney and Time Warner, by transferring “billions of dollars of income from consumers” to the “heirs of the long- dead producers of those works,” but “from the public’s standpoint, it would bring about considerable harm.”

Those arguments were presented before the court by Stanford U. Law Prof. Lawrence Lessig, but also were filed in the case by a group of Nobel Prize-winning economists. Those economists “made clear that no potential author could reasonably believe that he or she has more than a tiny chance of writing a classic that will survive long enough for a copyright extension of 20 years, beginning 75 years in the future.” The key to that brief, Breyer said, was that it added “that imprimatur of objectivity, because nobody is thinking that they are doing this because one side or another has paid them… Good idea.” But the brief didn’t persuade 7 of 9 justices, Breyer pointed out. He believed that was because the use of an economic argument in a copyright case departed from previous case law, and conservatives were wary of relying on the analysis.

Breyer has been on the Supreme Court for nearly 10 years but still is the most junior justice. He said his job was to open the door if someone knocked while the justices were in conference. “I've gotten very good at this,” he said. However, he said Assoc. Justice Antonin Scalia, who held the junior title for only 2 years, recently told him “No, you haven’t.”