Bush v. Gore Demonstrated Americans' Faith in Courts, Says Justice Breyer

CHICAGO – The Supreme Court decision that effectively decided the 2000 presidential election is an example of the durability of Americans' faith in their legal system, one of the justices on the losing side of Bush v. Gore said Saturday.

Justice Stephen G. Breyer said the December decision, like recent controversial Supreme Court decisions on abortion and religion, is remarkable for "the fact that losers as well as winners will abide by the result, and so will the public."

Breyer was among the four dissenters in the 5-4 decision that stopped Florida ballot recounts sought by Democrat Al Gore. The decision preserved George W. Bush's slim lead in the decisive state.

In remarks prepared for delivery to the annual meeting of the American Bar Association, Breyer said the court's approach to controversial cases is straightforward.

"We read the briefs. We question the lawyers. We confer informally and at (a formal) conference, and in a civil manner."

Breyer echoed remarks made by an opposing justice, Clarence Thomas, the day after the decision.

"In the seven years I have been a member of the court I have never heard a voice raised in anger, or the use of any slighting remark, during any of the court's discussion, no matter how contentious the case," Breyer said.

Unlike the open defiance that greeted some divisive 19th-century Supreme Court decisions, today's tough cases are met with "widespread acceptance of the final decision even where we wholeheartedly believe the decision is wrong," Breyer said.

Integrity, public service and civic involvement by lawyers are some of the reasons for the transformation, Breyer said.

He urged lawyers not to withdraw from civic life in the face of pressure to put in 70- or 80-hour work weeks.

"We help to build confidence in our legal system when we devote our time and talent to helping our communities," Breyer said.

Engaged lawyers also help guide the country through change driven by technology and other factors, Breyer said, and courts, including the Supreme Court, need the same help.

He cited three cases from the Supreme Court term that concluded in June as examples of the growing role of courts in examining the implications of technology.

In one case, the court held that police needed a search warrant to use a heat-detecting sensor to sniff out a marijuana-growing operation. The majority was "fully aware that the device might portend a host of new ways for those outside a home to learn what was occurring within," Breyer said.

The court again sided with privacy advocates to rule that the First Amendment protected a radio host who aired an illegally recorded cellular telephone call. The court also examined how 1970s copyright law applied to 1990s electronic news archives, and ruled that media companies had to get authors' permission to post free-lance articles.