The 72-year-old justice said in a speech at Vanderbilt Law School on Tuesday that he was perplexed when he recently saw the film “The Social Network” about the origins of Facebook.
But Breyer said the film illustrates his argument that modern conditions — like the development of the social-networking site — should inform justices when interpreting a Constitution written in the 18th century.
“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,” he said.
Later, Breyer said of the high court: “It’s quite clear, we don’t have a Facebook page.”
Although Breyer was making a point about judicial philosophy, he also touched on the high court’s sometimes limited grasp of technological developments. For example, Chief Justice John Roberts in a public employee privacy case before the court earlier this year tried to figure out the role of a text-messaging service in enabling an exchange between two people.
“I thought, you know, you push a button; it goes right to the other thing,” Roberts said. Responded Justice Antonin Scalia: “You mean it doesn’t go right to the other thing?”
And in a recent case dealing with a California law regulating the sale or rental of violent video games to children, Justice Anthony Kennedy pressed a skeptical state lawyer on whether the v-chip blocking device, rather than a state law, could be used to keep children away from the games.
“V-chips won’t work?” Kennedy asked, before the lawyer politely explained they are limited to television programming.
Breyer was in Nashville to speak to students, teach a class and promote his new book “Making Our Democracy Work: A Judge’s View.”
Breyer, who was appointed to the Supreme Court by Democratic President Bill Clinton in 1994, said his views contrast with originalist members like Scalia, whose approach focuses on giving a fair reading to the words of the Constitution as they were meant when they were written.
Scalia and Breyer sparred over their philosophical differences in a joint appearance at the Texas Tech University Law School last week. Scalia, who was appointed in 1986 by Republican President Ronald Reagan, called the writing of the Constitution “providential.”
Breyer said he disagrees with those who argue that originalism is “a good system because it will keep the subjective impulses of the judge under control.”
“If you want to have history solve everything, let’s get nine historians and not nine judges,” Breyer said. “And you’ll discover that the nine historians are fighting about the various points on which these cases turn anyway.”