Supreme Court Justice Breyer Discusses Landmark BGLTQ Case, Remote Oral Arguments at Harvard Hillel Talk

Supreme Court Justice Stephen G. Breyer spoke to nearly 1,000 attendees at a virtual Harvard Hillel event Monday evening where he discussed the Court’s recent move to virtual oral arguments and a landmark decision earlier that same day that protects BGLTQ workers from workplace discrimination.

Monday’s decision — in which Breyer voted as part of a 6-3 majority — ruled that the Civil Rights Act of 1964 protects workers from discrimination on the basis of sexual orientation and gender identity.

Breyer said the arguments in the cases focused on whether the law’s ban of discrimination “on the basis of sex” applied to BGLTQ people.

“The Civil Rights Act says, Title VII, that you cannot discriminate on the basis of race, national origin, sex and a couple of other things,” Breyer said. “So the question was, did discrimination against a gay man or a gay woman or transgender person, did that discrimination — was that, on account of sex?”

Breyer also reflected on the Court’s transition to hearing arguments over the phone due to the coronavirus pandemic. When justices reconvened in early May, they began broadcasting the previously closed-door arguments to the public — an unprecedented move in the Court’s history.

Breyer said the phoned-in arguments had “less dialogue” than in-person arguments.

“There’s less of a chance of getting what I call the best kind of discussion, and that’s when you get the lawyer to forget he has a client,” Breyer said. “It’s more polite.”

Even as oral arguments go public, Breyer said that public pressure won’t sway the court.

“Public opinion is something that shouldn’t and normally doesn’t have much influence,” he said.

In the current Court — which includes four liberal justices and five conservatives — Breyer emphasized that despite disagreements in interpretation, the justices remain close.

“I have not heard a voice raised in anger,” he said. “You can be friends with people with whom you disagree a lot.”

Breyer said that disagreements are often “a question of emphasis” — different judges emphasizing different parts of the Constitution. But he stressed that though the Court is known for its close 5-4 votes, nearly 40 percent of Supreme Court decisions are unanimous.

“I usually end by saying, I can’t tell you what kind of life to live, but I can tell you that this document, the people who wrote that document knew that our experiment will succeed only if we understand it, its rule of law, and if we build and work together,” Breyer said, holding up a desk copy of the Constitution to the camera.

—Staff writer Simon J. Levien can be reached at simon.levien@thecrimson.com. Follow him on Twitter @simonjlevien.