Making our Democracy Work: A Judge's View

December 12, 2011


JOANNE MYERS: Good morning. I'm Joanne Myers, director of Public Affairs Programs, and on behalf of the Carnegie Council, I would like to thank you all for joining us. This morning it is my supreme honor to welcome Justice Breyer to our Public Affairs Program.

In the court of public opinion, Justice Breyer is widely recognized as a wise, modest, fair, and incisive judge, whose various opinions have earned him praise for their attention to detail and thoroughness. Today he will be discussing his recent book entitled Making Our Democracy Work.

In this characteristically lucid, concise, and informative work, Justice Breyer educates us about the workings of the Supreme Court and the life of a justice, and shares with us his interpretation of the Constitution. He tells us what the Court must do to maintain public confidence and, in turn, its legitimacy. While describing the basics of the Court, he also invites us to think about our own relationship to our government and how we wish to be governed.

The Supreme Court is one of the most extraordinary institutions in our system of government. Empowered with the responsibility of interpreting the Constitution, the nine justices on the Court are imbued with the power to strike down laws enacted by our elected representatives. How the Supreme Court evolved historically and defined its role, largely in relation to the willingness of the public to embrace its decisions, is the most salient issue addressed in Making Our Democracy Work.

At a time of great political cynicism and the unforeseeable and unique challenges our country is facing, being a judge on the highest court of the land is an enormous responsibility. It is important that we have judges who have both a head and a heart. Justice Breyer is that person, as he instinctively knows that the decisions he makes and the opinions he writes have the potential to affect countless people in so many different ways. Accordingly, he wants us to be partners in achieving the Constitution framers' basic objective of creating a workable democratic government.

What, then, is the best way to implement this request, one that will enrich our understanding of the Constitution, the nature of our freedoms, and how the Court carries out its role? For the answers, I defer to our guest this morning. Please join me in giving a very warm welcome to the 108th member of the Court. Justice Breyer, the floor is yours.


STEPHEN BREYER: Thank you, Joanne. Thank you for inviting me.

When you say "for the answers," you're quite an optimist, aren't you?

Why have I written this book? A friend of mine, who is an archaeologist, claims—I don't think it's quite true—that they found some tablets in Ur from 10,000 years ago and it said, when translated, "Nothing's working right these days. The buses don't run on time, the children don't obey their parents, and every man is writing a book." (Women were not considered that much 10,000 years ago.)

Anyway, why? If you have ever written a book—some of you have—it's an enormous amount of work. Then when you get finished, you look up, and there are millions of people who have written books. My God. So why do this?

My reason for doing it is basically that there's a problem—this isn't going to solve the problem—it's something I can do to help, maybe, a little—only a little. The problem is, people are awfully cynical about their government. Some of that is for cause, but if it's too much, you don't have a government.

What can we do about that? I say "we" because you are in no different a boat than I am. The answer is going to lie in people trying to explain to the next generations what they have. That's a job for communities and it's a job for teachers and it's a job for parents.

That's the commercial, of course, and that's the message. You have to do it in a subtle way, because it's such a trite message.

But I can do my bit by trying to explain what my institution does, but explain it in a way that if I had half-an-hour or an hour with a man or a woman who is not a lawyer—and contrary to public belief, there are 308 million Americans who are not lawyers—if I had her time—she's going into the supermarket, say, she has a job, her husband has a job, there are children and they have to deal with them. People are busy, and bills are piling up.

Why should they listen to some long discussion about the Court? That's a problem. I can't get to the discussion by trying to make it funny or something. This is not a funny subject. So how? How do I explain it? And I want to explain it because I think it will help, for those who will take the time and then encourage other people to explain to those younger generations.

I have two big questions. The first question, which you have really gone into, is—well, to show you the question, I have to ask a question. The question I have to ask is, why do these nine unelected judges have the power to set aside a statute, a law, passed by the elected representatives of the people?

That's an old question. It's well answered, if you look back.

It wasn't John Marshall who made that up, contrary to popular belief. Alexander Hamilton, Madison, and the others, they all thought—or almost all thought—that the Court would have the power to set aside a law of Congress that ran contrary to the Constitution.

Why should they want that? Hamilton answers that question in Federalist 78. If I sort of parody what he says, he says, "Well, we've written this great Constitution. Here it is, a beautiful document, absolutely beautiful"—and it is. It's a fabulous, fabulous document, unbelievable. The more you work with it, the more you see it. It's concise. The words are just the right level of generality. It can be applied over time—fabulous.

But he says, "It's beautiful, but that's what it is if nobody has the power to say when portions of the government are going beyond the boundaries that the document says." (And that's what it is. It's a document that sets boundaries.) "If nobody has that power, we'll say it's beautiful and put it in a museum. We'll hang it in the National Gallery."

He actually did not say that, because the National Gallery was not built at that time. But you see the point.

Someone has to have that authority. Who? The president? Well, the president has an awful lot of power. If he also has the power to say when his every exercise of power is okay, then he becomes a tyrant. That's just too much, going too far.

Congress? Why not Congress? They are the ones who are elected. He says the problem with Congress is this: that this document gives the same rights to the people who are the least popular people in the country as to the most popular. Congress is great on popularity. Believe me, they are experts on popularity. They know popularity. But what happens when it's unpopular to set aside the popular law they just passed? Maybe they'll do it, but maybe not all that often. He's too nervous about Congress for that reason.

He says, "Well, who's left? We have these people up here, the judges. They're sort of gray. Nobody has ever heard of them. They're a little bit like bureaucrats. It's a sort of legal job. What's fabulous is, they don't have the power of the purse and they don't have the power of the sword. Therefore, they aren't going to become too powerful, and they won't get carried away with this thing."

There's no power of the purse, no power of the sword, and nobody has ever heard of them. Why would anyone do what they say? That's the question. It's Hotspur's question in Henry IV. Actually, Owen Glendower comes in. He's a Welshman. Welshmen in Shakespeare are all mystics. Owen Glendower says, "I can summon the spirits from the vasty deep." Hotspur, your practical Englishman, says, "Well, so can I. So can any man. But will they come when you do call for them?"

That's the question. And that's a big question, and it's very topical today. I get that question from judges from Latin America, from Africa, from Asia, from all over the place. There was a woman, about four or five months ago, president of the Supreme Court, or chief justice, of Ghana. They're making progress in Ghana. They want to have a democracy, secure human rights. She was great. But that's the first thing she wants to know: Why do people do what you say? Hmm, that's a good question. I can say it is a great document, da-da-da. But we know that. That isn't sufficient.

I'm afraid I have to tell you some history, because it's really in history where the answer to this lies. You are trying to change behavior, and you are trying to change behavior and solidify behavior of tens of millions, now hundreds of millions of Americans. So I tell some stories, which I put in here.

I tell her briefly the story of the Cherokee Indian case, a great case. We are in the 1830s. The Cherokee Indians owned northern Georgia. It was theirs. They weren't hunting and fishing anymore. They had an alphabet. They had a constitution. They had a great chief, Chief Ross. They had one other thing. Unfortunately for them, they found gold. So the Georgians said, "Why should the Indians have gold? After all, we're Georgians. We should have it." And they simply took the land.

The Cherokees, being a pretty civilized group of people, did what any civilized group of people would do: They hired a lawyer. The lawyer got their case to the Supreme Court. The Supreme Court said, "Sure, this land belongs to the Indians."

That, in fact, is the reason some of you probably have heard of this case, because Andrew Jackson supposedly said, "Well, John Marshall made his decision. Now let him enforce it." And he sent troops, but not to enforce the decision, really to evict the Indians.

They traveled along the Trail of Tears to Oklahoma, called the Trail of Tears because so many died along the way. They traveled to Oklahoma, and their descendants are there to this day.

So I wanted to know about that. There are a lot of ups and downs in our history. I just want little pictures, snapshots. The snapshot I want to give next is something I can remember and that some of you can remember.

Brown [v. the Board of Education] was decided and the Court said, "No, there's no more legal segregation. That's out. It's contrary to equal protection of the law. We can't have a segregated society. No more black school/white school in the South. Out." That was 1954. In 1955, what happened? Just what you are saying—nothing. In 1956, what happened? Right, nothing—or not much anyway.

In 1957, in Little Rock, the district judge there says, "It's time to integrate Central High School." And that was where the Little Rock Nine came from. Some of us can remember Governor Faubus, who stood at the schoolhouse door, in effect, and said, "They're not coming into this school. That judge—fine, he can write whatever he wants. But I have the troops. I have the state militia." And the state militia turned them away.

Some of us can remember that picture of Elizabeth Eckford walking very dignified as she was sent away, and behind her, a white woman whose face is just contorted with rage. That went around the world. The congressman there, Brooks Hays, phoned President Eisenhower and said, "Will you meet with Governor Faubus?"


Faubus went up to Newport and met with Eisenhower. He came out. "He dressed me down like a general dresses down a sergeant," he said.

He said to Eisenhower, "I will. I'll integrate the school." And he went out and told the press the opposite.

Eisenhower was a little annoyed. But Eisenhower took advice about what to do. Jimmy Byrnes—who was a member of our Court, resigned in World War II to run the war mobilization effort here in the United States, and then became a moderate on race, became governor of South Carolina—he said to President Eisenhower, "If you send troops, you'd better be prepared to reoccupy the entire South. Are you ready for a second Reconstruction?"

He said, "The best that will happen is they will close all the schools, and no one will be educated."

But Herbert Brownell, who was Eisenhower's wise counselor, told him differently and said, "You have to do this. You simply must."

Eisenhower, who had been pretty good, actually, in the practical part of the integration—he implemented President Truman's integration order in the armed forces—said, "Yes, I will," and he sent the 101st Airborne. It was deliberately chosen, of course, because every American in 1957 knew who the 101st Airborne was. They were the heroes of Normandy. They had flown in and they were hung up on the church steeples and shot down. They were the heroes of the Battle of the Bulge.

He took 1,000 paratroopers and he put them on the airplane and sent them to Little Rock. The next day, they marched in and escorted those black children into the white school. That was a great day. It was a great day for the law. It was a great day for the cause of equality. It was a great day for the United States of America.

So I want people to know that story. But I wish I could say it ended there. It didn't at all. It didn't end there. They had to take the troops back. They couldn't leave them there forever. The segregationist board was elected, and the segregationist board tried to worm its way out of that. They brought another case to the Court, called Cooper v. Aaron. In that case the Court said, "Of course you have to go ahead and integrate." All nine signed it—all nine. "We really mean it. Do it!"

That was nine judges. You could have had 90. You could have had 900, maybe 9,000. The day after that Court decided that matter, Governor Faubus closed the school, and Little Rock was closed for the rest of the year. Read about what happened to the children. A lot of their lives were really ruined because of that.

But it couldn't last. I say this because I'm an optimist. And I'm a judge, so naturally I think that was an important thing that Eisenhower did. Indeed, I think the die was cast there. It couldn't last. Eventually, another board was elected and they reopened the school. That was the time of the Freedom Riders and Martin Luther King. Do I think that was a catalyst? Yes, I think it helped a lot.

But, for me, that's a heroic day, sending those 1,000 troops. I told that to a Russian general, a paratroop general, who was at the Court. This was some time ago. The State Department called up and said, "This man is over here. He's a paratroop general. He was in charge of missiles, and he was pointing them at the United States and they changed direction. We should be nice to this man."

So we brought him to the Court. He wanted to know my favorite cases, and I said this is one of them. I told him that story. I said, "You see, that shows that the paratroopers and the judges must be friends." That's what I want people to know about. It's rather subtle and complicated. It isn't some easy, simple thing where you just say rule of law.

You take the case that you think is your least favorite. Abortion—some people think that's terrible. Some people think prayer in school. Some people think Bush v. Gore. That's a good one. I was in dissent in that. I thought it was wrong. It certainly was unpopular, at least among half the country. It certainly was important.

I heard Senator Reid say that the most remarkable thing about that case is that is very rarely remarked on, despite the fact that it's certainly important. I suspect, given his party affiliation, that he found it unpopular, and I suspect that he thought it was wrong. Despite that, people did accept it, and they didn't go into the streets and start shooting each other. They didn't start rioting and throwing bricks and stones and so forth.

He said, "That is a treasure."

He said that. I agree with that. It's a treasure.

I tell that to a student audience somewhere, and I say, "I know what you're thinking. You're thinking, as soon as I say there were no riots and people killing each other, 'Oh, too bad there weren't a few riots.' That is what you're thinking. But before you make your judgment, you turn on the television set and you see what happens in countries that decide their major differences under sticks and stones, violence, instead of in a court of law."

That's what I see every day. I see people of every race, every religion, every point of view. They are in the courtroom. They are not out there killing each other. With 309 million people as diverse as ours, as my mother used to say—my mother used to say there's no view so crazy there isn't somebody in this country that doesn't hold it. We were living in San Francisco. She said they all lived in Los Angeles.

But you see the point. That is what I see. That's what I'm trying to get across in part of this, in half of it. I'm trying to get across that point, which is not such an obvious point, because it's subtle, and what's acceptable, what isn't. These stories help because of their ambiguity, as well as because of the overall message.

That's just a commercial. It's a commercial to the teachers and the community leaders and the parents and everyone else that if you don't teach this government, what we do, to our next generations, we won't have that. I'm trying to show some of that from my point of view as a judge.

The other half is a little bit more technical. But I'm asking another question. The other question I'm asking there is, very well, I've said what everybody else should do; what about us? What about the nine of us? Much more controversial. How do we decide these difficult cases?

For 40 percent of the time we're unanimous. The 5-4s are maybe 20, 25 percent, not always the same five, not always the same four, to which the listener says, "Yes, that's true. I didn't realize that. That's very interesting. But the ones where you are 5-4, and indeed it's sort of predictable, those are sometimes pretty important, aren't they?"


"How do you decide those?"

I know what you're thinking. You're thinking the way we decide those is called politics. "You're junior 'varsity politicians. That's how."

I say, "No, no."

You say, "Well, obviously you would shake your head. Obviously you would say no."

I say, "No, no, but it really isn't."

Look, that would be crazy. Hamilton gave us this job, this institution, because he didn't want—if you want political decisions, give them to Congress. They know how to do that. It wouldn't be doing what we are supposed to do. Moreover, I did, and some of us have had some exposure to politics—not as much as Sandra O'Connor. Not one of us has held elected office. She had. I know politics is a thing about who is popular. Are you Republican, Democrat? Where are the votes?

I used to work for Senator Kennedy for a couple of years. We used to count votes regularly. Is this popular or is it not popular?

I see someone in my office, a young woman who is going through all my books and everything. I say, "What are you doing?"

She says, "I came in from the hallway because I wanted to find the answer to a question. I thought maybe there were some books here that would help me."

I say, "Okay." I get a little annoyed. I think, "Hey, how do I know? Maybe she's a constituent." That's politics.

That's not what we're doing. I don't see that.

You say, "Well, no, it's ideology." Am I a free-enterprise Adam Smith or a Maoist trouble maker?

It isn't ideology. It isn't that, exactly. If I find I'm doing something or reaching a decision because I think it's generally good for people, I have not done the right thing. I know that. I don't mean it should be bad for people, but it's not at that level. It's not at an ideological level.

You say, well, what? It's true that I was born in San Francisco. I was raised there. I went to Lowell High School, a public high school. I went to Stanford. I've lived my life the way I've lived it. In our professions, after you are around for a while, you begin to formulate, I would say, at some level—consciously or unconsciously—views about what you do and what is the country like.

From the job I have now, what are people like in America? How does law relate to them? What is it that law is supposed to be doing for them? At that level of what I call a general philosophical outlook, which can't even often be put into words, I think there are differences.

You say, does that matter? Yes, it does matter. Of course it does. You are interpreting these vague, general—the word "liberty" doesn't quite explain itself. The freedom of speech doesn't quite tell you what the freedom of speech is. So there are effects there.

You would say, is that terrible? No. The law is not a computer. The outcome is not a computer program. If you think you can do this all by the numbers and everything, then why have judges? Let's get some of these—whatever are the new devices, which I can't even work. It's not.

Obviously, things like that matter, and it's not surprising that different people have somewhat different ones, and different people appointed by different presidents may have different outlooks.

By the way, if a president appoints a judge and thinks he is now going to get all the results he wants, he's wrong. Teddy Roosevelt appointed Oliver Wendell Holmes. Holmes dissented in the Northern Securities antitrust case within a few months. Roosevelt was furious. He said, "I could appoint a judge with more backbone carved out of a banana."

But if a president thinks that he's going to get someone with this very general outlook that's closer to his, he is usually—not always, usually—more correct. That means, over time, you will probably discover people of different outlooks. I grew up when Franklin Roosevelt and Harry S. Truman had appointed every judge, so I thought that the Supreme Court was supposed to be made up of just Democratic appointees. That's who I thought it was supposed to be. But that's not what the Constitution foresaw.

Is that such a terrible thing, that there are differences? No, I think not.

But that isn't what I'm trying to explain. I want to do something more than that. I want to say that it can't be politics. And, by the way, judges are terrible politicians. They all think they are wonderful at it. They're terrible at it. If you look back to Roger Taney and Dred Scott, he thought perhaps that he was going to save the country from a civil war with that terrible decision. If anything, he caused it. He got exactly the opposite of what he thought if he was looking for peace.

They are not good politicians. It's not the job. It's much more complicated, which I have tried to give you a picture of. Now you say, well, then, what? If it's not politics, what is it?

I go into that a little bit further. There are views—Justice Scalia, for example, has something that he calls "originalism." That's that you are going to find a lot of these answers in the Constitution. We discuss this publicly sometimes. We will do that in January in South Carolina. We have done this a couple of times before. The reason that motivates him—he says, "I can find lots of answers in the history to these difficult constitutional questions."

I'll say something like, if I'm going to be flip, "You know, George Washington didn't know about the Internet."

He says, "Oh, I knew that."

I'll say, "You can't find all those answers in the constitutional debates. That's not possible."

He'll say, "I don't say it works perfectly," but his story, which is a good joke, is the two campers. One is putting on his running shoes and the other says, "What are you doing?"

He says, "Well, there's a bear coming."

He says, "You can't outrun a bear."

He says, "Yeah, but I can outrun you."

So I have gone into that a little bit. I would say there are alternative visions. I understand what he is trying to do. He is trying to control, through this theory of originalism, the subjective impulse of the judge. He's trying to prevent the judge from what he thinks is good for "the law," in quotes. I understand that. That's a worthwhile goal. It's not a stupid thing to do by any means.

But if you look back in American history, you will see that there are other ways of going about that. If you want a description at a high level of generality, Gordon Wood has in his recent book about the revolutionary period [Empire of Liberty: A History of the Early Republic, 1789–1815] a judge in 1790 from Connecticut who says the American system of interpreting law—the courts of appeals, the judges when they are interpreting law—he describes it as prudent, pragmatic, reasonableness, and utility.

That's a bumper-sticker level. But still, when I look at the judges whom I admire—Brandeis, Cardozo, Holmes, Learned Hand, et cetera—that's what I see, those kinds of things. There are approaches.

We can go further than that. I would think the basic job here that I'm doing all the time is taking originalism. Originalism is that I find—we all find—the underlying values in the Constitution.

The values that underlie the freedom of speech don't change much. You look back there to find out what the values are underneath the words that are written here, but you apply the values to a world that changes every five minutes. The difficulty of the job is to take the values underlying the freedom of expression and apply them in a world where there's an Internet and where total free expression may mean a threat to privacy and so forth. That's not so easy. But values that stay the same, into a world that's changing.

Look to, too, what I call the purposes, with statutes. I would talk about the purposes of Congress. Look there first. That's the same as looking to the purposes of the Constitution, which are the same as the values—highly purposive, workable in a sense that the object of this document—it's a single document that sets of several branches of government and has the state working together with the federal government—the object is to have these institutions strengthen each other, and not simply tear each other apart.

Easier said than done. But you can go into that in some depth, and it's possible to discuss in some detail.

How? When we deal with Congress, which we do all the time when we interpret statutes, there are approaches to interpreting statutes that I think work better and are more likely to achieve what Congress is up to, and others that work a little bit less well. What I think pragmatism here mostly means is that when you have a difficult constitutional case, it's not usually right against wrong. It's usually right against right. There's freedom of expression over here and there's privacy over there, and in this case they have come into conflict.

So I have gone into the second part. What I have said so far is not quite bumper-sticker, but it's still pretty abstract. The only way to understand—I just say enough so you can see where I'm coming from—it's examples that have to do the work. It's examples that have to show you. I can give you one example in two minutes.

Here is a tough example. I can talk about the relation of the Court to Congress when I'm talking about statutes, and I can talk about the relation of the Court to the administrative agencies when I talk about administrative law. It's a great subject. I used to teach it. There are at least four other people in the United States who find it fascinating. Or you can talk about federalism in relation to the states.

But I'll give you a difficult relationship, really difficult, the relationship of the Court to the president at a time of a national security emergency or war. There, the document here is a document that gives virtually all the power to the president and to Congress. It's not the nine judges who are supposed to protect us in war.

You say this is all up to them. Ah, but we are supposed to have some important role in protecting basic liberties, which are there in the amendments. So what happens when these two things conflict? What happens when you have national security on one side and traditional civil liberties on the other?

There I want people to look at two examples which I think are very interesting.

The first was in 1942, when 70,000 American citizens of Japanese origin were taken against their will and moved from the west coast of California and put in camps in the east of California or in the intermountain region, over their objections, with no evidence at all, as it turns out—none. Very interesting. The people who are against that—J. Edgar Hoover. The people who are for it—Earl Warren. He later said he was very sorry about that. Very interesting.

The concern? Blackout curtains. We think a Japanese invasion is coming. Hoover said there was still no need. But General DeWitt—the Sixth Army is in the Presidio—says, "They have to be moved. We're going to do it. There has been sabotage. There has been signaling to submarines. I don't know who's doing it. We're going to move them." President Roosevelt signed the order and they were moved.

In 1944, there was no threat of invasion. The case gets to the Supreme Court—Fred Korematsu, whom I met by chance. I met him because my next-door neighbor in Cambridge, by coincidence, is the daughter of a man called Ernie Besig, and Ernie Besig was the head of the ACLU in San Francisco and used to play poker with my father.

She said, "Come over. There's somebody you would find interesting to meet." And there he was, Fred Korematsu. He's a very feisty guy, and great. I liked him very much.

He was bringing this case, against all advice. His parents said, "No, don't do it. Don't rock the boat."

"No, I'm going to do it."

Besig, the representative of the ACLU, wouldn't give their name to this in San Francisco. They came into the case later. They came into later. But he was on his own in San Francisco.

It gets up to the Supreme Court, and by that time, people knew the facts and that there was no signaling, none, and no sabotage, zero. That got to the Court. I'm pretty certain the Court understood it. Six to three, they uphold this. Of the three, Murphy wrote the best opinion, in my opinion. He went through and just chapter-and-verse shot down the arguments of the majority and said, "There's no basis for this whatsoever. It's racial. The English were able to segregate which Germans were loyal and which ones weren't, who were living in England. Why can't we do the same thing?"

It's a very good opinion. Jackson had an interesting point of view. Roberts was the third.

Who was in the majority? Written by Black, Douglas, Frankfurter. These are the people in the majority in Brown. These were good civil libertarians.

Why? That's the question I wanted to know, to try to figure out why. My personal view, after reading through these fairly carefully, is that I think their thinking is the following: "Somebody has to run this war. Somebody has to, either us or Roosevelt. We can't, so we had better let Roosevelt do it."

I think that was the thinking. That produced a case that nobody thinks is any good.

Now we have had four cases out of Guantánamo. The same kind of problem. I think maybe the Court learned something from that earlier case—maybe. I'm just trying to show, in those four cases, all brought by detainees, not popular people—one of them was Bin Laden's driver (I wouldn't say he was too popular) against President Bush, the most powerful person, probably, in the country—and in each of those, the detainee won. But it won with four opinions, which I want to put in there. I joined the opinions. I thought they were right.

But they really satisfied nobody—not too much. Strong on security, they say, "You're interfering with the president. He's not going to be able to protect us."

And strong on civil liberties, they say, "Read it. What you said are things like Guantánamo is part of the United States. Okay, fine. What if it's not Guantánamo? What if it's Europe? What if it's Afghanistan?"

"You say that you have to have a fair hearing to see if they are enemy combatants. You've just said you have to have an impartial decision maker, opportunity to present proofs and evidence. What about the hearsay rule? What about this? What about that?"

"It doesn't go very far. It's sort of mushy. The best thing you can come up with is that you say"—what Sandra O'Connor wrote in one—"the Constitution does not write the president a blank check." Not a blank check; those four words, I think, are key.

You say, why is it so mushy on that part? Why? Because you see the problem. I think that blank check describes the problem. It's not a blank check. But what's in the check? Well, let's be a little cautious here. There is a security problem. So let's not go too far, too fast. The Constitution does give broad power to the president, but not complete. It's not complete.

Is that the right way to approach it? I can't tell you that. I'm just saying that that is how we approached it. I'm simply trying to outline the problem, which is a problem of a relationship between the president and the Court, each responsible for different parts of the Constitution, where they conflict. That's the kind of thing. Go back and look into history to find an answer to that one. I don't know where you're going to find it, but certainly not in Korematsu.

There we are. You see the point. What I'm trying to do with this is say that I have a certain idea of how the Court might work. I think it does, most of the time. I think the best thing for us to do in trying to answer the overall question is to do our job. I think if we do our job reasonably well, that will build some confidence in the American public. I can't guarantee it. I have no guarantees.

But the more important thing is maintaining that confidence. The hard job, of course, is to forget the public support for an institution of unelected people who will decide things that are unpopular from time to time, and should, and who might well be wrong. I'm in dissent quite a lot, so I think they are wrong.

But there we are. You see the difficulty of that. I say the Court has a role in this, but it can't do it by itself. Really, it's the next generation and the generation after that. They have to, I would say, understand how their government works. They have to know a little bit about history. They have to be willing to participate in the life of their community, because that's what the Constitution says. It doesn't order what to do. It just gives those who work with it, like me, a very strong idea that if they don't participate, we won't have it.

There we are. So that's the message. It's a very long commercial. Thank you for listening.

Questions and Answers

QUESTION: Good morning. Thank you, Justice Breyer.

What standards should a justice use to recuse himself or herself from a case?

STEPHEN BREYER: It's not as difficult as you think. First, there are a couple of statutes, and they tell you what to do. Then there are nine volumes—seven, I think; let me not exaggerate —called the Code of Judicial Ethics, which are right in my office. When I have a difficult question, I can go look at those. I do, and I'm sure everybody else does. If I really have a tough thing, there are a few ethics professors around that I think are pretty good. I'll call them.

The reason it's more difficult—the recusal question—in the Supreme Court than it was when I was in the Court of Appeals is very simple. When I was in the Court of Appeals, if it was even close, I recused myself. Goodbye. There are a lot of judges. One is as good as another. I can't say that in the Supreme Court. I'm sure one is as good as another, but there are still only nine. So if I take myself out of it, then there are only eight. That can make a big difference. So I have just as much a duty to sit in a case where I'm not recused as I have a duty not to sit in a case where I am recused.

It's all written fairly well, which is not to say there aren't difficult questions. But then you just have to decide those questions. Sometimes when something really tough comes up, we'll consult with colleagues and try to figure it out as best we can. You don't want people who are parties to figure out a way to get you off a case. At the same time, you want to be sure that you don't sit in a case where—for example, if you own one share of stock in a party, you have to get out of it. Some are fairly clear.

QUESTION: My name is Edward Marschner.

I'm so inspired by your approach and your enthusiasm and your clarify of expression. Forgive me, I'm a lawyer also. But if we would have two or three more men like this on our Court, we would be a much better country.

I would be very interested to hear you talk about polarization in our society. People talk about the Court being polarized. The Congress appears to be polarized by money, it seems to many of us, by the influence of money. The Court is not. I don't think it's a question of money. But the Court has played into that with some recent decisions.

I wonder if your book gets into the issue of polarization of our society these days.

STEPHEN BREYER: No, it doesn't, really. But you might, by inference, think the following. First, we get along with each other. In that conference room, in 17 years, I have never heard a voice raised in anger—never—and I have never heard one judge say something demeaning or insulting of another, not even as a joke.

It's very professional. People feel strongly. But what good would I do, I say to the students, if I say, "Oh, I feel so strongly!" Somebody else would say, "Oh, I do, too."

So that's not going to help. It would just make people think you are all emotional and haven't got the answer to this problem.

The judges get on well. I think being together a lot helps there. Just the fact that we are physically around—have lunch—I think that helps.

You say, what about Congress? I don't know. I'm not an expert in Congress. I did work there for a couple of years, for Senator Kennedy. That was 1979-80. Naturally, I think of that as the golden age.

But during that time, I was chief counsel of the Judiciary Committee, when he was chairman. Ken Feinberg, who was, like, one-and-a-half if I was the number-one staff person—he was pretty close—he and I and Emory Sneeden, who was a former Army general and was Senator Thurmond's chief staff person, had breakfast together every morning, and we would plan the day.

The object of that—no secrets, no surprises—the object was to try to get legislation through that people can accept, if people conclude that it's a desirable thing, and then try to color it a little one way so that the conservatives can vote for it and a little the other way so that the liberals can vote for it.

The committee liked that. We confirmed 200 Carter judges. Every one of them was looked into by joint investigators, Burt Wides on the Democratic side, Duke Short, a Thurmond staff person. Before Burt, it was Carmine Bellino, who had been Bobby Kennedy's chief investigator.

The two of them would write a joint report. It was almost always accepted. I'm not saying 100 percent, but pretty much it was.

Does that happen now? No, it doesn't. I don't know. Why not?

I know what Senator Kennedy said a few times more recently. He blames a lot of it on transportation, that they are not there. They all have to go home. From Thursday evening until Tuesday morning, nobody is there. Since they can go home, they have to. They're back on the airplane. They don't get to know each other as people. I don't know what you can do about that.

Peter Orszag had done some work on this which I found absolutely fascinating. He had some charts, and the charts go back to the mid-1970s, 35 to 40 years. The first chart was polarization shown by however they measure it. Indeed, if you look at it, it's sort of like that 35 years ago and it's like that now—bipolar. It's the same with the Senate as with the House. Now, you can gerrymander the House, but you can't gerrymander the Senate.

Then the most interesting chart was one—it was written by someone in a book in 2008. I can't remember the name of the book. What he had done is looked at census data. He has a map of the United States. You look at the map, and it's done by county. If a particular county is a landslide county—and he means by that 60 percent Republican or 60 percent Democrat—he colors it in red or blue and otherwise leaves it white.

If you look at the map from 35, 40 years ago, it's almost all white. If you look at the map last year—or 2008, when he did it—it's heavily red and blue, which suggests that people are living next to people who think the same way politically. Why? My goodness. We would like to know the answer to that. I think we could figure out the answer. Is that television, where they demonize people? You are prepared to live with people with different views, but you are not prepared to live next to demons. Or is it—you tell me.

But I think that's an important question to try to answer. We have to work this system. It is becoming harder. And the answers are not so obvious.

You say, well, money. But remember the Nast cartoons in the 1800s? They showed a picture of the Senate behind these big moneybags, the oil trusts, the railroad trusts, this trust, that trust.

A book I really liked was Henry Adams's Democracy. Have you ever read that? A great novel, a great novel. He's writing about Washington in, I guess, 1880. There it wasn't some kind of conflict of interest. There it was that they just paid the money—here it is, here's the envelope. He was pretty discouraged. He said, yes, but that's what we have to work with.

It's a question of trying to get this system to work better. It's not a question of giving up, because there's no choice here. I thought that was a good book.

I don't have an answer.

QUESTION: David Musher.

Mr. Justice, you spoke very clearly about the relationship between the Court, Congress, and the president. My question has to do with regulatory. Who can set aside regulations?

STEPHEN BREYER: Oh, the regulations, that's one of the great—now you're talking to one of the five people who like administrative law.

I thought one of the great things when the Iron Curtain dropped and they were trying to form new governments—I would say, you have the different constitutional values, but don't forget the Administrative Procedure Act. Why? Because one of the great things that has grown up out of that is that if something isn't public, it isn't a law. One of the first, most basic things is that you don't have secret laws. I would say that's fundamental.

One of the problems with some of the more dictatorial nations, as they used to be, was that the person who wanted to arrest you would draw the law out of his desk and say, "Nobody has seen it before, but it's a law."

That's a very, very big contribution to what I would call a rule of law and democracy.

The basic hornbook rule in terms of when the regulation is all right is that if there is a law, it has to be consistent with the statute, it has to be consistent with the Constitution, it has to be done through fair procedures, which are listed, and it cannot be arbitrary, capricious, abusive discretion. Most countries have that or the equivalent. European countries call it an abuse of power.

So you have judges that give a lot of leeway to the regulators, because they understand that they aren't experts and the regulators are more expert than they. So give them a lot of leeway, but it can't be arbitrary, capricious, abusive discretion.

Now you have my whole semester's class.

QUESTION: Hi. I'm John Parisella.

I represent Québec. I'm a Canadian. I would like to maybe make one observation and then ask you a question.

The observation about the 101st Airborne is why this is such a great country. I think you should repeat that very often.

It's kind of ironic. I can name the nine justices of the American Supreme Court. I can't name the nine Supreme Court justices in Canada. I'm not bragging about that, but I think it does raise just one question. Whenever there is an election in Canada, the whole question of who gets elected and whether whoever is going to be eventually named to a Supreme Court opening is never an issue. But it is an issue here, and I think it might be an issue in the upcoming election.

I wonder if you could comment on that.

STEPHEN BREYER: Yes. You have just given there the pro and the con. I used to think, why is it a good thing? We wear black robes because we're speaking for the law, which should be anonymous.

The fact that we're not—we're more anonymous than you think. I usually get, "Do people recognize you?"


"Not even in restaurants in Washington?"

I say, "Well, sometimes in a restaurant in Washington."

"Then what happens?"

"They come up and they ask a question. It's always the same question."

"What's that?"

"Aren't you Justice Souter?"

So you can overstate that. But at the level of pop sociology—in Canada, after all, the Parliament can overturn a constitutional decision of the Supreme Court. It doesn't happen, but it's conceivable, at least to some degree. Here it can't.

So I think the court—maybe it was the good part that desegregation carries with it. You have to interpret other rules. The more the court gets into matters that do have a political aspect, have political weight, social weight—in other words, they are controversial at that level—the tougher it is to remain anonymous. You can stay out of politics in your decisions, but that doesn't mean that the reactors—namely, the public—will not make it a political issue.

I think it's not just Canada. New Zealand somehow has really survived in that. It really has. They have it.

But the European Court of Human Rights—fine, let's give a court the job of enforcing basic rights. They make a few decisions, and they suddenly become very controversial. Who are these people? Who are they? Why should they tell us what to do, something we don't like? Now we're back to the history.

That's why I think the confirmation process—that's why I think this document is so brilliant—I'm not saying it's a perfect process. It did have a good result in my case. But it has become very controversial itself. But that process, in principle, was an effort to create a democratic opening so that it's not totally out of the reach of democracy to decide who these people will be who are going to make decisions that will affect 300 million others.

Well, "not totally out of the reach of"—to what extent should it be? We're having this argument in Britain. They moved their building. They moved the law committee of the House of Lords. They gave them a separate building. They are calling themselves a Supreme Court. They want people to have heard of them so that they will know what they do. Fine. They do that; they'll become more controversial, too. And you will get into these confirmation fights.

How do we draw the lines correctly? That's hard. I don't have an answer. The answer is going to lie mostly through the political process.

All that is what you—the one side is one side of the other side, if you see what I mean.

QUESTION: Steve, over the course of your tenure on the Court, could you say that there is a great difference among the justices on the value of precedent? Are there some who are consistently placing much more weight on precedent than others? Or do they just vary according to the decision they want to make?

STEPHEN BREYER: That's a good question and a tough question.

What I would say about precedent in here—of course, everybody is for precedent. Should you follow precedent? Yes. Stare decisis, yes. Why? Because people rely on decisions. You start overturning one thing, and pretty soon the lawyers are going to think they can overturn everything. Then they say to their clients, "We have a shot on this." Before you know it, the clients can't plan their businesses. They can't plan their real estate purchases. They can't plan this, they can't plan that: disaster.

But no one is going to say you ought to follow precedent all the time. What about Brown v. Board of Education? We would still be under Plessy v. Ferguson if they hadn't overturned precedent. So everybody agrees, sometimes you have to. But don't do it too often. Where does that get us?

One thing I have noticed, that you might not have, is why it gets overturned. The key here is, to what extent does a judge follow a decision and not try to overturn it when the judge is convinced that that earlier decision is totally wrong? It's the easiest thing in the world to say to follow precedent when you think the precedent is right and when somebody else isn't following it. You say, "You've departed from precedent, this excellent precedent."

Let's say, "You've departed from precedent, this terrible precedent." Let's see how often we see that written. That's the test of it. You must do that. But how often?

What happens is, we cite a lot of things that don't mean too much. But what really happens, I think, psychologically is that after a person is appointed to the Court, for the first three years, you go around in a slight state of suppressed panic. How do I know I can do this? Just a little uncertainty is there, and it takes three to five years, according to most people, before you calm down and say, "I have enough experience here. I don't know if I'll get it right, but I can do my best in this," and so forth. You stay a little more calm.

Then you begin to think, "You know, those other people who decided things years ago? They were people. They were just like me. They can make mistakes, too."

Then you think, "You know that case there? That sure is a mistake." You think about it—"Oh, my God, it's really terrible. My goodness."

Then you think, "But I have a chance to set it right."

Then you think, "I'm not going to get another chance."

You get one shot. It's not a court of appeals, where, if you miss this one, the case will come back. Don't worry about it. This is it. You're not going to see this again, this issue like this. If you have a chance, take it.

There is where the danger lies because that emotion is definitely there. Then you begin to think, "Well, the precedent isn't that much. We can distinguish it away. Don't worry about it." And there is a recipe for instability.

What I think happens is—and you can't go beyond this—you have to look at the precedent and you think about it and take all that I just said into account, and then don't overturn things very much. I can't say never, but be careful. Keep in mind the need for people relying on what you have said. Be careful about it.

If you end up in a chapter, which I do, with kind of Chinese fortune cookie suggestions, that doesn't tell us too much, but I can tell you what the inputs to this thing are and why you see them overturned.

Everyone agrees that precedent is very important, but it's not always followed and can't always be followed.

That's the best I can do.

QUESTION: Ron Berenbeim.

Given your mention of the confirmation process and the Administrative Procedure Act, I would like to put to you a not-so-hypothetical question. Let us suppose that a law is passed and it designates an administrative body to administer that law, and the president, as he is supposed to do, designates a nominee to be the head of that agency. Let us suppose that during the confirmation process, the minority party in the Senate, which is involved in the advise-and-consent process, says, "Oh, we think this is a great guy, highly qualified, but we just want to tinker with the terms of the law that was already passed."

Much of your discussion has focused on how the court arbitrates between different bodies of government. But this is a problem inside of a particular branch of government.

STEPHEN BREYER: In terms of the procedures that Congress follows, the basic hornbook rule is that it's up to them. They administer their own procedures. I can't think of a case—the closest may be Adam Clayton Powell, where there was an impeachment problem or something like it. Basically we don't interfere with the way Congress manages its internal procedures.

I am not expressing a view on the Consumer Protection Act or whatever it is that you are thinking of specifically. I'm not expressing any view at all. We stay pretty much out of that kind of thing.

QUESTION: Bruno Quinson.

There has been a lot of talk about televising some of your debates. You were talking about anonymity, being taken for Justice Souter. That certainly would eliminate that. I was wondering, who would make the decision whether you would be televised? Do you think that would be a good idea?

STEPHEN BREYER: To take the second part, I don't know who would make this decision, because we haven't discussed who would make the decision. There have actually in the last few days, to my way of thinking, been pretty good debates on this question.

There was a series of letters in the Times on Sunday that I thought presented both sides of this in a more sophisticated way than I previously had seen. There was an article, an op-ed, in the Post a few days ago. There is a woman who is a professor of linguistics [Deborah Tannen], and she wrote a pretty interesting article.

It's obvious why it might be a good thing to have the television for the oral argument sessions. The obvious reason is that it would help inform people what we do. I think it would be favorably impressed, by and large, because you would see nine people trying to wrestle with these very difficult questions who are trying to do their job. I think that would be the overall impression.

So why not do it? Because I'm not sure about that. What we don't know is, if it were in our court, would it be in every criminal court, too? With criminal cases, if we start televising those trials, there are a lot of problems. A lot of problems can arise—witnesses and jurors and so forth.

But also the oral argument is just a tiny portion. Most of what we have is in writing. The oral argument is about 5 percent. Then people worry that it will be misinterpreted, for this reason. People do relate to other people whom they see. They relate to the people, the parties. But most of what we do is going to affect 309 million people who aren't there. They don't see those people. They can read about them, but they don't see them.

But probably most importantly, what this article emphasized, which I found interesting—you say there is not going to be—will there be sound? It's not the sound bite exactly. This is her point. It's that people do react to the manner, to the dress, to the tone of voice.

You can say the judges will ignore that kind of stuff. We have the press there anyway. She says, yes, they will ignore it, until they really get bitten, when somebody decides that he is going to demonize the particular person. And that has been known to happen in the press when they disagree. After two or three of those, the judges will watch what they say, and that's a bad idea. That was her point.

Justice Scalia—he was joking, but nonetheless. They take our picture when we are first appointed. All nine of us get behind a black curtain. He said, actually, they take two pictures, one good one and one bad one. When you write a decision they like, they run the good one. I thought there's nothing to that, but maybe there is.

So we nine are pretty conservative on this. We didn't create this institution. We inherited one created by others. The last thing any of us would want to do is take a decision and say, oh, well—there's a word in German for this. Martin Luther—on his deathbed, supposedly somebody said, "What do you think?"

He said, "Well, maybe it wasn't such a good idea."

We don't want to be put in that situation. That's why we are so conservative. But you can read it.

JOANNE MYERS: I think the universal decision here is that we really are grateful for your presentation. Thank you so much for being with us.

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