Antonin Scalia and Stephen Breyer debate the Constitution

I'm Eugene Meyer president of the federal Society and on behalf of the Federal Society in the American Constitution Society of both of which groups are co-sponsoring this event I want to welcome all of you here you to this discussion conversation on the Constitution with Justice Breyer and Justice Scalia all of you should have gotten at one stage or another cards when you came in here if you want to ask a question right write it out and pass it to the aisle that will be on occasion uh people coming up and down the aisle who will take those cards if you're on the if you're on the seat on the aisle if cards are pasty if you could hold them until at some stage somebody comes by to get them we'd appreciate that very much with I now to introduce our moderator I'd like to turn it over to Lisa brown is the executive director of the American Constitution Society thanks gene I just would like to add my welcome to all of you ACS is really privileged to be co-sponsoring this event this evening and Justice Scalia Justice Breyer we are extremely honored by your presence this evening clearly constitutional issues are the subject of much live debate today and in both legal discourse and much broader public discussion and so we're really lucky to have with us whatever who everyone recognizes to be the biggest experts in the country on constitutional interpretation so we are very much looking forward to hearing from you and we're very pleased to have Jan Crawford Greenberg with us this evening to help guide the discussion not that I think it will need any guiding jan is an ABC News correspondent who covers the Supreme Court and provides legal analysis for ABC News she has a wealth of experience covering the Supreme Court and national legal issues for both print and broadcast media from the Chicago Tribune to PBS to CBS and now at ABC Jan's actually working on a book on the Supreme Court right now which will come out early next year so we are in very capable hands this evening Jann well it's my honor to be here and I thought that we would just start by kind of looking very far back I wanted to bring up this famous story between - long ago legal Titans who had had lunch judge Han and Justice Holmes and as Justice Holmes left the lunch judge hands said do justice or do justice and Justice Holmes stopped his carriage and said it's not my job to do justice my job is to apply the law Justice Breyer are you Holmes or hand I'd be very happy to be either one and the the short answer is when we have cases we try to apply the law and get the right answer in the case and of course we both think I believe that ultimately the point of law is to satisfy a human desire that's probably 10 or 20,000 years old that people of course want justice just as just as shall you pursue and they want it and they expect ultimately that the law will help them achieve that very basic and noble end and we understand what the basic end is but we also think or at least I do and I'm sure does - Scalia does that you don't necessarily get to that end simply by trying to look for what is the intuitively nicer result in each case so we're there to apply the law but we don't forget what the ultimate objective is Justice Scalia what do you think Justice Holmes meant by that let me describe probably the cases I had over the last 20 years that I felt produced I think just I'm afraid we've lost I think it may not be did you do this Justice Breyer no so good let me it's really coming on and off and I don't know what to do about it let me describe the case that I had over the last 20 years in which I felt that that really justice was not being served if I was to be the arbiter of justice there was a piece of legislation designed to preserve the integrity of American Indian tribes which prescribed that no no child of members of the tribe could be of any tribe could be adopted by persons outside the tribe without the permission of the Tribal Council and there was a young Indian man and a young Indian girl who would had a child they were not married and and and they'd given the child up for adoption by a very well-to-do rancher and as I recall the child had been with these people for two or three years and the issue was you know whether the child had to go back to the tribe if the tribal council said so and I you know we decided the case yes the child had to do it because that was very clearly what the statute provided now I you know I don't think that that was the way things should have come out I would think that if the child's parents wanted the child to be with someone that they thought would would best take care of their child that it should be up to them and not up to some tribal council nonetheless it is not my job to say what's justice and what isn't justice my job is to interpret the law adopted by the people's representatives as fairly as possible and the only fair interpretation of that law will produce that result I will say that I might feel differently if I sat on a trial court you know a trial court is much more interested in getting result in the particular case by the time you get up to an appellate court and lawyers ought to learn this I don't much care about your particular case I am not about to produce a better result in your case at the expense of creating terrible results in a hundred other cases because that's what appellate courts do they set forth principles that govern an immense number of other cases so what I'm concerned about as an appellate judge is a legal principle that will produce justice in the sense of giving the fairest interpretation of the statute over a large number of cases as I say if I were a district judge you know a district judge can well you know those are there are a lot of non-reviewable ways in which he can make the case come out right Justice Breyer let me when have you had a case that the conclusion that the law took you to a conclusion that you found personally repugnant quite a lot decide I won't go into specifics michaelia gave us an example well I think those don't come up very often I think I think I think normally the cases that we have where I agree with them very much and people don't understand this and but we're in a court particularly where what we decide and I just emphasized what he said what we decide affects 300 million people and if you try to worry about the equities just before the two individuals before the court you could really get it wrong in respect to two hundred ninety nine million others and so that is important now what I think normally happens in our court in a lot of appellate courts is that the issue in front of us is actually not clear what the answer is particularly when we divide five to four seven two two or eight to one or something else and we're RHIB unanimous forty percent of the time you start getting to those other questions and we're five four maybe twenty percent of the time and you start and it's not always the same five the same four and the reason is normally because those words in the statute of the application of the Constitution is really open they look to the precedents if the precedents decided it what's it doing in our court and if in language decided at night say even in any any of the obvious tools that we have and so when you have those open matters I might for example and I am thinking of a case where the absolutely open I thought are pretty open what this statute really meant and there were two ways of interpreting it and one would have closed the habeas corpus door to many prisoners who I thought had done nothing wrong themselves to close it and the other would have kept the door open and I opted for the latter interpretation and I will say in my mind is the fact that in a country with traditions of affording justice to everyone and keeping that habeas corpus door open even to prisoners where you don't know from the text where you don't know from the precedents Lord certain what Congress meant by this language let's interpret it in accordance with those traditions and there I think is an example of where something like a basic justice a tradition of providing justice for individuals can influence an interpretation of a judge of an open language even in an appellate court I know the case he's talking about I thought the language were pretty clear but that you know that's what makes no that's I think it said whether it was a state or other collateral proceeding and the issue is whether the word other meant other state proceedings or other state and federal proceedings I would say the word other there by itself is not so clear what's in a way this K we're talking too abstract that's what we are I was talking break over again let me let me come back to your original question if if people agree with with Holmes and do not want their judges to simply apply their own notions of what's a good rule but rather to follow as best they can what the people have decided through through the Constitution and through the statutes if that is the case it follows that you cannot judge a judge simply on the basis of whether you like the outcome of the case which is normally all you're going to find in a newspaper report you're not going to find that the textual gymnastics that the judges had to go through to reach the result you're going to see to the good guy when did the bad guy win and you're inclined to say if the good guy won wonderful judges and if the bad guy want terrible judges that's not true unless you believe that every statute ever written produces a sensible result but you know the the ideal rule for for the honest judge is garbage in garbage out you are supposed to interpret the statute reasonably even if you don't agree with the result because it's not up to you to decide what's garbage and bear that in mind you you you should be you should be what should I say more careful to either praise or criticize judges just because you like the outcome or dislike the outcome of their cases but I'm afraid I'm misunder are you saying that there's one case that you can recall since you've been on the Supreme Court where you personally disagreed with the outcome but that the law you felt bound by the law there are lots there lots and you want me to go into some of them and I won't because I haven't come here prepared with the list and you have to read through them in cases that produce some outcome that's horrible I probably disagreed with the outcome but the well I bet you I have more than you do and the where you're on dangerous ground here you see is loud Justice Scalia's last point which is that you to evaluate a case and that's why I think one of the reasons that were pleased that the people here are here because they're interested in the details they're interested in the cases and where you're on very dangerous ground because you're tempting us you see to join in our attack on we won't say journalists but we got the occasional article that doesn't go into it in our opinion in sufficient depth which I'm sure you don't even know about well of course not but how do how do justices constrain their their personal views how do they cabin their personal preferences Justice Scalia I would guess that you have a different view on that then you do Justice Breyer now I think we probably both have the same that it goes with the job if you are incapable of producing a policy result and you don't like simply because the statute requires it and I do that all the time I mean I you know I have decided cases preventing agencies from deregulating for pete's sake before I became a judge you know I was mister deregulation I was editor of a magazine called regulation magazine which was all in favor of the deregulating but I've written several opinions which prevented an agency that wanted to deregulate from deregulating because the statute didn't allow it and unless you can do that unless you you you you can realize that your job is to be faithful to the statute you're in the wrong job I mean you know one for Congress or something so you see note the deregulation magazine is called regulation and now you've got you begin to understand why laws are confusing some haha I think here you say an end that we both think and I think that's true that subjective judgment of the judge should not play a significant role in the outcome of the case but where I suspect and you know you can disagree but where I suspect we tend to disagree is the means that judges will use to bring about that end and what I usually say and I don't know the point to which you agree you know or not but but I think most judges appellate judges in particular when they face a difficult question of statutory or constitutional interpretation I think they normally start with six tools they have the text they can look to the history how do those words get there they can look to the tradition how those words have come to be used before and after precedent the purpose of the statute the statutory phrase in question and the consequences and by that I don't mean every consequence in the world I mean the consequences that are relevant to the purposes in the statute at issue the Fourth Amendment is about privacy not speech the first is about say speech not privacy all right now I think we all have those six tools taxed history tradition precedent purpose and consequence but I think some of us emphasize the first four and try to avoid the last two and they think that in doing that it's less likely that you'll get subjective I don't think that I think you have to emphasize in many of these cases the last two purpose and consequence and I think there are ways of doing that which are honest writing down what you're doing never having a secret or hidden motive explaining to the reader exactly what's going on in the opinion that act as a significant check on the subjectivity of the judge and I think that's just as likely to be objective as to rely solely on the first four and I think it's at least equal 50/50 and if it's equal I think that emphasizing the latter is more likely to keep the judge in touch with the legislature in a statutory case which is in turn in touch with the people and that is an appropriate thing in a democracy purpose and consequence the problem with purpose and consequence is that they invite subjective judgment to decide the purpose of a statute it depends at what level of generality you look at it now you know what is usually before us is whether a particular limitation in the statute should be applied or not is that limitation part of the statutory disposition well if you say the purpose of the statute is to protect civil rights and if you if you do not interpret it to have this limitation upon it you will protect civil rights all the more and therefore you should adopt that interpretation the problem is that the limitations in a statute adopted by the legislature are as much a part of its purpose as as is the general purpose of protecting civil rights no legislature pursues a general purpose at all costs there are always some limitations we're willing to do it up to here but no further and so to look at the broad purpose which is what often happens in in consequentialist opinions is simply to beg the question it's to assume the answer it's to assume that the limitation was not intended because it would limit the purpose but that's the whole issue and the same thing is is is true for the consequences you like the contrary how do you decide to decide it if it'll produce these consequences oh I like those consequences therefore I should interpret it to do that or I don't like those consequences and therefore I should interpret it not to do that I don't think that's the job of a judge that the the only objective criteria are the words that Congress adopted and once you get away from trying to give them their fairest meaning you're in trouble just like that word other it sometimes doesn't tell you whether it means other what and there we're in trouble and at that point I think it's important not to confuse the improper use of purpose with the proper use of purpose I mean 11 judge Leventhal who is a great judge once said that the problem with using legislative history is it's like going to a cocktail party and looking over the crowd to pick your friends well that's not a very proper use of it but that doesn't mean there isn't a proper use and with purpose too sometimes in a statue the more general purpose is the one that will help you answer the question and sometimes the more specific purpose say accompanying a limitation is what's useful how do you know which is which well the context will tell you if a person is lost and he's driving around and he says where am I the correct answer is not in a car how do you know that because you have the context in front of you and the same is true with the use of purpose or the use of consequences and if a judge is using them to be subjective and write his preferences into the law that's a misuse if he's doing it to try to find out what the basic objective is of the legislator using that to interpret ambiguous words in the statute that's a correct use and the only check that we have or you have that a judge is doing it properly and not improperly is that the judge writes down the true reasons explains what he or she is doing and then people can evaluate there there was a senator from New England I forget which one it was now but he used to tell this wonderful story about his his visiting the the general store and sitting on a on a cracker barrel talking to the folks at the store and one said I haven't seen you around for a while why I've been down in Washington i'ma send yo damn in Washington a he's a lot of really smart fellas down there oh yes indeed there are very very many smart members of the Senate and of the house a lot of fellers now there ain't so smart too right yes yeah that's true some are sort of hard to tell the one from the other ain't it and that's what what what I say to your URI of course of course you should use purple you say you should use purpose properly and not use it improperly the difficulty is that you it invites your subjective your subjective evaluation of what is a good purpose well of course any Congress that have this limitation on it would be a foolish Congress so in light of that I should give more weight to the general purpose I mean that's just a natural reaction once you get into the business of evaluating purposes as opposed to reading language and giving it its fairest way so I you know I try to avoid that now I I will say I will give you this limited concession there I suppose some readings of a text can be eliminated because they produce a ridiculous result all right to that extent I say consequentialism and purposes and has some place all right but that's a pretty limited yeah but we're making progress all right let me ask maybe I read this wrong and maybe you were misquoted but do you think that what you know do you do you think the idea of a living Constitution is idiotic yes I do not think that the people who believe that are idiots you are in fact misquoting me I never said that what what I said was I was describing one of the arguments that is often made in favor of a living Constitution and that argument is it goes something like you know a constitution is a living organism it it has to grow with a society that it governs or it will become brittle and snap now that that is idiotic the Constitution is not a living organism it's a legal text and you know and I analogize that statement to the statements that you hear from your stockbroker that the market is resting for an assault on the 12,000 level you see the stock market panting at some base camp and it's and that also is idiotic and the two are equally idiotic so now as to the living Constitution no I never said that the notion of a living Constitution is idiotic I was misquoted Justice Breyer I mean if you mean that a living Constitution is not living say like a rhinoceros or a walnut tree I mean of course that I would be someone who thought that I I don't know what I would think but but they but the normal way in which the phrase is used though it's become something of a cliché and so I don't like to use it because it takes on a pejorative meaning but I think that underlying the idea was that if you go back to the end of the 18th century and you examine what the founders thought say about the Commerce Clause they didn't think of the internet and they didn't think of television and they didn't think of the radio or automobiles etc but they wrote a value into that clause and that value is permanent like the value under the First Amendment is permanent free speech is a value that's permanent but how you apply that to a world where social conditions and physical conditions and every other condition is changing continue you asleep and how you take a document that that applied to four million people or so in 1789 and today has to govern a continent of 300 million people of every race every religion every point of view and you know with 300 million people we have 900 million points of view minimum and how you do that is not obvious and the Constitution in the application of it adapts to the circumstance in order to keep the values the same now that's the kind of thing that underlies that notion cliche though it is and I think that which underlies it is certainly valid if if all if all you meant by the living Constitution is that the Constitution has to be applied to new circumstances that were not envisioned at the time of its adoption I wouldn't give it the name living Constitution but I wouldn't disagree of course you have to figure out how the First Amendment applies to new technologies to radio to television and so forth that that's not what the fight is about the fight is about taking pre existing technologies pre-existing realities that were there at the time the Constitution was founded and changing the answers I've sat with three colleagues living constitutionalists who believed the death penalty was unconstitutional nothing has changed no technology alters whether that's a constitutional punishment or not and yet the living constitutionalist could one day say ah because of the new circumstances of our 300 million people we feel differently about it today than we used to and therefore I am going to prescribe from the bench that you cannot have the death penalty that's the kind of thing that I do not agree with in the living Constitution it applies not just to the death penalty it applies to abortion abortion existed then nothing's changed nobody thought abortion was probably prohibition of it was was unconstitutional but living constitutionalists say it is the same thing applies to you know prohibition of homosexual conduct it it's not the disposition I'm concerned about if you want to change things if these three hundred million people want to change things you don't have to use the Constitution to do it use the legislature that's what we do in a democracy and it's very undemocratic for the court to say make the change it's quite possible for the people to abolish the death penalty to permit homosexual conduct or for that matter same-sex marriage and and - and to permit suicide and all sorts of things the issue is whether a judge can say the living Constitution has morphed and so what used to be okay is now not bad is now bad that that's that's the living Constitution I'm talking about and it's it's the one that I wish would die the words in the example in the Constitution are are cruel and unusual those are the words it doesn't talk about the death penalty it's embodying certain values now I was we were making a little more progress at the beginning of this when you can see piston and and the the you have a lot more hope for this thing than I do but I the reason I find it complicated and and difficult is this kind of a question is maybe I mean the metaphor that it's helpful to me after a certain period of time and I think after a member of our court for a certain period of time and it does take a time I think you develop a a kind of view of the Constitution because we have so many constitutional cases and you begin to say what is this document about really and and I think most of us now I know that many of my colleagues agree and I'm be surprised if you did it if you if you want us to really oversimplify and say what is it this is a document that creates institutions of government of that of a democratic kind yeah I agree with that you see at the heart of this Constitution is democracy and that means that people through their elected representatives decide for themselves what kind of laws rules administrative regulations all kinds of other things they want governing themselves in their cities towns and states and nation it's their decision at the same time it creates a certain kind of a democracy and that's a democracy that protects basic human rights assures a degree of equality divides powers state federal and three branches so no one becomes too powerful and insists upon a rule of law now having said that in general terms I think you see our job as a job of not interfering with democracy correct but a job of guarding the boundaries because there are boundaries in kind of Constitution that gives tremendous leeway to the legislature but still that legislature cannot go too far it cannot exceed the boundary and we're there in a sense like a boundary patrol now some of those questions on the boundaries are pretty difficult and you've mentioned a few and I might stay away from too many specifics but those questions are difficult and they often divide us but what doesn't divide us is the fact that the job of a court is still at the boundary and our job primarily is to preserve that democratic process I think you'll get nine votes for that one and of course that's why I'm glad you're here because you're participating in that process etc and I've written about it and believe it's important but it's important to keep in mind that while we disagree at that boundary it isn't necessarily because we think the democratic process isn't important or is important the question is how you interpret those difficult words and I begin to repeat myself so I'll stop but why should unelected judges be able to invalidate laws that don't conflict with the text of the Constitution no where where is an example where they don't conflict with the text I've never heard of somebody say not conflict with the text question is the word try Roe versus Wade just saying yes your sir thank you thank you in any of the book in any of the opinions of course you have words of the Constitution like the Fourteenth Amendment word liberty or the First Amendment's word the freedom of speech which don't explain themselves very often in difficult cases so then I say life at the boundary is sometimes tough it's like I keep thinking of the frontier Patrol or something because it doesn't explain itself it's a hard question and you have to have tools to answer it and you put your mind to it but the bottom line if it's unconstitu is going to be that it's forbidden by this word or that word or phrase or this part of the Constitution and there is no doubt about that and you know it's easy to find those phrases equal protection of the laws to due process of law those phrases are empty bottles if you if you accept the proposition that each generation can fill them up with whatever liquid it wishes now I too believe in democracy and I think the way it works is this the majority rules if you don't believe in that you don't believe in democracy now in a liberal democracy which is what we have there are some things on which the majority does not rule that's what our bill of rights is about the majority will not rule on religion it will not rule on on limiting political speech or any other speech and so forth unreasonable searches and seizures the whole list that's mostly what the Bill of Rights is about limitations on the majority which are applied through the judges who decided upon those limitations however the majority it was the majority itself that imposed those limitations in adopting the Bill of Rights and whenever the judges go beyond the meaning understood by the society that voted for those limitations whenever it goes beyond that original meaning it is in effect adding to those subjects that are driven off the Democratic stage now there was nobody who ever thought that due process of law meant that abortion could not be prohibited it was prohibited for 200 years nobody thought it was unconstitutional again I'm not talking about whether it's a good or bad idea the question is who decides if you interpret a Bill of Rights so that judges can decide oh yes we have this empty bottle here it's called due process of law and we're going to say that it's a procedural guarantee to be sure but we're going to say that some liberties are so important that no process will suffice to take them away which liberties are they we will tell you nobody would have voted for a constitution that said that that the meaning of equal protection of the laws whether it means there has to be same-sex marriage for example is to be as determined in the future by the Supreme Court from year to year nobody would have voted for a constitution like that and the only way to retain the democratic process is to recognize that the Constitution has an amendment clause and those things that the people didn't agree to such as same-sex marriage nobody ever thought it's covered by the Equal Protection Clause or anything else if you want it to be covered amend the Constitution or for that matter if you want to do it at the state level you don't even have to amend the Constitution just pass a law that is an interpretation that gives effect to democracy to it but to allow judges to to use these these broad phrases to give them whatever meaning seems sensible today even though it did not seem sensible to the people who adopted the Bill of Rights that to me is is quite anti-democratic Justice Breyer um at the risk of making this very interesting discussion a little less interesting I would guess and others can know that that if you look at the different parts of the Constitution and there are quite a few words not that many brief six synced and very very valuable to this country you will find a lot of phrases a lot of words and we frequently measure against those words laws passed by Congress or state legislatures to see if they exceed the boundaries that those words set I suspect that if you look across 10 years worth of cases you will discover that between Justice Scalia and myself really the number of times that were say they are exceeded unconstitutional or not exceeded there isn't much difference and you can't say one person is more willing to strike down laws passed by Congress than another at least if you look at what actually happens in the court but we're in my impression of where the differences tend to lie and personally as obvious the members of our court get on I've never heard them in the in conference room in 12 years in the most controversial cases I say this over and over I have never heard a voice raised in anger I've never heard one member of the court say something insulting about another not even as a joke they really they really don't we get on well we get on well but we have our differences when I've tended to think those differences over time and and ours including stem less from grand subject matters that command attention of the public and more from an approach to how you go about interpreting that Constitution and there you've heard some of it because I know the Justice Scalia is is concerned and that if I use too much purpose or consequence and so forth so now I want to raise the level of interest a little and I'll just say that the normal question here since you have criticized to a degree and you're making me nervous what are you building up I want to say compared to what compared to what because if we go back to your favorite subject history and there I have a favorite case I absolutely do the favorite case was a case involving the ex post facto clause and we had to decide whether it had a particular meaning this or that and for in a case in California where California had passed statute and that statute made a criminalized a serious offense but it criminalized it 25 years after the statute of limitations had expired and they wanted to go back and prosecute that person for something he did more than 25 years earlier and did the ex post facto clause apply and I grant you it was a very difficult question and I had to go into the history which I don't always do but some well it was an issue and I went into it now what it turned on well if you like it yeah I did I did this is what it turned on it turned on I believe whether a not a letter late ninety eight eighteenth century of the early 19th century judge who talked about ex post facto Clause chase and listed some conditions there and really got them from Blackstone who was an 18th century treatise writer who in fact was describing a 17th century trial during the just around the time of the British civil wars which involves something that Parliament had done to the Earl of Clarendon and Bishop Atterbury and what they had done was to me quite obscure and I I tried to look up every possible thing in sight and all I can say and I shouldn't admit this publicly that if I got that right historically it was a miracle and they because I'm not a professional historian and the questions are very often not just difficult from the point of view of open language or even from the point of view occur of a purpose and and consequence but from the point of view of history so if we're going to decide all these things through history let's have nine historians and let us not have nine judges and they won't get that right with a deberían Clarendon either because I happen to notice in the Hicks pretext which I accidentally looked up but but they were in fact in disagreement well you know the historical approach also has disadvantages it also isn't easy and I believe true too often it's removed from the roots of what is at issue which is basically how a value embodied in that Constitution applies to a world which is a very complex world and a country that has changed dramatically but is managed to hold together with all these different views and different people as hold together because people do respect that document and they do choose to decide their differences under law and I think it's a good thing in fact to tell you the truth I shouldn't admit this but I think it's a good thing when you have on a nine-member Supreme Court people who don't always see things exactly alike and who do have different methods of interpretation and different approaches because none of us at all you understand well the chief I can't even agree I can't even agree we're really looking I agree that you should have different people with different who reach different results but one would think that after 200 years there would be some consensus on what we think we're doing when we interpret the Constitution you know I mean this is these are wildly divergent views are we taking broad concepts such as equal protection and due process and asking what should these concepts mean today that's one one view or on the other hand are we saying what did these concepts mean when they were adopted now as as for the difficulty of figuring that out the historical problem yes there is I'm not pretending that the doing it by text and the original meaning of that text is perfect that it's going to solve every problem but it solves an awful lot of problems especially the most controversial ones it doesn't take a whole lot of history to figure out that nobody thought the the Bill of Rights stop the state from prohibiting abortion nobody thought that the Bill of Rights prohibited a state from from criminalizing sodomy nobody thought that the Bill of Rights prohibited states from a prohibiting assisted suicide so many of the most controversial questions it's a piece of cake to decide it and it is not my burden to prove that originalism and this historical approach what did the people do what did they decide it's not my burden to prove that it's perfect it's just my burden to prove it better than anything else and the anything else is is the other approach it's up to the judges what equal protection should mean today what due process should mean today this is an immense amount of power in judges and if you say that my approach should require historians I cannot understand why your approach should require lawyers I mean what does a lawyer know about you know whether whether there ought to be a right to an abortion or whether there ought to be a right to suicide let's put ethicists on the Supreme Court or I'm what did I learn at Harvard Law School that gives me any capacity to decide these questions more more properly than anybody else in the country you learn law you learn law at Harvard or the lawyers questions once you reduce it to you know what ought Equal Protection mean today if if you think that those words are empty bottles let's be honest and say it's up to Congress to fill those empty bottle that's the way the British do it if there are empty bottles you know and we're trying to figure out what does the current society think it ought to mean whatever the Congress says they know what the current society I don't have any idea what the current society things I don't want to know what the current society now Justice Breyer you've written in your book active liberty that certain decisions should kind of spark participation in democracy so how do you square that with some of the Justice Scalia's points the abortion decision school vouchers school vouchers you know I dissent in school vouchers which I wrote about I wasn't on the court at the time robee waivers decided or sten sture yes oh I think I won't go to the abortion but but the vouchers I think that's a very interesting case and and and actually quite difficult because it's absolutely true historically it had to do with the the meaning of the Establishment Clause and that's a tough that's tough I'm sorry whether you're a historian or not a historian that just isn't obvious I agree with that it's the toughest and and if you go back to what people probably were thinking they probably thought it only applied against the federal government and maybe the states would have established established churches and and then what you see is an evolution really in the courts opinions you see two evolutions taking place at once one is that the country is changing after the Civil War at the time of the Constitution was written probably there were maybe a handful of religions by the time you get to today and after the post-civil war immigrations into the United States we probably have 50 or 60 different religions there's a tremendous degree of diversity that wasn't there before from a religious point of view and I think what you see in the court's opinions over the 1950s 60s 70s and and so forth is the court responding to that in light of what well in light of a basic value that underlies that Establishment Clause if you go back into the history of that clause the religious clauses they grow out of the civil wars in England read about those civil wars my goodness you talk about bad things today I mean the 17th century was just terrible and people really killing each other a deadly deadly and for religious reasons and they ended up in in Britain anyway with a compromise and the compromise was well you practice your religion and teach it to your children and let me practice mine and teach it to my children and that was an important compromise because it wasn't just written into religious clauses it really begins the First Amendment it really begins free speech it begins the font of a great deal of intellectual freedom and it shows up everywhere so if I thought going back to that very basic value and trying to see how its reflected in the opinions of our court it's there it's there it's definitely in all the opinions across the 19th a latter part of the 20th century so in the school voucher case my own view is to try to evaluate the school voucher legislation in light of that and then for reasons I set out a considerable length for anyone who has insomnia I feared that to allow the vouchers would in this society provoke too much religious dissension because people feel religion so strongly so strongly that it would provoke too much dissension and disagreement of the kind that that Establishment Clause as it had come to be interpreted would in fact have wanted stopped see it's there to you do yours you do mine let's keep that dissension down now the reason I wrote about it in the book and the reason I went on at Lane is because I'll tell you I which what I said I wasn't certain of that I did come to that conclusion but sometimes I come to a conclusion I think you know and that's it and time goes on and as time goes on I think I'm more and more right that's human nature but sometimes there's a conclusion which I which I'd just pretty tentative about and remained I'm just doing my best I'm just doing my best when they are and that's one of we're not allowed to pass no we're not we're not allowed to pass and and that's the nature of the thing and well I say the differences you know I grew up at a time when every member of the Supreme Court had been appointed by President who was a member of the Democratic Party I thought maybe that's what it was supposed to be but over time I've learned that there is a virtue there is a virtue in life tenure on that court and length of service because it does mean that not that a president can control the outcome no president can and they shouldn't try but they sometimes may try to get some kind of basic philosophical which say so view which they think is roughly compatible they can be wrong about that one too but there you're likely to get with different presidents maybe some diversity of view and and that's what I think is good in a country as I said that is as diverse as ours let me let me say a couple things first of all is a certain but this is a digression but it's worth it you're right about that I once had a good friend in in France who explained to me the fundamental difference between France and the United States and what you hear to explained it's good it's very clear he said he said Galia France is a country with 302 religions the United States is a country with to cheat with two cheeses and 300 religions there's a lot to say my only question on that why did the Frenchman have an Italian ax my comment at least I try my comment on the Establishment Clause is this many of its aspects are are difficult one aspect is not at all difficult and my court has has got it wrong and it infects all of our cases on the Establishment Clause I grew up in New York City and went to PS 13 and I was part of something that was called the release time program if you had a note from your parents you could get out on Wednesday afternoon at 2:30 to go for religious instruction at your church or synagogue okay and it was a good deal because you know you wouldn't hurry to get there you'd get cancer the street why not anybody else had to stay back in school this was challenged as violating the Establishment Clause and in an opinion written by William O Douglas no no conservative he the court said this is virtually verbatim quote we are a religious people whose institutions presuppose a Supreme Being when the state accommodates it's scheduled to the religious needs of our people it acts in the best of our traditions ten years later the court did 180 degree turn around and the current law of the Establishment Clause is not only that the state may not favor one one denomination of religion over another you know Catholics / Jews or Muslims Overson know not only that our opinions continue to say repeatedly the state may not favor religion over non-religion now that is just a lie it comports neither with the original meaning of Establishment Clause nor with the current application of it the same Congress that proposed the Establishment Clause to the people directed George Washington to proclaim a day of Thanksgiving to God for all his blessings upon the American Republic which he proceeded to do and which is still part of our tradition and we have cases that have approved paid chaplains in the federal Congress who opened the day with a prayer and chaplains in state legislatures and come to think of it we open our own session every time we sit with God saved the United States in this honorable Court so this notion that the state cannot of course the state must be must be rigidly neutral among the various denominations everything but to say that that it somehow violates the Constitution for the states of favor religion over non-religion is simply not true it never was true and it is not true today until today and until we get rid of that excrescence that change from the original meaning of the clause where we will never make any sense out of it dude thank you guys about you change your mind on the bowsprit oh no I didn't say I changed on it so it was a difficult case that the the the the I tried to describe the differences I'd to write something it was a it was a an article or something but it wasn't in an opinion but when I described the differences between the French system and the British and the United States in this area as well is that I'm not an expert in these other things but but the the franchise that have an ID they call it Laius as amor and and it's almost as if the the a of non-religion bears a relationship to the modern french state but catholicism born to the french state before the revolution so that if you have a public official who says a prayer it's a contradiction in terms it virtually it violates the principle in England they believe that an established church is not a violation of basic principles of free religion now my point there is that we have neither of those systems and when I was forced to describe it I which I was for the Article III I said well we have what I think of as a more pragmatic system that is we do at the boundaries at the boundaries we do not totally divorce religion from public life there's a chaplain over in the Senate and so forth so how do we with this more pragmatic approach apply the Establishment Clause for example and my description of it as we look at it pragmatically in terms of the basic objective which was what I described earlier as an objective that's designed to minimize the dissension to the social fabric to the to the world in the United States that can come out of real religious conflict and now that requires judgment and and that's why in ten commandments cases I came out one way in one case and the other in the other now it may be that that's hard to apply but of course it is of course it's hard to apply but we don't have the French system which is a hundred percent purist and we don't have the British system either and so you say it's a hard area and so do i but I'm glad that you have resolved it by the purposive approach at its very highest level of judge ologies which shows you the risk of that approach you say obviously the purpose of the Establishment Clause was to reduce religious controversy and therefore what it means is whatever reduces really controversy is required by the establishment I mean that was its purpose but it didn't say achieve that purpose by any means it has a text and it seems to me you have to say yeah but I was the purpose of the text but that doesn't mean that anything else which achieves that purpose is therefore required by it remember used to have a thing in logic classic woodsy DNF conclusion does not follow the fact that you son I never took a logic class I'm sorry ah we're making progress the point I wanted to make is if sometimes and that's why 10 commandments case was hard but I wouldn't retreat from that at all I mean III felt that but the other one's hard too but there can come up occasional cases occasional and they are occasion where there just is not going to be an answer unless you go back to that basic purpose and sometimes you'll have to do it in a general way and that in that case but not in every case far from it in that case I thought that the display of the Ten Commandments in Kentucky which involved a kind of deliberate thing to get religion into that courthouse was in fact prohibited in part because of the circumstances which I set out but I also thought that the tablets of the Ten Commandments which had been put in the State Fair ground of State the Capitol ground in Texas with a lot of other non-religious monuments and it happened to be put there of those tablets because of Cecil B DeMille movie the Ten Commandments where he had given money to a secular civic organization called the Eagles about to spread the Ten Commandments monuments throughout the country thought it would be a good publicity for his film that's quite true apparently and the they'd been there there for forty five years and what I said in the opinion nobody never objected it was there for other month with other monuments to show the history of the ideals of the Texans it went there really for a secular purpose and not for a religious purpose and and I thought ultimately it would be very disruptive of the value that underlies that Establishment Clause either to say that both of these monuments very different circumstances were constitutional or to say that both were unconstitutional and I did look to the value and I reached agreement on the court in that I was the only one who thought that way and so I grant you I grant you that is not on its face a sign that I was right but but nonetheless I wrote down the reasons and and that is an instance of having to refer back to the basic purpose underlying the clause listen I was glad to have you come up write in one of the two we've had some questions from the audience and followed up on our conversation now for Justice Scalia if one cannot discern the purpose of a modern Congress can one discern the will of the framers aren't those who focus on the intent of the founders simply imposing their own subjective view of history well you never heard me mention the phrase intent of the founders I don't I don't I don't do that I I take the text of the Constitution and I ask what was it understood to mean by the society that adopted it and that is very easy to figure out it is easy as pie to figure out that the cruel and unusual punishments Clause was not understood to prohibit the death penalty that the due process clause was not understood to forbid laws against abortion and so forth you look at the state of the laws which existed at the time and continue to exist with no one claiming that they violated the Constitution that that is conclusive evidence of what the society that adopted the bill of it's believed it men Justice Breyer you say in your book that Supreme Court justices should interpret the Constitution pragmatically in a way that enhances our democratic system of governance should district court and Court of Appeals judges interpret old Supreme Court precedents like Roe versus Wade pragmatically and in a way that enhances the functioning of our democracy pragmatism is a dangerous word because it means two people often just do whatever sort of good works at the moment and that isn't how I mean it I mean there is a tradition philosophically in America called pragmatism which is has roots back to William James and Perce and others and and it's it's a tradition where you have you can have rules you can have moral rules you can have other kinds of rules and you have to follow them but if you look at the object of the system as a whole or you look to the purposes of any subset of rules they have purposes and you look at that pragmatically and that's what I'm thinking of I mean when sometimes I'll say for example and I'll say it in imagination but sometimes I'll say at an audience because it puts the thing in a sort of lively way I said well we have a document the Constitution of the United States it was intended to be more than an exercise in logic it was intended to be more than a set of words it was intended to be a set of words that worked to make this country governing and I said that right there and you know I signed an opinion in the affirmative action case in in Gruder that I thought was saying that it was saying that the country has to work and it's complicated how it works out there but I say if I if you know their interpretations of the Equal Protection Clause and there are different ones and I thought that one favored and what I wrote about and and I thought one of the virtues of that is it would help bring our society together and that was part of the purpose of that amendment and that amendment had to do with the Constitution it was going to work for people in the United States and then I imagine James Madison is here and I say James I can be quite familiar with him as long as he's not actually here do you want an interpretation of an important part of that Constitution that will in fact work in terms of bringing people together and to try to achieve a goal or do you want one that isn't going to work well since he's not here I can answer the question Florian let's see I want one that's going to work and not work well I'm not going into the merits of that particular James Madison I know James Madison I I know James Madison and I imagination and they'll forget that the completely the the the point is that in particular clauses and particular particular purposes and particular ways in which things work out is what I mean by a pragmatic approach towards the Constitution it isn't just sitting there generally and asking what's good and what isn't good Ten Commandment cases are a good example because note how I tried to bring it back to the purpose of the clause in terms of what will work to achieve that purpose not just saying what's good for the country in general did you respond to that Justice Scalia no I did not provoke anything from me so on so many of what he some of the things he does say do provoke then I'll let this one go all right well let's we have one for both of you what do you think of the political term activist judge does it apply to judges on both sides of the aisle or just so-called liberal justices no it's an insult I mean when people use it they mean as an insult they mean it as a judge who's substituting his own opinion for what the Constitution requires and and no one wants really serious sometimes people might say I'm an activist judge but they're doing it in quotation marks in an ironic way and the point that I try to make in the book is is no one needs activist judges and no one tries to be an activist judge though we do try to apply different sometimes approaches to the Constitution right and I say anyway if you want to speak generally in political terms in political terms we don't need activist judges we do need activist citizens and that's what I think the Constitution foresees and that's really why I wrote this little book because I I want to encourage people particularly you know those in high schools and other places and I can I can use some authority there and having worked with the Constitution for many for a certain number of years now and say that I can tell you this about the Constitution it sets up that democratic system and that democratic system expects people to participate and if you don't you can do what you want but I'll tell you that document and as I say professionally won't work I say that to high school students and I say I'm not telling you what to do I'm just saying the Constitution won't work and I say I know it's a gimmick I am telling you what to do but I also think that that participation is important and you know etc so what I think of activist judges that's what I think Justice Scalia when do you think that the court has crossed the line and decided things that should have been better decided political branches taken away democratic participation well you know I've explained my approach and I would have to say whenever it gives to the text of the Constitution a meaning different from what it bore when it was adopted whenever it does that it is taking upon itself the role of revising the Constitution and that's something the people are to do not the court let me say something about activist judges I agree entirely with with Justice Breyer that it's a conclusive label I mean you know activist judges you can it just means any judges that are doing things you think shouldn't be done some people for example would would would call the the Rehnquist court an activist court on the grounds that it it struck down a much larger number of federal statutes than the Warren Court had done well you know that's sort of a silly criterion because there is it there is such a thing as an activist Congress and if you're dealing with a Congress that is pushing the envelope all the time you would want your court to be striking down even if it's not an activist court if it's just keeping the traditional bounds of the Constitution you would want that court to strike down a lot of statutes oh that's no that's no way to judge the matter ultimately you have to judge it on the basis of what you think judges ought to be doing I would call a judge an activist judge when as I say gives to the Constitution a meaning it did not have one adopted or gives to a statute a meaning other than its fairest its fairest interpretation so when you disagree with Justice Breyer on some of the I will never call that to his face but justice why do we do sorry leave it sorry well you don't you didn't agree with many of those decisions of the Rehnquist court that struck down some of those acts of Congress no I didn't and this is that that's why it's so hard to say that I think what one or the other of us is more likely to pay attention to Congress I mean if you look at the numbers in the Rehnquist court you'll see well probably I was more in favor of the Congressional statutes and you were and and what were the differences lie and we're not always on opposite sides even in this 20% of the thing but the differences are more law in the approach to interpretation I mean think of how the war in the court was criticized for being activists even in their main decisions which is absolutely accepted now that that main decision that was Brown versus Board and you know if you look at it now you say my goodness what could have been more literal the Constitution says equal protection of the law it says every citizen is entitled to equal protection of all and you simply had to I'm old enough to remember you know and you are too when when throughout large portions of this country you know vast numbers of citizens of the United States of America were were just treated unequally that really under states if they were treated really badly and anyone who went around and opened his eyes could just look and say you call that equal protection of law courses and what the Warren Court did then was simply say those words of the Constitution in the Fourteenth Amendment which was aimed to take people at that time in the 1870s had been slaves and integrate them into American society but it was designed to do that and the word said it and my goodness it wasn't being done and and there I think that was a literal and purposive and every historical anything you want to say and yet at the time people said who were opposed to that oh this is very activist well of course it wasn't in any sense whatsoever so beware of labels and of course when you talk about philosophical disagreements and approaches towards interpretation one of the wonderful things about an event like this is you're seriously interested in this question and you can see what real differences there are and you can think about them and decide what are appropriate in an intelligent way well we're not the CIA over at the Supreme Court we are an open organization that tries in every word to put down on paper what we're really thinking so people can read and think about it and I think that's why we're here because we think there is a real value a real value in people taking what we're doing seriously non-politically trying to understand the philosophical and conceptual differences and think about them and discuss them and as you can tell we we both like to talk about it or are happy and we and we do not differ as much as our interesting conversation might suggest I think in a vast majority of cases we come out the same way it's not all done not all the faster your writing right I've asked just the the courts came under obviously enormous criticism forty fifty years ago and now we've seen some justice O'Connor for example again expressed concern about criticism of the course and concerns about judicial independence is that something that troubles you Justice Scalia having engaged in criticism of the courts myself I can hardly I can hardly say it's a bad idea it depends on what the criticism is put whether it is destructive just you know judges are you know terrible and the court should be ignored or disobeyed or whatever or whether it's intelligent criticism that that says judges are doing this or that wrong and should adopt a different approach but the the notion that that all sorts of criticism are improper I mean my goodness that's why we have life tenure precisely so that we can you know let this roll off our back and it's always been there John Marshall was criticized much more brutally by the Richmond papers than than any of the justices on the current court are criticized in the press it cut him so so deeply that he wrote anonymous letters replying to the to the criticism so it's always been with us and it should be with us you know it's one of the checks on the judiciary and the only check once you're in office you know criticism from from the bar from the Academy and from the public so I I think it's it's healthy to have intelligent constructive criticism it is of course not healthy to have criticism that just demeans the courts and encourages the people to have contempt for the courts that's that's not healthy if I could also you were saying who you agree you both seem to agree that you agree on a lot of cases there are new chief justice would actually and has said he'd like to see more of that more you need to be more narrow opinions so that you can reach who are your thoughts on that lots of luck of course that's that's desirable and and I think we work hard to achieve it it is the bar complains sometimes about too many opinions but it is a very rare case I mean very rare in which there is not a majority opinion for the court signed on to by at least five of us so the bar knows what the ruling of the case is and we work hard we work hard to do that beyond that you know you can get more agreement of course by deciding less and if you wanted to decide almost nothing at all and decide the case on such a narrow ground that it will be a very little use to the bar in the future you can get nine votes so it's really always a trade-off between how helpful you want the opinion to to read you want it to take on a big question that's really the source of the disagreement in the lower courts if you do that it's going to be harder to get a nine nothing vote if you want to decide this case on these little technicality in this case you know you'll decide this case but you won't help the bar at all and bear in mind that we only take cases to to help the bar these cases you know it's our choice whether we take a case or not we usually take it to solve a problem a disagreement among the lower courts so to you know to take it and then decide the case on such a narrow ground that in fact you haven't given any guidance I'd rather I'd rather have a five to four or a six to three decision that gives that guidance than in mind enough bending that doesn't do you think Jessica I was laughing because I thought you said well we take these opinions because we want to really help the bar I thought maybe they don't always see it I think I think the reason I agree with you on this the objects to decide the case and you want five people that's fine but III and and I don't think that you want nine on an opinion for the sake of having nine on an opinion that isn't the reason and you don't want it to be narrow or not narrower etc because of you want to get nine people on it etc so sometimes you this is always qualified by depends and so forth but there are good reasons sometimes for deciding things narrowly that have nothing to do with whether we can announce were unanimous for example a very good example I think comes up in some of these technologically advanced areas of privacy computers internet and and where if we go too far too quickly we're going to make some law that then is going to turn out to be an obstacle to something that's necessary or helpful for others to do and I say that because I think it's important to see that a court particularly our court in my opinion as working best with a new area and sometimes older is when it comes in late in the day in this democratic country and it is democratic and whatever the criticisms are all those people screaming at each other I sometimes say there's a very big silver lining in that because when people disagree and they shout even they should be civil but even if they shout their kkatalk another and when we try in the United States to get something passed whether it's the Patriot Act whether it's in the area of terrorism whether it's in the area of computers or or privacy or anything else we start with discussing it and we discuss it here at schools in in the newspapers and journals and in seminars and civil liberties groups and/or police associations all over the place and those disagreements are voiced and they end up in hearings and legislation and administrative rules and we try them out and people criticize and they say maybe we should change it and and they try something at the fails and they'll change it again 15 times and then eventually maybe something will settle down and eventually work its way up to the court and I say this because I think it's important to remember that we're not experts in all these fields if any and we work best when we're informed and we're not going to be informed until fairly late in the day when other institutions have an opportunity to try to work things out and when they do and when they have then you might discover a greater unanimity in our court not always and if before that you might also discover efforts to write a little narrowly which are very often in my opinion healthy do you think there but before you go on let me go on record lest I be misquoted or misunderstood I am I am NOT against narrow opinions there are good reasons for narrow opinions one of them is not to get 9 votes that's all I'm saying why not because that's not what we're here for we're here to solve the difficult problems that are presented by these cases and where such a problem is within our reach it has been argued before us and we can decide that problem so that it will not be a source of confusion in future cases we should do it rather than deciding the case on another issue that has come up a side issue which would dispose of the case and we disposed of it unanimously I do not think the value of disposed of that unimportant issue unanimously exceeds the value of disposing of the major issue for which we took the case simple that's not bad because I've said this some times I haven't quite I think that articulates some something I felt quite a lot and I say it as a kind of joke and it but it certainly describes psychologically I think I feel oh and I bet you do too you write an opinion draft and send it around the court and then you're never certain how people will react you just never sir and the votes begin to come in and as they do come in I people often have suggestions for change and I usually say to an audience and I'm very very open to those changes they want me to change and I'll try and do my best and then I finally if I get those five votes I say I'm still amenable to change but not quite as Ameena that may very wise position what about boldness boldness you mean in opinion writing oh I thought you meant italic sir oh I think the law doesn't have to be dull there is no reason for it to be dull especially dissents sometimes you laugh sometimes majority opinions have to be dull because you have to get your colleagues to jump on board but I think putting things in a in a fetching way in a memorable way is all to the good especially especially in this sense who are you writing for in dissents I mean what is the purpose of a dissent on the Supreme Court on the Court of Appeals it has some function I mean you you are warning off other circuits that this opinion is not a good opinion to follow it's faulty okay it has that fun you're also warning the Supreme Court maybe you should take this case because they've decided it wrong but what good is it do too and all on the Supreme Court you've had your day you've you arguing with your colleagues you've failed to persuade them the game's over it is over so who are you writing the dissent for I'm writing it mainly mainly for the the what should I say the educational value it can have because when when law professors put together case books they have to have two sides it's no fun to have just one side so they're gonna put in the dissent and if you can make the dissent readable it'll be in the book and the students will read it and it and it has that educational value frankly you know my philosophy originalism used to be orthodoxy it is not anymore they're virtually there only two certified originalist on the court Clarence Thomas and I I don't hope to persuade my current colleagues or or even the current bar it's too late for you guys I mean you you what maybe the next generation maybe we can get back to what used to be orthodoxy and that's that's one reason I try to write dissents that are not only clear but also interesting and occasionally even fun did you find Justice Scalia's dissent and Morrison versus Olson persuasive I wasn't on the court I know you're a neck and your your head I didn't teach in that field I taught in a very very exciting field economic regulation and we didn't get I thought it was an excellent descent but I didn't read it until later so there we are many of like readings he's like this sense no no I don't know I know I write Adam and I I write it as santen first I think you know it's going to persuade them I mean it hasn't before I go home and say to my wife Joanne I would say well you know I've written it as satin you know it's I know I got it this time it really will and then she says she says I've heard that one before and and and then pretty soon that sometimes quickly sometimes I eyes shift from it will persuade them to it should have persuaded them and then from it should have persuaded them I said well I've written it haven't I I mean you know and who knows maybe there is someone who will gather benefit from it it it's pretty hard when you when you think through something carefully and then you I hope everyone's turned his cell phone off here this seems to be ringing so I'm gonna you know there's an old saying that a new justice makes a new Court have you noticed a lot of changes we've got to now well what's always nice to have new colleagues you miss the old ones I I wouldn't say it changes the whole court it's it's it changes some of the dynamics some of the group dynamics yeah like I guess it's it's fair to say it changes the court have you noticed a difference at an argument or even in more discussion and your conferences how's how's it different up there I I think the chief is a little more lenient heed conference but I think he'll get over that so he lets Justice Breyer talk I just think it takes a certain period in office to acquire the kind of arbitrary manner that is appropriate for a chief justice have you seen the new chief differential feels fine I mean we all get on well and and there is a little bit more discussion we don't know but I mean he's yeah I I like it I think it's fine I like a little bit more discussion it's marginally marginally more so it's more discussion after you have more interaction after everyone has their say yeah does that mean Justice Breyer does more talking I think it means all of us are able to do more talking okay there's a very good rule there for really any organization we've had this and most you know it in the conference that the rule is we go around in order and it starts with the chief and then justice Stevens Justice Scalia Justice Kennedy justice Souter justice Thomas Justice Ginsburg me and and and now Justice Alito we go in order and briefly and succinctly state our points of view and then there's back and forth discussion the rule is no one speaks twice until anyway everyone speaks once I was jr. so that benefited me and it still does but that's a very good rule I think it promotes good feeling I think everyone feels fairly treated and and no one doesn't know one goes without a set and I like it I think that works well and I'd say you're right and saying now back and forth there's a little bit more back and forth as long as you feel it's productive yeah we wouldn't you say you feel it's productively the former chief wrote a book in which he said that the conference is really a misnomer that it isn't it isn't an attempt to persuade one another it is it is mostly each justice setting forth his or her views and the major function of it is is not to change other people's votes because they come in with their minds made up but rather you take notes so that you know the theories that the other justices have of the case if you are so unfortunate as to be assigned the case you will know how to write it in a way that will get at least four other votes which is the name of the game right I'm not telling you this this this this was in the Chiefs in the Chiefs book and it was an accurate description and if you're under the impression that there is a major effort to persuade one another at these conferences you're mistaken in the days when I first came on the court we we were hearing twice as many cases as we hear today so in one week we would hear 12 cases we would discuss and decide eight of those cases on Friday morning we would discuss and decide those eight cases and vote on the cert petitions that had elated over the last week and be done by lunch so if you have these image of these philosophers you know reasoning with one another that this is not what is going on and I doubt that it is what could possibly go on with as larger group as nine and it's it's just just too cumbersome when I came to the Supreme Court from the Court of Appeals I I told my former colleagues there's good news in there's bad news up here the good news is you don't have to take every case you know on the Court of Appeals you have to take it it's an appeal from the district court the bad news is every time you take one it's in Bank all nine of you and boy you know when you settle you hated the in banks on the Court of Appeals it's so much easier to sit with two other judges and you can really you know knock the case back and forth and really you can't do it we look at people it's just not doable and and Holmes said that he said you know after the court went above five it just became a different enterprise I think Conference does I mean it use change sometimes I've seen views changing I've seen the way in which people see the case change people do listen to each other they're not and you can say a great deal in a short time I learned along the good lesson in a way from and it's worth from Chief Justice Rehnquist you soon pointed out it isn't the quantity of what you say it's the quality and you can say a lot in a few words where you're focused and thinking just about the main point that you're trying to explain to people so there doesn't have to be a long discussion and people do listen for a something to shape of you and and sometimes really sometimes not a law but but sometimes really change an opinion well on that I think we're going to have to say thank you to both of our justices and thank you all for coming

Channel: Patrick Ishmael

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Length: 95min 56sec (5756 seconds)

Published: Mon May 14 2012