JOHN MANNING: Welcome. I am delighted to
introduce the 2021 Scalia Lecture, "The power
of the court," by Justice Stephen G. Breyer. Before I say a few words
about the lecture and about the speaker, I want to welcome
members of the Scalia family who are with us today-- Maureen Scalia, the Justice
and Mrs. Scalia's children, Ann Banaszewski,
and Gene Scalia, and grandchildren
Antonin and Megan Scalia. We're delighted that
you're able to join us. I also want to thank Dr.
Joanna Breyer for being with us this evening, and my thanks to
the wonderful staff at Harvard Law School for their superb work
in putting together this event. Now a few words about the
lecture, about its namesake, and about the person
here to deliver it today. The Justice Antonin
Scalia Lecture Series was established at
Harvard Law School in 2013 by an anonymous donor
to promote and advance our understanding of the
founding principles and core doctrines of the United
States Constitution. Speakers are drawn from the
subfields of political science, history, philosophy, law,
government, religion, and related disciplines. The person chosen to
be the Scalia Lecturer is a scholar or a figure
of high distinction, who through their work, research,
writings, and teaching elucidates the principles
of the American founding. It's personally very
meaningful for me to be able to introduce
the Scalia Lecture. Justice Scalia was, of course,
a deeply influential justice who stimulated many new and
productive conversations about the law and
the legal system. I think that's in part because
he understood and respected the laws' complexity. I was his law clerk,
and I was always struck by the framed embroidery
he kept in chambers that said, quote, "Nothing is easy." Because he knew that
nothing is easy, he loved debate, discussion,
and disagreement. He thought it was exhilarating,
and it was how he learned. It was a spirit he
brought to his chambers, to his many visits to HLS,
and to all of his friendships, and it's in that same
spirit that we convene each year the Scalia Lecture. I'm delighted that
Justice Breyer-- Justice Scalia's colleague and
dear friend, Justice Breyer, will give today's
Scalia Lecture. Before joining
the court in 1994, Justice Breyer, a graduate
of Stanford, Oxford, and HLS, had had a long and
distinguished career in public service and academia. He'd been chief judge
of the First Circuit, chair of the US
Sentencing Commission, Chief Counsel of the
Senate Judiciary Committee, and assistant special prosecutor
for the Watergate prosecution. He was also for many years
a member of this faculty, and his students included his
future colleague, Elena Kagan. Let me say that one
of the reasons I'm delighted that
Justice Breyer is here is that he and Justice Scalia
disagreed pretty fundamentally on questions of
statutory interpretation. Justice Scalia was a
textualist, Justice Breyer is a purposivist. And when they disagreed, it
was always with mutual respect and friendship. They listened generously to each
other, learned from each other, and I think that each
was better at his job because the other was there. Their warm and
productive relationship was a wonderful example
of how differences can be a source of strength
and not of division-- A way of productively working
out the laws' complexities together. On a personal level, let
me add that although I am in the textualist
camp as well, I have learned so much
about interpretation from Justice Breyer. He's brilliant, thoughtful,
sensible, and inspiring. He's also a great
human being, and I would be remiss if
I failed to mention his terrific sense of humor. There's a law professor who goes
through the court's transcripts every year and counts
the number of times each justice gets
the Supreme Court gallery to erupt into laughter. Consistently, Justice
Breyer leads the pack. And now, without
further delay, it's my pleasure to introduce our
distinguished speaker, Justice Stephen G. Breyer. Thank you, Justice Breyer. STEPHEN G. BREYER:
Thank you, Dean. Thank you. By the way, I didn't lead the
pack when Nino was around, I'll tell you that. But in any case, that was
a very nice introduction, and I think it's terrific,
really nice that you invited me to give the Scalia Lecture. Nino Scalia was a
good friend of mine. It's very nice that
Maureen is here and that Ann and Gene and the
children and Nina and Megan, the grandchildren
that they're listening to this. I'm just delighted. And Nino and I loved
to debate, discuss, and we'd go around
to law schools, or we'd talk to students
when we had the chance. And we try to explain
where we agreed, which was most of the time. And where we disagreed,
which was some of the time. And I used to say when we were
talking about the Constitution how quickly it
evolved over time. I'd say George Washington
didn't know about the internet. And he would say, I knew that. Good point. And then he would say, I
don't say my system's perfect, it's just that it's like
the two campers, he'd say. One sees the other putting
on his running shoes and says, where are you going? He says, there's
a bear chasing us. A bear chasing us? We can't outrun a bear. Yes, says the camper,
but I can outrun. All right, now that's
exactly what he would think, and I would think
perhaps the contrary. But anyway, the lecture,
it's a long lecture, and we'll have a
break in the middle. And the title is, "The
authority of the court, the peril of politics." All right, are you ready? Well, a few years ago, the chief
justice of the Supreme Court of Ghana came to our court. She was visiting. She wanted to learn how
the court had advanced and protected civil
rights in America, and she seemed very
interested in this question-- why does the American public
do what the Supreme Court says? She implicitly wanted to know
why or how the court could act as a check upon others in
government, even the president, particularly when there
is a serious disagreement. And that question, why, that
question remains important. Now if I put the
matter abstractly, our power, the court's power,
like that of any tribunal, has to depend upon the
public's willingness to respect its decisions. Respect even those decisions
that they disagree with and just respect them even
when they think a decision is seriously mistaken. The importance of
this respect matters most when the
decision of the court strongly conflicts
with the views of those in other branches,
particularly the president. Now in this lecture,
I'm going to expand on the importance of
the public's acceptance in safeguarding the
role of the judiciary. The first part will
provide context. It will set forth
several examples, illustrating an increase
in the public's acceptance of the court's decisions,
and that means an increase in the court's power. The second and
third parts, we'll discuss more directly
the court's related power to act as a check upon other
parts of the government. Now I'll illustrate the kinds
of checks that I have in mind, and I'll illustrate
too the court's power to check how that power
has grown over time, and I'll describe a few
related potential difficulties that may arise in the future. I'll then propose a
few steps of the court and the public could take
which might help overcome some of these problems. Throughout, what I say
reflects my considered views after a career as a law teacher,
a staff member of the Judiciary Committee, an
appeals court judge, a justice of the Supreme
Court for the last 27 years. All right, are you ready? Let's talk about the
court's power in general. Why is it that some
people will follow the suggestions, thoughts, even
the orders of other people? Now, many, many
years ago, Cicero described one answer to this
central question about power. He thought there were
three possible ways to assure obedience of
those who live in state. One, the fear of punishment. Two, the hope of rewards or
benefits, and three, justice. This last way, justice,
would convince people that those who govern
deserve their obedience. Whether Cicero's
view does or does not apply in general
to government, it does apply to the United
States Supreme Court. The court's power to punish or
to provide rewards or benefits is certainly limited. Its power to act justly,
at least in my view, does play a major role in
obtaining the public's respect and consequent obedience, and
the court's history illustrates just how that is so. Let me give a few examples
to support this view and explain what I have in mind. And in considering
those examples, it is important to keep in
mind how the law provides the court with at least
the legal power, not necessarily the practical
power, legal power. And that power finds its major
source in the Constitution, as well as in the views
of those who wrote it. The Constitution,
as you know, is a brief document-- it has
seven articles, 27 amendments. It creates a representative
federal democracy, a separation of governmental powers. Horizontally-- legislative,
executive, judicial. Vertically-- state, federal. Equal respect before
the law, protection of fundamental rights, and a
guarantee of the rule of law. The Constitution's
framers had every right to admire their creation, but
read Hamilton's Federalist Number 78. He says, one branch
of government has to have authority to assure
that the other branches act within the limits set
by the Constitution. Otherwise, the document
won't have much effect. The framers might
as well have hung it on the walls of a museum. So which branch
will have authority to determine what limits
the Constitution sets forth and when other branches have
gone beyond those limits? The executive branch,
the president? Well, there's a risk there
that the president would simply decide whatever he
does is consistent with the Constitution. Well, what about Congress? Its members, after
all, are elected. Well, that means to that
they understand popularity, but what happens when,
say, a criminal defendant or others benefiting from
constitutional protections are not popular? The Constitution--
indeed, law in general-- applies to those who are not
popular just as it applies to those who are popular. Can we trust Congress to protect
that latter unpopular group? What remains? The third branch, the judiciary. Well, Hamilton might
have thought that's good. The judges understand law. They're unlikely to become
too powerful because they lack the power of
the purse, and they lack the power of the sword. So the judicial branch, and in
particular the Supreme Court, should have the last word. And the majority of the other
framers agreed with Hamilton, and his view was
essentially that which John Marshall
and the Supreme Court adopted in the famous case
of Marbury versus Madison. But accepting that view was
not an inevitable thing, and it didn't become an accepted
view without a long struggle. Unlike Hamilton,
Thomas Jefferson was unwilling to give
judges the ultimate power to resolve constitutional
and statutory conflicts, particularly at a time of
heightened partisanship, and a judiciary
perceived as favoring Jefferson's political
opponents-- that's what they were then. Most of them were
appointed by Federalists. Indeed, Jefferson
once wrote, quote, "Each of the three departments
has equally the right to decide for itself what is
its duty under the Constitution, without any regard to
what the others may have decided for themselves
under a similar question," end quote. As far as Jefferson was
concerned, the less powerful the Supreme Court, the better. Now Marbury versus Madison,
which many of you know, not all, arose at the
time of the midnight judges John Adams,
a Federalist who just lost the
election to Jefferson, was a Democrat-Republican,
now the Democratic Party. Adams quickly nominated
several judges. The Senate within a few
days confirmed them, and all that remained
was for Adams to deliver their
commissions in time-- i.e. before Adams'
term as president expired, and Adams
failed to deliver Marbury's commission on time. So did that or did that not mean
that Marbury was not a judge? Well, Marbury brought a
case in the Supreme Court. Yes, the court to order the new
president, Thomas Jefferson, tells Thomas Jefferson to
deliver the commission. In stating the law, he
seemed like the correct. That law probably
required Jefferson to give him the commission. Still, the request put the
court on the horns of a dilemma. On the one hand,
suppose the court held that the law did
not entitle Marbury to his commission. That decision would
suggest to many that the court was
a weak institution and that it had
departed from what seemed to be the law
for fear the president would simply ignore
its decisions. That would suggest that
courts and maybe the law itself could not stand in the
way of a determined president. On the other hand, if the
court held the opposite, if it held that the
law did entitle Marbury to his commission, Jefferson-- remember he saw the
judges as his enemies and thought he was
certainly right-- Jefferson might continue
to ignore the court, and the resulting message
would be even more clear. The president was free not to
accept the court's decisions. Chief Justice John Marshall,
writing for a unanimous court found a brilliant way out. The court first held that
the law did, as many thought, entitle Marbury
to his commission. And it thereby showed
that the court believed as Hamilton believed that the
court could decide that action or inaction of the president. It could say it
violated the law, but the court also held
that Jefferson, not Marbury, won the case. And the reason was that
there was a statute that gave the Supreme Court the
power to hear Marbury's case, and it said that statute
was unconstitutional. In finding the law of
Congress unconstitutional, Chief Justice Marshall
adopted Hamilton's views. He strengthened the
norm of judicial review. He exercised the
court's authority to strike down a law
as unconstitutional, and he did it all in a
context strategically designed to avoid the risk
that the president would not do what the court ordered. After all, the president
won, and it thereby stopped the president
from threatening to undermine the court's
role in American society. Well, that's pretty well known,
but Marbury versus Madison is only the place
where the story begins. It doesn't show that a
president will always do what the court says. I've said that the
Constitution's words and the framers intent were
a source of the court's power only in part because neither
Hamilton nor any other framer has a good answer to
the critical question. The question was
asked by Shakespeare in Henry IV when
Hotspur, an Englishman, asked Owen Glendower, a
Welshman, who is a mystic. He says, Hotspur, I can call
spirits from the vasty deep. Glendower said that, I can call
spirits from the vasty deep. Hotspur replies, well so
can I. So can any man, but will they come when
you do call for them? All right, let's look
at a few examples. Let's take an example of
the court's lack of power. This is an old example. It was one of the
first occasions when the court and the president
found themselves in conflict on an important matter. And at that moment, in that
case, in that circumstance, the president prevailed. A tribe of Indians,
the Cherokees, lived in Northern Georgia. Treaties guaranteed them that
land, but gold was found there, and the Georgians wanted
the gold, they just took it, and they took control
of the Cherokees' land. Then what the Cherokees do? What you might have done-- they found a good lawyer,
[? Willard ?] Wirt. He filed complaints in court,
and eventually the issue of territorial control-- who owned the land-- found its way to
the Supreme Court, and the court
decided the question. And the court said,
Cherokees, you have the legal right to control that
territory and Georgia cannot. And what did the
State of Georgia do? Nothing. It ignored the court's decision. Well, what did
Andrew Jackson do? He was president
of United States. Nothing. Supposedly, he said John
Marshall's made his decision, now let him enforce it. Jackson and then his successor
sent federal troops to Georgia, not to enforce the
court's judgment, rather to remove the Cherokees,
and forcing many of them to travel on what was called
the Trail of Tears to Oklahoma, where their descendants
live to this day. Will presidents respect
decisions of the Supreme Court when they strongly
hold contrary views? That case was not
a very good sign. For a long time, justices
remained uncertain whether the court
could effectively enter a judgment when
others strongly opposed it. In 1903, famous justice,
Oliver Wendell Holmes Jr., he summed up the
problem in a decision, and that decision
in effect refused to enforce the 15th
Amendment's guaranteed that the former
slaves could vote. How could Holmes have done this? Well, here's what he wrote. He said, the court has,
quote, "little practical power to deal with the people of the
state in a body," end quote. And he added that the great-- interesting-- "The great
mass of the white population, if that great mass of
the white population intends to keep the
Blacks from voting," end quote, if so a court
decision to the contrary would be, quote, "an
empty forum," end quote. The power to redress
that evil, he thought, must lie in the hands of the
legislature and the executive. Well, that wasn't that long
ago, was it, a century ago. But at that time,
you certainly would have said, how far reaching is
the power of the Supreme Court? Oh, we saw the problem
very dramatically again in the 1930s, a struggle
between politics and judiciary and so forth. It focused upon the question,
but it didn't answer it. In the early 1930s, as you know,
the court had a big depression. It fell into depression,
causing enormous suffering across the nation. And a new president, Franklin
Roosevelt, was elected. He had a New Deal
legislation designed to help, but the court struck down
much of that legislation as unconstitutional. At that time, three
of the justices-- Brandeis, Stone, Cardozo--
called the "three musketeers" consistently supported
Roosevelt's legislation. Van Devanter, McReynolds,
Sutherland, Butler, called "the four
horsemen," opposed it. The two remaining justices,
Chief Justice Hughes and Justice Roberts,
sided with the opponents of Roosevelt's New
Deal, some but not all, not in every key case. Between 1933 and 1936, the court
overturned federal legislation at 10 times the rate
it had done previously. So many thought the court had
left Roosevelt's initial New Deal recovery plan in tatters. Harold Ickes, the
secretary of the interior, described the dilemma
in these terms. You either-- we
reform the court or we submit to judicial tyranny. In November 1936, Roosevelt
was re-elected in a landslide, the largest in the
nation's history-- 61% of the popular vote,
almost the entirety of the Electoral College. And viewing this
popularity as a mandate to continue building
the New Deal, Roosevelt created an
ambitious legislative agenda. What about the Supreme Court? What could he do about that? Well, in February
1937, Roosevelt devised a plan to reorganize
the federal judiciary. It included a provision
authorizing the president to appoint a new justice
for each sitting justice over the age of 70 and 1/2. And given the age of
then sitting justices, that proposal would
have given Roosevelt the immediate
authority to appoint six new justices to the court. Roosevelt publicly justified
this plan as necessary to meet the court's
burgeoning workload. He pointed to the large
number of cases denied through the certiorari process
and the age of the sitting justices, but most
people understood. The true object of the
plan was packing the court. From the start, there was
strong opposition to the plan, both in a strongly
pro-Roosevelt Congress and among the public at large. Many were afraid that changing
the structure of the nation's government, particularly
in a way that would weaken the checks and
balances that the framers had established, they thought
that was a bad idea, and they thought that a
majority of the public would agree with them,
but Roosevelt continued to press for its enactment. Then in 1937, the court gave
Roosevelt a key victory. By a vote of 5 to
4, it took the view that Congress did have the power
to regulate labor relations, Justice Roberts was
considered to have provided the key swing vote. That case, Jones & Laughlin
Steel versus National Labor Relations Board, was
soon seen as standing for a major change
in the court's general jurisprudential
approach. Instead of finding much
economic reform legislation unconstitutional, which
it had done during what's called the Lochner Era, it
would interpret the Constitution as granting the government
far more constitutional leeway to enact economic and
social legislation. This shift in jurisprudence, the
functional end of the Lochner Era, coupled with justice
Van Devanter's retirement at the end of 1937, put an end
to Roosevelt's judicial reform bill. No more court packing. It no longer seem necessary. Now scholars disagree
as to just what caused the justices to change course. Was it some said a switch
in time that saved nine? Was it calculated to avoid
Roosevelt's court packing plan, or was it simply the
coming to fruition of an internal long-standing
jurisprudential debate among the justices,
a debate that originated and continued
long before the appearance of the court packing threat? Maybe Justice Roberts knew. He was the one, his mind,
but others didn't know. So the court avoided
a politically-driven institutional change-- namely Roosevelt's
reform bill, it failed. The court remained a
nine justice court. But at the same time,
the court's driving jurisprudential views changed. So who won? Well, scholars can argue about
how much the court packing episode tells us about
the court's power. I'm not going to argue that. But the court packing
story is relevant here for another reason-- proposals have
been recently made to increase the number of
Supreme Court justices. I'm certain that
others will discuss related political arguments. For example, will what
goes around comes around? Are the nomination and
confirmation processes working well? New appointments
too closely reflect partisan political division? Has the court itself become
politically partisan? This lecture reflects
my own effort, however, to be certain that those who are
going to debate these questions and related proposals
also consider an important
institutional point. Consider it, namely,
how would court packing reflect and effect the
rule of law itself? To discuss this
institutional question, it's important to focus upon
more than the rights and wrongs of individual cases, however
important those cases are. When I or others
dissent, naturally I think the majority is
wrong, and sometimes I think they're very wrong. But discussion of
institutional change should include discussion of
certain background matters, such as the trust that the
court has gradually built, the long period of
time needed to build that trust, the importance of
that trust in a nation that values, indeed depends
upon, a rule of law. This lecture seeks
to supply background. And particularly, for those
who are not judges or lawyers, it will help facilitate
that discussion. Indeed, what I'm
trying to do is to make those whose initial
instincts may favor important structural change
or other similar institutional changes, such as forms
of court packing, think long and hard before they
embody those changes in law. OK, now let me
give you an example of what I was just saying of
how the court's power has grown. Let's jump ahead to 1954. In that year, the court held
that racial segregation-- that's the Brown--
practice through the South violated the 14th
Amendment's guarantees that the law has to
provide every person the equal protection of the law. OK, it's decision in
Brown v Board sounds fine, so what actually happened
next in, say, 1955? What happened in 1955? Nothing or virtually nothing. Hey, what happened in 1956? Oh, just about nothing again. Congress did nothing. The president didn't
do much, and the South complied only minimally
with the court's ruling. But in 1957, a federal
trial judge in Little Rock, Arkansas told the
state, you better now enroll nine Black students
at Central High, which was then an all-white school. At the time of the school
September opening, when the students were
to enter the school, the Black students,
a large hostile crowd surrounded the school,
and Governor Orval Faubus announced his opposition
to integration and sent the state police
to prevent those nine Black students from entering
that white school. It was a standoff that
lasted several days. Journalists from across the
world came to cover the event. The question on
everyone's mind was, what would the president
of the United States do? Well, Jimmy Byrnes,
governor of South Carolina, he was a former
Supreme Court justice. He resigned to administer our
economy in the Second World War, and he was a
moderate on race. He told President
Eisenhower, here's what you should do-- nothing. He said to the president that
if you send troops to Arkansas, there might well be
violence, and you might have to occupy the whole South. You have a reconstruction,
a second Reconstruction on your hands. At best, he said, the South
will close all schools. But Herbert Brownell,
the attorney general, and Eisenhower's wise counselor,
took the opposite position. He told the president, you
have to send troops, at least to protect the rule of law. And in the end, the
president decided to send 1,000 parachutist
members of the 101st Airborne Division. And at that time, Americans
knew who they were. They recognized that
division, the 101st, as heroes of World War II
of the invasion of Normandy, of the Battle of the Bulge. Well, Eisenhower did
that expressly of course. He knew who they were. And those parachuters took
those nine brave Black students by the hand, and they walked
together into the white school. The court won. It won the
confrontation, didn't it? Yes, it did, but it
won that confrontation with the cooperation of the
president of the United States. And more than that,
though I wish it did, the story does not end here. The soldiers couldn't stay
at the school forever. After several months,
they withdrew. Local authorities then
tried to resegregate the school, and then
the Supreme Court in the case of Cooper v
Aaron, which I recommend you, he rejected the
attempt to resegregate. It told them, integrate now. All nine members of
the court signed up. But local authorities, do
you know what they did? They didn't. They wouldn't comply. They moved in the
opposite direction. They closed the school, just
what Burns had predicted. And that year, no student,
neither white nor Black received a high
school education. Well, we have a problem. But in my view-- and it
turned out to be true-- the situation could not last. Remember, many of us
will, or read about that that was the time of Martin
Luther King Jr., a bus boycott, of freedom riders. The nation had awakened
to the injustice of racial segregation. And after quite a few
years racial segregation-- quite a few-- racial segregation
imposed by law ended in the South of the
United States imposed by law. I once asked Vernon Jordan,
a great Civil Rights leader who recently died, whether
the court had actually played a major role
in ending segregation. After all, even in
the court's absence, wouldn't there have
been enormous pressure to end that invidious system
from Civil Rights leaders, from the rest of the country,
indeed from the entire world? His reply to me,
he says, of course, the court was
critically important. Congress, after all,
had done nothing. At the very least, the court
has provided the catalyst. With the help of
others, it had succeeded in dismantling a significant
pillar of, if not racism, at least racism's legal face. The court had played
not the only role, but one essential role in
ending legal segregation. With the help of the president,
the help of Civil Rights leaders, and with the
help of a great number of ordinary citizens,
the court had won a major victory
for constitutional law, for equality, and above
all, for justice itself. Justice itself. The justice of the court's
integration decisions, helped, in my opinion, to
draw respectful and increase the authority of the court. I can't prove that statement,
but I certainly believe it. All right, let me go up
to a further example. Let's look at Bush versus Gore,
the decision in the year 2000. It's debatable whether
that decision actually determined who would be
president of the United States, but it isn't debatable that many
Americans thought that it did. At the very least, the decision
was a highly important one, potentially affecting
vast numbers of Americans. The court divided 5 to 4. I didn't agree
with the majority. I wrote a dissenting opinion. But Harry Reed,
the Senate leader, a Democrat who
probably also thought that that decision
was wrong, later said that the most remarkable
feature of the decision could have been a feature on
which very few had remarked, and that is that despite the
importance of the decision, despite the belief held by
probably half the country at least that it was misguided. The nation followed the
decision without violent riots, without the throwing of
stones in the streets. And the losing candidate, Al
Gore, told his supporters, don't trash the Supreme Court. Now these facts suggest that
obedience to the court's decisions respecting
those decisions even when they are wrong has become close
to habitual in this country. Americans have found it a
normal attitude to take. Indeed, they find it
normal to the point where they rarely realize that
it is simply a custom, a habit. Just as the air around us
unnoticed allows us to breathe, so this habit allows in
our country, the rule of law itself to flourish. You could argue that Americans
have to readily accept court decisions that are wrong. What about decisions finding
in the constitutional right to keep handguns? What about a right
to have abortions? What about decisions finding
in the First Amendment a prohibition against
certain political campaign contributions, or, or, or,
the list can go on and on. Its length and
content will likely depend upon who it is
that writes the list. Well, whether particular
decisions are right or wrong, however, is not the issue here. That's not what
I'm talking about. Nor is the validity of
different approaches to legal or constitutional
interpretation at issue. Rather, I'm discussing
the general tendency of the public to respect and
to follow judicial decisions. Courts that the public
tended to ignore would not have seen
their interpretations of law applied
generally, and those who disagree with a particular
decision focusing upon that decision
might think, great, but that what then
would have happened to Americans who advocate
unpopular political beliefs? Or to those who practice or
advocate minority religion, or to those who argue for an
end, who did argue for an end? To legal segregation
in the South-- what would have happened to
defendants in criminal cases too poor to afford a lawyer? To those whose houses
government officials wish to search, say,
without probable cause? To those whose property
government wished is seize with little or no compensation? The basic principle of law,
I once heard a professor here Paul Freund say, in law,
what is sauce for the goose is sauce for the gander. And that's also true of
the public's willingness to accept judicial
decisions with which that public disagrees. My examples warn against taking
that acceptance for granted. Well, if we cannot take-- we're on part two now-- the court as unchecked, and if
we cannot take that acceptance by the public for
granted, how can we build or maintain
a system that makes acceptance more likely? That question is particularly
important for a Constitution as interpreted gives
unelected judges the power to check elected officials,
by, for example, telling the president or
Congress that a desired action or statute violates the
Constitution or other governing law. Well, one way of doing
so is for the court to apply legal rules or
practices that will minimize the number of cases
likely to produce strongly felt political disagreement. And a brief look at
what the court does will make clear why the
number of court decisions that create this kind
of disagreement-- major political disagreement--
although they're important, they're comparatively
few in number. The one thing most of
the cases, the court decides concerning
the interpretation of words in a federal statute. Does the word "cost"-- this
is typical [INAUDIBLE]---- cost, for example, in a statute
requiring a losing party to pay an education-related
lawsuit's costs, include the cost of experts
that the winning party hired. Members of the court
sometimes disagree about the proper interpretation
of these statutes, but normally those
disagreements reflect differences in methods
of interpretation that are not
political in nature. Different jurisprudential views
lead to different results. Nearly all judges use the
same basic interpretive tools. They consider and they read the
statutes' text, its history. Look at the relevant legal
tradition, the precedents, the purposes of the values
that underlie the words, and the relevant consequences. And different judges may tend
to give different weight to one or another of these tools. Some judges, for example-- and I
think Justice Scalia was a good example-- they'll place predominant
weight upon text and precedent, and others will
place greater weight on purposes and consequences. Judges may also differ
about, for example, just what a statute's purpose
is or just what consequences will likely flow from a
particular interpretation. These differences
will only rarely have a major effect
in the political realm or on the relation between
court and president. For even if a
president very much disagrees with the court
about the interpretation of a statute, he can always
ask Congress for a new law that will take his position. And that fact, whatever
the results of it, often transfer disagreement
from a judicial arena to a political arena. I can't say always,
because some statues may be unusually difficult,
maybe impossible for political
branches to change-- those forbidding
discrimination, for example. But still, disagreements
about the meaning of words in a
statute often become after the court's decision
a political matter for the political branches
and not the court to resolve. For another thing,
many cases that involve the executive
branch concern the meaning and legality of regulations
that an executive branch has promulgated, and
some of these cases may raise important questions
about the president's power. But more often, they
will require the court to determine
further, for example, whether the executive
has followed proper administrative
procedures, whether it's properly taking account of
abuse, of interest in citizens, whether the justifications
that it's given are sufficiently reasonable. A court determination
that a president's regulatory or administrative
decision is unlawful will only rarely lead to serious
conflict between the court and the president. For normally, the decision
does not prevent the president from redoing the
action, but this time following proper procedures. For example, the court recently
found unlawful two executive branch decisions, and one
concerned the executive's desire to put a question about
citizenship on the census form, and the other revoked an earlier
executive branch program that allowed certain young
undocumented persons to remain in this country. The executive lost both
cases in the Supreme Court. It's still remained
open to the executive, once again to decide
whether it should take these or similar
administrative actions, this time following the
requisite procedures. Well, that at least isn't
the judicial matter, the redoing of it. Though serious, it does mean
that serious disagreement between court and president
is, let's call it mute. A serious conflict between
court and president is more likely to occur
when the court makes a constitutional decision. For example, when it applies
to presidential elections, the constitutional
limitations that accompany the Constitution's
highly general words like "freedom of speech,"
"freedom of the press," or simply "liberty." When different
branches interpret these constitutional
words differently, the court will normally
have the last word. Neither the president
nor Congress can lawfully change the court's
constitutional interpretations, certainly not easily. Two features of
constitutional interpretation still reduce, though
they don't eliminate the risk of overt conflict. The Constitution generally does
not tell citizens what they can or cannot do. It mostly tells governments
what they can or cannot do. So there and by it sets limits
that confine government action, and most actions that
citizens want governments to take or not to take
fall within those limits, and they can do it. Question of democracy-- the
court policing the limits is a kind of border patrol. And given the wide scope
of decision-making that the Constitution leaves to
democratic political processes only a comparatively few-- they can be important--
but only a few decisions will have the kind of major
public ballot box effect that leads elected
officials to react strongly. Also, many constitutional
questions of the court decides concern who
has the authority to take a particular action. Is it the state government
or the federal government? Is it Congress or the president? They don't concern so much
those cases whether government can take that action at all. And when the court answers
only those "who" question, it doesn't foreclose the
desired government action. It channels it. It sends it to
the right channel. And whether it wins there or
not is a different matter. I should also note at one
time the court explicitly applied a special legal doctrine
called the "political question doctrine," and that doctrine
interpreted the Constitution as prohibiting the court from
intervening in matters that were overtly
political in nature, such as the drawing of the
boundaries of the district from which state legislators
or members of Congress would be elected. The court, however,
later held that districts within a single state must
have equal populations. In doing so, it eroded the
force of the political question doctrine. But still, the court has
avoided entering too far into what once was called the
political thicket by deciding, with a few exceptions, that
the court would not otherwise police the drawing of
district boundaries, at least not very often. Despite the decision
related features that limit the risk of
serious overt conflicts, major important conflicts
between court and president can and do arise. Let's take as an
important example constitutional questions
about the scope of protecting basic
liberties in time of war-- conflict, court, president,
can arise there all right. But consider Cicero-- let's
go back a few thousand years. He once said, "inter
arma enim silent leges." I used to think
that I translated that is as, in time of war-- when the cannons roar,
the laws fall silent. But somebody pointed out to
me Romans didn't have cannons. It really means, in the midst
of war, the laws fall silent. President Franklin
Roosevelt's attorney general, Francis Biddle, brought
this statement up-to-date during World War II. And he said, quote,
"The Constitution has never greatly bothered any
wartime president," end quote. Implying maybe he didn't
bother at least at the time. Maybe after the war is over. These words imply
serious limitation upon the court's wartime
protective power. Let's go back to World War II. Before that, it was often worse. The court considered
the constitutionality of a presidential
order that deported 70,000 American citizens
of Japanese origin from the West Coast to camps-- rather like prison camps-- in the Intermountain region. And the court upheld that
order by a vote of 6 to 3. Today, most of us think the
majority was clearly wrong. It had committed a
serious injustice. Why did it reach that decision? Well, joined in
fact by Frankfurter and Black and Douglas, people
considered liberals later on. Justice Black apparently
had said others at the conference in
Hirabayashi, a related case, something like this-- well, somebody has to win
this war, run the war. It's either Roosevelt
or it's us and we can't. Today however, the
court's refusal to become involved in highly
important war-related or security-related matters
has declined significantly. Several years after
World War II ended, the court-- the United States
was again at War in Korea, and President Truman, in
order to assure the continued production of a wartime
necessity, steel, tried to take over
privately-owned steel mills. Of course thought about
that matter, heard the case. It held that the president
in the circumstances was acting unconstitutionally. The president accepted and
followed the court's decision. Now you could downplay the
significance of that case, the steel seizure case. After all, the
president was Truman, and he was far less popular
than Roosevelt had been, and the Korean War
was not World War II. But you still
can't deny the fact that the court's action does
not fit Cicero's description. The court showed
that it could impose a constitutional check upon the
president even in time of war. Now the court further
abandoned Cicero in four cases arising out of prisoners of war
held at Guantanamo Bay in Cuba. The plaintiffs, detained after
their capture in Afghanistan, were not popular-- that's an understatement
in the United States. The defendants-- the president,
the secretary of defense-- were more popular and
certainly far more powerful, but those circumstances
did not prevent the court from deciding each of the four
cases in the plaintiff's favor. They included a case
in which the court held unconstitutional a
congregational statute denying the prisoners'
access to the courts. The executive
branch in each case accepted the court's decision. The president, George
W Bush, said, we'll abide by the court's decision. That doesn't mean I
have to agree with it. These, along with
the earlier examples, help to illustrate an
evolution in the views of presidents,
branches of government, judges, and public opinion. The public now
expects presidents to accept decisions
of the court, including those that are
politically controversial. The court has become able to
impose a significant check, a legal check upon the
executive's actions in cases where the executive
strongly believes it is right. All right, now let's look
first sentence of part three, and we'll have a break,
but check in the future. Suppose that I could
stop my account here. And were that so, I
would have described a history in which the
American people gradually adopted customs and habits
that led them to respect the rule of law,
even when the law included judicial decisions with
which they strongly disagree. People disagree with the
decision some of them, but go look how they react
in some other countries. Turn on the television. That history would
also be a history of a court that gradually
expanded its authority to protect an individual's basic
constitutional rights, even during times of war. I would certainly not claim that
this history's theme has always been one of progress. After all, the United States,
including its judicial system has had many ups and
downs, serious ones, including slavery, a
Civil War, segregation, and non-repudiated decisions-- now repudiated decisions. Repudiated such as Dred Scott
v Sanford, to name only a few. Still, the public has
accepted a rule of law. And so far, the public
seems to have maintained its confidence in the court. A Pew Research poll
shows, for example, that in 2019, 62% of Americans
held a favorable opinion of the court, which is
about the same percentage as was there in 1985. Now I'd love to be able to
tell this story to end it here but I can't, for matters
are not that simple. Nor is the future ever certain. We cannot now know what future
historians will write about the public acceptance
of the court let alone the rule of law. Are there significant
features of American society that threaten acceptance of a
rule of law, at least in so far as judicial decisions embody
and explicate that law? There are at least
two, which to my mind provide cause for concern. Now this is a perfect time for
a break because with a question, as I've just asked, you may
want to know the answer. In which case, we will have a
few minutes to think about it and then we shall return. Let me go back to my question. I asked, are there
significant features of American society
that threaten acceptance of the rule of law, at least
insofar as judicial decisions embody and explicate that law? Well, in my mind
at least, there are two which come to mind
that provide, let's say, cause for concern. For one thing, we see a growing
public suspicion and distrust of all government institutions. The Pew Research Center reports
in 1958, 73% of all Americans trusted the federal government's
decisions most of the time. By 2019, that percentage
has fallen to just 17%. At the same time, we've
seen a gradual change in the way the press
and other institutions that comment upon
judicial work understand the judicial institution. Their understanding
is important, for it is only
through their writing that the vast
majority of Americans learn just what courts,
including the Supreme Court, do. If we go back a few
decades, for example, there were very few, if any
of those commentators when they reported the decision
who would have mentioned the name or the political
party of the president who nominated the judge to office. Today, the press certainly
does so as a matter of course. And going further, it
simply and systematically labels the judge as, quote,
"conservative" or, quote, "liberal." And the Senate
confirmation process has changed over the
past two decades-- maybe two or three. Become more partisan. Senators far more often
divide along party lines, and they often
describe a nominee-- at least some do--
that they oppose is too liberal or
too conservative. And what they say reported by
the press to their constituents reinforces the view that
politics, not legal merits, drives Supreme Court decisions. I think, or I fear,
that these are more than straws in the wind. They reinforce the thought
that's likely present already in your minds. The Supreme Court justices are
primarily political officials, or let's call them Junior
League politicians rather than jurists. The justices, of course, tend
to believe the differences among judges mostly reflect not
politics but jurisprudential differences, but that's
not what the public thinks, Or at least most of it. As I've said, I believe the
jurisprudential differences do account for most-- maybe you could go
as far as say almost all judicial disagreements. At least that is
what I have come to believe as I've worked at
the court over many years. But let me explain in
somewhat greater detail why I think that the word
"political" is the wrong word to use to describe even the more
controversial court decisions. So this is what I think
decisions are not. When I hear the
word "political," I think of my work at the
Senate Judiciary Committee where I worked for
Senator Kennedy, and sometimes staff members
would as a kind of game imagine that Senator
Kennedy would simultaneously receive two calls-- one from the secretary of
the interior and the other from the mayor of Worcester. Well, which would answer first? Almost all of us would
bet the mayor's call would be answered first. Why? Because many of the senator's
constituents live in Worcester. And that in a sense is politics. Who elected you? Are you a Democrat
or Republican? What position is more popular? Where are the votes? Politics in this basic sense
is not present at the court. Well, what about ideology? Are you and Adam Smith
free enterpriser? Are you a Marxist troublemaker? What ideology to you
as a judge follow? Now that's a closer question. But if I find myself
deciding a case on the basis of the
general overall ideology, I know I've done
the wrong thing, and I believe my
colleagues think the same. And all try to avoid a case-- deciding a case-- on the basis
of ideology rather than law. Well, if what I said
is right, why are you different political
groups so strongly support some persons for
appointment to the court and so strongly oppose others? Well, I've come to believe
that those groups support individuals who hold a
particular judicial philosophy, and that philosophy,
at least they think, will likely lead to
results that favor that group's political outlook. Will a judge who places
major interpretive weight upon literal text, for
example, over time come to legal conclusions that
we can characterize as more conservative? Some do think so. I tend to think
maybe, maybe not. It depends upon the case. Politics may lead
political groups to favor a particular
appointment, but once appointed, once he's
there, once she's in office, the judge decides
the case in the way that he or she believes
the law demands. That may disappoint those
who made the appointment. President Theodore Roosevelt
once said after his appointee Oliver Wendell Holmes Jr.
made what the president thought was a wrong decision. He said, I could carve a
judge with more backbone out of a banana. In a word, whatever the
political forces that lead to appointment, whatever
those political groups think will happen, the
judge once appointed decides what he or she
thinks the law requires-- that's my experience. So why, if I'm right, are
decisions of particular judges so predictable? Why are there alignments of the
same judges on the same side of controversial questions? Alignment normally,
I believe, reflects similar judicial
philosophies, and they may reflect similar
views as to the meaning and comparative importance
of particular constitutional provisions. Some judges emphasize
text in history, some emphasize purposes
and consequences, some see parts of
the First Amendment as more intimately
tied to government's basic democratic
structure than do others. These kinds of factors,
key in almost every case, can explain the alignments
and predictability at least more easily than can
reference to politics. And political groups
support or presidents appoint those whose
jurisprudential philosophy will, as I said, they believe
help them in the long run, so be it. Judicial philosophy,
so far as I've said, is not a code word
for "politics." But wait, I do have to hesitate. I hesitate. I want to qualify
what I just said. I better. For one thing, the cases
that come before our court are typically difficult, with
much to be said on both sides. And the key legal text
relevant to a decision is often a
constitutional text using such highly general words
as "liberty" or "the freedom of speech." And within broad
limits, those words do not dictate
their own content. And where a matter
is open, a judge's background, experience,
personal views about laws'
objectives, the courts' roles, the nation's
life, that is so, that can make a difference. Does it matter, for
example, I did grow up in San Francisco in the 1950s? I went to a public high
school, I studied at Stanford. I've lived the life I've lived. Yeah, of course it matters. I cannot jump out
of my own skin. No one can. And by the time one
reaches middle age, he or she normally has
views about a profession, about this nation. Those views, sometimes too
general even to articulate, can play a role in a
difficult close case. And the fact that
judges on our court may have somewhat different
general views I think is not such a terrible
thing in a nation of 330 million people
of every race, religion, national origin,
and point of view. For another thing,
politics is not just about voting for a
particular person or a particular
legislative program. It is also about basic
political philosophy, and it is sometimes
difficult to separate what counts as a
jurisprudential view from what counts as political
philosophy, which in turn can shape views of policy. A judge, for example,
might believe strongly in federalism or free enterprise
or for that matter, government regulation of business. Indeed, he or she might believe
that the Constitution works well for this nation because
it reflects one or more of those basic views. What about those views? Are they jurisprudential,
or are they a form of political philosophy? Hard to say. To what extent do they
shape views of policy applicable in particular cases? Even harder to say. Further, the court's decision
seen at a highly general level tend to reflect certain major
changes in the political world, but they do so slowly
after long periods of time. Consider the New Deal
and the major changes it made in the role of
government, particularly the federal government. Eventually the court
modified and shaped its case law, particularly
its constitutional case law, to account for and adapt to
those changes, but it since did that after the retirement
of several older judges and the eventual
appointment of new judges-- eventually all the
judges by New Deal presidents Franklin
Roosevelt and Harry Truman. Those judges likely
thought they were replacing outworn and incorrect legal
principles with other sounder principles, and
they likely thought that they were following the
Constitution's basic effort to create a workable form
of democratic government that would last
hundreds of years. But it is difficult to deny that
the court's overall approaches reflect to a degree the changing
political views of a majority of this nation's citizens. One could argue that
it is a good thing that the country revised its
jurisprudential principles every few decades to reflect
new generations and changing circumstances. Jefferson certainly thought
so, but that kind of change does connect jurisprudence
with politics. At least separating
the jurisprudential from the political aspects
or causes of this slow change is not an easy task. Finally, there are
institutional considerations. The court properly
pays attention to those considerations. For example, every
time it refuses to hear a case on
the grounds that it is unlikely to be able to
provide legal guidance that will help the lower court, but
sometimes those considerations do border on the political,
particularly when they temper or depart
from important practices well-embedded in
the task of judges. We'll consider one
such practice-- judges should not
and virtually never do pay particular attention
to public opinion. They must decide cases
on legal grounds, not on the basis
of what is popular. Why did I just qualify what
I said with the word like, well, "virtually?" Why not say "absolutely never?" Well, let's go back to
Brown v Board of Education. The court was properly concerned
that the South would not follow its holding requiring
racial integration. Perhaps the South, irrespective
of what the court said, would not end legal
racial segregation. For quite a few
years thereafter, the court carefully chose
which cases to take-- sometimes avoiding cases that might thwart
the court's Brown ambitions. Take, for example,
those that ask the court to set aside laws that
forbid interracial marriages. Eventually the court
in Loving v. Virginia did set aside those laws
as unconstitutional. But the long delay, a part
of its enforcement strategy, I suspect, reflected its
views about the state of public opinion. One could easily say
that here the court has entered the sphere of politics. It's hard to say. Is that right? Consider too Justice
Black's statement of the court conference,
where justices were discussing Hirabayashi,
the case related to Korematsu. Remember he said
something like, well, someone has to run this war. It's either us or Roosevelt,
and we can't do it. That statement later produced
in Korematsu a terrible result, but what about the
statement itself? Think about it. Just ask is, it a
purely legal statement, or does it reflect politics,
and to what degree? Hard to say. The present court
is often described as having a conservative
majority, and the court's decision in the 2000
presidential election case, Bush v. Gore is often
referred to as an example of its favoritism of
conservative causes. But the court did
not hear or decide cases that affect political
disagreements arising out of the later 2020
election, our recent one. It did uphold the
constitutionality of Obamacare, the health care program
favored by liberals. It did reaffirm
precedents that favored a woman's right to an abortion. It did find unlawful
certain immigration census and other orders,
rules, or regulations favored by a conservative president. But at the same time, it
made all the decisions that can reasonably
be understood as favoring
conservative policies and disfavoring liberal policy. Well, these considerations
convinced me that it is wrong to think
of the court as just another political institution,
and it is doubly wrong to think of its members as
junior league politicians. But given, one, the
highly general language of the Constitution; two,
the ambiguous relationship between jurisprudence
political philosophy and policy; and three, the
inevitable conscious or unconscious impact
of a human beings' background upon his or her
basic professional views, you'll find a total
divorce between the two is not quite right either. So a judge may think the word
"politics" the wrong word to apply to the relationships
I have described. Or a judge may believe that
any such relationship is at the very least a nuanced-- highly nuanced in ways
I've tried to describe, but that is not the
impression the public is likely to receive. And if the public
believes to the contrary, if they think we're
just politicians, we should not be surprised
if political parties too see the nomination of a judge
an opportunity to extend their political influence. Nor should we be
surprised that proposals for structural
change of the court become a topic of
general public concern. If the public sees
judges as politicians in robes, its confidence in the
courts and in the rule of law itself can only diminish. Diminishing the court's power,
including its power to act as a check on other branches. Well, if that is so, at
least if we prefer following the law more than just
what we see sometimes on television elsewhere,
if that is so, what can we do to
stop the attrition? Let me sketch a few thoughts
about what judges themselves might do inside the
court, as well as what I believe others might do
outside in our broader society. I mean, these are not
cure-alls, nor are they some dramatic insight, but I'd
like to bring them together. What can we do internally, we
justices of the Supreme Court, to help maintain the confidence
and respect of both others in government and
the public in general that the court has
gradually obtained over the course of time? As Hamilton pointed out, we
have neither purse nor sword. We can't easily reward or
frighten our fellow citizens. We have to obtain their respect. We have to rely
upon decisions that reflect both practical
wisdom and justice. I'd emphasize five
features of our work. I'm emphasizing what's already
there, but five features of our work that
reflect this aspiration in which judges normally
try to keep in mind. The first thing I think
is what my father would have told me-- do your job. I'd add that in doing your job-- I'm talking to myself-- you do your job. I would add that in
doing so, don't look for or expect popularity. The job, I mean, I
like in the film Argo, I like the CIA man who's done a
great thing at the end freeing all kinds of people who
had been held captive, and he's got an award but
the award to be kept secret. And he looks sad, and his
boss says to him, well, if you wanted applause, you
should have joined the circus. That isn't the job of
the constitutional judge. Our job is to interpret or
to apply the legal phrases that we find either in a statute
or in the Constitution itself. And because the cases
that we hear normally in certain instances in
which different lower court judges have decided a
legal question differently, the scope of the words,
their ordinary meaning, and their application
is normally uncertain. As I've said, judges
have several tools available to them
with this interpretive work-- the ordinary sense of
words, the text, the history, the tradition, the precedents,
the purposes, the values that underlie a
constitutional provision, the consequences that are
related to the objectives. Judges vary in the emphasis
they give some of these tools compared with others,
but virtually every judge will use each of these tools
on one or another occasion. An appellate judge's
work then consists of reading briefs, other papers,
listening to oral argument, attentively following the
discussion between the judges and the lawyers, discussing
a case with colleagues, writing a draft opinion,
submitting that opinion to colleagues for their
views and criticisms, and releasing the
opinions of the public, along with any
concurring or dissenting views of other judges. The decision making process
does not and should not consider popularity,
support, criticism, or the future opinions of
business groups, labor groups, or media, or anybody else. The most those groups can do to
influence the result of a case is to present their arguments
directly to the court, usually in the form of
[INAUDIBLE] curiae briefs, and their views are therefore
relevant insofar as they translate into legal arguments. My experience of more than 30
years since the appeals court as a judge has shown
me that once men and women take
the judicial oath, they take that oath to heart. They are loyal to
the rule of law, not to the political
party that helped them secure their appointment. Second, what can we
do, which we try to do? Clarity. For a Supreme Court justice,
more than good manners is an issue with clarity. Clarity and writing is a
professional necessity. It shows a clarity of thought. Clarity helps
convince the reader that the judge has
decided the case according to reason and the
law, not according to politics or caprice. At the same time, we
have to keep in mind the nature of the
audience that will take a particular
interest in a decision-- a bankruptcy
decision, for example. We'll have a more technical
readership than an opinion about freedom of expression. An opinion that will have
a broad public audience requires writing that is
simpler and more direct than does an opinion
about bankruptcy. Three, the deliberation. Deliberation, as
others have said, is not a conversation
that doesn't seek to produce a decision. It isn't gossip, it isn't
praise, it isn't indignation. For a group of judges, such
as our courts justices, deliberation has a goal. It involves weighing
the arguments for and against different
possible interpretations or applications of a
phrase, with the goal of arriving at a decision. It is very tempting
to believe that there is a general difference in the
kind of deliberation undertaken by political officials or by
the people than that of judges. The first concerns and
action to be undertaken. The second concerns the
justice of an action that already was taken. By a judge-- that's
what Aristotle taught-- evaluated the justice or the
legality of past actions. Now this decision
does often help characterize the work
of appellate judges, particularly in courts appeal. Judicial opinions
typically place importance upon characteristics of actions
that took place in the past, but that characterization
is not so helpful when you apply it to
the Supreme Court, particularly in decisions that
help determine the confidence that the public has or will
have in the judicial institution itself. Decisions about the
lawfulness of abortions or of a homosexual's right to
work without discrimination rest upon analysis of
prior facts and law, but they nonetheless have
more to do with the future than with the past. So reconsider the problems of
implementing integration along with the legal need to make
the phrase "equal protection of the laws" meaningful. How could the court
have done the latter without taking account of the
consequences of its decisions, along with the importance
of successful implementation of, say, Brown? Yet this kind of problem,
infrequent though it may be, helps to explain the legal
need to consider consequences and the resulting fact
that because the court must in part look to the future,
opponents of the decision may argue that it is acting
like a legislature, not a court. Well, when deciding
this kind of question, as is true of other
legal decisions, judges draw upon their
own jurisprudential views of proper interpretation and
perhaps of the nature of law or of the court itself. And as I said,
different basic views can lead to difference
of opinion among judges as to proper outcome, but
the future is still primarily what's at issue. How does deliberation
work in this kind of case? The oral arguments can
help a justice make up his own mind or her own. Moreover, the questions that the
justice asks at oral argument will sometimes help
other justices understand his or her approach
to the case, as well as the problems he or she may
have with particular proposed solutions. Ordinarily, however,
deliberation among the justices begins at a conference held
once or twice each week. There, the justices will
discuss the cases more formally, and they will try to arrive
at preliminary conclusions. The conferences
are confidential, only the justices participate. Each justice in turn present
his or her point of view, and then there may be responses
and more general discussion. The discussion is rarely
completely open or far ranging. Normally a justice's
point of view rests upon use of the tools I've
previously mentioned-- text, history, tradition,
precedents, purposes, values, et cetera, consequences. Normally each judge
arrives at the conference with a point of view
but remaining open to the possibility
that it will change-- that's important. Perhaps the most difficult part
of a deliberation for a justice is not formulating
a point of view, as much as it is
demonstrating a capacity to change that
point of view when faced with the views of others. The success of the deliberation
may depend upon a cliche-- listen to others. When I worked in the Senate
on Senator Kennedy's staff, I learned one method,
often successfully, that helped bring together
those who deliberate. When someone else set
forth a point of view, you can ask him to
explain it in more detail. And when he does so,
quite often he'll say a few things
that you agree with-- maybe just details. But then you can suggest
work with this agreement, and let's see if it will provide
a basis for greater agreement, and often it does. The Senator used to add
in speaking to his staff, and don't worry about
who gets the credit. Credit is a weapon. If you reach
agreement, there will be enough credit to go around. And if you fail, who
wants the credit? Certainly the court
is not the Senate. It is not a political
institution, but that advice does
remain relevant. Four, compromise. Because a judge's decision
rests upon principle, it is often difficult for
a judge to compromise. In many foreign
courts, the court issues a single opinion in a
case without published dissent, compromise being necessary,
may through force of habit become easier to reach. But the American system finds
its origin in that of England, where each judge would present
his own opinion, giving his own reasons for reaching
a particular result. Here in America, we've taken
something of a middle course. I don't think a unanimity
requirement would work well in this country. At least it would
not tend to make the public believe that the
court was always unanimous. Many would think the
disagreements are still there but they're just hidden,
and that attitude would not increase trust in the court. Regardless, our system
allows published dissent, and a draft dissent will often-- maybe not often--
sometimes anyway, "sometimes" is a better word-- lead to a tentative majority. Sometimes it will lead
a tentative majority to change its mind, sometimes
to change the outcome. More often though, a
dissent leads a judge writing a majority opinion
to improve that opinion in light of the criticisms
that a draft dissenting opinion makes. Although members
of our court can write dissenting and
concurring opinions, they still have to try to
find at least five judges who will join the same opinion. There has to be an opinion for
the court to guide the public. And that fact often means
that compromise is necessary. Consider, I think,
an indirect form of compromise, which called
often, Cass Sunstein's word, "minimalism." There are different ways
to reach a compromise. First consider the
use of approaches that we can group together
under the term "minimalism." Sunstein has carefully
described and analyzed it. He's categorized it,
emphasizing that it can consist of deciding
a case on narrow grounds when broader grounds
were available, deciding a case
with less emphasis upon the basic jurisprudential
principles that underlie it, or deciding a case with some
combination of those two things. Deciding a case on
narrower grounds can serve several
different purposes. Consider, for example,
the well-accepted practice of resting a decision,
if at all possible upon the interpretation of a
statute than the Constitution. That practice in part
reflects the difficulty of changing an
erroneous interpretation of the Constitution by enacting
a constitutional Amendment. Congress, however,
can far more easily change what it thinks to be
an undesirable interpretation of the statute. It can just enact a new statute. To take another example,
suppose the court has to decide whether the Fourth
Amendment requires police to have a warrant to
search a Verizon cell phone communications,
called tower records, in order to see whether
a suspicious person-- the one who owned
the cell phone-- was at a particular place
at a particular time. Does it matter that
the police already knew that the owner at the
time was in a public place-- the street, grocery
store-- or should the court decide more broadly, writing
that the Fourth Amendment required or didn't require
a warrant regardless of those specifics? The fact that widespread use
of cell phone technology is new can make a difference. That's because Americans decide
how new technologies affect old values in complicated ways. Consider, for example,
the question surrounding free speech and the internet. Tocqueville pointed
out that Americans surround this kind of a question
with a clamor of debate. Different groups-- law
enforcement groups, civil liberties groups,
the press, state, or local officials,
academics, many others will take different
positions, and legislatures will have hearings,
and different agencies or local governments may
try out different solutions. The court, in my view,
often understands less about the
relevant possibilities than a lot of others do. And if so, the
court will do best when it comes in last after
other parts of government have reached statutory
or regulatory solutions. It can then determine whether
those solutions which others have democratically reached
fall within the broad limits the Constitution sets. In this kind of
circumstance, the court is often well-advised to
keep interim decisions narrow in order not
prematurely to restrict the arena in which more
democratic forces are at play. I mean, what minimal
approaches can do it help provide compromise. They can bring together
justices considered conservative and justices considered liberal. Suppose, for example,
the court tries to decide a case
involving state laws that require family planning
centers, including religiously-based centers,
to explain to clients how they can obtain an abortion. That case could
involve a complex issue of constitutional law with free
speech, religion, and abortion. But suppose the lower court
didn't decide a related issue decision of which might get
rid of the need to decide those constitutional questions. A minimalist approach might
simply remand the case to the lower court. They could first decide
that related issue. And the resulting decision
may seem far too narrow, focusing almost exclusively
upon the individual case, and it might seem
very shallow saying, next to nothing about underlying
constitutional jurisprudence. But it might bring together
five justices and maybe more, while leaving them
free to assert their different underlying
constitutional views on another day or
in another case. Let me give you another example,
Bond v. The United States-- that was interesting. The chemical weapons
treaty sets forth a broad definition of forbidden
use of a chemical weapon. Congress enacted that
definition into law in the form of a
criminal statute. Then the federal government
prosecuted and convicted Carol Anne Bond for violating
that statute when she dusted a skin irritating chemical
on a doorknob of the house where a certain woman
lived whom she disliked, and she disliked her because
she was having a love affair with Mrs. Bond's husband. That case might
have led the court to determine whether the
Constitution set certain limits upon the president's power
to enter into treaties or set certain limits
upon Congress's power to implement treaties. But the court decided
the case narrowly, simply holding that Congress
had not intended the statute to reach that kind of run of the
mill assault cases such as Mrs. Bond's. That narrow holding
through broad acquiescence among judges who
perhaps may have held different views
about the broader constitutional questions. Now I'm not saying that
compromise is always desirable or minimalism is
always desirable. After all, I've written in
highly controversial cases, abortion cases decided
5-4 where I thought compromise was not desirable. And moreover in Brown,
the court's holding was broad not narrow,
deep not shallow. And that opinion, written
broadly, was both necessary and did get all nine members
and helpful to the nation. I say only that minimalism will
sometimes quite properly help the court find a
majority, perhaps more than a simple
majority, by allowing judges who hold different views
on broad legal questions to come together in
answering narrowly. Now let's consider a second
approach, direct compromise, because a narrower
decision is not the only form of compromise. A justice always can
swallow a dissent. He or she may just
join a majority opinion that you disagree with. And sometimes you can write-- I'm just doing this
because I think it's important to
have a court opinion. Or you don't might
not write that. You don't have to
write in every case. You can write a dissenting
opinion or a memorandum and circulate it in the
court and not publish it. You can decide to have
a view about granting a certiorari petition
revealed to the public, a dissenting view, or not. You can refrain from writing
a concurring opinion that would otherwise
set out just where and how you agree or disagree
with the majority's view. In most of these instances,
the decision not to dissent gives a public an impression
of greater unanimity than actually exists. Now the difficult
question for me for a judge is, when should a
judge be willing to compromise in this way? The answer is not
written in a treatise. With something like
that, the judge has to turn to his or to her own
conscience to find an answer. But when you do
that, I think there are at least two general
factors to take into account. First, you could ask, who
is the primary audience for the decision? Are there judges,
lawyers, public? Is that audience more likely to
need the position of the court, or is it interested in
the personal opinion of different judges? It's only one Constitution. There is not a
Constitution, according to me or according
to Justice Scalia or according to Justice
O'Connor or according to any other justice. It is what the
court decides, not what the individual justices
think that typically has the greater importance. Too many dissenting
opinions, you risk diminishing the public's
confidence in court decisions. And that's why, as I
said, many European courts don't allow dissenting
opinion for that reason. Well, but on the
other also, why is it difficult to find compromise? In some cases, the
judge will find that principle or conscience
prevents him from agreeing with a view that isn't his. Now Europe, compromise
certainly should have seemed possible in this case. There were state rules
designed to protect-- well, against the spread
of a serious disease involving church to have
services inside but not outside the church. Why didn't all members agree? Either they can
or can't do that. Maybe you can just limit inside
but not permitted entirely. And the answer to
some such questions are you get a lot of decisions,
different opinions in a case because it's just
too much a matter of a conscience for particular
judges, particular individuals. Or if you want a case-- if you want a case
that we're always more directly involved there was a-- Congress enacted a statute
requiring cable companies to carry over the air
television station. Had to carry them on the cable. The cable company argued that
violates our freedom of speech. We don't have to carry it. Four members of the court
thought the statute valid. The reason was it served
a valid antitrust purpose. Four members thought
it was not valid, and their reason
was, it didn't serve a valid antitrust purpose. One judge thought,
they're right. It doesn't serve an
antitrust purpose. But that judge also
thought Congress could enact the
statute anyway, so that judge wrote a
separate concurring opinion stating just that. And the separate
opinion meant 4-4-1-- 4-1-4. The majority's opinion lacked
the majority rationale. I was the judge who wrote
that separate opinion. So why did I write it? Probably because I taught
antitrust right here for many years,
and I just found it with that experience
too difficult to accept the other
four's antitrust rationale that I thought was wrong. In other words, I
wrote an opinion because that was an
example of what Holmes once called a "can't help." Your conscience just won't
allow you to join an opinion that you think goes too far. And what counts is too far? It may depend upon
the background of the individual
judge, and it may not be readily apparent to the public. So similarly, a judge who's
expressed in an opinion of view say even of a fairly minor
technical matter might hesitate to join fully a
majority opinion that expresses a different view. Because you might think,
at least the legal public, thinks he's being inconsistent
or changed his mind. And he really hasn't
changed his mind, and he doesn't want
to be inconsistent. And so he thinks he has to
write a concurring opinion, even though that
shows disagreement, because he thinks it's important
to show personal consistency. It's true. Personal consistency
is important because it emphasizes the fact
that a judge follows his or her view of what the law demands. In doing so, it helps to
show that judges are not free to decide cases
any way they wish. And further, when a
judge joins her suggests the likelihood of joining
an opinion by sending that memorandum to
the writing judge, that memorandum
typically lists changes that the dissenting
judge would like to see a writing judge make. A practice of suggesting too
many changes or changes that are too minor can work against
the possibility of compromise. All recognize that
an appellate court, having reached a
tentative decision, has to delegate some
discretion to the writing judge as to just what words
to commit the paper. And the question is,
how much discretion? If you think about these
examples for a while, you will see why there
is no treatise that tells a judge when or
how much or in what circumstances to compromise. Too little
compromise, as I said, risks substituting the judge's
individual views for the views of in law set out by a court. On the other hand, were
there never or only rarely a dissenting
opinion, the public-- or at least the
informed public-- aware of jurisprudential
differences among different
judges would begin to doubt the sincerity
of decisions that don't reflect that diversity. In either circumstance,
the public's confidence in the court itself as a
legitimate interpreter of laws is threatened. Where do we find
the happy medium? Oh, that is a
conscience-based decision that each judge has to make. But I can say that I believe
the more different are the jurisprudential views among
the single court's judges, the more important compromise
among them becomes. Fifth, and finally,
broader perspective. Consider the minority of
cases that concern important, deeply held social or political
beliefs, such as abortion or freedom of religion. These cases often
concern far more than technical legal issues. They also touch upon widely-held
beliefs, customs, habits, and practices,
thus, a large part of the general
American public takes a greater than ordinary interest
in what the court decides. Well, how should the court
decide that kind of case? Judges in such a case
begin with the raw material I've set out many times--
the text, the analysis, the history, the tradition,
precedent, and so forth. And they transform those raw
materials into a judgment. That judgment is only
to a minor extent a judgment about what
has happened in the past. It is more likely an
instruction in respect to law and judicial action
aimed at the future. And more than much of the
justices' work, it does not simply concern the actions or
means for bringing about an agreed upon ultimate end. It often brings into question
the nature of the ultimate ends that the judge or
justice must seek. Where are the
justices and judges to find those ultimate ends,
those ultimate objectives which must guide them as they
transform that raw material? I believe they find them
in the Constitution itself. And in particular,
they find them in the values that underlie the
document and its provisions. That is what those who speak
of the Constitution's spirit normally mean. The racial integration that
the court demanded in Brown, for example, is not simply
a logical conclusion drawn from the
constitutional provision and insists upon equal
protection of the laws. It is also an
affirmation of a value that underlies that provision. Indeed, it is an affirmation
of justice itself. Judges can sometimes find
that the framers' efforts to write a Constitution
would prove workable over the course
of perhaps centuries provides an ultimate
end that will help resolve individual cases. I suspect that the
court opinions seeking to end segregation in the South,
as well as those that ratified New Deal efforts to
create different kinds of federal government-related
institutions reflect this ultimate
objective as well. But let me provide a
more specific example of how underlying constitutional
purposes can inform ultimate interpretive ends. Unlike some nations, we do not
maintain an absolute commitment to secularism. Rather, two provisions
of the Constitution govern the relation of
religion and public life. One, as you know,
forbids prohibition of the free exercise
of religion. The other prohibits the
enactment of laws respecting the establishment of religion. These provisions,
for example, allow Congress to open its
sessions with a prayer, but they forbid government from
subsidizing religious training. It is far from
obvious, or was how they would apply to
religious monuments placed on public property. Say, the government's placing
the tablets of the law-- the Ten Commandments-- on the
grounds of the Texas State Capitol or on the walls
of a Kentucky state court. And the court had to
decide this question about the Ten Commandments. And at least in my
view, it decided required us to look to the
basic primary objectives of the religious
clauses themselves. I thought that those
clauses in part reflect a compromise made in
the 17th century in England. That compromise helped put an
end to the wars of religion. Essentially it said, you are
free to practice your religion, teach it to your children,
and I'm free to do the same. If so, that goal was to minimize
social conflicts growing out of religion, and
it is essential, I thought, to reach that
goal in the United States where adherents of many
different religions must live together. When trying to find an answer
to the specific legal question of religious monuments
of the Ten Commandments, I thought it necessary to
put considerable weight upon that ultimate
religious clause objective. Now I could say more
about that example and give you other examples. They are controversial
in their details. But I used examples
only to suggest that reference to basic
underlying constitutional purposes can help answer
difficult interpretive questions. Because the Constitution
itself seeks to establish a
workable democracy and to protect
basic human rights, reference to those
purposes also moves court decisions in the direction
of Justice with a capital J. In this way, not in
seeking popularity with one group or another,
the court can preserve-- perhaps augment-- public
confidence in its authority. All right, let's look
outside the court. What can people
outside the court do to help maintain the public's
confidence in the courts and the laws' authority? Well, I said in response to
the Ghanaian chief justice in response to her
questions, I said, a nation's willingness
to follow the law and to respect the courts is
a matter of custom and habit. Those habits, including
a willingness-- they include a willingness
to follow judicial decisions with which you disagree and
that may affect you adversely and which may be wrong. After all decisions,
5-4, somebody's wrong. Every month, I see illustrated
Americans' willingness to respect the court's authority
and how that willingness helps keep our nation together. I keep in mind the
fact that we are a nation of nearly 330
million people of every race, every religion, many different
national origins, and holding virtually every
possible point of view. I regularly see from the bench
those highly diverse groups of people trying to work out
their differences through law rather than in the more brutal
ways-- that's why I referred to looking at television. I then understand
the founders' hope that the Constitution
would last and become, as I think it is, a
national treasure. So what can we do who are
not lawyers or judges? What can they do? What can we do? This custom to maintain it,
this custom, this treasure? Judges and lawyers
alone cannot succeed. There are, after all,
329 million Americans who are not lawyers
or judges, and they have to understand the need
to maintain that habit, and they have to accept it. Well, voluntary. So we have to explain
to our children and to our
grandchildren, you have to explain what this is about,
and we hope that they too will understand its importance. So when I described
to students, as I tried to do so fairly often,
what I think we can do-- in fact, all of can do who
are not judges, not lawyers-- I attempt to emphasize
three general directions that our efforts might take. The first, most
obvious, repeated often, concerns education. Those future generations
have to understand how our government
works, they have to understand and know
that they will be, willing to be part
of that government. They need to know what
the rule of law is. Now from the time of King
John and the Magna Carta, the rule of law
offers protection against government
action that is arbitrary, capricious,
autocratic, tyrannical. And not too long ago,
every high school student would take a class
in civics, where they'd learn this and more. Today, many schools do
not teach what was once called 12th grade civics. And studies show, for example,
that in 2014, only 23% of American students
in the eighth grade were proficient in civics. As for adults, two years
later, 2016, only one in four Americans could
name the three branches of the federal government. That's not just a pity. If we want to maintain our
democracy, it is a mistake. Justice Sandra
O'Connor worked hard with an organization
called iCivics to help correct this deficiency. And like many others,
I think we have to, we must pay attention to
the teaching of civics. What we can do so in a way
that does not hide the evils-- for example,
structural efforts to perpetuate racial segregation. But at the same time,
it provides the students with an education about our
efforts, past and current, to embody in
working institutions the Constitution's democratic
and other idealistic goals. The second thing I emphasize
is about participation in the public life of a
nation with a highly diverse population that rests
upon the rule of law. There are many different ways
to participate in public life. You can serve on a school board,
a library committee, an arts council. You can participate in a
neighborhood improvement project, help teach
children to read, work for the improvement
of parks and playgrounds. You can vote, you can campaign,
you can run for office. The possibilities are endless. In some respects, however, the
possibilities for participation have declined. School districts, for
example, have consolidated. The number of school boards
has declined from about 84,000 in 1950 to about 13,000 in 2010. The number of jury
trials has declined-- that's a good way
to participate-- but the number of
jury trials is down. In New York State, for example,
over the last 25 years, the number of jury
trials has fallen by 50%, from about 40,000
to about 20,000. And that fact does
diminish the opportunity for ordinary citizens
to participate in and to understand
the role they have to play in our judicial system. And of course, others
have written about, and they've written at
length, about the social cost of too much time spent
watching television or surfing the internet, engaging
activities that separate the watcher from public life. I add, when speaking
to students, that my reason for hoping they
will participate in public life grows out of my daily work
with the Constitution. That document foresees
their participation. Without it, the Constitution
and the democratic system of government that it
creates will not work. With participation,
the individual will better understand that
system and how it works. My hope and belief
is that participation through that effort
and understanding will lead to greater confidence
in government, including the court. Now the third factor I
emphasize includes practice. The Constitution creates methods
for resolving differences through participation,
through argument, and debate. Through free speech,
through a free press, and through compromise. Students and adults
alike, however, have to practice the skills
of cooperation and compromise to learn them and to keep them. A few Americans
practice cooperation and compromise more or better
than Benjamin Franklin did. Here is what he said to convince
the Constitutional Convention that they should
adopt the Constitution itself, many parts of
which you've heard. He said, quote, "I agree
to this Constitution, with all its faults. I doubt too whether any other
convention we can obtain may be able to make a
better Constitution. For when you assemble
a number of men, you have the advantage
of their joint wisdom, you inevitably [INAUDIBLE]
them with those men all their prejudices,
their passions, their errors of opinion,
their local interests, and their personal views. From such an assembly, can a
perfect production be expected? No. I consent, sir," he said,
"to this Constitution because I expect no better. And because I am not
sure that it is not the best, the opinions I
have had of its errors, I sacrifice to the public good." So there, we see cooperation
and compromise at work. Students can
practice these skills through cooperative projects at
school and by working together after school, and adults
too need practice, and that is one reason why
I was sorry that the decline in the use of juries. I'm just sorry about that. When I hear students,
as I often do, decry the divisions within
the country is too deep, I ask them to remember
the constitutional need for participation, for argument,
for deliberation, for efforts to convince others, for voting. All of those typically involve
cooperation and compromise. I asked them to ask themselves
whether they themselves have practiced using these
democratically-based tools-- education, participation,
practice, and cooperation, and compromise aimed to build
public trust in the workings of our democratic institutions. Albert Camus, an author I
very much admire, in the play helps us understand
why that trust, as well as why a rule
of law is so important. At the end of his
book, the narrator explains why he has recounted
the history of a plague that ravaged a wrong. And perhaps that brings to
mind the Nazis in France. Because, he says, I want readers
to know how the people of Oran reacted, for better or
for worse, to that play. Because I want them to
know what a doctor is, a person who, without
discussion or theorizing, directly and simply brings
help to those who need it. Above all, because the
plague germ never dies, it goes into remission,
lurking in the attics, in the file cabinets,
the closets, only to reemerge and again,
send its rats or the learning or for the misfortune of
man into a once happy city. I like that because the rule
of law, at least as I see it, it expresses is an
important weapon. Though it's not our
only weapon, but it is one weapon in our continuous
efforts to fight that plague germ. I'm an optimist. The rule of law has
weathered many threats, but it remains sturdy. I hope and expect that the court
will retain its authority-- an authority that my stories
have shown was hard won. But that authority, like the
rule of law, depends on trust-- a trust that the court is
guided by legal principle, not politics. Structural alteration
motivated by the perception of political influence can only
feed that latter perception. Further eroding that trust,
there is no shortcut. There's no shortcut. Trust in the courts without
which our system cannot function requires knowledge. It requires understanding. It requires engagement. In a word, it requires work. Work on the part
of all citizens. And we must undertake
that work together. Thank you. JOHN MANNING: Thank
you, Justice Breyer. That was a wonderful,
exceptionally engaging, and important lecture. And I want our audience to
know that it will be published under the title, "The authority
of the court and the peril of politics" by Harvard
University Press this September. Let's take a moment
and give Justice Breyer a virtual round of applause. What a terrific Scalia
Lecture that was. We've got a lot of
questions from the audience. And Justice, I hope we'll
have the opportunity to ask you two or three
of those questions. The first one is this-- how have the political
divisions in America today affected the Supreme Court? STEPHEN G. BREYER:
Well, I think it makes people more nervous
about more politics invading the court, though
I don't think it really has, as I said. I think most people in
public life feel this way. Learn more about it,
students, and try to overcome the divisions. When I worked in the Senate
and when I was confirmed, I was nervous being confirmed,
but that was at a time when it was not
as many problems. But there were still 17 senators
on one side of the table and me on the other side. And maybe I didn't like
some of the questions. Well, I understood
because I worked there. A Senator asks the
questions that he thinks his constituents want asked. And if it doesn't, too often, he
won't be a senator much longer. And so it isn't a question
so much of convincing the senator-- some but not so much-- convince the constituents, and
that's why I say, let's begin. I mean, people can compromise. They can agree. They have for years. There have been worse times in
America, so let's get going. And I think some
try to and you do. And I say, you're
worried about it before you start
convincing others and want to compromise
on something or want to get people agreeing
and trying to work out things. Hey, look in the mirror
and be sure that that's what you're doing too. JOHN MANNING: Great. Thank you, Justice Breyer. Here's another question. Based on your belief of
the separation of politics from the court's
decisions, what questions should a nominee to
the court be asked, and which should they answer? STEPHEN G. BREYER:
Well, that will depend on what the
senator-- they should answer what they're asked, obviously. And what is asked depends on
what the senators want to ask. Which, as I say, in turn is
a function of constituents. So I usually say in
talking about the process, I use the same joke all
the time, but it is true. For me, I was confirmed. I was nominated. I was the nominated person-- I was not the nominating person. I was the confirmed person,
not the confirming person. So asking me to talk
about that process is a little bit like asking
for the recipe from chicken a la king from the point
of view of a chicken. All right. So I've said a little bit about
it, but I can't go much beyond. JOHN MANNING:
Thank you, Justice. One last question-- should
we accept the proposition that public acceptance
of judicial decisions is a per se good? We can imagine a Supreme
Court that reinstates Lochner or that so dismantles the
voting rights that we cease to have a meaningful ability to
elect a government that is not led by the same
political party that controls the Supreme Court. STEPHEN G. BREYER: Well in
this case, in this country, I think what I said. I think it is a necessary thing. And why do I think that? What I say to the students,
which is something I believe, of course there'll be decisions
which you disagree with. Indeed, very strongly. I mean, my goodness. And that's true whatever
your politics are. Of course there are. Well, we've accepted
decisions in this country that I certainly
don't agree with and others don't agree with. There's always something
that different groups don't agree with, and it
isn't just they're so anodyne. Sometimes they're
not anodyne at all. OK, but before you come
to the conclusion-- and that's why I used Bush
v. Gore because that's one I didn't think was
a very good decision, but others thought it was OK. And in any event,
I said, what I tell the students is,
I understand when I tell you these boring things. Like think about
what you're doing. Learn how to cooperate,
try to convince others, talk to the other people. Try to form compromises
and agreements. I know that sounds boring. And when I say it is
a very great value to accept decisions
with which you disagree. And when I told the president
of the Ghana court, I told her, my goodness, I said, the place
to begin is in the villages. And until they're willing
to accept decisions with which they disagree
and which could be wrong, you will not have a rule of law. And if you try not
to have one, first, I would like you, as
I've said in the talk, go turn on the television
set, and go look at what happens in countries
that try to do without it. So of course, of course, I think
you have to accept decisions with which you disagree. Not really-- Hitler. What about Hitler? Well, we don't have
Hitler, and that's a bridge maybe you should-- I have no idea. That's not the
question you prefaced. JOHN MANNING: Justice
Breyer, thank you for delivering the
2021 Scalia Lecture, "The authority of the court
and the peril of politics." It was really engaging
and illuminating, and we're very grateful
to you for sharing your time and your
thoughts with us today. Thank you, Justice Breyer.
If this were in front of a live audience, you know there would be at least one heckler yelling “Retire, bitch!”