Scalia Lecture | Justice Stephen G. Breyer, “The Authority of the Court and the Peril of Politics”

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If this were in front of a live audience, you know there would be at least one heckler yelling “Retire, bitch!”

👍︎︎ 3 👤︎︎ u/ProfessionalGoober 📅︎︎ Apr 08 2021 🗫︎ replies
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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.
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Channel: Harvard Law School
Views: 40,936
Rating: 4.8066916 out of 5
Keywords: Harvard Law School, HLS, Harvard University
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Length: 114min 26sec (6866 seconds)
Published: Wed Apr 07 2021
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