Supreme Court Justice Stephen Breyer

hello hello happy belated Constitution day everybody so it is my honor to welcome you all here tonight to this Constitution Day event for what I think is a for many of us a once in a lifetime kind of event I just hope you're all as excited as I am to have a sitting Supreme Court justice here at our school [Applause] if that's even possible but to really get things going I'd like to introduce to you the president of Rhodes College she's only in her third year here but I think she has demonstrated a love for this place a love for this community and she's shown us that she's the best at what she does so please join me in welcoming president Marjorie Haas [Applause] oh good evening what a pleasure to have you all here I am delighted to welcome you here on behalf of Rhodes College and seeing out this room full of people from all corners of our campus as well as all corners of Memphis reminds me of the crucial civic responsibility we have as an institution of higher learning our duty to model the disinterested search for truth and the pursuit of wisdom has perhaps never been more important to tonight we gather not just in honor of a man but in honor of an institution in honor of the constitutional democracy that protects and preserves our individual liberties and enshrines justice as a communal value and aspiration our distinguished guests will be introduced by dr. Tim Hubner the Armagh oath Steinberg professor of history at Rhodes College and associate provost dr. Hubner joined the Rhodes faculty in 1995 and has been widely recognized for the excellence of his teaching and his scholarship among many other accolades dr. hübner was named the 2004 Tennessee professor of the year in 2015 Tim led the college's efforts to bring the late Justice Scalia to Rhodes and we are incredibly honored to have had two of our nation's leading jurists grace our campus in recent years dr. Hubner is himself a noted constitutional scholar and were grateful for his leadership in arranging tonight's program please join me in welcoming dr. Tim Hubner [Applause] good evening Thank You president Haas it is my great pleasure to welcome you to our campus for our annual Constitution Day lecture some will note that we are marking Constitution Day a bit late this year US has already been said it was actually September 17th that the Constitution was signed but any commemoration even a late one should be cause for both celebration and reflection so first a few words of celebration make no mistake the Constitution of the United States is worth celebrating its structure divides and separates power ensuring that no one branch or no one person can abuse that power it puts the national government and the states in constant dialogue with each other allowing States to serve as justice Louis Brandeis put it as laboratories of democracy while ensuring that individual rights are protected by the nation's highest court it features a Bill of Rights where these rights are explicitly stated leaving no doubt as to whether or not our society values such cherished liberties as religious freedom freedom of speech or freedom of the press we should celebrate the Constitution finally because it is one of only a handful of texts that all Americans hold in common no matter where your family came from no matter where you live no matter which medical party you identify with we are all included in the weed people language that begins this enduring two hundred and thirty two-year-old document but commemorations are also occasions for reflection one of the fundamental ways to reflect on the Constitution is to be aware of what it says and that involves actually reading it which I invite you to do please if you have not already done so pick up a complimentary copy before you leave tonight special thanks to Professor Dan Cullen for providing these also helping us to reflect on the meaning of the Constitution particularly its amendments are the students and professor Carl Erikson's digital art class professor Erickson's students produced a series of posters that you may have noticed when you walked in they present the words of the amendments in wresting and compelling ways so if you didn't notice please take a look on your way out our speaker tonight of course will especially help us to reflect on the Constitution and on the Supreme Court that it established but before I introduce him I want to extend special thanks to all of those who have helped make this event possible our sponsors include the office of academic affairs the Department of Political Science the Department of History the Jack Miller Center for the teaching of America's founding principles in history and the Lynn and Henry Turley Memphis Center our team of organizers includes Jenna Wade nickiemoore Kim Bennett and Kristen hunt from the Development Office Matt Guerin and Charlie Kenny from the communications office and Ikes lows from Campus Safety thanks to all of them and their staff for working so hard on this I also want to acknowledge our generous partners at st. Jude Children's Research Hospital who today hosted doctor joanna breyer a retired clinical psychologist dr. Bryar is the author of when your child is sick a guide to navigating the practical and emotional challenges of caring for a child who was very ill we thank dr. Sean Phipps chair of the psychology department at st. Jude along with our own faculty liaison to st. Jude Professor Gary Linda Questor for helping to organize her visit and we are honored to have dr. Bryar here with us tonight before I introduce dr. Breyers husband I do want to lay out what will happen next when Justice Breyer comes on stage you will be able to take pictures for the first two minutes of his presentation but after that there should be no photography Justice Breyer will speak for about 25 or 30 minutes and after the lecture Justice Breyer and I will sit down together and I will ask some questions which we have solicited in advance from some of our students faculty and staff and now to help us reflect on the Constitution and the Supreme Court and what they mean in modern America and in the modern world it is my pleasure to introduce to you our guest a native of San Francisco Stephen Breyer graduated from Stanford went to Oxford as a Marshall scholar and graduated from Harvard Law School in 1964 he taught law for many years as a professor at Harvard Law School and at the Kennedy School of Government he also worked as a Supreme Court law clerk for Justice Arthur Goldberg as a Justice Department lawyer in the area of antitrust he was an assistant Watergate special prosecutor and chief counsel of the Senate Judiciary Committee in 1980 he was appointed to the US Court of Appeals for the First Circuit by President Carter and he became chief judge in 1990 in 1994 he was appointed Associate Justice of the US Supreme Court by President Bill Clinton Justice Breyer has written books and articles about an administrative law economic regulation and making democracy work judges view a book about the US Constitution he's also the author of active Liberty interpreting our democratic constitution his most recent book is the court in the world American law and the new global realities published in 2016 and that book will be the subject of his talk here tonight he and his wife have three children and five grandchildren Justice Breyer it is worth noting graciously agreed to speak to us tonight despite a busy schedule last night he was in North Carolina and tomorrow morning he and his wife will head back to Washington so he can take his seat on the bench on Monday morning the first Monday in October we were honored to have him here with us this evening please join me in welcoming Justice Stephen Breyer [Applause] thank you very much well thank you very much as lovely introductions and thank you break sitting toes and and thank you for being a river caught our congressman is here we have federal judges and state judges and and the faculty and my goodness and all of these students you realize I don't tell anyone Memphis madness is about to be going on don't all leave at once there we are and I haven't been to Memphis is where I have liked and I love looking at the river I love my bowl of gumbo I love this this campus is beautiful and the students were grading I've spoken to I mean my goodness thank you very much I even mentioned my regulation book my god do you know what the Los Angeles Times somehow a reviewer got ahold of that book I don't know why it's pretty technical and here's what he wrote he said in Alice in Wonderland of Alice emerges from the pool of Tears with the Dormouse and the Dormouse begins to read Humes history of England out loud why are you reading that says Alice because says the Dormouse were wet and this is the driest thing I know husbands before Breyer wrote this book he said well I've tried to be more interesting here I will talk about one aspect of a changing Court and the aspect of the changing Court in respect to a changing world which is the International part and the way I started I sort of felt like many of us feel I mean you hear these words every day globalization interdependence multinational well this is the liberal arts college you'll understand it I mean I feel like in the shark Charterhouse of Parma you know the heart of the hero is Fabri still gone go and he is out there at Waterloo and he's young boy really and he's fighting and there's smoke all over the battlefield and the bullets are flying around and Napoleon is going back and forth on his horse and Bob Reese is thinking to himself you know something really important is going on I wish I knew what it was and that was sort of my view and I heard these words and graduate I looked into it more and thought about it more I think well we're tempted to think something I think is wrong we're tempted to think well there's globalization over here and then there's community and localism and tribalism whatever and these are two forces in conflict well maybe for some people that is how they see it that is not how I see it at the court I want to show you something and what I want to show you with a few examples is that this world today I think is a world characterized by both that are not at war with each other but we particularly professionals have to be able to deal with a world where both are important now when I came to the court 24 25 year ago gosh a long time ago when I came to the court I mean I said some things about international law and I got a professor got up and said name one that's important to you you know I had a hard time but because most very few cases involved anything international anything beyond our shores some but not many I have no problem today it's really risen to 2030 min % sometimes more where you have to know what's going on beyond our shores in order to solve problems statutes constitutional interpretations local we are a local court you might all think oh well yeah we are though we interpret statutes we interpret Constitution we interpret federal law which by the way I don't know if the congressman will tell you this but federal law is only a tiny part of law in America almost all law is state law family law criminal law mostly yeah business law you name it it's state we're only dealing with federal in our court and so we're limited but what I want to show you is not that what I want to show you is what has happened in the court in respect to matters beyond our shores suddenly coming right in to these local decision makings and requiring them to think about it I'll give you a two or three I have more in my book I've tried to be less dry than the book about but in any case that's another subject but there we are okay so let me pick two or three and I'll show you what's happened one which is a glamorous and interesting and important not always so much involves national security I mean go back wartime conflict the basic rule from the Romans on was best said by Cicero he said something like ennum ARMA legis Celente or something I translated that to an audience and said well that means when the cannons roar the law falls silent and so somebody immediately pointed out that the Romans didn't have cannons it's sort of wrecked my example but nonetheless you see the point you see the point and that was in America really the law for a very long time go back to Adams on the alien in the Sedition Acts courts didn't get involved try the Civil War I mean we understand it was tough for President Lincoln my goodness I was tough but still he did not necessarily got thing I mean he he would put people in jail at the drop of a hat not personally but the generals or his secretary of state called in the British ambassador or one day and said you see that button I can push that button and I can have anybody I want in New York thrown into prison you see that one I can push that one and have anyone I want in Indiana thrown into prison tell me he said does the Queen of England have such power mm-hmm oh of course the court did get involved eventually in a couple of cases after the war was over after it was over quite a different matter but was pretty much the attitude I mean go look sometimes through the history of the First World War where President Wilson suppress speech I would say right left and center I don't want to overstate it but that seems fair court didn't do much a few dissent or let's jump to World War two where 70,000 American citizens of Japanese origin were put removed removed from the West Coast and putting two camps prison camps in the Intermountain region mm-hmm you know who was for it or old war and he said it was the worst thing I ever did you know who was against it J Edgar Hoover that name means something to some of us he said don't do it he says the FBI can handle this well it got to the Supreme Court Korematsu I met him once Korematsu he was it's interesting he was an older man at that point feisty guy and he was our next door neighbor in Cambridge her father had been the head of the ACLU in San Francisco used to play poker with my father the ACLU by the way wouldn't support him when he started off started off representing Korematsu but they did by the time he got to the Supreme Court it got to the Supreme Court the Supreme Court where there was black Douglas frankfurter the great liberals and for Matsu thought well you can't do something like this in America and that Supreme Court six to three voted to uphold it and that was 1944 nobody thought the Japanese were going to invade San Francisco in 1944 and according to frankfurter the first thing that black said who was running the conference that morning he said well he said to the others somebody has to somebody has to run this war Roosevelt or us and we can't well was that black or was that Cicero I mean there we are and yeah three descended the descents I think we're right people read them now Murphy Roberts Jackson but that was what happened then the tide began to change it began to change probably with the steel seizure case where President Truman was told by the court black that he could not during the Korean War seized the steel mills I won't go into the details there but I've always thought in reading that case that really the court is saying to Roosevelt you went too far now of course it's easier to say that after Roosevelt has died and there is a much less popular president oh but then subsequent to that since I've been there actually we had four cases out of Guantanamo four they were not the most popular plaintiffs I mean one was bin Laden's driver they were all suing the president United States and the Secretary of Defense and they all won when Congress passed a law that said that they didn't have a right to go to court this our court held that it was unconstitutional that was a change and I think Sandra O'Connor picked up the attitude pretty well of what the court was doing in Korematsu she said the Constitution does not write a blank check to the president not even in time of war mm-hmm well question goes into your mind fine it does not write a blank check what kind of check does it right oh you see why no one likes our four opinions one group of people say oh hey you shouldn't have gotten into this the president should be able to do what he wants and another group of people say why didn't you tell us more specifically what the president can do and what the president cannot do and what about hearsay and all this other stuff and the answer to that question is very simple the reason we didn't all the things the president can do and what he could not do is because we don't know that's why and so these opinions Cicero's gone but these opinions and the blank cheque provide just as much a question as an answer and where do we go to try to find out the answers to the questions that are related and come up to us now and will come up to us in the future or might well and I say well you're not gonna just have to be able to restrict yourself to what happens in America terrorism is a worldwide problem other countries that our democracies have dealt with this too it may be helpful or it may not but it may be helpful to know what Britain is done to know as we learned in an exchange that they have for the real dangerous aliens who are there and they feel are terrorists and they don't want to tell them anything they have two lawyers one lawyer with the classified information and one representing the the defendant and and they can talk to each other and get the gist of what that classified information says without the detail well that's a little complicated I don't know that's the best system or not or Israel they lock up a terrorist on the West Bank Oh accused terrorists oh the army says he's a terrorist oh he says he's not mm-hmm and how do we do well do we just give him a lawyer knows is Israel you see what he'll do is he'll tell the lawyer to say go home and tell them your mother I'm fine come tell my mother I'm fine and what that will mean is blow up the cafe and that's not a made-up problem it's a real problem so they've developed a system where all right the Army has to make out a case before a judge ex parte in camera where you cannot why he can't have a lawyer and if the judge says okay I see it it only lasts for like a few days and then they have to come back and explain why it can't what must last longer each time it gets harder for them to justify what they're doing well that doesn't sound so good I don't know but all I'm trying to do here is point out that if we're really going to decide a lot in this area we have to remember what justice Black said and we can't do it out of ignorance and out of ignorance we'll get things wrong and it's not a laughing matter in this area and so I suspect we'll have to look among other places to what goes on abroad in respect to terrorism in respect to what other democracies do and then have informed decisions or at least more informed than they would be if we didn't look well let's jump to a different area totally let's try commerce I mean we had a case where the plaintiff is in Ecuador he's a vitamin distributor that vitamin distributor is suing a vitamin manufacturer in Holland under the antitrust laws for being part of a cartel that's raising the price of vitamins and there was an American member - and they're suing in New York hey why is he suing in New York instead of Holland well one possible reason is that the price of vitamins was so high he got too weak and he couldn't get to Holland that's possible treble damages may have something to do with it as well but we have to decide you say how does this oh by the way read the statute get read it and you get an answer out of that statute I'm not saying congressman all the statutes are obscure I think some are and this was and we had briefs from the European Union cartel authorities we had briefs from a Canada from Japan from all over the world yeah because it matters to them and their own enforcement and we eventually we eventually decided the case my point is that this is a matter that involves the EU that involves Canada that involves others and we have to know what they're doing to or try a securities case we had a case where I think it was an Australian plaintiff and is suing an Australian company saying he paid too much for his shares sold on the Australian exchange because that company bought some land in Florida fraudulently does that violate our anti-fraud laws hmm I think we would have said yes 20 30 years ago but we got briefs from the Australian car anti-fraud people from the European fraud people from fraud people all over the world I mean enforcers not frauds but but but and they said stay out of this they're doing their job there and you get involved here and we will just have more problems and that's what we did I joined the opinion Nena wrote the opinion and I think that he said in that opinion that what they told us the anti-fraud enforcers in Australia mattered of course it matters because these are practical questions in part how did you get that law in forests or we had a great case in copyright I love this one we have an A student up in Cornell and he's from Thailand and he discovers his uh his books his tax he was a scientist in English in Thailand published are half the price so he writes to his parents and says send me a few well they sent more than a few and he was a hand over fist you know and and the publishers got a little annoyed and they brought a lawsuit and could he have the right to do it or not again read the statute we had briefs from all over the world a stack like that and I went it on this case is very technical case I mean really why are they why why this stack of briefs from everybody and the answer I found about two-thirds of the way through in a brief that said you know your answer in this case is going to affect two trillion dollars worth of Commerce yeah I mean even today a trillion dollars is a lot of money you say or try civil rights dolly filartiga Paraguay citizen a Paraguay brother citizen of Paraguay where are they Paraguay who runs it a dictator and what is the dictator do he gets one of his men to kill the brother she comes up to New York and she finds the killer and she finds a statute or her lawyer did which said the federal courts have jurisdiction they have jurisdiction to give tort recovery monetary damages to a person injured by a violation of the law of nations that's a statute when was it passed 1790s 1790s why well they were against pirates see the rule of law at that time was you find a pirate anywhere you can hang him and by the way hang him upside down first shake out the money and give it to his victim sorry so that was he that was the idea and now who are today's pirates who are they hmm the court said this is one of them and she went back saying I came to the United States and hoping for maybe a confrontation or justice and I got a lot more yeah not bad good idea oh let's try suing South African oh not a South African American firms that that business did business in South Africa under apartheid can you do it maybe you know who didn't want us to do it the modern South African government they filed briefs in the New York Court and said judges stay out of this we have our way of resolving these apartheid problems and it's called The Truth and Reconciliation Commission and one thing we do not want is a group of American judges in New York suddenly interfering with our process and what wait should we give that and how should we decide and what should the rules be and after all if we can bring a case involving something that happened in Paraguay in some other country Paraguay can bring a case saying about what happens here and Belgium does bring cases like that and Spain has done that too and which ones and how do you work it out and maybe what you should do is a Immanuel Kant you're a philosopher Immanuel Kant your rule of decision judge or me judge should be something that's generalizable and that will work if followed by all countries easier said than done but there is no Supreme Court of the world to work out conflicts and you want to totally give up the civil rights statute I don't and is there a clear answer how to do it no and do you have to take foreign interests into account of course and you have to know something about it certainly a big issue in the American courts and of course we decide treaties you always have but the nature of treaties has changed it isn't just between two people we had three cases in a period of two years I think involving the Hague Convention on abduction of children hard to figure out the child's here with the mother saying abuse by the father and does he send it back immediately or not or what do you do and and you know who the group of judges in the United States who know the least about family matters I'm one of them and my eight colleagues are right there with me and so why are we deciding this I mean in state courts they have specialized family judges which is really a tough job and there they're the ones who know something about and federal judges know they have very little experience why is it in our court because it's in a treaty that's why and why is it in a treaty because more and more marriage is a matter where you can find husband and wife partners of different places different countries and that isn't something that just happened overnight gradually and it's not going to go away it's going to go up not down and so we try to resolve these things by treaties and then the judges are called upon to answer questions under the treaty and now you better watch it pretty closely if you're in that field because the judges are likely to make mistakes you may have to revise the treaty but nonetheless all I am trying to point out is this is increasing increasing increasing I have a friend professor Coase AC in Italy and he sent some research students together and they were supposed to look up how many organizations are there that actually have the power actually have the power to make a law or a rule that in practice affects citizens businesses or people of more than one nation how many do you think how many think more than 100 200 I mean how many organs argue you know UN WTO how many do you think there are you can affect you think more than 50 more than a hundred raise your hand if you think more than hundred more than 500 more than a thousand more than 2,000 well there are more than two thousand and we belong to 800 of them yeah and some of them you know the UN know that or the World Trade Organization or the International Monetary Fund have you heard of the Southern blue whale Commission ah what about the International Olive Oyl Council they are all over the place and they affect what Congress legislates of course the ball convention where the SEC goes to meet with banker and comes back and then takes the rules they've all decided as notice and comment and it drops them anyway all right you see I mean they're all over the place and we're not gonna withdraw from those 800 and I don't think we should and they work in different ways all right I'm giving you a picture and my point is it is there and are we going to change it I doubt it I doubt it I mean they sums they do different things some of them set standards some of them make rules some of them suggest that Congress passes laws which it does and then maybe it affects the interpretation the DC Circuit's had several of those and it's it's it's all over the place conclusion you see it's a conclusion you think I'm gonna say something it'll be really helpful about this but I'm not what I want to do is point out what this problem is and it's there and you think it won't lead to cases of course it will all over the place and when I say they require us what I mean we're not gonna squid the International Civil saiful Civil Aviation Authority and by the way can they legally enforce their rules I don't know but they can ground the airplanes nobody's gonna fly when that airplane gets grounded and we're not gonna quit the organization because all right you see the point and that may be even true of olive oil I don't know but there are many many ways of going about this this being how we are going to approach problems that are there in this world I mean problems it takes about two minutes to start thinking of environmental problems of health problems of safety problems of problems of terrorism of problems of immigration people walk you know and they're everywhere it's not just here and what conclusions I draw from that I'll let you read about it and then you can draw your own conclusions but I draw I draw a few I mean one of them is is the more you read about this the more you think it isn't good versus evil it isn't somehow globalization over here or localism or tribalism there it's but we are in a world where there is both and we're not the only ones the architects are like this for my what a remember set of reasons I go now to a committee involving architecture and and give out a prize and and the great architects at the moment are trying not just to use an international style but to they'll use metal and things but they'll do it in such a way that they call attention also to the locality where they are and to its history and to its environment say both its local and its international and that is fact it helps to look at it as fact I mean that was really pointed out to you it I got I was on a panel with a member of Congress who are very good I liked him very much but he went on and on at some length about how we shouldn't look to foreign courts or foreign decisions or whatever it is I said that seems to be aimed at me and he said yes it was so I said fine oh now let me tell you why it's these are people all over the world and they're democracies across the world now and many have courts and those courts do have the last word admit interpretation and they have problems like ours they have documents like ours why don't I read what they say I don't have to follow it but read it I'll learn something oh that was a pretty good point don't you think yeah he said read it it's fine with me said just don't refer to it in your opinion then not knowing enough to keep quiet I then said but look it's more than that it's that there are a lot of countries that have just become democracies they set up the these judiciary's they don't and if the Supreme Court of the United States which is a institution that they've heard of refers to their opinion that might help them maybe go to their legislature and say don't do some of the things your planning on doing were serious Court da da da all right you know what he said he said fine he said write them a letter so I realized that he's where he's reflecting actually many do a very important strain of American law a very important thought that Madison had Madison said that that he said this document the Constitution he said it is a document where Liberty delegates power it is not a document of power delegating Liberty what he meant by that is that unlike many European countries at the time power in the United States rests in the people that's where the Liberty is it's in the people and they can delegate to the federal government power but what they don't delegate remains with them that's very different from louis xiv or louis xvi or whatever lure you want because what those louise did is they had the power and maybe they delegate liberty but the power is at the center and you can see that very much if you think about our judiciary here's in many states they're elected which has its pros and cons which I will go into but even federal judges they're appointed by politically responsive people and so the average citizen can think once we're appointed we're not they're not can't control us anymore but we do have confirmation we do it that's another subject but the the the you say the average American can think I have I have some control over even who these judges are I don't have any control at all over the judges outside the country who they are you see all that I think is underlying what the congressman's reaction was so what what's my way of dealing with that it's not to make a better argument I've learned that over time but sometimes although we deal in arguments it's not the argument give me an example do what the lawyers call confession and avoidance give them the example and that's why this book is filled with examples that's why I've given you a few because I'm really speaking to him and what I want to say to him I want to say to him look this is the world this is where we are what do you suggest we do I mean what's your point I mean other countries are going to get together and deal with environmental matters other countries are gonna try to deal with matters of health with Commerce and we can participate or not and if we don't participate well they'll do their own thing they will go their own way we will have to live with what they come up with and we will not have had a say in it don't you think it might be better do you participate now here I'm getting beyond law but I'm showing you how the lawyers and the judges have to participate and is that such a bad thing now of course I don't think it is and I think it calms down once you see these as fax it sort of calms down the level of emotion you don't have to walk big war between forces we have a world where both is true and there are many many ways to skin this cat I mean there are all kinds of ways of people cooperating you don't have to be the EU we're not part of the EU I mean you don't have to have a treaty you don't have to have executives there are dozens of ways go look sometime you have nothing better to do at the agreements between our antitrust people and the European antitrust Authority it's like that and they're just agreements among civil servants and there are Dudley I've quoted a few but there are many many ways of going about it but I think they will we will go about it and of course I'm urging that we do participate and that there are many ways of doing it and we should choose a few and different ones and experiment and we'll have court cases I mean somebody's gonna point out I'm quite sure and up briefcase which is true that the first amendment delegates the legislative power to Congress not to the southern bluefin oil Commission yeah okay I'll worry about that one when we get it but you say filled with legal problems filled with a world that requires that we proceed and certainly I hope under law and that's my last point because I saw that again as I was driving up to Memphis I saw a sign and the signs I came up to Memphis said this is the place a place where the Trail of Tears where the Trail of Tears crossed and I knew what that was I knew what that was because the president of the Ghana Supreme Court was in my office once and said why do people do what you say I said a good question you better look into history and the history of the Trail of Tears is that our court said that northern Georgia belonged to the Cherokee Indians and Andrew Jackson said in a famous statement supposedly he said John Marshall and chief justice made his decision now let him enforce it and he sent the army but not to enforce the court's decision but to drive out the Indians who walked the Trail of Tears many dying on the way and they in their descendants ended up in Oklahoma alright and that wasn't that long ago and we did have a civil war and we did have 80 years of segregation and we've had all kinds of things and it took a long time and I think Little Rock was pretty important in this when those nine Little Rock brave children you know we're trying to integrate one among the first to try to integrate Central High School and Eisenhower who was president talked to Brownell and Brownell said you've got to send troops and he did a thousand troops paratroopers Fort Bragg and they took the children by the hand and walked into the school that's a big distance a big distance from the Trail of Tears but it wasn't it wasn't just the paratroopers and it wasn't just the court and if you look into the history of it you will see that Arkansas closed their schools and nobody was educated and they sent up a case to the court called Cooper versus Aaron where they said we don't want to integrate anymore and the court said 9 to nothing no you must and that was nine people you could add 90 90 thousand what governor Faubus was saying I have the troops mm-hm and I'm gonna close the schools and nobody will be educated and some of us remember that but we also remember that it was a catalyst and we began to have Martin Luther King we began to have the Freedom Riders and now you see what I'm saying what I'm saying to this woman from who's trying to do better in Ghana I'm saying don't tell the judges about how you need a rule of law they believe that and you needn't tell the lawyers either what you have to do is get the judges and the lawyers and the others to explain to the people in the villages and explain to the people who are not lawyers and by the way contrary to public belief of our 320 million people 319 million are not lawyers they're the ones that have to understand why it's in their interest to go for a decision support it don't fight it even though it's important contrary to what you want and wrong try Bush v Gore I heard Senator Reid say that the most important thing about that case is that never noticed no guns no riots in the street no paving stones thrown and when I talk to students at Stanford I did for example I say I know what you're thinking twenty percent of you were thinking too bad there weren't a few staving stones thrown in a few rods I said but before you decide that before you decide that go turn on your television set and see what happens in countries that make their decisions but rather than under a rule of law that's an important part of this international thing and I'll land with one quotation is that's just something we have to work on everywhere and all of the quotation I like to my generation was from Albert Camus I really like it he wrote a book called the plague as many of you know and that plague was about it was a fake it wasn't about a plague it was really about the Nazi occupation of France and at the end of the book he says why did I write this book about a plague in Algeria he says I did it I did it because I wanted people to know the story of what happened he said I did it because the hero is a doctor and a doctor is a person who just helps other people without philosophizing without thinking about it he just does it but really he said I did it because the germ of the plague the germ of the plague never dies it goes into remission it goes into remission only one day to emerge again to send its rats into a once happy city that's what we're fighting with the rule of law and that's what I hope will apply when we as we must as we must begin to take into account what's going on elsewhere in the world which does affect us so I've only sketched out a few things that we can work on together thank you [Applause] Justice Breyer thank you very much I want to ask you a series of questions maybe starting with the book and maybe you could talk a little bit about how this book fits with your other books because you've written sort of two books about the democratic constitution and how it ought to be interpreted and in those books you really focus on the idea of kind of there's kind of a pragmatic week there I mean you're very interested in the consequences of justices rulings and I'm wondering if you sort of came at this topic as another way of trying to solve problems in other words other countries deal with the same problems we deal with why not look at what their courts do is that we have some words on a piece of paper and that we have to interpret them and in the Supreme Court good judges below have interpreted them in opposite ways that's why we took the case good argument both sides we all have the same tools we have the language really language is important I mean if it says carrot that's not a fish okay and we all know it and we're not going to say you have tradition suppose it's habeas corpus there's a huge tradition there you have the and if the president solved it so beautifully however what's in doing in our Court you have the president you have the purpose some human being wrote those words and he was trying that person was trying to reflect a purpose yet a purpose or a value if it's the Constitution First Amendment speech about privacy etc values and consequences so all of the judges have the same tools we have the history we have the we have the language the history precedent the tradition the consequences and the purposes not any old consequence but consequence related in the purpose we all have those same things like some judges but more emphasis on language or history okay you know Scalia we used to debate together I mean we'd go to college audience we loved it we got on very well it's fine and I would and some judges like I guess I do put more weight on purposes contacts and I would say to him you know George Washington didn't know about the Internet and you would say I knew that [Laughter] he was actually said earlier he used to say I'm not saying that looking at just the history and the language is always perfect he said but it's like the two campers you would say I'm ones putting on the shoes and running the shoes what are you doing there's a bear coming he says yep you can't outrun a bear he says yep I can outrun you and what he was worried about with the way I approach things is to open it risks the judge substituting his own values or his own desires for the law risks that you try to avoid them and what I'm worried about is his approach as you've read a Constitution no one wants so so what if I'm saying look this world is changing I'm also saying and our law will change to reflect I mean you can't avoid it I don't think and the examples are meant to go that there are many areas where we just can't avoid it and so require to get a law decisions framework of ordinary interpretation now it's not every day that we have a justice of the Supreme Court here with us so maybe we can talk a little bit about how you work and your life and what a typical day is like for justice of the Supreme Court since the term is just about to start so what will you do I'm reading I have briefs with me I'm always reading those grapes I mean we have two jobs the first job is decide what to this up we get about 8,000 requests every year and we hear about 80 and every week there's a hundred fifty coming in and we have all those briefs and there we are law clerks so we have to check for law clerks and four times nine is thirtysomething they we divide them and that's four or five for each law clerk and oh right memo so I get a stack of memos like this now I get those on usually Friday and I'll read them it takes me a couple of hours to pick out the ones that are possible but I've told you why that's possible it's not because I'm a genius I'd love you to think I was there but nothing was that's not that's not it the point is that we're looking for something we're not looking to see taft said this when he was chief justice i William our tasks if we're not looking to see if the lower courts are right or wrong I mean they're judges they're good judges maybe they're right more wrong you know that's not the job is what is the job the job is to create uniformity in federal law so if you see the lower courts splitting which they don't do too often but we'll probably take it and if somebody holds up a statute of Congress unconstitutional we're almost sure to take it and sometimes we'll take a few others but you see what I'm looking for I'm looking for is there a split is there a special reason to take this and so I can separate out the Possible's then I give them back to my law clerks on the following Wednesday we go through them and I'm deciding whether I want to discuss it in conference the ones I've given back and any one of us can have anything discussed in conference conferences Friday we'll have we'll have usually 10 to 20 cases that somebody's want to discuss and we'll discuss them and we're alone in the conference room we go around briefly some of the Chief Justice says what the issue is and I vote to deny or grant or whatever and people go around and they vote to grant or deny in for votes to grant is granted not formed denied not on the list denied and if I hear something I didn't expect from one of the other judges I can sound what it relisted till next week and then I'll go back and look at it pretty carefully but you see in a sense we can't go wrong denying a case you see why suppose we really should have taken this case because it's really important to the country and what will happen what will happen if we don't take it which we really should have taken you sure we'll come back it'll come back in another case we'll get the point and suppose it never comes back well I guess the country didn't need us there we are and I overstate but you but you see the point if we take a case we shouldn't have because there's some procedural issue and people have gone to an awful lot of work and they can never get there so well III look at what the papers say about the certs because I want to see not whether they think we're right or wrong at therapy but I want to see are they talking about a certain I say what case that's what I don't want to have happen it does the alright then what happens and they start writing briefs and debris side where they call briefs they're not brief I mean these are little booklets and it's a blue one for the petitioner the court was wrong below there was a red one for the respondent and the court was right there's a gray one if the government the government's always gray if they want if they want to file a brief there are like green briefs for anyone my my key Curia who groups or you anyone who would like to support the petitioner or dark green I'd like to support the respondent and in a typical case maybe ten fifteen twenty I'll read those I'll read those if there are a hundred is that we're in the affirmative action case I have to admit after I've read a few of the amicus brief I'm looking through it pretty carefully to see if there's anything new pretty not maybe you know is there something new is not quite to say but nonetheless normally I'll read every briefing not sometimes just more care within others then my law clerk will they've divided those twelve and do we hear them and we get groups of twelve and the law clerk that's three for each law clerk they will read them more carefully but more importantly they will write what I want them to you were search on and then they will put any other things too and I'll read the briefs I'll have a discussion Monday we're having our first case for the October session the October session is two weeks long three days each week two cases each day normally twelve cases in a two-week session first two weeks of October November December January last two weeks February March April all right the October session those twelve I've read the briefs I've have a memo I've discussed it with my law clerks then we have oral argument and oral argument is for us to ask questions lawyer gets up and says something new why didn't you put it in the brief and we think we know those briefs we think so I think we do fairly well but we ask questions and it is a nightmare being a lawyer in our court you see you see one judge sort of I mean there we are and then after that two days later we're in that conference room and we'll discuss the cases we just heard the Chief Justice worth of ourselves we each have a book referring before the case for each case and it has space you write down what the others think and the Chief Justice will say the issue is us and so and this is what I think five or ten minutes and you can get a lot covered if you try to be succinct and that's what you should be do and then it goes to Justice Thomas and Justice Ginsburg and me and justice is Alito and Sotomayor Kagan Gorsuch Kavanagh no one speaks twice until everybody speaks once very good rule for any small group and particularly for me who is junior justice for eleven years all right but nonetheless nonetheless good rule if then you go back and forth and it works best if you're paying attention to what the other person said not I have a better argument than you are because if that's what you're saying the other person is going to think no I have a better argument than you if you listen sometimes you get some work and then at the end of the conference we know how it's broken out people have said how they're thinking of voting it's tentative but it's pretty not tentative it's fairly definite and the Chief Justice at the end of the two weeks will assign if he's in the majority whoever senior he'll assign the opinion to be written but he's more constrained than people think because he has to so everybody gets one too right and a majority before anyone gets two and then two before three and moreover etc and moreover he has to assign it in a way that will produce five votes if it's divided half our cases he anonymous five four is probably 20% fifteen twenty percent last year the two most recent appointees Gorsuch and Cavanaugh were on the cases that weren't unanimous they were together and apart an equal amount and on the five fours I just looked this up I saw it on the five fours there were 19 that's a lot actually out of the seven years old that were five four and you say the usual suspects according to this papers they were together it was the usual suspects in seven seven of the nineteen and it was not the usual suspects in twelve of the 19 so why did they say in an unusual there will but any case in any case if I'm writing the opinion what I do is I will go to my law clerks and I'll say I want a draft or a long and then I'll take that mode usually two or three weeks later and I will go home with the briefs that I want I sit down at the word processor and I write my draft I'll give it back to him she thinks by the way hers was better but nonetheless there we are and she'll write another draft and I'll write another draft usually it's two from scratch and eventually we get something we like we circulate it and I hope I pick up five judges at least I'd like nine but I'll settle for five and then people can write this answer they could write what they want eventually everybody's written or everybody has joined in opinion but somebody else has written and it comes out and now you understand how the court works and what I said to my son when he was in high school and we were talking about this I said that's what I do I read and I write and if you do your homework well you will get a job where you can do homework the whole rest of your life [Music] could you say a little bit more about that interaction among the justices there was an interesting piece in I guess the Wall Street Journal yesterday about justices during or arguments passing notes up and down the bench and that would receive delivery notice of a job with jokes that's likely some professors somewhere is decided we have very good relationship friends sometimes something goes funny what we do have hurt as I said to the reporter who is writing this but we get on well I've never heard the voice I have never heard one judge in that conference say anything snide or you can funny it someone else's expense or insulting to other people he's very professional we are professionals and we go around and discuss the cases and discuss them back and forth and that's generally true of judges the inside story of a court is usually that there is no inside story or at least very little why because the job is to write an opinion and the opinion is supposed to if it's a good opinion if the true reasons that the judge believes that the result is so-so that's very different from Congress Congress did not have that job Congress has done Congress's job is to enact of law now the law does not say why it itself has been inaccurate so obviously they're going to be interesting inside stories as to why that law was enacted but that's not true the court I'm not saying zero I'm not saying there's zero inside story but of course usually when you get down to what kept going on and in the setting of the conference as you all were sitting around and you're talking about all of the issues on how how hard are you working to try to convince your fellow justices in other words how does that every buddy knows among the nine of us all nine would always like all nine to agree with him Earl right we all know that and so if you want someone to see things from your point of view and sometimes I will go in and talk to some of the judges I might but I better be interested in what they say and I better be interested in I better be thinking I'm not sure about this and I better really because there's nothing that happened so quickly as people know when you're being phoned and it has to be an honest conversation and those conversations do sometimes occur and sometimes they change people's money completely rare but sometimes sometimes and often about how to look at this and how to look at it is important to the court because they depends how you look at it what the words then end up being and those words are what control the lower courts the lawyers the clients the average person who has to live within the interpretation that we are making of the statute or the constitutional provision and so there is some conversation so you've emphasized the time that the justices or the extent to which the justices might be unanimous or in agreement with each other but we know that we live in a very polarized sort of time and with media and 24/7 news cycle and social media and everything else to what extent has that exaggerated these five four decisions and therefore hurt the public reputation of the image of the court you go back 40 or 50 years the newspaper stories didn't say every story who appointed this judge was here that was a good for the judiciary and I was good for confidence in the judicial that isn't the world that we live and I think most people Allah who aren't following me too closely think we're always divided about everything yeah but what do we do well though Here I am you know a few people are listening and I will when I have the chance tell people how it works and so with my colleagues I believe that on law day that lawyers want to go out and talk to the newspaper people and talk to the high schools and and talk to the those who will listen say look this is this is your law you know I mean it's not awesome it's your law we're interpreting and it's your institution when I talk to the high schools or the colleges I'll say look I I hope I can't tell you how to lead your life I I hope you love in your life I hope that you have a career that's rewarding and I hope that you participate to some degree in public life and I can't tell you much but I do work with this document and I do know that if you government this document the Constitution pretty sure of that because I wanted to participate because I want them to see that's when we built this courthouse in Boston the way we did we want people to think this is a public building it belongs to the public it's yours hey I'm not there to tell you what maybe you put me there but this is you this is yours this coming out screen I think that's the great thing about this country we have 300 million people they all think something different but my god somehow they decided to live together and live together under this document that drug do it considerable to real be imperfect that it provides a democratic system of having a damn democracy and basic human rights and rule of law those 320 million now they are my mother used to say that she used to say there's no idea so peculiar there isn't somebody who doesn't hold it we were his and was it because she said they all live in Los Angeles but nonetheless do you see the boy you see the boy okay so what is wrong I think is the most important thing somebody asks me that the other day I think the best thing I've ever done is that courthouse I didn't design it but I helped three days a week about three days or three I'm sorry for three years probably half a day a week with another judge with our great architect Harry Cobb and young yes make people feel it's theirs make people feel they can use it not just for court things make people feel that visitors need something this judicial I think it worked pretty well laughs see what newspapers help with saying oh they all fight all the time no they don't right I guess they should say it if it were true but we don't fight all the time I can't say zero if I can't say it's more just do your work I can often agree so when you hear talk of placing term limits on the justices or expanding the size of the Supreme Court how do you how do you respond to that or how do you react to that I don't know I am NOT going to get into some kind of political discussion at least [Applause] what about education specifically legal education so your book outlines the world is a complex place there are all of these problems is there something that needs to be changed about legal education when it sort of comes to the sort of way that we teach lawyers does it need to be changed in some way to reflect some of the realities that you're talking about are there disciplines are there I mean since I've been on the Supreme for it I have no the only thing that I'd like to read about Mikado after it is is is on campuses where people seem in some hey there's no need for a First Amendment or freedom of speech I'm gonna say something that you think is great well even if you think it's passable in Severn people who really say things that are just terrible working with First Amendment and it's part of my job really is don't get into this business of starting to say which is good and which is bad in terms of being allowable you can say it's terrible saying it's terrible but don't stop them from speaking and that's that's what I work and also thinking about education undergraduate education you have spoken for example I know at the Folger Shakespeare Library and the University of Chicago you've talked about law and literature for example how is it or how does reading literature or how does a liberal education affect how you think as a justice here you are for four years you realize that's fabulous and you don't have to something study something related to law I mean you learn about computer science I don't you will okay and you'll learn about science that's good and but try liberal arts I mean try try learning a foreign language try reading a few novels say why why I think why one reason why because you only have long life each of us has one life and we know pretty well our own life we know it pretty thoroughly and we know our families we have a few friends and we know something about them but there are billions of people in the world and the best way to find out about lives that aren't yours is by learning French you're learning Spanish you're learning Chinese or something and you'll see it's a different culture and you will be different and you'll learn something about other people live and the same is true of literature it's our best way I think into the minds of others people are taking liberal arts the year of 2020 as you probably know will be the 100th anniversary of the ratification of the 19th amendment to the Constitution and the student wonders whether you see any potential major advances for women's rights in the United States in the foreseeable future but it did come and it has had a lot of influence maybe not directly but at least indirectly and other amendments to the Constitution in other parts of the law etc and so I throw movies into and you know some of my favorite movies were really influenced my last year of law school we were allowed to take one course in the college dean called me and he said you're taking a course on the movies which was pretty interesting Philadelphia's story the awful truth his girl Friday great movies I really recommend them and what they're about is these are the children of the suffragettes say the children of the suffragettes and they've seen the 19th amendment pass and now they say we're gonna try to face at least in these films at least in all part at least it we're going to trace a different problem it's called having a mature relationship with the man her husband that's what those movies are about see I put Groundhog Day in there why do I put ground ho date in there for the groundhog Day in there there because the epic chick spear in there I mean Shakespeare try as you like it I mean my goodness what Rosalind falls in love with a wrestler Rosalind is a very intelligent woman and she's in love with this man and he doesn't quite know how to behave and so he says the same thing she says to her friend that they say Groundhog Day the woman says to the man you're gonna keep doing this till you get it right and that's what the divorced companies do and image your relation we have a divorce and then there is no coming back together in a more mature relationship now that's a tough problem that's a tough problem go read Euripides you'll see it existed there and you'll see that it's existed throughout through throughout history and do I believe progress will be made there yes I do I do think it's possible I do optimistic hopeful survey that was telling by the Annenberg Public Policy Center at the University of Pennsylvania Constitution Day 2017 found that only 26% of Americans could actually name all three branches of our government and other surveys have put this number a little bit higher into the mid 30s and I think you have even joked that more people can name the three stooges and the three branches of the US government that's a very sad joke so what do we do about that how do we change roads and rogue honor was the one who was working on that and Tony and we can only try together again in the high schools there are high schools that don't teach it of course of course you shouldn't graduate from high school without knowing how government works and you shouldn't graduate I can say that Jill I'm blue in the face but what I'd really like to see is the Secretary of Education under whatever presidency get together with the Attorney General and your whatever presidency and set up a few civil servants who have it as their job trying to figure out how to go around the country to talk to the legislatures to be sure that it is required that you do learn how our government works in the high school I think that's possible I don't think it's very Justice Breyer you've been very generous with your time here tonight thank you very much [Applause] you

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Length: 84min 36sec (5076 seconds)

Published: Fri Oct 04 2019