U.S. Supreme Court Justice Stephen Breyer in Conversation with Associate Dean Alan Morrison

ladies and gentlemen please join us in welcoming to the stage the Honorable Kat Angie Brown Jackson Dean Alan Morrison and US Supreme Court Justice Stephen Breyer [Applause] [Music] [Applause] [Music] good afternoon little loud my name is Catan J Brown Jackson and I am a district judge on the United States District Court for the District of Columbia now I am here to give an introduction but first can I just acknowledge how much this feels like my fantasy of being a speaker and one of those televised award shows I mean the way we just entered almost makes me want to begin by saying first I would like to thank the Academy but I won't instead I will start by thanking ACS for making my dreams come true and for the incredible work that you do every day to advance the cause of justice to promote the rule of law and to champion our constitutional norms these are values that should never be taken lightly and ACS does the heavy lifting of building networks and fostering national conversations about important issues and for that we should all be very grateful now one person who certainly appreciates the work in the mission of ACS is Alan Morrison who is here today and is the learner family associate dean for public interest in public service at the George Washington University Law School Dean Morrison currently teaches Civil Procedure and constitutional law and serves as GWS ACS faculty adviser but for most of his career Dean Morrison worked at the Public Citizen litigation group an organization that he co-founded with rellis Nader and directed for over 25 years among other things Public Citizen focuses on such issues as improving access to justice and in addition to devoting himself to this important work the Morrison has also served as assistant United States Attorney and a commissioned officer of the u.s. Navy a graduate of Yale College in Harvard Law School Dean Morrison is a member and past president of the American Academy of appellate lawyers and also has the rare distinction of having argued 20 cases in the Supreme Court so I am sure that we're in for a treat as dean Morrison brings his knowledge of the court bayar for this afternoon's discussion with his friend and our other distinguished guests justice Stephen G Breyer now Justice Breyer is so well known after nearly two and a half decades as an Associate Justice that he almost needs no introduction but here goes Justice Breyer was appointed to the Supreme Court by President Bill Clinton in 1994 and prior to this appointment he had a long and distinguished legal career the professional highlights of which include a post Law School clerkship for Supreme Court justice Arthur Goldberg service as an assistant special prosecutor on the Watergate special prosecution Task Force services chief counsel to the US Senate Judiciary Committee and an appointment to the United States Court of Appeals for the First Circuit on which he served for four years on that Court as the chief judge now for many people it is understandably difficult to devote herself to more than one occupation at a time but not so for Justice Breyer at the same time that he was serving in those various high-level professional positions he also undertook to create and establish the federal sentencing guidelines as one of the first appointed commissioners of the United States Sentencing Commission and he taught scores of graduate students as a full professor at Harvard Law School and Harvard's Kennedy School where he developed an expertise in administrative law and wrote extensively on a wide variety of subjects and amazingly Justice Breyer juggled all of these professional responsibilities while also fulfilling what I'm sure he would say is his most important duty being a husband and a devoted father to his three children now at this point I'm sure you've discerned that Justice Breyer has a ceaseless ability to multitask and you should know that this talent for doing many different things at once has not diminished at all since his appointment to the Supreme Court for example he continues to be a prolific writer even today and he has authored three boss each of which has received critical acclaim oh hello Neil yes I realize I'm supposed to turn off my phone during public appearances yes this is embarrassing but it happens to the best of us and I know the justice will understand okay hock you later sorry where was I Justice Breyer yes he's a prolific writer and thanks to ACS you have an opportunity to purchase a pre signed copy of his most recent book the court in the world out in the lobby here today so how do I know so much about Justice Breyer well in 1999 Justice Breyer plucked me from obscurity and gave me the opportunity of a lifetime which was the chance to work for him as a law clerk and thereby bear witness to the workings of his brilliant legal mind it was an incredible experience just to be in the room while the Justice grapples with some of the most difficulty consequential legal issues of the day but one of the things that I remember most vividly from my clerkship has nothing to do with the law it was justice Breyers passion for cycling almost every day in the fall in the spring the justice would show up in the morning in chambers wearing full bicycle regalia the Jersey the bicycle pants the cleats I mean the whole nine yards and he regularly commuted to work on his bicycle weaving his way through rush-hour traffic and I can tell you the marshals were not very happy about this but in his incredibly modest and unassuming way Justice Breyer didn't want any special treatment he was just an ordinary guy getting his morning workout in inter out to one of the most significant jobs in the world now it strange as that seemed at the time upon reflection it is clear to me that justice Breyers chosen mode of transportation made total sense because cycling is the perfect metaphor for the Breyer clerkship experience you can ask any of his law clerks when it comes to the law the Justice is mind so fast and so effortlessly that his ideas often present themselves to you like a blur and just when you think you might be able to track one of his thought processes it whizzes by at warp speed it really was not unusual for the Justice to be so far ahead of everyone else in his mind regarding some complicated legal issue that he would enter the discussion mid-thought and sometimes even mid-sentence and he rarely slowed down for anyone else to catch up so as a clerk you quickly learned was that the first goal when the justice started to speak was to figure out which case he was talking about we'd have those funny moments where the clerks would be glancing at each other yours no no no it's mom it's mom that's my case and then what you had that figured out the best you could do was try to understand where he was in that moment so you could engage with him which was very much like having to mount the back of a back half of a speeding racing bike for do imagine Justice Breyer his bicycling shorts at the helm pedaling seriously and the assigned clerk has to figure out who's up sprint to catch up with the moving vehicle hop on analyze the existing pedal rotation click in and try to match his speed and tempo and ultimately hold on for dear life it was a bit of a challenge but it was also an incredible thrill and I'm not alone in saying that without a doubt being a law clerk for Justice Breyer was one of the most rewarding professional experiences of my life therefore it is with enormous pride and great devotion that I eagerly await the journey that Dean Morrison will take us on today as he can versus with the Justice let's all buckle our seatbelts and without further ado I give you Dean Morrison in justice Stevens [Applause] [Applause] my first and most important question today is how are you feeling how is your health well if your mother were around she would ask you are you eating your vegetables I mean sometimes people do ask me that he's the worst one was a woman came up and said you know ever since the election I've been hoping you wouldn't die I said well actually I was hoping that even before the election return is oh that was a very nice introduction Catan gee I mean she is a little biased she was my law clerk she was a great law clerk his body all those difficulties she's going on to great success making it judge great and Alan is a very very old friend my goodness I know you know I mean I shake Smith at home here Henry the four part 2 and the old judge is there with his old pal from law school Neary sentences those were the days I bet they still are and when I would I heard guitar just like Eli see Jimmy Pflueger we both worked for Senator Kennedy and the first rule of working for Senator Kennedy which I've been grave seven rules I learned to put up by law I give them to my law clerks the first one was for the people on the staff What did he say wasn't it it was but I'm fine and you're bicycling New York you're not bison well I had a problem I wasn't exactly a problem with my bicycle is a problem with my putting up my arm like that with the wrong time that was a possible error so work actually the doctor said I could bicycle he said but if you fall off again you will I'm just gonna feel like such a that it's better use a stationary bike so there we are so we don't need to go through your agent history but I'd like to start talking to you about your clerkship with justice Goldberg and what it was like obviously being at a quite different position for the one you're in now and also can we talk a little bit about how the court was back then as compared to what it is now I'm going to ask you some more specific questions in a minute I mean those were good first they only had two clerks now we have four major Olson and it had many more cases right yeah it doesn't seem like that I mean it interestingly enough it may be most of the you know overachievers who were thicker tend to have the work expanded at the time regardless but that does tend to happen you know in law schools and with lawyers and other places so it didn't the crisis didn't seem significantly different the certain system is a little bit different but what was nice for the clerks was that not Peter I think yes here here too good we have several and and Peter Elkins here too and and which is nice we got to know justice Goldberg pretty well and Peter and I worked on all his losing campaigns we did uh he was fun he was really fun it was a we got a bunch with him and it was interesting and it was a very very good year the court I think looking back from now was different but it was different because if I had characterized ik I think at that time 6g 465 and you were 62 63 it was a court with a mission they had a decided Brown in 54 and not all that much had been happening I mean some things have of course but the legal apparatus that sustained segregation in the south and sometimes elsewhere was very complex and it had lots of different parts and Congress had not dived in to help the court and so the question continuously coming up was we don't want to have Britain an opinion that then never was put into effect really and at least we want to be sure that that legal Apryl apparatus is gone and I would say that was the overarching mission of the org and nobody disagree with that really the criminal law aspects of me well then thank you I'm going on there but I'm correct they were of course the selective incorporation there were lots of other things happening but I this is just my own view of it that I think that a lot of the things grew out of that basic idea that the Constitution in the 14th amendment says equal protection of the law when I grew up you'd have to have been a blind idiot not to see that vast numbers of people were not getting that protection and so they took what the Constitution said and they said we're going to try to make it at least as far as the law is concerned a reality now you look at other parts of the Constitution and from what I read and believe certainly at the time Earl Warren knew what he had been a district attorney in Oakland and and he wanted a Miranda because he thought that's the way to bring this under control but you see that's part of the effort to make the fifth amendment real and dismantle that legal apparatus that that is getting in the way and the same is true with a lot of the amendments that went through the fourteenth of the states after all in the 1870s and late 1860's senators and the northern victors and probably a lot of others too wanted to make that Constitution which had been aimed at the federal government valid as well against the states and for a long time not much happened so I tie these different things together whether it's the First Amendment through the fourteenth or whether it's Miranda or whether it's lots of other things I see them as part of an effort to make the constitutional protections real in the law and beginning with that brown versus board the at that time you work lurking at the court there were many fewer amicus briefs than there are now and and the briefs were had unlimited number of pages did that presented a difficulty for you to have fewer briefs and more pages of the briefs that the party briefs well how did it work out overall I I'm in favor of pure not really I mean yes there were perhaps I don't know that that did not make an impression on me one way or the other I know that now and remember now it's a different world and not just that it's a different political world the court is in a different situation these are the many of the basic protections simply because of the passage of time and developments in the country regardless of who would be present in United States and so it's a different court and we're more or I'd say well you're deciding cases as they come up which is what judges do and amicus briefs I think they're very valuable and it depends of course on the brief but but it's not just that when I found them valuable well I loved particularly I this is personal but I find them particularly valuable when they give me a point of view that otherwise I won't get not just in the law when we had the right to die cases we had briefs from our nurses associations who favored the existence of a right to die and some that were opposed to it people who worked in hospices people who worked with the people people who worked with disabled people of different kinds people who were doctors people who were I mean the hospices all over now that I think that's both pertinent and useful sometimes we'll just get a set of thirty briefs normally we'll have about ten or twelve in a case but if I get a brief from the American Psychological Association I want to know how a decision another will affect their patience and how they treat them I really don't want because I probably won't need them to say to a lawyer go write a good legal brief and then sign our names so they'll know we're on one side or the other I say okay that's interesting and on to the next one but when they can tell me something that I don't know good it's all you try to read the amicus briefs most of them I do read them now how do I read them what I do is that is different from the Sert's Sert's I'll rarely read the brief we get memos and I usually say I'll go to the memos pretty quickly and I won't just follow the recommendations but I'll go through and there I say 150 a week it's better to have the law clerk go through each of those briefs with great care great care and then write a memo because he'll find that needle in the haystack than to have me pretend to do it because that's what I would be doing okay justice now Jeffery read the question present he only he said that he used to read the question presented he could tell from the question presented as to whether he was going to grant cert or not know now what you want to look to but it's almost the same it's almost the same most of the time the key thing is is there a division of opinion in the lower courts on the same question of federal law that's what President Taft said we were there for I mean he said that you know everybody's had one trial one appeal and met most of it two or three appeals and so why do you have another appeal to nine judges who you know why well he said the reason the best reason why is because federal law should be uniform there shouldn't be this place here and the other one there and if there is a division among there's a division among the circuits a real division and the lawyers who work there good lawyers in the Supreme Court bar very good they understand the coordinate and also if they want their case granted they're going to try to say there's a split and so some they get to say well is it a split well this Court over here use the word I don't know Ishkabibble and the other one use the word yok and fluster but they're after the same thing you know that's not really a split and but that's what I'm primarily looking for and now there are some other cases stupid to go back to the Micah's briefs how do I do that what I do if it's a well in the merits we're talking about yeah but now the briefs on the merits I usually start I'll read those I can usually read two sets in a day and we get the twelve boxes you know if you're hearing 12 cases then we're usually hearing 10 to 12 cases not I mean recently it's going down again that's not our doing I mean well I mean you do get you must have something you think we should have granted and okay not me oh no no no not you okay I perhaps you're right but I'll tell you from the psychological point of view people are looking for cases to grant sandra o'connor used to sit there and say we've got to find cases and i look at some of the cases we granted and say oh my goodness why did we grant this case i won't say which ones but not none nonetheless we're not in a mood of trying to not take case well you're hearing now only about 70 or 75 kg look at those two here 150 you went on a diet what I think my own explanation and you're off in a different subject is I want to go back to the okay but but the the the easy that's all right the my own beliefs you say a lot of these things I don't know more about it and loads of other people and why it's going down like this my own theory of it is in the first of all years ago there were a lot more appeals and not certs so we have discretion with certs not with Appeals if you look at the ones that come up an appeal it's a much higher percentage chance because we feel we have to take okay so certs now have grown that is more discretionary power second at the time of the war in court and during the 60s and the 70s lots of legislation was passed in Congress all kinds of things that they important legislation and Justinian explore no Montaigne said this is very good he said he was headed about Prieta we said it about but nonetheless he says for a lawyer each new statutory word does not clarify things rather it produces a challenge so for every new word that you have you have an argument and that produces lots of cases and in addition you have this selective incorporation which suddenly changed the environment and the law in respect to come marry many important constitutional cases so it isn't surprising to me that even after the discretionary power of the court - yes a yes or no increase you still had a lot of cases because with the lag of two or three or four or maybe eight years you are getting a lot of those arguments in the Supreme Court now let's have a period where they're not passing a lot of laws and where the Constitution isn't changing tremendously and you will see of fewer cases now that's my explanation but there may be all this I don't know but I do know we're not trying not to take cases what more can I said on this amicus briefs how do I do it what I do is a bit normal case has maybe 15 Greeks maybe 12 maybe 18 that's all right you say oh I usually usually I read the opinion below I want to know the opinion below that's what they're challenging I'll look to the argument on the blue brief also what's the question when I read the question I think I know the answer I read the blue brief I say yep that's the answer then I read the red brief - no it wasn't the answer and then that actually I mentioned that because for your students and and the others I mean I think that's what open-mindedness is you're not it's not a blank slate of course you have views and by the time you're a certain age alot of them but what is open-mindedness is being willing to change your mind when faced with facts and arguments that point you in the opposite direction and that's what happens as you read the brief and it happens in oral argument to a degree still but the windows closing the gap is getting narrower the room for change is getting smaller you're becoming more definite in your opinion so I'll have normally be able to read the amicus briefs in those cases where there are 50 or 80 once a hundred well how did I deal with that first let's save them for a while read the others then read the ones that I for whatever reason think are likely to add something and then as you've read those you look to see in the table of contents and the argument the summary and grew like that are they adding something parents involved an important case an important case of affirmative action sort of color blind kanji alligator yes yellow case I fought that the amicus briefs there added a lot we had a copyright case where I thought the lawyer who wanted to challenge whether you could distribute once you bought a book and singer but it was a great case for students to because of it it was a student from Bangkok I think who went to Cornell and he discovered his his his textbooks in English were a lot cheaper in Thailand and he said to his parents send me a few and they sent more than a few and he had a nice thing going there and and so the question and the publishers got a little annoyed and and they brought a location the question were this obscure this obscure set of words in the statute mean that once he bought the book abroad could he do with he wants with it we had loads of briefs in that but they were so organized as to give us was obvious the lawyers and you know deliberately organized who was going to talk to us and how and they gave us a picture of copyright that spread across the world that spread into many different disciplines many different fields automobiles software you heard that case that you twice actually the first time as I recall it was divided then the next time it was six to three that's right now that's right that's right but but my point is that sometimes amicus briefs are extremely helpful and a lot of them are helpful because they'll give you somewhat different points of view spread the knowledge and I think we'll pick those up personally pick them up and and I will sometimes or somebody will say to me be sure you focus on that brief ensure you focus on it because there's a very good your lurks read to all the bring all the oh yeah of course I read them and then they don't have to tell you what which ones you want to focus on I've usually read them before they I mean they've read them but I will go through them on try to get through this is personal we will you could do it your hand I know it's habit that I look I read through them try to finish them a week or two maybe a week or a few days anyway before the oral argument and then my clerk has been reading them and then I'll talk to the clerk and say these are the things that were worrying me I want you to write me something that has that and anything else you want so there they'll write a memo and then I'll go back I see there four of you let's say and there's one of me so you got in there twelve cases so you have to know it three times better than they think I'm a mathematician but none nonetheless then we proceed we discussed that we have a lot of discussion in my chambers and we did in Goldbergs chambers we had a lot of discussion was fun and I hope it's nice for them and it's nice for me so after you left justice Goldberg chambers you went to the Justice Department Antitrust Division for a couple of years and then you went out to Harvard Law School we went on the faculty when did you think about becoming a law you crawl the first time you thought about it probably when I was working in the Antitrust Division probably wasn't it I always thought it was something I might do I mean certainly always there when I was working for Don Turner and he had been given that dresser at Harvard yeah and I was a special assistant and what did that entail is a special said you don't all those sorts of things I mean you just know well yeah I does I we Charlie Nelson and I argue that case oddly enough there was before the Fair Housing Act but Charlie was working for a John doar who was head of the Civil Rights Division and there was a case that we'd worked out that others did too for so there was a case that were that that to agree not to show say African American customers houses in white neighborhoods was an antitrust violation I mean wasn't it and so we argued that in front of the I guess the Sixth Circuit that was my practical experience so I haven't thought about that for a while but again I think we did win but you see the Fair Housing Act became law in Memphis Superior he didn't need the antitrust laws now we didn't need the antitrust office there we are but yeah I know but I wanted to do I thought i entrusted very interesting field and I wanted to teach it and there were only a few cases you see fabulous you can master the whole field and just half an hour Oh Phil Erina wouldn't say that I know I know Phil Arita was great wonderful day attitude what what enticed you to go to Harvard in and become a law professor do you remember what what what sort of they offered me a job well that was it but you had a job and you probably had a job well we could have gotten some other job someplace if you tried really hard yeah I mean I I mean I I did the Harvard Law School it was I felt that this was a kinda it was certainly a privilege to be offered a job at the Harvard Law School to teach there and as it is at many many law schools now but it wasn't theirs it wasn't the pay was quite well every different job I've gotten has had the beginning pay let lower than the last maybe that's not seems to be yeah yeah yeah yeah I know you do I have a little son I had a monopoly on it no no no I guess you're right at that time well anyway here we are well you didn't take a pay cut when you went to the Supreme Court from the Court of Appeals at least I had to stop teaching ah okay and and what uh Deena did you enjoy teaching yes I loved it and then right III riding has always it's always a strain it's always agony it's always agony and I think the the reply sure that you get out of writing is that you finish right which provides and you think but but teaching my goodness I mean then particularly you like that the students are they're thinking and they're not respecters of persons you better have a good thought there and you better be able to express what you want and you listen and goes back and forth and I really enjoyed that I really I do enjoy it I love it and so on your writing you've written three books on the court plus a book before then if you didn't don't enjoy writing then why you continuing to do this you have to leave it you get some writing drill every day and at your regular day job right what do you mean a book before then haven't you read of the regulation of federal power by the federal by have energy by the federal Power Commission which is only numbered two million eight hundred and sixty seven thousand on the amazon list what about your book no regulation and there are a couple of others on regulations the the can I tell one many time the LA Times got hold of one of those books I think it was that one for some reason this isn't I was in the First Circuit mighty mountain and the reviewer reviewed it for a pretty technical book and this is the review he starts off he says in the Alice in Wonderland Alice and the Dormouse emerge from the pool of Tears the Dormouse begins to read from Humes history of England why are you reading that says Alice because as the Dormouse we're wet and this is the driest thing I know you can has a depressed obsessive ah okay I think I wrote a blurb for the back of that book good I don't think I said that I said anybody who's really really really interested in regulation I read it well nobody else oh no you did not say nobody that's why it's been a best-seller but but your books on the court I think this is a change from when you were a clerk that the justices didn't work what justice Douglas of course wrote up brought a lot of books but mostly not about the court or the Joseph story road bodies yes Joseph story wrote treatises difficulty books that kind you've written well you're close Rehnquist wrote a lot Rehnquist wrote several they're very good books too I know he wrote he wrote a very good book on the Supreme Court you want a book that's clear and explains the workings of the court from the Chief Justice's point of view it's a good book and I thought also is a good book though it didn't it he didn't but he couldn't cover the whole thing is the Constitution in wartime as he went through a number of the Civil War the the world war wrote one and he discussed the cases and there aren't that many that had come up in in time of war it's a good book and he was working when he died he was working on another one the reason that you write books is if somebody has had this is you right you right you can't help it and this is a teacher in a sense I mean and lawyers have a there's some of this in them too you like explaining things to people you do or try and you try that's right that's right and you have experience why write about the court the I have an unusual experience that's what Harry Blackmun told me when when it was his seat and when I talked to him he said you'll find this an unusual assignment right and but you want to explain to people what is it that you see I mean this book is about the court and the world is really about the cases in front of us that require us to look beyond our own chores and my point is they're more and more and I try to say what they are and group them and so forth so that the real question is how do we deal with them it isn't some argument whether they should be there or not they they're there all right and they're part of the law but what am I trying to do I'm trying to explain it from my point of view that is the experience I know because there are many many law professors who will know the field much better than not but I will know what it's like to be a judge working in that field and that I can explain and I want people to understand it I want people to understand how the court works and you're the best you're the best way to get that done not me I said you're the ones who can the lawyers and the students and the others I say contrary Ottowa a woman who was president of the Supreme Court of God is in my office and she says she's trying to make the the her Constitution and the law they are more susceptible to protecting democracies and human rights and she says why do people do what you say right and there's a long history there a long history of sometimes not civil war eight years ago segregation all kinds of things so the best to do is to explain that history or to discuss it briefly or to say it's custom it's habit Americans do and they don't think about it good good I takes a lot of work and my own view for her was you you want a rule of law and the rule of law is easy when you get decisions you like it's not quite so easy when you get decisions that you think are important harmful and wrong oh yeah that's when the issues comes up and at that point if you have a society basically that will follow it you're getting a rule of law if you can keep it that's you know etc but I say to her so don't it's not it's not the people the judges already agreed with you the lawyers do too you know they're making a living out of this but contrary to popular belief 390 million people in the United States out of 320 million are not lawyers and they're the ones that have to understand it so I say when I talk to a group of students or others I I say a law they go out and talk to a newspaper go out and talk to a high school in Boston they do bring high school classes into the into the federal courthouse so they can see the case and discuss it and debate it good the more that the better and they have tons of standard and if they'd understand it forget it the less that we had one of these conversations I promised you I wouldn't ask you about court cameras in the courtroom so I won't ask you about that now and trying to get that people to understand what goes on in the Supreme Court because it's going to be a while right I think it'll be a while and and and the reason is it's easy to see why and if you want my most profiling on it it's when we had a case like that Arkansas case which was the question of the constitutionality of term limits on Congress members of Congress they wanted to no more than three terms and you see look at the Constitution it is really evenly balanced really evenly balanced I mean you know it says you have to be 25 years old and a citizen United States resident of the state doesn't say those are the only things couldn't they at least prevent lunatics No then we want to the court couldn't they have a property qualification felon felons I don't know oh that's not going to detail basically but let's debate it my students teach that class I think of and that's what you would you bet so my point your my point on the on the cameras if they could have seen that people could have seen that the or the oral argument they would have seen nine people who are sort of struggling with this I think it's very tough and there are two sides to more questions than you think and and they're they're pretty tough even though the cases that go night and nothing you use of course there are because even in the nine to nothing you having to go a little bit like this and so okay all nine go like that the fact that it's nine to nothing doesn't mean there weren't two sides of the case and doesn't mean that it wasn't a difficult case all right so now why not cameras in the courtroom well it's a risk no going back some of my friends in the press say to me don't do it why not wait till the first time that that you see somebody saying what went on saying it totally wrong having a picture like you perhaps looking like Torquemada but not saying taking what your words out of context and making a big joke of it now so what if you ought to be used to that but but you will watch what you say I don't want to watch what I say I say in oral arguments and particularly ridiculous things from time to time okay that's my problem and I and and you you want the judges to be and the lawyers you want to get if you can get get them into a conversation and so we don't know what will happen exactly but we get to listen to them at the end of the week now anyway that's all I listened listens great so you you're okay for radio sure then we do it so I think that with the one of the great things would be to have the announcements of the opinions when the justices read from a short summary to my house we come up as come up well just came up now I never take a position without thinking it through ah I don't know I don't hurt I don't know I want to change the subject for a second and ask you in the late 1978 I believe you took a leave from Harvard to come to work for Senator Kennedy what's quite a different world or teaching it to law school tell us why you decided to do that what you got out of it other than possibly your appointment to the First Circuit I'm certainly that was a fluke and and I mean a judicial appointment I'll tell you right now it's like lightning striking and everyone on the Supreme Court knows that not only did lightning have to strike it had to be strike twice in the same place and that's not phony everybody knows that that there are a bunch of other people who could have been appointed I wasn't an appointing person nobody thought when I went there anybody else work there was going to lead to some other thing the reason but it was fabulous I loved working in the Senate I loved working for Senator Kennedy and when the idea I mean every day we'd go into bicycle you would you you then and be there early in the morning and every by the way every single of morning we would have we being ken feinberg and I would have breakfast with Emery Sneden who is Thurman's chief person on judiciary former I was a Republican though that's my point yes and and we would plan the day and no surprises uh what we used to call it was open conniving openly arrived house but they the the the fact was that it worked it weren't people liked it and when there were judicial uh judicial nominees they would be jointly investigated the first team was Duke short who was was Thurman's person jointly with carmine Bellino who was had been Bobby Kennedy's investigator and then later Bert WODs and the two of them almost always I can't say always that almost always would write a joint report and it was very rare that we wouldn't confirm people and we just go through sometimes the report akan a few instances that report was negative and then it wasn't a partisan division and so it was a different world I understand that people tell me that but it was it was great and Kennedy those other things on the cop god I he was fun it was fun and interesting and and I think his view was heard him once so this at a staff reunion where he was just talking but he thought he he said his father had told him you got people together people are different views different abilities different capacities and you get them to help help what during the staff help him help yourself but help somebody else and he would you'd sort of compete with him with the other staff members for time and if he saw something was working was going well he'd give you the time and then you could make some progress and I put on that cup I'd say one of the things is don't worry about credit I'm not saying he was immune but nonetheless don't worry about credit would he tell us is credited a weapon and you use it to get people together and if the thing works there'll be plenty of credit to go around and if it doesn't work who wants and the way you'd compromise you don't say I'll go here and you go here and then we know you listen to what the other person says you listen and then sometime if the conversation goes on long enough you'll find something that you agree with and then as soon as you find that you say what a good idea you have what a good idea let's see if we can work with that and then if you're managed to work with it and get it with other things and so forth and the thing does go through time after time the press wants to know how this you push the other person out in front push the other person out the front and then maybe next time though they appreciate that and I learned that I learned that I mean I cannot tell you the amount that I felt was like but when you know guarded you didn't know that you were going to learn all these great things what prompted you to decide to leave Cambridge for a couple years and come down here and work for Senator Kelly I worked for him twice the first time was in 75 and I had worked that summer preceding for Archie Cox trying to organize the the what they'd had hearings in the Senate in January on that one the dida beard memo on yeah any of us remember whatever was good but it was part of his Watergate investigation and I was down there that summer putting trying to put that together and probably he might have later recommended me when Kennedy became chairman of administrative practices subcommittee I was teaching administrative law so he invited me down to he wanted me to be I took leave and came down to run a hearing we went through it and I'll tell you you won't like it but I'll tell you that we ran hearings on airline deregulation and we thought that was a good subject the reason we thought it was a good subject was and I still think it because the prices were too high the theme of it was a business travelers happy to find a seat on which to rest his briefcase as he know he's paying full fare for the briefcase and so by introducing competition see a lot of people come around that competition less regulation the ones who didn't want it Ralph Nader wanted it the I wanted it the economists wanted it and the industry didn't want it nor did the regulators and they didn't know what competition was he's not price competition so we had hearings on that and it's still around nobody like that was actually Andy de Bourgh knee who is as always in one company I think somebody really knows the company well and is never the president but he's high up but without it United Airlines at that time as a man Andy de Bourgh knee and we went out we're talking to various reasons going through some technical stuff and he said I think actually you're right Stephen and we were than economists he said you should have price competition you know what the airlines will fill up prices will come down but you Steven will hate it there we are go look at the prices they're about half that they were in real terms in in nineteen not everyone averaged in 1973 and you can't find anybody who likes it unless you try of course to start an airline it will get people much better service really comfortable very good food and charged in 50% more unfortunately all those airlines go bankrupt because I guess people prefer the lower price all right that's my defense that's very defensive but that's why I came down to work on that and that went pretty well I guess and then when he became the chief when he became the chairman of the Judiciary Committee he called and said would I come down and be chairman or not chairman chief counsel when he was chairman and my goodness that was fun and interesting and just a fabulous fact I mean I loved it I really loved it going in there every every day it's like you'd work with senators of different parties and try to accomplish something that was that was constructive and and it was it was good she was really great near the end of your term and right after the presidential election in 1980 you got nominated and confirmed for position on the first circuit yes they couldn't agree on anyone else and where I was but but there was it but there was a trade-off wasn't there there was a didn't wanted senator sermons people get confirmed for the funding as far as I know there was no traitor would that have happened could that have possibly happened today well you're the one who would know that better than I the the it's true that I was nominated I mean they then been in arguments actually to be go back to that history I mean for most of the year we were trying to get Archie Cox can nominated and he was Jimmy Carter who's president wouldn't do that he said he's too old well maybe that was possible I don't know we didn't think so and then they turned to try to get someone from Puerto Rico and then they were trying and there we were it was September and nobody had been nominated in this vacancy which is in principle a seat that normally a Massachusetts resident held and so senator had the idea what about Bronner and the senator Thurmond thought it was okay oh there we are it had its moments I mean it was a filibuster house but they didn't stop you if it could have been a reason because president let senator Laxalt came in if you're interested in this detail under senator lack salt had been on the committee and he is was a campaign manager or very high up in the Reagan thing and he voted against the filibuster and that was significant yes and others did too and the P was being led by though god this is really ancient history I mean there had been a nominee from from one of the Democratic senators States during the year for a judgeship that gret we came to the conclusion it was something real was serious ethical problem with this particular individual and they pressed it and Kennedy in a majority of the committee wouldn't confirm him and so that was perhaps involved oh I'll tell you the whole story someday but there aren't going to be is going to be that much interest in this very large group in nice about 1984 or so you you were chosen to be on the Sentencing Commission did you work on sentencing at all when you were working for Senator Kennedy well it was primarily Feinberg's responsibilities I say that I had a Libya a little bit to do with it it was in the reform of the criminal of the criminal code and afterwards I remember this is October 1967 and the reason I remember it is have it now yeah sick no eighty 1787 and a few weeks earlier the stock market had crashed so I was having lunch or dinner in the in the Fifth Circuit at that time I think no Eleventh Circuit was and explaining to the judges what these guidelines were supposed to do supposed to bring uniform into sentencing so what and he said well what did you do before you were judge and I said I'd taught and I'd worked for Senator Kennedy said what did you work on I said I worked on airline deregulation and he said oh he said you worked on airline deregulation did you use it as a joke I said and you helped to produce these sentencing guidelines in July 2000 he said if you they didn't just put you in charge of the stock market he said hey man hey all right so you recall a conversation you and I had about when you but the time you got on the Sentencing Commission when you you called me on the phone and said to me Alan I have this question for you he said I'm on the Sentencing Commission and there's some commissioners who want to be in secret and I said to you well they can't do that it's covered by the Federal Advisory Committee act and you remember what you said to me no I don't I usually remember everything I ever said to you but he somehow so you said to me although it's not an advisory committee I said what he said I don't know we're actually gonna write binding guidelines I said you can't do that who was on this commission besides you and it resulted in a unsuccessful effort why me in the Supreme Court in which the Sentencing Commission was represented separately by Paul bath or and the Solicitor General Charles freed was on was representing the Justice Department and I lost the case eight to one Justice Scalia siding with me but eventually the court moved away from mandatory guidelines too permissive guidebooks will advise the idea the idea of the guidelines which says it says it in the introduction is the judge if you have an ordinary case this is we tried to make the guidelines reflect what say sixty five thousand previous cases that you've gone through computers and so forth what really happened to these individuals and what were the variables and when it's this it's this and when it's that it's that mean we've based it on what really was past practice and the what the guidelines say at the beginning and they still say it you say judge if you if you have an ordinary case apply the guideline judge if your case is not ordinary depart when you depart write your reason write your reason and that will be reviewed in a court of appeals for reasonableness and then what the commission is to do is to gather the results of all that and use that to improve the guidelines so it's supposed to be a three-part iterative process and gradually the guidelines will supposedly get better over time that was the theory that's there in the did through this day in the introduction and the reason you have the reaction you did is because a lot of judges just applied the guidelines not looking too much to see if it wasn't an ordinary situation and and of course now it has change to a degree and perhaps they do that more but that was the original purpose because I think it's back to where yeah we're in a good day pretty much it depends on how many departures there are it depends on how often you don't want them it's a similar system existed in in in in Britain what you do is you you tell you get it's called the tariff and if you have an ordinary case this is the ordinary punishment and for this kind of behavior and it brings about greater uniformity so that the sentence depends upon the behavior of the individual rather than depending upon which judge you happen to select or which part of the country and that was the theory of it and so having a significant number of departures following having everybody you never had you know you don't want to reduce it to nothing what you want is to create greater uniformity not perfect uniformity and that was the idea behind them and I suppose that the court now has made that I think more likely there's still problems with the guidelines I want to turn to the death penalty subject now and at first pass can you take us a little bit behind the scenes and talk about the situations in which appear to be fairly common in which death is a sentence about to be carried out and the court gets last minute papers what happens what how much time you get you get notice and how does that work internally because it's something that's hidden from the world that it's always interested me as to how those literally life and death decisions are made by whom and at the last minute well first almost I'd suspect that almost every instance where a death penalty is about to be carried out will come to our court at the last minute usually dare to ahead of time normally except in rare instances there have been years of litigation I thought I've written too many far too many years it's one of the problems with the death penalty for years it's a bit all right in any case now what will happen practically is a very few issues have not already been litigated and brought up and been to the Supreme Court in the form of cert petitions several times possible but sometimes there is some but I do have a pretty good legal point and it wasn't previously decided there it is in front of us right before an execution there there are staff people permanent staff people in the clerk's office who follow the death cases and they will know usually a week or maybe two weeks ahead of time and then there will be and they'll know what it's about and and the the quite the last minute no no no no and then there will be a person a judge one of us in charge of each circuit yes and so for example quite a few come out of the eleventh or the fifth circuit and so that judge knowing that from the clerk that it's likely to come up will have one of his own clerks and say she'll go and follow it and then ask the last day or two when it's filed finally and then it'll be somebody I mean they may know I have a list of what's likely to come up stretching out a few weeks right now so I I in my office I have that and my clerks have divided those up there aren't that many now but but they've divided them up and they'll follow them and then they'll know what's likely sometimes it's surprising but they'll know what's likely to occur and so the memo will come around from the say the Fourth Circuit Justice or the Eleventh Circuit justice and make a recommendation and then we vote and sometimes people will have even though it's only if I'm not here when the but that also gal got me on the phone you know that's the wonderful thing I thought of turning off my cell phone and I realize I was running a risk but it is unlikely I had being briefed that somebody's going to phone you from your own staff while you're sitting on the bench in the Supreme Court I that doesn't but any case they'll find you they know where I am and therefore we will hear even if I'm that's something you know that's that's sometimes difficult to organize but it is organized so that I will with at least a few hours and usually a day or two know what the issues are understand the arguments which are usually fairly easy to understand and see if it is that one a few cases and then we vote and very unusual that somebody misses that rope and it isn't somebody voting for him it is the justice funding and the they can't vote for me going together I know that's it no sometimes sometimes will issue a stay so it can be disgusted conference that's rare but it happens and and usually it's a question of a stay and in most cases it's denied but sometimes not and then if I might for example if somebody might write a dissent and if I write a dissent I mean I have to know a day or two and I think it's likely to be a dissent I'll get it drafted and I'll look at it now write it I'll sit down and do it everything I want there with it and we had one in the with the eight executions out of Arkansas yeah yeah and I had written that and probably a day before circulated because I think maybe maybe somebody will look at that and sometimes they do and they say uh maybe we should discuss this but it is up to the justices they do look at the things they do know the issues in the case they have gotten the memo from one of their number they may have gotten a couple of memos and they will decide and I think it works reasonably well your opinion in 2015 suggested to the court that time had come to revisit the death penalty issue again when did you start if you remember to get interested enough and that obviously that opinion was not written solely in respect in the case before you would look like it had been if you've been working thinking about it working on it what got you interested you certainly didn't have any very many death penalty cases on the first circuit no I think that what happens after you're there for a while you begin to get I think that happened with Stevens and I think it happened with Lewis Powell and I think it happened with Harry Blackmun you get the feeling what I said in the opinion this is random now it's one thing to say it and it's another thing to sit there over a long period of time and begin to think yes it is it is there is a problem here there is really a problem and so then I thought okay I could say that but what do I add really - what other justices have already said Arthur Goldberg wrote an opinion limits in years ago and I thought well I could add say I agree with them and people say that's very interesting it's nice fine or I could try to do something that would in fact be useful to others and therefore we spent considerable time with how I first need to spend work I'd say you're in half and and over a long period of time gathering the information trying to organize it trying to work out the thinking and trying to say look I'm not going to say it's unconstitutional either I'm going to say we ought to consider it because that's what I think and of course I shouldn't I mean in my opinion it's you don't decide a major thing without hearing argument so I wanted to make that point too and so I said well look at the facts look at the figures look at the situation and now that's that's sort of my style in a way or lack thereof if I if if I'm writing a decision if I'm writing an opinion and if I'm writing dissent particularly I want anyone prepared to spend the time to read it to say it's we're sort of moved in this direction by the facts by the law by the argument it's not my personal view it is there we are and I think it's particularly true with this one I mean you want people to say look at that G let's think about it let's think about it let's think about and that's that's what that opinion is intended to do so the opinion talks first about arbitrariness randomness and delay and delay is a kind of a two inch proposition now because in one sense if you have speedy executions you eliminate the delay problem what you worry much more about wrongful executions wrongful conduct right that's right and and so how does the delay fit into the your notion of the constitutional analysis well that's where I ended obviously I said what were where I think this leads is that there are two two major circumstances that are at loggerheads the reason there is all this to like is because there is endless occasion to worry about whether it's the wrong person so you want to be really sure that those procedures are thorough and complete and even then sometimes it might be and what a death penalty is appropriate under all this correct correct correct all right so what that means is it's going to take time we don't over take this much time but on average 18 year delay we had a case where the other day where I wrote something and I couldn't it was 40 40 years 40 years old I mean really so my point is Pina logically I mean going into a system where in fact it will be you'll be the person would be executed after 18 years average maybe much longer what penological purpose is that serving vengeance he's a different person um deterrence it's random and few I mean what so the were I'd ended up and I said this at the end that it seemed to me you can have either a system that really is reasonably fair and tries to correct mistakes or a system that has just some justification in criminal penalty but you can't have both and if in fact you want both you can't get it but as long as you don't have both I ask the question what justification is there under the Constitution for having a death penalty that's a little too clever by half but I hope that by the time you read or someone reads the few 43 but who's counting pages of facts and figures and so forth a person will be driven into a state of mind where he'll say maybe that's right maybe that's right maybe we do have to hear it maybe we should think about maybe we should consider it etc okay that's that's what the opinion is trying to do I'm not saying it's a only approach I'm saying it's one approach and I ended up saying we should consider it as you know there are many fewer executions now many fewer convictions that could lead to an execution some people say we should still keep the death penalty around to deal with the worst of the worst and that the politics of it will work out the juries will no longer give the death penalty except in the most extreme cases and that legislators are starting to realize the tremendous cost in human life and in actual money to keep people on death row forever and that may be this is an area where the court should stay out of it and that if the court stepped in and ruled the death penalty unconstitutional we would have a big fight in the election about amending the Constitution to allow states to do it does that kind of thinking sit at all in your in the back of your mind when you're thinking about these kind of she's not much no enemies I think there's two whether it has been limited to the worst of the worst out of a section where there was a big study in Connecticut and so forth and it's very hard to say it's given to the worst of the worst bad again you see if you see enough of these you have a subjective feeling but these are I mean some they are but some are not and then you look at what the scholars have done there and say they seem to bear out the subjective reaction and as to whether people have a political fight or not have a political fight I mean you know you never can say never about anything but in the building I work in I think that that is kept to a minimum I think we try to keep it to zero and I think that it comes close and there I need you say what about Bush v Gore I think I might be able to convince you even there but it would take me an hour and I might never succeed and we could separate your vote on equal protection from your vote on the remedy issue in that context I mean any of it you did you did say that it was a violent you and Justice Kagan absurd justice Souter said it was a violation of equal protection we have many recent law school graduates and law students here in the audience and I want to give you a chance to to give them some words of wisdom as if you could think back when we started your career and what you've learned over the years what would you say to them if they would like to have a fulfilling career and not simply bring in a paycheck every week or so are there a couple of things I often say that students and law students one is both of the students students in general I say that you know I do believe this strongly and I probably reflects my own experience but I say I can't tell you what to do with your lives it's gonna be up to you but I can say I hope you have someone to love I hope that you have a satisfactory career and I hope you spend some of your time in public service could be any kind library board school board who knows and I said why do I have the authority to say that I say I don't except for the fact that I do work with the Constitution every day and I am reasonably certain that unless you do participate in public events that document won't work that's what the founders thought and that's what I think my experience leads me to think and luckily when you come to lawyers I think we're in a profession that really calls for an exercise of both head and hard the tooth if you mean no you say everybody has strong feelings you know your feelings are not necessarily better than the millions of people who also have strong feelings and maybe totally opposite than yours everyone has that but you do have a pretty good brain if you're in the law because otherwise you wouldn't be it there and you can contribute both see that is a virtue to our profession and if you want to be a judge there's no way that you're going to know in our system whether you're going to be a judge or not a judge and as I say a federal judge is like lightning striking but my father gave me two pieces of advice the first rich I say is true used to say stay on the payroll so maybe my pay has always gone down but I have managed to stick on the ferrule all right so about the the other thing you said well it's very corny but there are some truth to it and people really believe this who grew up in the 30s the the the do your job you know do your job and do it as well as you can and pay some attention to what other people who you're working with or for or whatever it is to what they're thinking - and you do your job well and you pay some attention somebody might notice you might get what you think is a better job on the other hand they might not notice and then at least you will have the feeling that you did at least this job pretty well so he said say you see it's no loose and that's always been pretty good I mean you know there's I have nothing else to contribute here because I don't know the rest of it you make decisions Bayless Manning told me that because maybe some of you were about to make some decisions younger ones or not when I was your age and finishing my clerkship she wanted me to teach at Stanford and he said look don't dinner so much he said really said you will not know when you make major decisions in your life more than about 5% of all the things you would like to know if you were we're going to make a rational decision I mean try and stay away from things that are sort of slightly nutty I mean it's unusual and perhaps wrong if you want to be a trapeze artist but nonetheless still okay and within a broad range you make your decision you do it and then life sort of wraps itself around that decision and there you are and some good things happen quite a few have happened to me very luckily and then some things well but but there we are so he said this now that was this point and I thought I always thought that was a good point I thought it was a good point at least to be considered by people who are in their twenties and who are making some of these decisions another way to put it more moderate lighten up well we have taken a good deal of your time today Justice Breyer thank you very much for coming and sharing your wisdom and thoughts with us and we [Applause] [Music] you

Channel: American Constitution Society

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Keywords: American, Constitution, Society, United, United States, States, Supreme, Court, Supreme Court, US, U.S., SCOTUS, Justice, Stephen, Breyer, Stephen Breyer, National, Convention, National Convention

Id: ksuRCixAto8

Length: 76min 39sec (4599 seconds)

Published: Mon Jun 12 2017