U.S. Supreme Court Justice Stephen Breyer on 'The Court and the World'

so I've come up to the podium many times and I don't get applause before I say anything so it's pretty clear that that applause is for you just as Froy I am delighted to see you here and honored to introduce Stephen G breyer Associate Justice of the United States Supreme Court this is an extra-special honor for me as I had the privilege of serving as the justices law clerk as did my colleagues Dan Ortiz Rachel Hartmann and Farah Peterson we were theorizing last night that we might have the highest proportion highest number of justice breyer's law clerks on a faculty here and several of our graduates so we are thrilled absolutely thrilled to be able to welcome Justice Breyer for most of you and given the applause he needs no introduction but I will happily offer one anyway and maybe there'll be a few things that you don't yet know about him justice breyer has led an extraordinary career spanning more than a half-century in government all three branches and the academy he was educated at Stanford University at Oxford University as a Marshall scholar and at Harvard Law School where he graduated magna laude after graduating from Law School Justice Breyer clerked for justice Arthur Goldberg on the US Supreme Court he then worked for two years as a special assistant to the assistant attorney general at the US Department of Justice and he began teaching at Harvard University Law School in 1967 he taught a number of courses including administrative law and antitrust and he really made his mark in administrative law the fields before him had been preoccupied with judicial review of federal agency action and he emphasized the importance of understanding the substance of any given regulatory policy and I think you'll see that as a theme he wants to understand how it works and what it does according to Cass Sunstein quote it is fair to say that as a law professor Justice Breyer assured administrative law into the modern era so he was transformative even before he entered the judiciary he continued to teach at Harvard Law School and sometimes at the John F Kennedy School of Government at Harvard for several decades while also taking on a additional positions in both the US Senate and the judiciary for the following 30 years he served as special counsel and as chief counsel for the US Senate Judiciary Committee working closely with Senator Edward and Kennedy UVA law class of 1959 I'm going to just keep finding the UVA law connections justice just after Ronald Reagan won the presidency in 1980 in a landslide that also brought Republicans into control of the Senate President Jimmy Carter nominated Justice Breyer to the US Court of Appeals for the First Circuit and it's my understanding that Senator Kennedy was an important part of that process so we can take a little credit for them a month later Justice Breyer was confirmed 80 to 10 and he was the only judge confirmed in that lame-duck session of Congress he served as chief judge on the first circuit from 1990 to 1994 and on August 3rd 1994 he was sworn in to the Supreme Court by President Bill Clinton filling the seat previously held by Justice Harry Blackmun as a person Justice Breyer has lived life fully at every level in every moment he mixed salads as a teenager working at a summer camp he served six months of active duty in the US Army as part of a reserve program he dug ditches for Pacific Gas and Electric Code the summer before he started law school I don't know if any of you dug ditches last night that's on on the practical side he also taught himself French by reading Proust all seven volumes of and I won't even say it in French just in English in search of lost time in the original keeping track of the words that he did not know on index cards as he encountered them he was flourished in the ivory tower of Harvard University and the political hubbub of the Senate as a Justice Justice Breyer has operated at both the level of constitutional theory and of facts on the ground he has theorized Cass Sunstein says about the role of the judge more than any other justice and more impressively in his view than any other justice but at the same time that he does this theorizing it is deeply pragmatic justice breyer's theory of constitutional interpretation is grounded in the real world and in the consequences of judging and legal decisions he set forth his theory in his 2005 book active liberty he made the cornerstone of this theory court participatory self-government built on the belief that not just that government can help people but that government is the people his thesis is quote that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts and this requires judicial modesty because quote the judge compared to the legislature lacks relevant expertise but also the exercise of judicial authority to quote better law to yield better law law that helps a community of individuals democratically find practical solutions to important contemporary problems justice breyer offered up this theory as a challenge to other intellectual and theories of interpretation originalism and textualism most specifically and he offered them up in conversation with his longtime friend and constant interlocutor former justice and former UVA law professor Antonin Scalia this theory has informed major opinions and off also major dissents such as Heller versus the District of Columbia on the second amendment parents involved in Seattle schools on racial inequality and equal protection recently Glossip V gross on the death penalty and so many others to call Justice Breyer a pragmatist as he is often called is to flatten out what is a really unique and full approach to judging in life it's not that it's not true but it's really only part of the picture there is also the humanity he shows for everyone for those facing the death penalty for those held in immigration detention without bail he recently dissented from the bench on that or for the children who he reads to on National Literacy Day wearing his Cat in the Hat hat and I will say I still have my Cat in the Hat hat from that day and I wear it on Halloween Justice Breyer finds beauty everywhere in the world and he finds humor and he brings it with him everywhere he can when he was last here at the Law School in 2004 he told the following story about being the junior justice which at that point he had been for some 10 years he said that in a Supreme Court conference room quote if somebody knocks on that door it is my job to open it the other day somebody knocked and they had a cup of coffee for Justice Scalia I thought that was going a bit too far Justice Breyer has enormous respect for the job that he does and the job that everyone does for a job well done and all of the hard work that goes into it every year he hand signs a postcard to every Eagle Scout in the nation if some of your Eagle Scouts I imagine you've got a letter or a postcard from him despite entreaties from his staff that doing it by hand is necessary he shakes those off and scoffs at that saying of course it is necessary that is how you show due respect for the accomplishment that this deserves from one Eagle Scout to another the brilliance the joy and the curiosity that Justice Breyer brings to everything he encounters is always on display and I imagine you will see it here today perhaps most importantly is the respect that Justice Breyer has for the law for his own role in interpreting it and for the independence of the judiciary and finally is the belief that he has in all of you and in all of us to make the law truly work when he was here 14 years ago he was the keynote speaker at the public service law conference and he said quote we in the Supreme Court don't make democracy work our job is to help maintain a system where you make it work he expanded on these views in 2010 in a book entitled making our democracy work a judges view he recounted the Supreme Court's past infirmity when decisions were quote ignored or disobeyed where the presidents are the public's acceptance of court decisions was seriously in doubt he underscored that this is not that that acceptance quote is not automatic and cannot be taken for granted today he talks to us about a book where he has set his sights even higher or perhaps rather broader outward from the u.s. from our Constitution and from our court to the world the title the court and the world American law and the new global realities I wish I had such pithy titles there has been immense public praise for this book which reflects the justices characteristic pragmatism about how given new global realities the justices have no choice but to take careful notice of what transpires beyond this nation's shores Martha Minow the Dean of Harvard Law School former now former dean of Harvard Law School stated about the book quote there is no better or wiser source on the intersection of American jurisprudence in international law than Justice Stephen Breyer he offers insights on every page and his attention to both principle and common sense points the way for harmonizing national and global concerns while strengthening law and reason The Economist called this a tour de force analysis of the role of the Supreme Court visa vie the rest of the world but enough of me talking about Justice Breyer and his book you are all here to see him please join me in welcoming Justice Stephen G Breyer [Applause] I mean always such a nice introduction no I want to hear what I'm gonna say thank you and it's so nice for me yeah Brisa is Dean and have three others of my clerks you won't understand this you have you know it's like having a big family it's wonderful teaching here at UVA it's just great great great and she really went into detail I mean you know what do I say I mean you even mentioned the regulation the reason she mentioned the regulation book and so for the rape might work on regulation her first jobs when she came to work for me was we had a case that for some reason involved the long run marginal cost of electricity regulation and what she had to do was look through maps of Chicago to discover where the power stations were so if you have any questions on where the powers that sorry that's it I'm it just got it and it is true I did write this book I've read I've wrote on this subject the LA Times you yeah Times got ahold of one of these I don't know how they decide to review this in the LA Times but here is what they said about the book on regulation it said an Alice in Wonderland of Alice and the Dormouse emerged from the pool of tears and the Dormouse goes and starts to read from Humes history of England but why are you reading that said Alice well says the Dormouse were wet and this is the driest thing I know yes that's what I've tried to improve and she's acid that I speak about this book called modestly called the court in the world the the the what why did I write this book and what's it about and then we'll I'll do this for about 20 minutes or so and then you can ask whatever you want on any subject and I'll try to answer but but I won't succeed necessarily all right so the the book all right why well in part what I've tried to do I'm focusing on the Supreme Court but I'm trying to give a little window into what is a bigger question again I can use the literary analogies the in the good book right book the Charterhouse at palmist and does a great great great book and it opens up where the hero Fabrice del dong goes in the battlefield at Waterloo and the bullets are roaring past on the smoke of war and he sees Napoleon riding back and forth on his horse and he thinks to himself you know he says something really important is happening here is I wish I knew what it was and that's sort of how I feel when I see these words interdependence or globalization and and and what's this really about and I can't provide a global answer to that but I can look at all work and show you how it's changed over time and give you an idea of what it means at least for one institution namely us because that's what I know best at the moment and the the yeah and I do it primarily through example but when you were there because and certainly before it's a yes 18:43 when I first started I was thinking is I just were in Jennifer Neustadt as the legal counsel of the State Department she was there the second year and I confirmed that with her and when I began there the number of cases that had some kind of foreign implication and you had to look beyond the borders of the United States in order to get the answer 0 very few very few and now 15 percent 20 percent I mean you have to look nobody is going to disagree and that's the interesting part to me is where there's no political disagreement in the press or something you can't get the answer only if you look beyond our shores and that changed like this will require and has required other changes now I'll give you two or three examples there are a lot more but you'll see what I mean let me give you I'll give you one example because it's interesting that it's sort of long lined up in a short pitch but consider cases that are can great importance because we of course well let me start the other way the Constitution of course delegates to the President and to Congress not to the courts the power to keep us safe the security powers but they do delegate to the courts the power to protect basic Liberty as defined in the Constitution so what happens when these two things clash and that's more than a theoretical question particularly today but it was also true in the wars that we fought in other instances and how does the court decide well for many years the way the court decided like many courts was quite simple it more or less adopted Cicero's theory I don't know if you know Cicero's theory and I actually had to look it up but the fact is he said and I said something like I always forgot this it was my Latin teacher mr. McCarthy he said our mace he can't leg a sealant or something like that which I used to translate as when the cannons roar the laws fall silent that wasn't bad except someone pointed out to me once you know the Romans didn't have cannons and so that's sort of wreck that translation but but none the rest you get the idea and now look back you see to remember the Sedition Acts and look the Alien and Sedition Acts and what did the court nothing and read some time about Lincoln in the Civil War I understand his problem but he sort of defied the courts with habeas corpus and moreover he put thousands of people in the North who weren't in armed force uniforms and they were civilians he put them in prison and Seward is Secretary of State one time called in the British ambassador and said you see that Bell there if I ring that Bell I can push any but any one I want in the state of New York in prison and I put this one over here I can put any one I want in the state of Indiana in prison he said tell me he said to the British ambassador does the Queen of England have such power no the Court did decide a case on the Civil War an important one well after the war was over it's a little different yes that's not so hard all right now go to World War one and look and see what Wilson did mm-hmm what happened to free speech during World War one and now think of World War two where in fact most of us know I hope probably everybody that during the middle of World War two seventy thousand American citizens of Japanese origin were taken involuntarily from their homes in California and moved into camps in the Midwest theater now in region and I actually I met Korematsu once Korematsu very feisty God says I can't do I'm an American citizen and he brought a case there were four or five the general view among the Japanese was don't rock the boat don't do anything just go I'm an American citizen they can't do this to me and he brought a case Korematsu v United States read it and write and you'll see you'll see you see but but the the you know and I I'd met him because our next-door neighbor up in Cambridge and for one was used to be an Bezeq and she was the daughter of Ernie Bezeq and Ernie Bezeq was the head of the ACLU where I grew up in San Francisco in Northern California and he used to play poker with my father and she said he's coming over you like to meet him I did a great guy I liked him very much and I could understand he was 80 some odd years old and very feisty still interesting he said sure and he thought he was sure to win and Bezeq thought he would win but the ACLU initially would not support them remember this is 1942 and Pearl Harbor was in December of 41 and the general the Army General DeWitt says we've got to move them all and you know who supported him a hundred percent was a reward he later said this is one of the worst things I've done and you know who the leader of don't put them in jail was I mean don't move them into camps J Edgar Hoover very interesting he said the FBI doesn't eat that but they did and the case came up to the Supreme Court in 1944 and before it came up to lawyers in the Department of Justice Ernie that rather Ennis & Burling and they looked into the reasons that DeWitt had given why he had to do this and he said well there was signaling there were 743 signaling x' two submarines and we don't know who did that and we're worried about San Francisco being bombed and and there were five spies and and he said let's look into that and they got the FCC to look at it they came back two weeks later with a pile of papers like this and not one they said not one no no all these incidents of the seven hadn't know how to work the equipment and the spies they all took place after they were moved I mean really there there was no evidence and by the way Saburo whatever I think Burling said to the FCC he said how did you do this so quickly he said oh we didn't do it now we did it in 1942 we showed it in general DeWitt he knew it at the time and so at that point they say the lawyers we're not going to sign the brief and they called in Herbert Wexler she knows that was great law professor at at Columbia and he was running the war part of the justice department and he got them to compromise he wrote a footnote but really disowned the the army and but it was pretty much incomprehensible so I had always thought well you see because he lost the case the government won the K six to three and I'd always assumed they really never understood the footnote then I read the transcript they got the footnote charley horse key who is a great new dealer he represented the japanese-american defense league and he got up there and said read that footnote by that time you see he was back in the case but the conference which frankfurters notes says the conference on the case because the people in the majority there were the Liberals that were the black Douglas frankfurter the people who wrote brown v board of education six to three black walked into the conference and he said well someone has to run this war Roosevelt or us and we can't that's it that was the argument three dissents Roberts tactical Jackson and Murphy Murphy read that the Senate I think was a hundred percent right a hundred percent right there was just no reason for this and certainly 1944 there isn't going to be invasion in 1944 but they did lose and probably for the reason that black said that's my own view all right what do we do later in the Korean War for the first time that I can think of just about it might be other instances but the supreme court said to President Truman you cannot seize the steel mills even though your reason is to protect the Army in Korea which is in a war so my view of that case it's very interesting is famous for a different thing for a kind of three-part test and so forth the Jackson wrote but yeah your honor but but but in my mind the court is saying Roosevelt you've gone too far now it's much easier to say Roosevelt you've gone too far when Roosevelt is dead and Truman is the president because he's not quite as popular but that is I think what they were saying and well now what Guantanamo jump to that for cases for cases each brought by a pretty unpopular person a detainee in Guantanamo the driver of bin Laden was not a popular person against the most powerful people in the United States the president secretary of defense in each one of those cases the detainee one and you could read them courts are open though Congress said it was closed statute violates habeas corpus - the court held but I think the line that is and this is sort of where I'm getting to the punchline of this long story it is most important to me or characterizes what we've done is Sandra O'Connor wrote which I joined and she says in her opinion the Constitution does not write the president a blank check not even in time of war yeah okay so the reason I just poke that is because I want to put in your minds what will originally and initially and I'm overwhelming maybe the question you will ask well if it's not a blank check what kind of check is it now go read the decisions and you will see no one likes them one side says what you're doing is you are interfering with the president who has to protect us the response I make to that because I joined those decisions was well what do you want Korematsu you want to go back to that you want Cicero or are we past that yeah I think we're past it we don't like Korematsu don't go back well then we get the other side why didn't you tell us about here sake why didn't you tell us a few of these rules why were you so general why did you keep back this sort of more narrow decision and of course the answer to that is because we don't know the answer to the other questions because we're not you know we don't have a direct pipeline to heaven or anything we are human beings in this job who have to learn from the lawyers in other places and be careful go slowly at least that's my view of it but if I'm close to being right then you will see why I bring up this story because you can't decide these cases today without knowing something about terrorism I don't think you could decide them de sensibly without knowing say or at least broking at how other countries which are democracies and have similar problems deal with this kind of thing we have to know something you can't just say oh well the State Department whatever they say I'll be fine or whatever depends that's what you're litigating I mean certainly they'll give you interesting things to think about but but and the lawyers will try to develop things so there'll be various ways with the lawyers saying why did you do this government why didn't you do it in a more restrictive way and what's the need and and they'll be classified information well what kind of rules do you have so at least the judge can see it and and how far far do you going think of the questions that are beginning to come up and then think of it for at least a minute from my perspective which is how do I do this how do we get the necessary information that's just one major question that I think is out there there's another one there are many many think of the economy I mean think of cases involving antitrust I mean we had a case involving it we have a vitamin distributor in I think Uruguay or Ecuador someplace and the defendant which was part of a cartel a manufacturer part of a cartel with one u.s. member is in Holland and the the Ecuadorian brings a suit in New York why did he sue in New York well one reason is because the price of vitamins is so high you can't get the vitamins and he's too weak to get to Europe that's possible on the other hand treble damages may have something to do with it to say so so anyway he's suing in New York and does our law cover it and you read the statute that directly applies to this and good luck all right so we have in that case we have briefs filed by the European cartel authorities by France by Japan by Canada by all kinds of countries were telling us they too have antitrust laws and be careful of how you proceed here there's a word that describes it it's called comedy and what's wonderful about that word is you have no idea what it's about I mean you have know what it's about it's about the foreign country or countries and how you reconcile things I mean there are lots of cases where a judge today in America maybe an antitrust case maybe a securities case where there's a plaintiff from Australia suing in this country for fraud under these security statutes a Australian firm that sold stock on the Australian exchange but the fraud was in buying a company or land in Florida all right what do you do again briefs him all over the world and the Australian saying hey we have securities laws - leave us alone please and and what's interesting about that case to me is Justice Scalia and wrote the opinion which I'm joined is filled with citations and discussions of what these lawyers from the different countries have told us and not just the government's Bar Association's or associations of practitioners from Holland and that's all over the place and you know to decide a lot of these things there is no Supreme Court of the world where there are clashes and so forth fine it's easy for an American judge where you know the Supreme Court here can decide it and how these things work out just say well let them decide it go supreme court of the world so in a certain number of cases judges here have to think and what happens if other countries follow the same principle that Kantian question is sometimes very helpful will this universalize the way in which i'm deciding this case and what's interesting to me is there are more and more cases coming up where that is not just a theoretical matter that is a necessary matter go look some time at the Alien Tort Statute and see filled with interest filled with interest in this area and importance how many is I'm not going to go on forever but I could there are a lot of cases but how many of you just out of curiosity if I I'll give you a number right now he said look problems now exist environment health safety business immigration all over the world which affect us and the way in which many people are dealing with this is to a whole range of different international systems sometimes just a few people discussing it sometimes as in the case of antitrust protocols made with the EU sandy crest authority that are like this thick you know sometimes through executive agreements sometimes through treaties and if you look at the treaties today there are more and more compared to the George Washington's time not France and the United States agree whether there are 28 countries or 128 countries and they're setting up a little bureaucracy over there and that bureaucracy is the the staff from many countries who work for this international group and they will have rules and these rules may well bind if not legally at least in practice people in more than one country I mean think of it you don't have to just think of the UN think of the International Trade Organization I think of there are a lot of them so if I asked you and I say see professor because they seem Italy has done a study of this if I asked you just a guess off-the-cuff guess how many organizations in the world do you think there are that in practice bind people or businesses from more than one nation okay yet the collection say like ok so I'll say are there more than 50 how many think there more than 50 more than 100 more than 500 more than a thousands more than 2,000 yeah more than 2,000 the answer ok and we belong to over 800 I sent my this research assistants on they counted them because they're registered somewhere but at the State Department and they're more than 800 say and what will happen what we're going to have to I believe eventually we will start litigating what is the status I mean when the SEC goes over to ball and the SEC staff goes to ball and involve a meet the representatives of the banks and they meet the regulator's of banks from other countries and they work out certain things they're going to do and then they come back to Washington and they promulgate a rule for comment and everybody fairly gets to comment but a few of those comments say what I'm doing that you decided this already you decided this in ball and you decided that in a room where I was not and you decided that in a room where the banks were and you decided that in a room where I didn't even have the right to come in and somebody is going to say that there's a problem there indeed they're saying it already all right or you'll have this where Congress may I'm time you may we never know but Congress may delegate a lot of power to organizations of different kinds to make rules and there are all kinds of them I mean I know you've heard of the IT oh not everybody has heard of the blue fin whale Commission but somehow yeah what about the International Olive Oyl Council see there's another rulemaking body well they were all over the place and what is the status of this delegation hmm well the Constitution says Congress shall have the legislative power it doesn't say the International Olive Oyl Council shall have the power but wait if you can't delegate how are we gonna solve being how do we how to resolve these problems internationally and doesn't that sound familiar it sounds to me an awful lot like the New Deal nobody ever heard of these independent agents well we found a place and crawled events and various other case the court worked it out they worked something out and we'll our court again have to work things out and you were going into fields like this I don't think this is a field you know for a special course called Internet whatever I think it's a field that belongs in every you know in contracts in torts and in commercial transactions because it's part of the life of many many many lawyers and they're filled with unanswered questions now you say well I think there's a lot to answer and it isn't really so much which is the great all I have to do is go into a group of people who are you know certain group of people and say well I think we should read foreign decisions I did I had this once there was a very good congressman or he was a congressman from Virginia and we were discussing this issue in a public forum or that you know sometimes they have a judge and they have a congressman and they have a professor and so forth or in any case it was one of those forums and you get launched into long diatribe and about why we shouldn't refer to foreign cases and I said I guess that same did me and he said yeah was actually I said okay yes I said let me tell you why we do that I say why not I read what they say we have similar problems we often have similar documents we often have similar institutions I don't have to follow it normally but when I read it I might learn something and he says fine buried it read it read it just don't refer to it in your opinion it's a stupidly not then no no he's not stupid he said stupidly I say oh well and also you know it's helpful to them sometimes they're not used to having an independent judiciary very important and they can go to their legislature and say go cut their I pay this year and things like that they refer to us and so helps build the state as a judicial system and he said fine write them a letter you say so I'm writing this book for him I'm writing it for him because I'm saying look I know you're not going to accept some kind of reasoning idea I want to show you what our work is like I want to show you and now when you look at that because it reflects a world that we live in you tell me whether we should pay attention to what goes on abroad or not in these kinds of cases and I think he has to say yes you should because that's how we get the better interpretation so why am i writing all this I'm writing it as I said I want you to see what our work is like but it's somewhat more than that because I want him to think I want him to think and I think it's certainly true that if we do not stay in a cooperative relation with these other countries working on these problems the world will go on without us and there will be something produced and we'll have to live with it and so we since it will affect us are better off having a role then No aren't we but there is a reason beyond that and the reason beyond that which I'll conclude with and I think we're all committed to that and in this room the reason beyond that is it's so obvious to us you know I use the example of the Bush v Gore talking because some students at Stanford I was in dissent I heard Harry Reid who probably thought I was right and he says the most remarkable thing about Bush v Gore is never remarked which is despite the fact very important affects a lot of people and probably wrong was it people followed it there were no rocks and stones thrown in the street they didn't shoot each other that's a plus that's a pretty big plus so I said a know a number of you this is it's tampering out here but I said I know a number of you were thinking too bad there were a few rocks and stones too bad there weren't I said before you make up your mind definitely turn on the television set and look and see what happens Hooda saw in countries that decide to resolve their differences that way say and the other way may be unpopular maybe wrong somebody's wrong when it's 5-4 Hey but we'll follow it and that's taken us a long time to get that decades centuries and you're never there you're never there I mean it's so easy to ride something that's popular and not so easy the other way but but you do it because that's the system and the the the the fact is that that's called a rule of law so when I'm talking to an audience I usually finish with this say because it says something that means something were to my generation even to yours or theirs and the thing I want if you want to read one book in French since you mentioned it and you can even get it in translation it's a great book it's Albert Camus and he wrote a book called the plague fabulous fabulous the play is it's a it's all an analogy it's really about the Nazis in France and in World War two but it's directly about a plague that comes to a wrong city in Algeria and how people behaved and how they finally got rid of it and some behave well and some badly and at the end of the book at the end of the book he says why have I written this book and the hero is doctor ouya who's a medical doctor who helped in the play and he says I wrote it he says because I wanted to tell the story of the people who go wrong because some behave badly some behaved well and I want people to know but I wrote it in part two because I wanted to explain what a doctor is a doctor is a person who helps he just helps he doesn't be your eyes he doesn't philosophize he just helps but really I wrote it mostly because the the plague germ never dies the plague German that terrible part of every human being never does it simply goes into remission it lurks in the cabinets in the halls in the attics it lurks one day to reawaken and once again to send its rats for the education or the misfortune of mankind into a once happy city you see that's that that's that's how I said we're in law we are one of not the only but one of the weapons that people use against the re-emergence or the continuous emergence of that plagued German and so working on that together with other countries of course I believe will very much help us and that's really why I wrote it so the Justice has said he would be happy to take questions I will call on people I see you Roger Dean but before I call on you let me just say we will end promptly at 2:00 because I know many of you have classes at 2:10 so if you can hold off till we break and that way we can all go together that would be great of course if you have to leave earlier we understand Roger hello hello justice Brian so Roger Dean 2l here at the University my question is in regards to choices so you've had an illustrious career that has led you to you know fantastic and wonderful things but my question is is there one story or one situation where you've reached a proverbial fork in the road where you chose one thing over the other where if you could go back in time the question is would you do it again or would you choose the other option I think you think about that sometimes but not as much as you think you think about it I guess this is what I just said to the other group I was talking to you but it's so true and you see it more in your in your life and I I mean you you am a right now you're at a stage probably where you will begin to make and you happen you've made decisions and you I hope you will make a decision you know and you'll have someone to love and I hope that you have a good job and I hope you take interest in the community but you'll make major decisions and Bayless Manning who was the Dean at Stanford years ago what I was thinking of going out there and teaching he said you know when you make a decision like that you only know 3% of what you need to know in order to make a sensible decision and you're never going to know more so if you keep your decisions within the realm of reasonableness that is don't become a trapeze artist unless you have a particular talent for that kind but but there's no way to know okay so you decide and I usually think that means lighten up when you make the decisions you are going to have to make and then what happens is you decide and the world wraps itself around you and there'll be some good aspects and there will be some bad ones and some good things happen in some bad ones if you're very unlucky they're mostly bad and if they're very lucky they're mostly good and I'll tell you to be on the Supreme Court to be a federal judge lightning has to strike and we all know that and to be on the Supreme Court it has to strike twice in the same place and we all know that and I mean you know you can control a little bit the best you can pat yourself on the back for is you can say well I was on the corner when the bus came by and that's that's and that means you know you did a reasonably good job my father used to say that you say do your job and do it as well as you can and pay attention when you're doing it to what other people say about it and what they're thinking that's obvious and maybe somebody will notice you'll get a better job and maybe they won't and if they don't at least you have the satisfaction of having done that well yeah yeah we are so I try not to think oh god if only I'd invested in Xerox in nineteen thank you Thank You Justice Breyer my name is Joe Shirley I'm a 3l here I was once at a talk where Solicitor General varelli said that nothing has changed the office of the Solicitor General more than legal blogging because instead of academic perspectives coming a year or two later after something arises they're coming in real-time and I'm just wondering if you've had the impression that legal blogging has changed any aspect of the Supreme Court in your practice as a judge we change very slowly it's a very conservative institution and and partly that's certainly right because it's worked pretty well for America on balance and weird they're just as trustees and we better not make some mistake in respect to the institution that worsens its position in American life and everybody feels that way everybody as far as blogs are concerned I normally don't look at blogs I say normally because sometimes I do I wrote a patent case where I think I said you couldn't patent something and by stupidity since it was highly technical I became curious what the patent lawyer blogs were saying well I mean abortion death penalty you name it nothing could have been as terrible as what I just wrote there we are so I I don't read them too often and I don't think they've changed life too much hello Justice Breyer I'm Jerry Thomas and I work with an organization called the campaign for you've justice so I have a quick question about kids in the courts so given the the Supreme Court's cases around how kids are different than adults when it comes to the context of sentencing and the things that should be considered I wanted to get your opinion of whether or not you thought it's a good time for litigators to start thinking about revisiting the Kent decision and what's considered before a kid is transferred or treated like an adult in the courts well first my weakness is I don't remember cases by name and I don't usually know them by name I mean I know some I know Marbury vs. Madison and but but usually I just remember them by issue but I would say as a general matter we have very future cases involving children I mean some of course but family law is 99.99999% up to the states and so if it's a family law case we probably won't have it even there by the way we are getting a few more because parental rights or custody and so forth has become the subject of treaties and therefore the people who know the least about the entire country namely us are actually interpreting these things which are so difficult if we're talking about family law that a family court judge friend of mine Eddie Ginsburg up in Cambridge and another family court judge friend of mine in England say the same thing they tell somebody who's in a family law battle I hope you reach an agreement because whatever you decide between yourselves will be better than what I have to decide I say that only because I want you to see that from my point of view we don't know much about it and it's very important and thus its state law the primarily but what about the treaties huh well why are they there because people marry people from other countries and when that happens and there are children and there are all kinds of family law battles well treaties jump in and then there we get it so that's just one more area we're gonna have to learn something and maybe you're not necessarily thinking of that kind of case I know that but that's that's the point I can make here because I think that's an important point and this for the rest of it I would have to say don't know Thank You Justice Breyer Peter bouts and the 3l here so we read a lot these days about the breakdown of collegiality in America there's a lot of partisanship and to me the court always seems to be a beacon of collegiality where you can be friends with the late Justice Scalia and yet have these large disagreements about areas of the law so could you talk a little bit about how you maintain collegiality and maybe what we could do to try and encourage more collegiality in our culture yeah well we do I still can say I mean I've been there for more than 20 years 23 probably but but the I've never heard in the conference a voice raised in anger I have never heard in the conference one judge say something mean about another not even slightingly not even as a joke you know we just don't it's professional make your point listen to what the other person says which is always helpful and particularly helpful if you want them to agree with even part of what you're thinking what a good idea you have at least part of it I can agree with let's see if we can work with that that helps and you better maintain a collegial attitude if you want others to think about what you think and you better really think about what they say because if you're pretending to there's nothing that's sensed more quickly on the part of another person he's just saying that because he wants me to agree with him hahaha don't do it think about what the other person is saying now of course I would like to see that when I did work in the Senate I I learned the Senators in the congressman and they will respond to what they think our constituents want not correctly all the time but if they don't they won't be there long and so usually I think is a bit mean to say which I did say earlier but the first place to look about how to bring a bout of a better attitude in the United States I'd say the first place to look is the mirror and say what do I think and how much am I prepared to give and how much am I prepared to listen to other people and really mean it and if in fact which I very much believe will happen and hope will happen is people generally decide they want a more cooperative attitude that will be sensed that will be showing up in results and you'll get it and you'll get it but it's always easy to expect the other person you agree with you because how right I am i regularly think that and and as well yeah yeah maybe but you ought to listen to makes a little progress I think it works but good luck to where the objective hi Justice Breyer thanks again for coming today I'm currently in a seminar about the rule of law and the threats to it and a lot of our discussions focus on whether or not the conception of the rule of law can exist as a rights-based conception or whether it has to be divorced from morality so I was wondering if you could weigh in on whether or not you think there's space for morality no I think not much of it is about that yeah I mean criminal law criminal law is certainly shouldn't in my opinion it's sometimes that happens but it shouldn't you shouldn't be treating a person as a criminal who hasn't done something morally wrong and and that's my own view of it and I think a lot of people share that view and it doesn't mean the lowey's match one for one but if I have a case where the morality points one way and the the law points the other way I will either try to see maybe I'm wrong in thinking the law points the other way or if I'm not wrong at least I better explain it so people can understand it because ultimately is is its it says it's an instrument of human beings that's what all sacks and Henry Hart sitting there famous book on the legal process I never found anything better than that it's an instrument that people use in communities so that they learn how to live together and can get the benefits of a community life in terms of peace and and social benefits and economic benefits together and that's what it more is about there is no over here and morality over there oh that's the best I can do hi Justice Breyer thank you again for coming with how divided we are as a country right now do you see any role for the court as an institution and bringing the country together or do you think it's institutionally capable of doing so no we can't do it I mean you can't do it what we can do is we can do our job and the best thing that we can do do our job and don't try to worry about whether this is going to be politically beneficial or not beneficial you do the job you decide the case and you decide it without too much animosity and you try not to do anything that would interfere with the role of people seeing the court as an institution of people who are many things think quite differently and many think quite similarly but they do try to get on no people can draw what lessons they want from that and if they draw lessons in the political environment excellent but gee you do what you're paid to do there and that's that's important and just doing your job I think is the best thing that we can do Thank You Justice Breyer I'm Col Gaddy I'm a 3l I'm wondering we have well established schools of thought on how to interpret statutes and as reference to foreign decisions and foreign law becomes more common do we continue those can this translate to other cultures or other countries where the traditions may not be the same or do we have to start from whole cloth anew what's your take on that yeah I mean what you're doing is usually talking about a particular case and that they may or may not have something to contribute to that case and in terms of the am that was this there's good joke did you suddenly reminded me of it that I think it was Roscoe Pound who said that judge is so illiterate he doesn't know whether he belongs to the historical sociological or the empirical economics cool of interpretation well here I am the but the the if you look there aren't enormous differences I mean people interpreting statutes they all look at the words they all look at the history they all look at the traditions they all look at the precedent they all look at the purposes and they all look at the consequences in terms of written in those purposes the relevant consequences everybody does that I believe and some emphasize the first for a little more and that's the history and the tradition and the language and the precedent but I mean it and some emphasize the second a little more that's the purposes of the values and the consequences but everybody does both I'm not going to take a statute says vegetable and say a fish is a vegetable a fish is not a vegetable okay but there's often leeway in those words and how much it's the matter of differences between judges all right but given that sort of approach which i think is pretty universal you take the following thing if you're looking at it for what it's worth and i would my instinct but i not pasta at all i'm right on this is don't go into too much working out a tax code of how to interpret and use foreign decisions interpretive work is not really the tax code approaches are not the tax code and I have to say that's why my students had a lot of trouble with administrative law because the administrative law is not the tax code and students love the tax code because they're they don't really but I mean they sort of like it you know but I mean there it is pretty definite but there are a lot of areas that aren't so definite including what the approaches are and a little more of this and a little more of that in interpreting statutes for coming Justice Breyer my question is I don't suspect you'll give an answer on how the court roll on the current Microsoft case but but I think we even conference but I am very concerned about if the decision is decided a certain way that it could compromise say America has privileged position in the world of technology as it is today and I was curious if the court considers things like that the possession W sure the arguments will be made in all of the briefs and and what but that is a good example of and what you're bringing up in general terms and it's not to me is this is an interesting and not clear point which is the world of course in technology is changing and that it affects a lot of areas of law and though not necessarily involved in that case I mean what about privacy and what about you know where does it come in and and how do we have to do some things you even have to spy sometimes these some people think so and and how does this all work and and how do we all right well I think I've then to console myself is Tocqueville whom I really recommend and talk Vil who has just a genius and really was so farsighted as to what this country is like he said what he sort of thinks of as he approaches the United States is the clamor and what he means by the clamor ease means people arguing about everything yeah they do and he said that oh you know they have they debate these things of course they'll have to be changes privacy is protected from by everything from the law of trespass to to the Fourth Amendment and it's all many different ways on different things and it was actually a lack of memory was great you did something stupid in the middle of the village and the people looking out the window will forget wonderful but the computer doesn't forget you or die's the film that changes things and how do we want to change it well he says there's a clamor and there is a clamor there are people arguing there are people going to meetings they're people writing articles in the student newspaper all the newspapers are in journals there's a aclu there's a sheriffs Association there are dozens of different groups and there are many many legislators towns cities states the the Congress and they try things on in there if your administrative rules through through hearings through statutes and gradually something settles down and they'll try this and they'll change it they'll do some other thing and maybe eventually after a lot of other people have put in a lot of other work we will maybe get a question and the question will be is what they decided within the bounds so that's what this document does it sets bound that's it it doesn't tell people what to do it sets boundaries around what they can do and that's what we decide you say so it really isn't going to be just us and it shouldn't be and I think in things like that it's best when we come in last or as long lightweight as long as you can because others will then through the more democratic processes have ways of trying to work these things out you've just given a an example of that but you know my mother used to say there is no view so crazy that there isn't somebody in this country who doesn't hold it and she lived in San Francisco she said they all live in Los Angeles but I see everyday that in the court not that they're crazy they're not crazy but it's a miracle a miracle that people of every race every religion every point of view have decided to come in there and dissolve resolve their differences under law and that's well you're all going to be participating in that and you're all able now and then to tell people who aren't even lawyers or judges why it's not such a bad idea to resolve their differences that way even though sometimes they'll lose and even though sometimes they lose when they shouldn't there we are okay [Applause] [Applause]

Channel: University of Virginia School of Law

Views: 5,687

Rating: 4.8285713 out of 5

Keywords: University of Virginia, Supreme Court, Justice Stephen Breyer, UVA Law, Virginia Law, University of Virginia School of Law

Id: gtJwVKFzeSg

Length: 62min 51sec (3771 seconds)

Published: Thu Mar 01 2018