Transcripts For CSPAN2 Supreme Court Justice Stephen Breyer Discusses Role Of The Court 20240712

The candidate kennedy two dozen nonprofit, nonpartisan plays in vision and plans by my late husband senator edward kennedy. Its a place where visitors come now virtually as well as inperson to experience democracy their hands on learning about the United States senate and then use that knowledge as a touchstone to understand the branches of our government. Its also a place where we encouraged participatory democracy. In fact we just started to nonpartisan effort called just about and i encourage you to to go to our new web site called just go. Org but most important i encouraged you on november 3 to just vote. It is the most important thing we can do as citizens. This is a place where we work to invigorate civil discourse and inspire the next generation of leaders. I can think of no program and no speaker who meets every one of the goals that my husband had for this place more than todays special guest Justice Stephen breyer. Without question Justice Breyer is a man for our time and demand for all time. Here in boston we are proud to claim him as one of our own. A graduate of stanford, oxford and harvard law he went on to clerk for this Supreme Court Justice Arthur goldberg. He served for many years as a professor at Harvard Law School and taught at the Kennedy School of government. He was a lawyer and the antitrust division of the Justice Department and was an assistant special counsel in in the watergate proceedings. He was a chief counsel of the Senate Judiciary committee and achieve something that is very special around this place. He was the kennedy staff alumnus. Teddy told me that more than anyone he ever knew steve breyer had the ability to explain most complex issues in the most understandable way and i do think one of the keys to his enormous power of persuasion from the First Circuit court of appeals to the United States Supreme Court Justice Breyer has made history on the most momentous issues of our time. We are faced with momentous issues and i think its fair to say without exaggeration that we are in unprecedented times. We are still grieving the death of Justice Ruth Bader ginsburg and we offer our deepest sympathy to all her family and friends and to all the members of the court. As Justice Ginsburg understood her loss created a vacancy and now theres a pitched battle for a nomination for a new justice in the midst of a hotly contested residential election and for an election for control of the United States senate. Yes these are indeed momentous times. There is a reason that todays speaker has attracted the single largest audience ever signed up for one of our programs. In the middle of the day on a thursday more than 2000 people are eager to hear what the justice has to say to the extent he is able today to cant wait two to facilitate the conversation this morning we are so delighted to welcome r. A. Melber an outstanding lawyer in his own right, the host of msnbcs the beat. He received an emmy award for shifter porting on the Supreme Court. So we know well have a lively and informative discussion this morning. I thank you all for logging on and i know you are as eager as i am to get started so im thrilled to turn the program over right now to ari. Thank you its a great honor and as you say we will get right to it. I want to begin by welcoming Justice Breyer but first wanted to ask if you had any reflections you wanted to share about the passing of your colleague Supreme Court Justice Ruth Bader ginsburg. And taking a look i think we have Justice Breyer who i spoke to moments ago so i know he is here for us. I will speak for a few minutes a little bit what we are thinking about today with whats on the table for the country in and that voting has begun the Supreme Court which currently we passed into fullcourt so let me speak to that for a few minutes and let me know as soon as judge breyer is back. As i mentioned we saw him and i know hes excited to be with us. A few points on the court which i think are striking is we are in a time where the court is now eight justices instead of nine but his work continues. Indeed there are of slew of cases that come up across the country. There are appeals and requests made by litigants for the court bent the Supreme Court takes things on an expedited or emergency basis bridge is recently there is a request that was denied to Justice Breyer for example a case regarding whether or not to allow a new form of voting in a particular state as opposed to more traditional poll voting and the Supreme Court declined to hear that case in that example. Its something referred from quarter watchers and people keeping track of state local and federal elections which is a court one justice down could still be vital both in the rulings as well as whether or not they are rna cases that could resolve for address any potential contested election. Its a very interesting time in that respect. Theres also a lot of things i want to ask justice the three about honoring president s and he sounded the alarm in a recent case regarding the relatively arcane issue of when and how states can or cant be sued and the larger discussion that several justices signed up to which is what is the higher bar for overturning precedence and thats something we hear about in Supreme Court confirmation hearings and not lawyers and nonlawyers alike have that question of okay we have rules and we have precedence in it sometimes they change how and why. Thats something we definitely want to discuss and then more broadly to nonlawyers as well something well touch on ill ask Justice Breyer. A sling to senator kennedy. We are obviously here at the Kennedy Institute in thinking about that and this has been a time where the recent era has had Many National conversations about citizens law about the role of the different branches of government and what do cole equal branches mean what does it mean that we have a certain expectation . I believe we have Justice Breyer back in. I was just became to folks briefly and thank you again for doing this sir. Its a wonders of technology. That was a very nice introduction. Im so modest that my machine decided to break down. It technological and constitutional and accolades for their was speaking about some that things would get to and i know you were in and out so anything i will bring back up what you but i just wanted to make sure we reflect briefly and he did want to share about the passing of someone who is a deer colleague ruth bader ginsburg. She was a good friend. Oddly enough i was understanding that [inaudible] in the evening with my doddering grandchildren and at the end of the service there was a the prayer for the morning in the prayer for the dead [inaudible] [inaudible] when she decided thats the way it goes and [inaudible] [inaudible] hello . I can hear you just is but im having a little Trouble Holding on to you. If i take it downstairs at my work better. I will say this as we work through 2020 together asserted better at this moment than it was to moments ago so we will let you reset and we appreciate it. I was going to say shes a really nice person bridge iss a few weeks ago my son, we have a new grandchild and she sent him a president and the president was a tshirt which said future law clerk for rbg and she knew it. She looked into it and she said its probably too big for you but why dont you give it to your brother brian so she new about him so i go into my office and there on my desk is a birthday card from her which she has sent two weeks before and she said to my younger colleague underlined. We were sitting next to her at dinner she might not favor much and she said to me you know when she has nothing to say she doesnt say anything. She thanks and what shes thinking she is thinking. There was a little comparison she was making because she told me you know steven not every silence needs to be filled. [laughter] a good point but ruth she understood that. She was the kind of person the more you know her the more you like her. I mean my goodness she loved the opera. I called her three weeks ago and said for some reason theres some operetta takes place in boston she said thats the masked ball, Everybody Knows that pretty well i didnt know that. I really appreciate that an again i want to thank you for working with us through the technology could we can see you in here you. I think everyone appreciates it. Justice ginsburg brought attention after her passing for sharing through her family and her thoughts about how to fill the vacancy. This is a time where theres a process on going with that. You think the justices do or should think about who will replace them and their retirement process while they are on the court . What are your views on that . If you think about it, its true he told think about it. From time to time you think about it. Its part of the aging process. Its inevitable. And what you say, we stay out of politics and sometimes its very hard to stay out but the more the political fray is hot and intense and so forth the more we stay out of it. Of course we have to stay out of it goes the decisions we are making our decisions for 330 million americans and a lot of them, the people on both sides have to have the confidence that you as a judge are fair person. So stay out of unnecessary controversy and particularly political controversy. You know i were minder listeners and viewers that Justice Breyer has been on the court for 23 years and a legal scholar long before that so weak couldnt possibly go through even a portion of your work or opinions. You would be asleep. I want to read a little bit of one that lawyers and nonlawyers would like an tell us some of your thinking beyond the written word. This is on the case about the issue of when or how states can be sued. You wrote something that is a larger theme of how decisions were you wrote quote legal civility allows lawyers to give clients sound advice and ordinary citizens to plan their life and each time the quarter sferrazza case it creates uncertainty and he went on to write with your colleagues about why and you didnt think the president could be overruled. You warn judges may be tempted to seize every opportunity to overrule cases they leave at a wrongly decided but the lock and take that only if it persists versus the temptation only when the circumstances demand it and you one on two quote row versus wade to explain your argument. What do we take from this dissent and whats important for people to understand about the law . That it has to stay stable and if you overrule a case and i have joined opinions and if i had been deciding the case initially i may have decided differently but there we are and the temptation comes from the fact that after certain time and i say that because for three, four or five years either Justice Douglas to go around that building and you are frightened to death but you may not reveal it but you are. How do i know i can do this . I thought i could buy can i and after a while you calm down you say well maybe ill wont do perfect way but ill do it the best i can. And thats just a uniform attitude. That happens but what comes with that is the realization your predecessors are just human beings and they can make mistakes too. If i have an opinion that you think is totally wrong and you say well i mean here i am, it was wrong. I think im right, lets overrule it. You do that very often and youll see what happens. The lawyers will say hey lets try a few others and before you know it they will be telling their clients lets get this overruled or this one at that when soon clients will say what is a lot here and others who have even gone to a lawyer will say im not even sure where im supposed to do is go it will be a mess so dont overrule cases. But wait, what about plessy v. Fergus and what about brown versus board of education, what about the cases that correctly said that law of segregation is no good. Were they right to overrule back . Of course they were right. It was ringing in of bit of justice into an area where there was no justice and thats what the court is about. When they did overturn Plessy Ferguson it took ten years more before that legal segregation was actually dismantled, and it wasnt the court. The court may have started it and it may have been a catalyst, but it took Martin Luther king, it took the freedom riders. It took a thousand paratroopers sent from North Carolina to little rock, where they took those brave black students by the hand and walked with them into the high school in little rock where the governor was standing in the door. It took a lot. Now was it worth it, of course it was worth it. Of course it was worth it. We were getting back to the very basic idea of america. But dont generalize from that case that you should start overturning things all the time. Rare is the key word. Keeping the historical view this is something i want to know and i think other people do, tomac. When we read a case like this and people may take from that or want to take from that that its a warning about substance and issues on abortion, is that the right way to read that precedent or could you have cited a number of cases regarding this . You mean what was in my mind in that particular case. You know whats interesting whats in the judges mind doesnt really matter. What matters are the words on the paper, and its important for the judge not to forget that because its those words on the paper that will be the guide to the future. You have to admit that was a fairly interesting way of avoiding your question. [laughter] i will admit and i mention for everyone, weve got some of the questions participants have sent in and some are probably things a sitting justice or judge would not answer, but its in the spirit of transparency i will read some of them and [inaudible] i want to thank everyone. We have several questions people have submitted. One of them is about the process, especially with a vacancy right now. Do you believe the confirmation process is appropriate and effective, do you have ideas for changes. Another person asking have you seen anything change or evolve in the checks and balances, do you have any thoughts of president trumps list of potential nominees now and for the future and should Vice President biden released a lift i will mention for everyones background, most have not done that but then candidate trump did release a list and more broadly because this is something i can imagine you cant speak to, you recently on behalf of the court to hear basically a question or appeal about a state using a certain type of voting mechanism ranked choice as opposed to a different type and i think many people are curious what the actual way Supreme Court and others do or do not even hear these kinds of cases as we get closer to an election. If theres anything you want to say on that. I will say a couple of things. One, the confirmation process. Its important to keep this in mind and ive said it probably 5,000 times. That is a political process insofar as nominating and confirming the judge is concerned. I wasnt the person who nominated me. It was the president. And i wasnt the person who confirmed me. I was in the confirmed person. It was the senate that did that. So ask me about that process i would say not too bad. Its like asking for the recipe for chicken from the point of view of the chicken. Thats a way of saying im not going to get into the political think but i say this to High School Students or College Students who are pretty cynical sometimes and i dont want them to be. Thats why i love the Kennedy Institute. Its trying to get people to understand and participate. But i will say to them look, i understand. Ive worked in the senate. I worked for senator kennedy. Its the best job ive ever had. I learned watching confirmations that senators by and large were asked the questions they think their constituents want to ask. They have a tie with those constituents and if they go too far, they are not going to be senators very long, are they . So do you think theres too much hostility, and do you think theres too much we are wrong, they are right, et cetera. Maybe there is and do you know how to stop that . The senators are going to reflect what you want, so youve got to stop it and the way you stop it is when you disagree with somebody, you talk to them about it. You talk to them about it and try to convince them. You participate. You vote, and you do it yourself and then maybe it will be catching and thats the system this document the constitution sets forth and why the First Amendment is there. You know where to look to begin. I said look in the mirror and start and get involved and participate and practice cooperation and compromise. I can go on about that at length. I think that is the key. The key isnt going to be in washington. The key is going to be in every city and town and state when people come to the conclusion they dont want all this hostility. At least thats my view of it. Host very interesting. With regards to where and how how does the court work. Five minutes if you like. What do we actually do. We began by remembering this, that we deal with questions of federal law. That is what is this word in the federal statute or in the constitution, how does that apply, what does it mean. Those are the kind of questions and i emphasize federal which Means Congress or the constitution. But most law in the United States is not federal. Almost all of it is made in cities, towns, states and its up to state court. But keep in mind the fact, and i say this deliberately to the students do you want to help your friends and neighbors, you go to the city council and get involved in the school board or the Arts Commission or something local and statewide, because that is the law thats going to affect them. Im not saying the senate and congress are not important, they are. But dont jump to the conclusion because you read more about it in the newspaper that everything they do is more important than what goes on in the state. Its very often the contrary. Only in our court we are considering the federal law almost 100 . Okay. Now, how many cases are there. Cases involve people having arguments and the first place they go is they try to get over it. Get over your dispute and 99 of the problems, they do. But sometimes they cant and they go to a lawyer. The lawyer is supposed to help them get over it, find a settlement, do something. And maybe 80 of the time they succeed and then they get into court theres quite a few million cases in court most of them are state law and most of them settle. Now there are a few that dont settle, go to trial, get appeals and have a federal question. Maybe 80, 100,000 in a year or in the Top Appeals Court and involve federal questions, and about 8,000 of those come to us because they didnt like the fact they lost. Remember the losing lawyer thinks the judge is an idiot. He doesnt say the judge is an idiot but he says its terrible. You know what the winnin the wis about the judge, he says nothing. He thinks hes a good lawyer. Okay, not the point. They come to us, 8,000, 7,000 a year, 150 a week and say please see our case. We dont have to. And we all have law clerks, about 30 in the building and they write these little memos and i oversee this stack each weekend go through them pretty quickly and i can go through them pretty quickly because im what im looking for and this is the whole point. Im not looking at what fun would it be to decide this case. People think i do that but i dont. What am i looking for, i am looking almost entirely to see if Lower Court Justices have come to different conclusions on the same question of federal law because of it all comes to the same conclusion, why us . They are good judges. Sometimes there is an answer and sometimes they say its unconstitutional. The problems are if they reach a different conclusion. This is what president howard taft said when he was chief justice. If they reach different conclusions on the same question, we better hear the case because federal law should be uniform. So we could hear a case like in the Internal Revenue there is a, and does that mean that the next word is to be read into this or that. We hear that case. I liked it, nobody else liked it so thats the last we heard. There was a split because different conclusions by different judges on the same question or we could hear guantanamo bay. So probably 99 of the time, im looking to see if there is a split. And other reasons possibly. It could be of such importance we just have to hear it because the country needs an answer. But shall i continue the process, then they write briefs. Each sides right a little booklet called briefs. They are not brief but they are called briefs. So we get them and read them and then we have oral arguments where we ask questions. Then in a day or two we meet around a conference table by ourselves and go through the cases we just heard in order. The chief justice if i may follow up on the oral argument which gets so much attention for various reasons can you think of a time you or another justice and your mind changed in an argument when youd already read the briefs and your clerks had gone through this process. Does that happen and doesnt need tdoes itneed to happen . Yes because what you are doing is two separate things. It happens but not very often. But how i look at the case i think is important and that changes a lot. Its all the issues are discussed and analyzed is often the key part of the debate. But that does change your mind. It is a chance to ask questions and hear what our colleagues think. I never heard a voice raised that angered that. People dont say rude things about each other or make jokes at each others expense. Professional. We go around the room, discussed briefly, write down what the others think on each case and then no one speaks twice unless everyone has spoken once. Very good rule. And then there is some back and forth. Heres another thing that is on a level not about a specific cases which justices dont speak. What are we in public and in the press getting wrong or oversimplifying and was compared to your unique experience being on the court. We can talk about not only whether People Project their own ideologies onto the court which you alluded to earlier, but we also hear talk of the vote blocks and you would know from e evidence of lived experience. I think that is a huge problem because in fact we are probably unanimous 40 of the time and probably 15 to 20 they are not the same five or four. I looked it up a couple of years ago and discovered i think that there were 18 cases out of all of them. A little high but that thats y were. Twelve of them were not with the press would call liberal concerns. It would have been written in the newspaper in an unusual lineup. How can it be an unusual lineup . The problem is, arent those the most important . I can say yes or no. So since the newspapers are out there to be sold and wants to appeal to their public, they will write about those cases as if they are the whole thing. And then they will say conservative and liberal. But my goodness, if that is what the job was, why in heavens name would you want it . If you want to be a petition po, go into politics. You are influenced by your background when you are interpreting these big words like liberty, freedom of speech there is the text into the historand thehistory and the pue value and the traditions and the president and the consequences. So its important to remember it may be a political process that leads to the nomination of the judge and a president might think i got someone that will always agree with me, thats what Teddy Roosevelt thought when he appointed Oliver Wendell holmes and got him nominated on the court in three months holmes decided something roosevelt couldnt stand and said i can carve a judge with more backbone out of a banana. He was serious, but holmes was doing his job. Do you think every president comes to that effect blacks. Yes, i do. There are Big Questions in law and journalism and any discipline by the time you are 50yearsold you begin to have a jurisprudential view. What is this country about that it can work in this country . Those are Big Questions and you cannot often articulate an answer, but that doesnt mean that youre sort of your sort of jurisprudential view isnt there and if a president wants someone to hold the views on those questions somewhat like he does, hes probably luckier than theodore roosevelt, but he could be wrong on that, tomac. Once that rope goes on, you are a judge and theres no point, and i havent seen one [inaudible] Justice Breyer, in law school, we are taught very firmly that this is a battle on the merits and ideas and thats how it will be adjudicated. There is plenty of evidence for that you walked us through as well. All of the many cases on the merits by which i mean not some of the other things the public may assume or imagine. On the other hand i was wondering there is the cost of litigation and the powers that be and it would seem certain issues, i will give two examples, get more support, get more litigation. Im thinking of issues of high ideological support where there are motivated funding constituencies to keep pushing it, and im thinking of it with issues of business support for individual companies in the chamber of commerce i think is a measurable manner to go to more courts and eventually, arguably get more legitimate potential avenues for the appeal. Im curious your view. Is that true or am i missing something and to the extent you can say so, is that a potential in equity and are there other issues that might be intentionally valid jurisprudential he that dont have that support to literally get through the system in the same way . There are loads of inequities in the system. Its pretty tough for a person without any money or only a little money and so forth to get into court at all. There is legal aid. They might have too much money but not enough to get in. In the criminal system there is a system right now where the prosecutor in effect, 90 of the cases, makes the sentencing decision. He recommends it. But theres an agreement and the agreement in part is because the defendant we certainly hope was guilty because hes going to plead guilty and if he doesnt, he might get charged with a higher offense. Filled with problems of equity in the law. Its far from a perfect system. A particular mention i have to say i dont know. It may well be that what you said is something lawyers say might like certain business or clients say or others that my job is to sit there, read the briefs and the Interest Groups will file briefs and what they dont really see is i dont see the name on the brief. It said what is in the brief. It could matter in this case. We had a case about right to die. If you have the right to assisted suicide. We got about 80 briefs and there were nurses associations on both sides. Doctors, healthcare workers, hospices all over the place. What they were telling us that i wanted to see is what the decision this way, how would it affect me, how would it affect hospice and those that are mentally ill, how would it affect this or that because i think thats relevant to the legal issue. And thats what im trying to give you a picture of the job looks like. You are there trying to decide the case and what the lawyers have told the clients and briefs they can say what they want and what the clients told the lawyers and what the newspapers say about what youre going to say, that isnt so easy to get over, but to get over it. They can say anything they want about this decision or that decision. Thats their right and my job is to sit there and be the best judge i can be. It isnt where theres some kind of answer written on this computer that you press the right buttons and get it but to allow and i see that every day, to allow 330 Million People in this country live together harmoniously and productively. Thats tough in many cases knowing that thats the purpose and looking at consequences sometimes, looking at the purposes et cetera, but that is the legal job and the fact i taught antitrust law for a long time having that competitive competition in the market is more important than some other things. You try to do the job as best you can. I will mention for the justice and the viewers we have about five minutes for any closing and final thoughts. Another issue going through the nation you mentioned the work that had to be done on civil rights cases even beyond the ruling and we lived through this as a country. In your position on the court, im curious your thoughts on the movement on the term weve heard black lives matter because while its partly about things that happened even before, theres the argument about whether it also values black and other lives equally. There is a constitution that says all people are entitled to equal protection under the law and also a statute to be aware but not have an overly affected because you are inside the record or are you aware of whats going on out there . Of course you are aware of it, but be careful not to substitute exactly what you would like or what you think the exigencies of the moment go for for what is basically a system of the law. At the same time it is not computer science. So you try to be unaffected at the fact a demonstration itself or the fact the article itself. The importance of having equal protection in the law i always thought that was important and other people think that too, but the most important thing to me, the thing ive seen on the court which has impressed me the most, i see in front of me people of every race, every religion, every point of view. They are in the courts deciding the differences and its taken 200 years before people are willing to accept the decisions that they really disagree with. I could name a few. When i talk with students about this i say look and no, i heard senator reid say in respect bush v gore the most respectable thing is there were no riots, there were no stones thrown, there were no slingshots, there were no, you know, they accepted it. And i know what youre thinking, at least 30 of you in this audience to think too bad there were not a few riots. The decision was wrong. I thought it was wrong. That decision affected us a lot. We disagree with it. Terrible. Too bad there were not a few riots. I understand what youre thinking but before you come to that as a final conclusion, i would like you to turn on your Television Set and see what happens in countries who resolve their differences that way. So, its this document that some health held 330 Million People a very few differences together and it says you resolve your differences if you can under law, not through force and get into the courtroom or participate. You decide them in the senate and the house. By participating in your community. And thats preserved us. I believe those 330 million will continue to run a country under law and there will be a lot of ups and downs. Senator kennedy used to say that. Theres ups and downs. The country goes over here and then it goes over there. There are differences. You see the point. We see it but i think its a very edifying to have you walk through all of this and especially walk us through what we may misperceive especially i think as we turn to the closings reminding us really how narrow and at times parochial, i wont speak for anyone else, but those of us in the press sometimes, going towards the conflict and the narrow version when you walked through how it really works and perhaps i think we all really appreciate it [inaudible] i did want to give you the option of what we bring in because we talk about so much, anything in closing, Justice Breyer, that you want to say. I learned a lot from senator kennedy. A lot. I turned my told my law clerks and the ones id like to repeat to the students is as i saw it so often it was listened thats what you do when you go around the table. Its not i have a better argument than you because that leads you to i have a better argument than you. Forget that. Listen to what the other person says. When you listen you might think you are totally opposed but we can work with that. Lets work with that. And then maybe something will come out of it. And then he tells us which is right there, credit is a weapon. Dont try to get the credit. If the thing works, and if it doesnt work, no one wants the credit and i cant tell you how many times i saw when something would work and it would work with the help of those who disagreed and the press conference would come along and what he jumped out in front, no. He would push the other senator out in front. He had a good point here. He really helped bring this together. Thats called working with people. I learned that in the senate and to tell you the truth i learned a little bit in the fifth grade when we use to write a project about san franciscos history and she got four or five of us in a group and that group would get one grade for all five people and they cooperated and compromised because they were interested in working together. I saw it and i say to the students, because it is tried but true cooperation, compromise, participation, practice in all those things and learning about the government, that was senator kennedy, the institute, and i think that is worth passing on. Really appreciate that. Fitting thoughts from senator kennedy here at the institute. And again, i just want to thank everyone and Justice Breyer for being so generous with his time and thoughts today. Thank you, Justice Breyer and now i turned back to caroline. Thank you. On behalf of the Kennedy Institute, our most sincere thank you to both Justice Stephen breyer and sharing your unique perspective on the vitals all the Supreme Court plays. As we head into what looks to be an unusual confirmation process for the next justice its critical that we realize what is at stake and how our voices play a part to Impact Outcomes through a democratic process. We at the Kennedy Institute are proud to produce important discussions such as this one, with Justice Breyer and mr. Melbourne, to ensure that as many people as possible are able to understand the intricacies of our democracy and engage in the civic life of our communities. Contributions from our generous members and supporters allow us to continue offering free programming and keep these critical conversations going. Please consider joining us and becoming a member today to make sure that we can continue to bring Civic Education and engagement to people across the country. You can find out more at emkinstitute. Com membership and dont forget to check out justvote. Org to learn about your fundamental democratic right and make sure your voice is heard. So, again, on behalf of us all at the edward in the kennedy ree governor steve bullock, who is running for the u. S. Senate. Pbs about 2020, the montana governors debate. Production support was provided greater montana foundation, encouraging communication on issues, trends, and values of importance to montanans. From the montana pbs studios on the campus of the university of montana in missoula, john and anna