Transcripts For CSPAN2 Former 20240703

Thats a very bright light. Ladies and gentlemen, my name is mike hogan, assistant Vice President for development and human relations at jw law school. Its my privilege to welcome you all this afternoon to the fifth and final conversation with Supreme Court Justice Steven bryer, arc of a great career. [applause] Justice Bryer welcome back to gw. I would like to extend welcome to gw alumni and friends and various members of gw alumni Advisory Boards that have joined us from around the country including california, arizona, illinois, new york and, of course, here in washington, d. C. Its now my great pleasure to introduce the dean of the George Washington University Law school please welcome to the stage dean dana boeing matthew. [applause] so excited. Im going stay on script, though. Good afternoon and welcome im dana, my pronouns are she, her and hers. It is my great privilege to welcome you to this the fifth and final installment of this only gw experience. Amazing series would not have been possible so im already going off script to say thank you to our dear beloved alan morrison, the gw associate dean for Public Interest and Public Service law. He has been a friend of Justice Breyer for more than 40 years and he has been a friend to me and this law school for over 12 years. He has made it possible because of his deep friendship with Justice Bryer for us to hold this incredible oral history of this incredible jurist. And now its my great honor to introduce president alan. [applause] now you can read about the fact that she began her tenure at the 19th president of George Washington university on july 1st, 2023. And you can read her biography about the exciting academic leader that she was and is before she came here and you can also read about her scholarly work as a socialist. But you will not read and the thing i must share with you to introduce her is that we at the George Washington university are the recipients of accomplishments in my opinion. They have brought steady and wise leadership, not only during Turbulent Times but also during the times that we have learned to call joyful. They are smiles, they are fun and they are everything that this community needed. Please join me in welcoming our 19th president alan greenberg. [applause] good afternoon, everyone. And dana, thank you for that extremely kind introduction. I have to say this afternoon im more excited than i have been i think at any time at my time at gw because ive been admirer of Justice Bryer for many years, the idea that hes with us today is enormously exciting. And so it is my great honor to welcome Justice Steven bryer about illustrious career. This conversation will focus on the justices time on the high court and his new book, reading the constitution why i chose pragmatism not textualism. I know that we are in for a real treat. Most if not all of you know about the justices exemplary 28 years on the Supreme Court and many of you are aware that he served for 14 years on the court of appeals for the First Circuit in boston and was a law clerk to Justice Arthur goldberg. Less well known are his services in the legislative branch twice working for senator code kennedy on the Judiciary Committee and stint in the executive branch and antitrust division of the Justice Department and finally as an assistant prosecutor in the Watergate Special prosecutors office. Not to mention his time on the Sentencing Commission while on the court of appeals. Hes also much more than a lawyer having had a major role in the design and construction of the magnificent courthouse in boston while he was chief judge which led to his appointment to the architecture Prize Committee which awards excellence in architectural designs from around the world on top of this, he reads and delivers lectures in french which was not the language he grew up speaking in San Francisco. Justice breyer a man from all branches of government as well as a true 21st century renaissance man. Alan is completing his 15th year at the law school where he teaches civil procedure and constitutional law. His biography as well as just breyers are in your program. It is now my great pleasure to bring to the stage Justice Steven breyer and professor alan morrison. [applause] well, here we are. Here we are. Here we are. We have been going through let me start with the beginning of the time in 1994 when you went on the Supreme Court. You had been in court of appeals, chief judge, Sentencing Commission, clerk of the court, most people thought you were really prepared. When you went on the court did you feel prepared for a new job . What did i feel . Well, Harry Blackman my predecessor told me you will find this unusual assignment. Stark fear. Thats what everyone feels. Anyone who is appoint today the Supreme Court knows that lighting had to strike twice in the same place before youre appoint today the federal Supreme Court and you thought you could do the job, you thought so and then you were there and you wonder inside can i really can i really. I dont care how far back you two or when, whatever but somewhere within them, those first two or three years theyre wondering around thinking just that. And thats why david sutter said takes three years minimum. William douglas said it takes five years and you sort of adjust. Well, theyll just have to put up with me and ill do the best i can and thats virtually any job that you will get in any other profession. What surprised you the most ongoing on the court . That i was chosen. [laughter] thats the truth. I got to the court. Youre sort of on your own. There you are. You talk to people, you try to make it collegial, they try to make it collegial. I also want to thank you for doing it and the president we discovered we went to the same high school. Those were the days, i tell you. You think theyre not the great days but they are. Before you came to gw. Great. What was the most difficult part of transition to becoming justice . The cases and so much you had not seen before. The most difficult part actually is remember, 60 of the time, 40 of the time was unanimous and we are deciding cases like, you know, the comma. Internal revenue code means next word that was four, we did have a case like that. Did you get to write that opinion . Probably. You know they are going to be and there are quite vast areas of the law which you know nothing about, i know nothing about, and when i asked the bankruptcy lawyer and oral argument, you know, whats going to happen, what do you think will happen to the people in bankruptcy if we decide this way or that way. Im not doing that to show im doing something about it. Im doing it because i dont know and he does know more than i know about it. And its the questions are working well, they are exposing areas that we dont know and we think are irrelevant to case and the Council Knows about it. Do you have a justice who helped you in the beginning of time in the court . Its hard sandra and saved and tony to a degree, sandra we got along very well. Tony said what i was going to say, its so true. He was talking about Judicial Independence and they were saying, they were talking to us and end telephone justice, ending telephone justice meant that it was no longer going to be that the party boss would pick up the telephone and tell the judge how to decide. This was when yelton was there. And he said, you know, independence is a funny thing. Judicial independence could not be more important. But are you being true to the record . Are you trying to eliminate considerations of personal popularity. Are you deciding a case that it is not just picking up some cliche . Are you actually doing are you know when you are a judge that that is how you should behave and you know whether you are or not. He read the record brilliantly, the lawyer who lost the case will thank what an idiot, he wont say that but thats what hell think. All right, you do know. Other judges, lawyers, others may know the feeling but they dont know whether youre living up to it or not but you do and so you want to create conditions such and it isnt just something that you say in the newspaper editorial or something someelse that you really do it and youll see and youll know. I thought that was a very, very meaningful statement. But not a specific technical part of your job that was just some words of wisdom. Correct. And i think they were good. The technical part that i know that i will have a lot of cases to decide or be involved in and you have to you have to listen to the other judges on the court, you to listen that youre deciding independently and you have to somehow come to grips with this area or that area or the other area. And sometimes its easy. I thought Administrative Law and i think it was easy but, you know, thats going to happen, it does happen. And you just do your best. One of the most important parts of your case is which cases to decide the process. Did your use of the process change as you got on the court and evolved over the years . I mean, you think at the beginning there are basically 2 or 3 rules of take a case. The main base for taking a case which is probably 90 of them and if they have it should be uniform so probably we will take it and if they havent, why take it. Perfectly good judges and that explains most, almost all of the decisions to take or not take a case. And, of course, the lawyers know that and so they say theres the splits in the circuits and we have to look to see if there really is or not and how important, et cetera. We will almost always take a case if a lower court judge, if the lower courts that were reviewing hold unconstitutional, not 100 of the time but almost always. The third thing is harder because its some sort of important case. We think its very important. We think its important that there be a Supreme Court decision and it doesnt need the first criteria. Guantanamo or bush versus gore. We had a little disagreement about that. [laughter] i noticed that. Yeah. And so they thats a hard category. Of course. It was easier on guantanamo. Did you use to read the petitions yourself or mostly relied no, most of the time occasionally i would read petition and responses. So what we get is say on wednesday a stack of memos and they go through the arguments and so forth pretty thoroughly and they look things up that need to be looked up and they make a recommendation but theyll summarize it. Then i go through it like this and when i talk to the students about that i say i reduce it to Something Like that from say Something Like that probably in a couple of hours. I do it because i have the criteria that i just told you. I can see with this case is about very quickly. When i see what it is about that usually disposes of it. Quick you would come to the same conclusion. If you read them you would come to the same conclusion. I believe it. But, this is the stack problematic or whatever it is. Then, on the next day or two later we send a memo around the chief sends the memo we should discuss at our Conference Friday these. Theres a list there. Sometimes 15. And then anyone on the court can add anything. I was a junior for a long time the chances of something to add a nobody else did is not promising for the likelihood. Sometimes they would. When we get that list i go back and discuss help probably i will vote on friday. In the comments verse and we discuss is the status of the circulating cases. We have a list. Everyones name everyone has circulated those have not circulated can look and see. You think you have a list its probably true in the law firm to of what everyone is doing. It doesnt duty good everybody looks at his own name. That will spur things on. The second thing would do is the cases we heard that week for the third thing we do is the certs. The chief starts and said briefly names with the case is praise is no, no, no, no and we go around sometimes he says yes with ample discussion about it. If they vote to grant, oddly granted. The failsafe is that i hear someone Say Something and i had not paid enough attention to it will be discussing with the clerks and so forth i will say hold it over a week. Hold it over two weeks. You and keep going as long as you want. But if im holding it over then when i get back to my office, during the next week might clerks will look up the things that are questionable for a get their memo. Then i go back to the briefs. And if it is questionable in my mind i suspect the ones that are disposed up which is certainly most of them without much consideration. Without much thought. I suspect you would come to the same conclusion. I think so. Im not positive, but i think so. So it works fairly well because the strictness of the criterion wound or split in the circus before we take a case. You probably cannot do much harm by not taking a case. Except to the lawyer who filed the petition. Procedures houses client i find it very rare. You think youre more generous earlier in your career or less generous . I do. I do because she were more generous . I was more generous of the beginning. Thered be things out think perhaps rightly that i did not know anything about. And i am nervous about that. So i will lean more in the direction whether this is an issue or not. Youve seen things before douglas at three years and they begin to repeat. Not the exact same issue with the area. When they begin to repeat and you see is something youve been through. You have a view about it even if it is on the precise question right less likely to take it out. Can we talk about oral argument and how you went about preparing for oral argument and what role it played in your decision process . Oral argument, what happened now the lawyers begin to write. The lawyer wants to reverse the lower court decision. Read brief, no its great. The yellow brief, filed by the blue brief and thats the reply great is the solicitor general. Light green, anyone can write a brief period go shoot quite a few of these these days a lot more than it used to get. Groceries get five, 10, 15 and a case. Maybe five and over the whole number of brief 10 or 15. It could beat more. The right to die at cases close to 100 or Something Like that. I have a stack of briefs before oral argument oral argument is the first weeks of the last two weeks if ever, march, april. Monday, tuesday, wednesday, monday, tuesday, wednesday. By the leak before oral argument i have the briefs. They are a little pamphlet they are not brief i dont know why they call them briefs. [laughter] i dont want to read them quickly speak no award looms wos until the late 1970s word limits on the Supreme Court of briefs until 1970s. Really . Yes. It right to my office. To my desk. Now the decision process i thought of thats our time is really this. It isnt that my mind is a blank. By oral argument no. What happens is i read the question. I read i use that yellow brief first. The reply brief bit. Of course the same thing the blue brief it said it just says it in fewer pages so i read that first. [laughter] then ill go to the blue brief i read the question when it read the question i think i know the answer. I go through the brief, i said yes i did know the answer. Then i read the read brief not so fast. Not so fast. I will read the sg. Being open minded i suspect this is true it any important professional decision but does not involve you your self. The decision is not that your blanket minded. Being open minded is not to have a blank mind to okay it is to be willing to change when you see facts and you see arguments, it was really the other side. You can go back and forth that answers this question. Go look it up. Be sure they are right be sure this one is right or be sure that one is right or visit of the argument i thought of go look that up. You know but anything else in your memo that you want. Tell me how to cite it. I want you to think about these things. And so i will get a memo from them on each case there are four. Law clerk is a sign. Yes. I will get the memos. The week before a few days before event ive read their memos i have read the briefs and then i sit down with them. A very read the amicus brief is i hate to tell you this. But after a while you learn who is who is the association of manufacturers fails or brief their whole point is a show outside there on may beat their clients think thats a great thing it does not move me and it shouldnt move me anyway i certainly hope it doesnt. Its the argument in the brief. The csg of going to read the sg. I will read through who is writing and i try to get the ones that will be substantive and answer questions that are in my mind. I will go to the others were going to the others varies. I will pick it up, open the page. Click shoot read you dont read them online. No i read them thats my age. I dont read online. Click to the pandemic change you it all in that . Looks a cap shipping the briefs up to you . Yes but what the brief i have my pen in my hand i will underline some things that got it take out a thing down here in photo . I want to be sure. I cannot be one 100 sure because if i read to the table of contents i will always at least read the table of contents. The table of contest it tells me thats exact same thing the last brief said this is its cousin m. But i get a feeling that somethn their law clerks they be sure to look at that. Sometimes they do tell them you better look at that brief period i remember this two years that took, why . It was assigned to me. From the very hard case you do know the job of light do you think id need the job of language . The somewhat near the indian ocean. [laughter] you better know it. The group that even i had heard of it. These gewirtz are going to tell us correctly what part is relevant to this. In respect to the technology. So that was helpful because they are trying to explain one of the lawyers for example under brainstorm and a Patrick Casey got everyone to agree. All the lawyers and the Lower Court Judges to put Motion Pictures of a patented invention online and this it was all right if we look at them. And we did. I mean i did. You can see how the invention it worked and i never would have been able to figure that out from the written word. So that was not a bad idea. In some satisfy we know they say. We have lockers to talk too. Reading their memos i might go back to something that depends on the case and then im ready for oral arguments. Do you discuss the cases with their fellow justices . Discussion and oral oral disn with another judge in a panel we were talking about something have it to the conversation erodes were talked about two different cases. In the Supreme Court because when you Say Something whether you like it or not it can be taken by the other judges as a kind of commitment. So be careful of that. Its not never but it is rare. Im more likely to put something if its a discussion im interested in say hope you will pay particular attention to this brief. Or to that. Ill do a memo not before. Im thinking it talking to tony about something i said read that, thats pretty good. Its not the norm. I dont its a how you work. But i thought i dont prefer the questions very rare ever repair the questions, very rare. Something would come up or i would have in my mind a problem the best question i think i cant prove it by think the best kind is i dont know the answer. I really dont. I want to find out. I think he knows or has a view anyway. I want to hear what he has to say. What i could be trying to do some time and really do succeed at this, go look in the Second Circuit and Second Circuit interestingly enough design the bench. They designed it so you are at the same high level as the lawyer. And did something similar with his Supreme Court venture. Used to beat flat across they could not see each other. What you are trying to do which the lawyer resist. You would like him to forget, which he wont do. Forget he is representing someone. I cant say that happens very often but you can somehow tell you actually establish a conversation but you establish questions and answers we feel youre making progress. It doesnt always happen. Its only doesnt happen too often. Sometimes you do, sometimes you do that was particularly worthwhile. A second thing oral argument can do is allow you to say where you are coming from. Your colleagues seat where youre coming from. Beginning of the conversation. The third thing is want to make a joke or something, dont do it. [laughter] dont do it. The oral argument is not about you, the judge. It is not. But something carved out of time and space. Maybe gets little progress going. How often does it change my mind . Not too often on the result. It changes it more often than you think. On the way to look at the case and that matters. In depends on how you look at it. The law that lawyer in the next case or whoever in class and taking what it says. Not necessarily the holding. The holding can be very important. But so can the words that are used. How you look at the case is important. There oral argument 15 of the time, 20 of the time, maybe more than that changes how you look at it. Changes your mind from a to b or a2 not a, 5 . 10 . Or rare. Oral argument to me is very important. Do not go around telling jokes. Ive said idiotic things in oral audit but so what, so what. Were trying to do is make progress. My worst one i liked it but no one else did. A rare case came up in the law schools will no news to write about it. Its jurisprudence of books. He said suppose theres a sign in the park sang no vehicles allowed in the park. This apply to a jeep used as a war memorial . It was absolute brain is that i know are in my class we already had that. I start asking suppose you are in the park and there is a sign and i couldnt remember it. No animals in the park. He said yes. I could not remember what it was. This apply to a pet oyster . [laughter] the lawyer said or what . He never do that this rehnquist looked over and said he never. Did you have a pet oyster. [laughter] cooks him to turn to talk about the book a little bit. [laughter] i dont need to ask justices questions very often. Many of the reviews of the book have been very favorable, as this should have been. There are two kinds of criticism and i like to hear your thoughts about them. First is the book is largely a detailed discussion of a lot of the cases. You may be losing your audience. Why . While you lose your audience . Why is it necessary to go into so much detail these facts . I want to write a book that one major purpose really. I was a judge for 40 years i still am a judge. I would like to think back over and what have i learned from all this . That is a great line by the way. She dies at a young age she says what it should learn from this life . All right, i want to explain. By the way i can talk some of the theories of textualism and regionalism and so forth. I know this one here to comment 200 or 300 law professors. If you go to the theory they know more about it than i do and you will know they know more than i do. I promise you. But i have had some experience they have not had. And so i want to do is read the book out of that experience. I want to say there is a kind of traditional way a global way of looking at how to decide a legal case of a certain kind of the kind i described in the book and i will show you. I will show you what i think going back to maybe homes or John Marshall they knew what they were doing. And of course the book history and text. The word is vegetable this not a fish. They will also look to purposes what did congress, or did they have in mind . Someone wrote these words someone. What did they have in mind . Lets try to find out. What consequences will there be in terms of purpose if you can . If we decide this way or that way. What are the values that underlie this would look at the constitution is still there my pocket. Has certain values in it. Corny but true, democracy, human rights, quality separation of power, rule of law the country is built on them. Three and 20 Million People who live here that holds them together certainly helps hold them together. How does that fit into your detailed discussion its there. It is there. You get a case its partly the Human Community he said this is vague and corny at leaves the judge free to do anything that is good. As what they are afraid of it. I sucked through her anymore freak than textualism. The judge was everything he inks is good they are not doing the job right you can do that whatever theory you have dont do it. Went to write the cases and what it as far as possible to put that reader and the position that i actually was in. I try not to downplay but the opposition to most of these cases are known to downplay what theyre saying i want to say what they were saying say what i did not accept it and show people the constitutional case or in the statutory case the statutory part is an important part of this book. I agree two people are not lawyers and so forth will have to work a little bit. But even a statutory case to be put your mind to it you mix the bottom of it pretty quickly. If you really want too. I hope some of the non lawyers will. Detailed discussion of the facts in the case. That we are trying to do . I put in for that reason. Which is really an easy case that i thought. If you have a handicap trap you can requires under federal Law School Board to give special treatment. Supposing the parents not doing enough that you can sue them. In addition you are entitled to your cost people to understand that educational expert to testified and she won. She said like the 29000 as part of my costs. Does the word cost mean . I brought them up to speed does that tell you some people but the school were thought it was legal costs. There would be filing fees and beat the lawyer fee to does not mean lot non lawyer fees educational photo to the difficulties approving these things. People can understand that. I dont put it this way in the book. Even that isnt too much. I try to do that. Textualism one points a good friend. He is this dont look at purposes is too hard to find. I will do it lets order to join with the word is . Cost is that tell you the answer lets say it louder. Lets try it three times cost, cost, cost we are still not there are week . We do have a problem with the word meant. When a problem knowing his application. The scope of the word because you have to understand the. I want people to see that. Its easy case to find on this what is it doing in the Supreme Court if its not harder than that. My office was on your side of the case. It was my colleague. We agreed with you. The second criticism you assume everybody decides cases it based upon the legal arguments and the facts and the law in front of them. There are many people today who accuses some members of your court of having an agenda deciding what they wanted to decide do not have an open mind your book almost naively assumes you can reach those people. You can more than you think. That has been my experience. They didnt put the weight you said you said it in a very polite way. [laughter] what they are thinking in that audience is this all politics. It is all politics its a waste of time. Too that i say it politics is the wrong word is not the right word. To its more open and my experience was and two years ago there its a more open than you think. I did work for senator kennedy for four years this is politics. Back to my Office One Day at the Judiciary Committee theres a young woman going to all the papers on my desk. When i said excuse me . Is there a reason youre reading the papers on my desk question she said yes i am a student here and i am setting the Judiciary Committee and want to see how you decide things so i thought i would come in i got a little annoyed. I was about to Say Something rather biting or slightly unpleasant the thought crossed my mind maybe she is a constituent. [laughter] guess i was more polite and politics is that its a phone call from the mayor of wisters will the secretary of defense which will he answer first . I know its not going to be the secretary of defense. The republican democrat with the reaction is what will the paper say . Will the newspaper say what will my constituents think . How will it be bill this is going to make a more popular over here, they are, thats really politics. I do not see that on the Supreme Court in 28 years i did not see it i did not save a fortune savs over the court of appeals either. So how about not politics but ideology . I think ideology does play a role. I think ideology does play a role but you use it or lose it pretty quickly. Completely, no, no. Youre brought up a certain way. You walk away from everything that happened when you were growing up. Exactly, exactly right. I discover the president of this university and i went to the same high school. Fabulous. Fabulous i didnt tell her but remember coming into my senior year and went to the local swing pool and said to my mother id never been this happy in my life. Why question we spent half the time at the country club in the sun. That is San Francisco i grew up in San Francisco i went to Lowell High School that is true of live the life i have lived you all have two by the time in your 40s or 50s you will have views. Maybe they are articulate but they will be views about your profession. About your country. About the city. About all kinds of things you think you can escape them, you cant you cannot jump out of your own skin you cant do it. You can try, you can try to keep them at a distance. First of all thought that was terrible i thought why doesnt everyone here on the Supreme Court agree with me and be reasonable . After a while i began to think somewhat more maturely. I thought it is a big country. It is a big country through 20 Million People theyll think Different Things. And they have got to live together. Having people who think Different Things and that kind of way with how you grew up, or you came from and so forth and so on is not such a terrible thing. That is there. Ideology is there. Sometimes, sometimes trying to enforce brown versus board we know Political Considerations how do we get the south to do this . The only people out there to enforce brown v board for years was the courts. They had to try to figure this thing out. The fifth circuit really integrated a lot. So sometimes it creeps in. So yot the other people are saying and where they are coming from. When you figure that out you then can sometimes bring people in. Sometimes they are trying but more than five if possible and that was my experience for 28 years. Sometimes somebody might say forget it. Ive never heard a voice raised in anger there thats true. I was junior for 11 years. I once held the record. Will you please wait, but i missed my chance and there we are but i like that rule its a very good rule. Everyone feels hes had a chance to be heard. Then we go back and of the chief signs at the end of the two weeks. Everybody writes one and then 2143 et cetera. And he wont be assigning it unless hes in the majority and then he wants five so i learned after about six months for people on this slide, four people on that side then its my turn to speak. Three words im not sure. Whatever i decide is where the court goes. The book is called reading the constitution but the first third of it is about statutes. Do you think you read them the same way . No John Marshall i put a chapter of six Different Things he said. I think it is may be the most important case on interpreting the constitution and one of those things he says you know how many times it says bank in the constitution into the and te question is whether congress had the power. He said zero. Of course its a constitution and of course it will be written as a level of abstraction but theres the principles underlining those words freedom of speech, right to bear arms et cetera. You try to understand whether the owner of a Shopping Mall it didnt have Shopping Malls but i learned that. I think in california they did. And you have to remember in the ordinary person in 1789 or 70 when those words are written, one big problem a serious problem is 50 of the population wasnt part of the political environment at that time. [applause] that is just one problem but its a big one. Another problem going back we discussed this publicly for example in texas at a football stadium everybody came out they hadnt seen a Supreme Court justice or they thought they were going to play football again but nevertheless i would say to him at this point George Washington didnt know about the internet and he what to say i know that but its more like the two campers one sees the other putting on Running Shoes and says why are you putting on a Running Shoes. Theres a bear in the camp. You cant out run the camp, yes thats true but i can out run you and then he would say at the bottom of the disagreement here he would say you know, because he came to the conclusion after a while and im serious you have a system and he is looking at consequences and purpose is purposes tryingto find them ande how they are consistent with other values we hold in this country and so forth. He says its so complicated youre the only one that can do it. So that is a basic complaint. Thats what they dont like but i try to show its the other perhaps there is something to that and we have a constitution that no one wants and i think maybe 20 years from now somebody will know who is right about that and here i am, big surprise. Where do we stand is anything sacrosanct anymore, is anything up for grabs . Some people say that is what the court has said in the affirmative action case and these have been radical changes. Where do you think we are going and why is it an important part of our jurisprudence . Not just on the courts, federalist society, all over the place they make four promises and thats one just read the words, number two its fair everybody welcome to the same conclusion. It will help congress and member for the judge will be trying to substitute what he thinks is good for the law. Those are great promises. Unfortunately, none of them can be kept as far as the certainty. It was the easiest one i could find. May happen. I cant remember the name but the statutory case. 68 pages of what is the meaning of the. I think im on pretty strong ground there but it has a lot of appeal about keeping the judge under. One of the arguments i say you were willing to overrule two cases one of which was in the law for 30 years and the other for 50 you were willing to overrule those. If there are exceptions but the exceptions are rare and a sometimes you can find the law has changed anyway and you can find this hasnt worked out the way the court seems to have thought it what it is sometimes you can say no one has relied on it and it hasnt worked. What are the reasons here, i dont see them. Is it that you are prepared to overrule any case that does not follow the textualism or regionalism . They are going to say no that isnt the basis. Why are they going to say that . That is what you are implying in the question if you take that as the basis, there isnt going to be a long left because no one went into this until a 21st century. Very few decided on other basis. What was the basis . The basis for overruling seems to be, just my opinion, that the majority thought roe and casey were very wrong, egregiously wrong is the term Justice Alito used. Do we have a speaker that tells you i use that argument to Say Something slightly different. Arent you mr. Textual list using that as a basis on the same boat that you accused the nontextual list. Whats your job, you are a judge, you the judge have to decide whether the prior case was wrong enough to be overruled or was it not and it doesnt open the door completely to exactly what youre accusing them of having the opportunity to do and doing it, deciding what you want is good compared to or bad compared to rather than applying the law, so arent we all on the same boat on that. Do you try your best to do that or not and about the textualism that gives an advantage one way or another. Thats all i need to say your point that youre going to rain and whether its good or bad isnt a very good point. You could do the same thing right there in the question you posed. Let me ask you a question about history. Legislative history of her statutes into constitutional history for the constitution. Do you see any tension between the positions of those in terms of what we see and how the cases are decided . Do you think that you would consider both the legislative history of statutes and the constitutional history that is what happened before in deciding cases. Will the reports and Congress Tell often but not always if they dont you see that it was disputed in congress in terms of Something Else but more often than it is recommended. The answer is of course you would, of course you look at it. The argument is the first gun case was about that history. Why is it a well regulated militia necessary for the security of a free state the right of a people to keep and bear arms shall not be infringed. There is a, after state and so what they were saying is the right to bear arms and the right included keeping your gun under the pillow for the burglar in case a burglar comes. John stevens wrote a dissent on history which what this was about is people going out saying dont ratified the constitution. Look at article one it gives congress the power to call up collectthe state militias and re them. They could call up the state militias and disband them and we would be left with a federal army and they think we will put an amendment into the constitution that says the militia is necessary for the security of a free state and therefore the right of the people to keep and bear arms which means that militias shall not be infringed. No problem, vote yes for the constitution. That is john stevens point. So the question of who is right about that and did they argue the same history on both sides . I think sometimes just like legislative history sometimes it answers your question and sometimes it doesnt but truly theres nothing wrong in reading the history. Use it for whatever its worth in my opinion it wasnt worth too much in that heller case and later on when the court decided and they went back into the history to decide whether you could have weapons outside of the home and the argument of the majority was look back into the history period. I set of really, we look back to see if this is regulated long ago in history. I looked up i did find this on the internet but it was truly obvious i got it somewhere. In the hundred years war they used a steel letter i guess you all know what this is. He threw it over the. We can read the briefs but we are not historians. We are going to look at the kind of thing alone. We shouldnt do it. That is one reason why i think that approach is not very helpful and was not helpful in that case. There were a lot of other things and you can read it. We went through and i tried to explain. Judges are not good historians and then someone filed a brief, a group of linguistic historians and they said in that brief, we looked the use of the phrase to bear arms and the 1760 to 1790 and we found Something Like 120,000 instances in which the phrase was used and in all of them except five or ten or a very few so i mentionedhe would have ended it on time. I fear that ive extended it so i want to thank Justice Breyer for coming. [applause] there are many wonderful questions. Can you think of the time something happened that made you smile . And the justice looked over and he said he did you have a pet oyster. [laughter] thank you again very much and thank you Justice Breyer. [applause] im going to do so is in the social engineering of everyone would humor me a little bit. How many students here or third0 year getting ready to commence on sunday all right. Do you want to take a picture with the justice . Come on up. I do talk to a lot of i can tell you why im something of an optimist and i can tell you what senator kennedy told me. I tell this to the high school students, college students, law school what did you say you have to remember working in the senate and i dont know if that is still true but working on the senate staff i think it was an important point when we are trying to do something and other people disagree, what you do as a staff member is you sit down and talk to them. Cannot be added to one thing, dont talk too much, listen to what they say and you will discover it if you listen to what they say, they will Say Something finally you agree with. Youve actually agree with it. And as soon as they say that, you say what a great point you made. Once you do that, sometimes. Dont hold out for something you wont get. [applause] then when you actually got somewhere senator kennedy as they did, you did such a great job. You say dont thank me, thank senator hatch who came up with the idea to bridge the gap. He says credit is a weapon and in fact it works, theres plenty of credit to go along. If it doesnt work, who once the credit and that is a cause what he told me and what i saw then 20, 30 years ago did work quite a lot of the time. Ive said something they can get out and do and help pull this country together. [applause] we are going to come up the stairs and stand behind the chairs and youre going to do it really quickly. We are so proud of you