Policy and Strategic Initiative at the american institutes for research. So now please join me in welcoming moniqueas chism. [applause] [applause] good evening thank you for that wonderful introduction. I like to start off tonights event based first offering a land acknowledgment birdlike to gratefully acknowledge the native people whose ancestral homelands we gather as well as the Diverse Communities who make their home in washington d. C. And for all of those streaming to acknowledge the land youre coming to us from. I am so excited and pleased about tonights event both personally and also at the secretary of education. As you heard this is a special evening for us as we are doing in person and Live Streaming for the first time. And also that education has been at the cook core of the smithsonian Mission Sensor 175 your founding. In fact the spirit and purpose of the programming you will have tonight the Smithsonian Associates have been doing for 55 years through highquality inperson programming. We are happy tonight. We are particularly excited about this event because we have two fabulous people pretty properly the singular occasion spotlights associate Justice Steven breyer and also cnn legal analyst joan. Let me first start by introducing Justice Breyer. The smithsonian has a long and valued connection by tradition the chief justice a member of the board of regents. Our collections encompass countless holdings that help us tell the story of the courts vital role in shaping our democracy. Ruth bader ginsburg, oconnor, san antonia have all taken part in a memorable event. And Justice Breyer joins that esteemed list in 2016. We are honored to invite him back. Justice breyer, as you probably know, has a long history as a legal educator and a continuing affiliation with harvard university. In fact the book that he will discuss tonight the authority of the courts and the peril of politics had its beginning in august 2021 at a presentation for the Harvard Law School lectured series. An educators voice is present throughout the book as he talks about the importance of judicial power, the role of law and the role of the judiciary plays in the american body politics. For example he talks about the landmark case of the 1954 brown versus board of education decision and amplifies that through Cooper V Aaron which came three years later which reiterated that decision. We are happy to see he takes on this discussion about how the expansion of the Courts Authority and these events become key catalysts for a white wider Civil Rights Movement that was defined in the 1960s. He really helps us think about the essential role of Public Confidence in the Supreme Court decisions and how those judicial decisions shape our democracy. We are excited to have him here tonight to talk about these ideas. We are also excited to welcome joan im thrilled to have her talk with him tonight. She has covered the Supreme Court for 25 years. She is also the author of several books. She most recently published a biography of cheesed chief Justice John Roberts entitled the chief in 2019 birx is a graduate of Georgetown University when she was eight finalist for the Pulitzer Prize explanatory journalism in 2016. So please join me and welcoming both of them to the stage. [applause] [applause] [applause] thank you and thanks to also laurent rosenberg who had quite the hustle and arranging all this. This is the very first time weve been back in person at the smithsonian. I have to say we have the added bonus this is justice buyers first in person washington d. C. He couldnt say in the world he was up at the 92nd street we have extra special things you also something even better because today was the first time that the press and the eight justices minus Justice Kavanaugh were in the courtroom for oral arguments. They had not been to gather on the bench to hear a case since march 4, 2020. This was quite a big day. Joanne breyer was there watching Justice Kennedy the retired Justice Kennedy roberts was there how do i feel to you . What was it like for you . And everybody here. Second to your question how did it feel . It felt better. [laughter] clicks it if you like business as usual to just feel you were able to get more out of the case . Its organized we had to tell that you know a telephone, i would do it in turn. The virtue. That is minute we each have a turn of two or three minutes as you focus on your question and you focus on the answer. And that is helpful thats what youre supposed to do. But in addition, the negative part its not human. You cant see what people look like, how are they reacting, he could not pick up your colleagues said so easily. What do they think of what is going on, in person is more of a human thing. There are things that make it not human to having one thing that makes it more human is a definite advantage. I would say it was a big improvement. Could you pick up on any cues from your colleagues will was a water rights case. One was a water rights case most criminal law case. In terms of the opportunity on the last 16 months . Maybe a little more. He might not have said that her call a private meeting a conference. We are rubbing elbows. I wondered about that her and i all have testing very strong protocols. Have you had caution since Justice Kavanaugh was infected even though we have been vaccinated were you still eating together keeping your masks up . Or do you doing think differently since you found out about that . I dont think so because we are tested continuously. Its the home test once a week there is a more lengthy test, we had lunch together. I actually have the last question i never get to go. So many justice said you dont talk about the case in thing about sports, music, grandchildren stuff like that. The wealth of proper names of the football teams in this area. [laughter] you do get a little political . I dont know if that is political. I was amazed of the breadth of knowledge of the weird nicknames of football teams across the United States of america. Its an extensive conversation. One of the biggest football pants was Justice Thomas i am sure. Wondering is always been the most silent justice during oral arguments. During teleconferences he did right in the sequence he would come Second Period many were wondering if he would speak from the bench, what did you think about him jumping in right from the start . That is good. I sit next to him for 27 years and i know perfectly well he is very good questions. He thanks they will be answered sometimes they are not. Doesnt like to interrupt other people i like to turn to the book i understand practically sold out everywhere. It sold out of their having a trucking crisis. [laughter] thus to all who have not gotten it yet. I have other questions for the justice of several questions that have come in from the audience here tonight and also people on zoom. As it mixes some of the substantive ones with questions related to court culture. Its always good to get a little peek inside. But from the start the Public Record some your interviews in 2010 bookmaking our democracy work if its harder these days is a real risk here today. Probably. If you look at the numbers and poles you see one of the problems in the country is a lack of trust with the institution. And you see that in the poll. I dont see how any institution can work without a certain degree. [inaudible] [inaudible] youre talking like everything is fine nothing is going on. [inaudible] was the right wing maniacs is unacceptable. Youre just going on like everything is fine but it is not. [inaudible] that is enough. [inaudible] you gave your speech. And i think that is fine. [inaudible] lets go back to the others. Now is the time to retire Justice Breyer. [laughter] the 20 most sensitive questions. I did not set that up. [laughter] okay was just get to the. [applause] what do you say to people who argue that you should retire while the democrats of the senate majority, that is the basic issue those folks say. Ive said pretty much what i have to say for theres a lot of considerations. Because i noticed every time i add something it becomes a big story. [laughter] solis i add the better. I think i know with this gentleman thought and i think i have most of the considerations in mind i have to weigh them and think about them and decide when the proper time is. I hope i do not die on the Supreme Court. Because the topic is on the table i think i will stick with that and say your predecessor Harry Blackmun in 1994 told the president in april of 94 he would be stepping down. And told the president mark should be stepping down. [inaudible] now that we are into the term, to think that kind of practice has been helpful to a president to know ahead of time . Ive looked into various and the only reason is i dont answer the question is simply i dont want another headline. This is about the book and i like to stick to that. Do you think the court has added to the polarization that you are trying to step away from . That is a very interesting question. If you go back into history many, many, many decisions i personally and a lot of the country will really disagree with. And that has always been true in my opinion and in other peoples opinion their cases or i think theyre very, very wrong. The story i like because it made an emotional impression on me as an chief justice is in my office is trying to upbraid her greater emphasis on the courts, civil rights. She asked me a simple question , why do people do what you say . And that is what has led me into both history because they didnt know and also the need for trust. And also trying and that is why i am doing this, to explain to people how the court works, what it does, why it works when it does well and believe me when it does well there will always be people who think even when it does well that theyre making very wrong decisions. So, the ultimate point i want to get across how do you develop following the rule of law is you must convince people the course the judges think the rule of law is important, it is their job. Lawyers think about the same the point though in this country people often forget it. Of the 301 Million People they are the ones who have to understand what its important to follow up on opinions they disagree with. Let me ask you about something. This gets to why when the people stood up with the sign said how can he act like things will be okay when we are seeing so many divided . I know that you write the courts differences those divisions went to tell the people who come back and observe there so many cases that way and it seems like some of your colleagues might be voting along the lines that might be more political. When you say to people who weigh that issue . Thank you. Lets go back, lets go back. I do not say everything is going to be all right. And i think thats true of everyone in this room. These are high school students. Law school students, the thing i point out which i like very much who said the same thing Abraham Lincoln said the gettysburg address for each of my grandchildren memorizes the gettysburg address will get 20. Not not every one of them had the point i want made there it starts up fourscore and seven years ago our fathers, what did they do . On this continent a new nation conceived in liberty and dedicated to the proposition all men are created equal we are fighting a great war. This nation or any nation so conceived and so dedicated long endure. Now this is an experiment that is an experiment. Theres a lot of europeans its a great theory of the enlightenment but it will never work. It will never work. And that is what we are up against. Over up against is to try and show its about slavery and many more ears than that. We had all kinds of things and yet basically it sort of worked. I mean sort of. You have to be hesitant. There is not one person who knows and all i can say institution is an important aspect of trying to get that experiment to continue and i know theyre going to do this this is so great, we have to teach those younger generations history and what our institutions do and when they are a part of it and it belongs to them its true and thats what i want to say. Let me ask the specific question on something you wrote in the book. And recorded something from your book his just do your job my father. One do your job it is correct. The other. Youve done that effectively. Justice larger point was a defense of the courts shadowed docket to some people call it. Trying to save the justice issues these emergency orders for example on september 1 when the majority led the texas abortion ban go into effect a lot of it is necessary in business as usual. But you sign on Justice Kagan on when the majority let texas enforce the abortion ban that majoritys decision is emblematic of too much of this shadowed docket Decision Making which everyday becomes impossible to defend. Just know this gets another important topic, what you think of justice defense and what did you think about the emergency order process this getting impossible to defend . Guest what did i think about that case . I think that was wrong. Not only did i wrote but i signed the dissent. And what i think is primarily an effort to explain what the emergency docket is. And why you have to have quick decisions normally, and you do basically the emergency docket is a docket or someone believes the court will hear the case so while we are writing the briefs and while we have the oral arguments, will you please issue an injunction stopping this are taking an injunction away and letting this go forward, they mostly and my experience have involved the case. And somebody has a point and says i want you to accept this. And in the meantime would you please stop the execution. Now more recently it involved cases involves coated. And then it also had the case you just talked about. And so its not only free of doubt by any means its not always clear what you should do. And in my opinion what we should have done is we should have issued an injunction to stop the texas law from taking effect. That did not command the majority. Look i grew up in San Francisco. I have seen people disagree but never to the extent that i have here. I first thought oh my gosh. Not just on the court but a lot of people in the city of washington d. C. Agree and even in your newspaper i know they write about that. So that is true. My first thought was as you know because ive said it before and i will say it again it is such a pity everyone does not agree with me. After all it is so reasonable. Perhaps a more auteur view this is a country that has every race, every religion, every point of view imaginable. And as my mother used to say there is no view so crazy there is somebody. [inaudible] dont tony but she said that. But the point is this, it is a big country. Compared to a lot of other countries it is a nation of people who have long disagreed and i have my own opinion and i often write them about what i think the law ought to be. Sometimes i do and sometimes i do not. They have agreed on a system for trying to live together and work out their differences. All i am saying is that system is it experiment, its one part of a larger experiment in one of the problems of the country hope the gentleman wrote the book. One of the problems is how do we continue to have a nation or people of different points of view can Work Together under the law, that is the point, that is the problem. To follow questions on that. You were concerned for the emergency orders in the mind you sign onto it was impossible to defend or getting impossible to defend you think we might have more caution among the justices on the shadowed docket just because of some of the concerns that have been raised . Rex i dont know other peoples minds i know my own. And i said in that case in that particular case. But isnt the only case. I do think plessy versus ferguson was correctly decided. It was not part of the current pattern that people have raised concerns about. [inaudible] the pitch. Guest if riding in the 1920s i think many people at the court made up of seven conservative and maybe a third period that every appointee of the Supreme Court should have to learn your name in school not but that is such a great thing but we have to know with the court about every single room has been appointed by either or president truman. So the proper thing to do is the justices should be appointed by democrats. [laughter] i have no comment. Only as to followups you think the court will reverse itself in some way on the texas order . The texas order says specifically it expresses no view whatsoever on the constitutionality. The texas case is whether you should take basically with the decision of a lower court in the texas case would have an immunity. You were very concerned white was that . For wizened reasons that are obvious. I think they would like to know. This might discourage some from doing it. One of the things you take into account is weighing the equities it would hurt and how much in my own view it might hurt a large number of women that is what i know i should exercise their constitutional right to have the abortion. That was not the only question didnt say if it was right or wrong on that this is not about the merits of the technical decision. Im sorry the merits of the texas case the lower courts are deciding it now. In your book you prefer to row the weight is a piece of evidence as conservative as commentators often say. You say in your book to counter the argument the court has upheld obamacare refilling is confident today as you were when he wrote that . What i wrote that i did not know more than you. About what was coming up in texas . Know about how courts will decide. That is the normal thing that happens. It is not one 100 if it were one 100 you never have brown versus board of education. Thats what i thought then thats what i think now. What is that part that you think now . I know you like me too go into incredible detail describing my views or other peoples views at theres one thing i am not supposed to do is lie. [laughter] going to talk about 1994. Confirmed by about 87 nine. The last confirmation we had was on a strict Party Line Vote you think that would take. First remember this, the confirmation process is a political process. I give a lot of reasons and that book one or two of which there are several reasons in the book, what the word politics might mean as applied to a court which very different from the senate or the house for eight staff person for some time. One thing i learned, i learned a lot in that. Thats important to me and it remained important to me. One of the things i learned as an might confirmation or somebody elses you give a speech. I will stay here for 15 minutes after this is over and you can say anything you would like, how is that . [applause] for those people on zoom number groups that democracy cant wait Justice Breyer retire this is nothing if her before . No. [inaudible] few people recognize you on the street . No not really. [laughter] not very often. Sometimes or someone might ask a question requested they ever ask if youre going to retire . No. Justice bennett was appointed in 1990 by george h. W. Bush retired in 2009. You think people are still saying that to you . Nobody. Really . Wow. I appreciate your references to Justice Kennedy im sorry senator candidate Justice Kennedy was in court today. You wanted an answer the answer to that is this. What i learned is relevant to the question is senators in congress and members of congress will by and large ask what their constituents they believe want to have asked. If in fact you do not want certain questions, if they are not sensitive to what their constituents want they will not be senators or members of congress for very long. This comes up i would say look, the thing is, you are part of a decisionmaking process are you soon will be in this country. And so what i think is the strength of the country and what i think that First Amendment is therefore and i learned this in the senate to, listen. Listen to what other people say. Does that mean you think todays senators and senators for example who blocked the confirmation of Merrick Garland back in 2016 would set a tone for the polarizations we are talking about, some are acting in what they believe the constituents want. Would have to ask them the question. I think senators follow with their constituents want wont be there very long but thats my own opinion. I stress this when i am talking to the students, because i saw senator kennedy do it all the time. And the staff to put listen you may be persuaded many times you wont. You might try to persuade them but most likely wont. They talked long enough youll find something actually agree. You may hear the other person Say Something the actually agree you say hey maybe we can work with that. Lets see if we can. And that we tried to work with them and americans are pretty good at working together. Find something and then, by the way, you make it somewhere. If you get 30 its better to have 30 to be a hero of nothing, right . And i promise you that was his attitude but he said look, dont worry about the credit. If you get a positive result out of the outcome working with that other person listening, if you get a positive result there will be plenty of credit to go around. And if you dont succeed then on. I was right i believe in the fifth grade at grant school. The four of us would have to Work Together for what was San Francisco like. You get you better learn to work with other people. You are sitting at the table now. Would be like all of us want to be there. Without their law clerks are in the administrative staff and go around the table and Justice Breyer as of last year went justice gator ginsburg died fire moved up the table i know you take seriously the idea of persuasion and what you may be able to do in the Conference Room. Im just wondering if you can talk to people about what is your thinking when you tried to get colleagues who you know might be inclined to go in a different direction, what is your attitude now as a senior justice on the left . Do you think you have been effective putting more weight. [inaudible] go ahead and tell it. But jack kennedy was at a really interesting job he said that was fabulous to think about my cell for seconds at his time. We go back and it doesnt matter. That is not the issue of who is speaking first or second or third period then there is discussion and of course i know on some things were my colleagues will be thinking. And i know in other things i might be surprised. And its not ha ha ha i have a better argument than you. When you try that the other person says i have a better ego when you say that but nonetheless, its not a contest. It is when it works well. And very rarely did it work well. Why because he did not get his way . No he thought people were too made up on their minds when they came in. Did that change at all since his time . [inaudible] maybe going the other way. People are coming a little bit more set in their ways . No i think less. But i dont know, i dont know. I do know the conversation nobody speaks twice until everyone is spoken once per thats a very good rule for 11 years i was junior desk and i thought it was an excellent rule. [laughter] then there is some back and forth. The backandforth works when youre paying attention to what the other person says exactly what senator kennedy said. Ive often sit in that Conference Room ive never heard a word that was raised in anger of voice raised in anger it doesnt happen in doesnt happen one person says a mean thing or even a joke about another person. It is professional, serious, trying to get the case decided. We dont always agree but we agree more than you think. If you look back over the years and you certainly threw in the eight one, seven over two you are way over 50 . The five four used to be about 15 20 , sometimes a little more but rarely. And often i wrote this in the paper and found it very interesting, and unusual combination i counted the times when they said unusual combination. The more unusual combination. [inaudible] lets talk about another number you love charts, you love polls you have a chart and hear you talk about peptide about former questions all try to go fast. The Court Approval rating was pretty steady up around 62 . This is a question i had but also one of our resume watchers, what do you make of the fact the Approval Rating for Supreme Court has plummeted. Since july it dropped nine points in now lower does that concern you and you have any explanation for the drop . Whats. [inaudible] people sometimes, im not saying all people but sometimes theyre thinking of the cases that were decided. And so therefore, that means fewer people approved of the outcome. That is another part to it. [inaudible] they are more and fortune to point that i think really is more important is, there is and it does help to show a lack of confidence in government institutions is where we started. Go look and compare even the 40 with the approval rate of congress or even the presidency, or even i wont say. But a lot of institutions, a lot of institutions. That is i think youre quite right, absolutely right in saying. I think the problem for all of us, we have been so lucky to have grown up at a time when there are a lot of bad things that they could have been worse. In the country seems, again just reflecting when that kennedy was elected, and suddenly the next generation seem to about to be faced with real problems. I am not saying this is a cause for celebration i am saying the opposite. And i want people to understand how i have seen the court over 27 years because i might not be right how ive seen the court, but what ive tried to write down and the 100 pages is how ive seen it. One other line for your book then because in addition to talking with the importance of Public Confidence to talk about the importance of a president abiding by rules. You quote george w. Bush after he lost a lot of Guantanamo Bay cases didnt like them that he would follow them. Looking for violent protest no throwing stones in the street i know that give you confidence but im wondering if what you saw happen at the capitol on january 6 could be perhaps people not accepting court ruling. I have absolutely no expertise in that matter. We are not having that case in the court it is not there. And so i stay away from that. What i said about the stones in the street, i did not agree with it. Think a lot of americans thought it was a wrong decision. Okay but i heard harry reid say the most remarkable thing is they followed it. Now, they didnt. They didnt have guns or riots or throwing. The stanford student i was talking to is that i know when i say that at least 20 or 30 nursing too bad there werent a few stones thrown and so forth. Before you come to that conclusion, i would like you to look on television and elsewhere at what happens in places, and times, in countries where they decide differences that way. Because the rule of law is not an absolute, it is only one small part of this countrys values embedded in the constitution. But it is an important part. That is what it want them to do its called comparison and i believe unbiased because i am a judge perhaps i am biased, i dont think so. I believe it is important for us to maintain that respect for a rule of law that ever since Andrew Jackson refused to carry out Jon Marshalls opinion saying northern georgia belongs to the cherokees but instead sent troops to evict the cherokees that we have made progress in that respect. And how to continue to make that progress and how to not to retrofit is the question i raise. It is not a question i can answer. I have a few ideas about it. But they are certainly not gospel. What i can do though is i can go back and say i want to tell you how i have seen this institution in some detail. With some history, with some explanation of the word politics in the elaboration to which it isnt to the extent to which it isnt. And the suggestion of things that might be done. See what i know you did it in your book and i want to get a couple from her audience here this is from david who was watching on zoom. Onset of the justices conserve the many actions the Republican Party is taking nationwide to lessen Voting Rights and even throwing out legally cast ballots . Rex we are concerned. My job as a justice. As a person in mind of other views. I was rather hesitant, somewhat, maybe not a lot to give my views on some of these other questions. But i will give my views on the cases that come before the court when i am deciding them and when i write my opinions. That is the job and i think it is important. Host let me bring it back to one of the thing about senator kennedy and the legislative branch that was echoed in some questions part i presume youre interested in criminal Justice Reform and sentencings during those years. As a justice youve separated yourself from your colleagues about the capitol punishment and how long inmates will languish on death row. But youve never said capitol punishment should be considered unconstitutional. Is there any closer to that . My goodness. When you say i complain, i dont complain. It is not my job to complain. I write opinions on what i do on capitol punishment as i write an opinion of a certain length, 46 pages is quite a lot for me. I gave a number of reasons why i thought the court again should reconsider the question of whether capitol punishment is constitution. Of course i would not in that opinion give my own views precisely by saying i think it is might get an idea but nonetheless, my job is to decide even in a matter like that after reading the arguments, after hearing the oral arguments and after discussing it with my colleagues. That is an important point because it is an honor, a great honor and a privilege to be a member of the Supreme Court of the United States. And a one of things that you take in after two or three years anyway if not before is not just for democrats. And i am there not just for republicans. I am therefore the people of the 301 million. And maybe 200 million hit disagree with everything i say but i just want to point out that even if they disagree i still must be there for them. [applause] the reason i asked that question your views are not unlike harry and his time and remember what he did in the year or so before he was leaving and 94 he said he no longer wanted to tinker with the machinery of justice because he felt like he had seen enough. I was just wondering how views change over time on an issue like that in a general way. I wrote the 46 pages because i think i have had the experience i have had with the Death Penalty over 27 years, i wrote that about three years ago, three or four years ago. I wrote it because i wanted people to understand the difficulties with administering a system of debt even in a reasonably fair way. I pointed out many factors that suggest it cant be all right or isnt, and i said that is why since i dont see a clear method here is one additional reason perhaps why we should reconsider the constitutionality of the Death Penalty. Now dont take what i just said as an authoritative statement of what i wrote in that opinion. The only way you could know that is if you were willing to spend x amount of time i wont say what x is, and reading the opinion. Host our audience might not know you have written some of the most occasions on abortion write lester from louisiana cut back in 2016 from texas. Last year you also wrote the decision upholding obamacare for those are three very important cases. How do you get the assignment you ever asked to have a particular case . I could. And have your question or. No. To be absolutely honest i think i did once when i heard one of my colleagues Say Something that i thought maybe we could work with that. It would be five four and i wanted to go the way i wanted it. So i did tell chief justice maybe i can do this. But aside from that i have not. I once told him i discovered how to get five people on a single result in the court. He fell for that he said what i said you start with nine. [laughter] [laughter] do you about if you dont find yourself you say this i am quoting you. You go on to say you want to say all of your colleagues also have that check on themselves. Am trying to explain the nature of the job. In front of college audiences that came away deciding i typically have the text they have the history of the statute they have the tradition weathers habeas corpus they need they have the consequences the values involved are the same judges with text and history others probably like me put more weight upon the purposes, the values and the relevant consequences. But not ignoring if i see the word i know you cannot ignore the text. So its a degree. I can tell the hook is coming for us. You talk about strategy at one point you talk about the 13 year gap between brown v board of education 541967 versus virginia. He said the court was a calculated part of the enforcement strategy reflecting its views about the state of public opinion. When i see the word strategy thats a factor other than the law. taking this case immediately because they were having a very hard time getting desegregation in the south end he was afraid if they take it now, they will just make it possible. They just will not do it. He convinced them of that. They took it several years later and decided against it. Was that a political decision or institutional . What kind of a decision was that . If you that is why it is hard to say. Thank you for this evening. It has been such an honor. I would like to give you the last word. We see a problem in the gentleman brought it out. I think that it is great. We have a challenge. That is what it comes to. We have a challenge. So does everybody around here. We have a challenge in the challenge can be very simply said. Paying 20 to each of the grandchildren. If we put that to it, of course we can do it. Of course we can. [ applause ] [ applause ] welcome to the new york public library. Pleasel silence your cell