president for education policy and strategic initiative at the american institute for research. please join me in welcoming monique. [applause] good evening and thank you for that wonderful introduction. a land acknowledgment, so first i would like to acknowledge the native people whose ancestry all homelands we gather as well as the diverse communities who make their homel in washington, d.c., and for all of those streaming to acknowledge the land that you are coming to us from. i am so excited and pleased about tonight's event both personally and also as the undersecretary of education. as you heard we are doing in person and live stream for the first time and also education has been at the core of the smithsonian mission since the 125 year bounty. in fact the spirit and purpose of the programming tonight the associates have been doing for 55 years of high quality in person programming and we are happy to extend that tonight. and particularly excited about this event because we have two fabulous people. appropriately, the singular occasion spotlights associate justice stephen breyer and also cnn legal analyst joan biskupic. let me first start by introducing justice breyer. the smithsonian has a long and valued connection with the supreme court. by tradition, the chief justice is a member of the board of regents and the collections and encompass countless holdings that help us tell the story of the courts a vital role in shapingg our democracy. justice sotomayor, ruth ginsburg, sandra day o'connor and antonin scalia have taken part in memorable smithsonian events. and justice breyer joins that esteemed list in 2016 and we are honored to invite him back. justice breyer as you probably know has a long history of legal education and continuing affiliation with harvard. innu fact, the book that he will discuss tonight, the authority of the court and the peril of politic had at the beginning in august of 2021 for the harvard law school lecture series. an educator's voice is present throughout the book and he talks about the importance of judicial of law and the role that the committee's into the american body. for example he talks about the landmark case of the 1954 brown v board of education decision and then through the discussion that came three years later whichh reiterated that a decision. we are happypy to see that he takes on the discussion about how the expansion of the court's authority and these events become catalyst defined in the 1960s. he helped 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 edtonight to talk about these ideas. we are also excited to welcome joan and thrilled to have her talk tonight. she's covered the supreme court for 25 years and is also the author of several books. she most recently published a biography of the chief justice roberts entitled the chief in 2019 and is a graduate of georgetown9 university and was a finalist for the pulitzer prize and explanatory journalism in 2016. so please join me in welcoming the stage.m to [applause] thank you and also to laura rosenberg for arranging all of this. this is the first time we've been back in person at the smithsonian and at the first in dc he's already told me that i can't say [inaudible] there's also something better because it is the first time that the press and the eight eijustices were in the courtroom for oral arguments. they hadn't been together on the bench to hear a case since 2020 so this was quite a big day. joanna was there watching. justice kennedy was there, jane roberts. how did it feel to you? what was it like to you? >> first i want to thank you for inviting me to the smithsonian and everybody here and i will answer the question how does it feel. it felt better. [laughter] >> did it feel like a business ass usual that you were able to get the case? we asked questions on the phone and as a virtue of that in addition you can see what the people look like andum how they are reacting. you can't pick up something your colleagues says so easily, what does he or she think of what's going on. it is a more human thing and there's enough so having one that makes it more human is a definite advantage and that was a big improvement today. >> did you pick up on any cues. one is a criminal law case and in terms of the law and this opportunity, to stand where your colleagues were added in the cases more than you would have the last 16 months. >> may be a little more but one of my colleagues had in an analogy. he might not have said that. before you go to oral arguments and a private meeting conference they shake hands. are you doing that? >> no, we are rubbing elbows. >> i know that you've all had a regular testing and strong protocols, but have you increased the precautions since justice cavanaugh found out he was inspected although he's been vaccinated? are you still eating together and keeping masks up or tell me did you do anything different when youoi found that out? >> it was continuously and the home test maybe once a week we would have more several hours later. so i don't think there's anything different. >> one last question we never get to see behind the curtain. so many justices have said that we don't talk about the case and try not to talk about anything but sports and music and grandchildren and things like that. what were the general topics today? >> the proper name for one of the teams -- [laughter] so a little political. >> i didn't know if that was political because it was the breadth of knowledge of the nicknames of football teams across the united states of america including those belonging to colleges and it was extensive. >> the biggest footballon fans m sure and i was wondering, he has always been during oral arguments and then during the conferencece is, in the sequence that chief justice john roberts had set up. many of us were wondering if you would speak from the bench. what did you think about him jumping in right from the start? [inaudible] okay, good. so let's turn to the book, which i recommend to people although i understand people should still at least get on waiting lists. >> yes. i guess it sold out or they are having a trucking crisis. i have several questions for the justice and then we have several questions that have come in from the audienceth tonight and also people on zoom. some of the substantive ones about the questions related to the court culture because as i said it's always good to get a little peek inside. going to start with the more serious ones and that goes to public confidence in the court. since that has been an important theme that you had from the start i think because i look back at some of the interviews related to 2010 making the democracy work and had long been stressing public confidence in the court and i just wondered if you thought it was harder these days to build up public confidence and if you feel like there is a risk here today. >> probably. if you look at the numbers and kthe poles you see that there is a lack of trust between the institutions and when i was in grammar school [inaudible] you see that in the pole and i don't see how the nation nor any institution can work without a certain degree -- >> [inaudible] [inaudible] [inaudible] now is the time to retire justice breyer said why don't we just jump to that. that's always one of those most sensitive questions. i did not set that up. okay. you handled that very well, justice breyer. let's get to that. [applause] how do you respond to people that say it more gently than bringing assigned to one of your speeches what do youat say to people that argue that you should retire as soon asho possible while the democrats of the senate majority? that is the basic issue. >> that is their point of view. i said pretty much what i have to say. every time i add to something it becomes a story and with considerations in mind i would be happy to raise them and think about them and decide the proper time but i also hope i don't die on the supreme court and there we are. >> because the topics on the table i think i will stick with that and just say your predecessor, harry blackmun in 1994 told the president in april of 94 that he would be stepping down and byron white told the presidentt he would be stepping down and john paul also. now that we are into the term, do you think that kind of practice has been helpful to know ahead of time? >> i've looked at various practices into the only reason i don't want to answer is simply because i don't want another because this is about the book and i would like to stick to that. are you trying to step away from some of the rulings? >> that is an interesting question because if you go back into history you see many, many decisions that i personally and a lot of the country disagrees with. try plessy versus ferguson for example. that's always been true in my opinion like others people's opinions and i can usually find cases where i think that they are wrong. the story i like because it made an emotional impression on me is when the chief justice, and i said this many times was in my office and as a woman that tried to have greater emphasis on the civil rights and democracy and asked me as. simple question why do people do what you say and that is what has led me into history. and also the need for trust and also trying and that is why i am doing it. explaining how the court works, what it does and believe me when it does well there will always be some people who think even when it does well that they are making very willful decisions. so the point that i wanted to get across how you develop following the rule of law is that you must convince people who do not just convince [inaudible] and in this country the people often forget it are the 301 million people, 300 million are not, and they are the ones that have to understand why it's important to them to follow opinions that they disagree with. i know that you liked the courts differences and the public appointed and three democratic appointed liberals the jurisprudence and not of politics or ideology. but the people that come back and observed that there are so many cases that are split that way it seems like some of your colleagues might be voting along lines. what do you say to people that raise that issue? >> let's go back a step. i don't say everything will be all right, i don't know if people feel all right. the point that i want to make is the audience that i talk about our high school students. they said the same thing but abraham lincoln said in the gettysburg address each of my grandchildren that recognize the gettysburg address would get $20. some of them have. i don't know if every one of them have. and the point that i want made is it starts out seven years ago on this continent conceiving liberty and dedicated to the proposition that all men are created equal and we are fighting a great ward to see if this nation or any nation shall concede. this is an experiment and there are a lot of europeans in 1789 that it's a great theory of the enlightenment but it will never work.en it will never work. and that is what we are up against. and what we are up against is to try to show we had a civil war and years of slavery and reconstruction and many more years before that. we had all kinds of things and yet basically we've been able to show it sort of worked. you have to be hesitant and all i can say is some trust to the institution is important past trying to get that experiment to continue. it's so great that we have to teach those younger generations history and what the institutions do because they are a part of it and it belongs to them. let me ask a specific question that you wrote in the book. justice alito quoted something from your book and his advice to judges was just do your job. it picks up what he left off. one, do your job, that's correct and the other is the payroll. justice alito's larger point as he quoted you in the courts emergency docket as some people call it he was trying to say that when the justices issue these emergency orders say september 1st when the majority led to the texas abortion ban to go into effect but a lot of it is necessary and business as usual defending the process but justice breyer signed onto a statement of september 1st in w the majority that said the majority decision t is emblematc of too much of the courts shadow docket decision-making which every day becomes more unreasonable and impossible to defend. this gets to another topic people are concerned about. what do you think of the defense and whatin did you think about e emergency order process that was getting impossible to defend? >> what did i think about that case? i thought it was wrong and that's why i not only wrote the defense but i signed others and what i think they read is it is primarily an effort to blame but the emergency docket is and why you have to have quick decisions, and you do in the emergency docket where someone believes the court will hear their case so while re- writing the briefs and having the oral arguments and deciding well you issue an injunction stopping this or taking of the injunction away and letting this go forward and they give reasons. somebody has a point and he says i want you to accept this and in the meantime will you please stop the execution. it's involved cases that involve covid. and then it also has the case you just talked about and it's not only free of doubt and not always clear what you should do and in my opinion what we should have done, what we should have issued an injunction. never to the extent that i've been here. i first thought my god. a lot of people in the city of washington, d.c. a lot right about that and that's true and my first thought was, because i've said it before and i will say it again, everybody doesn't agree with me, and after all it's so reasonable. then i began to have perhaps there are 301 million people. it has every race and religion. every point of view imaginable. my mother used to say that and [inaudible] but don't tell anybody she said that. but the point is it is a big country and i read this in a very interesting article that compared to a lot of other companies, we are held together so it's a nation of people that havee long disagreed and i have my own opinion. i often h write them about whati think the law ought to be and sometimes i do convince and sometimes i do not. they've agreed on a system the system is an experiment and one part of the larger experiment and one part of the problems in the country is not that the court is working perfectly, but one of the problems how do people with different points of view work together under the law. that's the point. i'm thinking of the things that you've said out loud. one is your concern for the emergency orders and the lines that you signed on to that it was impossible to defend. do you think we might see more ontion among the justices the shadow docket just because of some of the concerns that have been raised? >> i don't know of other people, i do know my own. i mentioned the justices were correctly decided. it wasn't part of the current pattern people have raised concerns about and i'm going to ask another follow-up. you would have said it is a course made up of seven conservative justices and liberals. maybe a third. when i grew up in the 40s, 50s, 60s, every appointee of the supreme court you have to elearn what the court is about. either appointed by either president roosevelt or president trump. so i thought is this the proper thing to do, that all the althoh justices should be appointed by democrats. the texas order says specifically it expresses no view whatsoever on the constitutionality. the texas case is rather we should take basically a decision of a lower court which was certain in the texas case that was procedural. >> we were concerned about what it would do to people in texas. why was that? >> for reasons that are obvious. >> i think that they would like to know. >> because there are a lot of witnesses who believed they had at the right to abortion and that this might discourage or prevent some from viewing it and that is the procedural law because one of the things you take into account is weighing the equity that is to say if you issue an t injunction, who willt hurt and who much. and if you don't issue an injunction, who will it hurt and how much. and in my own view that it might hurt a large number. that's what i wrote, who wish to exercise the constitutional rights to have the abortion. and on the other hand, to postpone their law. okay but that wasn't the only question that was involved in deciding such a matter. that is a question that i considered important. now, the majority didn't even say whether i was right or wrong but they did say that this is not about the merits of the technical decision, sorry, the merits of the texas case. so that remained an issue the lower courts are deciding it now. >> you refer to roe v wade is a piecero of evidence for how the court isn't as conservative it's as commentators often say. we talk about how we say to counterr the arguments the court has upheld obamacare but hasn't struck down roe v wade. are you feeling as confident today about the future of roe as when you wrote that? >> when i wrotee that, i didn't know more than you -- >> about what was coming up in texas? >> about how the courts would decide. 100% you would never have brown v board of education. >> i realize you would like me to go into incredible detail describing my views or other people's views onbi the case and if there's one thing that i've not proposed to do, it is that. >> talk about 1994, when you were confirmed by 87-9 and the last confirmation we had was on a strict partyline vote. what is your take to return to the less partisan time? >> first remember across the nation process is a political process. i give a lot of reasons in the book. some, one or two of which but not all of which are mentioned i give one or two reasons in the book for thinking what the word politics might mean as applied to the court, which is very different from the senate or the house or where i've worked as a staff person for quite some time. one thing i've learned, i learned a lot of things in that period. that are important to me and have remained important to me. one of the things that i learned is in my confirmation i will stay here for 15 minutes after this is over and you can say anything you would like. [applause] >> another pair of members of the audience say at the democracy can't wait for justice breyer to recover. this isn't anything that you haven't heard before. >> do people recognize you on the street? >> no, not really. some do, obviously. not very often but sometimes in washington and sometimes in a restaurant somebody might. somebody might come up and ask a question. >> do they ever ask if you're going to retire? >> no, not really. >> what do they ask? >> aren't you justice souter. [laughter] >> but appointed in 1990 advised george hw bush retire in 2009. do you think people are still saying that to you? know? wow i appreciate your references to justicee kennedy, sorry, senator kennedy. >> the answer to that was it's relevant to the question that senators will by and large ask the question that if in fact they are not sensitive to what their constituents want they will not be senators or members of congress for very long. so what i say to the students i would say look the thing is you are part of the decision-making processt. what i think that first c amendment is therefore and in the senate, listen to what other people say. >> does that mean you think today's senators and of those that launch the confirmation in 2016 set the tone we are talking about? >> that is just my own opinion but what i b did learn in the senate and i stressed this i saw senator kennedy do it all the time. you might try to persuade them but more than likely you won't. if you talk long enough you will find maybe we can work with that. when you try to work with them on that and americans are pretty good to working together even with those they disagree with. and then by the way, to make it to somewhere because if you hit 30% it's better to have 30% i promise you and they said look, don't worry about the credit. if you get a positive result out of that working with this other person you get a positive result, it's good for people there will be plenty of credit to go around and if you don't succeed, who wants the credit. now i was like i believe that in the fourth or fifth grade at least one class so you better learn how to work with the other people. >> so you are sitting at the table now. there's any kind and justice breyer as of last year moved up in seniority to speak around the tables the first is the chief justice john roberts, then it's clarence thomas and then it's you. with the idea of persuasion and whatid you might be able to do n the conference room but i just wondered if you could talk to people about what is your thinking when you try to get colleagues that you know might be inclined to go in a different direction what is your attitude as a senior justice on the left? >> i am not the one to ask. that's cold ego. at the appointed ambassador came back and is that an interesting job it was so interesting i didn't think about myself for seconds at a time. [laughter] that isn't the issue of who is speaking first or second and of course i know on some things where my colleagues might be thinking and others i'm not surprised. the conference is and ha ha i have a better argument. but the other person says i have a better ego nonetheless. it's not a contest who has the best argument. it is when it works well. >> he thought the conference didn't work well because he didn't get his way. >> he thought people were to made up in their minds when they come in. >> it may have gone the other way. >> you think people are coming little bit more set in their ways? >> i don't know. i do know that the conversation says nobody speaks twice where everybody has spoken ones. it's a very good rule and for 11 years i was the justice and i was last [inaudible] it doesn't happen. and it doesn't happen when one person says a joke about another person. it is professional, serious trying to get this case decided. and there we are. if you look back over the years and certainly throwing the a 2-1 and the 7, you are well over 50% and like unanimous. the 5-4 used to be about 15%, 20%, sometimes a little bit more but rarely and not the same. and i've read this in the paper and found it very interesting. i've counted the times when there is that combination and there are more unusual combinations -- >> let's talk about another number. you love church and you have a chart in here where you talk about -- we have time for about four more questions, so i f will try to go fast for you. the approval rating was pretty steady. you say around 62%. and this is a question that i have but also joseph has asked what do you make of the fact that the approval ratings haveva plummeted since july it dropped nine points and now does that concern you and to do you have any explanation for the drop? >> the same question that you referred to. >> people sometimes are thinking of the cases that were decided and so there will be those that definitely need fewer people approved of the outcomes. there is another part to it. >> do you think it couldar have been the justice case? >> a more important point is that it does help to show a lack of confidence in government institutions, which is where we started and comparing even the 40% with the approval rating of congress or even the presidency. but a lot of institutions -- a lot of institutions. and i think you are quite absolutely right in saying [inaudible] so i think the problem for all of us has been so rocky. the next generations are going to face real problems. i'm not saying that this is a cause for celebration. i am saying the opposite. i need people to understand how i've seen the court over 27 years. i might not be right how i've seen themi court, but what i've tried to write down in the 100 pages is how i've seen it. >> one other line from your book because in addition to talking about the importance of public confidence, you also talk about the president abiding by ruling and you quoted george w. bush after he lost a lot of cases saying he didn't like them but he would follow them. and on the same lines you refer to bush v gore and note the senate democratic leader of the time, harry reid, said no violent protests in the street. and i know that gave you confidence, but i'm wondering if what you saw happening at the capital on january 6th could be a harbinger of people not accepting the court rulings. >> i have absolutely no expertise on that. we are not having that case. it may be some case well. it's not there. so i just stay away from that. what i said about -- what i said about the street, i said look i descended bush v gore. it affected a lot of americans and i think a lot of americans thought that it was the wrong decision. but nonetheless, okay. i heard harry reid say the most remarkable thing is they followed it. noww they didn't have guns or riots or stonethrowing. and stanford students i was talking to said at least 20% and maybe 30%ay are thinking too bad there were not a few riots, too bad there were not a few stones. before you come to that conclusion, i would like you to look on television and elsewhere at what happens in places and times and countries where they decide the differences that way because really the rule of law is not an absolute and it is only one small part of the country's values in the document, the constitution. but it is an important part. that's all i want them to do. it is aha comparison. and i believe though i am biased because i am a judge so i don't think so, it is important for us to maintain that respect for the rule of law ever since andrew jackson refused to carry out john marshall's opinion saying northern georgia belonged to cherokee and send troops to evict the cherokees. but we have made progress in that respect and how to continue to make that progress and not retrogressive is the question i raised. it isn't a question that i can answer. i have a few ideas about it. but i can do though is i can go back and say i want to tell you how i've seen this institution in some detail with explanation of the word politics and elaboration and extent to which it isn't so just the things that might be done. >> i just want to get a couple from the t audience here. thisas is on zoom. are the justice is concerned with the actions the republican party is taking nationwide to lessenen the voting rights and tthrowing out liberal test for ballots? >> the issues that come in front of us my job as a justice is to decide the cases as a person i might have other views but unlike every other person in the united states, i am rather hesitant somewhat, maybe not enough, to give my views on the someof 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 opinion. so that's the job. >> let's go back to one other thing you said about senator kennedy and experiencing the legislative branch that was echoed in some of the questions. i presume that you are interested in criminal justice reform and sentencing during those years and as a justice you'veng separated yourself from your powers and viewpoints about the capital punishment and how long inmates are on death row but you've never said capital punishment should be considered unconstitutional. do you think we are getting closer to that? >> when you say i complained, is didn't complain. it's not my job to complain. i write opinions. and what i did on capital punishment is i wrote an opinion like 46 pages. that is quite a lot for me. and i gave a number of reasons why i thought the court again should we consider the question of whether capital punishment is constitutional. of course i would not in that opinion give my own views by saying i think it is. i might have an idea but nonetheless, my job is to decide even in a matter like that after reading the arguments and 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 one of the things you taken after two or three years if not before is not just for democrats. and i'm there not just for republicans. .. i still must be there for t them. the reason i ask that question is that your views are not unlike angela for what he did spend a year or so before he said he no longer wanted to tinker with the machinery. but like he had seen enough. i was just wondering if you would suggest anyone to telehealth use change over time on an issue h like that? i with the 46 pages. i think because i have the experience right with the penalty over 27 years. about three years ago. and it wrote it because i wanted people to understand the difficulties with administering a system of death a reasonably fair way. i pointed out many factors that suggest it can be or didn't and rested that is why i don't to clear method here is one additional reason perhaps what we should reconsider the constitutionality of the death s penalty. do not take what i just said-authoritative statement of what i want that opinion. the on the way you could know that is if you're willing to spend x amount of time i would not say what x is, in reading the opinion. to get to martin. all of us might not know you have written some of the most important cases on abortion right. lester from louisiana, back in 2016 from texas. the ministryac also wrote the decision upholding obamacare for the severity three very importanthr cases. how do you get the assignments? oudo you ever asked to have a particular case? you could. have you? quick snow to be actually honest i think i did once one of my colleagues say something at a conference i thought maybe we could work with that. i was likely to be five -- four and i wanted to go the way i wanted but did tell chief justice rehnquist maybe i can do this. but aside from that i haven't. i once told him i said i have discovered how to get people on a single result of the court he felt that he said what and i said you start with nine. you talk about if you find yourself all the sudden bungling back on your own ideology when you're deciding a case you have a mental check can you think i don't want to do this. you say this is the money right i'm just quoting you. i am just sitting here. i'm going to say all of your colleagues also about check on themselves. trying to ask when the nature t of the job. the part you are talking about we used to debate this all the time. in front of college audiences and they came away i think pretty interested. look, judges typically have in deciding a case they typically have the text, they have the history of the statute. they have the tradition of its habeas corpus. they have the purposes somebody had a reason for writing this. there are values first amendment the fourth of them. they have the consequences those that are relevant to the purposes of the valleys that are involved here. some judges put likely text others probably like me, put her weight on the purposes, values, role of the consequences. it's not ignoring i see the word fish there does not mean a carriage.w you could not ignore the text. until the force. talk about the board of education in 1967 limited versus virginia. the park of the enforcement strategy of the state of opinion. i think the word strategy is factors of the longford is what i say i say sometimes that is why you can't state number political was a political one trying to commence to court not take the case immediately. because they're having a very hard time getting desegregation in force in the south. he was afraid we take it now we are just going to make it impossible they just won't do it they just won't do it. he convinced them of that. and they took that loving case several years later and decided against that person was not political or institutional? what kind of decision was not? i put that in you want to show yes that is why it is hard to say there can be instances. thank you for this evening. joan and justice that has been such anh honor. just aspire i want to give you a last word in something he wanted to share this if not had an opportunity to share. i think things everyone in this room we see a problem. and brought out. with the constant. and so does everybody around here. we have a challenge and the challenge can be very simply said and that is why pay $20 typically the jobs just to show the experiment as continues to work and. of course we can do it. of course we can. that is. how i feel about it. i think you brought that up very, very well. the up-to-date and latest in publishing with book tv podcast about books. with current nonfiction book releases plus bestseller list as well as industry news and trends are insider interviews you can fight about books on c-span now our free mobile app or wherever you get your podcast. weekends on c-span2 our intellectual feast. every saturday american history to view documents america story and on sundays book tv brings you the latest in nonfiction books and authors. persistent television companies and will work including comcast. i think this is? comcast is partnering with students from low-income families get the tools they need to be ready for anything. comcast locked these companies support c-span2 as a public service. c-span now is a free mobile app featuring your unfiltered view of what is happening in washington live and automatically keep up with today's biggest events with live streams of floor proceedings appearance of u.s. congress, witness events, the courts, campaigns and works in the world of politics. all at your fingertips pretty process that currently episodes scheduling information for c-span tv networks and c-span radio plus a variety of compelling podcast c-span now is available at the apple store and google play downloaded for free today. and now your front to washington anytime anywhere. welcome to the north public libraryur. please silence your cell tphones. tonight we present the f