Transcripts For CSPAN3 Supreme Court And Foreign Relations 20160816

Every weekend on American History tv on cspan3. Next on American History tv, Supreme Court Justice Stephen breyer. He talks about cases featured in his book the court and the world, american law and the new global realities, include iing cases involving Guantanamo Bay detainees. The Supreme Court Historical Society is the host of this event. Its about an hour. Honored today to have as our lecturer Justice Stephen breyer, whose talk will be about the court and the world, american law and the new global realities. Justice breyer is a long standing friend of the society. He has delivered lectures, as he will be today. He has hosted dinners, hes introduced speakers, and were very fortunate hes giving us this lecture. He truly is a man that needs no introduction and theres not an introduction i could do that would be complete in the time allotted, but let me touch on highlights, if i may. He graduated with highest honors from stanford. He then went as a marshal scholar to oxford where he received first class honors with a b. A. Degree in philosophy, politics, and economics. He went to Harvard Law School where he also excelled, was articles editor of the law review. He then clerked for Justice Goldberg and like all clerks hes very circumspect about his work there but he contributed to the first draft of the ginsberg excuse me griswalds vs connecticut case which is a case that recognized the right of marital privacy. After clerking for justice goldburg, he worked in the antitrust division of justice. He taught at harvard both in the law school and Kennedy School of government. He was chief counsel to the Senate Judiciary committee from 1978 to 1980, and he was nominated by president carter to the First Circuit nine days after carter had lost the 1980 election. He had so impressed senators on both sides of the aisle for his work on the Judiciary Committee that he was confirmed 8010. He then served for 14 years on the First Circuit, the last four years as chief judge when he was nominated to replace Justice Blackman in 1994. And he assumed the oath of office in august of 1994, so were coming up on the 22nd anniversary. So if youll all please join me in giving a welcome to our lecturer, whom were very lucky to have. Thank you, justice. [ applause ] thank you. Very nice introduction. This is a formidable group. I mean im talking a little bit about history but you actually know about history. Quite a lot of you. I was told by a historian, anyone can make history but it takes a real genius to write it. And books arent that easy. There was my publisher is grateful for your introduction. I wrote a book once about it was technical. Found its way into the hands of Los Angeles Times reviewer. Dont ask me how. He decides to write a review. He says, well, he says in the alice in wonderland the mouse emerged from the pool of tears they heard this story before. And the door mouse begins to read from the history of england. Why are your writing that . Why your reading that said alice . Were wet, and this is the driest thing i know. That was before breyer wrote this book. This is not about regulations, this is about the court, and its terribly important that you support actually these kinds of things because its important that people know something of the history of the court, and so im very glad to be here and im glad to be talking about this and im glad youre here listening. Very nice of you. What is this book about . So, i say that it is its the analogy its a kind of a report, a sort of a report from the front. About what . Well, if youve ever heard the Charter House of palm, which is a very good novel, it opens with a hero is on the battlefield at waterloo. Bullets are flying by, horses are running back and forth. Napoleon is charging this way and that way and the hero thinks to himself, you know, he says something really important is happening here. I wish i knew what it was. And thats what this is about in respect to when i hear words like globalization or interdependence or shrinking world. Thats a good cliche. All true, of course. But what is about it . I cant tell you a big answer, but i can do this. I can draw on my own experience over the last 20 years or so and in terms of that experience, which is here in this court ive seen a change. And the change is just in the number of cases where you have to know something about whats going on abroad in order to decide the case correctly and intelligently. Ive seen that number grow. I mean i think they were pretty rare when i first came here. Now if you looked it up and said i think its 15 or 20 , i think would you be closer. You see its going like that. So what ive tried to do is say ill tell you what its like here for those of you interested. Ill tell you about these cases specifically. And i will group them. And i will show you different topics. And under each topic i will give you some examples, and then ill say what would you like me to do about it . How would you like me to decide the cases because they call on different skills and different kinds of knowledge. All im going to do in the next 20 minutes or so, maybe half an hour, well have questions after. Is just give you a few examples of some are pretty interesting, and some are medium interesting. In any case, lets go to a very hot topic which has a long wind up, short pitch, and that is wellknown topic, what do we do about Civil Liberties in time of National Security. Theres much less in the court u. S. Reports than you might think. Jackson said that once. Jackson said, you know, he said looking to see what the framers thought about this kind of problem, inherent powers of the president or inherent powers of congress or powers of Civil Liberties he said well, its like trying to its like joseph trying to interpret the dreams of pharaoh. You start looking it up and discover there isnt a lot written. Not in the u. S. Reports. Why not . Well, for many, many years i think the general view of judges here as well as judges abroad were when you have first you have security needs. Like a war. Or Real Security problem. And you look at the document, the document says this power is primarily the president s. Its congress. Not the court. What about the Civil Liberties. There the courts do have something to say and sometimes theres a clash. So why is there so little . I think the answer is cicero. He was not one of the founders. But they did, in fact, know about cicero and that attitude prevailed for many, many years. Cicero said Something Like, i used to translate like this way. When the canons roar the law fallscy meant. Someone pointed out the romans actually didnt have canons. That wrecks that. In time of war, when the arms are, et cetera. You see the point. Did the court live up to that . Yes. You wont find that many cases during the 1812 or abraham lincoln. I mean he had a real problem, obviously. But very few cases, one maybe known in the civil war. Maybe lincoln didnt get involved in Civil Liberties. He didnt. I mean tens of thousands of people were arrested. Seward was secretary of state called in the British Ambassador and said you see this bell here . I can push this bell and i can have anybody i want in new york thrown into prison. He said i can push it twice, i can have anybody i want in indiana thrown into prison. Tell me he said does the queen of england have such power. There were a lot of civil liberty problems and the court got involved after the war was over. Thats different. Thats justice jackson, he thought it was a good idea. He wasnt there at the time. Let them do what they want and then well come in afterwards. Thats not, i think, for reasons i wont go into a very workable judicial philosophy. But nonetheless, look and see what happened to Civil Liberties in the civil war. We can understand it. But the court doesnt intervene at all. Well lets go to world war i and there are many books written on this about the masses, you know theres freedom of speech being interfered with here and he was alone or nearly alone. Court stayed away from it until after the war. Or world war ii. We know that one. My mother used to take me down, i grew up in san francisco, drove me down to the peninsula. I was a small child. She said thats where they held the japanese in world war ii. And the note of approval was not in her voice. I mean, 70,000 american citizens of japanese origin were ordered to report, and 70,000 american citizens were just moved. Why . Because general dewitt 6th army head said we better get out of here, the japanese may invade and they may get involved. They were citizens. They were told to report, and they moved them. Roosevelt signed that order. It isnt what happened to the germans and italians or germans and italians or japanese in england or other places which also had problems but it is what happened to the japanese here. Now they went to the camps against their will. Wellknown story. But there was one person, fred koramat, who said this is ridiculous, im an american citizen and i dont think they should do this. If they want to look into my background, fine, but not send me to some camp and he found a lawyer. Now i met him once, actually. Very interesting. He was across the street where we live up in cambridge because he was 80 years old at that time. Very feisty guy. I liked him very much. He was having a drink with our neighbor ann, and ann was the daughter of ernie bezick who played poker with my father and was the head of aclu and he represented this man in this famous case. Aclu wouldnt sign the brief. They got into it later. They got back into it. You see this was january of 1942. February, march, april, may, that spring of 42 and that was just after pearl harbor. And who was supporting it . Earl warren. Who opposed it. J. Edgar hoover. But off they went to the camps. Now koramatsu said well win this and his lawyer thought so too. The case got to the court in 1944. In 1944 there was no risk of invasion. There was not a problem with submarines off the shores of california. They were pretty certain they were going to win and before the case went to the court, when the brief was in the Justice Department two lawyers got a hold of this and they read an article somewhere written by a commander in the navy who had been involved in intelligence and they got suspicious of this whole story. See because the government was saying, the Defense Department was saying or Army Department they were saying, in fact, there had been 763 instances of intercepted communications, messages sent to submarines off shore. There were several instances of sabotage. We should look into this. He called in the fbi. No there was no sabotage, the sabotage took place after they were moved. The fcc came back and said there was not one instance of messages being sent out to submarines. What did the 763, whatever it was messages. Those were all buck privates who didnt know how to work the machines. So they said thats pretty interesting, thats amazing. How did you do this so quickly, this big pile. We didnt do it now. We did it in 1942. And we showed to it the general. He knew it at the time. So they wouldnt sign the brief. They said were not signing it, were not going to defend this. Then they a big fight between departments and who was brought in to mediate, herbert j. Wexler. He was running the war part of the Justice Department was a Master Genius and he wrote a footnote, disowning the army on this issue and he wrote it in words that no one could understand. So he convinced burly to sign the brief and the Justice Departments position, i dont know, you read it and see if you can figure out exactly what it was. In fact, who won the case . The government. 63. Famous case. And who is it who upheld . The government. Black, douglas, frankfurter, the liberals who had, in fact, would sign brown versus board. And they were all on the government side. It was the three dissenters were be roberts, murphy and jackson. And there was 63. I thought for a long time maybe they didnt understand there was so little evidence. Footnote, who reads footnotes. [ laughter ] Arthur Goldberg told me that years ago. He said dont write anything in the footnote if you want anybody to read it. In any case i thought maybe of the oral argument and charlie worski was representing the japaneseamerican Defense League pep said to the judges go read the footnote. That footnote denies that theres any basis to this whatsoever and it can. And it did. So they had read it. What were they thinking . My guess, my guess is they were thinking cicero. And while it was a guess, i later met someone i hadnt gotten this source, he got the source of the conference and he said black walked into this conference and he said, well, somebody has to run this war. Its either us or its roosevelt and we cant and so we better let roosevelt do it. And that was the argument. You read the opinions and you see if you dont think i think it was the argument. I think thats what did it. By the way, the only one that has 100 right was murphy. Hes got every fact right. Every fact. Thats problem with a historian. I figure ill find out and somebody must have told him. He couldnt have known all this stuff. Buehrle or ennis must have got to him. I phoned his law clerk. Gene is 90 years old, hes alive. I hope he still is. Im not sure. I called him. I said, now tell me, tell me. Somebody must have gotten to murphy. How did murphy get all those facts right. You know what he said . I dont remember. So there we are. Now, thats koramatsu, there we are cicero. Now march on to the korean war and you have the steel seizure case. Very interesting. Because the court there during the midst of the korean war, jackson and the others say to president truman, no, you cannot seize the steel mills even though they were told and truman was told by cabinet officer after cabinet officer if you do not seize the mills there will be a strike, no production and people will be killed in korea, a lot of them as a result. But the court went the other way. So what i do think, my own view after reading this and going through the history of it . They told roosevelt he couldnt do it. Roosevelt had gone too far. Of course he was dead. So it was easier to tell him. Moreover truman wasnt nearly as popular as roosevelt had been. But there you have it. Whatever the reasons, i mean they had gone too far and i think people on that court thought koramatsu was going too far. They thought there had to be a stopping place. But there isnt much in the u. S. Reports. Theres some but not much. Shows a stopping place until you get to steel seizure and read jacksons opinion. Its absolutely fascinating. Its become wellknown because he categorize the different source of Congress Agrees with the president he can do a lot of things, doesnt agree. But the real interest to me at this time is his view about president ial power being exercised and hes very cautious and hes saying, he says look what happened in europe when the president starts, when a president. Im not saying what happened here but he says but, but, but. Stop. Now you come up to more recent cases, four cases out of guantanamo. Four. All brought by the detainees. Everyone of them. The detainee, not necessarily the most popular person in the united states, bin ladens chauffeur was not and is not the most popular person in the united states. Brought against the president or secretary of defense, all four, the detainee wins. Congress has passed a statute first we had to interpret the statute then Congress Passed a statute specifically saying they cant get into court. They said it was unconstitutional. R but if they y combatant, some said were not. I was a peaceful farmer. The government said why did you have a bazooka. He said every peaceful farmer in afghanistan. See theres an argument there. So were asked to say what do they have to do . They have to go through due process. So in essence we have four detainees who won. But what is the case about . What was cicero replaced by . If i had to choose four or five words it would be Sandra Oconnor who wrote in one of cases and i joined her opinion on this and it was the courts attitude in those cases, it says, she says the constitution does not write a blank check to the president. Not even in time of war. Great. Fine. The only unfortunate thing about that is, well, what kind of a check does it write . Now youre beginning to see the problem. From our point of view, from the point of the view of judges and lawyers and others. What kind of check does it write . Its not too hard when youre not in the business. But now were in the business. So if we are in the business of answering that will kind of question there has to be answers and now maybe youll see as well why our opinions are not particularly popular. I mean there are some groups who say you never should have gotten into this. You should go back to cicero. You want japanese, 70,000 american citizens . The other side said you should have been more thorough, not thorough but more definite. You should have had a few rules here. You should have said if they could use hearsay or not hearsay in these cases. Why was it so vague . Why is it so narrow . I said the reason, the true reason so narrow, because we dont know the answer. Thats the truth it. We dont know. Lots of situations can erupt. Now thats the long wind up. How are we going to find out . Thats not something we alone have to think about. If were in the business of saying when it goes too far these efforts by congress and the president , too narrow Civil Liberties in the name of security, if were in the business, we better know something about what were talking about. And that, i think, requires in part knowing what other countries do and thats why we had an exchange with the brits we spent two days trying to figure out what they were doing. We discussed all this. What does france do . What does israel do . Why . What works . What doesnt work . The lawyers are going to have to find out because the lawyers will have to tell us. And that requires sources of information, they will come in and say to the judge theres no good reason for this. Theres no reason. Why are they doing it . Well, they will have an answer. And somebody has to figure out under what circumstances did the judge look at the answer and when do you do it in camera and when dont you do it in camera. Then why not. Why not do it this other way . Its called less restrictive means and thats up there as a question too. So it will be the lawyers and probably some professors and the judges doing what they usually do trying to go into the subject which they dont know that much about, learning about it and trying to come out with sensible answers and that will involve knowing what happens abroad as long as terrorism is just not a National Problem and no one just thinks its just a National Problem. So thats what i say. A long wind up and a short pitch. But some of it is not such a short pitch. I mean try cases involving international commerce. A case i really liked i thought it was so interesting, explained quite a lot to me, was student from thailand, cornell. He discovers that books, same books, text books, same textbook, same language is on sale in bangkok for a lot less money. So he writes to his parents and says send me a few. They send a lot more than a few. He sold them. The publisher got annoyed. So the publisher brings a case against him. Now whether he can or cannot buy and resell from thailand, theres an answer and its in a statute and the statute, that footnote was nothing compared to this statute. Its really hard to understand. Thats not my point. My point is i go into my office and theres a stack of briefs like this. And they are from every place in the world. I mean they are from asia. They are from europe. And they are not all about books and i said why are all these lawyers and countries too filing briefs in this case. I mean its sort of an interesting case, but i mean this many briefs and i find the answer down about here. Where one of the briefs says you know copyright today is not just a matter of books or books, films and music. I mean buy an automobile, its filled with software. And a lot of the software in some places is copyrighted. Or go into a shop, any shop you want. And youll see goods and the goods will have labels and the labels will be copyrighted. And it will tell you something, your answer to this case, this student from cornell, we think will affect 2. 3 trillion worth of commerce. Even today thats a lot of money. Thats why they are there. Eventually the student won but that isnt my point. My point is this is all over the place. Can someone in australia can someone in australia who bought some shares in an Australian Company over an australian exchange, you see, sue under 10 b5, securities act for a claim that the Australian Company lied about a purchase it made in florida . Of a company . Can they or cant they . I mean we have to decide and we have briefs from the European Union, from britain from the netherlands, we not only have briefs from the governments, we have briefs from the lawyers that say the government is wrong, completely opposite. Thats normal. They are from all over the place. And we came to a conclusion that they couldnt sue, primarily because it was Justice Scalia who wrote the opinion, i joined it. It would interfere with their own efforts to enforce their own antifraud law or antitrust. Thats an old question here but my goodness it comes up with a force, a vitamin distributor in ecuador sues a Company Maker of vitamins in holland and he sues them in new york. Why did he sue in new york . Lets think about that. Maybe the vitamins were so expensive because of the cartel, he was too weak to europe. Thats a possibility. Theres another possibility called trouble damages. Hes in new york. He wants to sue. Can he or cant he . Again we have briefs from eu explaining to us if we allow this lawsuit they will have real problems with their own antitrust. That comes up in security, antitrust, intellectual property where the only way youll get a sensible answer interpreting a statute of ours which doesnt clearly doesnt have the answer is to know how to interpret so that these laws begin to Work Together in harmony to achieve an objective and the word that will be used is the word comedy which is a perfect word which nobody ever knows what it means. In this case it is an effort to try to bring and you can find case after case where were trying to get laws of Different Countries to work harmoniously together. And that doesnt divide the court. Or treaties. Were interpreting treaties all the time. Lets go back for a second because i want to save the treaty one for a second. Lets think of another good example. Shes from paraguay. She came to new york. She came to new york because she wanted to find and did find another man who tortured her brother to death. She also found a statute passed in the 1790s. The alien tort statute. It says that a person, an alien can bring a suit in a court for harm caused by a a violation of the law of nations. What was it about . Pirates probably, at least in part. Because the rule used to be in the 1790s you find a pirate and you hang it. By the way, first you hang him upside down and give it to the victims. Who are todays pirates . Torturers . We said maybe. Thats what they said in the second circuit. And she won. She went back to paraguay and said i went to the united states, wanting to look that torturer in the eye and went back with so much more. Even though she didnt collect money, but you see vindication. And that produced a whole industry. An industry of cases. And then the question was what are the limits. Those are harder than you think to figure out. Its not just who are todays pirates. All complicated statutes are complicated. There are some special things about this. And one of the special things, the law of nations, where do we look . Why is that a problem . Its important to understand one reason why its a problem. Or difficult. Not overcomable, but still raises a special difficulty. And thats what madison said. I like to keep these words in mind when im dealing with something that stems from abroad. I think it helps explain some of the opposition to the attitude im taking. He said that it this constitution unlike europe is a document. It is not a document given by power to liberty. Its a document given by Liberty A Charter of power. Its still at the center. That power may produce a charter of liberty. They may add up to the same place we do but its not the same theory. What this says is residue of power where the power comes from is the people. And this is a document that if they dont give you the power, you dont have it. You see . A difference. Now think of people being taught that for 200 years in this country not always practicing it, but nonetheless. Nonetheless. And suddenly it becomes clearer why theres an emotional reaction. We elect the president. We elect the congress. The judges we dont elect them but at least they are american judges. But who appointed those people . Now that is a special problem that we have. Doesnt mean they dont have the power. But it does mean that you have to explain it pretty clearly. Why and how they got it. Or start thinking about what are we going to do it . What about apartheid . Thats a good one. Is apartheid in equivalent of a pirate . Maybe so and people brought cases against Companies Based on that theory and the South African government filed briefs saying we dont want judges in the united states. Getting involved in this, we have our own system. Its called the truth in reconciliation commission. All that american judges are going to do is start getting everything mixed up. Let us deal with our own problem. So how is it the american courts will treat that. Do whatever the state Department Says . Do we work out a system . Now were beginning to see special problems and if its areas like this, remember, theres no Supreme Court of the world. Other countries may have similar statutes. We better be able to have a system however we interpret similar words here that will work out overall. I mean the example to use is we always read in the paper whether its true or not. Every single country wants to sue poor henry kissinger. Poor henry kissinger. I dont know why, but we cant have a system where they are going to be sued. But the problem im trying to illustrate is this, somehow it has to work out so if other countries do the same thing, you wont have chaos. And there is no Supreme Court of the world to have a final rule on such matters. And all those kinds of difficulties and more are involved in those ten or 15 or 20 words in that alien tort statute and its difficult and its been to this court at least twice. Weve tried to figure out answers. Sometimes we agree, sometimes we dont. But thats human rights, a little example of it. Its right there. Why did i say treaties . I started out with treaties because i began to think of treaties as always being subject matter for a court. Of course. But suddenly we have three cases over two years that involve a single treaty the subject is abduction of children. You know who knows something about abducting children in the law . They are called domestic relations judges in the states. I know some of them. Its a really hard job. A very difficult job. And one of them up in cambridge told me he always starts when he has a fighting couple before him he says i hope you can work this out, because if you cant work it out, ill tell you ill decide it and it will be worse than what you would work out. Its very hard. And who knows even less about it . Federal judges know nothing about this subject. We stay far away from domestic relations. State matters, so why in heavens name are we starting to interpret a treaty on child abduction . Because its a treaty. And well get into that. My goodness there are groups. One group is very much against child abduction. Nobody is for it, but before just wait. It has to be interpreted a certain way or too much child abduction. People who feel just as strongly about abuse of women. Because very often its motivated by abuse. So they have to go to different courts and different parts of the world making similar arguments to different courts and asking us. Why is it in the treaty . Marriage today is more and more a question that crosses national boundaries. And nobody is going to change that. Its just going to get more. And by the way, there are treaties. Nobody disagrees with the proposition you have to look to foreign law. You should look to foreign law. You must look to what foreign courts say. When, in fact, youre interpreting a treaty. Everyone agrees with that. All nine of us. We said that. And well, okay. Is that something that comes up often . The professor had his students look to see if he had an answer to this question. He said, how Many Organizations are there in the world . Now, lets do that loosely. Lets say created by treaty or by executive order or created by something. Which have the power to have a bureaucracy, and that bureaucracy makes rules. Maybe ratified, but those rules have this characteristic. They bind individuals or companies for more than one nation. So you can think of the World Trade Organization or parts of the united nations. But now you want it to count up how Many Organizations are how many do you think there are . How many think theres more than 100 . Nobody thinks they are more than 100. Yeah, of course. More than 1,000 . There are more than 2,000. Got a few. Yeah, there are more than 200. There are more than 200. We belong to 800 or 900 of them. Theres International Blue fin whale commission. Thats one. What about the International Olive oil council . Thats another. They are all over the place, and one of them you wont even think of, and i say this particularly on campuses if im talking about this subject, because the students will know in two seconds and wont have thought of it. Whats the organization that affects you every single day. More than any other. The answer to that question, you know what it is . Its actually i con, you see, puddled look. I have a puzzled look because im the same age, but they know. Icon is the organization that deals with domain names. Icon is the organization that regulates the interpret. What is icon. Its a company in los angeles or sort of a company. It has some kind of status there. They are making rules that affect everybody. Or go to the ball who meets. The banks meet in ball. So do our regulators. And they go to ball and they make they dont make agreements exactly. They sit down and discuss problems and agree what to do. Then the regulators come back to their countries and promulgate the rules giving everybody a chance to comment on what they already decided. That is an overstatement. But nonetheless, thats going on in a lot of places. And gradually these questions are coming up to the court. Gradually. Ill give you an example of a big question thats decided all over europe and we havent had it yet, but we have nibbled around the edges of it. I mean can congress delegate the authority . To do what . I mean, if we say they cant delegate any authority, how are we going to solve the worlds problems. We do make a dent. But if they can delegate to the blue fin whale commission, whatever it is, delegate whatever they want to delegate, what happened to article i which said the legislative power is in the president. No, sorry, hes in the congress. They gradually solve the problem. Are we going to be in a similar kind of situation but not visav visavis . The local, not the interstate commerce commission, but rather visavis all kinds of organizations that make up that 700 or 800 or 900 or 1,000 different institutions that we now belong to that make rules, that in practice, in practice bind us. Maybe. I mean, they certainly have the problem in europe. They have the problem in europe in three courts. Supreme court of germany, of austria, of italy, at least, has had to look through the eu treaties and say, does our constitution, in fact, delegate too . That eu, does it give them, the government, our government, the power to make a treaty that gives all this power to the European Union . All three have said no. They said theres certain things that are reserved. Theyve never actually found one. But they just say in principle there are certain things reserved. We havent had that kind of question yet. Really, i dont think, unless you go back to the agencies or Something Like that. Do i think it will come up . I cant predict the future, says yogi bera, but nonetheless, maybe, good chance. As i say, weve nibbled around the edges. There have been cases that brought up something somewhat similar. All i am trying to do is to give you a taste, a report, a report of whether youre talking about treaties or youre talking about human rights or whether youre talking about commerce, or whether youre talking even about things where there are few cases but very important ones. Security versus Civil Liberties. The world that were in is a world where you must look beyond your own shores. And how and when and under what circumstances is going to be what the lawyers and the law professors and the judges are busy doing. More and more and more and more. Thats all this book is about. But it does have some reasons as to why i think thats fairly important. The least important reason, perhaps, is there are a a lot of people that think you should never cite foreign cases. Thats a reason. I dont agree with that, but nonetheless there are a few. And i want to say to those people, look, if youre really talking about not looking at what goes on else where, are you serious . I have tried different kinds of arguments and different kinds of forums and somebody will feel that very strongly and i think i make a great argument. I sent him a copy of this book. But he said, well, he had a he was very much against referring to foreign cases so i said probably thats aimed at me. He said, yes, actually, it is aimed at you. So i said let me tell you why we do that is more and more countries have constitutions like ours. They have judges who are enforcing the documents. They have problems like ours. So if i see a person who has a problem like mine and he has a job like mine and has a document like mine, why dont i read what he says . Doesnt bind me. Maybe ill learn something. I thought that was a great argument. He said, fine, read it. Just dont refer to it in your opinion. So then not knowing when to quit, i said, well, anyway, there are a lot of countries where this is a new thing. And this new thing is their courts want to go to their legislatures and say, you know, its important that you Pay Attention to judges. Youre the Supreme Court of the united states. We cite them all the time. They refer to us. That gives them a little added prestige. Whats wrong with that. Thats a defense of trying to get them in a position where they find it easier to defend Civil Liberties or defend personal rights of some kind. He said, find, send them a letter. So, really, what i want to say to him, read this. Okay . You read it and now you tell me how were going to solve these problems. Unless, in fact, we can know what is happening in other countries. Sometimes we have to follow it. Sometimes we dont. But knowing about it is more and more and more cases. Because what youre really concerned about is, of course, preserving basic american values. All right. I agree with you. I agree with you, that is important. But when you read this, i think youll think that maybe the best way to do that, given the nature of the problems that are in front of us, the best way to do that is to know whats going on elsewhere and to help, because after all, if we dont help, if we dont help, the world will go on without us. I mean, well be affected by what people do anyway. And so whether its ball or whether its the whale commission or whether its some other thing, maybe we ought to find out so that it wont go on without us and we will make contributions to problems like the environment or security or health or commerce, which are all around us, as you just read in 200 wellchosen pages. Do you see the point im trying to make there . Im saying if you go really deep, and i think this drives us, all of us to some degree. I mean, the thing that explains our predicament in a sense and when you Start Talking about american values, i think it was lincoln. Its corny, but true. He says there at gettysburg, you know, we have to memorize this. Used to have to. Ive forgotten most of it. Four score and seven years ago . Why four score and seven . That does not bring us back to the constitution, it brings us back to the declaration of independence. He doesnt want the constitution. He wants the declaration of independence because it says all men are created equal, and, of course, the constitution doesnt. So four score and seven years ago our fathers came forth upon this continent, created a new nation conceived in liberty and dedicated to the proposition that all men are created equal. We are now engaged in a great conflict, war, to see if this nation or any nation so concede and so dedicated can long endure. I said, thats the point i want the School Children to memorize, because memorize. When they created you dont think about it too often, but when they wrote this doctrine in the 1780s, 1790s, there was no other place like this. They were all kings. It was an experiment. People were sitting around writing that it wont work. They have a document it might be good on paper, but it will never work. They thought, well, this experiment might work. Now lincoln is there. Why did he ever say i would fight this war, which he did say i would fight this war even if no slave were free. I always thought maybe he didnt believe that. Maybe he did. I would fight the war to free half and the other half. I would fight the war to free all. What he is thinking with those words is he is thinking why fight this war because if the country falls apart and its divided, the experiment didnt work. Were still in it. Its corny to say, but my goodness, is it true. Were still in the experiment. Will it work or not work . Today that experiment means for all of us, lawyers, judges, it means that great problems, whether its environment, commerce, human liberty, treaties, whatever they are, theyre global. Once you accept that, at least help a little bit through cooperative efforts, which means trying to have rules, which we call laws or rules or rules of law. You say thats one way to do it. If we cant show people that you can do it that way, theyll choose other ways. The other ways are pretty horrible when you turn on that tv set and see what goes on in the world. So maybe its just a description of what is going on, but really there is a program in my thinki thinking. That may be hard to see sometimes. The program is simply to show people the tremendous importance of learning these details, of seeing whats going on, of trying to work out through a way in their many ways of trying to reach beyond our own shores so we can show that it does protect human rights and democracy and it can contribute something to the problems, and thats called supporting the rule of law itself. There you have it. You have what the book is about and the why i wrote it. Thank you. [ applause ] we have a few questions, and we time for a few for the justices. You can respond. This is there an alumnist of the Summer Institute for High School Teachers summer program, and here she writes my Foreign Policy class is conducting a simulation of a National Security Council Debate over the use of enhanced interrogation techniques against suspected terrorists. How do you recommend we prepare for such a debate . What legal principles are essential for my students to understand in this complex issue . I mean, how to prepare for it, there are studies and documents. Theyll have to read them and see what the facts are. Thaes a go thats a good point for lawyers. Start with the facts. I think reading i would read jacksons opinion in steel seizure. I think thats a very interesting opinion. Youll say why was he hesitant . Theres an answer. Why would all of his advisors say you have to do this or it will be terrible . And what rule would you, in fact, have . What does europes experience in world war ii and just before tell us . And et cetera, et cetera. In other words, i think something she might not otherwise think of is that opinion. What do these four cases tell you . Is it depends how far she goes in the direction because you can go short of that and get more interesting. You know, get a debate going. Our own barack wrote a very good opinion about the use of some form of torture in israel. It was chief justice of israel. He writes in there, which is so interesting to me, and it was not it wasnt some terrible, you know it was not great, but it was a form of tor tour. He says now, do you think i dont understand . Do you think i dont understand the fact that there can be somebody who knows where theyre going to blow up the cafe and, indeed, what is he trying to do by saying go and tell my mother im flying is say go put the bomb underneath the chair and set it off . Do you think i dont understand that . He says i do understand it. I do understand it very well. I understand why you think there is a need, but he says of course, this is he says we are judges, and you cannot ask a judge to approve torture. Thats the opinion. Read that. Read jackson and then maybe, you know, have a few examples one way or the other way. Thats my best. The second question is in an increasingly globalized legal world, the Supreme Courts decisions serve as a guide sometimes explicitly through citation and quotation for foreign courts around the world. In what circumstances does the justice consider the courts global audience when crafting his or her decisions. Further, what are the justices thoughts on foreign courts increasingly citing u. S. Circuit and state courts . Is this trend concerning given a conservative conservatives increased focus on gaining seats in stage judiciaries . No, no. Its not of concern. People can cite what they want. I mean, you know, let them cite what they want. An honest opinion is an opinion that tells the real reason why the judge is deciding this way. We cite all kinds of things. I dont see anything wrong with people citing whatever they want to cite. For our opinions, abroad, no, im not thats their problem. Thats not my problem. My problem is to get this thing done correctly. In doing this correctly, it may turn out such as the examples that i have given you where its very helpful to know what other people have done. If other people find what we get done is helpful to them, thats fine. Thats their problem. Not our problem. My problem is to get this opinion written correctly. Thats hard enough. Before i take on a few others. If someone were to make a summer study of important nonamerican legal texts to better understand the global judiciary, says do you have any that you would recommend for their review . I would read baracks things. He has written on this. I would try to read something about what the german constitutional courts have done. Its very interesting. Theyve had quite a few cases. Thats changing rapidly. I would look up what professor kasacey has thats what comes to mind. Thank you very much. [ applause ] your honor, i want to thank you in particular. Ladies and gentlemen, this is the most demanding time of the year for the court as they come close esest to the end of term, and to devote this time is something i think a standing ovation for for this [ applause ] i want to thank everyone who has come here today for those of you that are taking the tour at 3 00, you meet right outside there. I do want to mention that the book shop is open and if you are thinking of graduation gifts, theres one in mind that is signed downstairs. For those of you that are going to join us at the annual meeting of the trustees and the society, its at 6 30 tonight in this room and for those of you with re reservations, the reception is at 7 00, and the dinner at 8 00. Look forward to seeing you this evening. American history tv airs on cspan 3 every weekend. Telling the american story through events, interviews, and visits to historic locations. This month American History tv is in primetime to introduce you to programs you could see every weekend on cspan 3. Our features include