Transcripts For KQED Charlie Rose 20161007

And by bloomberg, a provider of multimedia news and Information Services worldwide. Captioning sponsored by Rose Communications from our studios in new york city, this is charlie rose. Rose the Supreme Court began its new term this monday, the focus has been less on the dock et and more on the courts future which hangs on the outcome of the president ial election. The seat held by the late Justice Anthony scalia remains vacant as Senate Republicans have refused to consider the nomination of judge merrick gar land. Steven breyer has served for more than two decade, president clinton nominated him in 1994. He was first named to the bench by president carter in 1980. He served 14 years as a judge and laters achieve judge of the court of appeals for the First Circuit in boston. He is known for his practicing mattism, love of literature and love of architecture. His third book, the court and the world was published last year. It explores the role of foreign and International Law in american judicial decisions. I spoke with Justice Breyer at the 92nd street y here in new york city, and here is that conversation. I begin with this book which he has written called the court and the world, american law and the economies are a tour deforce analysis of the Supreme Court vees a vee the rest of the world. We were talking backstage and show this book which is now in paper back and you and i talked about this, is getting a resurgence. I hope so. Well, you know it is. Why is that, do you think . Speculate about that. Is it because of our times . Is it. I think its not just here. But in europe, in other places in the world. There are a lot of people who are see a turning inwards, not just this country. But in many places, and were theyre worried about that. Theyre worried because they see problems that face us that require us to turn outwards. And so it might help, it might. To familiarize people with the kinds of problems that we have in one Small Institution and Important Institution but a small part of america. But what are the problems in front of us that require us to look beyond our own shores for a solution. And when you see those, you think oh, well have to. And i think thats reassuring. Because if well have to, thats like someone said about economics. Im not a great economist. He said in economics, that which has to happen does happen. Rose does happen. I mean whats interesting talking about globalization and antiglobalization move we saw in europe coming from the upheaval of the middle east and migration and some sense of people being a feeling that show that there is a in history that is against them. I wouldnt think that necessarily so because when i talk to people at stanford in the audience or berkeley or tenth graders or i talk to my grandsons school here in the fifth grade, you know, ill say to them, i just would like you to think, i know law. Immediately go to sleep, you are talking to a fifth grader, what . I mean but law is one way of solving problems. Trying to. Now you wanted the alternative, turn on the television set. And youll see what happens in countries that have other method. Rose but there is a weight of pop lism that is feeding on the sense of show the forces of globalization have affected the way their future, their economic insecurity, and the way they live. We saw it in the brexit vote. We see it in some of the political discussions taking place in america. We see it in political choices being made in europe. If here at least and if you are interested enough in the court and will take the time to read a few pages, you will see a long period of time when the watchword was, where you have needs for security, you have security, the president , the congress, got to keep us secure, theyre the ones who have the authority under the institution but we have the authority and respect of civil rights. And what happens when they clash. Ars, perhaps thousands where the key to what the court should do, you want one word, what they thought the court should do. Rose yes. Nothing. Cicero. Cicero said when the canons roar, the laws fall sigh lent. Now actually he didnt say that. Someone pointed that out to me. That the romans didnt have canons. But i mean that ruined my that ruined the whole thing. But none the less, you get the point. Now go back and look. This has a rather long wind up and a short pitch. The wind up is, look, adams our hero, great man. But people. Rose john adams. John adams, Abraham Lincoln put 18,000 people in prison. He had a problem. Rose he wanted to win a war. Correct. But they had no trial, no nothing and they werent soldiers. You had wilson, woodrow wilson, great man and continuously stopping what people said. And you had world war ii 70,000 citizens of japanese origin put in camp. Rose so what is your point . My point is, why does he want to know the point. Such an interesting story. You always have to have a point . The point is that in guantanamo, in seal seizure case, the court turned. And the court said Sandra Oconnor, the constitution does not write a check blank. No blank check to the president. Not even in time of war. And the four detainees won the four cases. And the president lost. Thats the point. The point is what is in your mind right now. Whats the question in your mind when i say that. If it doesnt write a blank check, what kind of check does it write . And thats going to be our job. Quite possibly. And terrorism is international. Countries all over the world are democracies too. Rose the court ought to be influenced by all information. If not influenced, at least have the information. Rose aware of appreciate information around the world. Right wz wherever it comes. Justice scalia differed from you on this. I dont know how much on that. Rose well, he said so to me. Kely to say that in are cases where they involved the death penalty, they involved gay rights, and we were on opposite sides. And my wife was a good psychologist, clinical psychologist. She says displacement. Youre angry at a, you blame b. All right, you might not have liked the results in those cases. So who does he blame, International Law. What does that have to do with it, thats poor b, getting blamed for a. An i think a lot of the criticism comes out of that. But that is just sort of pot psychology. Who wrote the opinions which paid tremendous attention to briefs filed by lawyers from all over the world, cases where there is a plaintiff in you are ug way, a defendant in holland, an antitrust case. And weve got to decide how american law applies or how does american law apply Securities Law when you have a plaintiff, australian, he wrote the opinion, is my point. I joined his opinion. He certainly looked to foreign law. And what i am trying to show here is there are many, many cases in many different fields, you cant avoid it. If you are going to decide that case correctly, i can give you case after case. You have to look beyond our shores. I want. Rose i want to come back to jus cities Justice Scalia and your opinion. Is the best opinion you have ever written, you ever wrote desenting opinion or a majority opinion or a concurring opinion. I dont think thats up to me to say. I would say im not necessarily a good well, maybe the best i ever wrote, i dont know, i have written some majorities that i was very pleased with. One of them is in this case involving a student who thailand who goes to cornel, and cornell and he discovers the same text books in bank cot, half the price. Says to his parents, send me a few. They sent more than a few. He began to sell nem. Rose right. Publishers got annoyed. Can he do it or not. Lawsuit in our court. The answer lies in a few obscure words in a statute that no one can really understand very well. And we received briefs from all over the world. I ended up writing the opinion. I felt i had to know what goes on in different parts of the world. The student eventually won. But thats not the point. The point is to do a decent job in that case. Rose you had to know. You have to know what goes on elsewhere. That is the majority. Des ent is probably in the affirmative action case, i wrote an affirmative action case. I believe that affirmative action was constitutional. I was in d serks dissent. I felt strongly about it and sent considerable time trying to show that the constitution does not prohint affirmative action, positive discrimination. Rose let me ask you this. Did you ever, ever, ever, ever, did your wife, ever, ever, ever think that your name would be in the same sentence with Kim Kardashian . laughter this comes about through teaching. You know, when you are teaching, what you do is you want to give an example that the class is going to remember. So then sometimes when im asking a question, in the way, not everyone thinks this way, thank goodness. But its pretty stream of consciousness. I have a question i want asked. Im really curious. I want the lawyer to focus on it. And i have gotten into the habit of using examples that are perhaps overly done. Rose but hell get the point. Please explain what you did. I dont want to discuss an ongoing case. I mean ive said a lot worse things than that. And its because i want an illustrative point. And i dont want to watch every two seconds what i am saying. But i want the lawyer to get the point that im making so i will get an answer out of that lawyer. Interestingly enough, and not surprisingly, in an oral argument as in briefs, lawyers are trying to win their case for their client. But from our point of view, and its sometimes happens, more often than you would think, the lawyers are there to help us. And were not saying who is the best lawyer. Were not saying who is the best client. What we are saying is interpreting some words in a constitution or in a statute. And having an interpretation that will work well and be consistent with the law, it will be the law for 319 or 20 Million People who arent in that court room. And so sometimes in an oral argument, people sort of get going and the lawyering say what do you foa about this bankruptcy case. What is in your experience. You are a bankruptcy lawyer. Tell me what will happen if you will do that. And you will begin to get a conversation going. And when you get a conversation going in a court room, and it is, you know, right on the merits, it isnt people taking poses or positions. You can make a lot of progress. And much of what we do is to try to get that situation going. Rose before oral argument, i mean you have law clerks and you study the briefs. You think about the questions you have coming out of the briefs. Does the oral argument have a significant influence as to how you end up . Yes. I think it does. The law clerks think it doesnt. Interestingly enough, it depends, you put it just exactly the way i would put it. Does it affect the way you think about the case. If you are looking for an absolute switch from x to not x, that happens but not too often. If you are looking for how do i think about the case, what are the words in that opinion going to be, what is the sort of main point. And which points do you deal with and which points are not really that significant. That makes a huge difference to the law. And the oral argument affects that quite a lot. Rose after 22 years, how do you how have you changed in terms of how you see your role. And how you see the constitution. And how you see. I think the first three or four years david seulter said this, justice suiter said this. He said what i am about to say, which is that you are sort of frightened. You are worried. How do i know, i mean where can people go if im wrong. And you are worried you are going to make a mistake. I thought i could do this but how do i know i really can. And that after a while, you begin to think well, for better or for worse, here i am. And the most i can do is my best. And what david also said which i think is absolutely right, i mean youre always on duty. You say, be careful. I skirted the line i think with that. But be careful. You are always on duty. And then you think well, the most i can do is my best. And i think that all of us, since i have been there, every one of us has really tried to do his or her best. I mean youre putting out. And as you get older, that becomes a privilege, more and more. You have a job where you can go in every day and you just have to do your best. And then you say over time, you begin to think well ive seen these cases before. Be careful, you havent really. Theyre not quite the same as what you saw before. And then again over time you see, youre not it goes back to the question that you wrote. That you said. What is the best opinion. What is the worst opinion. Its not a contest. Its not a game. Its not a contest. You do the best you can. And its going to be up to other people, sometime in the future, to know whether the views you took of the constitution or the views that you took of statutes or the way you approached a case, whether that was the best way to do it. You talk about Justice Scalia, indeed, one of the best discussions i had with him took place in front of 2,000 students in lu bbock, texas. And they probably hadnt seen a Supreme Court justice. And we went on for about an hour. We tried to describe what we did. We tried to explain we do have different points of view, to some degree. Not as much as people think but to some degree. And i went away thinking. And he did too at the end, it is not so important whether they agree more with him. You see hes afraid i would be too subjective. And i would tend to substitute what i think is good for what the law requires. And i would think well, i try not to do that. But more importantly, i would say but you have a method that is, i think, too rigid. I think that the way sometimes you approach, its not i dont see it in a rude way but he knows thats what i think. That the constitution wont work as well for the people who have to live under it now and we talked about that. Whether they agreed more with me or more with him. I think the 2,000 students left feeling a little bit better about the institution were in. Because they saw were friends. They saw that we proceed on the basis of reason and argument and thought and try to understand each others point of view. And try to understand each others point of view, is not so terrible in this country. People have different points of view on the spleem Supreme Court. Its a big country. Rose do the justices on the Supreme Court agree much more and rule nonzero or more often than we imagine . In other words, is there more agreement thats lets say agree 70 of the time. 50 . Rose its 50. 50 percent were unanimous. Rose 50 of the time the nine justices agree. Yes. And probably its 54 about 20 . And its not always the same five and the same four. And so i will say that, you know, a university audience, law school audience, and they will say, because thats our biggest problem. People think were Junior League politicians. Rose s that do they really. Yeah, were Junior League politicians, thats what they think. Rose amateur politicians. I would say Junior League because laughter look, you know who tried to be a politician, in my opinion, was roger tainy. And he thought that perhaps, he thought, that by reaching a decision saying a black person was not a person, thats roughly what he held, unbelievable, but he thought he would help prevent the civil war. Giving him, you know, some credit. If anything, he helped bring about the civil war. Because Benjamin Curtis wrote a great dissent showing i think at the time his decision was wrong. Its not using hindsight but really wrong. Abraham lincoln picked it up. Read tainey decision and said this is a shocker. Then used the dissent in his speech at cooper union which was the speech that propelled him to the head of the republican party. And helped get him the nomination. And then all followed. He was really an abolitionist at heart. They knew that in the south. And then the civil war followed. So if that was taineys idea, he was wrong. Judges are not good politicians. They may have some exposure to politics, but thats what i mean when i say Junior League. But theyre not even Junior League and can i explain that later, if you wish. Rose i do. But i just talked last week in the chambers of the Supreme Court to Justice Ruth Bader ginszburg. And she said to me that in 14e would like to see more of a conversation between the kowrd and the congress. Its hard to get a conversation done. Rose but you understand what she means. Absolutely. Absolutely. Because sometimes you can find something in a statute, say why did you she has written that. Rose or have them think about in a dissents because she had them, the come plex shun of congress had changed and the new congress, i think this was i have forgotten the case but the congress then changed the law. Yes. Rose because of what she had pointed out or someone had pointed out in dissent because there was a dialogue. Yes, yes. I think that is good. But it is not easy to bring about. I think that i worked in congress for awhile, on staff. Rose Judiciary Committee with ted kennedy, wasnt it . Yes. And i would guess theyre on different time frame. You see, we take things slowly. The virtue of were not elected. The virtue of having nine unelected people, hamilton said this in federalist 78. I mean they can take the time and think. Theyre not particularly powerful. He thought that. And maybe thats basically true comparatively speaking. But other than a periods of time well think about something, weeks, months. You are a member of congress, you dont have a second. There is a con stitd went you in front of you, or on the phone or emailing you and telling you something and that constituent is very surprised if you cant remember his or her name. Rose yes. And every single thing that he has or she has st a problem. And havent done about it yet because after all you received the email yesterday, why havent you acted now. And it is a very hard job. And the time frame is different. Now the court used to have its offices in congress. What he said when they built this beautiful palace, he said i dont really want to move. No one will ever hear of us, have heard of us again. That turned out to be not quite so right but he could talk to members of Congress Daily over lunch there. He liked that. Bran december said i dont want to move t will go to their heads. He was right about that. Louis bran dees. Yeah, yeah, so its something absolutely, that is as operational. It would work much better in people that have tried different 34edette mertds of bringing it about. Im simply pointing out its harder to bring about than you think, but a very good idea, correct idea. Rose are there any you are a man of letters, all the stuff i said earlier. Are there any experiences or skills, that you wish you had as a justice of the Supreme Court . Ness of course what you would like you would like number one to be able to know all the relevant things and have tremendous experience and Different Things that you dont have so you can understand. That is like thur good marshal saying that. He said that he had, which was correct. Experience that the others didnt have. Rose right. And it was valuable having that only a court. Its valuable having a wide range of experiences. Of course it is. And i would like to be able to write better than i can. I dont want to discourage people from that but there was a book review in the l. A. Times. Rose yes. Of a book i wrote on economic regulation. Im sur pliesed you all arent very familiar with it. laughter but the reviewer, i dont know how it got into his hands. He said alice in wonderland, alice comes out of the 3508 of tears with the door mowrs and the door pows begins to read from humanities history of hu mes history of england. Why are you reading that, says alice, because says the door mowses were wet and this is the dryer thing i know and that was before breyer wrote this book, he said. I have improved. Rose but you also said about justicscalia, you said he suffered from a good writers disease. I have said that. I have said that. You have to be care of 68 careful of that, of course. The job of a judge in an Appellate Court is in an opinion to explain the reason why he or she reached this opinion. Now i dont think that that calls for or requires what you might be able to do in terms of great phrasing. But if you can do that, it can be an advantage 6789 what i meant, because people, when nino and i i miss nino, i do. And we would appear together. Somebody would say why do it you insult all your colleagues. And then i would then say oh, you mean him. And i would say i will tell you why. Let me answer it. He suffers from good writers disease. I would say a good writer, like a good comedian, a good comedian, if he has a good joke, hes not going to give it up. The world could come to an end and so could he but will not give it up and that same is true with a phrase, you find the felicitou s phrase and youre going to use it. And hes going to use it because of the way it sounds. We all know that. And if its aimed at us, we dont take it personally. Rose its been said to me, you know, there may be an opportunity for the republicans whoever controls the senate, until after january 20th, to vote on judge garland. My question, what is the impact of 44. 44, last year we hear about 75 cases, 70 to 80, somewhere this that range. 72, or we decided 44, see if it is 44, then that just as if the case was never heard. Rose thats my point. It goes back it the court of appeals and the majority opinion. Whatever it was, whatever it was. So you wanted to know the impact on the court of that. There were four cases. Rose right. And that was out of out of about 72, 73 Something Like that. And i would say two of the cases are the cases that would be written about in the newspaper in bright letters. And two wouldnt have been. Rose yeah. And two might have been decided differently if there had been 54. If it was 54, they would not have been 44 so. Rose i know. But my point, but knowing those cases, do you think, on particular cases you said there were four, if there had been if there had been 54, it might have gone against whatever the opinion was in the court of appeals. It mietd have, for it might not have. Rose i bet you can predict. What you want me to say, i suspect, is does the personality of the judge going to make a difference or his judicial view. Rose i believe it does. Well, it does to some degree. I mean it depends on the case. And the, you will find anyoneo and i, i mean most judges, all judges just about when they have. Rose sphoas i ask there question. What do you think, is it a combination of things that has given you what might be considered your essential judicial outlook, was it your education . Was it the viementd of growing up . Was it some combination of this . How did you end where you are in your own. Thats a very good question. And i think its the crucial question. Because i think if you look at say the 54 cases, you are not going to explain on the basis of politics. When i worked with senator kennedy, politics meant where are the votes, are you a republican, democrat, no, nor is it really ideology. Are you a maxist, leninist, trouble make or saddam smith free enterpriser. No, thats just not. It is, perhaps, with these very broad words, liberty in the 14th amendment. The freedom of speech, words that dont explain themselves in the difficult cases. Do i think it does make a difference that i went to Lowell High School in san francisco, that i grew up in the 50s, that i was at stanford, that i have lead the life ive lead. And so have you. Rose right. And of course that eventually at a very abstract level creates views that you have about your profession, about the country, about what america is like and its law. What is law about. Is it applies. I couldnt write that down in 500 words. But none the less, every person at a certain age is shaped by his background and experiences and has these sort of general views about his profession. And i think that explains a lot. When i went down theringing a i said, i lived in san francisco. I lived for many years in boston. I had seen a lot of disagreement but not quite as much as i had seen in some of the cases down there. And at first i thought isnt that awful. They all ought to agree with me. And then after a while i began to think perhaps a little more maturely that its a big country. There are 320 Million People. They think a lot of Different Things. I mean it is not such a terrible thing if one of the Supreme Court there are people who have different, some what different injureiswere you dengs outlooks. Nino scalia probably likes rules more than i do. He tends to find clarity and used to tend to have found clarity in trying to get a clear rule. I have probably more of a view that life is a mess. Rose yeah. But my point is, you will find a lot of differences between us, just what you have said. How far do we go how broad a rule do you want. Those are a lot of decisions, interesting for judges which are not written down anywhere what you should do. Im just giving you examples of how basic outlook about the constitution, how it applies today. To people who live under it. Those are the differences come up. Its not politics. Do, i assume you went to see hamilton. I thought it was great. By way, my wife, we dot tickets, that is an amazing admission because i have to add that we got tickets before it was so wellknown, and before. Rose at the Public Theater or before it was. No, we saw it here but still it wasnt quite the price it is at the moment. But it was great. Rose great because it simply was a well crafted musical or great because. On every score. Could you have believed joanna wouldnt have believed that i would go to this musical all in rap music, it seems a little young for me. And then i go there and hamilton, i mean, the great biography but much of the cast is minority. Theyre africanamerican, so you think well, what. And i thought this is going to be just sort of slightly politically correct. No. It is not. And what you see, or at least i see in there is not necessarily the constitution at that moment. There were slave, women didnt vote. But the potential. The potential was there as this documented would be applied to the country. And hamilton saw that. And probably many of the founders did. It was an experiment. It was an experiment that later had its failures. And that later had its successes. And to live with that experiment, and to realize youre still part of it, because everyone is, and see where theyre coming from, and see where the potential is, and of course in addition to all of that, it was just terrible entertainment. Rose indeed. How can you miss it rrs but where would you be on the conflict between jefferson and hamilton. Oh, well, the historians at the moment tends to favor hamilton. Rose yes, of course they do. So when jefer in jefferson came in, were creatures of the historians. Come in and he was very funny, the jefferson character. The second funniest, the funniest was george 3. So i would probably be, probably from what i are have read be more on the ham i hamilton side. Rose you have often talked about your admiration for prou st. I did talk about it once to someone who then wrote an article about it. Rose you talked about it with a french interviewer i think. Yes. Rose what other books have influenced you. Oh, well, if we come back to this continent, as a highschool student or College Student asked me, can i read one book, what would i read. Rose well, thats a good question. What would it be. Education of henry adams. Rose would it . Why. Rose because i think its a terrible book about, he lived 1838, you know, into the 19th century. He lived at a time where people thought maybe the country would be a kind of aristocracy. And there would be elections and the people radio rule but not too much. And he lived through then a period where he looked at the presidency and congress, and congress, remember, was the cartoons about congress, the big money bags, railroad trust, but they really bribe people. And you know t wasnt just campaign, well, it was and he lived through all of that. And he said my goodness, and you see that he goes to the south, before the civil war. A bunch of roughians, he said they have these slaves, terrible. And just look at his reactions, theyre so interesting. And he says, finally, this is just terrible. I go to the white house. The thing is, oh my god, i cant believe theyre deciding this. My goodness, look at congress. Oh my goodness, they have these, theyre just on the payroll. Oh my goodness. And then he says yes. Right. So what do you suggest. And he says we have democracy. And that is going to just have to work. Because there isnt an alternative. And then he turns to other people and says weve got to make this work. Well, its not just that overall philosophy. But i agree with that. And but it is the description of year after year after year. And you come away feeling yea, this is a very, this is an incredible country. Rose how do you feel. Were making it work show. And why not. Rose how do you feel about this argue. Frequently now in this political debate. Yes. Rose people will say in the end, here is the reason that we have to vote a, republican or b democrat. Because the next president of the United States will be able to have a dramatic influence on the Supreme Court. And that is what will have influence over decades. The people i know who are very much in politics, not the politicians, used to say, i dont know if its still true, that it doesnt really have much influence. That the people who feel strongly about the Supreme Court. Right. Know how theyre going to vote. And they would vote that way anyway. Rose ah. So paragraph sew you carry a constitution. No, no, thats not the point. The point is when i gret that kind of question which i do quite often from the college, or high school, i then, i do have the document. And i say i want to tell you something. And there is what i praption feel more strongly than what you brought up. But i would say that i cant tell you, i want to say to the College Students, or highschool students. I cant tell you how to lead your life. I hope you find someone to love. I hope that you have a jobs that that satisfies you. And i also hope that you will participate in public life. Now that might be on a school board. It might be on a park commission. It can be anything. Just go out and vote, or persuade somebody else. Now why. Why. Not because im trying to tell you what to do. I have raised children. I do the opposite. But the, its because i do have this document, i can tell you this, if you dont do that, if you dont do that, this document wont work. It is not the Supreme Court that tells people what to do. This document sets boundaries. We are in a sense the boundary commission. I used to listen, if you go back to the 50st to sergeant preson of the u con. He was up there in the boundary. It was cold, pie god. It was freezing and sometimes those boundary questions are very tough, is abortion in or out, School Prayer in or out. But dont make the mistake of confusing a fuf question at the boundary with the fact about what the documents like because the document leaves vast space in between the boundaries, for people themselves through the ballot box to decide what cities, towns, states, what kind of a nation they want. Thats what this fore sees. And if you do not participate, it wont work. You want a tough cotaition on that. Rose yes. Pericles, someone told me he said this, i read it in derek bks book. I pick tupped, i assumed he couldnt be wrong. And he said that well, periclese innateens says what do we say innateens. Of a man who does not participate in public life. We do not say he is a man who minds his own business. We say he is a man who has no business here. Tough. Tough. But thats what this is talking about. And thats what i want them to do. So if you want soap box, teach the children civics. Teach them about the government. Rose now do you think hamilton applause . Rose have you changed your mind on any particular, i mean after 22 years where you, if you had another go, you are wiser . I can think of a couple, yeah. But normally we dont look back. That is Sandra Oconnor told me this. Sandra said there are two unwritten rules of the court. First is at conference, nobody speaks twice until everybody has spoken once. Thats a very good rule for a small group. The second, tomorrow is another day. And you and i were the greatest of allies on case one. Rose right. Case three comes along, were at odds. The fact that you were with me on case one is irrelevant are, unless its legally relevant but i mean is irrelevant to whether we are allies on case three, you see. And what that means is were a court. We decide. Thats the job. Decide the case. Do your best in that case. Absolutely. But eventually you have to decide. And then move on. There will be plebtdee of people around flt next case or after that to tell you all the mistakes you made and try to do better than next time. But you see, its on, on, on. Tony kennedy said that. He said its more like an express train than you think. They come in. Decide them. Pay attention. Read the briefs, listen to the argument. Rose would you rather be a swing justice or the chief justice . Would i rather be the chief justice or the swing justice. It sounds phoney but its true. I have enough to do. I get the case, do as well as i can and on to the next one. Rose yeah. What does the Second Amendment mean to you . Well, of course i can say what the court why dont i start the other way. Say the opinion i wrote. Rose okay. That isnt what it meant, apparently. Rose what it meant to you. What i thought it meant. Rose okay, tell me that. What i thought it meant is this. It says a well regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed, okay. What did i think it meant. And john stevens thought it meant and ruth beginsburg, several, what we thought it mentd in article one of the constitution, it gives to the congress z the power to call up and regulate state militias. Okay. There was a lot of concern, if you read the federalist papers will you just get a feeling for it. Rose right. There was a lot of concern and fear that Congress Might do that and disband them. And replace the state militias after they had disbanded them with a federal army. And that, many people said, vote no on the constitution because if they can do that, then they can this federal government, destroy your freedom. Well, said madison in a sense, as i parraphrase him. Never fear, we will put in the constitution an eamentd which says congress cant do that. It cannot call up and disband the state militias. Why . Because a well armed militia is neses for the security of a free state. Ie a state militia. And therefore the right to keep and bear arms shall not be infling infringed. In other words, theyre talking about that. That is what i thought they were talking about. Which is not the right of an individual to keep a gun flex to his bed. Okay. applause what. Rose what will scalias legacy be . I think he took the job very seriously. And i think thases a plus. And i think, you see, here you have to remember that judges do, its a little boring to say this sentence but its true. You get some words on a piece of paper. What do they mean . How do they apply . All judges use the same basic tools. You read the words. What do they say . If it says carrot, you cannot say that that means fish, all right . The words count. And history counts. And tradition counters. There is a long tradition behind habious cor pus. And precedent counts. Courts have decided to think Something Like this before, maybe not too close but something and purpose counteds. Someone wrote those words. What did they have in mind. And consequences count, namely those consequences that are related to the purpose. If you decide this way, are you furthering the purpose or not. Now were judges really differ, say Justice Scalia and me, is he thinks those first four things really are the whole story or almost. Almost because he doesnt really think theyre the whole. But those are text, history, tradition, press dent. And i tend to think yes, i see that of course theyre relevant but they often dont answer the question. So i put more weight on purpose, and consequences. Related to purpose. Its a matter of degree and eventually i think one thing hes done is pull people back a little bit. I hope not necessarily too far, from just using those last two. You cannot say a carrot means a fish. It doesnt. And dont go near that. I think hes right about that. Theres some things you just cant do because the text just doesnt say it. Or it says the opposite or whatever. And youve got to be loyal to that text. Now i think, i dont know and where i disagreed with him is of course i think he put too much weight on that. But then he thinks i put too little weight on it. So you say what will history say of that . We better ask those historians. Particularly those who have not yet been born. Then well know. Rose heres a word that is used with you. Practicing mattist. Uhhuh. People do say that. And it is not practicing mattism in the sense that you want to do whatever is good. Its not that. It was homes and william james, they were practicing mattists in the sense that you are sitting there, with, you dont know it all. You just know a little bit of it but the wol body of law. And the decision that you make in this case is going to fit into that. And its not going to be the whole story because there are vast rules. You know there are rules about treating precedent, there are rules about their approaches, their standards, their law firms, their judges, their citizens who live under it. It is a huge, huge kind of structures of all kinds and rules and so forth. And ideally when you make this new interpretation, the thing as a whole, we hope will work a little better. Rather than a little worse. And at least in this area that you are dealing with. And that is a guide, that is a guide and in that sense, i guess im pragmatic because i want to know how is it going to work. And is it go to going to further this goal or is it not. And if the goal of due process of law is fairness, is this going to end up treating people more fairly or less fairly. Do you find yourself occasionally looking at something in which you say the way the actor which lead to an issue coming before the Supreme Court, whether its a president or someone else, acted, i know that it was in the interest of something good, because i know that they had good intentions. And wanted to achieve a nobel goal. And maybe even a goal that i would agree with. However, if we allow this person to do it, someone might come along next time, a different president or different person, and use that right in an evil way and interpreting, quote weve got to put boundaries on that kind of thing. Of course, of course. That lead Sandra Roosevelt to administer the procedures act. He was, im sure, had very good things in mind. And his secretary of the interior had very good things in mind when they had something to do with oil. But the Supreme Court found that they couldnt even find the rule that he was following because nobody had written it down. The result of that was, of course, even if what he wanted was the best thing in the world, now you have to write it down or its not a law. And then a statute was passed saying just that. And thats one of many porntd points. If it isnt written down, if its not public, its not a law. And there have been many people in history who have had wonderful intentions. But whatever their intentions, i mean i dont think king johns intentions were so good. But if they had been good, he still should not have put people in prison. Except according to law. Thats the magazine that carta. His intentions whether good or bad, would still and should still be subject to those few words according to law. And might that apply to what Abraham Lincoln did during the civil war in terms of how he used the. Thats how we changed. And we have changed there. Abraham lincolns secretary of state called in the british ambassador. See that bell, he said . I can push that bell and have any person i want in new york turned into prison. If i push it twice, i can have any president , any person i want in indiana thrown into prison. Tell me. He said. Does the queen of england have such power . Well, you can say, and the court got involved after the war was over. After it was over. They said he had gone too far, after the war was over. After the war was over. But look where that leads us. Where that did lead us. That attitude. The say this according to frank furtherer, somebody has to run this war. Roosevelt or us. And we cant, so it better be roosevelt. Yeah. The consequence, 70,000 american citizens, japanese origin thrown into internment camps without any reason. And you would have to get the details. And i think if you do, you will see there was no reason whatever so ever. If you do not want. But the court. Hmmmm . But the court. Agreed. Agreed for the reason that black just said. Somebody has to run this war. But then you see, in the seal seize you are case, justice jack on jackson and the others said president tru man had gone too far, in korea, at the time of the korean war, in seizing the steel mill was congressional support. And who were they striking down, in my mind, they are triking striking down roosevelt. Hes gone too far. Now its easier to strike down roosevelt when hes did and you have harry truman,. Rose hasnt this court said that the president went too far. Yes, thats my point. Rose in executive power. Thats exactly my point. My point is that in the four guantanamo cases, what shifted away from cicero, away from abraham bin con in the 18,000 people, et cetera, they have said even in time of war, the constitution does not write a blank check to the president. No one likes those cases. Why . On the one hand, they say, you shouldnt have interfered. They know in congress and the president about your security. You judges know nothing. And to them, i point to karamatsu and say is that what you want . Ness others say you didnt go far enough. You should have said the details of exactly what you can do, you should have said you cant do this, you cant do that. I replied the reason we didnt go farther, why i didnt, i dont know the answer to all those questions. I dont know. And because were in a situation which is he volt offing, which involves terrorism throughout the world, which involves many other countries which are also democracies, what we need, i think, is what Sandra Oconnor says, but we have to have ways of learning. About what happens under that term security, terrorism, et cetera. And we have to have ways of learning what others do as well. So we can get that balancing question close to right. And thats why we dont jump in too quickly. And its also why we do jump in. Rose on that, on behalf of this audience, thank you so much. applause for more about this program and earlier episodes visit us online at pbs. Org and charlie rose. Com. Captioning sponsored by Rose Communications captioned by Media Access Group at wgbh access. Wgbh. Org rose funding for charlie rose has been provided by and by bloomberg, a provider of multimedia news and Information Services worldwide. On tomorrows pbs newshour the fight for iraq series concludes with the report from the front lines of fallujah. Plus a look at thissiers winner the following kqed production was produced in high definition. [ music ] its all about licking your plate. The food was just fabulous. I should be in psychoanalysis for the amount of money i spend in restaurants. I had a horrible experience. I dont even think we were in the same restauran