Transcripts For CSPAN Supreme Court Justice Stephen Breyer D

At cspan. Org, or listen on the free cspan radio app. Next, Justice Stephen breyer talks about the role of the Supreme Court with msnbc chief Legal Correspondent ari melber in a discussion presented by the Kennedy Institute for the u. S. Senate. On behalf of the edward m Kennedy Institute for the United States tenant, i am a very pleased to welcome all of you to this very special addition of our getting to the point series. The Kennedy Institute is a nonprofit, nonpartisan place envisioned and planned by my late husband senator edward kennedy. It is a place where visitors come now virtually as well as in person to experience democracy. Through handson learning about the United States senate. And then use that knowledge as a touchstone to understand the branches of our government. It is also a place where we encourage participatory democracy. In fact, we just started a nonpartisan effort called just about and i encourage you to go to our new website called important, but most i encourage you on november 3 two just about. It is the most important thing we can do as citizens. This is a place where we want to invigorate civil discourse and inspire the next generation of leaders. I can think of no program and no speaker who meets every one of the goals that my husband had for this place more than todays special guest, Justice Stephen breyer. Without question, Justice Breyer is a man for our time and a man for all times. Here in boston, we are proud to claim him as one of our own. A graduate of stanford, oxford, and harvard law. He went on to clerk for Supreme Court Justice Arthur goldberg. He served for many years as a professor at Harvard Law School and taught at the Kennedy School of government. He was a lawyer in the antitrust division of the Justice Department and was an assistant special counsel on the watergate proceedings. He was chief counsel of the Senate Judiciary committee and that has achieved something that is very special around this place, he is a kennedy staff alumnus. He told me that more than anyone he ever knew, steve briar had the ability to explain the most complex issues in the most understandable way and i do think that one of the keys to his and normas power is persuasion enormous power is persuasion. From the in the United States Supreme Court, Justice Breyer has made history and been part of the most momentous issues of our time. We are faced with momentous issues again and i think it is fair to say without exaggeration, that we are in unprecedented times. We are still grieving the death of Justice Ruth Bader ginsburg and we offer our deepest sympathies to all of her family and friends and to all of the members of the court. Ginsburgstice understood what happened, her loss created a vacancy and now there is a battle for a nomination for a new justice in the midst of a hotly contested for anntial election and election for control of the United States senate. Yes, these are indeed momentous times. Todays a reason that speaker has attracted the single largest audience ever signed up for one of our programs. In the middle of the day, on a thursday, more than 2000 people are eager to hear what the justice has to say to the extent he is able. I, too, cant wait. To facilitate the conversation this morning, we are so delighted to welcome our ari anber, annexed outstanding lawyer in his own right. Received an emmy award for his reporting on the Supreme Court, so we know we will have a lively informative discussion this morning. I think you all for logging on, i know you are as eager as i am to get started, so i am going to turn the program over to ari, thank you. Thank you so much, thanks to everyone for being here, it is a great honor. As we say, we will get right to it. By introducing Justice Breyer, we will do many things, but i wanted to ask some reflect as you wanted to share about the passing of your colleague, Supreme Court Justice Ruth Bader ginsburg. And i am taking a look at i think we have Justice Breyer who i spoke to moment ago, so i know he is here for us, but i think he has stepped in or out of the zoom. What we will do then is i will speak for a few minutes a little bit about as well what we are thinking about today with so much on the table for of course the country, voting has begun in the Supreme Court which currently we mentioned with Justice Ginsburgs passing is a fourforecourt. Let me speak on the first units and i will let you know when Justice Breyer is back. As i mentioned, we saw marcel and i know he is excited to be with us. A few points on the court which is we aree striking in a time where the court is now eight justices instead of nine, but its work continues. Indeed, there are a slew of cases that come up across the country and as always in our system, there are appeals and requests made by litigants to the court to be taken up on an emergency basis. Just recently there was a request that the court denied through Justice Breyer for example to hear a case regarding whether or not to allow a new form of voting in a particular state where you would do ranked choice of boarding voting as opposed to more traditional first pass to pull voting. The Supreme Court declined to hear that case, just as their mind or something we have heard from people who are keeping track of all these elections. That is that a court one justice down can still be al both in the rulings or whether or not there are any big cases that could resolve or address any potential collect contested elections. It is a very interesting time in that respect, there is also talk which i want to ask Justice Breyer about regarding honoring president and how and when the court does depart from that. Regarding these relatively arcane issue of when and how states can or cant be sued, prompting a larger discussion that several justices signed onto about what is the higher bar for overturning precedent. That is something we heard about in Supreme Court confirmation proceedings, it is something lawyers and nonlawyers alike discussed because it is that basic question of ok, we have rules, we have precedents, and yet sometimes they change. How and why . That is something we want to discuss. More broadly, generally to nonlawyers as well, i think we Justice Breyers link to the kennedys having been counsel to senator kennedy as we are obviously here at the Kennedy Institute. Thinking about that, this has been a time where the recent era has had i think Many National conversations among citizens in law, in the press about the different branches of government. That we havean these certain expectations . I believe we have Justice Breyer back in, i was just speaking briefly, thank you for doing this. [no audio] wonders ofe technology, that was a very nice introduction, but obviously i am so modest that my did machine decided to break down. Technological and constitutional in i was speaking a bit about some of the things we can get to, i will bring that back up with you, i did want to make sure we reflected briefly and gave you a chance to speak for anything you did want to share about the passing of someone who is a Dear Colleague to every member of the court, Justice Ruth Bader ginsburg. Friend. She was a good enough, i was standing via service sh new in the evening with my daughter and grandchildren and at the end of the service, there is the prepare for morning, the for the dead. There is dancing and with an emergency i got in and [indiscernible] the thought ran through my mind [indiscernible] and my good friend, when she decided that is the way it goes, that is it. [no audio] [indiscernible] hello . I can hear the justice but im having a little trouble you are better now. Take it downstairs, it might work better. Workwill say this, we all through 20 20 together, is already better this moment than it was two moments ago. So we will give you a reset and we appreciate you. I was going to say, she was a really nice person. Just a few weeks ago, my son, we had a new grandchild and he sent him a present and the present futureshirt which said law clerk for our bg. Bg for grand. Yousaid is probably too big for you, so want to give it to you grandchild. I go into my office for the service for her and there on my desk is a birthday card from her which she sent a few weeks before and it says to my younger colleague. Underlined. You know, sitting next to her at dinner, she might not say very much. Say, shehas nothing to does not say anything, she thinks. Then, when she is speaking, she is thinking. I thought there is a comparison there that she was making because she told me, you know, not every silence needs to be filled. [laughter] rude. Oint, but reared she understood that, and she was the kind of person, the more you know her, the more you like her. My goodness, i will miss her. I called herra, about three weeks ago and said for some reason you are talking of some upper that takes place in boston, do you have any idea yes, she said Everybody Knows that. I did not know that. Oh dear. I appreciate that, i want to thank you for working with us to the technology. I will reiterate we can see you now and that is something we appreciate. Somece ginsburg drew attention here even after her passing through sharing through her family her thoughts about how to fill the vacancy. There is a time where there is a process ongoing without, do you think the justices do or should think about who will replace them and their retirement process while they are on the court . What are your views on that . If you say think about it, sure people think about it. Of course, from time to time you think about it. It is part of the aging process. It is inevitable. Politics andf sometimes it is hard to just stay out, but the more the hot, intense, is and so forth, the more it is we stay out of it. Of course we have to stay out of we areuse the decisions making are the decisions for 330 million americans. Some of them affect quite a few. The people on both sides have to have the confidence that you, the judge, is a fair person. So stay out of unnecessary controversy and particularly political controversy. I will remind listeners and viewers that the justice has been on the court for 26 years and a legal scholar as mentioned long before that, so we cannot possibly go through even a portion of your work or opinions. You would be asleep. I want to read a bit of one that i think lawyers and nonlawyers alike can learn from and i would love for you to walk us through some of your thinking because this is a treat yonder the written word beyond the written word. The case on the issue of when or how states can be sued. That i thinkething is an education in the larger themes of how decisions work. Legal stability allows lawyers to give citizens sound advice, each time the Court Overrules the case, the court produces increased uncertainty. And you went on to write with your colleagues supporting you about why, in this dissent, you did not think the president president should be overruled. Every opportunity to overrule cases they think has been wrongly decided, but, a lot can retain the necessary stability only if this court resists that 10 tatian overruling prior precedent, only when the circumstances demanded and he went on to quote some of the progeny of roe v. Wade. What should we take from this dissent . What is import for people to understand about the law . That you have to stay pretty stable. If you overrule a case joined opinions that did not overrule a case, and ive if ive been deciding the case initially i might have decided to really. The 10 tatian comes from the fact that after a certain time, i say that because for three or four or five years, you vote on that building and you are fighting to death. You may not reveal it, but you are. How do i know i really can do this . I thought i could, but can i . After a while you come down and say maybe i wont do it perfectly, but i will do the best i can. That is just a uniform attitude that happens. Yourcomes with that as realization that your predecessors were just human beings and they can make mistakes to. If you find an opinion that you think is totally wrong and you say, well, here i am. He was wrong, i think i am right, lets overrule it. You do that very often and you will see what happens. The lawyers will say hey, lets try a few others and before you know it they will be telling their clients, lets get this overruled or that one or the other one and clients will say what is the law here . Others who have not even gone to euler will say im not sure what im supposed to do and there will be a mess, so do not overrule cases. What about Plessy V Ferguson . What about brown v. Board of education . What about the cases that correctly said that a law is no good . , ofit right to overrule it course they were right. It was bringing injustice, it was bringing justice into an area where there was no justice and that is what the court is about. That is unusual. Dont generalize from the fact you can do it once then they can do it all the time, rare, and that is why you have to use the word rare. We do therules, sure, cases you will find 50 rules and the problem is they do not tell you. Ultimately, like many things, it is up to your own conscience, just be sure it is very rare. My goodness, when you realize what happened when they did overturn plessy and ferguson, it took 10 years more before that legal segregation was actually dismantled. And it was not the court that did it, the court may have started it, it may have been a , but it took Martin Luther king. It took the freedom riders. It took 1000 paratroopers sent to little carolina rock where they took those brave black students by the hand and walked with them into that high school in little rock where the governor was standing in the door effectively. It took a lot. Was it worth it . Of course it was worth it. Of course it was worth it. Back to theting very basic idea of america. But do not generalize from that case, that you should start overturning things all the time. Rare is the keyword. Legal andciate the american historical view, this is something i genuinely want to know. I think other people do, too, when we read a case like this see and people may take from that or wants to take from that that it is a warning about issues on abortion, is that the right way to read that precedent . Or could you decide a number of cases regarding you mean what was in my mind when i put that particular case . You know what is interesting . What is in the judges mind does not really matter. What matters are the words on the paper and it is important for the judge not to forget that , because it is those words on the paper that will be the guide to the future. You have to admit, that was a fairly interesting way of avoiding her question. [laughter] i will mention for everyone we got some of the questions that participants have sent in and some are probably things that a sitting justice would not spirits of in the transparency i will read some of them and some hopefully you can answer. I want to thank everyone, weve got several questions people have submitted. Is about the process and especially with a vacancy right now, one person right in, do you believe the confirmation process is appropriate and effective, do you have ideas for changes . Have youerson asking, seen anything change or evolve and how the Supreme Court provides checks and balances . Do you have any thoughts on president trumps release . Almond tential nominees for the future, and should President Biden released a list . I will mention most president ial candidates have not done that, candidate trump did release a list in 2016, that is an active discussion. More broadly because this is something i imagine you can declined you recently on behalf of the court to hear basically a question or an apeal about a state using certain type of voting mechanism as opposed to a different type. I think many people are curious what the actual way the Supreme Court and other courts do or do these kinds of voting cases as we get closer to an election. We call that may dealers choice as far as is there anything you want to say on any of the above . I will say a couple of things, one, the confirmation process. It is important to keep this in mind. I have said it probably 5000 times, 5001 is ok. That is a political process insofar as nominating and confirming the judges concerned, i was another person who nominated me. It was the president and i was not the person who confirmed me. I was the confirmed person. That, the senate that did and so asking me about that process, i say, it is like asking for the recipe for chicken a la king from the point of view of the chicken. Saying im notf going to get in that political thing, but i will Say Something because i say this to the students and i say this to High School Students to College Students who are cynical from time to time and i dont want them to be. That is why love the Kennedy Institute, it is trying to ge