Transcripts For CSPAN2 Supreme Court Justice Stephen Breyer

I am Nikki Kennedy and on behalf of the edward m. Kennedy institute for United States senate im very pleased to welcome all of you to this very special edition of our getting to the point series. The candidate kennedy two dozen nonprofit, nonpartisan plays in vision and plans by my late husband senator edward kennedy. Its a place where visitors come now virtually as well as inperson to experience democracy their hands on learning about the United States senate and then use that knowledge as a touchstone to understand the branches of our government. Its also a place where we encouraged participatory democracy. In fact we just started to nonpartisan effort called just about and i encourage you to to go to our new web site called just go. Org but most important i encouraged you on november 3 to just vote. It is the most important thing we can do as citizens. This is a place where we work 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 demand for all time. 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 this 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 and the antitrust division of the Justice Department and was an assistant special counsel in in the watergate proceedings. He was a chief counsel of the Senate Judiciary committee and achieve something that is very special around this place. He was the kennedy staff alumnus. Teddy told me that more than anyone he ever knew steve breyer had the ability to explain most complex issues in the most understandable way and i do think one of the keys to his enormous power of persuasion from the First Circuit court of appeals to the United States Supreme Court Justice Breyer has made history on the most momentous issues of our time. We are faced with momentous issues and i think its 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 sympathy to all her family and friends and to all the members of the court. As Justice Ginsburg understood her loss created a vacancy and now theres a pitched battle for a nomination for a new justice in the midst of a hotly contested residential election and for an election for control of the United States senate. Yes these are indeed momentous times. There is a reason that todays 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 today to cant wait two to facilitate the conversation this morning we are so delighted to welcome r. A. Melber an outstanding lawyer in his own right, the host of msnbcs the beat. He received an emmy award for shifter porting on the Supreme Court. So we know well have a lively and informative discussion this morning. I thank you all for logging on and i know you are as eager as i am to get started so im thrilled to turn the program over right now to ari. Thank you its a great honor and as you say we will get right to it. I want to begin by welcoming Justice Breyer but first wanted to ask if you had any reflections you wanted to share about the passing of your colleague Supreme Court Justice Ruth Bader ginsburg. And taking a look i think we have Justice Breyer who i spoke to moments ago so i know he is here for us. I will speak for a few minutes a little bit what we are thinking about today with whats on the table for the country in and that voting has begun the Supreme Court which currently we passed into fullcourt so let me speak to that for a few minutes and let me know as soon as judge breyer is back. As i mentioned we saw him and i know hes excited to be with us. A few points on the court which i think are striking is we are in a time where the court is now eight justices instead of nine but his work continues. Indeed there are of slew of cases that come up across the country. There are appeals and requests made by litigants for the court bent the Supreme Court takes things on an expedited or emergency basis bridge is recently there is a request that was denied to Justice Breyer for example a case regarding whether or not to allow a new form of voting in a particular state as opposed to more traditional poll voting and the Supreme Court declined to hear that case in that example. Its something referred from quarter watchers and people keeping track of state local and federal elections which is a court one justice down could still be vital both in the rulings as well as whether or not they are rna cases that could resolve for address any potential contested election. Its a very interesting time in that respect. Theres also a lot of things i want to ask justice the three about honoring president s and he sounded the alarm in a recent case regarding the relatively arcane issue of when and how states can or cant be sued and the larger discussion that several justices signed up to which is what is the higher bar for overturning precedence and thats something we hear about in Supreme Court confirmation hearings and not lawyers and nonlawyers alike have that question of okay we have rules and we have precedence in it sometimes they change how and why. Thats something we definitely want to discuss and then more broadly to nonlawyers as well something well touch on ill ask Justice Breyer. A sling to senator kennedy. We are obviously here at the Kennedy Institute in thinking about that and this has been a time where the recent era has had Many National conversations about citizens law about the role of the different branches of government and what do cole equal branches mean what does it mean that we have a certain expectation . I believe we have Justice Breyer back in. I was just became to folks briefly and thank you again for doing this sir. Its a wonders of technology. That was a very nice introduction. Im so modest that my machine decided to break down. It technological and constitutional and accolades for their was speaking about some that things would get to and i know you were in and out so anything i will bring back up what you but i just wanted to make sure we reflect briefly and he did want to share about the passing of someone who is a deer colleague ruth bader ginsburg. She was a good friend. Oddly enough i was understanding that [inaudible] in the evening with my doddering grandchildren and at the end of the service there was a the prayer for the morning in the prayer for the dead [inaudible] [inaudible] when she decided thats the way it goes and [inaudible] [inaudible] hello . I can hear you just is but im having a little Trouble Holding on to you. If i take it downstairs at my work better. I will say this as we work through 2020 together asserted better at this moment than it was to moments ago so we will let you reset and we appreciate it. I was going to say shes a really nice person bridge iss a few weeks ago my son, we have a new grandchild and she sent him a president and the president was a tshirt which said future law clerk for rbg and she knew it. She looked into it and she said its probably too big for you but why dont you give it to your brother brian so she new about him so i go into my office and there on my desk is a birthday card from her which she has sent two weeks before and she said to my younger colleague underlined. We were sitting next to her at dinner she might not favor much and she said to me you know when she has nothing to say she doesnt say anything. She thanks and what shes thinking she is thinking. There was a little comparison she was making because she told me you know steven not every silence needs to be filled. [laughter] a good point but ruth she understood that. She was the kind of person the more you know her the more you like her. I mean my goodness she loved the opera. I called her three weeks ago and said for some reason theres some operetta takes place in boston she said thats the masked ball, Everybody Knows that pretty well i didnt know that. I really appreciate that an again i want to thank you for working with us through the technology could we can see you in here you. I think everyone appreciates it. Justice ginsburg brought attention after her passing for sharing through her family and her thoughts about how to fill the vacancy. This is a time where theres a process on going with that. 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 think about it, its true he told think about it. From time to time you think about it. Its part of the aging process. Its inevitable. And what you say, we stay out of politics and sometimes its very hard to stay out but the more the political fray is hot and intense and so forth the more we stay out of it. Of course we have to stay out of it goes the decisions we are making our decisions for 330 million americans and a lot of them, the people on both sides have to have the confidence that you as a judge are fair person. So stay out of unnecessary controversy and particularly political controversy. You know i were minder listeners and viewers that Justice Breyer has been on the court for 23 years and a legal scholar long before that so weak couldnt possibly go through even a portion of your work or opinions. You would be asleep. I want to read a little bit of one that lawyers and nonlawyers would like an tell us some of your thinking beyond the written word. This is on the case about the issue of when or how states can be sued. You wrote something that is a larger theme of how decisions were you wrote quote legal civility allows lawyers to give clients sound advice and ordinary citizens to plan their life and each time the quarter sferrazza case it creates uncertainty and he went on to write with your colleagues about why and you didnt think the president could be overruled. You warn judges may be tempted to seize every opportunity to overrule cases they leave at a wrongly decided but the lock and take that only if it persists versus the temptation only when the circumstances demand it and you one on two quote row versus wade to explain your argument. What do we take from this dissent and whats important for people to understand about the law . That it has to stay stable and if you overrule a case and i have joined opinions and if i had been deciding the case initially i may have decided differently but there we are and the temptation comes from the fact that after certain time and i say that because for three, four or five years either Justice Douglas to go around that building and you are frightened to death but you may not reveal it but you are. How do i know i can do this . I thought i could buy can i and after a while you calm down you say well maybe ill wont do perfect way but ill do it the best i can. And thats just a uniform attitude. That happens but what comes with that is the realization your predecessors are just human beings and they can make mistakes too. If i have an opinion that you think is totally wrong and you say well i mean here i am, it was wrong. I think im right, lets overrule it. You do that very often and youll 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 this one at that when soon clients will say what is a lot here and others who have even gone to a lawyer will say im not even sure where im supposed to do is go it will be a mess so dont overrule cases. But wait, what about plessy v. Fergus and what about brown versus board of education, what about the cases that correctly said that law of segregation is no good. Were they right to overrule back . Of course they were right. It was ringing in of bit of justice into an area where there was no justice and thats what the court is about. When they did overturn Plessy Ferguson it took ten years more before that legal segregation was actually dismantled, and it wasnt the court. The court may have started it and it may have been a catalyst, but it took Martin Luther king, it took the freedom riders. It took a thousand paratroopers sent from North Carolina to little rock, where they took those brave black students by the hand and walked with them into the high school in little rock where the governor was standing in the door. It took a lot. Now was it worth it, of course it was worth it. Of course it was worth it. We were getting back to the very basic idea of america. But dont generalize from that case that you should start overturning things all the time. Rare is the key word. Keeping the historical view this is something i want to know and i think other people do, tomac. When we read a case like this and people may take from that or want to take from that that its a warning about substance and issues on abortion, is that the right way to read that precedent or could you have cited a number of cases regarding this . You mean what was in my mind in that particular case. You know whats interesting whats in the judges mind doesnt really matter. What matters are the words on the paper, and its important for the judge not to forget that because its 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 your question. [laughter] i will admit and i mention for everyone, weve got some of the questions participants have sent in and some are probably things a sitting justice or judge would not answer, but its in the spirit of transparency i will read some of them and [inaudible] i want to thank everyone. We have several questions people have submitted. One of them is about the process, especially with a vacancy right now. Do you believe the confirmation process is appropriate and effective, do you have ideas for changes. Another person asking have you seen anything change or evolve in the checks and balances, do you have any thoughts of president trumps list of potential nominees now and for the future and should Vice President biden released a lift i will mention for everyones background, most have not done that but then candidate trump did release a list and more broadly because this is something i can imagine you cant speak to, you recently on behalf of the court to hear basically a question or appeal about a state using a certain type of voting mechanism ranked choice as opposed to a different type and i think many people are curious what the actual way Supreme Court and others do or do not even hear these kinds of cases as we get closer to an election. If theres anything you want to say on that. I will say a couple of things. One, the confirmation process. Its important to keep this in mind and ive said it probably 5,000 times. That is a political process insofar as nominating and confirming the judge is concerned. I wasnt the person who nominated me. It was the president. And i wasnt the person who confirmed me. I was in the confirmed person. It was the senate that did that. So ask me about that process i would say not too bad. Its like asking for the recipe for chicken from the point of view of the chicken. Thats a way of saying im not going to get into the political think but i say this to High School Students or College Students who are pretty cynical sometimes and i dont want them to be. Thats why i love the Kennedy Institute. Its trying to get people to understand and participate. But i will say to them look, i understand. Ive worked in the senate. I worked for senator kennedy. Its the best job ive ever had. I learned watching confirmations that senators by and large were asked the questions they think their constituents want to ask. They have a tie with those constituents and if they go too far, they are not going to be senators very long, are they . So do you think theres too much hostility, and do you think theres too much we are wrong, they are right, et cetera. Maybe there is and do you know how to stop that . The senators are going to reflect what you want, so youve got to stop it and the way you stop it is when you disagree with somebody, you talk to them about it. You talk to them about it and try to convince them. You participate. You vote, and you do it yourself and then maybe it will be catching and thats the system this document the constitution sets forth and why the First Amendment is there. You know where to look to begin. I said look in the mirror and start and get involved and participate and practice cooperation and compromise. I can go on about that at length. I think that is the key. The key isnt going to be in washington. The key is going to be in every city and town and state when people come to the conclusion they dont want all this hostility. At least thats my view of it. Host very interesting. With regards to where and how how does the court work. Five minutes i