Judicial independence, this is just over an hour. Thats a very bright light. Ladies and gentlemen, my name is mike hogan, assistant Vice President for development and human relations at jw law school. Its my privilege to welcome you all this afternoon to the fifth and final conversation with Supreme CourtJustice Steven bryer, arc of a great career. [applause] Justice Bryer welcome back to gw. I would like to extend welcome to gw alumni and friends and various members of gw alumni Advisory Boards that have joined us from around the country including california, arizona, illinois, new york and, of course, here in washington, d. C. Its now my great pleasure to introduce the dean of the George WashingtonUniversity Law school please welcome to the stage dean dana boeing matthew. [applause] so excited. Im going stay on script, though. Good afternoon and welcome im dana, my pronouns are she, her and hers. It is my great privilege to welcome you to this the fifth and final installment of this only gw experience. Amazing series would not have been possible so im already going off script to say thank you to our dear beloved alan morrison, the gw associate dean for Public Interest and Public Service law. He has been a friend of Justice Breyer for more than 40 years and he has been a friend to me and this law school for over 12 years. He has made it possible because of his deep friendship with Justice Bryer for us to hold this incredible oral history of this incredible jurist. And now its my great honor to introduce president alan. [applause] now you can read about the fact that she began her tenure at the 19th president of George Washington university on july 1st, 2023. And you can read her biography about the exciting academic leader that she was and is before she came here and you can also read about her scholarly work as a socialist. But you will not read and the thing i must share with you to introduce her is that we at the George Washington university are the recipients of accomplishments in my opinion. They have brought steady and wise leadership, not only during Turbulent Times but also during the times that we have learned to call joyful. They are smiles, they are fun and they are everything that this community needed. Please join me in welcoming our 19th president alan greenberg. [applause] good afternoon, everyone. And dana, thank you for that extremely kind introduction. I have to say this afternoon im more excited than i have been i think at any time at my time at gw because ive been admirer of Justice Bryer for many years, the idea that hes with us today is enormously exciting. And so it is my great honor to welcome Justice Steven bryer about illustrious career. This conversation will focus on the justices time on the high court and his new book, reading the constitution why i chose pragmatism not textualism. I know that we are in for a real treat. Most if not all of you know about the justices exemplary 28 years on the Supreme Court and many of you are aware that he served for 14 years on the court of appeals for the First Circuit in boston and was a law clerk to Justice Arthur goldberg. Less well known are his services in the legislative branch twice working for senator code kennedy on the Judiciary Committee and stint in the executive branch and antitrust division of the Justice Department and finally as an assistant prosecutor in the Watergate Special prosecutors office. Not to mention his time on the Sentencing Commission while on the court of appeals. Hes also much more than a lawyer having had a major role in the design and construction of the magnificent courthouse in boston while he was chief judge which led to his appointment to the architecture Prize Committee which awards excellence in architectural designs from around the world on top of this, he reads and delivers lectures in french which was not the language he grew up speaking in San Francisco. Justice breyer a man from all branches of government as well as a true 21st century renaissance man. Alan is completing his 15th year at the law school where he teaches civil procedure and constitutional law. His biography as well as just breyers are in your program. It is now my great pleasure to bring to the stage Justice Steven breyer and professor alan morrison. [applause] well, here we are. Here we are. Here we are. We have been going through let me start with the beginning of the time in 1994 when you went on the Supreme Court. You had been in court of appeals, chief judge, Sentencing Commission, clerk of the court, most people thought you were really prepared. When you went on the court did you feel prepared for a new job . What did i feel . Well, Harry Blackman my predecessor told me you will find this unusual assignment. Stark fear. Thats what everyone feels. Anyone who is appoint today the Supreme Court knows that lighting had to strike twice in the same place before youre appoint today the federal Supreme Court and you thought you could do the job, you thought so and then you were there and you wonder inside can i really can i really. I dont care how far back you two or when, whatever but somewhere within them, those first two or three years theyre wondering around thinking just that. And thats why david sutter said takes three years minimum. William douglas said it takes five years and you sort of adjust. Well, theyll just have to put up with me and ill do the best i can and thats virtually any job that you will get in any other profession. What surprised you the most ongoing on the court . That i was chosen. [laughter] thats the truth. I got to the court. Youre sort of on your own. There you are. You talk to people, you try to make it collegial, they try to make it collegial. I also want to thank you for doing it and the president we discovered we went to the same high school. Those were the days, i tell you. You think theyre not the great days but they are. Before you came to gw. Great. What was the most difficult part of transition to becoming justice . The cases and so much you had not seen before. The most difficult part actually is remember, 60 of the time, 40 of the time was unanimous and we are deciding cases like, you know, the comma. Internal revenue code means next word that was four, we did have a case like that. Did you get to write that opinion . Probably. You know they are going to be and there are quite vast areas of the law which you know nothing about, i know nothing about, and when i asked the bankruptcy lawyer and oral argument, you know, whats going to happen, what do you think will happen to the people in bankruptcy if we decide this way or that way. Im not doing that to show im doing something about it. Im doing it because i dont know and he does know more than i know about it. And its the questions are working well, they are exposing areas that we dont know and we think are irrelevant to case and the Council Knows about it. Do you have a justice who helped you in the beginning of time in the court . Its hard sandra and saved and tony to a degree, sandra we got along very well. Tony said what i was going to say, its so true. He was talking about Judicial Independence and they were saying, they were talking to us and end telephone justice, ending telephone justice meant that it was no longer going to be that the party boss would pick up the telephone and tell the judge how to decide. This was when yelton was there. And he said, you know, independence is a funny thing. Judicial independence could not be more important. But are you being true to the record . Are you trying to eliminate considerations of personal popularity. Are you deciding a case that it is not just picking up some cliche . Are you actually doing are you know when you are a judge that that is how you should behave and you know whether you are or not. He read the record brilliantly, the lawyer who lost the case will thank what an idiot, he wont say that but thats what hell think. All right, you do know. Other judges, lawyers, others may know the feeling but they dont know whether youre living up to it or not but you do and so you want to create conditions such and it isnt just something that you say in the newspaper editorial or something someelse that you really do it and youll see and youll know. I thought that was a very, very meaningful statement. But not a specific technical part of your job that was just some words of wisdom. Correct. And i think they were good. The technical part that i know that i will have a lot of cases to decide or be involved in and you have to you have to listen to the other judges on the court, you to listen that youre deciding independently and you have to somehow come to grips with this area or that area or the other area. And sometimes its easy. I thought Administrative Law and i think it was easy but, you know, thats going to happen, it does happen. And you just do your best. One of the most important parts of your case is which cases to decide the process. Did your use of the process change as you got on the court and evolved over the years . I mean, you think at the beginning there are basically 2 or 3 rules of take a case. The main base for taking a case which is probably 90 of them and if they have it should be uniform so probably we will take it and if they havent, why take it. Perfectly good judges and that explains most, almost all of the decisions to take or not take a case. And, of course, the lawyers know that and so they say theres the splits in the circuits and we have to look to see if there really is or not and how important, et cetera. We will almost always take a case if a lower court judge, if the lower courts that were reviewing hold unconstitutional, not 100 of the time but almost always. The third thing is harder because its some sort of important case. We think its very important. We think its important that there be a Supreme Court decision and it doesnt need the first criteria. Guantanamo or bush versus gore. We had a little disagreement about that. [laughter] i noticed that. Yeah. And so they thats a hard category. Of course. It was easier on guantanamo. Did you use to read the petitions yourself or mostly relied no, most of the time occasionally i would read petition and responses. So what we get is say on wednesday a stack of memos and they go through the arguments and so forth pretty thoroughly and they look things up that need to be looked up and they make a recommendation but theyll summarize it. Then i go through it like this and when i talk to the students about that i say i reduce it to Something Like that from say Something Like that probably in a couple of hours. I do it because i have the criteria that i just told you. I can see with this case is about very quickly. When i see what it is about that usually disposes of it. Quick you would come to the same conclusion. If you read them you would come to the same conclusion. I believe it. But, this is the stack problematic or whatever it is. Then, on the next day or two later we send a memo around the chief sends the memo we should discuss at our Conference Friday these. Theres a list there. Sometimes 15. And then anyone on the court can add anything. I was a junior for a long time the chances of something to add a nobody else did is not promising for the likelihood. Sometimes they would. When we get that list i go back and discuss help probably i will vote on friday. In the comments verse and we discuss is the status of the circulating cases. We have a list. Everyones name everyone has circulated those have not circulated can look and see. You think you have a list its probably true in the law firm to of what everyone is doing. It doesnt duty good everybody looks at his own name. That will spur things on. The second thing would do is the cases we heard that week for the third thing we do is the certs. The chief starts and said briefly names with the case is praise is no, no, no, no and we go around sometimes he says yes with ample discussion about it. If they vote to grant, oddly granted. The failsafe is that i hear someone Say Something and i had not paid enough attention to it will be discussing with the clerks and so forth i will say hold it over a week. Hold it over two weeks. You and keep going as long as you want. But if im holding it over then when i get back to my office, during the next week might clerks will look up the things that are questionable for a get their memo. Then i go back to the briefs. And if it is questionable in my mind i suspect the ones that are disposed up which is certainly most of them without much consideration. Without much thought. I suspect you would come to the same conclusion. I think so. Im not positive, but i think so. So it works fairly well because the strictness of the criterion wound or split in the circus before we take a case. You probably cannot do much harm by not taking a case. Except to the lawyer who filed the petition. Procedures houses client i find it very rare. You think youre more generous earlier in your career or less generous . I do. I do because she were more generous . I was more generous of the beginning. Thered be things out think perhaps rightly that i did not know anything about. And i am nervous about that. So i will lean more in the direction whether this is an issue or not. Youve seen things before douglas at three years and they begin to repeat. Not the exact same issue with the area. When they begin to repeat and you see is something youve been through. You have a view about it even if it is on the precise question right less likely to take it out. Can we talk about oral argument and how you went about preparing for oral argument and what role it played in your decision process . Oral argument, what happened now the lawyers begin to write. The lawyer wants to reverse the lower court decision. Read brief, no its great. The yellow brief, filed by the blue brief and thats the reply great is the solicitor general. Light green, anyone can write a brief period go shoot quite a few of these these days a lot more than it used to get. Groceries get five, 10, 15 and a case. Maybe five and over the whole number of brief 10 or 15. It could beat more. The right to die at cases close to 100 or Something Like that. I have a stack of briefs before oral argument oral argument is the first weeks of the last two weeks if ever, march, april. Monday, tuesday, wednesday, monday, tuesday, wednesday. By the leak before oral argument i have the briefs. They are a little pamphlet they are not brief i dont know why they call them briefs. [laughter] i dont want to read them quickly speak no award looms wos until the late 1970s word limits on the Supreme Court of briefs until 1970s. Really . Yes. It right to my office. To my desk. Now the decision process i thought of thats our time is really this. It isnt that my mind is a blank. By oral argument no. What happens is i read the question. I read i use that yellow brief first. The reply brief bit. Of course the same thing the blue brief it said it just says it in fewer pages so i read that first. [laughter] then ill go to the blue brief i read the question when it read the question i think i know the answer. I go through the brief, i said yes i did know the answer. Then i read the read brief not so fast. Not so fast. I will read the sg. Being open minded i suspect this is true it any important professional decision but does not involve you your self. The decision is not that your blanket minded. Being open minded is not to have a blank mind to okay it is to be willing to change when you see facts and you see arguments, it was really the other side. You can go back and forth that answers this question. Go look it up. Be sure they are right be sure this one is right or be sure that one is right or visit of the argument i thought of go look that up. You know but anything else in your memo that you want. Tell me how to cite it. I want you to think about these things. And so i will get a memo from them on each case there are four. Law clerk is a sign. Yes. I will get the memos. The week before a few days before event ive read their memos i have read the briefs and then i sit down with them. A very read the amicus brief is i hate to tell you this. But after a while you learn who is who is the association of manufacturers fails or brief their whole point is a show outside there on may beat their clients think thats a great thing it does not move me and it shouldnt move me anyway i certainly hope it doesnt. Its the argument in the brief. The csg of going to read the sg. I will read through who is writing and i try to get the ones that will be substantive and answer questions that are in my mind. I will go to the others were going to the others varies. I will pick it up, open the page. Click shoot read you dont read them online. No i read them thats my age. I dont read online. Click to the pandemic change you it all in that . Looks a cap shipping the briefs up to you . Yes but what the brief i have my pen in my hand i will underline some things that got it take out a thing down here in photo . I want to be sure. I cannot be one 100 sure because if i read to the table of contents i will always at least read the table of contents. The table of contest it tells me thats exact same thing the last brief said this is its cousin m. But i get a feeling that somethn their law clerks they be sure to look at that. Sometimes they do tell them you better look at that brief period i remember this two year