Rose has been provided by the following 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 docket and more on the courts future which hangs on the outcome of the president ial election. The seat held by late Justice Antonin Scalia remains vacant as republicans refused to consider the nomination of judge merrick garland. Stephen breyer has served on the court more than two decades, president bill clinton nominate. First named to the bench by jimmy carter in 1980. Served 14 years as a judge and later chief judge for fourth court of appeals in boston. Known for pragmatism, love for literature and arc deckture. His third book the court and the world was accomplished last year, exploring the world of foreign and interpretational law in american judicial decisions. I spoke with Justice Breyer at the 92nd street y here in new york city and heres that conversation. I begin with this book hes written the court and the world american law and the new global realities. It is an analysis of the role of the Supreme Court visavis the rest of the world, and we were talking backstage and, somehow, this book now in paperback, and you and i talked about this, is getting a resurgence. I hope so. laughter rose well, you know it is. Speculate about that. Is it because of our times . I think its not just here but in europe and other places in the world, there are a lot of people who are turning inwards not just in this country but in many places and theyre worried about that. Theyre worried because they see problems that face us that require us to turn outwards. So it might help, it might, to familiarize people with the kinds of problems that we have in one small institution, an 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. Rose yeah. Because if well have to, thats like someone said about economics, im not a great economist, but he said, in economics, that which has to happen does happen. Rose does happen. I mean, whats interesting talking about globalization and the antiglobalization movement that we saw in europe coming from, you know, the upheaval in the middle east and migration and some sense of people being feeling that somehow theres a tide of history thats against them. I wouldnt think it 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 if youre talking to a fifth grader, but law is one way of solving problems, trying to. Now, you want the alternative . Turn on the television set, and you will see what happens in countries that have other methods. Rose but there is a wave of populism thats feeding on the sense of somehow the forces of globalization have affected the way their future, their economic insecurity and the way they live. Yeah. Rose 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 youre here, at least, and if youre 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 watch word 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 constitution, but we have the authority in respect to civil rights and what happens when they clash. Rose right. There were many hundreds of years, perhaps thousands, when 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 cannons roar, the law falls silent. He didnt say that actually because the romans didnt have cannons. laughter that ruined the whole thing but you get the point. laughter look this has a long windup and a short pitch. Rose yeah. laughter the windup is adams, great man, put people in prison for what they say. Abraham lincoln put 18,000 people in prison. 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 in world war ii 70,000 citizens of japanese origin put in camps. Rose so whats your point . laughter my point is why does he want to know the point . laughter its such an interesting story. You always have to have a point . laughter the point is, in guantanamo, 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 whats 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 right . 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 not influenced. At least have the information because we cant rose okay. Aware of, appreciate information around the world . Right. Rose wherever it comes from. Right . Justice scalia differed from you on this. I dont know how much on that. Rose well, he said so to me. The cases he was most likely to say that in were 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. Rose yeah. She says theres a displacement. Youre angry at a, you blame b. All right, you might not have liked the result in those ases. Who does he blame . International law. What does that have to do with it . Thats poor b getting blamed for a. I think a lot of criticism comes out of that but thats sort of pop psychology. Who wrote the opinions which paid tremendous attention to briefs filed by lawyers from all over the world, case where is theres a plaintiff in uruguay, a defendant in holland, an antitrust case, and weve got to decide how american law applies or how does american law apply to Securities Law when you have a plaintiff, australian, who he wrote the opinion, is my point. I joined his opinion. He certainly looked to foreign law and what im trying to show here is there are many, many cases in many different fields. You cant avoid it. If youre going to decide that case correctly, im going to give you case after case, you have to look beyond our shores. Rose i want to come back to Justice Scalia and your opinion. Is the best opinion you ever wrote a dissenting opinion, majority opinion or a concurring opinion . I dont think thats up to me to say. laughter id say im not necessarily a good well, maybe the best i ever wrote i dont know. Ive written some majorities i was very pleased with. One of them was in this case involving a student from thailand who goes to cornell, and he december he discovers the same textbooks in bangkok, half the price. He says to his parents, send me a few. They sent more than a few. He began to sell them. Publishers got annoyed. Can he do it or not . Lawsuit in our court. The answer lies in a few observe secure word in a statute no one can understand very well, and we received briefs from all over the world. I ended up writing the opinion. I felt like 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 have to know. You have to know what else goes on elsewhere. Thats the majority. The assent is probably in the affirmative action case. I wrote an affirmative action case. I believe that affirmative action was constitutional. I was in dissent, i felt considerably stronger about it and spent a consider amount of time trying to show the constitution does not prohibit affirmative action, positive discrimination. Rose did your wife ever ever ever think your name would be in the same sentence with Kim Kardashian . laughter this comes about through teaching. You know, when youre teaching, what you do is you want to give an example that the class the s going to remember, and sometimes when im asking a question 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 please explain. But hell get the point. Rose 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 im saying, but i want the lawyer to get the point that im making, so ill 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 it sometimes happens more often than you would think the lawyers are there to help us, and were not saying whos the best lawyer. Were not saying whos the best client. The problem is interpreting some words in the 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 million or 320 Million People who arent in that courtroom. Rose hmm. So sometimes in an oral argument people sort of get going and the lawyers say, what do you know about this bankruptcy case. Whats in your experience . Youre a bankruptcy lawyer. Tell me what will happen if you do that. And you begin to get a conversation going. And when you get a conversation going in a courtroom, its on the merits, not having people taking poses or positions, you can make a lot of progress. Much of what we try to do is get that situation going. Rose before oral argument. You obviously have law clerks and you study the briefs. Yes. Rose 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 id put it, does it affect the way you think about the case. If youre looking for an absolute switch from x to not x, that happens but not too often. If youre looking for how do i think about the case, what are the words in that opinion going to be, whats the sort of main point, and which points do you deal with and which points are really not that significant . That makes a huge difference to the law, and the oral argument affects that quite a lot. Rose after 22 years, 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 souter said what im about to say, which is youre sort of frightened. Youre worried. How do i know i mean, where can people go if im wrong . Youre worried youre going to make a mistake. I thought i could do this, but how do i know i really can . And then after a while, you begin to think, well, for better or 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. Youre always on duty. And then you think, well, the most i can do is my best, and i think 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, asyou 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. 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 goes back to the question that you wrote, that you said whats the best opinion . Whats the worst opinion . Its mot not a contest or a gam. Its not a contest. You do the best you can, and its going to be up to other people some time 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 lubbock, texas, and they probably hadnt seen a Supreme Court justice. And we went on for about an hour, and 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, he says i think you have a method thats too rigid. I dont say 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. We talk 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. Its not so terrible in this country that people have different points of view on the Supreme Court. Its a big country. Rose do the justices of the Supreme Court agree much more and rule 90 more often than we imagine . In other words, is there more agreement that lets say you agree 70 of the time. No, 50 . Rose its 50 . Its 50 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. So i will say that to a university audience, law school audience, and they will say because thats our biggest problem, people think were Junior League politicians. Thats what they really think . Rose do they really . Yes, they think were Junior League politicians. Rose amateur politicians. I would say Junior League. laughter who i think tried to be a junior politician was roger in the case where he held a black person was not really a penn unbelievable but he thought he would help prevent the civil war, giving him 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 his decision, 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 taneys 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 i can explain that later, if you wish. Rose i do. laughter but i just talked last week in the chambers of the Supreme Court to Justice Ruth Bader ginsberg, and she said to me that, you know, she would like to see more of a conversation between the court and the congress. Its hard to fee get a conversation going. Rose but you understand what she means . Absolutely. Absolutely, because sometimes you can find something in a statute and say why did you shes written that rose or have them think about in a dissent because the complexion of the congress changed and the new congress i think this was ive forgotten the case, but the congress then changed the law yes. Rose because of what she or someone had pointed out in aties sent because there was a dilog. Yes. I think that is good but it is not easy to bring about. I think i worked in congress for a while on the staff. Rose the Judiciary Committee with ted kennedy . Yes. And i would guess they were on different time frames. See, we take things slowly, the virtue of were not elected. The virtue of having nine nonelected people. Hamilton said this in 79, but at the time they can think theyre not plaferl powerful, and he thought that, thats basically true comparatively speaking, but over a period of time, well think about something weeks, months. Youre a member of congress, you dont have a second. Theres a constituent in front of you, on the phone, emailing you or telling you something and that constituent is very surprised if you cant remember his or her name, and every single thing that he has or she has is a problem and having done about it yet, because after all you received the email yesterday, why havent you acted now . And its a very hard job and the time frame is different. Now, vandervandersaid because the court used to have its offices in congress, its what he said when they built this beautiful palace. Rose right. He said, i dont really want to move, no one will have heard of us again. laughter that turned out to be not quite so right, but he could talk to members of Congress Daily over lunch there, and he liked that. Brandeis said, i dont want to move, it will go to their heads. He was right about that. Rose Louis Brandeis said that yes. It is something absolutely aspirational. It would work much better and people tried different methods of bringing it about. Im saying its harder to bring about than you think but a very good idea, a correct idea. Rose are there any experiences or skills that you wish you had as a j