JOHN SHATTUCK: Good afternoon. And it is a beautiful afternoon. If you’re standing where I am, you can almost see Ireland out there. [Laughter.] Thank you all for being here today.
I’m John Shattuck, the CEO of the John F. Kennedy Library Foundation. And on behalf of myself and Deborah Leff, our Library Director, and Paul Kirk, who chairs our Board, I want to welcome all of you here this afternoon to the first in our series of fall 2004 Kennedy Library Forums, and to thank first our sponsors: Fleet Boston Financial, Boston Capital, the Lowell Institute, The Boston Globe, WBUR, and Boston.com.
This afternoon we’re going to take you behind the scenes and in front of the scenes of the Supreme Court, a place where our Kennedy Library Forums have rarely ventured. As you may know, Supreme Court justices are not generally noted for their approachability, but there are rare exceptions. And this afternoon we think we found one. Justice Stephen Breyer is known not only for his congeniality, but also for his intellect, a formidable combination of talents that has made him one of our nation’s foremost jurists.
In a speech at Harvard’s commencement in 1956, John F. Kennedy, then a young United States senator, noted that American popular culture was suspicious of smart people. In fact, he said, “So great has become this suspicion that a recent survey elicited from one of our foremost literary figures the guarded response, ‘I ain’t no intellectual.’” Reflecting on why this was so, Senator Kennedy quoted the philosopher, Sydney Hook, who wrote that “Many intellectuals would rather die than agree with the majority, even on the rare occasions when the majority is right.” [Laughter.]
Stephen Breyer made his mark not by fighting majorities, but by forging them. Whether in the classroom, the Congressional hearing room, or our nation’s highest courtroom, Justice Breyer is an eloquent teacher, an incisive questioner, and a great consensus builder. Stephen Breyer’s life as a scholar-activist-judge is in the finest tradition of the public service that President Kennedy was promoting to Harvard students in his commencement address. In fact, Justice Breyer’s career seems to hearken back to that golden era when, to use President Kennedy’s words, “Daniel Webster could throw thunderbolts in the Senate and then stroll a few steps down the corridor and dominate the Supreme Court, John Quincy Adams could become Boylston Professor at Harvard and then a great Secretary of State, and Thomas Jefferson could calculate an eclipse, survey an estate, tie an artery, plan an edifice, try a case, break a horse, dance a minuet, and play a violin.”
As far as I know, Justice Breyer doesn’t break horses or tie arteries, but I’m sure he dances minuets and plans buildings just as well as he writes his eloquent opinions. In fact, his career is filled with achievements that demonstrate the range of a remarkable public life. In a versatile career beyond the bench, Justice Breyer has helped design the new federal courthouse in Boston; played secretary general of a model United Nations when he was in college; served as a Watergate prosecutor; and later Chief Counsel to the Senate Judiciary Committee under Senator Edward Kennedy; devised a national plan for deregulating the airline industry; worked on a controversial streamlining of the federal sentencing process; developed a Senate policy barring federal judges from being members of discriminatory private clubs; turned down the deanship of Harvard Law School; and -- because I was there at the time -- the possibility of becoming president of Harvard when he was Chief Judge of the U.S. Court of Appeals for the First Circuit; and, last but not least, made it a regular practice of riding his bicycle to work almost every day, even after a nasty encounter with a car that prompted the leader of an environmental organization to say to The New York Times, “You’ve got to love a judge who gets hit by a car bicycling in Harvard Square.” [Laughter.]
Although the roots of Justice Breyer’s career is at Harvard where he taught for years after becoming a judge, he has long made clear that what goes on outside academia is at least as important to him and probably more so. In an article published when he was nominated to the Supreme Court, The New York Times quoted him as saying, “Life at Harvard is important, but it doesn’t affect 99.9999 percent of the people who get up, go to work, have to educate their children, and get their health insurance.” On the Supreme Court, Justice Breyer is known as a liberal pragmatist and a creative builder of coalitions. In last summer’s landmark decisions on gay rights and affirmative action, his opinions captured the votes of the majority -- the latest examples of how he has helped, in my view, to lead and protect and even expand civil rights in a deeply conservative era.
Justice Breyer is not the only leader on our stage tonight, as you all know. Nina Totenberg is America’s foremost media interpreter of legal affairs, and it is to her that we always turn to help us understand the mysteries of what the Supreme Court has done when it issues its Delphic rulings or even when it explains them itself -- just as we are turning to her this afternoon to lead a discussion with Justice Breyer.
Newsweek Magazine has said, “The mainstays of National Public Radio are Morning Edition and All Things Considered. But the crème de la crème is Nina Totenberg. Since joining NPR in 1975, Nina has been showered with awards for her coverage of Supreme Court nominations and Supreme Court decisions, including the Peabody Award, the George Polk Award, the Joan Shorenstein
Barone Award, and the Alfred DuPont Columbia University Silver Gavel Award. In 1998 she was named Broadcaster of the Year by the National Press Foundation, and the one I like best is that twice Esquire Magazine has named her “one of the women we love.” [Laughter.]
NINA TOTENBERG: I like it best, too.
JOHN SHATTUCK: I’d like you to join me in welcoming Justice Stephen
Breyer and Nina Totenberg to the stage of the Kennedy Library. [Applause.]
NINA TOTENBERG: Thank you all for being here, for coming out on this gorgeous day and allowing yourselves to be cooped up in a room instead of out there. But I think you’ll find that Justice Breyer is worth it. Before I start asking him questions, you’ve heard all of the wonderful things he’s done -- or maybe somebody might think not wonderful -- but the very auspicious things he’s done.
But I should tell you that he is a really nice man. And the story that I tell to friends -- I love this story -- is that we once invited Steve and Joanna Breyer over to dinner in our then new house, and we were getting ready for this dinner party of about eight people. And my darling husband put regular soap into the dishwasher [laughter], which meant that just as the Breyers arrived -- first to arrive -- we were having an “I Love Lucy” moment in the Totenberg-Reines household with the suds spewing out all over the place. And they walked in, and the two of them grabbed mops and just helped us clean it up. So that’s the kind of folks the Breyers really are.
JUSTICE BREYER: It’s nice having a dishwasher with bubbles (inaudible).
NT: So I think we ought to start out on a -- what they say in the news business is - sort of a soft note, and ask you, Justice Breyer, how things work at the court. How are opinions assigned? Are there deadlines for when you need to get your work done? How much influence does the Chief Justice have? Do you actually have debates in the conference or is most of your work done in writing?
JB: In other words, what do I do everyday?
NT: Yeah.
JB: I’m not sure I want to answer that question. I’d like to thank John, by the way, for a very nice introduction, and I’d like to thank you for being here. And if it gets a little dull, just look out the window.
Well, to go back to your question, what do I do every day: what I told my son years ago is if you do your homework very, very well, you’ll get a job where you can do homework the whole rest of your life. [Laughter.] It is basically a job of reading and writing. I have a word processor. I have four law clerks. I’m deluged with papers and with briefs. So the way I spend my time professionally is reading, writing, and some talking, less than in most jobs. And, indeed, our offices are quite far, one from the other. So if I want to talk to David Souter, for example, I might see him in the halls: “Hello, David” down there. You see, it’s sort of like the Swiss Alps. There’s quite a long corridor between him and me.
But our job, basically, is the following. Imagine the number of legal cases that there are in the United States. There must be millions. I usually say, “Well, our state judge here, Judge Riachus (?), told me there were 32 million cases in the United States.” Well, he said 20 million are traffic tickets. [Laughter.] But I said, “How do you know there are 12 million?” He said, “Well, I made it up.” But nonetheless, that’s approximately … I use that number sometimes: eight, ten, 12 million cases. And people say, “Yeah, a huge, huge, huge number.” And each of those, by the way, represents a failure for a system that should settle arguments between people by themselves first and maybe with the help of lawyers second. But some can’t be solved, and they get into court.
Now almost all those court cases, by the way, are state law cases. Every state has a system of law. We are a federal court, and so our system is the federal system. Those are the cases that we decide. That’s laws passed by Congress, it’s maybe federal administrative agencies, and the Constitution of the United States. Now that’s important. But I try to tell the school children who come, it is important. But actually, a lot of the law that’s important to you and your family -- probably all family law, all criminal law, quite a lot of it, education law, it’s made in the states, it’s made in the local city council. You want to make a difference to your community? You stay there and work there. What we do is in the newspapers a lot. But it doesn’t mean that is … It’s important, I agree, but it isn’t automatically the most important thing to the average person.
NT: But the folks here want to know what you have to say …
JB: I’m avoiding what I do everyday.
NT: Yeah. [Laughter.]
JB: What I do is I read and I write.
NT: I’m going to lead you through this a little bit. So a case comes. It takes four votes on the court to grant a case. Are there cases where initially there aren’t four votes, where somebody says, “You know, I really think this is important, and I want to be able to write something to persuade you,” that somebody succeeds in doing that?
JB: Yes.
NT: Obvious question is which ones, but I guess you can’t …
JB: No, you were very interested in particular cases, and I’m happy to tell you how that works. But I want people who aren’t necessarily directly in this process to understand that of these millions of cases, maybe there are -- by the time you get to the appellate process -- 80 thousand cases out of, let’s say, eight million cases which involve federal issues. And eight thousand of those ask us for hearings, and we hear about 80. See, now you get a picture. So what Nina was asking right off the bat is how do we go from 8,000 to 80? And the answer of how we go from 8,000 to 80 is to review 8,000 each year, which is about 150 or so a week. Our law clerks look through those 150. They’ll write memos. I end up with a stack of memos like this. I’ll go through those. Any one of us can decide to discuss any case, and maybe we’ll discuss 15 or 20 a week. And at that point, four votes means a grant -- four out of the nine.
And what she wants to know, which is a very good question, is do you go into that meeting with your mind made up, and all you do is vote? Or do you actually listen to each other and make a difference in those votes? And the answer is sometimes it makes a difference. I’m not going to say every case, by any means. And suppose I wanted to change somebody’s mind? The best way to do it is I’ll write a little opinion -- and what you see when we publish those opinions -- and it says three people or two people wanted to grant. Every one of those that you read is a failure.
NT: And are there ones we never see?
JB: Yes. That’s why I say success is when you don’t see it. See, the success is when I’ve written something, and I’m not writing for her and I’m not writing for you in that case. I’m writing for my colleagues; I’m trying to explain to them why they should hear this case. And if it’s a success -- and there are maybe every year a couple, anyway, one or two or three where we read what the other person wrote, and it changes somebody’s mind.
NT: Now a case is set for argument. And I’m going to skip over the argument for the time being and go to the conference which you have a few days later. You go around the table. How much of a debate is there, or do you just summarize your views?
JB: That’s a pretty good question. Here’s how the debate actually works. The conference takes place after the oral argument. The oral argument takes place after we’ve read a big stack of briefs. In this conference is really the first time in an organized way that we’re face-to-face with each other. The room is maybe a quarter the size of this room. A table where we’re alone. The Chief speaks first, and he says, “The issue in the case is thus and so,” and more or less explains it, and then says his point of view, which normally is accompanied with … and so I vote, I affirm or reverse. Then we go to John Stephens, Sandra O’Connor, Antonin Scalia, Tony Kennedy, David Souter, Clarence Thomas, Ruth Ginsberg, and me. And in each case, what we’re doing is we’re rather succinctly setting forth our views of the case.
Now we listen. Each of us is writing down in a book everything that the others say. We want to keep track. Then there will be some back and forth discussion. Now what sort of discussion? The key to that conference, in my mind, is that people say what they really think. They’re not just rehearsing some argument. It isn’t “I have a better argument than you do. Ha, ha, ha.” Once it degenerates into anything approaching that, forget it. It would get nowhere. You say your real view, and the other person, listening, takes in what’s been said. And if I have something to say that I think might make a difference under those circumstances, I’ll say it. So there is some back and forth. Does it often change people’s minds? No. Sometimes? Yes. And once we’ve all said what we have to say, we see where the majority lies and the person who’s senior in the majority will assign an opinion to be written.
NT: Okay. Now let’s say -- just for the sake of argument -- that the Chief Justice assigns the opinion to you or somebody else. As I understand it, there are times in the court’s history -- and I interviewed Justice O’Connor this year; she said she’d had this experience -- when people sit down to write an opinion and they say, “It doesn’t work. I’m wrong.”
JB: Yes, that happens; that can happen. It’s happened to me. That’s the virtue of a written opinion. That is the virtue of a system where judges have to write out their reasons. So often, what does happen often, is the view I might give of something at a cocktail party, or among friends or something, where we’re talking about some issues of the day, is one thing, and the view when you have to listen to the argument, read the briefs, think about it carefully, and then start writing, is often quite a different thing. Which is one reason, of course, why judges are careful about expressing themselves on issues that might come in front of them. What you say off the top of your head is quite often very different from what you’ll say after you really understand the issue.
NT: Could you speak for a moment of the matter of the strategic assignment of decisions? Few people noticed -- in the affirmative action case that was written by Justice O’Connor and the Lawrence v. Texas sodomy case that was written by Justice Kennedy -- few people noticed that the person who assigned those decisions was Justice Stephens, who would have been the senior justice in the majority. And certainly, he could have written them himself and gotten a lot of ink, as they say, but he chose not to for what are, I suspect, fairly obvious reasons. Are opinions assigned to hold majorities together?
JB: I am the Junior Justice. I’ve been the Junior Justice now for nine years. That makes me one of the oldest junior justices in history. [Laughter.] My job as Junior Justice differs from that of the others in respect to when we are in the conference. If someone knocks on the door, I answer it. [Laughter.] I’ve gotten very, very good at answering the door. One thing I am extremely unlikely to do while Junior Justice is to assign an opinion, because the only time I would be the senior judge on the side that I take is when I am alone. [Laughter.] Well, in that instance, I have assigned the opinion to myself. [Laughter.] So I’m not the right person to ask that question.
NT: Do justices ever lobby each other?
JB: No. Would I prefer it if the other nine agreed with me? I would prefer that only in every single case. Do the others feel the same way? Absolutely. Now what do you mean, lobbying? What I’ve learned over time is, of course, it’s helpful to have some discussions beforehand, possibly during the decision-making process, possibly after with other judges. I’ve also learned something, and I think it’s truthful, about human nature: if you go in and tell everybody else what you think, and why, that’s sometimes helpful. And sometimes they appreciate it and sometimes they don’t. The best way to have a discussion about something is to be interested in what somebody else happens to think. And, moreover, that better be genuine. Because if you’re faking whether you’re interested in what they think, there’s nothing that can be sensed so quickly.
So in those instances -- and there are occasional instances -- when I think I have something to contribute to person X that I wouldn’t say necessarily, because maybe I thought of it later. Around that conference table, I might go to X and say, “Yes, that’s …” But I find that’s rare, because I find it much more useful in a number of cases to see what different people are thinking, and it’s good to be genuinely interested. And when you see the kinds of cases that we decide, I mean it’s absolutely not cut and dried. They’re 80 cases out of the 80,000, out of the eight million. They’re cases that are in the Supreme Court, in all likelihood, because the lower courts have come to different conclusions on the same issue of federal law, so it needs a uniform federal law. There’s a need for a uniform federal law in a very difficult area of law. It’s not the case it’s so obvious I’m going to tell everybody else why. It is the case it will be helpful to find out what other people are thinking, and how they’re seeing the issue.
So I want to resist the temptation to say it’s lobbying. I want to say it’s not the case. In every case you go around talking to everybody, but there are, it seems to me, a significant number of useful conversations that members of the court do have with each other, where they’re trying to work out some of these difficult cases.
NT: When I started covering the court too long ago, there were roughly 150 cases every year, and I think that was true when you were a law clerk. Now there are half that many. Do you have any theory as to why?
JB: No, I don’t, actually. I don’t know why. It is true, and members of the Bar are interested in this. There are fewer and fewer … the number of cases we’ve decided a year, when I say 80, it was maybe 130, even 150.
NT: And there were fewer cases appealed then, too.
JB: That’s right. And so I personally … I was talking to David Souter about this question. And we both had the same instinct, that we think there could be a few more -- maybe a hundred; I wouldn’t want to have to decide too many more. But what we’re genuinely trying to do in looking over the cases to take is, we feel internally that we’re trying to get more grants. We’re not deliberately not taking cases. We’re trying to grant more. We’re not trying to grant fewer cases.
NT: When you were named to the court, you had been a judge for quite a while; you’d been Chief Judge. And I’m wondering, what about the Supreme Court was different than what you had anticipated?
JB: It is different. It is different. From a professional point of view -- so purely as a judge -- I think the main difference is that our diet, so to speak, the menu, the cases before us are heavily weighted constitutional cases. And that begins to force any judge on our court to develop what I’d call a view of the Constitution, how the different parts relate, one to the other. And if you go to what I used to have, and I certainly hope they still exist -- it was called my eighth grade civics class, and my eighth grade civics teacher’s, or maybe it was eleventh grade in high school -- I sure hope there are just as many now as there were then, but I’m sometimes not Certain … view of the Constitution … It is a democratic document put together to create a system so that with basic guarantees of fundamental rights, the people of the United States work out a way democratically to make their own decisions about how to live together, under law, in communities.
All right, that would have been the eighth grade civics text. And most of us learned that. And I’d say, “Well, yes, I learned it. I had to remember it and now I’m living it.” I mean there it is. The decisions that we make will, in fact, determine whether that basic purpose of the Constitution is more achieved, less achieved, works better, works less well. And all the decisions that we have in the constitutional area are part of that basic enterprise. So do I go around sort of loaded down with the burden of responsibility? Not that my shoulders are sagging. It’s part of the job. But nonetheless, we take it seriously. We take it seriously, it’s a professional job, we have differences of opinion, but we understand the nature of the task and we don’t get personally angry at each other. Maybe we do internally sometimes, but in that conference room, I have never heard a voice raised in anger. Never. I have never heard one judge speak slightingly of another. And that’s just as true of Bush v. Gore as it is true in a tax case. It’s professional. People have strong differences of opinion. Well, that’s what the country is about: people do have strong differences of opinion. And we try to work it out and try to figure out these cases as best we can.
NT: Yeah, but when you go back to your chambers, do you throw things? [Laughter.]
JB: Do I throw things?
NT: Or anybody else that you know of?
JB: You mean do I throw a temper tantrum? Do I stamp up and down and scream in a childish way?
NT: Or a not childish way?
JB: In a not childish way? No, I don’t scream. I don’t throw things. But, after all, you have only my word. [Laughter.]
NT: What I’m getting at is, you and every other member of this court repeatedly says how civil you all are to each other, but it would be almost inhuman, given -- since I read what you write -- to not expect that when you came back from some of these conferences you weren’t pretty ticked off on occasion.
JB: Do you think it’s going to do anybody any good to sit in the conference room and say, “My God, how important this is. Why don’t you agree with me?” I mean, people the other way would say exactly the same thing. You’re saying, do I go back … I’d say when you go back to your chamber, when you go home and talk to your family, everyone has his own way of expressing himself, and I would leave that up to each individual.
NT: I want to ask you about Bush v. Gore. Did you anticipate at the time of Bush v. Gore that it would come back in some permutations such as we are seeing now, or did you really think it was an anomaly, just a one-shot deal?
JB: This is the journalist’s “Have you stopped beating your wife?” question. [Laughter.] I mean she’s obviously thinking of the California case. Now insofar as you’re thinking of the California case, I had a question sort of like this -- where was it? -- the first circuit, one of the judicial conferences. And I said the only thing I could remember from my philosophy courses in college -- we studied the great philosopher Wittgenstein. I only remember one thing. The last sentence of the book said, “Whereof you cannot speak, there you must be silent.” Okay? That’s my reaction to the California case. [Laughter.] Now you want to go back to Bush v. Gore, it’s related to your other question. I can …
NT: No, I was just wondering just whether you really did think it was a ticket for this train only that was not going to come back.
JB: I wrote pretty much what I thought in my dissent, and I was in the minority in that case. I did not agree with the majority’s position on certain key issues, and I wrote pretty much what I thought. I thought it was unfortunate that we’d taken the case, and that’s what I said. And I thought it should have come out differently, and I said that, too. And so what kind of precedent it does or doesn’t set is something actually that is better addressed -- again, I’m ducking this question.
NT: You sure are. Let’s move on to a really less controversial subject: the war on terror. [Laughter.] Justice Jackson rather famously said that the Constitution is not a suicide pact. On the other hand, there are bubbling up now -- as there have in all other times of national peril -- there are bubbling up a lot of questions about what the limits of executive and legislative power are, or for that matter, of judicial power. And first of all, I wondered if you might briefly tell us which ones you think, one or two or three. We’ll get to the court first, and you must be thinking about this now, and these cases don’t come as a surprise.
JB: That’s true. I’ll stay alert to what’s happening usually through the newspaper, but I don’t know the answer to the question of what would come to the court first. There are cases in the … from Guantanamo, I think there are two involving citizens who are … perhaps one is from the battlefield in Afghanistan is being held, and then they’re other people being held. And those cases have been working their way through the courts and appeals. Now the way our court works is that when a petition is filed to hear a case, and then there is a response, that’s in the hands of the lawyer. There are time limits, but I won’t stay so closely abreast of it that I will know what those time limits are as applied to a particular case. It’s going to be up to the lawyers to decide which cases they want to pursue to the Supreme Court, when and under what order. And I actually won’t know the answer to that. I’m not being coy about it.
Because of the way we run our work, it’s like a train coming through with case, case, case, case, case. And we have a very organized and I think reasonably satisfactory way of deciding which to take. But they come in an order, with the briefs, with the memos, and at that point I know when in the week I’ll receive them and I’ll read them in an orderly way at a certain time, and separate them out, and give some to my law clerks to check out and come back, and so forth. So I can’t answer that question, because I don’t know.
NT: I’ve read what you’ve gone on in a number of fora about -- you’ve gone on at some length about how these questions will be resolved, how lawyers will take them to the court, how they will get a hearing and the court will agree with one side or the other. But I’m really wondering how they will get to the court in the case of enemy combatants. They don’t have a lawyer, per se; they’re being held incommunicado. In the case of Patriot Act provisions, many people will never know that they have been searched, wiretapped, observed, if they’re not prosecuted. So how, in fact, will these provisions necessarily be tested?
JB: I think the first set of cases, the people in detention, you are making a very important point, and I think it’s important for people to understand it. Our system is such that there is a way to bring the issues to the court. For example, suppose a person is held incommunicado. And I can’t imagine an instance really even now, practically, where there won’t be people who are interested in that fact: civil rights groups, relatives, others. So there is a petition called a Petition Brought By A Next Friend. Now the next friend has to have some particular relation to the person, not just be someone randomly off the street. But it’s usually, I would imagine, possible to find people who genuinely are the person’s friends or parents or have a particular interest. And they can file a petition in the court, a Habeas Corpus Petition. Habeas Corpus is a way, traditionally, of getting the lawfulness of detention reviewed. Now once that piece of paper is filed, the government has the right to come back and say, “We’re holding this person lawfully. But even if we weren’t, you cannot contest that fact in this kind of a procedure. This is the wrong procedure. You can’t deal with people on the battlefield in this kind of procedure.” They could say something like that, in which case there are two positions. The lawyer for the next friends, the civil liberties group, says, “Judge, you can decide this.” And the other side says, “Judge, you can’t decide this.” Now the judge will decide whether he can or whether he can’t. Now which ever way he decides on that issue, it can be appealed. And again, whichever way the Court of Appeals decides, someone can ask us to review that decision.
So there is a legal channel. Indeed, an ex parté query which took place in the middle of World War II, where saboteurs, including some American citizens in German uniform, landed on Long Island and were seized and were tried, it ended up in the Supreme Court, the Supreme Court reviewing the decision of the military tribunal. So it isn’t forecasting how the decision will go to say there is a legal route. The law … there isn’t a black hole where no law applies. There is law. Now how the law will be decided on that matter is something I can’t … It’s not because I secretly know. It’s because I’ve learned that when we get those cases, the best way to proceed is read the briefs carefully, consider the matter, discuss it, listen to the lawyers, and then decide. But it is important to see that this is a very ancient principle.
And it’s important because -- I learned this in preparing for lectures. See Cicero’s the one who got everybody into trouble. You say Cicero from the Roman republic? Yes, he’s the one who got everybody into trouble. How? Because he couldn’t resist a good phrase. He said, “When the guns speak, the laws fall silent.” That’s a good phrase, but 100 percent the contrary of our tradition. Our tradition is that no matter whether the guns are speaking or not speaking, the laws do not fall silent. Now what the content is may shift, depending on the needs of the moment. But we are a country of law, and that means there will always be a route. There is a route. I hate to say “always,” but there’s a route.
NT: But how would you do that? That makes some sense to me if there’s a body missing. If I’m suddenly not around and David starts looking for me and finds me in Guantanamo. But what about when the government looks through all of your email or wiretaps your phone or searches your house and you are never -- under the Patriot Act -- you’re never made aware of it, you never get to know that. So how do you challenge that?
JB: You have to find out that something’s happening. I mean, of course, if there is something that someone does that you never find out what it was, and there’s no indication anywhere it ever happened, then by definition there’s no way to challenge it. But if, in fact, the government does something that affects you and you find out about it, and it affects you adversely, there are legal ways of raising the issue. I used to be an administrative lawyer and I used to say sometimes to the Russian visitors that you won’t see this in our Constitution, but two very important rules of law, basically, in the administrative law area were: number one, if the thing isn’t published in writing, it isn’t a law. That means there aren’t secret laws. And the other one which I like is the phrase that says, “Anyone adversely affected … Anyone adversely affected or aggrieved by an action of the government may bring an action for judicial review.”
Now there are sometimes exceptions, etc. But even an exception can be litigated. So the correct view of this, I think -- I will repeat it -- we’re a nation of law. There are legal routes. And, by the way, if you want a quick decision, you can get a quick decision. You can ask for acceleration. And it might be denied; maybe they won’t have an accelerated hearing. Then you appeal that. Then you appeal that. Now you might lose on the merits of it, but the route is there.
I was in the First Circuit and we actually had a case that you read about and think is far-fetched: a woman had been seized by the customs and immigration authority when she was coming from the Dominican Republic, for some reason was being held incommunicado. And she actually threw a note on a rock through the window. And somehow that got to her husband in the Dominican Republic. He came over with the note, got a case into court, and she was brought and released. All right? That’s how it’s supposed to work. That’s the object of habeas corpus. That’s what we mean by a rule of law.
NT: I don’t think they did that much at the Federal Detention Center in Manhattan.
JB: Well, I don’t think it happens very much in that form, but I’m trying to illustrate a principle, and that principle is an important one.
NT: You mentioned a query case where in World War II the concept of military tribunals was upheld. And I’m wondering if you’ve given any thought to the whole question of what do you do when there’s a war that has no visible end? Most of the wars we’ve fought throughout history have an end at a time when armies stop battling, one side gives up. In a war on terror, that isn’t likely going to happen. If we win the war, it will just sort of eke away slowly, slowly, slowly, but there’s not a line of demarcation. So as time goes on -- and presumably, the threat to national security was felt most acutely immediately after September 11th -- but as time moves on, with or without further terrorist attacks, how do courts evaluate when a war is over?
JB: That is, I think, a very important question. I really think that is a good question. Because if you look at the law, as far as I understand it in this area, you have international law in the form of the Geneva Conventions, a well accepted law about how you treat prisoners of war in an ordinary war. That’s a model of how courts normally -- and not just courts, but other officials -- will behave in a classical, declared war. Now there’s another model. The other model that we’re all very familiar with is the criminal model of a person who walks along the street and commits a crime. There are well established ways of dealing with a person who is accused of a crime.
And what your question points out is that it’s at least arguable that we’re dealing with a situation that falls into the middle. And from a legal point of view, it may not be well worked out. Do you treat the person like the prisoner of war? Do you treat the person like the person accused of a crime? Is there some intermediate area? And I think this is very much the subject matter of a large number of these cases that are going on now. If I’m right about that, I would add only this: this kind of decision -- what model do you use; how do you mix the elements if necessary; what rules do we want in a democracy that rests upon individual rights and at the same time has very serious threats to security; how do we want to handle this? -- that is not necessarily a question for judges alone.
And what you’re seeing, I think, in the papers and in the hearings, in the discussions, from all different points of view, are people who are lawyers, who are civil libertarians, who are ordinary citizens, who are legislators, who are administrators, who come from a lot of different positions, who are worried about how to handle this situation and to work out these rules. I’m not surprised they’re worried. Of course, it’s extraordinarily difficult as a problem. All I would say is that the courts do not have all the answers either, and I think the system works best when there’s lots of discussion about this kind of thing. When people … for example, we’re not the first country in the world ever to have this problem. I think they ought to look abroad and see how other nations have handled some of this.
They have all kinds of different intermediate solutions to some of these problems.
NT: Can you name a couple?
JB: Well, I was just at a very, very interesting meeting with some judges from other countries, and they were discussing some of this. Britain has a rather interesting procedure where they give lawyers from a selected list to certain suspected terrorist whom they feel cannot be trusted to talk to any other lawyer, because some information will be revealed. Israel has a lot of experience with this. France does, too. Now I can’t say I automatically heard at this meeting of solutions immediately useful for us, but I do think at all kinds of levels -- not just judges, but lawyers and everybody who’s interested -- that the more we look around, the more we discuss it, the more in a sense we disagree with each other, the better the chance that at the end of the day we’ll have a system that intrudes upon our basic civil liberties no more than is genuinely necessary. And that’s a hard, hard, difficult -- I’d say at this moment it seems pretty hard and difficult to figure out just how to get there.
NT: Let me turn to, just briefly, since you raised it, the whole question of international law and what effect it should have, or does have, on American law. We in the press made a good deal of the fact that in the sodomy case, Justice Kennedy alluded to international human rights law. And I know members of the court go on a lot of trips to other countries to talk to judges in other countries, sometimes to help them, sometimes to learn from them. But in the administration there’s been a certain resistance, I think, to using international law in any way to impinge, as they would see it, on American law. What’s your view about whether this has a real prospect of ever being anything other than a nice footnote in Supreme Court cases?
JB: No, it’s not a nice footnote. Justice O’Connor, Justice Kennedy, Justice Ginsberg, I, probably have seen and talked to lots of foreign judges over the last few years. Not just abroad, they come here, too. And I would say the learning curve has a high slope. That is, we’ve learned a lot, and it isn’t all just one way, and it isn’t sitting around a room anymore, anyway, and just saying, “What I do in my country,” -- sort of like, you know, “my day at camp.” That’s not what it is, as what we’ve seen, and I think I’ve seen it more and more over time. Six years ago I talked on this subject at NYU, and I said that we could learn from other countries it seemed to me. And a professor said … I said, “There are lots of examples.” He said, “Name one.” It’s called a hostile question. But I found one, but it wasn’t easy. Today it’s not hard. It’s not hard.
Indeed, Justice Kennedy did refer to, in this case of the sodomy case -- Lawrence -- he did refer to a decision of the European Court of Human Rights for the majority. Indeed, in the affirmative action area, there are plenty of other countries that Justice Ginsberg wrote about that have experience with these problems. There are problems of religion and schools in many of these countries. Does that mean what they’re deciding in other countries binds us? Of course not. Of course it doesn’t mean that. We’re interpreting an American Constitution. That’s American law. And American decisions are what make the difference legally. But when you see other countries who have similar problems and similar legal documents -- i.e., constitutions that in Europe or in India or in Japan or in other places are also protecting freedom of expression -- well, they have similar problems, similar documents. Of course, one can learn something often, or often enough to make it a worthwhile exercise, from the way they’ve responded.
Now what I find interesting -- and one, in this respect, is the campaign finance case -- we got a brief on one side that talked about practice and the tension between campaign finance laws and free expression in Europe. And we got a brief on the other side saying that what the first side is saying about that is wrong. Great, wonderful. I’m not saying who’s right and who’s wrong, but I’m saying that the Bar, understanding that there can be relevant experience that’s helpful outside these shores, where they find it useful and call it to our attention, fine. It’s not going to bind us, like so many other things. I think we need help from wherever we can get it.
NT: I want to ask you about the affirmative action cases. In those cases, Justice O’Connor basically said to American higher education that in the court there are certain parameters for doing this. You may do it, but basically you’ve got 25 years to do it. And to some people that sounds like a long time. I think I know that you don’t think that’s very long at all and that we better get with it quickly.
JB: Well, that does say 25 years. But I think the opinion was suggesting -- and certainly there was quite a lot in the briefs on the pro-affirmative action side that suggested it -- that this is a problem, that eventually the need for affirmative action has to gradually disappear over time. And the things that affected me in reading the briefs on this particular point were briefs that made pretty clear, in terms of statistics, that -- I’m sure this is a controversial statistic, but if it’s even close, it’s not too happy -- and that was that in many of the inner city schools, if you look at the inner city schools you will see, in many respects, there is more segregation today than there was 25 years ago. And if you look at the resources and amounts of money that are being funneled into the problem of K through 12, it’s certainly pretty understandable why there is a considerable need now in the elite universities for certain kinds of affirmative action, and why that need won’t go away, in all likelihood, unless the K through 12 problem -- and I shouldn’t call it the K through 12 problem; I should call it the K minus 3 through 12, because you’re talking about two, three, four year olds sometimes, who really have to be brought into a situation where they can learn. And you see cause for tremendous optimism where they’re brought into that situation. And if they’re not, there’s no cause for optimism. I say if, in fact, it’s 25 years, and if it has to start at K minus 3 through 12, I guess we have 10 years or 12 years to get the programs in place.
So if you have 10 or 12 years to get the programs in place, then I guess we have five years to get the model programs in place, and that means we better start preparing the financing in three years, and that means that we better start the political will in two years or a year. And this, of course, is just a personal opinion, not as a judge. And it is a personal opinion that grows out of my experience reading these briefs, however. And so that is why I think there’s nothing at all in that opinion that should lead a person to think, “Oh, this is problem I don’t have to think about until …” I’d say, “Yes, you have to think about it. It gives you a period of relaxation not to think about it until tomorrow.” [Laughter.]
NT: Before we go to questions from the audience, I wanted to ask you about something that you’ve dealt with both as a judge and as counsel for the Senate Judiciary Committee. Some have referred to you as the father of the sentencing guidelines. And I wonder how you think they have worked out. A lot of members of your court, some one might have anticipated -- the Chief Justice, Justice Kennedy -- have criticized attempts by Congress to make the sentencing guidelines yet stricter. And yet those same members of the court upheld this term, terms of 25 years to life for what are sometimes quite trivial crimes, in the case that was before the court -- shoplifting. And I wonder how you think they’ve really turned out. Did they turn out the way you hoped?
JB: The hope for the guidelines is -- and I still have that hope, because I always have hope -- the hope for the guidelines was, in the criminal system, there was far too much disparity. That is, the judge, a very excellent judge in Boston, they come into my office and say, “Of course, I know how to sentence a bank robber.” And when I was in Texas, I’d sometimes hear the same thing from a similar excellent judge. They both know how to do it, but they come to very different results. And we saw that a lot, a lot of disparity. And the system was also not transparent. The judge would say 12 years, but there was parole so that it only meant eight years, or maybe four years, and you weren’t quite certain what it meant. And so the judge decides, “I really want him to go for 12, so I’ll sentence him to 24,” and then the parole board fools him and he’s kept really there for 24. It was a fairly good nightmare in terms of transparency. So the object of the sentencing guidelines is honesty -- the sentence given will be the sentence served -- and it was uniformity.
But in addition to the complexity of trying to carry out that project, there has to be oil in the gears. There has to be, I think, in any system of law -- whether you’re talking criminal law or civil law -- there has to be room for the unusual or exceptional case. There has to be some way of, when you find a person in the criminal law who may literally have committed the crime and so forth, but for special reasons, that person should not have that long a sentence, or a person who should have a longer sentence because there’s something absolutely horrifying about the way he did this. Well, there needs to be room for flexibility. So sentencing guidelines were set up with an idea of uniformity in the average case, but non-uniformity in the special cases. Now into that act stepped Congress, and Congress passed a number of statutes, and is continuously doing this where they say there is no room for flexibility on the down side.
Now in my mind and that of Justice Kennedy and the Chief Justice and others on our court, we feel we can say something about this because it is in an area of our responsibility, criminal sentencing -- that is not a helpful thing to do. It is not going to advance the cause of law enforcement, in my opinion, and it is going to set back the cause of fairness in sentencing. So that’s what you’ve seen us be against. Now the reason I still can be optimistic about the guidelines is because I think while that monkey wrench has been thrown into the gears, it’s not there permanently. And maybe if people on all sides of this criminal justice field, whatever their background is, begin to see the harm -- which I think they will -- that mandatory minimum sentences brings about, Congress can, of course, pass fewer of those sentences, though what Congress passes as law is up to Congress. But I just think these mandatory minimums are bad policy.
NT: Bad policy because they are unfair? Bad policy because they don’t, in fact, make there be less crime? Bad policy, why?
JB: Oddly enough, both. Because, of course, it’s not that difficult to think of a person, say, lying in a dock somewhere in a foreign country, and somebody says, “Here, will you please take the keys to the car and drive across the border. I’ll give you $300 dollars,” and say, well, a mandatory minimum for that person, the rest of his life in prison, say. That sounds quite severe. Say, “I’m not quite certain that that’s the right sentence” -- and there would be flexibility under the guidelines. But not under the mandatory minimum. Now you say, “Well, what about from the law enforcement side?” Interestingly enough, the Sentencing Commission did a fairly elaborate study where they showed that in the cases where the law absolutely forbids downward departure -- i.e. the mandatory minimums -- there is more departure downward than in the cases where they have the flexibility to do it.
NT: Say what? How could that possibly be? You’re saying in the cases where the law says you can’t go down, they’ll do it more often than in the cases where it says you can?
JB: Yes.
NT: Why? How?
JB: Because you find if the situation gets too absurd, a jury won’t convict the person. Or you find that the prosecutor and the defense attorney might work something out so that they charge the individual with a totally different crime, one he didn’t really do, in order to get the lower sentence. Or you just discover somehow people not being totally straightforward in something happening. But insofar as departure happens in that way, of course, it happens randomly, it happens in ways that can hurt the criminal justice process, and it happens without any particular rhyme nor reason to it. So I would say -- and I say this deliberately - that those who are interested on the law enforcement side I would hope would read those studies and would either correct me, that I’m wrong, or take to heart if I’m right in my characterization of it. And that’s why I think from every point of view, they’re not helpful.
NT: Finally, before I let somebody else ask a question, Justice Scalia is probably the country’s most vocal advocate of what’s come to be known as originalism, which he describes accurately as his view that the Constitution means what the Founding Fathers said it meant at the time when it was written: no more, no less. The words mean what they say. You are not a proponent of originalism. I don’t know if there’s a word of what you would call what you are. What is your view?
JB: I hope I have first shot. [Laughter.]
NT: You have first shot. You said that being on the court forces you to a view of the Constitution. What is -- in the most overarching sense -- what is your view?
JB: In the most overarching sense, it seems to me -- and this is my own characterization of my own experience there -- that judges, including Justice Scalia, including any other judge who is faced with a difficult constitutional question -- look basically to the same kinds of sources. You’ll look to first the text; you will read the language. The language doesn’t always answer the question. The language might be “No person can be deprived of liberty without due process of law.” That word liberty doesn’t explain itself. But you will look to the language.
Over the course of time, rarely will precedents answer the question. After all, if it did answer the question, what is the case doing in the Supreme Court? Usually there is a great deal of uncertainty about how that precedent applies, but will you look to it? Of course. Every judge would look to precedents. You will look to the value, it seems to me, underlying that constitutional term. That’s another way of saying, “Well, what did the framers intend?”
But it’s somewhat more immortal than that. I mean the reason it says “no unreasonable searches and seizures” is because the framers didn’t want people in the government interfering arbitrarily with people’s personal lives and their privacy of themselves and their possessions. That’s a value. And you will look to the consequences. In my opinion, you will certainly look to the consequences of how one interpretation or another will affect, say, millions of people throughout the United States who will have to live under one interpretation or the other. You will look at those consequences, judge in terms of the value. So we will all look to text, tradition, history, precedent, value, consequence. Now I think that this great argument, which is sometimes overstated, between this person or that person, some people put a little bit more weight upon history, on tradition, in the difficult cases. And some put a little bit more weight on consequences. And I would probably be among those who put more weight on the consequences.
NT: So we could call you a consequentialist?
JB: Probably. That has all kinds of intellectual baggage, in some respects. I don’t know.
NT: I would urge anybody that has a question to go to the microphones, which are over there.
Q: It’s so hard to think of a question that you could actually answer.
NT: That’s his purpose here. He didn’t want to make any news.
Q: One of the questions that came up in the Lawrence case, the sodomy case, is the perennial question about the role of public morality, popular morality in legislation. It was asked in the case; it wasn’t really answered. I think we probably all think we know the answer, which is, “I know inappropriate morals legislation when I see it.” But I’m wondering if you can give us a sense of what principle might distinguish between cases in which public morality is appropriately codified and cases in which it’s not?
JB: That’s a good question and a rather deep question, and I’m not going to have a particularly good answer to it. But what I found interesting in Lawrence -- and you have to check if what I say is not the same as the case; it’s the case that governs, not what I say -- but my impression of that case is the argument was both that the individual human being who is being prosecuted is being prosecuted for something that’s very personal to him: his private life, his sexual behavior. And the argument against it was not that he hurt himself, not that he hurt anyone else in the community, but rather that it was contrary to a certain moral principle, which moral principle did not itself encompass a need to prevent harm to himself or others.
Now in that context the court said that argument for morality -- which does not have to do with what morality often has to do with, namely, human harm -- but that kind of argument for morality, not to do with human harm, is not good enough to justify the harm that this law would inflict on the individuals by regulating their sexual conduct.
Q: Mr. Justice, I’m curious. This is not a deep question at all; it’s a broad question, but I’m going to ask it because I’ve always wanted to have the chance to do this. As an insider, to what degree are the justices influenced by the daily news, the weekly news, by the journalists, if you will, in terms of pressure that they might feel in arriving at their decisions?
JB: The ideal is zero, of course. And that is important, and it’s closer to zero than you might think. I mean the fact is that the reason, I think, that the framers set the system up that they did -- a system where once I’m confirmed in this particular job, it’s very hard to get rid of me. I mean Jefferson said, years ago when he was president, he said, “The trouble with the Supreme Court is they never retire and they rarely die.” [Laughter.] So it does, in fact, since we know that the job is to be independent of public opinion, not be swayed by whether it’s a good headline or a favorable or unfavorable headline or public opinion in the press. Now that’s in the sense in which I think it doesn’t influence us, and shouldn’t.
There is a sense, of course, in reading the newspaper, where it should influence you. Suppose you learn that, my goodness, by doing this or that, it caused this terrible problem over here? Well, I’d factor that in for the next time. But it isn’t the fact that they’re writing it in the newspaper. It’s the fact that newspapers can be a source of information which is directly relevant to the consequences of the particular decision. And as I said, I tend to think that those kinds of things are relevant. But you don’t sway with the winds of public opinion. I can’t guarantee everybody’s always perfect. There are nine justices on the court; they’re nine human beings.
And, of course, it’s a very interesting job. You know, I always liked Ken Galbraith’s statement. Somebody said, “How did you find your job as Ambassador to India?” “Oh,” he said, “it was fabulous. I found it so interesting, I didn’t think of myself for seconds at a time.” [Laughter.] So I mean there is human ego, and then it’s not always easy to escape it.
Q: Your Honor, after the Gruder opinion, do you think that the equal protection analysis has changed in any way? Or specifically, has strict scrutiny changed in any way?
JB: This is a very categorical … it’s interesting, the categories. And I tend to treat the categories as important, but instructive, and not necessarily perfectly binding. So I’m not a good person to ask that question to. I think that Gruder, I went along, really …
NT: Gruder is the affirmative action case.
JB: The affirmative action case, and I thought it was a very important case. I think it was correctly decided. And what the implications of it are, I guess we’ll see.
Q: Your Honor, I recall from grammar school, being taught that only the Congress can declare war. Now, we’ve gone about 60 years since we tried that route. If that bothers you, what can be done about it?
JB: Well, I’m not going to, again, have a great answer, because normally there are doctrines of constitutional law -- and that’s why I so often have to qualify what I say -- that usually keep the courts out of adjudicating the questions of war and peace and major political and international matters like that. So to my knowledge, that direct question hasn’t come up to the court, so I wouldn’t have an informed answer. And my suspicion is it’s pretty complex.
Q: Your Honor, my question deals with influence, not in the general press, but elsewhere. You were a clerk for Arthur Goldberg, who was on the Supreme Court.
How did he influence you, what did you learn from him, and who influenced him?
JB: Now, I’m not sure we’re influenced. I loved Arthur Goldberg. I thought he was a great man. I was his clerk. He kept up with his clerks in the years. And say, “How does Arthur Goldberg” … I’ll tell you; I’ll give you an example of it. I went to a college called Randolph College in Virginia sometime, a year or so after Bush v. Gore, and Arthur Goldberg’s papers, some papers of his had been left to this college. And so I went out there for the ceremony, which was very interesting.
We were talking. The students, one of them, somewhat hesitantly said, “Well, can I ask you a question about Bush v. Gore?” I said, “Well, I’m not sure I’ll answer, but go right ahead.” He said, “Were you disappointed?” I said, “Yes.” I said, “I was disappointed. I was very disappointed. And I’m often disappointed. Quite a lot, I’m in five-four, so there are quite a few cases, it’s a dissent.”
So I said that what I do is I will write this dissent. As I say, it’s not necessarily to persuade you at all. It’s to persuade my colleagues. And I’ll say to Joanna, “This time, you know, I’m going to persuade them.” And she’ll say, “I heard that one before.” And the next time I say, “Fine. This time I will.” Well, well, okay, and I will. And if I don’t this time, there’s the next time. And then there’s the time after that. And I think, my goodness, stop complaining. You have a lot more to decide and a lot more cases in which to write opinions that may start as a dissent and may end up as a majority. You start feeling sorry for yourself because you lost that case? Go somewhere else. There’s a lot to do. And I say, who would have told me that? Arthur Goldberg.
Q: I have a question based on the evolution and powers of the Supreme Court, based on a question that Nina had asked, which was why does the case load seem to have been reduced? And I’m wondering if, in part, it’s a result of the nature of what you’re doing ? The Supreme Court started off arguably the weakest branch, hearing civilian cases, moved on to federalism issues, issues among the states.
And now …
NT: Now it’s back to federalism issues.
Q: In part. But also, more issues of fundamental rights, I think, than originally heard. I mean cases like the sodomy case, right to privacy, issues that are beyond, I think, what the founders originally intended the Supreme Court to do, and has slowly evolved. And I wonder what the Supreme Court, what it’s going to look like in the future, and whether you think in part that’s why you can take fewer cases?
NT: I’m going to augment this question, though. The problem with the question is that when you were a law clerk, that was the period in which the court was having twice as many cases. And it was deciding little cases like Brown v. Board of Education -- you know, those were big, consequential cases -- and Baker v. Carr. And so I still am not …
JB: Well, it’s important to start with the idea of what’s in my mind, of why we’re taking a case for decision. The reason that I’m going to vote to take a case is because I think it is necessary to have a uniform rule of federal law on this topic.
Now that means that by and large, if the lower courts have split on the same issue, I vote yes, and by and large, if they all think the same thing, I’ll vote no. Because after all, if they’re all of the same opinion, what need is there for us? Jackson said years ago that, “We’re not final because we’re infallible; we’re infallible because we’re final,”and no one knows what that means. But what it’s supposed to mean is we do not have the last word because we’re so brilliant. Of course, we think we’re brilliant. But the reason that that brilliance is there, it’s only in the sense that somebody has to have the last word. So if the lower courts all agree, normally, what reason for us? And if they disagree, us.
All right, now, that can be true of the interpretation of a comma in a tax case. That can be true of a question of a statute of the most boring ERISA-type kind. And it can be true of these big questions of civil rights. Forty percent of our cases are decided unanimously. The number of five/four decisions ranges around 20 percent sometimes -- some years a little more, some years a bit less. And I’m not always in the dissent, either. They don’t always break down the same way. And so it’s a complicated mix of cases. Now you’re pushing on why are there fewer? I tell you, we’re not trying to take fewer. There are different theories of it floating around. One is, well, when Congress passed a burst of civil rights legislation, when Congress is actively legislating, when in the 1970s they brought into civil rights statutes a regulation of NHTSA -- the highway traffic safety, OSHA -- the occupation safety, EPA -- environmental regulation, all of those statutes came in within a fairly short space of years. Every statute has words; every word has to be interpreted. And so after a burst of legislative activity there are a lot of cases for people to disagree about, and they tend to find their way to us. Where there’s not major new legislation passed or there’s less of it, the number of cases is fewer. I think that’s a plausible theory. But remember, I don’t have the answer to this. Ask me about this kind of thing, I usually say that’s like asking the recipe for chicken a la king, and you ask the chicken. [Laughter.] I mean I’m on the inside. I can tell you how it feels subjectively, but I don’t know that.
Q: Mr. Justice, I hope you answer this in the overarching philosophy that Ms. Totenberg suggested, because I know you can’t answer it specifically. But the First Amendment has endowed me a precious right of speech, and Rupert Murdoch a precious right to publish his speech -- both of which keep our society free. If there’s a law that allows Rupert Murdoch to endorse Bush a week before the election, but doesn’t allow me in a newspaper or other piece of the press to do the same through paid advertisement, doesn’t that impede my free speech and give him greater speech?
JB: You have very well stated one of the significant arguments in the campaign finance case. Now I’d say, is that an argument in the case? Absolutely. Is it the only argument? By no means. This is a highly complex case. It involved a lot of arguments of that difficulty and others. And we heard four hours of oral argument on it; that’s very unusual. We normally hear one hour. We got a series of briefs over the summer that was quite high. We had opinions from the District Court on this that amounted to about 14 or 15 hundred pages, and we read them. So now the case is under submission, and we’ll find out the answer as to whether and to what extent we’ve accepted arguments like that, or others, or rejected them, in some period of time from now. And that’s the best I can do.
Q: Mine’s a process question. When you go into conference, how soon do you come up with -- I guess for lack of a better -- who won?, you know, who’s the majority and who’s the minority?
JB: In the conference, in most cases, after we’ve gone around the table, you’ll have a tentative majority. And if there is a minority or dissent, that will become clear. Once the conference is over it probably will stay that way, but it doesn’t always. The next step is that the Chief, if he’s in the majority or whoever is senior, assigns the opinion to be written. If it’s assigned to me, what I do is I get my law clerks … I have them write a very, very long memo or draft of everything they can think of under the sun. I take the briefs, I reread them, I read what they do. I then write my draft. I give it back to the clerks. They then go over it, tell me what’s wrong with it -- which is usually quite a lot -- and then they give me back what they think is the improved draft. Then I go back and write my own draft a second time. And I’ve learned I have to do that twice. Then we go back and forth and back and forth, and eventually I have something that I’m pleased with, and I’ll circulate it to the court. And as soon as I circulate it to the court, what I’m hoping for, of course, is immediately eight other letters of congratulation, or at least they’ll say they agree. And frequently, I wait for a while and eventually these begin to come in, and they have suggestions that they’d like this changed or that changed,
or something else added in or taken out, or whatever. And I’m very open and make these changes usually, until I have five, anyway. I’m still open to suggestion, but a little less open. And then people might circulate a dissent. It happens with reasonable frequency that I have three votes, plus me is four. And then somebody says, “I just want to see what the dissent says.” And then the dissent will circulate. And in close cases, it can happen that then person X -- whoever is this person who doesn’t quite see the marvelous merit of what I’ve written -- may hesitate for a while and there will be some back and forth, responding and counter-responding. And so the majority could shift in conference or not. I hope it doesn’t if it’s my opinion. And eventually, everyone will have joined, joined the dissent, written, say, his or her own dissent, written a concurrence. And when the Chief in conference on that same Friday -- first the order of business, go over all the circulating opinions -- and when he sees, because he keeps track, as we all do, everyone’s responded -- joined or written, the opinion’s ready to come down, the next opinion day, down it comes. Very mechanical, actually.
Q: This may be a bit in the same vein, Mr. Justice, and if I’m wrong in what I heard, please stop me. But I thought I heard you say that in writing an opinion, there have been times when you have changed your mind. Has this -- two parts to this -- has this happened when you were writing the majority opinion? And in either event, what did you do?
JB: Well, it’s awkward. I mean because we are a court, and our first job is to get these cases out. And if it happened too often, you wouldn’t be able to get the work done. But it has happened with me and with other people occasionally. You work on it and it just won’t write that way, and then you say -- so I sent a note around and said to the Chief, with copies to the others, you would say, “I’ve been having trouble writing this. I suppose now it will be a dissent,” depending on how it broke down, “and you’ll have to reassign the case.” And the case then is reassigned to a different judge, and that judge writes up the majority. It would probably be assigned to the person who is going to write the dissent. And it happens. It’s not totally theoretical, but not too often.
Q: Mr. Justice, I’m a long-time Democrat and former constituent of the late and great Tip O’Neil. And I’d just like to say at the outset, you, sir, are one of my heroes. And I think I speak for many in the audience this evening when I say that.
JB: Thank you very much. [Applause.]
Q: My question, Mr. Justice Breyer, is this. How do you see the end or foresee the evolution of the great United States Supreme Court if, God forbid, the administration remains Republican? [Laughter and Applause.]
JB: I’m not in politics, so I have … But I use that as an excuse to point out to you, I mean, what is the most optimistic thing about the court to me, whether it’s a Republican who’s a president or a Democrat, or what it is? It is absolutely true:
I’m sitting in this court -- and I’ve said this 10 million times and I’ll say it 11 million -- I mean I sit there in the court. I’m in the corner over here at the far end of the bench, and I’m looking in this courtroom where Brown v. Board of Education was decided. I mean the decisions that really changed America. And this was not me; these were other people, that I’m there on that bench where others decided it. And we see in front of us everything under the sun, every political point of view, people of every race, every religion, every background possible, every point of view possible. And the joke I’ve now told 11 million times, because it’s so true. I say my mother told me that, “There’s no point of view so unusual that there isn’t someone in the United States who doesn’t hold it.” And then -- she’s from San Francisco -- she says, “They all live in Los Angeles,” she said. [Laughter.] But, my goodness. And you say, “Well, is it natural that we would, in this country, decide these matters that are so important to individuals, where they feel so strongly about it, in a court of law?” Well, you just have to look in the newspaper and you see places where that isn’t so, and/or you have to go back in our history.
I mean I like to teach a case involving the Cherokee Indians in 1830 where Georgia just took over their land because they had gold. And they, being really pretty civilized -- i.e., they’d set up a constitution, government -- they hired a lawyer and they sued. And they got to the Supreme Court and the Supreme Court says, “The Cherokees are absolutely right. It’s their land, and Georgia is 100 percent wrong.” And to make a long story short, that’s the case about which you read in law school where Andrew Jackson supposedly said, “John Marshall made his decision. Now let him enforce it,” and he sent troops -- federal troops -- to the land of the Cherokees. They didn’t go to enforce it. They went there to put the Cherokees on the Trail of Tears out to Oklahoma where those who survived, their descendents, live there now.
All right. That wasn’t that long ago. It’s in the 1830s. Jump forward to Cooper v. Aaron , which is, in a way, one of my favorite cases. Nine judges, together, all signed a piece of paper that says that … You may remember, some of us in this room, where those black school children wanting to enter that white school in Arkansas. And the governor was standing there in the school room door with the state troopers saying no. And nine judges said yes. Well, you could have had nine judges or 900 judges or 9,000 judges. But the key to that was the president -- it was Eisenhower at that time -- who sent in the paratroopers. And this time, the Army went there not to defy the court, but to enforce the decree, and those children walked in through that door. All right?
So now a decision that I wrote a dissent in, and a lot of you probably disagree with, Bush v. Gore. So I say the great unwritten fact about that case: no need for any troops. We may disagree with that decision, we may think it is the most wrong thing in the world, just like many people in this country think the prayer decision is wrong, the abortion decisions are wrong. And they all have very good arguments, too, but they follow it. They follow it without any federal troops. Well, that, I think, is real progress. Of course, I’m a lawyer. Of course, I believe in the rule of law. But so do we all. And so you say, “Well, what is the future?” That’s the future I see.
And I know I have a sort of out of date, 19th century, Pollyanna idea that thinks that this is spreading throughout the world, because I just talk to my friends in constitutional courts, but I think despite the ups and downs and hiccups that that is the direction, where you see it all over, more and more: people believing that democracy is not such a bad system, that human rights deserve protection, and constitutions and courts have a role to play. So I think your question is what's the direction, and with lots of qualifications, I say the general direction over the long run is an upwards direction. So I remain an optimist.
NT: And on that optimistic note, we’ll say thank you very much, Justice Breyer. [Applause.]
JB: Thank you.
JOHN SHATTUCK: Justice Breyer has taken us into the mysteries of the Supreme Court. Not all the way -- we didn’t think we were going to be able to go all the way, not in one session. But we are extremely grateful. And I think if there is one message that we draw from this is, boy, are we glad that you’re there. [Applause.] And Nina, there is no one who more skillfully and with greater elegance is able to peel off that onion of mystery around the Supreme Court. And are we glad that you’re there. [Applause.]
NT: Thank you.
JS: Thank you all for coming. [Applause.]
END