KENNETH FEINBERG: Good evening, ladies and gentlemen. Welcome. I‘m Kenneth Feinberg, Chairman of the Board of Directors of the John F. Kennedy Presidential Library Foundation, and on behalf of my fellow Board of Directors, the Foundation CEO David McKean and Library Director, Tom Putnam, I would like to thank all of you for joining us for this latest Forum. A great thanks for the generous friends and neighbors who make these Forums possible beginning with Bank of America, the lead sponsor of the Kennedy Library Forum series and whose Massachusetts State President, Bob Gallery is here with us this evening. [Applause] Also joining us this evening, Boston Capital, whose President, CEO and Chair of the Library‘s Distinguished Visitors Program, Jack Manning, also joins us. [Applause] The Lowell Institute, and we are pleased to have William Lowell with us. Thank you. [Applause] And the Boston Foundation. Our media sponsors are The Boston Globe, NECN and WBUR, whose general manager, Paul La Camera, also joins us. [Applause] One person I must recognize is my predecessor, my mentor, my friend of 35 years or so, the Honorable Paul Kirk, former Senator for the United States. [Applause]
We are honored to have with us tonight to talk about his new book, Making Our Democracy Work: A Judge’s View, Justice Stephen Breyer. Justice Breyer was nominated to the Supreme Court by President Clinton and he took his seat on August 3, 1994. Previously, if I listed all of his achievements, it would take up too much of our time. But suffice it to say that there are two jobs that he had that made him a perfect candidate for the Supreme Court. First, he is the former chief judge of the First Circuit Court of Appeals, which sits here in Boston. And, more importantly, as far as Paul Kirk and I are concerned, he is the former Chief Council of the Senate Judiciary Committee under Senator Kennedy. That, by far, he will admit, is the most important job he ever held.
He has taught law at Harvard University for several years and was also a visiting professor at the College of Law in Sydney, Australia and the University of Rome and on it goes. He holds degrees, Justice Breyer, from Stanford; Magdalen College, Oxford; and Harvard Law School. By the way, Justice Breyer‘s book is on sale in our museum store. He will be signing copies. And if we run out, don‘t worry. His personal supply of his book is virtually inexhaustible, so we will find you a copy.
We could not have a more ideal moderator for tonight‘s discussion that Jeffrey Toobin. Jeffrey has been covering legal affairs for The New Yorker magazine since 1993. Before joining CNN -- we see him all the time on television as a senior legal analyst -- he was the Emmy Award-winning legal analyst for ABC News. He has written several books, the most recent, The Nine: Inside the Secret World of the Supreme Court was on The New York Times best-seller list and earned the 2008 J. Anthony Lukas Prize for Nonfiction from the Columbia Graduate School of Journalism and the Nieman Foundation for Journalism at Harvard University. Jeffrey knows from which he speaks. He graduated from Harvard College and Harvard Law School where he was an editor of the Harvard Law Review.
This is a perfect example this evening of the impact and the importance of these JFK Library Forums that are open to the public. They are always overcrowded. We are very lucky to be here tonight to listen to Justice Breyer and to Jeffrey Toobin. Please welcome to our stage Justice Stephen Breyer and Jeffrey Toobin. [Applause]
JEFFREY TOOBIN: Hello everyone and welcome. I‘m delighted to be here. And I‘m glad Ken left me one important announcement to make, which is -- and this is a very important thing, to repeat the title as often as possible -- Making Democracy Work this Sunday will debut as number eight on the New York Times best-seller list. It is already in its fourth printing. [Applause] And, you know, from someone who comes from that world, that‘s a wonderful thing, and we congratulate you.
So without further ado, you have been on the Supreme Court for 16 years. You write this book now, A Judge’s View. Why this book? Why now?
JUSTICE STEPHEN BREYER: I‘m tempted to say because Ken‘s introduction was so nice. And he is quite right: the job that was absolutely fabulous was working for Senator Kennedy. And I‘m tempted to say … Because if we wrote the real book, Ken, if you and Paul Kirk and I got together and wrote the real book, The Workings of the Senate Judiciary under Senator Kennedy, it would be impossible. We never could do it. By and large, it would be much more interesting that anything I can write about the Court.
But one reason could be -- because after living in Boston for 40 years or so, it makes me almost a Bostonian, after working for Senator Kennedy, after having a certain amount of experience and believing that maybe people wanted to find out at least part of it -- I wanted to explain to people what the Court does and how it works. Harry Blackmun said to me, when I became his successor on the Court, he said two things, ―You will find this an unusual assignment,‖ it‘s true. And he said,
―People have a tremendous thirst to know what the Court does. They want to know. They know that it is an institution that affects them but they are not certain how, and they are not certain what this is about.‖
And so what I‘ve tried to do here is to explain to people, through my own eyes— it has to be through my own eyes because those are the only ones I have, and it has to be from my point of view because it is my point of view, so it is one person‘s point of view -- what it is we do and why it is important to Americans, whether you are judges, lawyers or ordinary citizens or anyone else in this country, it is important. I want to explain my view as to why.
JEFFREY TOOBIN: Those of us who cover the Court and a lot of people who talk about the Court often use terms like liberal and conservative. The word that you use the most in describing, I think it is safe to say, in describing your judicial philosophy and included in the title of this book, is workable. You want a Constitution that is workable. What do you mean by that word?
JUSTICE STEPHEN BREYER: Well, you will see that is actually a very interesting question. You see, inevitably you and others who write about the Court, write what you think about the Court and then people read that. Now, that‘s your opinion. That is the opinion of perfectly wise observers. But I want to break through that because I don‘t see it quite that way. It‘s a very interesting thing for other people to say whether I‘m liberal, conservative or whatever, I don't know. That is not my point of view. My point of view is how do we decide the case? How do we decide this case in front of us? It‘s up to others to write characterizations. I understand it‘s their job. But I want to break through that. So how can I do that?
I‘ve done a couple of things in this book, and it seems to me that one good way of going about it, to sort of set the ground rules or to set the basis, was to tell people some stories about the Court, stories about previous Courts, to explain important stories in American history through the eyes of the judges at that time—I have to admit -- their opinions read by me.
So I started with a question, which is the very question you are getting at with that word, workable. Why is it? It‘s a puzzling thing that nine people who really are not elected to anything -- I mean we weren‘t even elected to Senator Kennedy‘s Senate Judiciary Committee; he appointed us as staff members -- so I haven‘t been elected to office. Why would I and eight others be in charge of cases where we can say that what Congress has enacted into law violates the Constitution of the United States?
Now, that‘s a very serious question. Why was this Court given that power? Well, I go back to Hamilton. And Hamilton explains what he had in mind in ―Federalist 56.‖ He says here is a document, an attractive document -- I carry it around a lot because I work with it a lot -- and he says, if no one has the power to say that an action of the government official or a statute violates this document, we might as well go to that museum and hang it up. It will have no more impact than a painting on the wall. And somebody has to have the power.
Now, who should have the power? The President? Well, the President has enough power, basically. (I‘m paraphrasing.) He will become a tyrant. Don‘t give him any more. Please.
Well, what about Congress? You know, one problem with that is that a lot of the words in this document are designed to protect people when it is unpopular to do so. Now, the members of Congress are geniuses about popularity. [Laughter]
They wouldn‘t be where they were if they weren‘t, if you see what I mean. And they will have just passed the law, and probably they will have done it because it was popular to do it. And you expect them really to turn around and say that law they just passed because it was popular, we are going to say is unconstitutional, is going to make us less popular? Please. That may be complicated to say but don‘t believe anything like that will happen. We can‘t give it to Congress.
And so now, there are these nine, obscure bureaucrats up there, the judges. They are weak. That‘s fabulous. They don‘t have the power of the purse. They don‘t have the power of the sword. They are sort of professional people of some kind. They are likely to do their job. They won‘t cause too much trouble and they will be cautious, because that is in the nature of judges. Okay, perfect. Give them the job. And that is his argument. And he doesn‘t go much beyond that.
So, Mr. Hamilton, that‘s a very good argument and very interesting, but I have a question and the question is this. If these judges are so weak -- no purse, no sword -- , if they are sort of obscure -- no one has ever heard of them -- why will anyone do what they say, particularly when it‘s unpopular? You see, that‘s Hotspur‘s question. I love that question in Henry IV. Owen Glendower comes in and Shakespeare has him say, because he is a mystic -- you know, all Welshmen are mystic -- and Owen Glendower says, ―I can call, summon spirits from the vasty deep.‖ And Hotspur says, ―Well, so can I.‖ He says, ―So can any man. But will they come when you do call for them?‖ [Laughter]
You see? Now, that‘s a good question, Mr. Hamilton. And he didn‘t know the answer. And if we go back and trace the answer through the history of the country, I can pick two or three examples, just to illustrate a point. And the point that I‘m trying to illustrate by telling these stories is this: how uncertain it is; how complicated it is; how hard it is ever to declare victory; how uncertain it is what victory means. And the reason, of course, is you can find some examples of almost everything that goes back.
Can I continue this answer for a while?
JEFFREY TOOBIN: One of us is on the Supreme Court [Laughter] and that is the one who gets to decide when the question is answered.
JUSTICE STEPHEN BREYER: Yes, but if I talk, if I go on too long when I‘m on the bench, all my colleagues give me a very cold stare.
JEFFREY TOOBIN: I am not a colleague. [Laughter]
JUSTICE STEPHEN BREYER: This is my chance. All right. Here is a fabulous story, a fabulous story. The Cherokee Indians in the 1830s owned land in northern Georgia and, unfortunately for them -- by the way, they were farmers by that time. They had a great chief, John Ross; they had a Constitution; and, unfortunately for them, gold was discovered on the land and the Georgians had a very simple idea. They said, ―There is gold on that land next door. Why should they have it and we shouldn‘t?‖ They went in and took it.
Now these Indians, being a farming community with a Constitution, very civilized people, did what any civilized person would do and called a lawyer. The lawyer, Willard Wirt -- the greatest lawyer of his day -- said, ―I‘ll bring a case to the Supreme Court.‖ And to make a long story short, he eventually won the case and Marshall, Story, and the others said, ―This land belongs to the Indians. It isn‘t close. There are two treaties. It is absolutely definite. The Georgians have no business there. It is Cherokee territory.‖
And that is the famous case for some of us where the President of the United States, Andrew Jackson, supposedly said, ―John Marshall made his decision. Now let him enforce it.‖ And Jackson sent armed forces to northern Georgia, but not to enforce the Court‘s opinion; he sent the army to evict the Indians. And they were evicted. They traveled along a ―Trail of Tears,‖ called that because so many died on the way to Oklahoma where the descendants can be found today.
JEFFREY TOOBIN: Let me ask you about a bookend to the Cherokee case because you tell both of them in Making Democracy Work. Another story is the story of the Little Rock school desegregation where you have the Supreme Court telling the city of Little Rock in the state of Arkansas, ―Integrate your schools.‖ Orville Faubus, the governor, doesn‘t want to do it. Dwight Eisenhower, who was not wild about the idea, does send in the paratroopers. He does the opposite of what Andrew Jackson did and does enforce the Supreme Court‘s directive to integrate the schools.
What is the difference between how—I mean we know about the factual difference -- but what is the intellectual, historical difference between why Jackson did what he did and why Eisenhower did what he did?
JUSTICE STEPHEN BREYER: That is the question I want to pose. I don‘t have the answer to that question. I want to contrast those stories, absolutely right. And I don't know what Eisenhower is thinking. But I know what happened, and what happened is a judge ordered Central High School integrated. Many of us here can remember that, ordered them integrated and Orville Faubus stood in the school door effectively and said, ―No. Those black children are not going to come in, and I have the militia and the judge doesn‘t.‖ Hotspur. And what happened is Faubus went up to see Eisenhower. And that was arranged by Brooks Hayes, the Congressman at that time from Little Rock. And the Little Rock School Board was moderate. They wanted the integration. And Faubus went up there and he came out and he said, ―The President dressed me down like a general talking to a sergeant.‖ And he told President Eisenhower he would get out of the way and integrate, and he went out the door and he told the president the opposite, and Eisenhower was a little annoyed.
But more to the point, Jimmy Burns, who had been on the Supreme Court and then resigned so he could take care of the mobilization effort during World War II, Governor of South Carolina, came up to see Eisenhower and he said, ―If you send troops to Little Rock, you will have to have a second Reconstruction. You will have to occupy the South. Are you prepared to do that? The very best that will happen,‖ he said, ―is that they will close all the schools. Nobody will be educated. So you better be prepared, Mr. President, if you are going to send those troops.‖ And what he did was even more dramatic than your words, because Brownell was telling him, ―This is it.‖
I came away from reading about this, thinking that Eisenhower liked to govern by example. He integrated the D.C. schools at a time when, after Brown, there was no integration going on, nothing happening, virtually nothing. So what Eisenhower ended up doing after talking to all these people, is he sent the 101st Airborne. Now some of us remember what that was. The 101st Airborne was not just some division of the US Army. The 101st Airborne, particularly in ‘57. were the heroes of D-Day. They had flown over Normandy and many were hung up on those steeples where they were just shot down. They were the heroes of the Battle of the Bulge. To the average America at that time, that 101st Airborne meant something. And they took 1,000 of them and put them in airplanes, and two days later they landed in Little Rock, and they took those black children by the hand and walked into the school.
And what happened then? There were pictures that went around the world. That is where your profession did a major service. It first had taken pictures of Elizabeth Eckford, a black child trying to get in and a white woman next to her -- you saw that in the paper the other day; they still show that picture -- and her face contorted with rage. And it went around the world. Then, a few days later, these pictures go around. And I think those pictures made a difference. They made a huge difference, because a lot happened after that. The school was integrated, that‘s true, for a few months and then they closed it, just as was predicted.
And then there were cases in the Supreme Court: Cooper v. Aaron and nine judges said, ―You really must integrate.‖ The day after that case come down, with all nine judges, unusually, signing that piece of paper, the next day Faubus closed the school. You could have 900 judges, 9,000 judges, and a lot happened, but, eventually, the school reopened.
You had the civil rights movement in the south, all kinds of ups and downs. For me, that picture of the troops going in to the school was a great victory for the rule of law. And that integration was a great victory for America. And so I think that helped make a change.
Now, you can take any other recent case you want. Try some really controversial ones. Try abortion or try prayer in schools or try Bush v. Gore. I didn‘t think Bush v. Gore was right. I was in dissent. But I heard Harry Reid -- who I also think did not think it was right -- I heard him say the following when he was at the Court at dinner. He said, ―You know, the most remarkable thing about that case is a matter hardly ever remarked, and that is this. Although half the country thought it was just terrible and really disagreed with it, there was no violence in the streets. People didn‘t kill each other. And that,‖ he said, ―was a good thing.‖ And that is what I think. I think it was a good thing.
So what is the answer to your question? I say, this Constitution is workable. That is what Hamilton wanted. This is part of a workable Constitution. How has it happened? I was asked that very question about eight months ago by a woman who is now the Chief Justice of Ghana. And she is trying to get human rights protected in Ghana. And she is trying with others to be sure democracy works.
And she says, ―What is the secret? Why is it that you have brought communities together and they may disagree but they will follow the law? Why? How?‖
I say, ―I don't know the secret. I don't know. I can tell you some stories. I can tell you some stories and then you think about it, because we know it is a question of habit. It is a question of custom. It is a question of understanding. It is a question of what is so difficult to get 300 million people, or at least a very large number of them, to agree to support the existence of an institution that will, by definition often decide things that are unpopular. And they won‘t like it.‖
And who knows? When they do that, maybe they will be wrong. Bush v Gore, try Dred Scott. Try Dred Scott if you want a case that is really wrong. All right. I want to show it and I want to show how simple it is to learn enough about what goes on here so that ultimately, of course, I think, it is terribly important to have an institution where I see every kind of American, every race, every religion, every possible point of view. And they have decided to come into a court room to resolve their differences rather than through violence on the street.
So that is a long answer but not nearly as long as it ought to be to give you the answer that you want.
JEFFREY TOOBIN: Can we talk about some—again, how the courts are perceived in some ways. One phrase—another phrase you often hear about the courts are judicial activism. What does that phrase mean to you?
JUSTICE STEPHEN BREYER: Nothing. [Laughter]
JEFFREY TOOBIN: Nothing? Well, liberals are accused of judicial activism when they strike down laws banning abortion or laws about prayers in schools. But conservative are also accused of judicial activism when they strike down laws about gun control or campaign finance. Do you think that phrase has any meaning or any usefulness in discussion about the Court?
JUSTICE STEPHEN BREYER: I once looked up where it came from. By the way, the answer to your question is no. I think it has very little usefulness. I think it is an insult and it is what somebody says about a decision they don‘t like. And that is by and large what happens. Where did it come from? I looked it up once. I‘m not positive I‘m right. But it was Arthur Schlesinger, Jr., who wrote an article in Look magazine about the Court under Truman. And he went through the people and he said, ―There are two groups of people here. There are the Black and
Douglas and a couple of others who are with them, who followed a theory that Thayer had at Harvard, and the theory was -- there is something to it; it is not a foolish theory -- it is: whoever is least favored in life should be most favored in law. ―Now, the opposite view,‖ he said, ―was held by Frankfurter and Jackson and some of the others. And that view was, no, you don‘t say that. We have been actually nominated to this Court in reaction to the pre-New Deal Court, because the general public thought it favored the rich. So when you come in and say you are going to favor the poor, well, they will put somebody in later who will say we are going to favor the rich again. And this isn‘t going to work. Rather what you have to have is a neutral principle and restraint. Be careful. Don‘t strike down laws of Congress too readily.‖
So his was the judicial restraint. That was the war, the war of Black and Douglas against the judicial restraint of Frankfurter. That is interesting historically, but I would say it is not of great interest in this Court, whether it should be or not because I think people in this Court, by and large today, most people embrace in one form or another some form of judicial restraint. And to say that somebody is an activist is usually viewed as a kind of insult. And even if someone says, ―I am an activist,‖ he is using those words in an ironic sense.
When Warren was Chief Justice, there was a problem for the Court called desegregation. And we heard a lot of it at that time because we said, ―The Judges are busing children to integrate the schools.‖ And ―They are running mental health institutions, closing the prisons and they shouldn‘t do that.‖ That‘s activist.
Again, when I talk about that I say I would like you to see two things. I talked about that in Chicago once. I brought with me some photographs and I said, ―I would like you to see the photographs of what a black school looks like in the south, and I‘d like you to know that that is what segregation looked like.‖ And I show them those photographs. They are pretty awful. And I want to say after that,
―This Court in 1954 was left with Brown, and Brown said, ‗No more of that.‘ And who helped them out in 1954 and 1955. Not Congress -- they didn‘t pass statutes. There was very little being done. And it fell to the courts to try to help integrate the South. And it is hardly surprising to me that they took some measures here that helped achieve some kind of meaningful enforcement of what they did.
I would like you to see the mental hospitals that they closed. Go look at Life magazine. That is a good source. Go back to the forties. They had what used to be called the Snake Pit. And go look at some of those prisons or read the descriptions.
Now I would say, okay, you want to say that is activist or not? That is still, by and large … these are just tendencies, is not before us today. We have other problems. We have moved on. So that is why I say these terms have great historical interest, and if we take it seriously, you can debate it, discuss it. There are all kinds of things to talk about. But today, that term as used by one or more of the present Court is probably an insult, and probably implies by whoever is saying it, ―They go too far. They shouldn‘t do it.‖
JEFFREY TOOBIN: For the first 11 years of your tenure, William Rehnqiust. For the last five, John Roberts has been the Chief Justice? What is the difference.
JUSTICE STEPHEN BREYER: Justice White, Byron White, gave me very good advice. [Laughter] I will tell you why I laugh in a second. But he said,
―With every change in the Court, with every change of position, just one move, it‘s an entirely new Court.‖ The interaction among the individuals is important. And, of course, it is. And part of me says,‖ I don‘t like any change. We have had four changes. Keep everything the same.‖ That is how most of us feel as we get older. But that is basically an attitude not to have because we can do nothing about that. And do you know why I laugh?
JEFFREY TOOBIN: Yes. Please.
JUSTICE STEPHEN BREYER: Because there was another Justice White. That is why I said Byron White; he was Chief Justice. He was a very good Chief Justice. But Learned Hand made a sort of damning remark about him. We were talking about Thayer. And Holmes use to write very short opinions. And White would write very, very long opinions. And Learned Hand said after listening to him deliver some from the bench, ―When he speaks you have no idea what he is talking about, but you know your investments are safe.‖ That is why we want neutral principles.
JEFFREY TOOBIN: For your first 11 years, you were the Junior Justice. It is the longest time in the history of the nine member-Court there was no change, for 11 years. Now you have had four Justices change in five years. You said with one Justice the whole Court changes. But how has it changed?
JUSTICE STEPHEN BREYER: That will be your job to find out. And I do think you mistakenly think that because I sit there at the conference table, I know. I don‘t. That is to say, people -- and this is what I‘m trying to get across -- to look at it from the inside, to look at it every day, is just to see vast numbers of cases.
And what we are doing is trying to figure out the right answer to these cases. So I will hear this person say this. And I will say, ―Well, what about that?‖ And we will try and figure it out.
You, or others, are the ones from the outside who will put some kind of general label on that. And what I really want to do in the second part of this book is to say, the label that you love, not to say you don‘t necessarily say it, but you put this in the mind of other people—and I‘m not saying you are wrong because it is a very interesting matter—politically. What these people are are junior league politicians.
I say, my God, if you read Dred Scott you will see that when a judge tries to do something politically … There is some thought that Roger Taney had made this terrible decision, basically saying that descendants of slaves were not people, that his object in that was to try and prevent the Civil War. Well, Lincoln took up the dissent. It was written by a native of Massachusetts, Curtis -- very, very good dissent -- and Lincoln put that in his Cooper Union speech and that made Lincoln prominent in the Republican Party, and the Republican Party was elected and the South couldn‘t stand it and withdrew. So one thing Taney wasn‘t good at was figuring out what was going to happen politically. And I‘ve met very, very few judges, including myself, who are that good at it, so really it would be a foolish thing to have judges try to behave politically. That is just not going to work among other things.
But it is the wrong word. I can‘t, you see -- and this is complicated -- I can‘t say,
―There is no political interest in this.‖ That would be a false statement. But I can say that when you look at what this job is and how people do it, you won‘t be tempted to use that word except at the very fringe. And that is what I want to get across. It is hard for you to see it. It is hard for others to see it. I experience it every day.
JEFFREY TOOBIN: I would like you to elaborate on that because I think it is perhaps due to the mistakes that I and my colleagues make. You know, we look at a case like the Guantanamo cases. and we see the same four against the same four, with Justice Kennedy going back and forth. Why is that the wrong way to look at the Court?
JUSTICE STEPHEN BREYER: Well, it overlooks much of what the Court does. We are asked to hear about 8,000 cases a year, and it is not as choosing as you think because there is a rather definite criteria. We are really looking for cases where different judges in the lower courts have come to different conclusions on the same question of federal law, and those are the cases we will probably take, and they end up being about 80, or maybe sometimes 90, or sometimes 75.
Of those cases, when we decide them, 30 to 40% are probably unanimous. The 5 – 4‘s are between 20 and 25%, and they are not always the same five and the
same four. So it overstates and doesn‘t quite get what we do. But I understand the temptation because those 5-4‘s -- where it is 5-4 and you are so predictable -- usually are the greatest interest to people because they concern some kind of major social issue or it resonates politically. Remember that is just a slice, but not a tremendously big slice of the pie.
And put it this way: Do presidents appoint people who they think will always decide for the president? I mean Teddy Roosevelt appointed Oliver Wendell Holmes, and he decides a case, the Northern Securities. He is on the wrong side of that. from Roosevelt‘s point of view, within three months. And Roosevelt said,
―I could carve a judge with more backbone out of a banana.‖ [Laughter] He was pretty annoyed. But it might be that a president, at a very abstract, philosophical level, might tend to prefer a man or a woman who has a certain view of how law relates to the country, who has a certain view of what the country is like, who has a certain view of law, if you want, in the most jurisprudential sense. And even then presidents will often not get that right, either, if that is what they are trying to do, but they are more likely to do something in this very, very broad philosophical thing.
Now add to that that over time people, individuals, judges, develop attitudes or approaches to different kinds of legal problems that tend to recur. For example, the word liberty in the 14th amendment does not explain itself. Even more specific words like ―the freedom of speech,‖ well, what is the freedom of speech? In the cases that we are likely to get, which are normally right on the border, does a law that tells a cable operator that he has to carry over his system and over-the-air a broadcast that he doesn‘t want to carry violate his freedom of speech? I purposely picked out a technical one so you wouldn‘t have a clue what the answer was, but quite a few like that. [Laughter]
And then go back to one that is more definite because it is more historical, the 14th amendment. It says no state shall deprive any person of equal protection of the law. That was meant to take people who had been slaves and former slaves and welcome them in and say, ―You are an American like every other American. It‘s inclusive. Let‘s bring you into this.‖ All right. So far everybody agrees. But there are those over time who say that what it comes down to when you look at the language and the history and when you think about it, it is color blind. No for; no against; no use of race, period; no affirmative action; no invidious discrimination; no use of race. Now, I will spare you the arguments. The arguments are not foolish. There is a lot to be said for that point of view.
Now there is a different point of view, which is mine, which I tend to share, which is there is a difference given the purpose of that amendment between discrimination that keeps people out, invidious, because of race and discrimination that tries to help bring them in -- a difference in terms of the purpose of that amendment. And the conclusion of that is that the law treats efforts to impose affirmative action more leniently than it treats efforts to discriminate negatively on the basis of race. There is a difference constitutionally between positive and negative discrimination, so I have a different point of view on that than certain others.
But once judges arrive to a kind of reasoning and go through a certain approach and so forth, it is hardly surprising that in the next case they will tend to follow the same kind of approach. I mean in statutory case the real difference between me and people I sometimes disagree with a lot is simply this: Every single judge I believe, when he has a difficult statute … I mean you want an example of a difficult statute? I found a perfect one. I found it in the newspaper.
In France a school teacher is taking in the train a basket with 20 live snails. This is a biology teacher who is going to bring them, these snails, to a class in Paris. The conductor comes in, ―What is in the basket?‖ He says, ―You have got to pay a fare for the snails.‖ What!? I got to pay a fare for the snails?‖ ―Yup! It says right here. No animals permitted on a train unless they are in a basket and then you have to pay full fare.‖ ―It‘s a snail.‖ ―It‘s an animal.‖ ―Then why not pay 20 fares?‖ Does it? I don't know. There we are. We don‘t really have that case, I better say. Somebody will write up we had it. [Laughter]
How do you go about it? Read the text. Look at the history. Ask why. What are the traditions? Why did they pass this law or the tariff or whatever they had there? What was the purpose and what are the consequences? So every judge there ever was, I believe, looks at the history, the text, the traditions, the precedent, the purposes and the consequences viewed in light of the purposes. But some judges emphasize very heavily the first four. Justice Scalia -- he says,
―Let‘s emphasize the history and the text and the precedent because if you don‘t, the judges will be out of control.‖ And I say, ―No. Look at the last two. Look at the purposes and consequences and emphasize those.‖ I‘ll look at the first four and he will look at the last two. I emphasize the one. He will emphasize the other.
Now, if you want to call those differences right, left, go right ahead and do it. But I think there are differences in approach. And once you start down a track, you have an approach and think it through, it is hardly surprising that in the next cases you tend to follow the same kind of approaches.
JEFFREY TOOBIN: Let me ask you to show how you applied those principles to a specific case, to a pair of cases that got a lot of attention five years ago. Two cases about the Ten Commandments: one where the Ten Commandments was on a statue in Austin, Texas in a park. And another one in Kentucky, where there were Ten Commandments posted in the Courthouse. The ACLU, or equivalent, filed lawsuits in both of them, saying it was a violation of the Establishment Clause of the 1st Amendment.
Four of your colleagues said both of them violate the Constitution. Four of your colleagues said that neither violates that Constitution. You alone said the statue in the park was okay, but the Courthouse was not okay. How did you go about deciding that case?
JUSTICE STEPHEN BREYER: And you are thinking they are all thinking,
―Breyer, you are a real pain in the neck.‖ [Laughter]
JEFFREY TOOBIN: That may be.
JUSTICE STEPHEN BREYER: Why did I come to that conclusion? I will give you the outline of my thinking. It says here, ―Congress shall make no law affecting an establishment of religion.‖ Now, you can read that about 50 times, read it aloud, read it in the morning, read it in the evening. It is not going to get you that far. So there is the text. But I had read some things about that clause that made an enormous impression on me.
There is a very good lecture by an English judge called Radcliffe that he gave at Northwestern University many years ago. And Archie Cox told me to read that lecture, and I did. And what he said was is words like that or the equivalent -- free religion and no state taking sides -- he said, ―Well, that really reflects the terrible, terrible civil wars in England in the 17th century. And I don't know why when people think they are having a hard time today they don‘t go back and look at what was going on then. I mean, my goodness, it was awful. They were torturing each other. They were murdering each other, and over religion. That is what it‘s about. It is over religion. And finally, eventually, the British wake up to this idea,
―Here is what we will do. You, even if it is going to mean your damnation, you go practice your religion. And you teach your children your religion. And I‘ll teach my children mine. And Radcliffe says out of that flows not just religious liberty, but all kinds of important civil liberties. So now we have an objective, which is in this Constitution, which I will describe -- you don‘t have to accept this -- as an effort to keep the peace. And that is a very, very hard thing to do when you are talking about religion because when you are talking about religion, there is very little room for compromise. So we, in the United States, will not only have free exercise, we will also keep government out. And that is an effort when only 100 years earlier Catholics and Protestants were murdering each other. Well, that is an effort to keep the peace.
Now we read precedent, and with precedent, there were some wonderful opinions, I thought, by Black and Brennan, actually, and some others, who are trying to translate that very basic principle, which was written in the century where everybody was English. Well, not quite. There were a few Jews somewhere in Newport, but, basically, it was the Protestants and the Catholics and that was it.
And now, what happens after the Civil War? The Civil War movies of Ken Burns are wonderful to see, because what you see is what this country was then. It was an English country with slaves. And then after the Civil War, it became a country that wasn‘t English. More and more and more people came in from southern Europe, from Eastern Europe, all over the world. And that changed a lot. So instead of having two or three religions, there are 57, and how you go about keeping the peace when there are 57 is not so easy. So that is what is being reflected in this opinion.
In the one case what had happened was a judge, and I think the City Council, in Lexington, or wherever, Kentucky, was putting the Ten Commandments, which is undoubtedly a religious piece of paper -- the Ten Commandments -- up on the Courthouse as a kind of challenge. Ha! Ha! We can do it. We believe in the Ten Commandments so we put them up in this public building, even though the Supreme Court and everyone is telling us no. That is a trouble making event in terms of the meaning of this document.
And what was the other? It was also the Ten Commandments. That‘s true. But it was in a big field around the State House in Texas, and here is how it got there.
Cecil B. De Mille -- and this is absolutely true -- Cecil B. De Mille made a movie called The Ten Commandments, and he convinced a group of civic organizations -
- to get publicity for his film -- that it would be a very nice thing for everybody if they put the Ten Commandments as a monument everywhere that they possibly could, and then people go to see the film, and it would be nice for school children. They would learn moral principles. So they did that. And one of them shows up in Texas along with 40 other monuments: monuments to the brave, the pioneers in Texas, and the brave women pioneers and the brave men pioneers, the brave children pioneers. There were like 50 different ones there, and nobody had ever thought it caused any trouble.
So I thought, if we are going to start chiseling, you know, the Ten Commandments off public courthouses where they previously have been, that would be more likely to fly in the face of what the amendment is after. So I came to a different conclusion on that. I put all that in the opinion, pretty much. I‘m sort of going through it quickly. But you see what I‘m trying to do. And some of us will do that.
I‘m trying to be guided by what I think of as the basic purposes, and the basic purposes are not something that I make up. I read and I write them down. And people who disagree with this -- and there are plenty -- will write and say, ―This Judge, I don't know how he could have done that. I don't know. He is totally wrong on this history, totally wrong on this or wrong on that.‖ And I can learn from that. You wanted an example. There is your example.
JEFFREY TOOBIN: Before we go to questions from the audience, and you can line up at the microphones, one more question: You are the only justice who makes the point to go to the State of the Union every year, the State of the Union address. That became a somewhat controversial thing this year because President Obama attacked the Citizen United decision. Justice Alito was seen saying, ―Not true.‖ The Chief Justice said he was uncomfortable. He thought it was a political pep rally, and maybe that is not something Justices should attend. What is your take on the Justices being at the State of the Union? Why do you go and why do you think it is a good idea?
JUSTICE STEPHEN BREYER: I go because I think I should go. Also, if I‘m honest, I rather enjoy it. [Laughter] But the reason I think we should go is the following. We are part of the government. People more and more get their knowledge from visual experience, and there they see in that room the Federal government. This is my government. There are the members of Congress there. The President is there. The Joint Chiefs of Staff are there. The members of the Cabinet are there. And I would like the Court to be there, too. Because I think, as I‘ve said, that the Court plays an important role for them.
And it‘s a very, very hard thing what this is going … It won‘t even make a dent but you can see what I‘m trying to do. I‘ve said it. I‘ve just said it. But it is a very hard thing to do to get busy people -- and there are 300 million busy people in this country, who have families, who have jobs, who are looking for work, who have all kinds of problems -- and it is very hard to get people who have dozens of problems in their lives to sit back and think for a minute about why would we want an institution that is going to do things that are pretty unpopular when they might even be wrong. But, you see, if we don‘t have that institution, how will we get these basic, very important, very important basic rights protected? How will we make this document work, in fact? How will we have the 300 million people through their representatives, of all kinds, in a courtroom instead of in the street resolving all kinds of basic differences?
So this is a small part of a very, very big project. And it‘s called a project for a judiciary. And the judges understand it and the lawyers do, too. But most people are not judges and they are not lawyers. And somehow I think it is we, who are judges, or we, who are lawyers, who have to try to explain it, and why it might really be in people‘s interest to have institutions like that.
JEFFREY TOOBIN: And with that, someone just can ask the first question for Justice Breyer, author of Making Democracy Work. Before we go, if I can just ask people please to try to keep your question brief, so we can hear more from Justice Breyer.
QUESTION: I‘m going to ask two questions very briefly: one is the name of the book, again.
JEFFREY TOOBIN: Making Democracy Work: A Judge’s View. That‘s a good question.
QUESTION: That was pandering. [Laughter] The second question is at last count, and I could be wrong about this, there were 103 vacant seats on the Federal court. And it seems to me that is close to a disaster for democracy, and I was wondering if the judiciary, especially the top of the judiciary -- the Supreme Court -- has any role in encouraging the executive and the legislative branches to solve that problem?
JUSTICE STEPHEN BREYER: There is actually a committee of the Judicial Conference that is in charge of determining when a vacancy needs to be filled. And they write letters and this is really their responsibility. And, obviously, I am super cautious on things that somebody could think was a job of a different branch. And from the point of view of appointments, I would say I was not the appointing authority. From the point of view of confirmations, I would say I was not the confirming authority. I was the appointed person. I was nominated. I was confirmed. And to ask me about that process, which is a way of discouraging this kind of question not because it is not a good question, but because I don‘t want to answer it. But I say, look, ask me about the process of nominating and confirming is like asking for the recipe for chicken a la king from the point of view of the chicken. [Laughter]
JEFFREY TOOBIN: Over there.
QUESTION: I guess I want to start out with a confession. Growing up I had heard of the Supreme Court, but I couldn‘t tell you one person who was on it until I read The Nine. And then I became fascinated with the process. But I think we have a very polarizing phenomena in this country, the way we pick people for elections and appointments. We label them. They are conservatives. They are liberals. They are populists. And then we have this preconceived notion of what they are going to do when they get into their appointed positions. I have a bias that I think people come up to the task when they have to face the real issues.
So what I‘m fascinated about, instead of the way we get polarized by who we are in this very controversial process …
JEFFREY TOOBIN: Can I ask you to ask your question?
QUESTION: Picking a Supreme Court Justice: what are the qualities that we really should be looking for when the public watches this process? What should we have for Supreme Court Justices.
CHIEF JUSTICE STEPHEN BREYER: This, again, is up to the President and up to the Congress. And if we don‘t like who is selected, who is being selected, or you don‘t like it or you don‘t like the process, it is the political process that will operate on them as to what should work.
I can tell you what I was thinking in that process, if it is any help. I think when I was going through it, it was rather stressful. I mean, I had worked there previously and it shouldn‘t have been. But my goodness, it is quite different when you are a principal involved and when there are 17 Senators on one side of the table and here I am by myself on the other side. And people are saying, in my case, this won‘t be so difficult. In my case, it didn‘t feel that way. I don't know what they are going to ask and I‘m not sure how people will react. And there were cameras and several million people watching. And, luckily, I was quite boring so they turned it off. [Laughter] But the fact is, as I was sitting there, I knew perfectly well because of the jobs I had had and others that you are there and people look at you. And if they don‘t like what they see, it is going to be ―no.‖
Now, the thought that went through my mind that is relevant is that I thought that people are pretty tolerant in this country and they really are looking for a kind of person. And if they think he or she falls within being fairly open minded, fairly reasonable, fair, etcetera, they will put weight on that and they won‘t put enormous weight on whether he answered this question about abortion or the other questions about capital punishment one way or the other.
I don't know if I was right about that because in my case it worked out all right, for me, anyway. But I did think it might not. And if it doesn‘t, I hope I am mature enough to say, well, this is a little window of democracy being brought in to this appointment process to a job. For once I‘m appointed, people have no control over me and they shouldn‘t, you see. It is part of the same thing.
So we have a compromise in the Constitution. And what the nature of that compromise will be, what questions are asked -- Who will be appointed? What kind of thing? -- that‘s for you and me, in my capacity as an American citizen, not me in my capacity as a judge.
JEFFREY TOOBIN: Next question.
QUESTION: Justice Breyer. I was concerned by your comments in a recent interview where you made a comparison between burning a Koran to yelling
―Fire!‖ in a theater.
CHIEF JUSTICE STEPHEN BREYER: I did not hear what you said.
QUESTION: I was concerned by recent comments you made in an interview comparing burning a Koran to yelling ―Fire!‖ in a theater. Irrational and violent reaction of an offended group shouldn‘t be the standard for which speech is protected. Should the US flag get less protection against the burning as the people whom that offends react less violently. Should Salman Rushdie,s The Satanic Verses be banned? Could you please expand your comments?
CHIEF JUSTICE STEPHEN BREYER: Of course. I suddenly in this last week, I‘m being very honest with you, realized why being a politician is so difficult. Because, you see, people take little bits, and they do it in good faith often, but they will take a little bit and they will say, ―Okay. This is what he thinks,‖ and they will leave out this other little bit that suggests different things. So I haven‘t actually seen it but I know the comment you are thinking of, and what I intended to say -- and I think I did say most of the time -- is, unfortunately, a little too wordy, because I can‘t comment on any particular thing like that, some particular incident that might become a case. But I didn‘t want to say nothing.
Unwise, perhaps, but there we are.
I wanted to be helpful so I said, well, there are a couple of cases here. I‘m not saying how a case would come out. One case is a case in which the Court held that there is a Constitutional right to burn the American flag as a symbol. And so the first amendment protected the burning of the American flag. Then there is another case, which people who know about fires because Holmes said, ―You can‘t shout ‗Fire!‘ in a crowded theater.‖
Then I stopped, saying to myself, great. I‘ve given no opinion at all about the particular case, which is perfect, because I shouldn‘t, and yet I‘ve said enough so that people who are interested can go look things up and find out about it. Ha! Ha! Ha! My nephew tells me that one group of blogs is running the part about the symbolic burning of flags and saying, ―He is a mad man.‖ And the other group of blogs is running the thing about Holmes and the theater and saying, ―He is a mad man.‖ So, ultimately, the only thing everyone can agree about is that I‘m a mad man. So there we are.
JEFFREY TOOBIN: Yes, sir.
QUESTION: As we come closer to the November elections, to some of us at least, the impact of Citizens Union is becoming somewhat frightening. Can you explain in your words the rationale behind the majority opinion and your reason for dissenting?
CHIEF JUSTICE STEPHEN BREYER: This was case in which the Court faced a law that prevented corporations and trade unions from spending money on television advertising in the last 60 or 30 days before an election, and the Court felt that that was unconstitutional. I dissented, and as far as my own views, I joined John Stevens, who wrote a 75-page dissent. And that expressed the views of the four dissenters pretty well.
But you have to learn on the other side, why are they thinking that? Now, the five people, I think, many of them, had previously taken the view in other cases where they were in dissent. The first amendment virtually stops any ban on campaign contributions, and their reasoning is this—don‘t take me as being literally correct. I‘m nervous now because of the blogs, somebody will say … I‘m giving you a parody of the reason, if you want. What you read in their cases is what it is, and not what I say it is.
But you see, there is an argument on that side, too. The argument on that side is this. That, of course, money isn‘t speech, but you try getting your message across in a political campaign without money. So money enables speech, and since money enables speech, it is a very, very dangerous thing to get the government involved in saying how much or who should be able to give money to whom, because that threatens the freedom of political speech. That was their view in other cases where laws were upheld against that view, and I was in the majority there, because I thought that some kind of limitation in order to, perhaps, have a more equal playing field in certain instances, get more views across was justified.
But I have to admit there is an argument the other way. Learned Hand said, ―It is the most dangerous thing in the world to say that the views of some can be limited in order to increase the likelihood that the views of others can come across.‖ He said, ―Once you start down that road, there is no stopping place.‖ Now, the people who want the campaign contribution limitations, which I think is really up to them and I‘ve said that, are saying, ―We think that if unlimited money is given to a few candidates by people who have enough money that will end up choking off debate. And it is like our effort in a legislature to say you can only speak for an hour to give someone else a chance.‖
So are these the proper analogies? What are actually the consequences? I have a hard time because you are putting me in the position of arguing for something that I don‘t really believe, because I was in dissent. But, nonetheless, you wanted a picture and I‘m trying to give you a little picture of it.
JEFFREY TOOBIN: Yes, sir.
QUESTION: I know that the number of cases, the 80 cases that the Court hears a year is down, historically, from where it used to be. But the amount of petitions that you review is, as I understand it, and I think you spoke about this before, is up a lot.
CHIEF JUSTICE STEPHEN BREYER: Yes.
QUESTION: You and the 36 clerks spend a lot of time reviewing those. Has there ever been talk of off-loading that responsibility to someone, to spend more time hearing cases and writing …
CHIEF JUSTICE STEPHEN BREYER: Yes, because it isn‘t that much time, and I‘ll explain to you. How can I say that? Totally shocking? I will tell you how it actually works. Remember, we are only hearing cases of Federal law. Ninety-five percent of all the law in this country is made by the states. It is not Federal. We are dealing with the Federal Constitution and Congress. So we already have a fairly limited number.
Now, maybe there are 80 to 100,000 cases in the final courts of appeals or the state supreme courts that have a Federal issue. Eight thousand come to us. Now, that is about 150 a week, say. A hundred and fifty a week means, petition here, 15 pages and a response, say 10, 15, pages—150 of them. The best way is if you could see it visually. Imagine those are across some of my bookcases. They take three or four book cases and they are brought in each week. What really happens? We have in the Court about 36 clerks, maybe 30 of them are in a pool. Now, 30 of them into 150 is five. So each of those clerks will write a memo in five cases -- two pages to 10 pages -- sometimes shorter, sometimes a little longer.
Now, the first reaction you will have, most people will have, is why are these clerks doing the job? The judges should do it. It is their job. To which I say, I would rather, with 150, I would rather have a person called a clerk, who is very bright and works for me, reviewing those because occasionally the scrawled, hand-written petition, you don‘t know what in heaven‘s name it is about. It is obviously a lunatic who is locked up somewhere in a prison. That could be right. That lunatic could have a point. That scrawled petition could actually make a point., and we have taken cases like that, occasionally. And the chance of finding something like that -- I would rather have a human being called a clerk review five and find it than to have me, called a judge, pretend to review 150 because that is what it would be. It would be pretending.
So I get each week memos like this. I get a stack. Now, I can go down and, in about a couple of hours, maybe a little longer sometimes, maybe sometimes a little shorter—I can reduce that stack from 150 to maybe 10 or 15 or 20 possible.
Now, you say, how can you do that? You must be a real genius. Ha! Ha! Maybe.
The way that we do it—if you did it tomorrow and I told you what I‘m about to tell you, our stacks wouldn‘t look so different.
Chief Justice Taft, who has been President of the United States, explained this very well. He said, ―We are not a Supreme Court, a Court of error correction. We are not there to correct the mistakes of the lower court judges.‖ I‘m not saying never. Maybe it is a death case. You are going to get into the detail, etcetera, but, by and large that is right. The person has already had a trial. He has already had an appeal. Often he has had two or three appeals. You could just not go on forever, you know. So it is not that we are going to correct it. And who knows if it would be a correction. That is what Jackson said. He said, ―We are not final because we are infallible. We are infallible because we are final.‖ No one knows what that means. [Laughter] What it means is we do not have the last word because we are so brilliant. We are, of course, brilliant but only in the sense that someone has to have the last word. Okay. So now I‘ve told you what we are not doing.
What are we doing? We are doing what I mentioned briefly before. ―We are a Court,‖ says Taft, ―the job of which is to iron out the Federal law, to try to make it uniform across the country.‖ So what I‘m really looking for when I read those memos is are there splits in the circuits, in the judges? Some judges take this word in the text and they think it applies this way. And others think it applies that way. There is the case we will probably take. Now, it isn‘t 100%. We might take a case like Guantanamo even if there is no split because we think there is a need for a uniform Federal law. And if a judge holds a statue of Congress unconstitutional, we will probably try to take the case.
But by and large what we are looking for is what I said -- splits in the circuits. And that is why we could have a case when we had one where does the comma in 1402C, some number of the Internal Revenue Code mean that the next word, which is a ―for‖ should be read as a ―which‖ or a ―that?.‖ We had a case sort of like that. I liked it. No one else did. [Laughter] Or we could have a major case about free speech or a major case about campaign finance or a major case about search and seizure.
It could be anywhere. But what do they have in common? That there were splits among the circuits. And I will tell you this: the reason we have 80 is that‘s about what we find. We are not sitting there trying to say, have fewer. We are not sitting there saying that. We are saying, ―Let‘s have more.‖ And now Tony Kennedy -- it used to be Sandra O‘Conner -- would sit there week after week and say, ―We don‘t have enough cases. We have got to get more cases.‖ And we tried. There is no point taking a case without that split.
Now, in your specific question, there was a committee that was set up under Warren Burger and they recommended that they have a different court trying to decide what the docket would be. That was rejected and I would reject that, too. I don‘t think there is a need for it. I think it is bad.
JEFFREY TOOBIN: Yes, sir.
QUESTION: I hope my law is correct, but I‘m under the impression that corporations are treated as people in Court.
CHIEF JUSTICE STEPHEN BREYER: To some degree, yes. Those were very old cases in the 1880s or ‗90s. There were some cases where they said, ―In the 14th amendment it says no person shall be deprived of life, liberty or property without due process of law.‖ And there were some cases in which the Court said that a corporation is included within the meaning of that word ―person.‖ And do you know why I‘m being so picky? Because there could be instances where it is not. So sometimes it is, sometimes it isn‘t would be my guess. And that word
―person‖ is precedent that says they are.
JEFFREY TOOBIN: And if I may just elaborate on that, I think where this issue got a lot of attention was the Citizen‘s United case, where the issue of
whether a corporation should have free speech rights. And maybe you could just talk a little bit about that.
CHIEF JUSTICE STEPHEN BREYER: Well, I mean, that was one of the arguments the dissent used. It said one of the arguments that Stevens went into was, ―Well, my goodness, this is one of the strongest cases for regulating because a corporation is basically an entity that is artificial. And the people who make up the corporation are all … There is nothing that says in this law that they can‘t give contributions and there were other ways of doing it. And they can vote. And it isn‘t the corporation that votes. And the labor union, too, is an artificial entity who is made up of members, and the members are not having their rights interfered with.‖ And so we went on and on.
So we sort of took the idea here that the fact that they are not, like you and me, the corporations or anything. That makes a stronger case for regulating. That was one of the arguments that we used.
QUESTION: Thank you.
JEFFREY TOOBIN: Yes, sir.
QUESTION: Would you comment on the advantages and disadvantages of lifetime appointments for Supreme Court Justices?
CHIEF JUSTICE STEPHEN BREYER: I actually think if you were doing it afresh, you wouldn‘t need to have a lifetime appointment. The Constitution doesn‘t actually say lifetime. It says they will have their office during good behavior, [Laughter] and that has been interpreted as lifetime. And as a very practical matter, I think you should have a long term, and the reason that you should have a long term is because you don‘t want the judge sitting there thinking what is his next job going to be. That is just a thoroughly bad idea.
And also, it takes a while … I mean for my first three years there I was frightened to death. I really was. It took a while to learn. And then five years out or so -- that is what Douglas used to say – after five years you begin to sort of get the hang of this, because things tend to repeat, in general. So it takes time. You want long term because it takes time and because you don‘t want people thinking of other things.
Now, if you were to say to me, what about an 18-year term, a 15-year term, something like that, fine. But to do that you would have to amend the Constitution, and the process of getting into an amendment of the Constitution itself has implications, which aren‘t always good.
JEFFREY TOOBIN: Yes, ma‘am.
QUESTION: My name is Mary Cromlick, and I was wondering why there are nine Supreme Court Justices.
CHIEF JUSTICE STEPHEN BREYER: Oh, that is an excellent question. There weren‘t always. It started out as seven, and then as the country expanded people began to think, well, we ought to add because it is a bigger country. And they set up the lower, Federal appeals courts and they put them in groups like districts; they are called circuits. There were ten of them, and once there were ten they put ten judges on. And then after the Civil War they thought, that is going to be too many. We will go back to nine. Now, some historians say the reason they did that is they thought they didn‘t want to give certain people certain appointments because politics enters into that. Ever since, it‘s been at nine and it stayed that way.
And when President Franklin Roosevelt tried to change it, that was viewed as he was doing it for politics. And even though most people in the country agreed with his politics, they still thought he shouldn‘t change the number of judges on the Court for political reasons. It doesn‘t say it in the Constitution. It is in a statute. That is my potted history. That is what I know.
JEFFREY TOOBIN: Yes.
QUESTION: Thanks for taking my question. I‘m curious how influential the briefs on either side that are provided are on your feelings about the case. And to that end, how much more does oral argument add to how you feel and what decision you are coming to?
CHIEF JUSTICE STEPHEN BREYER: Very influential and sometimes adds quite a lot. I think people try to be open minded and you probably do in your decisions. But being open minded doesn‘t mean you have no opinion. I think often, with all of our decisions, it sort of works like this. And I will illustrate my case.
I open up the brief. It says what the question is. It says this is the question before the Court. I read the question. I already know the answer. [Laughter] Then I read the brief and I think, yes, that‘s right. I‘ve really got the answer here. Then I read the other brief and I think, hmm. Maybe I was a bit too quick here. You see?
And it is really like… there is the old joke about the judge. He hears one side.
The plaintiff‘s lawyer gets up and says his case, and after the judge says, ―Oh, absolutely right.‖ And the defense lawyer says, ―Judge, you haven‘t heard me.‖ He says, ―Okay. Go ahead.‖ ―Oh, well, good. Good! Absolutely right.‖ So the plaintiff‘s lawyer gets up and says, ―Judge, first you say, I‘m absolutely right.
Then you say he is absolutely right. You can‘t say we are both absolutely right.‖ And he says, ―Absolutely right. Absolutely right.‖ [Laughter] It‘s a lot more like that than you think. [Laughter] So when we get into oral argument, I‘m sitting there. I have a view but I‘m listening and so are the others, and we are thinking … no, it doesn‘t often change but sometimes it does. And quite often it makes you see the case differently, even in how you will write it, and the important aspects of it, even if it doesn‘t change your ultimate view of how the case comes out.
We finished that case Monday, Tuesday, Wednesday. We are going to have our conference on Friday. On Friday we are in the conference by ourselves, the nine of us around the table. And we proceed in order to discuss the case, probably for ten minutes or so, maybe 15. At the point of this discussion, Roberts begins. And now it is changed. You see I have the order wrong. Now, it goes to Justice Scalia and then Justice Kennedy and then Justice Thomas and Justice Ginsberg and me and Justice Alito and Justice Sotomayor and Justice Kagan.
And we each have a book and we write down what the others say. Because if I‘m writing the opinion, I better remember what my colleagues think of this, too. And then, each of us goes around, and the interest of that conference is people say what they really think. You know, it would be absolutely useless if they were just rehearsing arguments. So you listen and then there is some back and forth. And then, on the basis of that, the Chief Justice, if he is in the majority, or whoever is senior, will assign the opinion to be written.
If it is me, I will then spend sometimes two or three months, sometimes two or three weeks getting my law clerks to look up everything under the sun, taking their memos or their drafts. Then I sit down at the word processor and I write a draft and I give it back to the clerk. And she will go and find all kinds of things wrong with it. She is really thinking hers is better. [Laughter] There we are. So then, I, they get it again. I probably write another one. And it goes back and forth four or five times.
And then we will circulate it. Then people come in with memos and they want this changed or that changed or they can‘t quite agree. And, you see, all the time we are getting closer to a definite. And finally they will have to agree or not agree or write their own. And the Chief always says that at the beginning. We have a list of all the cases in circulation. And he says, ―Is everybody in on this?‖ And when they are all in, i.e., they have agreed to somebody else or they have written their own, that is it. The case comes out.
What happens? By the time you write that note, ―I join,‖ it is done. That doesn‘t happen until quite far into the process.
JEFFREY TOOBIN: How often would you say you have gone into an oral argument thinking, ―I‘m going to affirm,‖ and change your mind? How often has an oral argument changed your mind?
CHIEF JUSTICE STEPHEN BREYER: This is a total guess, because I don‘t really keep track, but I would say if you said less than ten percent you would be wrong. If you said more than 20 percent, you would be wrong. But that is a guess.
JEFFREY TOOBIN: The last three.
QUESTION: My name is Ann Marie Conden, and I was wondering if you feel the Supreme Court Justices should be elected instead of appointed.
CHIEF JUSTICE STEPHEN BREYER: No, I think they shouldn‘t. Do you know why? My reason why is simply this. Imagine that something happened to you or your parents and they were in a lawsuit, which you wouldn‘t like, particularly. And suppose maybe some friends of yours or others, suppose their freedom is at stake, something really important like a criminal case, or maybe money or maybe a family matter. Do you want to know that the judge is worried about his own job when he is thinking about your case? I mean you want him to be absolutely fair and you don‘t want him to go on the grounds of popularity.
And the Federal courts have not been elected. And the Supreme Court has not been elected for concern that you don‘t want those judges to be thinking about their own popularity when they decide cases that affect you or your family or somebody else. Do you see the point?
Now, state courts have worked out compromises often or systems where they do have some elected judges, not in Massachusetts but in other states. And there are a lot of complicated systems, and some of them have worked not too badly in the past. But one of the things that has happened recently is campaign contributions, and this is where it is you versus me, and us versus them, and so forth. And that is making those elected systems work less well.
You can be certain that Justice O‘Connor, Justice Souter, others that have retired and many bar association people and many lawyers are hard at work on this problem.
JEFFREY TOOBIN: Yes, sir.
QUESTION: So many of the cases that come before the Supreme Court have tremendous ramifications and effects on the people. And when you come to a vote of 5-4, which in reality seems to me is one justice making the decision as to which way you are going to go. Do you foresee any change in that majority rule procedure?
CHIEF JUSTICE STEPHEN BREYER: No. I don‘t foresee any change because I don‘t see an alternative. It is interesting what you are pointing to and important. And I‘m in assent quite a lot, or a reasonable amount. And I think about it this way; I think it is true.
I grew up in San Francisco. We had arguments about things in San Francisco in high school. I‘ve lived in this community for probably, I won‘t tell you how many, more than 40 years. And I met a lot of people and I‘ve been a judge. And we disagreed about a lot of things. But I didn‘t really understand the full range of possible disagreement until I got into my present job. I met a lot of people who had points of view and were coming from places, in a sense, intellectually, that I hadn‘t been or hadn‘t experienced. What do I think about that? What I think quite honestly -- and it isn‘t just Polly Annaish -- it is a big country.
There are 300 million people in this country and they really do think a lot of different things. And it isn‘t necessarily a bad thing that because of different presidents or personality, or slowness of appointments and change and so forth, it isn‘t such a bad thing that the people on the Court are exposed internally as well as externally to different points of view, because law is not computer science.
And it really isn‘t that you can look up the answer in a machine.
So there we are. People will think different things. They do. And we are exposed to that. And one vote, it can decide it but that is just because one vote, five, is more than four. And that still is a preferable way than no law, or force and violence.
JEFFREY TOOBIN: Yes.
QUESTION: One of the things that you mentioned concerns you when you look at cases are purposes and consequences. And I‘m wondering to what extent, for you and within the Supreme Court in our globalized world, you are thinking about consequences that ripple internationally, and if there is an internationalization of judicial thinking that you are experiencing in more intensity now.
CHIEF JUSTICE STEPHEN BREYER: That is a very important question. I say quite often that the political question of looking at courts outside this country to see what they do is very interesting. But, ultimately, it is not so important.
Because usually that involves a handful of cases involving the court‘s use of reference to other cases, other courts where it has involved capital punishment or where it has involved rights of homosexuals where probably the reference didn‘t make much difference, if any.
But there is something that is important and you brought it up. It is not exciting and it is not interesting; it is interesting, really, but it isn‘t glamorous. But it is important. And that is, when you look at that docket we have been talking about -
- I go back to one year that I actually kept track of these things -- and out of the 80 cases, nine of them involved laws of other countries or international law.
Three were Guantanamo, so put those to the side as special. The other six involved things like this: An anti-trust plaintiff in Ecuador wants to sue in New York a cartel defendant from Holland and use an American anti-trust law. And can they do it or not? We had briefs, very hard, complicated questions. We had briefs from Germany, from France, from Japan, from the EU and they were not just, ―Oh, I think.‖ They were very serious briefs. Can a business in Los Angeles get information involuntarily from another business in a Federal court, supposedly give it to the EU cartel authority that doesn‘t want it? Again, not so easy as you think. Well, what about trucks coming in from Mexico and there is a law of
Congress that seems to forbid it. Maybe it does. Maybe it doesn‘t. What is the relation with NAFTA? What about the Warsaw Convention, involving airline reliability? What about something called the alien torte act passed in 1789 giving any foreigner the right to come to the United States and sue another foreigner for an action that caused a torte against the law of nations? They were thinking of pirates. That is what they were thinking of. You find a pirate, grab him.
But who are today‘s pirates: the Paraguayan dictators or Mrs. Altman, who was in Los Angeles, whose grandparents or great uncle had a Klimt painting of -- I can‘t remember the name -- and it was worth a lot of money, and she thought it was her painting and shouldn‘t belong to the Austrian Museum. And she brought a lawsuit in Los Angeles, and the Austrian Museum said they had sovereign immunity. Do you look back to 1940 when the Nazis were there to say that they have sovereign immunity or do you look now? And where do you look?
And I found the answer, I thought, to that in a decision of a French court of appeals, called Christian Dior against ex-King Farouche. [Laughter] He didn‘t pay the bills for his wife‘s clothing and Dior sued him. And he said, ―Sovereign immunity.‖ And the court in Paris said, ―Hey! It is not King Farouche anymore. It is ex-King Farouche. Get it?‖ [Laughter] So we are looking around the world.
That is today‘s world. And why I say that is important is we have to know about that and we don‘t know the law of all the world. If you are in law you look things up. And you are told by the lawyers. We can‘t do that job unless the lawyers tell us how to do it. And they can‘t do it unless they are trained in law schools to look not just to the law of this country, but to look realistically at how to find law of a lot of countries that might govern the world—where people travel everywhere or events have spillovers everywhere and where commerce and business is everywhere.
Well, that may be boring, but it is important. And that, I think, is absolutely right. And as far as the Court‘s role in that, it really is the law schools. It‘s the law firms. We just have to show that we are interested in that. And we are, all of us. From our point of view, Barkus is willing.
JEFFREY TOOBIN: Before we say good bye, I just want to remind you that Justice Breyer will be signing his New York Times best seller, Making Our Democracy Work afterwards. Or Ken, you will talk about his departure ritual.
KENNETH FEINBERG: First of all, everybody, if you didn‘t know it before you came this evening, I think we can all agree by unanimous vote, Justice Breyer seems to enjoy his work. [Applause]
This evening is just the latest example of how critically important these Library Forums are to this community and to our nation. They are a valuable, valuable part of what this Library stands for. And we welcome you all at the next Forum and Forums to be.
But tonight, I would ask everybody to please remain seated until Justice Breyer and his pen get ready at the table with the books. I also want to thank Jeff Toobin for taking time out of a very, very busy schedule to come to the Library. [Applause]
There are so few commentators on television and radio that really understand the courts and the rule of law, how to explain it the average citizen. Jeff Toobin does that as well as anybody in our nation. We are grateful for his willingness to come here this evening to participate in the Forum.
So would everybody please remain seated. On behalf of Justice Breyer and Jeff Toobin and the Library, we thank you for being here and good evening. [Applause] END OF FORUM