The Washington PostDemocracy Dies in Darkness

Transcript: “The Authority of the Court and the Peril of Politics” with Justice Stephen G. Breyer

MR. IGNATIUS: Welcome to Washington Post Live. I’m David Ignatius, a columnist for The Post.

Today it's a rare privilege for us to have as our guest, Supreme Court Justice Stephen Breyer. Justice Breyer has written a new book entitled "The Authority of the Court and the Peril of Politics."

Justice Breyer, thank you for being our guest this morning.

JUSTICE BREYER: Well, thank you very much for inviting me.

MR. IGNATIUS: So, Mr. Justice, you've written a short book--I'll hold it up--with a hundred small pages, but it's causing a lot of discussion. Justices are often reticent about publishing books. Let me begin our conversation by asking you why you decided to public these essays now.

JUSTICE BREYER: I thought that I'd been on the court, that when I wrote it, I had been on the court for 27 years, and the court was very much an issue in political life, and I wanted to give my impression. Now, they're not the only impressions a person could have. You could be an observer and have different impressions, but they are my impressions. That's what I wanted to get across to people because I thought they might be helpful.

MR. IGNATIUS: The book read to me like a statement by someone who loves the court--as you said, you've served on it for so many years--but fears that it is losing or could lose its legitimacy with the public, and I want to ask, do you feel that that's happening, or do you see that as a risk?

JUSTICE BREYER: The future, we don't know. A risk? Yeah. It's a risk.

I've seen the long, long time by reading, the hundreds of years. I haven't been there for all those years, but I've seen how long it's taken to earn enough trust of the American people so that they will--and almost automatically--follow what the court said. And that's a tremendous asset for the United States of America for the reason that that, in essence, is the rule of law.

We have benefitted from us, from that. George Washington, Abraham Lincoln, the Founders pointed out that our democratic government is an experiment. We don't know if it will continue to work. We never know, and the best we can do is to keep trying. And I thought that might be useful, my own experience, to others who basically agree, of course, we have to keep trying.

MR. IGNATIUS: The book, Mr. Justice, also read to me, especially in its closing pages, almost like a memo to your fellow justices with a series of admonitions, pieces of advice at the end about how cases should be resolved. Among the things you cite, you use the phrase "just do the job," "the need for clarity," "deliberation," "compromise," "a broader perspective." So I want to ask, have I got you right there, and do you think the justices are following that code as you observe them as colleagues?

JUSTICE BREYER: I haven't said they weren't. I think that it takes--Sandra O'Connor used to say two or three years: David Souter, two years; Justice Douglas, five years. To what? To adjust to the mores of the court, to understand what it is when you are part of this institution.

And so I wanted my fellow justices, as well as those who might be interested in this book and its aimed particularly at high school students, at college students, at law school students, and indeed, everyone, particularly those not lawyers, to give an impression, and of course, I said one of the--there isn't much we could do on the court, but we can take in the fact that we have a job and to do it.

You know, that's what my father told me years and years ago. He said you have--his advice before he died was first stay on the payroll. That was helpful, and second, do your job. I mean, it's easy to talk about all kinds of things that you have no control over, but it's not so easy to just do your job as well as you can. And I wanted in a few pages to explain to people how I thought we could do that job well. What is deliberation? We deliberate, and deliberation is, essence, essentially, and I learned this from Senator Kennedy years ago. Listen. Listen to people who have different points of view. Do not say, "Ha-ha. I have a better argument than you." That leads them to say, "No, I have a better argument than you." But if you listen, pretty soon, they'll say something you actually do agree with. Then let's work with that. Let's see where we can get with that, and sometimes, not always, you get somewhere.

And Kennedy also said, Senator Kennedy, that it's better to get 30 percent of what you want than be the hero of a group of people for whom you have dissented wisely and intelligently, but you've gotten exactly zero. Don't worry about credit. Don't worry about credit. There's plenty of credit to go around with success, and who wants credit with the failure?

MR. IGNATIUS: You make the argument for compromise and describe this process of deliberation that you and your colleagues go through, but there's an interesting moment in the book where you note that you've written opinions on highly controversial abortion cases where you believe that neither compromise nor minimalism, which you use to mean seeking the least broad impact in some cases, was possible. I ask this because abortion is again on the court's docket, and I want to ask, obviously, without seeking your views on the case, what readers should take from your book as this debate approaches, and obviously, the level of anxiety about this issue is quite high in the country. What should people take from your book as it discusses these highly controversial cases where, as you say, compromise is not possible?

JUSTICE BREYER: Well, that's always been true in the court, and there is no treatise, I'm afraid to say, that tells an individual judge how far to go in compromising, how far to go when you deliberate and accept a view that isn't quite yours, and when you have to draw a line.

Now, that is very much a matter of conscience. I mean, I did write an opinion saying we should reconsider the death penalty. I have written opinions in dissent about the need to continue affirmative action. In each of those cases, I didn't see where we could go and compromise, and I thought it was more important to state the case clearly such that I believe the law required.

When? I wish I had this magic touchstone that would tell me. Holmes described it, great judge, Oliver Wendell Holmes--he described it as "Well, it's a can't help. When you can't help, but write that dissent as strongly as you can. Then you write it."

So there are fewer dissents than you might think. I mean, probably between 30 and 50 percent of all our cases each year arrive at unanimous or 8-1, 7-2, something like that. The 5-4's are only about, oh, probably--I don't know--15 percent, some years 20 percent, other years maybe a few more, maybe a few less, and not always the same five and the same four by any means.

Indeed, I looked it up once. It seemed to me there were more--well, the papers will say in an unusual combination. For that year, there were more unusual combinations than there were usual combinations.

After all, we just wrote an opinion in which we upheld the right of gay people to work at a workplace without being discriminated against, fired or injured by their employer simply because they were gay, and that opinion, people joined it with very different political--with different judicial philosophy. There were some who joined it who pay a lot of attention to that, and there were others who joined it who paid quite of a lot of attention to consequences and purposes. So you would have had there a mix of what is press and others the normal roundup. I mean, sometimes it is, but quite often it isn't.

MR. IGNATIUS: You do note in your book the unpredictable alignments and decisions, and I'll come back to that. Before we leave this issue that so concerns the public of abortion, on the Texas abortion case last week, you told NPR that you thought the decision to let that Texas law take effect was very, very wrong. It was a statement, pretty passionate, obviously, on an issue that you care deeply about. Is there anything that as the country thinks about this law that you would want to say based on your experience that amplifies that statement that you made to NPR that it was very, very wrong to let that take effect?

JUSTICE BREYER: I did think it was very wrong, and I wrote a dissent. The dissent gave my reason, and the timing wasn't very good for my book because it's pretty hard to believe in a case like those that come along that we're less divided than you might think, but here we are. Sometimes people, as I did in that case, do feel pretty strongly, and then you're not going to get compromise.

But what is important and the single most important point that I hope people will take from that, though to repeat it is only my point of view after 27 years, single most important point is judges are not junior league politicians. They're judges, and maybe the political process worked to get them appointed, but that process wanted a person appointed whom the people supporting that person would think that individual will believe that the law, the law, the jurisprudence and how complex the law--it isn't computer programming--that person will believe that the law really requires these results, and we the political people believe the way they think about the law is more often going to [audio distortion].

Well, they're wrong about that sometimes. Teddy Roosevelt appointed Oliver Wendell Holmes, and within a few months, he had decided what Roosevelt thought was the wrong way in the Mandy Trust case, and Roosevelt said, "I could carve more backbone out of a judge out of a banana." All right. You see he was annoyed.

The same president appointed quite a few of the judges who over the period have been there have been considered, quote, liberal, quote, justices, as appointed, people who have been considered, quote, "conservative, quote, judges, and we never trade votes. Absolutely not. You vote this way in this case; you vote that way in the other case. That doesn't happen, but it happens in the political process.

So I want to see if a reader can take in. No, when the judge puts on that robe, he's not a junior league politician, but having said that, there are connections with politics. And so it's a pretty hard message to get across. No, they're not politicians in robe. Ah, but wait. It's not computer science, and over long periods of time, the jurisprudence has changed in the court and often to align more closely with the political views of most Americans and think about the New Deal court of Franklin Roosevelt and think how the Lochner court of Chief Justice Taft, formerly president, evolved during the 1930s, and think of how that court evolved and changed when Earl Warren bravely and correctly decided to enforce the Constitution and prohibit slavery, as that's what the Constitution said. But it's changed over time, there's no question, very slowly as new people are appointed, as people with different political philosophies are appointed.

MR. IGNATIUS: The newest justice, your newest colleague, Amy Coney Barrett, seemed to identify with your views articulated in this book in a speech that she gave yesterday in Louisville. I don't know if you've seen the news reports of it, but quote from her speech, she said, "My goal today is to convince you that this court is not compromised of a bunch of partisan hacks." Then she went on to say that the court is defined by judicial philosophies rather than personal political views, which is essentially your point. She was very controversial in her confirmation hearings because people feared precisely the opposite of her record of opinions, beliefs was so well established over so many years in Law Review articles and other things that it was clear what her views were.

Let me just ask you what you think of what your fellow Justice Barrett had to say and whether you think the newer justices who have been appointed by Republican presidents, whether they worry that they're viewed in ideological terms, as she seemed to be troubled by.

JUSTICE BREYER: Yes, I do agree with what I think the approach is that she's taking there.

You know, as I've said, it takes some years, and you then gradually pick up the mores of the institution, and the mores of the institution, you're a judge, and you better be there for everybody, not just the Democrats, not just the Republicans. Even if a Democrat or Republican appointed you, you're there as a judge, and that means you better be there for everybody. They won't see it. A lot of people will strongly disagree with many of the opinions or dissents that you write, but still, internally, you must feel that this is not a political institution, that this is an institution that's there for every American. It was created, after all, to prevent the other two branches of the government from growing too far. It does not always fulfill that role perfectly. It doesn't at all, but sometimes it does.

When I see a case I really think was wrongly decided, I start to think about how difficult Brown v. Board of Education was to bring that into effect in the United States, how difficult it was before the South began action to follow integration and get rid of laws that demanded segregation, to think about how that didn't just depend upon judges. It depended upon Martin Luther King. It depended upon the Freedom Riders. It depended upon the average, ordinary citizens of the United States beginning to think that what was going on in the South was really wrong. Now, all those things have to come together with a group of judges, at least in that instance, and then perhaps you have what's called a "rule of law." Never for certain. Never for certain, but that's what you strive for.

MR. IGNATIUS: Mr. Justice, let me come to an issue that's been a focus of discussion since your book came out and really before that, which is the question of whether you would retire while the Senate has a Democratic majority to confirm your successor. It's come up in every interview you've given. In an interview with Adam Liptak of The New York Times last month, you recall saying that Justice Scalia, your late colleague, told you, quoting your recollection of him, "I don't want somebody appointed who will just reverse everything I've done for the last 25 years," and reading that, it seemed clear that you shared the late Justice Scalia's desire.

I know you've been asked this often, and I just want to ask again how you are thinking about this question now at a time when the court is under particular focus and people are paying deep attention to your thinking about this. What should they take away from our conversation, in your views?

JUSTICE BREYER: Well, I don't want to go beyond what I've previously said because I want this to be really about the book and not about my retirement, and what I've previously said is I don't--I'm not going to stay there, I hope, until I die, and I have been thinking about it. There are a lot of different factors that come into account, and I will take--I believe I will take those considerations into account, and then when I'm ready to announce something, I will.

MR. IGNATIUS: One thing I thought reading your book, Mr. Justice, was that a concern that you have about the timing of your retirement while there's a Democratic Senate might be seen as precisely the kind of political judgment about the court that your whole book is an argument against. Do I have that right?

JUSTICE BREYER: Yes, it might be. It might be. But so I'm the one ultimately responsible to myself, and so when I retire is when I made the decision. I have to be convinced that in my own mind, I am doing what I think is the right thing to do, both for the court and for myself.

I guess like things involving somewhat personal matters, no one will ever know, but I'll know. I'll know myself, and there isn't much more than that that I can say. It used to be called--I don't know. Was it Conrad or somebody who said you have to be true to yourself, and who will know? Who will know? You'll know about yourself, and the same thing is true of me.

MR. IGNATIUS: We'll leave that as your statement on this.

The most explicit warning in this book that I want to make sure we touch on in our conversation is your argument against adding additional Supreme Court justices or taking other steps to remake the court to seek what some people would regard as better balance. I want to ask you just to summarize your fundamental reservation about expanding the court or these other changes. You write at one point, "The rule of law is not a meal that could be ordered a la carte," which I thought was a pretty good line. Just summarize that argument for us.

JUSTICE BREYER: It's not complicated, but start with Harry Reid who, after Bush v. Gore, I heard speak at the Supreme Court, and he said one of the most important, one of the most infrequently remarked characteristics of that decision was this, that despite the fact that a lot of people opposed it and it affected them a lot--and indeed, I thought and probably he thought it was wrong--despite that, people followed it. The rule of law was there learned over a period of a long time, and you never know if it will continue. It does depend on not just the few cases that are highly controversial. It does depend on the work of the court over quite a few cases over a very long time. You see that in the history of the court, because this isn't the first time there were a lot of conservatives on the court and only a few liberals, quote, quote, quote, or vice versa. And it's risky. It's risky changing the structure. It's risky for if one party can change the structure to add more favorable people, then the other party can do the same, and the risk, of course, is that the public in general will become less convinced that it's being decided as a matter of law, and they will be less likely if they think we're junior league politicians to follow what the court said.

Hamilton said, "No guns, no money, all we have really is the decision and the hope that the public, including members of the public who do not like this decision, will see the virtue of following it."

There's a long, long history of that, Magna Carta. You know, King John had to follow the law, and he couldn't just throw people in prison. The development of habeus corpus in England, the gradual, gradual realization that it's better to have those 300 million people. I think you're one of them. I think you're not a lawyer. There are only a million lawyers or so. 300 million are not, and those are the people who have to understand that the rule of law is a safeguard, not the only safeguard, but a safeguard against dictatorship, autocracy, tyranny, and a lot worse things.

MR. IGNATIUS: Mr. Justice, we've come to the end of our 30 minutes. I want to thank you again for taking the time to talk with us about your book, about the court, to help us think about very complicated issues. Thanks for joining us.

JUSTICE BREYER: Thank you very much. Thank you.

MR. IGNATIUS: So thank you, as always, for watching Washington Post Live. To check out the interviews that we’ve got coming up, please head to WashingtonPostLive.com to register and find out more about all of our upcoming programming. Thank you for joining us today with this special chance to talk with our most senior long-serving Supreme Court justice, Stephen Breyer.

[End recorded session]

Loading...