BRIAN LAMB, HOST: Justice Stephen Breyer, I want to read you a quote from an article and see what you think.
"Here‘s a case where everybody has got strong feelings on both sides and Judge Breyer picks what seems to be a very careful middle position. He‘s not afraid to do exactly what he thinks is the right thing to do, sometimes he gets good press, sometimes he gets bad press, he doesn‘t care."
Do you know who we‘re talking about?
STEPHEN BREYER, U.S. SUPREME COURT JUSTICE: No, I don‘t, actually.
LAMB: Some guy named Chuck Breyer.
BREYER: He‘s my brother.
LAMB: Your brother.
BREYER: That‘s good. Probably a biased source. That‘s good.
LAMB: It‘s from sanfranciscogate.com. And I start that way by asking whether or not that isn‘t you, a same, similar kind of a description that people would have of you?
BREYER: I hope so.
LAMB: Did you how did you two grow up together?
BREYER: Oh, we grew up in San Francisco. My father was a lawyer for the school board. My mother did some things active civic life. And we lived in the city and we both were in the Boy Scouts. We both went to Grant school and went to Lowell High School. We went to public schools.
And it was great growing up in San Francisco when we did. We got on well. He‘s three years younger. And we still get on very well.
LAMB: And now is a district judge federal district judge
in Northern California. And what‘s the difference between his job and yours?
BREYER: He says he doesn‘t have to worry about always getting four other people to go along with every single decision he makes. He loves being a trial judge. A trial judge is a different job. A trial judge, you have parties in front of you. You have to manage the trial. And you have to be fair every minute. And you have to listen carefully. And you don‘t have to get four other people. You‘re managing the case.
And in the Supreme Court it‘s more a question of, well, what is the law? The law on very open questions that are very difficult questions because we only take cases where or not only, but mostly take cases where the lower courts have come to different conclusions on the same issue of federal law.
So they are hard by definition. They are questions of legal interpretation. They are not so much questions as my brother has, as in how do we do justice between these two parties.
LAMB: You dedicated your book your new book to Chuck, your brother.
BREYER: Yes, I did, I did, I did. I‘m so pleased he‘s a judge. I think my father would be pleased and, I hope for both of us, and
LAMB: Did you both work on the Watergate situation years ago?
BREYER: Yes, we did. I was just there during that first summer. I was helping put together the organization for one part of the investigation that Archie Cox had the part involving the antitrust cases, and Dita Beard and Jack Anderson‘s column, and you‘ll long have forgotten that.
And Chuck was working on another part as a prosecutor. And we both worked for Archie Cox and we both admired Archie Cox very much. He was a role model for the two of us.
LAMB: How did you get to know him?
BREYER: Well, I taught at Harvard. And Archie was a teacher at Harvard. And I was just beginning teaching. I had been a teacher for, I guess, at that time, four years or five years. And the people whom he brought with him to help manage: Jim Vorenberg, who late was dean at Harvard Law School; Phil Heymann, still a good friend, and I think we knew each other in that.
LAMB: Both you and your brother you‘re Stanford and Oxford and Harvard Law School; and I think he‘s Harvard and University of California Law School?
BREYER: Yes, he went to
LAMB: At Berkeley?
LAMB: How did two Breyers get into this business? Can you both remember when it started and why you liked the law?
BREYER: My father was a lawyer and in those days, you know, it wasn‘t quite so indeterminate what you would do. I found law interesting. He did. We just assumed we would be lawyers.
Now when my father got out of law school, he felt he was pretty lucky to get a job at all, that was during the Depression. And I think it‘s progressed perhaps for better, but my father‘s generation, if they got a small check every week, they were pretty happy.
And I think my generation and Chuck‘s, we didn‘t make such a major issue as sometimes is made today over what we were going to do, what we were going to be. We both liked the law. And my father‘s advice when he died he used to say to Chuck and me, his one advice was stay on the payroll. That‘s the Depression speaking.
So we always liked law. I‘m so pleased, whether I had been on the Supreme Court or not, it‘s I have found it I think it‘s a wonderful career.
LAMB: This book, "Active Liberty: Interpreting Our Democratic Constitution," came out of a lecture series you delivered.
LAMB: What was the genesis of the lecture series?
BREYER: Oh, it has had a long genesis. I started at an NYU series. There was an NYU lecture called "The James Madison" lecture. And the subject was constitutional law. And that began about four I guess three or four years ago. I‘ve had to I had been on the court for probably six or seven years, eight years, and it led me to go back and try to see how I had been writing about the Constitution.
After you‘re on the court for a while, that job of having steady diet of constitutional cases leads a person to begin to see the document as a whole. And I wanted to know how I was seeing it. And I wanted to know if my case over here really fit with the case over there, or if I was being inconsistent from one case to another.
And I began to do that. I thought what I was learning was interesting. I expanded it and it became three lectures at Harvard, and the Tanner lectures. And then I expanded it somewhat more and now it‘s this book. But it‘s all really the same subject and what is an approach to constitutional law that a judge of the Supreme Court might have.
LAMB: What book is this for you?
BREYER: When you say, what book
LAMB: How many have you done?
BREYER: Oh, I guess I‘ve written about four or five depending on whether you count edited books as writing. And I think that‘s they were mostly about economic regulation. I‘ll tell you about it if you want to digress a minute.
Somehow my a book I wrote, a rather long book on economic regulation was reviewed in the popular press, The Los Angeles Times. This was the review: "When Alice emerges from the pool of tears, the dormouse begins to read Hume‘s ‘History of England.‘ ‘Why?‘, says Alice. ‘Because,‘ says the dormouse, ‘we‘re wet and this is the driest thing I know.‘"
That, he said, was before Justice Breyer Judge Breyer wrote this book on regulation. Now we hope, we hope that that book is not as dry.
LAMB: When you put the book together and you did it for Knopf, whose idea was it?
BREYER: Whose idea was it to put turn the lectures
LAMB: Yes. Who all of a sudden said, Justice Breyer, we‘ve got a book here.
BREYER: I think me, probably. I wanted it to be a book. I wanted it to be a book because I thought in the process of doing this I was explaining to people how the court worked on issues of importance.
And so the more I think it‘s possible for a judge who sees this process every day to explain to others who aren‘t lawyers necessarily, who are willing to become interested in the part of the government that to many is a mystery, the more people are willing to do that, the more we should try to explain what we see ourselves as doing. And this is an effort to do that.
LAMB: You‘ve been a justice since 1994. You were a judge on the First Court of Appeals.
BREYER: First Circuit, yes.
LAMB: First Circuit, ‘80 to ‘94?
LAMB: What questions, when you when people sit next to you and I know you feel from time to time people are intimidated by the fact that you‘re a justice, so they may not open up to you, but when you next to somebody, what question are you because I know and one of the things you say in your book is you‘re concerned about people don‘t understand civics.
So what do people think you‘re doing on the court that surprises you?
BREYER: I think if you probe a little bit, a lot of people think that we are deciding a case on the basis of whatever we think is good. And so we sit there deciding issues of importance to people on the basis of what we happen to think is good. And that‘s not how the job looks from the inside. And I do want to explain that.
The main thing I think I‘ll give you an example. I‘ve said this before, but I will again because it‘s such a good example. Justice Kennedy, Justice O‘Connor, the three of us went to I think Mrs. Annenberg‘s foundation was having an event where they were trying to work out what should we teach high school students about the Constitution.
They had done some surveys. What‘s the most important part? Well, a lot of people said the First Amendment, free speech, others said equal protection, equality, others said separation of powers, some other things.
All of us said the three of us, who don‘t always agree, we very often do but quite often we don‘t, we said, you‘re wrong. That isn‘t what the Constitution is basically about. What the Constitution is basically about is trying to create institutions of government that are democratic.
The basic idea is to have a system so that people can make up their own minds about what kind of society they want, what kind of community, what kind of city or town or state or federal government or decisions or rules or they govern themselves. That‘s the idea of the Constitution. That‘s the primary idea.
And what we‘re there for is we are policing the boundaries of those institutions to see when they act. When they pass a law, are they going outside the boundaries that the Constitution creates? What boundaries?
They create a certain kind of democracy. It‘s a democracy that protects your individual liberty and mine, fundamental liberty. It‘s a democracy that gives a certain degree of equality. It‘s a democracy that divides power between state and federal governments, between legislative, executive, judicial, so no one becomes too powerful. And it‘s a democracy that insists on a rule of law.
So those are the boundaries. And what we do, in my opinion, if you want a metaphor, is we‘re patrolling the boundaries. We‘re not deciding how people should live their lives. How they live their lives within those boundaries is a matter for them to decide democratically.
Now that‘s the kind of document that I think most of us see after a few years on the court. And that‘s what I want to explain to people.
LAMB: What did you learn about the Constitution when you worked for Arthur Goldberg, Justice Arthur Goldberg who was you were clerking?
BREYER: Yes, I was.
LAMB: What year was ‘64?
LAMB: What did you learn there?
BREYER: I learned a lot. I love Arthur Goldberg. He was a wonderful man. He was a great mentor. He was very practical. He was very intelligent and he was very practical. And at that time, which was at the beginning, or just at the turning point of the civil rights revolution, I think the court was beginning to understand that document, the Constitution, as assuring people a degree of equality.
The Constitution said, "no state shall deprive any person of equal protection of the law." But in a large part of the country vast numbers of people were deprived of equal protection. They had segregation. Black schools that were shacks compared to white schools that were not.
And the court was trying to make those words of the Constitution mean what they said. It was trying to dismantle the system of segregation. And Arthur Goldberg was right in the middle of that. And he would say, that‘s what it says, doesn‘t it? And that‘s what the people who wrote the 14th Amendment wanted, didn‘t they?
What they wanted was a system of government that treated people alike, whether they were black or white, whatever their race or national origin. Go back and look at the 14th Amendment, that‘s what I think they wanted, but maybe that‘s his influence.
It‘s more than that, that is what they wanted.
LAMB: Did you say anything to yourself back then that if I ever get to this court someday I‘ll do this after watching Justice Goldberg up close?
BREYER: I didn‘t think I would get to the court.
LAMB: You did not?
BREYER: No. I mean, you would have to nobody could think that. And no, it‘s I didn‘t think I would be appointed to the Supreme of the United States.
That was another thing my father said, he said, do your best at your job. You know, try to listen to other people and do your best and maybe somebody will notice, maybe you can get a better job, or a higher job or some other job, but maybe they won‘t notice, then you at least have the sense that you did the job well.
And I think that‘s what I tell the high school students, the college students who say, how do you get to the Supreme Court? I say, I don‘t know. I don‘t know. There is no way. And you have to do a good job. You have to be very lucky too. There isn‘t one of us that doesn‘t think he‘s pretty lucky to have been appointed.
LAMB: What‘s the difference between you working for Justice Goldberg and a clerk working for you? What would if you could those two, what would be the difference?
BREYER: I think the biggest difference is that those days there were only two clerks. And now we have four. And so it‘s luckier for the clerks when there are only two because you‘re working more directly with the justice.
And four, they still work pretty directly. I love my law clerks, they are great. And they are fun to work with and they are bright and intelligent. The court is a little bit more bureaucratic now, but still it‘s an institution where you have a judge and the judge is writing and he is reading, and those clerks help.
But the product is the product of the judge who is thinking about the problem and or working it through his mind. That‘s true in both cases. It‘s true then, it‘s true now.
LAMB: So you were a clerk on the Supreme Court for a year, and then you were a counsel to the Judiciary Committee.
BREYER: Oh, that was I went and taught them. I basically I worked in the antitrust division and then I taught at Harvard for a long time. And then
LAMB: The antitrust division of the Justice Department.
BREYER: Yes, of the Justice Department. And I taught. My basic job then was teaching. I was teaching antitrust law, economic regulation, remember that rather dry book?
As part of what I would teach, I would teach about regulation of airlines and trucking and other things. And I then had the opportunity to work at the with the Senate Judiciary Committee, something called the Administrative Practices Subcommittee. And Senator Kennedy had become the chairman.
And we talked about it and he very nicely offered me a job. I would be on leave from Harvard. And I would help I would run some organize, run some hearings on airline deregulation. And I did. And the airline deregulation, that and a lot of other things, brought about deregulation and helped, helped bring it about.
And I enjoyed the hearings. I found working in the Senate very instructive. Then later on I became I became chief counsel. That‘s what is that what you‘re thinking of?
LAMB: Well, I just really wanted you to contrast the difference, because now, as you sit over in the court, the Judiciary Committee sits over there from time to time throwing some barbs over to the court about how much they‘re involved in our business.
I mean, you can hear Arlen Specter, I‘m sure you‘ve heard him, you know what they think like on the Judiciary Committee.
BREYER: Oh, yes, later on. I‘m sorry. Later on I became chief counsel of the committee. That was another leave another time. When I did work over there, and I valuable experience, I loved that job.
Why? Because things are happening every minute. It was very cooperative at that time. I Senator Kennedy was the chairman. I and the person working with me there, Ken Feinberg, both in a sense, working for the chairman, would have breakfast every morning with Emory Sneeden, former Army general who was Senator Thurmond‘s chief staff member.
We had breakfast every morning. We discussed the day. We tried to plan out the day. And I came away from that thinking that these senators of different parties do want to accomplish though they may have different views of it, they want to accomplish something good.
And our job as staff members is what I would call constructive. It‘s to be constructive. It‘s to try to help. And I certainly thought at that time it was there was politics involved, quite a lot. But I came away with a very positive reaction from my work on the committee.
I liked the Senate. I liked it. And you saw that power in the United States really flows up. I mean, they are elected and the power comes from the people who elect them. That‘s where it is.
One day I‘m walking along and there is some young lady in my office looking through books, and I say, what are you doing in my office? And she says, oh, I‘m a student. I just came in. I needed to look up something in a book.
All right, what goes through my mind? She might be a constituent. Do you see?
LAMB: Different than now?
BREYER: Oh, well, yes. It‘s different. This is not this is a different job. I mean, I like it, it‘s very, very interesting, very important, I understand, very serious job which I have now. But I learned lessons at the committee that I think were most valuable.
LAMB: In your book you talk about being a "textualist," an "originalist," and a "literalist."
BREYER: Well, that‘s not meant to describe me.
LAMB: No, it‘s not. But I wanted you to define the terms, because one of the things you say about a literalist is that history plays a very important role in a literalist. And help us understand what you are talking about.
BREYER: Well, the thrust of what I‘m saying in most of this book is to say, remember that the basic objective of the Constitution is to create an institution so that the power, which flows from the people, can be exercised democratically.
And then that very obvious statement I try to use to show how it can in non-obvious ways help you reach results in particular cases, difficult cases, cases at first blush that don‘t seem to have much to do with the democratic nature of the Constitution. So I‘m trying to show that that very obvious notion has bite.
Now I have to deal with a different view, a view is inconsistent with what I say, and that‘s the view that really what a judge should do is a judge should read the text, look at the history of the of why this was put in the Constitution, maybe, or what people thought at the time they wrote the phrase of the Constitution.
Look at the text primarily, the history, and that‘s about it. And I say that I try to explain why that won‘t work. Maybe I should elaborate a little.
What I really say here is that most judges, I think all the judges in our court, when they have a difficult question, what do these words mean in the Constitution or in a statute, when they have a difficult question, they have certain tools that judges use to answer the question: text.
What does it say? If it says "a rabbit," that doesn‘t mean a lion. Text. The history of the phrase. What did people think at the time they wrote it? The tradition that has grown up around the phrase. The precedent. The purpose or the value. Why is this phrase there? What is it trying to achieve? And the consequences of deciding one way or the other way, viewed in light of that value. What would be the result? And is that result good or bad in terms of a value?
So I think all of us use those six things. Now some judges emphasize the first four, the text, the history, the tradition, the precedent. And they say, don‘t look at the last two unless you are really desperate.
LAMB: The last two again are?
BREYER: The last two are the purpose of the phrase, the value that underlies it. The Fourth Amendment, search and seizure there is to protect privacy. What‘s the value? Privacy. The First Amendment is there to protect speech. What‘s the value? Speech. That‘s easy.
And then the consequences. Some judges look at the first four, text, history, tradition, precedent, and say not so much the other two. Some look primarily at the last two, purpose, consequences, and they say as to the first four, sure, I will look at them, but they are often not enough to answer the question. And I would put myself in the second category, probably emphasizing the last two.
And I think the people whom I sometimes call literalists or historical or textualists and so forth, emphasize the first four.
LAMB: Let me ask you this. You hear some justices talking about being an originalist.
LAMB: And fundamentalist believers in the Constitution as it was written.
LAMB: But there have been, what, 27, 28 amendments, how many amendments, 28?
BREYER: Twenty-seven, but I mean, there is some argument about the last one and does it count or not. So I hesitated once talking to a high school audience, and someone wrote into the paper and said, that judge is so bad, he doesn‘t even know how many amendments there are to the Constitution.
So you want to say 26 or 27, or say as many as you want, somewhere in that range.
LAMB: But the Constitution has been amended, and that doesn‘t mean the forefathers in many cases didn‘t write those amendments.
BREYER: That‘s true. But someone did. And the textualists or the originalists will go back and try to do the same thing for the amendments that he does for the original part. And he will say, what was the history of those amendments? He won‘t deny that the amendments are part of the Constitution. And he will apply the same approach.
LAMB: In your lectures you have several topics that you talk about. Administrative law, which you can kind of hear people saying, I don‘t know that I want to hear that. But I want to ask you about administrative law, because you‘ve worked a lot in it. How many people really in this country understand how powerful the administrative agencies are?
BREYER: Probably not enough because they are.
LAMB: Who are they, what are they?
BREYER: Broadly defined they are virtually any part of the executive branch of government. And that they look at the Federal Communications Commission, tremendously powerful in how it has rules and regulations to regulate television, radio, telephones.
Now FERC, Federal Energy Regulatory Commission, it used to be the Federal Power Commission, energy. Transportation, the Department of Transportation, we used to have the Interstate Commerce Commission, the Civil Aeronautics Board, but they were regulating interstate transportation, the prices of trucking, of railroads, of airlines, now changed.
They are very powerful. As I often think when someone says of the regulator, well, they just do things like regulate the size of lawnmower blades or regulate the kind of water system you can have in the tape.
I say, well, you know, for an average person, most of us are far more interested in whether the lawnmower works or whether water is coming out of the tap that‘s clean, we‘re more interested in that very often than some of these bigger issues that grab the headlines, because they affect us more.
LAMB: So if you have a Federal is the Federal Trade Commission one of them?
LAMB: OK. SEC, Securities and Exchange Commission?
BREYER: Yes, certainly it is, certainly it is.
LAMB: Well, let‘s just go back to the Federal Communications Commission. They make a decision that there will be X administrative law applied to the television business.
LAMB: And the people the parties involved in it say, uh-uh, that doesn‘t follow the letter of the law, and they bump it up to you, or they go to the D.C. Court of Appeals which eventually gets to you.
LAMB: What is your role in that? And what do you look to sitting on the Supreme Court when an administrative law decision comes to you?
BREYER: Well, usually it come on the following bases. The most common is often they didn‘t follow the right procedure. And there is some law, some statutes that say what procedure they‘re supposed to follow.
Another is they sometimes say, well, this is the statute that Congress passed. Look at those words, and what they‘ve done, this agency here, is inconsistent with those words in the statute. There are a lot of cases like that.
And there are cases, which are really the most very often the most interesting, is there are some words in the administrative procedure‘s act that say that any action of an agency has to be reasonable. That is, it cannot be arbitrary, capricious, or an abuse of discretion.
And so people will come to the court, people who are affected adversely by the statute, somebody buys some natural gas or somebody buys some electricity or somebody wants to supply some product like a wireless product or a wired product or communications, they will say, that decision was so dumb and it hurts that it is arbitrary, capricious, abuse of discretion.
So you will get a lot of like that, and you will sometimes get some cases where they say what the agency did was contrary to the Constitution of the United States. Those are the most common things.
LAMB: As a justice of the Supreme Court, what kind of cases come to you that you really enjoy the most?
BREYER: They are all very interesting. They are all interesting. They are all difficult. They all require you to do your best non-stop, because they all make a big difference to the people who are affected.
I think that I might have a slight compared to some others on the court, I‘m probably more likely to find antitrust cases, economic regulatory cases, these agency cases, somewhat more interesting than the average.
But the great issues that come up, the questions of people‘s liberty, the questions of Guantanamo that came up two years ago, the questions of social questions, very difficult constitutional issues, free speech, privacy and so forth, they are all difficult. They are all important.
And you have to I, like the others, have to devote our best to trying to get the answers, the right answers.
LAMB: Nine justices on the Supreme Court, why does it only take four votes to get a case heard?
BREYER: It does only take four, you‘re absolutely right. We get about 8,000 requests. We hear about 80 Four votes is a grant. And I guess the reason is because if four people think this is uncertain, this area of the law, differences of opinion below, that‘s good enough. Because by the time we hear the case, people may change their mind or they may decide differently than they at first thought.
LAMB: But how does that work? I mean, if you‘ve got 8,000 that come before you every year, and we‘ve, on this network, talked about the cert pool and all that, but how does it work? Did you just happen to get about 80 cases a year and four people always agree? Or when the votes are taken, are there a lot more than four that say, let‘s take this up?
BREYER: Oh, usually there are more than four. Usually if one person is going to take it, everybody wants to take it. I would say that‘s a maybe not 40 percent, 50 percent are like that. So it‘s not just four.
The cases where there are only four is pretty small usually. What we will do is, there are about 150 a week, we go through them. They are summarized. We go through them looking at the issue primarily. And if we something I see that issue, and this is the secret right here.
I‘m going to tell you the secret, because it‘s not a secret. The what is our job? As we see our job, it is not to correct every wrong in the lower courts. President Taft said this years ago when he was chief justice of the United States 100 years ago.
Look, everybody has had a trial, everybody has had an appeal. If we were to try to correct things we thought were wrong in every appeal, there are tens of thousands of cases, it would impossible.
So what are we doing? Our job, he said, is to try to create a uniform rule of federal law in a case that requires a uniform rule. When is it required if the lower are disagreed? If they have reached opposite conclusions, it‘s probably required. If they have all reached the same conclusion, probably not.
Now with that rule of thumb, you could sit down, look at those 150 summaries, and you have the papers there so you can go back, look at the papers when you need to, I bet you and I would reach pretty similar conclusions.
That‘s what we do. Go through it, any one of us can have a case up for discussion. If any one person wants it discussed on Friday, it‘s discussed. And then after we discuss it, we will we go around the table for the discussion and people vote. And four votes is a grant.
If I want to hear it again next week, I can do that too. If you say something, I become uncertain, I will say I will pull it, I will hold it over, I will go back and look it up. So it‘s a pretty cooperative discussion.
LAMB: Eight of you on the well, yes, I guess, eight of you right now on the Supreme Court have been together since 1994
BREYER: Yes, yes.
when you became a justice. What would be the thing that we would notice that has changed since Chief Justice Roberts took over?
BREYER: Well, he‘s younger. And I will tell you, I have learned what an advantage that is. Chief Justice Rehnquist ran the court very fairly. He ran it very well. And I think Roberts will be absolutely fine. He has a sense of humor. And he is diving into this, it takes a while. And but it will be fine.
LAMB: Is it tough to walk a 50-year-old to walk in the middle of all of you and
BREYER: I would think so. You say, he comes in, my God, into this lion‘s den. We know each other very well. And but he‘s fine, he will be fine.
LAMB: What is a day like? I know one of the things you tell us in your book is that you split your time between Cambridge, Massachusetts, and Washington, D.C.
BREYER: Yes, I do because the well, what‘s the job? The job, I‘ve said this a lot of times, it‘s I mean, I told Michael, because it describes it when he my son, when he was in school, I would say, well, if you do homework very well you get a job, you could do homework the whole rest of your life.
And it‘s reading and it‘s writing. Now with word processors I can read and write anywhere. But I‘m here more than, because we have oral argument for two weeks, two weeks, two weeks, two weeks, two weeks, two weeks, that‘s it. And there are other things going on other parts of the time.
So I‘m in Cambridge some of the time. My wife still works she works at Dana-Farber, it‘s a cancer hospital and she‘s a clinical psychologist. And she likes it there. She has found it rewarding and she is working half she has now cut down to half time.
LAMB: I noticed you are a trustee on for the hospital.
BREYER: I used to be. I‘m not active now.
LAMB: Where did you meet your wife?
BREYER: Oh, I met my wife in Washington, D.C. She lived around the corner. I was working in the Department of Justice and she would come over. She is English. And she had come over for a year. She was working Henry Brandon, who was a correspondent for The London Sunday Times. And she lived right around the corner. And the people right between us knew both of us.
LAMB: Put you together.
BREYER: Yes. Though we were then introduced again later by Tony Howard, who was a correspondent for The Observer, another British paper.
LAMB: And how many years did you spend in Oxford?
BREYER: Two years, but that was before.
LAMB: So you have got a British wife.
LAMB: She is now an American citizen?
BREYER: Yes no, she isn‘t, actually. She has a sentimental attachment.
BREYER: Which I say, well then, you can‘t vote. And so she may, she may.
LAMB: And her father was a lord.
BREYER: Well, he was in politics, yes. And he was politics.
LAMB: But he wasn‘t a judge.
BREYER: No, he wasn‘t a judge.
LAMB: You have three children.
LAMB: What do they do?
BREYER: Chloe, my oldest, has become an Episcopal priest, since I‘m Jewish that‘s unusual for me. Joanna is Anglican. And she‘s married and has two children and her husband is in business in New York.
And my second one, Nell, is she‘s an artist and she has worked on things that are interactive. She went to the MIT video lab or media lab course. And she is doing interactive videos of different kinds. And she has had some success in that.
And, Michael, the youngest, he finished business school and he is now trying, with some friends and others, they have raised the money and they are trying to start a business involving wireless.
LAMB: You talk a lot about technology in your book
and how it seems to be important to you, the shifts, the change. How does a justice deal with the rapid change in technology and how it affects the law?
BREYER: It‘s important because what the Constitution and the laws are basically about is how are people going to live? And they are going to live in a world that is technologically different.
At this very minute I read that when Boeing wants to design a new aircraft, their engineering team is not just in Seattle, it‘s in Moscow, it‘s in India, in Bangalore, it‘s in Japan. And they communicate over a computer.
And that is the world in which our children and grandchildren will have to get jobs, and they will have to live. So it‘s important to understand that when you are interpreting laws and provisions that are going to affect that world, because it should be a better one for them rather than a worse one.
Now how do we know, is your question. And there are two parts to that I find very interesting. The first is, we can be educated in large part through the briefs. People file amicus curiae briefs.
In the right to assisted suicide case, for example, a very difficult case, we received 70 briefs or more, a few more, from groups, doctors for, doctors against, nurses for, nurses against, psychologists, retard people‘s groups. All kinds of groups try to educate us on the technology.
In computer cases we could set up in the library demonstrations of how the Internet works. We can be educated. But there is a different safeguard that I think is more important.
In my view and I think the view of many, the Supreme Court works best when it comes in last. That is, what we‘re doing is not telling people whether this statute or that statute is a good one.
What we‘re best at, take the area of privacy and computers and cell phones, people will get into arguments, they will write about it in the newspapers. Eventually Congress will act, or administrative agencies, and at the end of the day, not at the beginning, we come in to say, are those rules good or bad? No.
Are those rules on the rails? Are they within the border? So don‘t come in too soon in technological cases if it can be avoided so that other institutions have a chance to act, data can be developed, information arrives in the record, and we‘re less likely to make a mistake.
LAMB: How about your own technological use? How are you on the computer?
BREYER: Probably OK for one of my advanced years.
BREYER: That is to say
LAMB: Do you use that excuse
BREYER: Yes, I use that
BREYER: Yes, of course. And we‘re wired up. I mean, it‘s great for me because now if I can write something at home and I can just send it into my office, I can communicate instantly with the clerks.
And there is a separate system for security reasons in the court. But then I have a system that goes on to Internet too. And it‘s useful, it‘s useful. You want to I mean, it‘s fabulous, if you want to look something up now, you can find the magic words, enter them, and you probably can learn a lot pretty quickly.
LAMB: That‘s how I found out about your brother Chuck.
BREYER: Oh really? Good. I see
LAMB: What about a cell phone, do you have one of those?
BREYER: Yes. Sure.
BREYER: iPod, I have an iPod. Now, I‘m so glad you brought that up, because my son-in-law gave me an iPod for my birthday, and he has not yet shown me how to use it. And part of the present was that I would be instructed.
So between my son-in-law and my son, I expect to be iPod, what would you call it? iPod
LAMB: iPod literate.
BREYER: Thank you. iPod literate. I think I‘ll be iPod literate within the coming few weeks.
LAMB: And can I guess that it would be classical music that you would listen to?
BREYER: Oh, I listen to a lot of things. I like books on tape.
LAMB: You do?
BREYER: Yes. Listen to different
LAMB: And what kind of books do you normally listen to?
BREYER: Oh, anything, anything. I mean, I don‘t know, one of the things I liked was, we drove I drove with my son a few years ago back across the country. I think we listened to "Middlemarch."
Or I might listen I like Simenon. Do you ever read Simenon? He‘s a detective French detective writer. I it might be music. I do like classical music. I like opera. It could be it depends on what I‘m reading.
I‘ve read Walter Isaacson‘s biography of Benjamin Franklin very recently, which I liked very much. And was reading, you know, the McCullough things and some of the history. So I would suppose all kinds of things can come across. And I‘m totally indifferent to whether I‘m listening to them on tape or whether I‘m reading them.
I go jogging so listen on the tape (ph).
LAMB: So how much time have you given your son-in-law to get you iPod literate?
BREYER: I think a few weeks.
LAMB: In the recent discussion that you and Justice Kennedy and Justice O‘Connor had in front of the ABA, you talked about television in the court. What do you think, will it ever happen in the Supreme Court?
BREYER: It might. It might. I think there are good reasons and good reasons against it. And
LAMB: What‘s the best reason against it?
BREYER: The best reason against it I think is the problem that we could become a symbol since we are the Supreme Court, and if it was in our court, it would be in every court in the country, criminal cases included.
And when you have television in some, not all, criminal cases, there are risks. The risks are that the witness is hesitant to say exactly what he or she thinks because he knows the neighbors are watching.
The risk might be with some jurors that they are afraid that they will be identified on television and thus could become the victims of a crime. There are risks involving what the lawyer might or might not be thinking he would like to do. Is he influenced by that television when he decides what evidence to present?
In a criminal case where that could be factor, and the courts are concerned about safeguarding people‘s liberty, even for the most unpopular defendant, that can be a problem.
Now there are those who say it isn‘t. And there are those who say, well, if it were in the Supreme Court, that isn‘t your problem, and it would be a wonderful teaching device. I agree with that too.
So what you have, I think, in me and the other judges, is a conservative reaction, with a small "c." We didn‘t create the Supreme Court. We didn‘t decide Brown versus the Board of Education. We didn‘t write those great decisions that have led America to trust that institution. But we are trustees for that reputation, a reputation of great importance so that government will work fairly in America.
And not one of us wants to take a step that could undermine the courts as an institution. And that‘s the conservative reaction you get on the side of being against it. I hope eventually the answer will become clear, that either those who are concerned about the negative effects are shown wrong, or they‘re shown right.
But at the moment I think it‘s quite uncertain what the answer is.
LAMB: Let me go back to one of your earlier jobs in this in relation to this question. You were chief counsel to the Judiciary Committee. If you were there now, what would you counsel Arlen Specter about his bill to force the court to go on television?
BREYER: I don‘t know the bill. I would I think the fact is I‘m not chief counsel, the fact is
LAMB: I know that
BREYER: I have a different job, and my different job leads me to be pretty careful about counseling anything to the people in another branch of government.
LAMB: But can you sit in a branch of government that‘s independent. Can another branch of government tell you what to do when it comes to that?
BREYER: There you‘re going into an area which I‘m very hesitant to talk about simply because of my current job and because it‘s a matter of public debate at the moment. So I can‘t go into it.
LAMB: OK. Let me ask you another question about procedure. If the court decides things like television, does it have to be decided by all nine justices? And does it have to be a unanimous decision? And have you ever talked about it in the court?
BREYER: We haven‘t, since I‘ve been there, talked we haven‘t actually taken a vote. I mean, most things you can decide five to four, but sometimes people will say, well, I think this is such a change that you need a larger majority or I wouldn‘t want to vote this way if I thought there were four people who wanted the opposite.
So it‘s I don‘t have a good answer to your question because that particular issue hasn‘t come up. So I don‘t know.
LAMB: One of the reasons I ask you is that Justice Souter said once that there would be television in the court over his dead body. And I just wondered if he has that kind of power to prevent it from happening from one justice‘s point of view?
BREYER: I like Justice Souter very much, and I certainly would never want to see his dead body, but the it‘s not at a stage where there is a formal answer to your question. I‘m not being coy about that. I don‘t know how he would decide.
I‘ve thought and I‘ve not said this thing about a dead body because I really see the issue as quite a close one. And I do see it as good arguments on both sides. And when I see something that is significant and evenly balanced, I think it‘s better to either go slowly or try to get serious studies that not just about how judges react, but about social attitudes.
What was the impact of having television in the courtroom here or there? What is it, the impact on average people, not just the impact on some lawyers and judges? What did we could study that further. I think we could look and get good answers. I don‘t think it has been done. I haven‘t looked at somebody said they were sending me some studies, but I haven‘t seen them. And so maybe they exist.
But or you can sort of go slowly. We‘ve had radio. We had radio in two cases, I think the Bush v. Gore and campaign finance. It was fine. It didn‘t produce a tremendously negative consequence or reaction.
So people could there are ways of experimenting. There are ways of going about this. I do think it‘s important. I do think it‘s important. And I think it should be measured and thoughtful.
LAMB: You talk you quote often in your book, "Active Liberty," Judge Learned Hand, and for years you see Judge Learned Hand quoted a lot, why?
BREYER: He had such good qualities. He was thoughtful as a judge. He went into matters deeply. He understood there were no good answers. There are no easy answers. There rarely there are certainly no flip answers and there are rarely easy answers.
And he would go into a case very thoroughly and he was able to get the essence of it. And he was able to explain it clearly. And he was very patriotic. And he was able to understand the importance of liberty in our Constitution. And he produced all those things beautifully written.
LAMB: Where was he? Where did he serve as a judge?
BREYER: He was in the Second Circuit. He was on the Court of Appeals for the Second Circuit. An excellent biography about him was written by Professor Gerry Gunther at Stanford. It‘s a good biography and it explains what an unusual person he was.
LAMB: You also often quote in here Tocqueville.
BREYER: I quoted Tocqueville I read it or I say I re-read it, but I probably read it for the first time a couple of years ago. And it‘s so amazing. It‘s so amazing to see what he says about the United States of America in 1840, 1830s.
He comes here, the first thing he says is: "What you notice when you come to the United States is a huge a clamor." What he means is everybody is screaming at each other about politics. I look at what goes on today, and maybe it isn‘t so different.
He says that clamor is a democratic conversation, maybe not always beautifully presented, not always in moderate tones, but the result of that conversation or debate is that we‘ve figured out in a country of 300 million people how to resolve our differences without going to the streets. That‘s pretty good.
He says, what is it that allows this democratic system to work? Why does it work? Why does a system where everybody thinks everybody in principle is at least as good as everybody else they don‘t really think that, but they have to pretend to, why in such a system doesn‘t why don‘t you have tyranny? Why don‘t you have wide swings? Why does the government work at all?
And he answers that by saying people get practice. They get practice on how to listen to other people. Where do they get practice? In town meetings, local government, in 1830. And today you would they get practice in school.
When the teacher has that little group of fifth graders and says, now you do a project, and the project isn‘t going to work unless they get some agreement among themselves, they are learning democracy. They are learning how to do it. I think that‘s great.
And but I think why I quote Tocqueville so much is that it adds to what I believe so much, that people have to participate in this democracy for it to work. I can‘t prove that, but I can say that the document, the Constitution foresees that they will participate. And if they don‘t participate themselves, I don‘t see how that system is going to work.
LAMB: Which writer in history, and that writer could be a Jefferson or it could be a Tocqueville or it could be anybody else, has had the most impact on you?
BREYER: Writer, had the most impact
LAMB: Well, philosopher, writer, you know
BREYER: It‘s hard to say because of the fact that I think you vary over time. If you say, well, who do I immediately respond to, there would be a number of things. I absolutely responded to this thing of Tocqueville, absolutely.
If you go to judges, when I read Brandeis in our court, I respond and think, that man is trying to deal with the kinds of problems I see, and I appreciate the way in which he deals with them.
When I read these recent biographies, I loved Benjamin Franklin. Why? Because he was so practical, and he had a sense of humor, which I think is important.
So there are many, probably because of the English education that I had at Oxford, you know, and the philosophers, they were the British empiricists had a that that‘s the philosophy part.
LAMB: I‘m looking back at the article on your brother, because one of the things they say about your brother is that he was practical.
BREYER: Good! That was that comes from our father. That comes from our father absolutely. He did not like a solution if it wasn‘t a practical solution. It would get your object and not be off on some theory that maybe would sound good but would not get you the objective.
I think that was absolutely a part of what he thinks. And a person who influenced me a lot in the judiciary, whom I really liked, was John Wisdom, who was a great judge in the Fifth Circuit in Louisiana, who was in that group that helped desegregate the South.
And when he was in Boston, we had a case, and I can just remember it. We were sitting there. It was really pretty complicated. And I said, well, should we go into this? Do you prefer, do you think, this sort of more, you know, rather detailed theoretical approach here? Should we take the practical approach?
The practical approach, he said. And he was right.
LAMB: When did your father pass?
BREYER: In 1979, I think, ‘79.
LAMB: So he didn‘t see you as a judge at all?
BREYER: No, no, he didn‘t. I have his watch.
LAMB: You wear his watch?
BREYER: Yes. It says "San Francisco Unified School District 1933-1973 Irving Breyer," yes.
LAMB: What was he like?
BREYER: Oh, he was great. He was he had a good sense of humor. He was warm, kind, liked other people, very gregarious, and pretty thoughtful, pretty thoughtful.
LAMB: What was your mother like?
BREYER: My mother is more on the intellectual side. She had a couple of brothers who taught. And she was you know, I say, which is true, that she was devoted to her children and highly intelligent and a very definite person. And of course, we adored her and most sons do.
And I say, well, you know what grandfather, her father, if he had been told that his grandson would be on the Supreme Court well, suppose you said his grandson, who is a Jew, will be on the Supreme Court, and there will be another Jewish member of the court, he would have said, you‘re lying.
If you told my father, your son will be on the Supreme Court, he would thought, that‘s very that‘s incredible. If you told my mother, she would have believed it.
LAMB: We‘re almost out of time. What‘s the experience of, as a justice, making the rounds, talking to people on television about your book, what has it been like?
BREYER: I found it rewarding. I felt I‘ve been able to get across not necessarily so much about the book, but I really want to get across to people who aren‘t and who aren‘t lawyers a little bit of what the Supreme Court does.
What is it I do as a judge? How do I approach the job? How do we all approach the job? I will tell people, they will sometimes be surprised they will say, you know, we disagree not as much as you think, 40 percent of the cases are unanimous, but we do disagree. Twenty percent five-four, not always same five and four.
But we‘ve never I‘ve never in that conference room in 11 years heard a voice raised in anger. I‘ve never heard one judge say anything slighting about another, not even as a joke. So we get on. And that comes sometimes as a surprise to people.
But they like it, I hope, because it shows people of different views can get along. And in a country of 300 million people with their 500 million different, it‘s important that people understand that differences of opinion does not mean you can‘t get on.
LAMB: It‘s a small book.
BREYER: Yes, it is.
LAMB: And it looks like this. It‘s by Stephen Breyer, call "Active Liberty." And we thank you very much for joining us.
BREYER: Good. Thank you.