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October 17, 2010
Justice Stephen Breyer
Author, "Making Our Democracy Work"
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Info: Our guest is Supreme Court Justice Stephen Breyer on his newest book, Making Our Democracy Work: A Judge’s View. In the book, Justice Breyer explains the workings of the judiciary in an attempt to gather support for the court and its role in our democracy. Justice Breyer has been on the high court since 1994. Prior to that, he was a judge on the First Circuit Court of Appeals based in Boston. He previous books include "Active Liberty," "Breaking the Vicious Circle," and "Regulation and its Reform."

Uncorrected transcript provided by Morningside Partners.
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Q&A with Justice Stephen Breyer

BRIAN LAMB: Justice Stephen Breyer, author of ”Making Our Democracy Work,” if a young person came to you now and said, ”I really like reading about you and your past and your biography and all that, and I want to be what you’ve become,” what would you advise them to do to start to learn the process of understanding the law?

JUSTICE STEPHEN BREYER: I would say, first of all, I would like you to pay attention. And if you’re reading about me – why, if you’re reading about the Court – then I’d like you to read about why the Court’s important to the public, because that’s really what I’ve tried to write about.

But when I – when people ask for personal advice, how can you be a member of the Supreme Court of the United States -- I get that question; most of us do, members of the Court, usually from people in college, really, and they’re worried about their lives, and I can understand that – so I tell them two things.

The good advice I got from Bayless Manning, who was dean of Stanford at a similar time in my life, he said, I hate to tell you – you won’t have the information you’d like to have when you make your career choices. We all make choices. We all make choices when we just have to choose, and we don’t have every information or piece of information we’d like, but we make decisions.

And as long as you stay away from what will obviously be ridiculous decisions, there’s no way to say what’s better. You make your choice. You decide what you’d like to be, what your career you would like to start out in, maybe who your family will – whom you’ll marry, what will your family be.

And then your life folds itself around your choices. And you’ll have some good times, and you’ll have some bad ones. And there we are. So don’t worry quite as much as you’re worrying.

And the other thing, because they feel I’m evading their question when I say that, I’d say my father gave me good advice, because he said when you -- when you have a job and someone wants you to do something, well, the thing to do is you do it, and you do it as well as you can. And you take into account what other people are thinking, what the needs of other people are.

He said, now, if you do it well, and you pay attention, then maybe someone will notice. And if you’re noticed – if you’re noticed, you might get a better job. But maybe they won’t notice. But then still you’ve done that job well, so there’s no lose.

And I can’t go beyond that, because every one of us who is a member of the Court knows that he or she has benefited not just from the law and from other jobs and from other people, but has also been the beneficiary of awfully good luck.

LAMB: In your book you say that only 29 states require civics teaching.

BREYER: I got those statistics from Justice O’Connor. And I think that’s one of the reasons I wrote the book. When I was a student in high school in 12th grade civics, we’d get on the bus, and we’d drive up to Sacramento and San Francisco. And we’d see the legislature in session, we’d see the governor, we’d go back to the city, we’d learn how city government worked, and we learned how the national government worked, too.

I think the document I work with, the Constitution, I have it every day, because I work with it every day. It doesn’t tell us how to run the country. It tells us we’ll have a process called the democratic process that will help us run the country. But it won’t work if the average citizen doesn’t know how it works. It won’t work. I’m trying to write that in my book. I want people to know what the Court’s like, because unless they know what the Court’s like, they can’t really run this country well. And ultimately, they’re the ones who have to run it.

LAMB: Can you remember the first person that got you interested in the law, or what thing got you interested in the law?

BREYER: My father was a lawyer. He was a lawyer for the school board of San Francisco. This is his wristwatch. I really wanted it when he died, because it says on the back – it says, ”Irving G. Breyer, Legal Advisor, San Francisco Unified School District, 1933-1973, from his friends.”

And that was 40 years he worked there. And it was – in those olden times, you know, we didn’t – perhaps we sort of took a few things accepted as given. And I knew – I always knew I wanted to be a lawyer. And he’s probably the reason.

LAMB: ”Making Our Democracy Work” – I want to ask you where in this country did the separations of power idea come from? Where did we get it?

BREYER: That’s a good question, because when they wrote this, I think the framers had in mind both the English example, where they had a king and there was a parliament, but they also had Montesquieu in mind, who had written about the – in the 18th century had written about separation of powers. But he was really seeing the legislature on the one hand, the executive on the other, and probably foreign affairs on the third.

And then they worked with that. Indeed, you might’ve seen in the – in the National Archives they have documents written by Madison, and Madison has little notes and pictures of governments all over the ancient world – Syracuse, Rome, Athens.

So they learned from a lot of different places. They took that experience – they had the British model; they had the French Enlightenment; they had the Scottish Enlightenment – and they put it together.

LAMB: Was it your idea on this cover right here to put this from the archives?

BREYER: No, it was actually my publisher’s idea, and it was a very, very good idea. When I saw it, I thought, ”Good. There’s George Washington and Benjamin Franklin, and maybe I will benefit from the association.”

LAMB: Who’s your favorite founding father?

BREYER: If I had to take a favorite, I think whom I like of different reasons. Franklin is impossible not to like. I don’t know if you’ve read Walter Isaacson’s book about him. I mean, why is he such a lovable person? He’s a man of principle. He opposed slavery at the time and told them not to make compromises on slavery, advice which they ignored.

He seems to have been a lovely man. He went as ambassador to France. Everybody liked him. Here’s a story. Would you like a story that Walter Isaacson said he told? He said he tells his story when people were being too rigid and puritanical.

He says, ”I tell my friends from Boston this story, the Puritans who come to see me in Philadelphia. And when they’re being too puritanical, I say to them, ’But have you heard this story – I’m sure you know it – of Abraham and the 10,000-year-old man?’” Here is the story.

At 10,000-year-old man came to Abraham and said, ”Could I spend the night?” And Abraham said, ”Well, yes, but I’d like to know how do you feel about my God?” He said, ”How do you feel about God? How do you feel about God, the God that the Jews worship?” And the man said, ”I hate that God. I hate God” – and these horrible blasphemies.

And Abraham said, ”Well, can’t stay here in that case. I don’t want somebody who hates God in my house.” And after God said to Abraham, ”Abraham, why did you do that,” he said, ”But, God, he was blaspheming your name. He hates you. He hates God. How could I...”

God said, ”Abraham, I’ve put up with this for 10,000 years, and you can’t put up with it for one night?”

You see what kind of a man he was. You see what that shows – I mean, a really decent, tolerant, open-minded kind of person.

LAMB: Then next, though, I would ask you is which...

BREYER: Hamilton.

LAMB: Hamilton.

BREYER: Yes, Hamilton.

LAMB: Why?

BREYER: Because Hamilton, when you read the biographies of Hamilton – I read, what is it...

LAMB: Ron Chernow?

BREYER: Yes. I thought that was a very interesting biography. He is a truly brilliant man, and he’s a very practical man. And George Washington – he writes well – and George Washington used him to get his ideas across. It was Washington and his staff person, Hamilton, much of the time. And he saw the need for a reasonably strong, efficient federal government, as well as state governments.

Then Madison – I mean, Madison – what a group; terrific – Madison wrote these words. Madison solved problem after problem. Madison studied nonstop, and he translated what he’d read about the democracies and republics into the Constitution.

And then there’s Adams. I mean, it’s worth anyone’s time, I think, to read the biographies of Hamilton, Adams, George Washington, of Madison. Read about them – a truly remarkable group of people brought together at a remarkable time.

LAMB: This is not quite a connection, but in your book you talk about if you could revisit a case that you would be involved in or overturn was the one about either gerrymandering or gerrymandering.

And the reason I mention that – Elbridge Gerry is one of the three who didn’t sign the Constitution back in those days. What’s the connection there with – I mean, what’s – I don’t know if you know that much about his thinking, but what’s the whole gerrymandering thing about that you want to change?

BREYER: Well, then I put that in, and it was a – it was a case which was a close case and difficult, and the question was under the First Amendment, is there anything the courts can do when legislatures dramatically and drastically gerrymander a district so that they can just about assure that it will be a Republican or that it will be a Democrat?

And the reason that I – that I listed that – I could have listed others – but I listed that as a case where I wish that I had been in the majority is because I thought courts could do something about preventing it in extreme circumstances. And if courts prevented that in extreme circumstances, it might mean states would be moved to have bipartisan commissions.

And the reason, of course, I thought all that was so important is because unless the basic electoral process works fairly, we will not be able to have a democratic government. And one of the aspects of that is that people become too cynical, because this is going to be Republican for sure, it’s going to be a Democrat for sure. The only possible challenge is mounted by the left if it’s a Democrat or by the right if it’s a Republican, and that seems, from what I read, to drive people apart.

LAMB: We’re going to have a little bit of activity in this area in the next year or so with the census and all. Do any of those come all the way to the Court?

BREYER: Well, there was one that did. You see, that’s the one I’m thinking of. And the majority of the Court said there is no standard that judges could possibly apply to catch the gerrymandering and preventing it. And I thought often that’s true, but sometimes it isn’t.

LAMB: Had you been involved in a constitutional convention?

BREYER: Had I been – what?

LAMB: If you were – if you had been there in the beginning, would you have signed it?

BREYER: Oh, well, that’s, of course, I would have signed it.

LAMB: I mean, the anti-...

BREYER: And, no, there isn’t one person in the country – well, there may be one – but I’d say if you do a poll on that question, I mean, everyone’s going to think that they would have signed it, and the reason is very simple one. We’ve had our ups and downs, but by and large it’s worked pretty well over the 200 years.

LAMB: I guess I was – if you had been in that time – I mean, there were three that didn’t; a bunch didn’t show up at the convention back in those days – and whether or not you were – you know, based on your own thinking of the law, whether you like the Constitution looks like now.

BREYER: Well, yes.

LAMB: Had you been then, give me your own thinking.

BREYER: Yes, I do. The hardest part of that was the slavery part, because they simply booted the question on to the next generation, and they made a lot of compromises in order to get the South to join, yet the answer was you make the compromises or there won’t be the United States of America.

The basic outlines of the document – and as you correctly point out, it’s changed some over time. Not everyone was allowed to vote then. Women were not, as well as slaves. We’ve had amendments, the Civil War amendments that have made it more and more democratic. It brought everyone in to the country.

But still, the basic point, when you read the document, you have seven articles, and those several articles create institutions that are now, and really were at the time to a lesser degree, but some, democratic in nature. It’s a certain kind of democracy. It’s a democracy that protects basic human rights – first 10 amendments, the Bill of Rights. It assures a degree of equality now.

It divides power – horizontally, three branches; vertically, states-federal – so that no group of people in government can become too powerful. And it insists upon the rule of law.

Now, those five things there, you see, are like pillars of the country that’s been able to hold itself together as it grew from 4 million to 300 million people, and all that time has had a basically democratic form of government.

LAMB: In Nevada right now, as you probably know, they have a proposition to go from having judges appointed by the governor to having them elected. And one of your former colleagues – or still, I guess – retired justice, Justice O’Connor, is going around. She doesn’t like that idea.

What do you think of the idea of electing judges versus appointing them?

BREYER: Well, I’ve said, and so has Justice Kennedy and so has Justice O’Connor, there is a problem in that, and the problem is very simple. Suppose you’re a very unpopular person. Now, maybe you’re innocent, and you’re going to have a trial. Do you want to have a trial before a judge who might lose their job if in fact she decides in your favor?

I mean, suppose you’re a group, a group of people who are intensely unpopular. Do you want to try to protect your rights before a judge who, if he decides in your favor, will lose his job? I mean, we’re federal judges. And Hamilton writes in ”The Federalist 56” that, really, the reason to give the power of review to set aside unconstitutional laws to judges is because they should not be made by the political branches.

Why not? Because if you want popular decisions, it’s the political branches. Have them make them. But there’s lots in this document that says decide for people who are unpopular, because they have rights, too. So if you want to enforce the document, you better give the job to someone who is not totally dependent upon the public for his job.

LAMB: Would you say, then, that all the states in the union or those communities that elect judges are making a mistake?

BREYER: Well, they’ve worked out a lot of complicated systems. It is sometimes quite so elective as you think. I mean, they have appointments and then ratifications or confirmations, because at some level most people understand the point I just made, and they will at some level reflect in their voting decisions.

But what’s changed, reading the last 20, 30 years, is campaign contributions. And if you have vast campaign contributions by one group that’s affected or another, if it becomes the trial lawyers versus the insurance companies, or it becomes to other groups, each trying to raise the most possible money and buy ads, there’s no telling what will happen. And I think the result on the judiciary there will be unfairness in decision-making, which is very harmful.

LAMB: While you’re on that note, what do you say to – and I know you’ve heard this probably and have had discussions with people – they say this town is broken, this system is broken. It’s because of the very thing you’re talking about, the money.

BREYER: Well, they’re looking at that. And my own – it’s totally personal – view, but I always thought, well – and it’s what makes me laugh and might make you laugh a little bit – when you think of Winston Churchill’s remark, he says, ”America always does the right thing after exhausting every other possible alternative.” And you think at bottom, people have sense.

And the great thing, I think, here is, really, the fifth grade, because in the fifth grade your teacher or my teacher would have told you, ”Now, we’re going to have a project today, and we’re breaking the class down into groups, and you’re going to have four or five people trying to get this project done.” And when you’re in the fifth grade and you’re working on a project, you’re not going to get your way if you try bossing people. It’s called cooperation. And you try to learn how to work with other people to achieve an objective.

Now, I think we’re pretty good specialists in that, and I think when people see something broken, or if they think it’s broken, they have a reaction. And the reaction is two words – fix it. And so they’ll have the despair instinct, and we’ll have the fix it instinct. And in my opinion it’s the fix it instinct that normally works out.

LAMB: Any sense of how to fix it?

BREYER: Well, there I would be intruding, because you’re talking about other branches of government, and I’m pretty careful when I stray away from the confines of my own branch.

LAMB: In the book one of the earliest things you talk about is judicial review. Judicial review, I guess you’d say, was not in that Constitution.

BREYER: Well, that’s a good question. I think if you look at Gordon Wood or if you look at the historians of the time, yes, it doesn’t say here – nothing says here – that the Supreme Court will have the power to hold unconstitutional a law of Congress. But if you read ”Federalist 56” and if you look at the convention, you will see that Hamilton in writing that, and Madison and the others, probably thought that that’s what would happen, that the Supreme Court would have the power.

In ”The Federalist Papers” Hamilton says, ”Why should we give them the power? Why should they have the power to strike down a law Congress is unconstitutional?” Well, he says, ”Somebody should have that power.” If nobody has that power, you could take this document, and we will put it in the Smithsonian and hang it on the wall. And then people can admire it as they might admire painting. But it will mean nothing, because everyone will have gone his own way.

He said somebody has to review it. Or should that be? The president? If the president reviews it, he’ll become a tyrant. Too much power already, if anything – that’s the thrust. Congress? Because the Congress is an expert at who is popular. They wouldn’t be there in their jobs if they didn’t know what was popular.

And so what do we do when we come across protections for people’s liberty, where the protections are needed? They’re not needed when you’re popular. They’re needed when you’re unpopular. He says Congress won’t do that – at least, not very often. They won’t pass a law that’s very popular, turn around and announce it’s unconstitutional.

Let’s try the judges. The judges are obscure. They’re sort of bureaucrats. Nobody’s ever heard of them. They don’t have the power of the purse. They don’t have the power of the sword. They’re weak – perfect. We’ll give them this, because they’re sort of professionals, and they won’t go too far.

Now that’s, I think, what his reasoning is. At least, it’s my paraphrase. And I’d say he did not ask one important question, which you would only ask of history. That question is if these people are so weak, and if they’re going to do what’s unpopular, why would anyone do what they say? Good question.

That’s Hotspur’s question, you know, in ”Henry IV” – Owen Glendower, who is a Welshman, so he’s a mystic – all the Welshmen are mystics – but he says, ”I can summon spirits from the vasty deep.” And Hotspur replies, ”Yes,” he says, ”so can I. So can any man. But will they come when you do call for them?”

Now, that’s a pretty good question, an interesting one to me. And I spend quite a lot of this book giving examples to show people that it was by no means certain that the public would come – the Cherokee case, where they didn’t; Dred Scott, where the court just about caused the Civil War, a terrible case; Little Rock, which was a wonderful case for the reason that President Eisenhower sent troops to Little Rock to enforce desegregation. We can remember that.

And gradually over time, the Court earned its way, making many mistakes and deciding many cases that weren’t mistakes. It is only over time that people have gradually come to accept the need for a court that will make decisions that they won’t like sometimes.

And I don’t think it’s a secret some of those decisions will not be right. Indeed, they are often very close questions, and people divide whether they’re right or not. Why should you accept such an institution? And that’s what I want people to see.

LAMB: Well, go back to the beginning. This is so hypothetical you may not even care about this question. But if you had been asked to be on the Supreme Court before John Marshall or after John Marshall – I mean, and that’s why get to the judicial review, how that was established. And John Marshall – what – still is the longest serving Chief Justice, what – 34 years?


LAMB: I mean, John Jay left the court.

BREYER: Yes. What a difference. What a difference. It was a very weak institution. John Jay preferred to be governor of New York, and he went off and negotiated the Jay Treaty.

He had to ride long hours on horrible roads to sit in circuit in some very distant place and live in a boarding house and not – the Court didn’t have very much to do for the first few years. There were hardly any cases. But that didn’t mean they slept all the time. They went and sat in lower courts. And it wasn’t a particularly important job.

Then Marshall created, which I think was implicit in the Constitution, the basic foundations for the country that became the United States in the 19th century. And one of them was what you say – that the Supreme Court does have the authority to declare a statute of Congress contrary to the Constitution of the United States.

LAMB: How did he do it?

BREYER: Well, he was the kind of Houdini. He was like Houdini. It was like magic. And you see that Mr. Marbury had been appointed a judge. He’d been appointed a judge by President Adams, who wanted him, really, what is a Federalist appointee. But the Federalists had lost the election.

Adams, and indeed Marshall, who was Secretary of State at that moment, didn’t get the piece of paper called the commission to Mr. Marbury on time. And when President Jefferson came into office, he said, ”I’m not going to give it to him. I don’t want him as a judge.” So Marbury sued Jefferson, but in fact he sued Madison, who was Jefferson’s Secretary of State -- famous case, Marbury versus Madison.

Now, what was the worry? It was a practical worry. If the Supreme Court said, ”Marbury, you are not entitled to that piece of paper,” they look awfully weak, because the law was awfully clear he was entitled to that piece of paper. He’d already been appointed. He’d been confirmed. Everything was done. If they say he isn’t, they really look like they’re not doing their job, and people are going to sort of laugh and say, ”Well, that’s ridiculous.”

But if they say, ”You are entitled to the piece of paper,” Jefferson wouldn’t give it to him anyway. I mean, that was the fear. And there was plenty of good concern for that. So Jefferson, the president of the United States, just ignores the Court. That’s even worse. Then the Court looks powerless.

So you want to know what Houdini did? What Houdini did – I mean, Chief Justice Marshall – he writes the following. He says, ”One, we live in a country of laws, so everybody has to obey the law, even the President of the United States.” Then he says, ”The law says throughout the long time, where there’s just a minor ministerial duty, like delivering the the person’s of paper that a person’s entitled to as if you go the land office and ask for a copy of your deed, the person who has that piece of paper has to give it to him. There’s no doubt about that.”

And he says, ”Third, courts have the power to enforce that.” Of course, they do.” And so, ”Fourth, he certainly should give him the piece of -” oh, wait a minute. ”We, the Supreme Court, can only hear cases of a kind that are listed in the Constitution. And the Constitution doesn’t say anything about giving writs, called mandamuses, in a case of first instance.” Is that technical enough? That sounds pretty technical.

LAMB: It is.

BREYER: They came right to the Supreme Court as a first instance. It lists here what is a first instance. The Supreme Court could give relief, and it doesn’t say mandamus. Now, the statute did say mandamus, so Marshall says, ”Now we come to a great question. The question is here is the statute. It says that we can issue the writ and make the president give you, Mr. Marbury, the piece of paper. But the Constitution doesn’t say we can do that, and so we don’t have the power to do it. And what about the statute? It’s unconstitutional.”

Now we have this great principle. The Supreme Court can say whether a statute is constitutional or not. We have a great action. The action is they said it was unconstitutional, and Jefferson cannot do anything about it. Why not? Because he won.

And by the way, the whole thing’s so technical that nobody will understand it except four lawyers, and the only way that the rest of the country will understand this is the Court has the power to declare a statute of Congress unconstitutional.

And that did not pass unnoticed at the time. Jefferson wrote a letter, which I saw, I think, during one of your events somewhere. They had a copy of a letter that Jefferson wrote to his lawyer, referring to this case. And he was virtually sputtering. He said, ”Don’t pay any attention to that case. John Marshall’s just grabbed this power. This is a terrible thing.”

But, of course, his saying that in the letter didn’t really do much. His having defied the court would have done quite a lot, but he couldn’t, as I said, because he won.

LAMB: Do you remember what the vote was?

BREYER: You will just look that up. You tell me...

LAMB: I don’t know. I haven’t looked it up.

BREYER: I don’t know that anyone dissented.

LAMB: Was it a nine – do you remember if it was a nine...

BREYER: There weren’t nine at that time. I think it was seven at that time.


BREYER: Yes, six or seven.

LAMB: So why did – why did everybody go along with it?

BREYER: Because they thought it was right, I think, because at that time, if you read – again, read Gordon Wood on this; I’m not the expert – but I think the historians say that by and large, by and large – not everybody – but by and large, the founders had thought the court should have this power.

LAMB: Define -- specifically define writ of mandamus. What are those words...

BREYER: Oh, you want me to get into the detail?

LAMB: Well, now, I don’t want to go into great detail.

BREYER: A writ of mandamus – I issue a writ of mandamus as a judge. That is an order to an official and tells that official, ”You do this. I’m sending you this writ. You do it.” OK? It tells him to do something.

And in the case of Marbury versus Madison, what Madison -- what Marbury wanted was a writ, a piece of paper signed by the Court, issued to Madison, saying, ”Mr. Madison, you hand over that commission to Marbury.”

LAMB: You don’t know what happened to Marbury?

BREYER: I don’t, actually. I think he could’ve brought another suit, maybe in some other court, but I think history tells us he didn’t. Maybe he gave up.

LAMB: Do you remember, when you were growing up, where you went to learn all this?

BREYER: I learned it – I learned that...

LAMB: No, I mean the whole process of understanding the law itself.

BREYER: Oh, understanding the law? Before law school when I was growing up, I was at Lowell High School in San Francisco, and they did have 12th grade civics.

LAMB: Did you really debate Jerry Brown back in those days?

BREYER: Yes, we did. We did. He was at St. Ignatius. He was good. He was at St. Ignatius, and I was at Lowell. And we had Mark Leland, and me – I was with the debate team from Lowell, or one of the teams, and it was Jerry Brown and Pete Finnegan. And they were the – they were the St. Ignatius debate team. They were one of – one of the groups there. And I think we – yes, we used to debate.

LAMB: What did the debate experience do for you?

BREYER: Oh, a lot. We had a great, great, great debate coach named George Lorbeer, who had been the debate coach for my father and who went to high school in San Francisco with Jerry’s father, Pat Brown. And George Lorbeer was very experienced. We’d take topics of the day, and you had to – had a little bit of time. You had to make up some arguments, and there were judges who decided who produced the better arguments.

LAMB: What kind of – do you remember what kind of arguments you had in those days?

BREYER: Sure. I’m sure we will, because we had topics for years. One of the topics was should, I think, whether – oh, gee, whether there should be universal conscription, whether there should be the draft continuing even in peacetime. That’s something people still debate.

UNIDENTIFIED PARTICIPANT: Where were you on that? What would you...

BREYER: Well, you had to do both sides. You had to – sometimes you didn’t know which side you’d get. Sometimes you’d get one side; sometimes you’d get the other side.

LAMB: Was Jerry Brown any good?

BREYER: Oh, yes, he was fine.

LAMB: In your book you also spent a lot of time talking about another term that is used often, and I want you to please define the term – habeas corpus.

BREYER: That’s a very important, very important writ. If you go back into history, one of the documents that was most important for, as it turns out, for America and the rest of the free world was the Magna Carta, where King John said to his barons, ”I will not run the country wildly according to whatever I happen to want at the moment. The people will not be deprived of their liberty or their property without due – without legal process.”

Now, keep in mind that – keep in mind that one of the things people worried about what someone in the government – for example, the king – just doing whatever he wanted, not according to law. Over time there developed a writ, which was just like, remember, the writ of mandamus? Well, this was a different writ. The judges can issue it, and it’s called the writ of habeas corpus.

And what it says, it says to a person in confinement. It goes to his jailer and says, ”You have a body.” That’s why it’s habeas, you have; corpus, a body. You have a body, and you bring that body to me. I want to know why you’re holding this person. And so it gives the judge the power to ask of any man or woman who is being held in confinement, ”What’s the law that permits you, Mr. Jailer, to hold this person in confinement?” And if there is no law that validly allows that person to be held, the judge can let him out.

Now, I have a case once in this in the – when I was a judge on the First Circuit. It really was a classical case of this kind of thing. There was a man, who came from the Dominican Republic, tried to enter the country in Puerto Rico, and for some reason he was arrested, and he was put up in some place of confinement, some kind of prison, where he couldn’t get out. And no one was doing anything about his plight. He got a note out the window attached to a rock, saying, ”Give this to my wife.”

His wife got a hold of the note, went into the court, and said, ”Judge, this is the note. They’re holding my husband somewhere.” And the judge said to the immigration service, ”What’s going on? Where is he? Bring him here. What’s the authority of the law?”

That’s what that writ is there for, and that’s why it is so terribly important, so that people cannot hold other people – government cannot hold people in prison without the authority of the law.

LAMB: And you decided to go over all the cases around Guantanamo – not all of them, but a lot of them that came to the court and discuss that. You had Hamdan – Hamdi – can’t remember the rest of them – Mudiand...

BREYER: Yes, there were four cases that came out of Guantanamo, and I did describe them. I was pretty careful to describe the two sides, I think, and I haven’t made too much editorial commentary on those. But I want people to see something. And I put them in this book – those cases in the book and juxtaposing them with a different case called Korematsu.

Now, I don’t remember – or know if you remember Korematsu. Korematsu was the case where seventy, eighty thousand Americans – American citizens of Japanese origin in 1942 were taken from their homes on the west coast of California and moved into camps in the mountain region. The military did that, because in the military’s view they posed a threat at a time when the Japanese might have invaded.

Now, I can remember that from my childhood, because I remember soon after the war drive in with my mother down the peninsula, and there was Tanforan Racetrack, and my mother said, ”Well, that’s where they help the Japanese in World War II. That was a gathering place.” And I don’t think from her tone of voice she approved that.

LAMB: These were American...

BREYER: These were Americans. They were American citizens.

LAMB: Were they born here, a lot of them?

BREYER: Yes, yes.

LAMB: But they just looked Japanese.

BREYER: Yes, that’s right. That’s right.

LAMB: Put them in – I mean, that was the...


LAMB: What is it? Were those the nisei? I can’t remember the...

BREYER: Nisei, yes, that’s right. But there was this – when you use that word, you’re probably thinking of a special battalion that fought in World War II on our side that was made up of Americans of Japanese origin. And they were very brave, very brave indeed, and were decorated. They fought in Europe, and they were decorated all over the place.

And there is in one of, I think, it’s Ken Burns’ movie, or one of those movies of World War II, the son, who’s just received all these decorations, goes to visit his parents, and the parents are being held in a camp with barbed wire all over. So he says to the commander, ”This is so odd. Why are you holding them here when I’m not fighting for the country?” And the commander said, ”Well, that’s the -- that’s the armed services.” He says, ”Sometimes it gets mixed up.” The commander was not sympathetic to holding them, but the law was that they were holding them.

So by 1944 it was pretty apparent there wasn’t a risk of any invasion, and the Court got the case. And by 1944 one of the most interesting parts of this is it was also apparent to the Department of Justice that there had never been a basis for holding these people – never.

And at the time, the man in charge – whom they knew who it was; it was a General DeWitt -- knew there was no basis. He’d been told that by J. Edgar Hoover. I mean, J. Edgar Hoover told him, ”The FBI doesn’t want these people moved. We know who the spies are, and they aren’t it.”

And so they knew that in the Department of Justice. And they basically told the Court that, but the Court upheld this imprisonment. It upheld it. So I want to ask this question why did they. That was Black, Douglas, Frankfurter. These were people who later decided against segregated schools. They weren’t terribly reactionary people, and their natural instincts would have been against it.

Why did they uphold this injustice? And I think the answer is they thought that, well, we can’t get involved in this. It’s the military trying to protect us from invasion. Now, we run the war or Roosevelt runs it. And we can’t run it, so we have to let Roosevelt do what he wants.

Now, to go back to your Guantanamo question, that I think is the very, very difficult and a very important question in this area, is is there a middle way? Is there a role for the Court to protect basic individual human rights guaranteed in the Constitution in time of war without turning the Constitution into a suicide pact?

Because it’s not a suicide pact, and the president and the Congress have to have, and they do have in that document, adequate power to protect the country. So when these two things conflict, does the Court just get out of the way and say, ”No, it’s somebody else’s job”? Or does the Court make some effort to reconcile these two competing and opposite necessities?

In Guantanamo Bay tried the latter, and I want – I want the public, who reads it, I want people to understand what it is that Court did. And I say there, which I firmly believe, it won’t be for perhaps many years before people will know whether the Court was right or wrong.

LAMB: And what did the Court do?

BREYER: What it did, basically, is in each of those cases they decided to favor of the Guantanamo prisoner. The first case involved habeas corpus, and the court held, looking at the statute, someone who’s in Guantanamo has a right under the statute to go to a federal district court and say he’s been held illegally.

In the second case the question was what about the person who says he’s not really a combatant, an enemy combatant? The Armed Forces said, ”That gentleman over there is an enemy combatant from Afghanistan.” He said, ”I’m a shepherd.” They said, ”Why did you have a machine gun?” He said, ”Oh, we all have machine guns – whatever.”

You see, my point is there was a conflict on the facts. And how do you resolve those facts? Well, we said by the time they’re over here in prison here or in Guantanamo, somewhere in the United States, you have to some kind of hearing. When not too specific about what kind, but we said it has to be an impartial decision maker, and you have to have proofs and evidence.

Third case -- the least popular person probably in the United States -- one of the least -- bin Laden’s driver. Bin Laden’s driver is saying that the military cannot have a special tribunal made up of military people, a certain special kind of tribunal to try me, and that was because of the statute.

And he was – he was suing one of the most powerful people in the world, George Bush, the president of the United States. And he won. He won, because the Court agreed with him. These are all five to four or six to three or roughly, but pretty close. And the Court agreed that the statute did not give the Army the authority to have this special kind of tribunal.

The fourth case, which is perhaps the most significant, was Congress then passed a new law and gave this authority to the president and basically said there won’t be any more habeas corpus. Well, it didn’t quite say that, because then there was some fudging at the end, where they did give people certain rights.

And the question was, well, did that really deprive them of the writ of habeas corpus? And the answer, we thought, was yes, it does. It’s not quite good enough. And we also said Congress could not under the Constitution suspend the writ of habeas corpus.

And the reason it couldn’t is because it says in the document – it says Congress will have the power to suspend habeas corpus in time of insurrection or rebellion. And this is not an insurrection, and there’s no rebellion. And therefore, Congress does not have the power to suspend it.

Well, those were the four cases. Those are the decisions. The Court was divided. Some members gave very good reasons for saying we should stay out of it entirely, but the majority thought that we can carefully go into this matter and make an effort to protect the human right without unduly intruding upon the executive’s power.

One of the most interesting things that I found in these cases – after that case the president of the United States, President Bush, said, ”I don’t agree with that, but I’m going to follow it.” And just as Vice President Gore, after Bush versus Gore, said, ”Don’t trash the Court.”

And in those two statements I find 200 years of history. It’s a history that through Cherokee cases, Little Rock, and a lot of other things have shown the Court’s gradually grown in the acceptance of the American public. That’s what I see every day. I see people of every race, every religion, every point of view imaginable, and they’re in the courtroom – 300 million people in this country – and those people resolve their differences under law.

Of course, I thought the Court was wrong under Bush versus Gore. I was in dissent, but I still think isn’t it – I heard Harry Reid say this – the most remarkable thing about that case is something not very often remarked. People may have disagreed with it, and of course I think they’re right, but they followed it.

They followed it and accepted it, because the alternative is fighting in the streets. And if you look around, violence, guns, battles among people of a single nation is a far worse alternative than a court, even if the court sometimes is wrong.

LAMB: I’ve heard this only once, but when I heard it, I said I’m going to ask you about this one. You’re here. Some conservative talk show over the last month said Justice Breyer wants – I got to be careful, because I don’t remember the quote, but the essence of it was that you are in favor of incorporating Sharia law.

BREYER: I don’t know where that one came from.

LAMB: I know there was a speech – I’ve looked it up – by Newt Gingrich, but that sharia law into...

BREYER: Have I ever said anything about sharia law?

LAMB: Well, I just was going to ask you. I mean...

BREYER: I can’t remember ever saying anything. I think there maybe – there was some issue on this in England. Maybe they’re mixing it up with England. My wife is English.

LAMB: But is that – I mean, is there any reason for the public in this country...

BREYER: I can’t imagine what it would be. I mean, I don’t know exactly what the issue in England was.

LAMB: But in this country Sharia...

BREYER: I haven’t. We have a separation of church and state.


BREYER: But then I don’t know what the context is they’re talking about, so I’m always hesitant, you know. Maybe sometime I was making one of my 5 million qualifications. If it’s somebody comes to me with an issue and I don’t know quite what the issue is, I usually use words like ”normally,” you know, because sometimes an issue can come up. But I don’t know what the basis would be for that one.

I don’t know he – I have no idea what he’s saying, because I didn’t hear it. I don’t know where it came from. I don’t...

LAMB: Well, the idea is that there are a lot of people in this country that would gladly put, you know, incorporate Sharia law into the American legal system. And when that stuff is said, you know, there’s nobody there to rebut it, so you don’t know. That’s why I wanted you to...

BREYER: I have not heard of that. I don’t know how it would work or how it would happen. It doesn’t seem to be like a – I mean, why am I not being like absolute categorical? Because I took a case called conflicts of law, you know. And in conflicts of law, they have a picture, and the picture is a picture of the post office in Tobago. And it says, ”Can the island of Tobago make a law that governs the whole world?”

And the answer in the conflicts course was, ”Well, sure, two people can get together and write a contract and say, ’I want this contract to be governed by the law of Tobago.’” You know, it’s a trick question. So I don’t know if there isn’t some trick question. I have no idea. I don’t know what I’m getting into.

But I can say I’ve never said Sharia law should be incorporated. I don’t know how it ever would be. I don’t know what the issue would be. And it was an issue in England; it wasn’t an issue here. So I don’t know where that’s coming from.

LAMB: In your book you write a lot about Dred Scott. Who is he? Who was he?

BREYER: Oh, my goodness. Dred Scott was a rather brave man, born in Virginia, slave, brought to Missouri, was taken by his owner, Dr. Emerson, slaveholder. They went up to Fort Snelling, which was then in the, I think, the territory – the territory of Minnesota or Wisconsin. Those two were part and parcel, I suppose.

He married. He came back, and he sued. His wife, Harriet, I think, got him to do that, said, well, you’ve been living for several years in a free territory, got married in a free territory. Under the law of Missouri, you’re a free man. So he sued for his freedom.

And the lower courts held against him. And then he went to the Supreme Court. And the shocking thing about the opinion – it was written by Roger Taney, and he wrote for a majority of, I guess, it was seven to two; there two dissents, I think – he said, ”This man, even if he is entitled to his freedom, cannot sue, because he is not really a citizen of the United States. And he can’t be, because he was descended from slaves.” And he used very strong and really unattractive language to describe that.

And that was a shocking thing. And he also – in that case the Court held that the Congress didn’t have the constitutional power to ban slavery in the territories – big issue of the day. And Justice Curtis, who was from Massachusetts, wrote a dissent, where he rather calmly refuted the majority point by point – very good dissent, very interesting to read.

And one of the people who read it was Abraham Lincoln. And Abraham Lincoln described the case, after reading Curtis’ dissent, as a legal astonisher. The legislature of New York said, ”This is the most terrible decision. Do you realize that the slave owner is going to come with his manacled slave gang, and he will sit at the foot of that monument of freedom, Bunker Hill, and we won’t be able to do a thing about it?”

Abraham Lincoln used the dissent as a basis for his Cooper Union speech and the debates that he was – that he was engaged in at the time. That helped, among other things, make him a prominent leader of the Republican Party, which was the party against slavery. And they then got him elected. And ultimately, all of these things lead to a civil war. And the North won, and slavery was abolished.

It’s a remarkable case for many reasons. If, in fact, you’re ever going to accuse the Court of doing things for political reasons, that’s a good case to look at, because it would be pretty good evidence. The strongest thing you could say in favor, I guess, of what Taney did was he hoped that he would avoid a civil war by deciding this issue. If that’s what he thought, he was surely wrong. It did the opposite.

So one of the things I’ve gotten out of the case is one good reason for judges not to decide things on political bases is there terrible politicians. If you want something decided on a political basis, ask Congress. They’re good at it. Don’t ask a judge.

LAMB: Is it – isn’t it – I mean, you’re a human being – isn’t it hard to avoid that?

BREYER: It’s sometimes hard to avoid your basic values, how you see the country, how you see the relationship between law and the average person in this country, what you think law is about. Those basic, fundamental, legal and political values, I think, are part of you, and they will sometimes influence an approach where the question is very open and clear it admits to that kind of thing.

What does the word ”liberty” mean in the 14th amendment? It doesn’t really say. What does ”the freedom of speech” extend to? It speaks of ”the freedom of speech.” How far that extends is open.

So sometimes in these very, very open questions, it’s very difficult to find answers. I don’t think you can find them quite often in history. I think you have to look to the values that the framers meant to put into those words, and then you have to work out how those values, which really don’t change very much, apply today.

And I could see that different judges, who have different views of the way the law works, will sometimes come to different answers on that. I’ve explained, or tried to in this book, how I go about it.

LAMB: Have you ever had a situation where your principle of law was here and your personal feelings were here, and you have to make a choice between those two?

BREYER: Yes. Yes, and you have to choose law.

LAMB: Can you give us an example?

BREYER: Well, certainly. I mean, I said in many, many, many speeches quite often, and when I was on the Sentencing Commission, that I thought in many circumstances – and I used to list them – the sentences are much too long and that you can have definite, but not life sentences for everything.

And I’ve said mandatory minimum sentences – I’ve given a set of reasons – are particularly undesirable, because they don’t let the judge exercise his discretion at all. Now, many people favor those things, but I’ve made it fairly clear that were I a legislator, and when I was on the Sentencing Commission, I would be against that. But also in many opinions I’ve said, ”Well, you have to uphold it, because the law is that this is up to the legislature within very broad range. This is not up to the judge.”

LAMB: You’ve been on the court 16 years.


LAMB: Another issue that has come up over the last couple of months is that you now have six Catholics and three Jewish members of the court – first time in history that you’ve ever had this kind of a balance. Should the public be worried?

BREYER: I wouldn’t think so. The – the – what I thought the attitude that, you know, I express as my own pretty well is after I was confirmed myself for the job, I went back to Logan, and Senator Kennedy was with me. I’d worked for him.

LAMB: The airport in Boston?

BREYER: Yes. And we got out of the airport in Boston, and a young reporter from a Jewish newspaper came and said, ”Well, how do you feel about two Jews being on the Court?” And my reaction and his, because it wasn’t clear, was identical. He said, ”Fine, fine.” I mean, just like that.

Because it’s in the tone of voice that says, well, of course, you’re aware of that, and of course, so – I mean, and someday I think that’s a good goal that regardless of what race or religion or nationality of national origin people have, you recognize it. It’s a fact. And then the question is you find them here or there, so? So?

LAMB: What’s the difference now that there are three women on the court? Is there any sense of change?

BREYER: In each court – Justice White said with each court it’s a whole new world. And it is, because there are new personalities there. I enjoy having the three women on the Court. It’s fine And I’ll leave it up to others in the future as to how it changes it or doesn’t change it or I don’t know – I don’t usually think too much about whether the fact that someone is a man or woman makes a difference to their decision. You can get people who specialize in trying to work that out, and I’m not one of the people who specialize.

LAMB: In this book – and he has another book about five years ago we talked with you about – I’ve noticed that you’ve made the rounds. You’ve been on Brian Williams’ evening show, Charlie Rose’s show, George Stephanopoulos’ Good Morning America, the Larry King Show, did an interview on NPR. You’re here. And the reason I bring that up is that most justices don’t do that. What in...

BREYER: I’m doing it purposely.

LAMB: Why?

BREYER: Because the whole point of spending four years writing this thing – you see in my tone of voice that part of me is a little tired of doing that, and part of me is pleased that I did it.

But the whole point of it is to try to explain to men and women, who are not judges, who might be willing to spend some time, but they’re not necessarily judges, and they’re not necessarily lawyers, and I want to explain to them a little bit of the history of the Court of a certain kind and some of the things we do.

And I want them to understand. And the reason I want them to understand is because I believe it’s an important institution for the country. And what we’re asking of them, and what I think the document asks of them, is that they will provide support for an institution that must from time to time decide things they don’t like.

In other words, if we were just to do everything that was popular, why not give the job to Congress? We’re supposed to decide in instances, and in particularly, perhaps, in instances where this is an unpopular thing, so we have to ask the public to support an institution that will do things they don’t like. And sometimes, by the way, in particular cases, I’ll think they’re right and the Court’s wrong.

So that’s a very complicated thing to ask of people. And here is an effort on my part to try to get across, to try to get beyond people who see everything as political, for example, because I don’t, and to try to say, ”Look, this is how the Court works. Don’t just sit there, calling everything junior league politicians.” We’re not.

I don’t say it works perfectly. I don’t say you can say zero politics, never. I do say I want you to understand how misleading that kind of characterization is. At least, I want you to understand the institution.

So, of course, if I’ve gone through four years of effort, I want to try to break through and say I hope, you know, I hope – I hope this message, which I think is important, will get through. And that’s why I’m doing it.

LAMB: Our guest has been Justice Stephen Breyer. The name of the book is ”Making Our Democracy Work: A Judge’s View.”

Thank you very much.

BREYER: Thank you.


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