Supreme Court Associate Justice Stephen Breyer participates in a 2014 panel on "Lessons from the Past for the Future of Human Rights" at Georgetown University Law Center in Washington, D.C.

Supreme Court Associate Justice Stephen Breyer participates in a 2014 panel on "Lessons from the Past for the Future of Human Rights" at Georgetown University Law Center in Washington, D.C.

Justice Stephen Breyer is heading into his 22nd year on the Supreme Court. During that time, he has been one of the most outspoken judges regarding the law and the inner workings of America’s judiciary system. In his latest book, “The Court and the World,” Justice Breyer takes on the question of how much Supreme Court justices should consider the international legal landscape. A decade ago, a congressman tried to make citing a foreign court an impeachable offense. Today, Breyer argues, we are simply too interconnected to ignore what goes on beyond our borders. Breyer talks with Diane about recent decisions and why he believes the U.S. Supreme Court needs to be more global in its perspective.

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  • Stephen Breyer Associate justice of the United States Supreme Court

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Transcript

  • 11:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Supreme Court Justice Stephen Breyer estimates 20 percent of cases on this year's docket required knowledge of international law and foreign affairs. But over the years, justices have been discouraged from looking beyond U.S. borders when writing opinions. In his new book titled, "The Court And The World," Breyer argues in an increasingly interconnected world, a global perspective is not only preferable, but essential.

  • 11:07:29

    MS. DIANE REHMJoining me to talk about the ever evolving influences on the nation's highest court, Justice Stephen Breyer. And, of course, as always, you are welcome to join the conversation. Give us a call at 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. Justice Breyer, it's so good to see you again.

  • 11:07:58

    JUSTICE STEPHEN BREYERIt's very nice to be here. Thank you for inviting me.

  • 11:08:00

    REHMThank you. The world is certainly a smaller place, Justice Breyer, but the issue you raise is how the Supreme Court should consider what happens outside our own borders. Why do you believe that's so important?

  • 11:08:23

    BREYERI try to illustrate in the book why. We hear words like interdependence and globalization and they've always been to me a kind of buzz. I mean, they're absolutely true and they say something about people's lives. But what I want to do here is make that concrete in the life on one institution and show how, in the Supreme Court, our cases are such concretely you have to look abroad and that affects the life of many, if not every, American.

  • 11:08:56

    REHMNow, what I must tell you, I so appreciate about your books is that they've given us an inside look into your perspective, your thinking. Not all the justices may agree with you. Do you have any idea what they're thinking is about this issue?

  • 11:09:25

    BREYERWhat I want to do is show people, and you've actually put your finger on my hidden motive, which isn't too hidden. When I write something like this or when I've written before, I want people to read it or I hope they'll read it, many who are not lawyers and not judges because the court is there as part of America's life and what it does affects every American. So I want people to understand how we work. It is not the CIA.

  • 11:09:55

    BREYERIt is designed to perform an essential function and I'm writing today about domestic affairs, IE marriage, divorce, child custody, which have more and more brought us into the act, which is surprising. We are not domestic relations judges. Those are state judges. They have a very hard job. I've a friend, Eddie Ginsberg, who is a great judge up in Cambridge. He used to tell a couple that was fighting and wanted to divorce, you work it out.

  • 11:10:28

    BREYERIf you can't work it out, I'll impose something, but anything you work out will be better. You see? Why are we deciding it? Why are we deciding that kind of thing? Because today, marriages, more and more, cross national boundaries and when they do, they're governed by treaties and we have to interpret treaties. Do you see? That's one small part of the story.

  • 11:10:53

    REHMIndeed. And other countries, do other countries broadly recognized same-sex marriage, for example?

  • 11:11:04

    BREYERThere -- I think we wrote about that and, you know, probably many don't. Some do, some don't. But that is not a directly relevant issue, but it will be a directly relevant issue when we start considering such matters of how do you balance security interests versus efforts by the federal government to curtail traditional civil liberties. The Constitution gives the president the authority and the Congress the authority to look out for our national security.

  • 11:11:41

    BREYERBut the court does have a major role in protecting basic individual liberties. So what happens when those things conflict? Sandra O'Connor wrote a very good line that I think describes the law today. The president, under the Constitution, is not written a blank check. The Constitution doesn't write a blank check. Well, what pops into your mind or anyone who hears that, I signed onto it. And you wonder, what kind of check does it write?

  • 11:12:12

    BREYERAnd if we're to answer that soundly and sensibly, we have to know something about the nature of today's security threats.

  • 11:12:18

    REHMIndeed. And I want to remind our listeners, you can see Supreme Court Associate Justice Stephen Breyer on our live video stream. Go to drshow.org and click on Watch Live. You talk, in the opening of the book, about a young man who found his textbooks in this country too expensive so he went back to his home country, purchased his textbooks and extras and came back and began selling them to his classmates. Now, how did that get an involvement in interest on the part of the Supreme Court?

  • 11:13:15

    BREYERThat's an interesting case and a great example. He's in Cornell. He's from Thailand. He finds the same textbooks half price in Thailand. He says dear mom and dad, I don't know how you say that in Thailand, but nonetheless, please send me some copies and he sold them. And the publisher sued him for copyright infringement. You go look at the statute governing that kind of thing. It is very technical. Everything about that case is very technical.

  • 11:13:40

    BREYERIt's a federal statute. But we find briefs being filed by business people, ordinary people from all over the world. Why? Because copyright today is not just a matter of books nor of records, nor of plays. It is a matter of automobiles filled with copyrighted software. You go into a store, you'll see dozens of labels copyrighted and we are told that our answer to this question governs if you go to buy a car in San Francisco, if it comes from Ford, you have no problem if you want to resell it.

  • 11:14:18

    BREYERSuppose it comes from Japan. Is there a problem? $3 trillion worth of commerce, we are told, is involved. That's why people from all over the world have filed briefs and that's why, to get the right answer, you have to know something about copyright law in foreign countries. You have to know about publishers practices. You have to know all kinds of things beyond our own shores.

  • 11:14:42

    REHMAnd yet, we have always thought we are a law unto ourselves. We make our laws based on how the Constitution is written. We carry out those laws based on how the Constitution is written and you're saying now because the world has become so interdependent, we can no longer be isolated in that fashion.

  • 11:15:17

    BREYERYes. But remember, it is our law. Remember, of course, the statutes -- Dolly Phil Ortega (sp?) from Paraguay comes to New York and she finds there, the man from Paraguay, he's now in New York, who tortured her brother to death. She also found an old statute 200 years old probably meant to protect Americans or victims of piracy, pirates. She brings a lawsuit and she wins. She went back and said, I came to America to look that torturer in the eye and I came away with so much more.

  • 11:15:55

    BREYERNow, as a result of that, many people who are human rights victims have brought lawsuits and we then have to interpret that statute, which is not so easy. Who are today's pirates? And what happens when South Africa files a brief that tells us we're dealing with victims of apartheid and its perpetrators and we don't want your federal judges getting involved. We had a truth and reconciliation process. How do you interpret our statute to fit in with practices and statutes in other places?

  • 11:16:30

    BREYERThe same is true whether it's antitrust, whether it's human rights, whether it's security. There are dozens of places where we, in order to get the correct result under American law, have to understand a great deal about foreign practices, their statutes and their law as well.

  • 11:16:49

    REHMI'm particularly interested in how your fellow justices are either are ready or going to react to your premise that you need to think more broadly about what we are doing.

  • 11:17:14

    BREYERWell, that's up to them. Naturally, I hope anyone who reads this will be convinced that maybe I have a point.

  • 11:17:23

    REHMYou hope.

  • 11:17:24

    BREYERI hope, of course.

  • 11:17:25

    REHMBut you have no idea?

  • 11:17:27

    BREYERWell, they haven't read it yet.

  • 11:17:30

    REHMWell, we shall see because I have the feeling that you make some very good cases and arguments in this book that are going to lead to a lot of discussion, perhaps behind closed doors, perhaps even over the dinner table, what have you. Right now, we're going to take a very short break. When we come back, your emails, your phone calls. And remember, you can see Stephen Breyer by doing to drshow.org and clicking on Watch Live.

  • 11:20:03

    REHMAnd welcome back. If you've just joined us, associate justice of the Supreme Court Stephen Breyer is with me. We're talking about his brand new book. It's titled "The Court And The World: American Law And The New Global Realities." And course he's talking about the era in which we live that is so interconnected worldwide. Don't forget also, you can watch Stephen Breyer by going to drshow.org and clicking on watch live.

  • 11:20:52

    REHMHere's an email from Brian in Jackson, New Hampshire. He says, it baffles me why some in our country are so unwilling to learn from other nations. Many of our allies have been sovereign nations for many centuries, longer than we. We should welcome their experience and wisdom, of course tempered by our own mores. Why the myopic notion that anything from anywhere else is inherently wrong or less valuable?

  • 11:21:36

    BREYERWhat a good point. I wondered about that, and this is the conclusion that I've come to because the court, you know, in its history has -- in its history has often referred to matters abroad. This is not a new idea. But I think that the people who are sincere about their concern, and they are, are thinking they're worried that too much reference to foreign cases and foreign practice will water down our own American values, democracy, human rights, broad areas of commerce, et cetera.

  • 11:22:09

    BREYERSo one of the things I'd like the book to do is to convince those people that the best way to preserve our American values, democracy, human rights, commerce, in this world today is to participate. After all, if we don't, the world will go on without us, and we will suffer the consequences. But if we grapple with the problems, such as those that I've raised, such as those that others raise, and look abroad, there's a better chance that we will, in fact, see what we're -- what we're trying to do, human rights, democracy and so forth, affect others.

  • 11:22:48

    BREYERAnd that's the fight. The fight is between those who believe in rule of law and those who have other methods, more brutal methods, of resolving their differences. And it's not just the United States. It's the United States and people throughout the world who are on our side on that one.

  • 11:23:07

    REHMHere's an email from someone named Berkley in Scranton, Pennsylvania, who says, I've always had an interest in the workings and history of the court. I'm delighted at the increased exposure current justices have. I myself am very, very involved. I have a play with Justice Ginsberg's initials and am delighted in her recent fame. My question is, what are your thoughts on members of the court serving as public intellectuals? Do you think it's harmful in demystifying in what has been seen as the most secluded branch of government, or do you think it helps the American people better understand our judicial process?

  • 11:24:10

    BREYERI agree with -- I agree with the questioner that it's terribly important for us, and for lawyers and for others, to explain to people what it is that the court does. And I'll talk to high school students, we all will talk to many, many groups, and we're continuously trying to explain what the court does. And still it's something of a mystery to people, which it shouldn't be. So how do we do that?

  • 11:24:36

    BREYERThe risk is if you don't do it with care, you'll be seen as, well, the Constitution according to Breyer, or the Constitution according to O'Conner, or the Constitution according to somebody else. That's not the job. Judges wear black robes because in fact they're speaking with the anonymity of the law, and what people want to understand and the work of the court ultimately, we're interpreting the Constitution period.

  • 11:25:06

    BREYERWe're not individualists, and we shouldn't be individualists. The job doesn't call for that. But it does call for explanation. So how do we reconcile those two things? One way, and I think Justice Ginsberg does a good job, I think we all do a good job, we hope, talk to people when you have the chance, occasionally maybe write a book, occasionally try to talk to that audience of the next generation and the generation out of that.

  • 11:25:32

    BREYERIt's not your name in the newspaper. It's the words that you use to communicate to those next generations the values that we have inherited under a rule of law.

  • 11:25:45

    REHMBack to the premise of your book, wasn't there a time when it obviously became very controversial to cite another country's law? How did that happen? When did it happen and why?

  • 11:26:07

    BREYERI think it happened about 20 years ago. I think you can find, before that, many citations to foreign laws. I think it happened maybe in part because of the nature, the very controversial nature, of some of decisions where the court had referred to foreign cases, such as cases involving the death penalty, which falls within a constitutional phrase that forbids cruel and unusual punishments. Does it mean unusual in the world, or does it mean unusual in the United States, and the framers don't say.

  • 11:26:40

    BREYERThose are controversial decisions, and I think some people felt that there was some connection between foreign law and results they didn't like. Well, as I've said, what I think lies beneath it is a kind of fear that references to things abroad will water down what we hold dear. And my view is it's just the opposite. It's if we don't participate. It's if we don't pay attention to the world's problems. It's if we don't observe what's going on elsewhere. That's what's the threat to our values.

  • 11:27:14

    REHMYou know, it's interesting that there is to be today an execution carried out in Oklahoma, the first since the Supreme Court ruling that declared capital punishment by lethal injection was not cruel and unusual punishment. How do you feel about that?

  • 11:27:45

    BREYERWell, I can't talk about it for the very reason that you say. Usually at the last minute, people do file briefs, and something is before us, whether it's only something asking for a stay or -- and so if that's -- when that's happening, there'll be something in front of us. So I can't discuss it.

  • 11:28:01

    REHMI understand. Here is a website comment from Joey. He says, Justice Breyer is going to say what is or should be obvious, complex cases that involve parties or issues that are not just limited to the U.S. require greater understanding of other legal systems. After the Trans-Pacific Partnership is signed, our courts could have a better understanding of international law and legal practice across the world. U.S. law will be subject to international judgment.

  • 11:28:55

    BREYERThat's a treaty or an executive agreement, and I was surprised to learn, and how many treaties are there now, do you think, which create international bodies, administrators, who are making rules that as a practical matter have enormous impact on Americans, like laws. And I learned, and you'll never guess, I was really surprised, that there are probably a couple of thousand such organizations having impact on more than one country and maybe hundreds involving us, and they're already there.

  • 11:29:31

    BREYERAnd what's the status of those rules? And are they laws? And how do they bind us? And if so, how should they be interpreted? And to what extent can Congress give power to such organizations? If the answer is zero, we can't participate in anything. If the answer is everything, no matter what, maybe we'll substitute them for Congress. You see the kinds of questions that are just there lurking. And when your questioner is talking about the Trans-Pacific, that's an example. It's an example of a treaty or an agreement that will spin off, in all likelihood, all kinds of rules and regulations and various practices that could well come before the courts.

  • 11:30:17

    REHMBut some critics say it's okay in cases that deal with some international law but not with cases that deal with U.S. constitutional law. So how do you separate what gets involved with the Constitution and what is separate from the Constitution when you're looking at the larger issue?

  • 11:30:54

    BREYERI want to -- I think one of the things I want to point out is there isn't a clear separation. It used to be, for example, common judicial practice to follow Cicero. Cicero said, hundreds of years ago, he said in time -- when the cannons roar, the laws fall silent. Well, somebody pointed out the Romans didn't have cannons, but nonetheless you see the point.

  • 11:31:25

    BREYERAnd that kind of attitude in World War II led to 70,000 American citizens of Japanese origin being sent to camps in the middle of the country against their will, like prison camps. And the court did nothing, absolutely nothing. Well, the Guantanamo cases are a different kind of attitude, and those cases say no, the court has a role here even in wartime, even in time of national security. But as soon as you say those words, you then have to begin to think about how the court knows how to decide those cases, and then you begin to think about the need to understand the problems, and then you begin to think about the need, or the help, anyway, that will be given by looking to other places, seeing how they deal with the problem, understanding the nature of the problem. And you're right into the problem of knowing what happens beyond our shores.

  • 11:32:27

    REHMWe do not completely, however, know what's happening beyond our shores.

  • 11:32:34

    BREYERNo, we don't, and that's why I pose that as a kind of challenge. Of course you don't want the judge just sitting in the room and looking at the ceiling and trying to think of what answer there is on the basis of that, nor do you want simply to look at the prior cases because they rarely give an answer. Justice Jackson said, years ago, if you want to know what the founders thought about what the president should be able or shouldn't be able to do in this kind of situation, he says that's like asking Joseph to interpret the dreams of Pharaoh. Very few cases, the answers are not going to found there. They're going to be found outside, one place abroad not -- look abroad in part, in part.

  • 11:33:25

    REHMAnd you're listening to the Diane Rehm Show. We have many callers, but before we open the phones, I want to ask you about a thought I have held for years and years. You and I began discussing this during the break. My husband was an attorney for 40 years. We were married for 54 years. And I always said to him, there should be a non-lawyer on the Supreme Court because the issues that we are dealing with in our lifetime are bigger than the letter of the law, that there needs to be a more human approach to dealing with issues relating to humanity and that having a sociologist, a psychologist, someone, even a psychiatrist, someone who can get inside perhaps the heart of the human side of the issue might be helpful on the Supreme Court.

  • 11:34:58

    REHMYou're smiling, Justice Breyer.

  • 11:35:00

    BREYERWell, I'm smiling for two reasons. One, of course, my wife is a clinical psychologist, and she worked for many years at Dana Farber with children and their parents. She's writing a book.

  • 11:35:12

    REHMGood.

  • 11:35:13

    BREYERAnd I think it's good for a lawyer or a judge to be married to a psychologist.

  • 11:35:18

    REHMI do too, I do too.

  • 11:35:20

    BREYERIt helps. And then I thought, you know, I do -- I do think it isn't a bad idea to appoint people. Justice Black was a great Supreme Court justice. He previously had been a senator. Earl Warren had previously been a governor. No reason not to. And you say, well, what about leaving the law entirely.

  • 11:35:41

    REHMExactly.

  • 11:35:43

    BREYERI think it's a thought. I think the real obstacle is not that they wouldn't find the right decisions. I think the real obstacle is time. I think when Justice Black became a Supreme Court justice, he spent several months trying to catch up on a lot of things, and I think there might be a lot of things a non-lawyer might have to spend quite a lot of time trying to catch up on, the technicalities that wouldn't necessarily mean he'd get to the wrong answer, and if you found the right person not impossible. I think it's unlikely to occur but not impossible.

  • 11:36:21

    REHMI think it in my lifetime unlikely to occur, but honestly it wouldn't surprise me if ultimately there weren't some realization that the letter of the law can at times restrict the thinking about a very complex subject, and a non-lawyer might come at that problem in a totally different manner.

  • 11:36:55

    BREYERYeah, or Justice Thurgood Marshall brought tremendous experience to the court that others didn't have. An appeals court judge or the Supreme Court has a job where he or she is mostly in a room, and in that room there is a word processor, and it's reading or writing. But the decisions that they make are going to affect millions of people who aren't in that room. And therefore it's important to have what I'd call an imaginative process where you can have an understanding of other people's lives.

  • 11:37:30

    REHMSupreme Court Justice Stephen Breyer, his brand new book, just out, is titled "The Court And The World: American Law And The New Global Realities." Your phone calls when we come back. Stay with us.

  • 11:40:02

    REHMAnd welcome back. I do want to remind you, Justice Stephen Breyer is with me. He's talking about his new book. It's titled "The Court And The World: American Law And The New Global Realities." And we're going to open the phones at this moment, first to Winston-Salem, North Carolina. Hello, Michael, you're on the air.

  • 11:40:34

    MICHAELHi Diane.

  • 11:40:36

    REHMHi.

  • 11:40:36

    MICHAELHi, Justice Breyer.

  • 11:40:36

    BREYERHi, how are you?

  • 11:40:39

    MICHAELI'm good. I just had a question. You were talking about expanding the law to explore more international options. I'm a law student, and I was kind of wondering, what do you think American law schools could learn from law schools in other countries? Because I know other countries, law is either an undergraduate program, or there's some sort of apprenticeship involved in it. And I think that American law schools could do well to incorporate some more practical aspects or maybe to not restrict it to being sort of a graduate-level program. And I was just wondering about your thoughts on that.

  • 11:41:13

    BREYERI think that it's a good idea if you're interested in that. One thing I'd like to see encouraged, you could do it after you finish law school, you spend a year being an intern for a judge in some other country, or you go, let's say, to the European Court of Justice, or you go work in a firm that's in Asia, or you -- you have -- you'll think you'll have no time, but you will.

  • 11:41:33

    BREYERAnd you can do all kinds of things that bring you outside this country in a lot of different places. And one...

  • 11:41:42

    REHMWhat do you think of that, Stephen? Sorry, Michael?

  • 11:41:48

    MICHAELI think that's -- I think that's very interesting, and I think that's -- that's something I'd love to do. And I guess, I guess for me, I was kind of more interested in bringing some of that back home because personally I think, you know, I'm starting my third year of law school, and I think three years is maybe not excessive, but I know that certainly President Obama has expressed concern that maybe it's a bit much.

  • 11:42:08

    BREYERYou can in fact use that year to do all kinds of things. I was at one law school, I think Suffolk, where I was last there, I saw they were using television cameras and particularly with cross -- you know, you can use right today, you can go broadcast to Tunisia, as I did appear in a Tunisian classroom via satellite once, very interesting.

  • 11:42:33

    BREYERBut they have teachers abroad and teachers in the United States jointly teaching a class. This was a class in procedure. It was comparative procedures. And the students in Boston could question the professor from abroad and vice versa. So there are lots of things that can be done. And what I'd hope is that many of the things about foreign law, contract law, tort law, responsibility, all kinds of things, could be taught not just in a special class called foreign law but bring it in to the ordinary contract class. Find out how other people deal with similar kinds of problems. So I'm agreeing with your thought.

  • 11:43:14

    REHMHere is a website comment to disagree with you. It says, the Supreme Court's purview is the U.S. Constitution and the body of law based on it. Moreover, it's end, it is dependent on precedent. What it does must be rooted in 200-plus years of American jurisprudence and British common law up to 1776. The context of any foreign court's decision is necessarily incompatible with any within the U.S. Unless the matter involves a shared statute, i.e., a treaty, it is improper to involve the decisions of what may be an entirely different legal system.

  • 11:44:20

    REHMThat sounds as though it was written by another Supreme Court justice.

  • 11:44:26

    BREYERIt's very well-expressed.

  • 11:44:27

    REHMVery well.

  • 11:44:28

    BREYERTwo points. One, if all these things, the decisions we make, were dictated by precedent, what's the case doing in front of us? These are open questions, normally, and governed by phrases in the Constitution such as liberty, 14th Amendment, the freedom of speech, First Amendment, which don't explain themselves. And in trying to get to a proper interpretation, depending of course upon the issue, why does it hurt to look to what other countries have done? You might learn something.

  • 11:45:04

    BREYERAnd of course in the cases you're thinking of, for example, you're not bound by what the law of another country is, but if they have a similar document and a similar problem and can shed light on the problem in front of us, why not read it? And if you've read it, why not say you've read it, which is what the case is doing in the opinion.

  • 11:45:27

    BREYERBut those aren't the real questions. I think the real questions are the ones I've been describing in the book, where very few people will say no, don't look abroad. And I want to convince you and the other people that there's a whole range of matters where the best way to preserve the American values written into our Constitution is to know something about what happens beyond our shores.

  • 11:45:50

    REHMWhat about the FISA court, which is another issue you've raised early on?

  • 11:45:59

    BREYERThe FISA court is a court that was set up to do something that federal judges have long done. There are instances where a crime is being committed, and you, if you are investigating that crime in a police department, can go to a judge, federal or state, depending on who you are, and get a warrant that would allow you to wiretap.

  • 11:46:24

    BREYERNow that is a model upon which the FISA court is based, but the FISA court is concerned about national security, terrorism and counterintelligence. And that's its basic object.

  • 11:46:39

    REHMAnd now more and more people are concerned with their own personal security.

  • 11:46:49

    BREYERYes.

  • 11:46:51

    REHMAnd the Supreme Court says that the security of the individual may be overridden by the need for security of the broader society.

  • 11:47:10

    BREYERThose are the kinds of issues that come up. We had two years ago a case involving people who wanted to say their privacy was being infringed by eavesdropping by the security institutions. Five to four, the court held that those particular individuals hadn't been -- hadn't shown that they themselves were harmed or affected by the eavesdropping. I was in the four. So I thought they should have proceeded, been able to proceed. But I lost. Our side had fewer numbers. We had four, and the people who thought they could not proceed had five. But we'll get other cases. There'll be other cases coming, I would guess.

  • 11:47:54

    REHMAll right, let's go to Chris. He's in Ann Arbor, Michigan. You're on the air.

  • 11:48:01

    CHRISGood morning.

  • 11:48:02

    REHMHi.

  • 11:48:03

    CHRISI'd like to know Justice Breyer's opinion on lobbyists that are increasingly represented by foreign countries or corporate interests, how they subjugate elected officials, and in my opinion it disrupts the voices of the electorate. I'd just like to know what he thinks about lobbyists.

  • 11:48:28

    BREYERBefore I became a judge, I worked in the Senate. I was -- I worked for Senator Kennedy. And there were lots of people around who were lobbyists, and it -- the best thing I thought that we could do on the staff level is many times they were helpful because you'd have a hearing, a public hearing, and there would be language in a bill, and people who are affected by that bill could come in and say don't use this language, use the other language, here's why and so forth.

  • 11:48:58

    BREYERBut it is the job, in my opinion, of the staffs in the Senate and the people who are elected that if they are going to talk to people who represent one group, they talk to people who represent the other group. They talk to people who represent all groups. So if you're going to say talk to a corporation's lobbyist because that corporation is affected by a statute, you should also be certain to talk to the lobbyists of the unions or the consumer groups who might give you a different picture.

  • 11:49:29

    BREYERSo the key to this, it seems to me, is to do everything possible to assure that the people who listen to the representatives of those who are affected listen to all sides.

  • 11:49:44

    REHMHere's a comment on Facebook from Markam, who says, can Justice Breyer comment on the population's perception that the court is completely partisan with four Republicans, four Democrats and one independent? How does the court reverse this perception when everyone votes in lockstep with their political affiliation?

  • 11:50:19

    BREYERThat I think is our greatest problem. I think our greatest problem is that that is a common perception. And I can tell people whenever I have the chance, high school groups or whatever, I say look, half our cases each year are unanimous, approximately. The five-four cases are maybe 10 or 20 percent. I looked up the numbers two years ago. There were 72 cases. The number of five-fours were 10, and I think four of the 10 were not the normal group that your questioner has suggested. They were all mixed up. So there were six of the 10 that were like that. And the reason they have that...

  • 11:50:55

    REHMBut the big decisions, they're the big ones.

  • 11:50:57

    BREYERAh yes, that's correct, maybe the big ones, maybe not. There are -- they are the decisions that the press will decide has general interest, political or social, and therefore that perception. Now my own perception is quite different. My own perception, and it remains after 20 years, is that real politics, I mean I was on the Senate staff, I had some exposure to it, zero, near zero. I mean are you -- politics meant where are the votes. Are you a Republican or a Democrat? Who does it help?

  • 11:51:34

    BREYERAnd my goodness, is this popular, or isn't it popular? I do not see that on the court. You'll say, well, what about Bush v. Gore, (unintelligible). I need an hour to convince you on that one, but I think I could move you even on that one. But no, you'll say, I don't mean politics, really, I mean ideology. Are you an Adam Smith free-enterpriser? Are you a Maoist troublemaker? If I think I'm deciding something on the basis of ideology, I know I'm doing the wrong thing. And so I will fight my best against it.

  • 11:52:07

    BREYERBut there is something else. I am who I am. I did grow up in San Francisco in the '50s. I did go to Lowell High School. I did lead the life I've lead, and you, too, after you've been in a profession for a long time will begin to have views, rather philosophy, let's call it, or abstract or very deep views. How does Lowell relate to this country? How does the Constitution relate to the human beings who live here? What is Lowell like? I mean, to what extent are consequences being able to brought in or just follow the literal language and so forth.

  • 11:52:46

    BREYERAt that level there are differences. At that level, there are differences you cannot escape because you can't jump out of your own skin nor should you escape them. In a country of 315 million people, where people think all kinds of different things, it isn't so terrible.

  • 11:53:07

    REHMAnd you're listening to the Diane Rehm Show. And you have a situation right now going on where you have a county clerk who was jailed for five days or four days for refusing to carry out the duties to which she was elected, not appointed, she was elected, to sign marriage licenses. She refused to do that on her own personal religious grounds, spent a few nights in jail. She's back on the job. She will not sign any marriages that are going to take place between two people of the same sex. How would you, if you had jurisdiction, which I gather a judge does not here because she is an elected official, how would you deal with that?

  • 11:54:23

    BREYERI laugh slightly because the trouble is in your first two words, right now. You see, questions like that might come up, at least somebody might ask us. They might ask us to hear the question, or they might ask for a stay, or they might ask for something, and we could get involved in some way, and therefore I have to say nothing.

  • 11:54:44

    REHMYou have to say nothing. I'm sure you had thoughts.

  • 11:54:47

    BREYERI do, but over time, this rule that you can't say anything about something that really might come up right in front of you is designed to protect the process because so often what I might say in a casual conversation or what you might say in a casual conversation, after you've had time to study the matter, and briefs have been filed, these are documents that aren't brief, and we read them, and you listen to the argument, and you have time to talk about it and think about it and have to write down the words, your answer might be quite different than what you say in a casual conversation.

  • 11:55:22

    REHMAnd finally, a number of people have asked about the Citizens United case, how you voted in that, how you feel its impact today.

  • 11:55:37

    BREYEROh, I voted in the dissent, and the hard thing to do is sometimes for people to understand what was on the other side. And I'll say remember, if I'm talking for the other side, which I disagree with, remember that the Constitution says Congress shall pass no law abridging the freedom of speech, and that's designed so that people can speak freely, and you try to speak freely and get your view across in an election without money. You can't, you say. And beware of getting involved through laws regulating that money because Congress knows better about how to write itself into office, you see, than judges, who may not be aware of what they are doing.

  • 11:56:27

    BREYERThat's the side I disagreed with, but there is something to be said for it. But in my own view, that difference between $1 or $100 or $200 that maybe someone can give and $20 million given by a few is just too much, and that risks cutting the connection between the thoughts and arguments of the average person and the results in the Congress. And the Constitution wants to protect (unintelligible) I was in dissent. But I want people to see that there were good arguments on both sides.

  • 11:57:03

    REHMSupreme Court Justice Stephen Breyer, his new book is titled "The Court And The World: American Law And The New Global Realities." Thank you, sir, for your continuing efforts to educate us about the law and the Supreme Court.

  • 11:57:27

    BREYERThank you very much.

  • 11:57:28

    REHMAnd thanks for listening, all. I'm Diane Rehm.

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