Last week, U.S. Supreme Court Associate Justice Stephen G. Breyer joined National Constitution Center President and CEO Jeffrey Rosen for a live online program to discuss the Constitution, civility, the Court, and more. In a wide-ranging conversation, the justice discusses how he goes about making decisions, shares some stories and life lessons from his time on the bench, and shares some of his favorite books and authors. He also explains why civic education is so important today, why people need to reach across the political divides more than ever, and why he's optimistic about the future of America. Finally, he answers questions from the audience and describes how he’s been spending his time during the pandemic (including Zooming with his law clerks and meditating).
This conversation was one of our constitutional classes broadcast live to learners of all ages. All of the classes from the past school year were recorded and can be watched for free at https://constitutioncenter.org/interactive-constitution/media-library.
Or, listen on Apple Podcasts or Spotify.
This episode was produced by Jackie McDermott, Tanaya Tauber, Lana Ulrich, Kerry Sautner, and the education team at the National Constitution Center. It was engineered by Greg Scheckler.
PARTICIPANTS
Stephen G. Breyer, Associate Justice of the U.S. Supreme Court, was born in San Francisco, California, August 15, 1938. He married Joanna Hare in 1967, and has three children - Chloe, Nell, and Michael. He received an A.B. from Stanford University, a B.A. from Magdalen College, Oxford, and an LL.B. from Harvard Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court of the United States during the 1964 Term, as a Special Assistant to the Assistant U.S. Attorney General for Antitrust, 1965–1967, as an Assistant Special Prosecutor of the Watergate Special Prosecution Force, 1973, as Special Counsel of the U.S. Senate Judiciary Committee, 1974–1975, and as Chief Counsel of the committee, 1979–1980. He was an Assistant Professor, Professor of Law, and Lecturer at Harvard Law School, 1967–1994, a Professor at the Harvard University Kennedy School of Government, 1977–1980, and a Visiting Professor at the College of Law, Sydney, Australia and at the University of Rome. From 1980–1990, he served as a Judge of the United States Court of Appeals for the First Circuit, and as its Chief Judge, 1990–1994. He also served as a member of the Judicial Conference of the United States, 1990–1994, and of the United States Sentencing Commission, 1985–1989. President Clinton nominated him as an Associate Justice of the Supreme Court, and he took his seat August 3, 1994.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. I'm Jackie McDermott, the show's producer. Last week, Supreme Court Justice Stephen G. Breyer joins National Constitution Center President Jeffrey Rosen for one of our constitutional classes broadcast live to learners of all ages. Here's Jeff to get the conversation started.
Jeffrey Rosen: [00:00:24] Thank you so much Kerry and welcome, Justice Breyer.
Stephen G. Breyer: [00:00:26] Thank you.
Jeffrey Rosen: [00:00:27] We're so honored to have you here. This is our final class of the year for the Constitution Center's live online classes for middle and high school students. We launched these a year ago. We've reached 200,000 students across the county, teaching them the constitution. And I want to begin by asking you because you're one of America's most inspiring advocates for civic education, why is it important for all of these great students to study civics and the constitution?
Stephen G. Breyer: [00:00:53] Well, they're part of this country and they have to know how it works and they have to know how the government works and they have to understand that they are part of the government and it isn't a separate thing, but that in this country and with this document, the Constitution there are certain basic principles that require their participation. And I usually say, I can't tell the students what to do, but I know perfectly well that John Adams and Madison and the people who wrote this document would think if they don't participate, we won't have a democracy and they won't participate if they don't know how it works. And so I'd say first and foremost is that you have to know how this government works and what your role in is it, is in it. And how these different groups of people get together. We have 330 million, they all think something different. And we have a governmental system that tries to bring them together. Well they have to understand it. That's why, so we can maintain it.
Jeffrey Rosen: [00:01:55] Wonderful. They have to understand it so we can maintain it. It sounds like Benjamin Franklin, "A Republic, Madame, if you can keep it." Justice Breyer, you have some wonderful books behind you. You are such a reader and a teacher. And I saw recently a list of five books that you recommended that influenced you a lot, and then included Tocqueville's Democracy in America, The Education of Henry Adams, Austin's How To Do Things With Words Camus's The Plague, and In Search of Lost Time by Proust which you're reading in French. Do you want to pick one or two of those books and tell us why it's important to you and why the students should think about reading it?
Stephen G. Breyer: [00:02:32] Well, I've often thought and I love this book. You want to know what this country is like and the ups and downs, Henry Adams. I mean, Henry Adams lived 1838 until the around 1920. And he thought at that time, perhaps he would be president cause the Adamses were all presidents. His grandfather had been president, his great-grandfather. His father was a famous and very valuable ambassador to England and kept England from siding with the South and won the civil war for the North through what he did. He certainly helped. And Adams comes into this country, believing he's as close to an aristocrat as there is. And by the time he's in his middle age, he says, there is no such thing as an aristocrat in America. There is a democracy in America and he looks around in Washington. He lived not far from where I am this minute.
And the Hay-Adams hotel is where he lived. And he looked out at the White House and he saw, you know, at that time in the late 19th century, they didn't have to worry about people giving campaigns, sorry, campaign contributions, to candidates. They had to worry about people giving bribes to candidates. It was not a good period from the point of view of honesty in government. You have to remember if you've seen them in school, the Nast cartoons, the Sugar Trust, the Oil Trust, every trust behind every Senator behind every Congressman. And he looked around and said, "Oh my God, I mean, maybe democracy doesn't work." Yeah, does that sound familiar? And then he said, "Ah, but what's the choice?" The same thing that Winston Churchill said many years later, of course it's a bad system except for the others. And you read that and you begin to understand it.
And you begin to understand that all the unfortunate things we're reading the newspapers, this is going on and that's going on. It's happened before. This is not the first time that people have become discouraged with the democratic process. And this is not the first time that we've had real racism in this country. And it used to be slavery before that. Adams came down here before the Civil War and he looked out across the South and he said, "Well, those people are great gentlemen. I don't think they're great gentlemen. Look at what they're doing." I mean, he was very much against slavery.
So you read through that and you begin to understand what still are the pros and cons of the way we've set ourselves up and on balance, I think he thinks, and you think, and I think, on balance, yeah, it's better than the alternatives. 330 million people, they've been able to govern themselves to a considerable degree. They've been able to make this system work more or less. And they have been able to maintain a system where people do listen. The governments do listen to the people and there are freedoms. It's not perfect. Well, he had every one of those problems. So read what he has to say about it and read what it was like during that time.
Jeffrey Rosen: [00:05:58] Wonderful. And what did you learn from Tocqueville? And what do you make of his concern that virtue and self-interest rightly understood might not be enough to sustain Americans at a time when individualism and morality were declining?
Stephen G. Breyer: [00:06:16] No. Yeah, there is right now. It's not just that, but I mean, Tocqueville understands pretty well how America is going to work. And he wants to say to the Europeans, it is possible, if you look at America, to see that you can have a workable system that's based to a considerable degree on democracy. And different organizations that organize people and come together and debate, he would say there's a clamor I hear every time I come to America. It's people shouting. No, they shouldn't shout, but it's people debating issues and they'll try things and they'll try to work together and they'll experiment and some will work and some will fail. And this is a big mess, this country, but by and large it's going to work, he thought.
But he said, "Well, you know, I see two terrible problems. I don't know how they're going to get over these." And this was in the 1840s. He said, "One of them is what are they going to do about the Indian drives that themselves seem to live in this place?" And he said, "I don't think that will stop America because I don't think they'll treat them very well." The Americans, well, i.e. the Europeans, i.e. the Europeans won't treat the Indians very well and they'll take over. And that is what happened.
He says, "I don't know what they're going to do about slavery. They can't keep together a country that rests on slavery, and that's going to be a nightmare." He says that I'm very perspicacious, very perspicacious. So he's worried about two things that I think we still should be and are worried about. And he describes pretty well how our institutions did and, and still do work. Don't ask for perfection. And you read that and you say, "Ah, ah, we have a job that was similar to the job of probably Ben Franklin and your Constitutional center and Abraham Lincoln and the Gettysburg Address. We are still an experiment and will this experiment work?" And then I want to say to the students, that's going to be your job. That's a bit preachy, but it is your job and the job of your children and after that to see that this experiment does work and no one ever knows for sure. You learn that from Tocqueville. You learned that from Henry Adams and you just keep trying.
Jeffrey Rosen: [00:09:00] So much of the success of the experiment depends on compromise, deliberation, prudence, listening to the other side. Those are all values you've championed. You saw them from your father when you were growing up and he was on the San Francisco School Board where the institution worked. You saw that in the Senate, when you saw Republicans and Democrats coming together over major reforms. Today, people are concerned that the system is broken, that things are so polarized that both sides are just not listening to each other. And we're retreating into armed camps. Are you optimistic or pessimistic that the system will keep working? And what can we do to make it work?
Stephen G. Breyer: [00:09:37] Well, I don't know. I am basically optimistic and I don't know how much that's justified because I think that's what Senator Kennedy used to say. He said the country swings, you know, it swings. And sometimes to extremes in one way, sometimes to extremes the other way, but it sort of rights itself eventually. And when, my being, when I worked on the staff of the Senate, I thought I was in an institution and that's true of Congress. It will respond to what their constituents want. It's true at my confirmation, at anybody's, the Senators will ask the questions they want to ask and they'll want to ask the questions that they think their constituents want asked. And when enough people in the country say, "Look, what I really want is what we learned in the fifth grade that people work together," they'll get it. And so what you do, I saw Senator Kennedy do this all the time. He was a Democrat, Republican disagrees with them strongly, but you need that Republican support. Talk to them. And don't talk to them, "I have a better point than you and your point's really evil and bad." You say, "What do you think? My friend, what do you think?" Get 'em talking. Once they start talking, eventually they'll say something you agree with.
And then you say, "Well, let's see if we can't work with that." And when you work with that, if there is, if keep going, you might have, you won't get everything you want, but you might get on balance a success. And if it's a success, what I saw Kennedy do a lot was the press conference would be there and Kennedy would say, "Senator Hatch was so helpful on this, talk to him. He really got this going." Give the credit to other people. Credit is a weapon. And if your thing succeeds, there'll be plenty of credit to go around. If it doesn't succeed, who wants the credit? And I saw him act on that over and over and learned something from it. Well, that's called talking to people, trying to get people together. When I was in the fifth grade, Mrs. Squatigotsu went to buy our class in San Francisco, into groups and we'd each have a project. What is it that helped make San Francisco a cosmopolitan city? And you take this part and you take that part. We give you one grade, so you better get on with the others. So learning how to get on with others is, is a part of what we do in schools. And I think that's still true. And maybe people at the national level are getting angry at each other. Well, what about at the local level? I saw during this this pandemic up in Cambridge we were with our grandchildren for more than a year in the house. Well, there were groups in the neighborhood that tried to get put people together to bring food to people who needed the food, or they'd help get them to the doctor, if that was necessary or helped do all kinds of things. There are dozens of parts of public life where people can work together. And so it's fairly obvious that for each of the students, who's here and all those who aren't here, public life should be, and is part of their lives. And you can get together with other people in all kinds of different ways. And you don't have to make a living out of being the most divisive person. You can, you can do pretty well by trying to get people together in a thousand different ways. I think we still have that ability and that talent. And so I'm optimistic.
Jeffrey Rosen: [00:13:03] Wonderful well your optimistic inspires all of us. You tell us about the court. You recently gave a lecture at Harvard and you caution people not to view the court as a political body. You said justice that are not junior level politicians. I believe jurisprudential differences account for most, perhaps all, judicial disagreements. Tell us why the court is not a group of politicians in robe, in robes, and why citizens should respect the institutional legitimacy of the court as something more than just politics.
Stephen G. Breyer: [00:13:32] Well, it's taken a long time to earn legitimacy in the sense that people will follow the laws the judges think it is. And even when they disagree with it, strongly. And maybe it's wrong. I've dissented enough to know that I think some of it is wrong, all right? And, and so, but, but, but the rule of law is follow it even when it's wrong if you possibly can. Otherwise you won't have a rule of law. But the political part, I think, look, again bringing back, going back to Senator Kennedy, we used to play a game which is suppose Senate, that the Senator got a telephone call from the mayor of Worcester, at the same time from the Secretary of the Treasury. Which call would he take first? Well we knew the answer. We bet heavily. He would take the call from the mayor of Worcester. Why? Because that's where constituents are. That's politics. Are you a Republican or a Democrat? What would the majority be at the executive session? Can we get people there? Is this popular? Is it not? I don't see that at the court. I, I really haven't seen it. If you start thinking how popular you are, boy it is that bubble, don't do it. I haven't seen it. That's what I call "real politics." Well, what about ideology? Are you an Adam, Adam Smith free enterpriser, or are you a malice troublemaker or something? I, I find writing an opinion and I think that ideology is coming into it. I, I think twice or three times, that's not the job. Well, there is a different thing. It is true, I did grow up in San Francisco. I did go to a public high school, Lowell high school there. I've lived the life I've led, lived. And by the time you're middle-aged or so you have views about the country. If you're a lawyer, about what law is about. They're called philosophical or jurisprudential or very general or something. And you can have somewhat different values in some other person. And those are inside you and you can't jump out of your own skin. You get a few cases anyway, not as many as people think, but a few cases where you are interpreting a word like "liberty," you know, that word doesn't explain itself. Not in detail. Well, you'll be influenced by your values.
I used to think too bad everybody doesn't agree with me, but it's a big country, you know? And, and there are three, as I've said, there are many, many, many millions of people and they do think different things and they do have somewhat different values and it isn't terrible if you have a Supreme Court of nine people and they're made up of people and some of them have different values. And indeed some of them have different judic-, jurisprudential approaches. Some of them lean more in the direction of having clear rules. Some of them, probably me, may lean more than the direction of God, life is a mess. Let's just try to clarify this a little bit and not leave, decide too much too quickly. And so people have different views. And people tend to stick to to a degree to different jurisprudential views.
And that explains a lot about why you say similar lineups. It's not conservative liberal, particularly. I mean, sometimes you can define it that way, but more often you can't. It's different jurisprudential views. So I say, "Look, don't get mixed up with real politics." That isn't what's happening. Now if I'm really honest about it and think about, I say, well, it's a little more complicated, if you're ready for a little more complication. Is that true? I mean, it's a little more complicated even than that, because after all, suppose you think deeply that free enterprise is the secret of success in this country. Or suppose you deeply think that at least some moves towards socialism are surely justified and will help. Okay. Is that a political view or is that a philosophical view? Is that political philosophy or is that real politics? Well, I think those things are often hard to separate out.
And I can't say that things like that never influence a decision. The cases we get there's a lot to be said on both sides, much more than you might think. And so you have some influence there. And then over long periods of time, there will be changes. Think of Roosevelt and Truman having ultimately appointed the entire court and a shift in sort of basic philosophy in the direction of the New Deal, i.e. agencies that people used to think were unconstitutional, bringing power to Washington, which people used to think was unconstitutional. No, it isn't unconstitutional. At a very broad level, over very long periods of time you can see shifts, and you can even see real politics brought in. Think of the Warren Court and their efforts to see that the country was desegregated cause no one was supporting them. Congress wasn't. I mean, they got very little support from other branches. And they're trying to make meaningful the desegregation decision. Well, they might not take a miscegenation case for a while. Is that? Well, is that? What's that? Is that politics?
So it's a mix, isn't it? And anybody who thinks it's pure politics is absolutely wrong. And anyone who thinks, "Well, if I define 'politics' broadly enough and look at the court in broad enough lenses, I can say, 'well, there's something.'" As long as you hesitate like that, you'll get a more informed reaction. So on balance, I think, no, it isn't politics. And I don't want to go around and saying, "No, not in any sense ever," either. All right? That's a picture. And when I wrote and gave the lecture at Harvard, I, I tried to give that picture. I want people to have that picture because I think it's a truthful picture.
Jeffrey Rosen: [00:19:41] That's just fascinating. That's the most subtle and clear counter to the claim that it's all politics that I've heard you or anyone give. And you just told us that it's not partisan politics, but it might be political philosophy or statesmanship or a pragmatic concern for the role of the courts. So it's complicated. And we hope to have you back to the Constitution Center in the fall to talk about your book. But I want to ask you now, you said for you, life is messy and you just try to make things a bit better and you've been called a pragmatist. Tell us about your jurisprudential approach and what you think pragmatism is.
Stephen G. Breyer: [00:20:18] Well, it's, pragmatism is not sitting there doing whatever you think is good. I think pragmatism both with statutes and with the Constitution itself plays this kind of a role: when you have a statute and the statute has some words in it, and these words could be interpreted in two or three different ways, and the issue is how to interpret them, what do they mean? Well, I think it probably is a desirable thing among other things. Of course you read the words. If the word is "vegetable," that isn't a fish, all right? You know, you're not going to go outside the words, but it often doesn't give you the answer. And you look at the history and you look at the purposes and you'll look at the consequences too. And you'll try to evaluate them from what, the point of view of what a reasonable legislature, that's Professor Sachs, Professor Harps, you know, what would a reasonable legislator writing this statute have thought that these words were there to achieve? And then the people who don't like that approach say, but there is no such thing as a reasonable legislature. A: that isn't true. But B: if it were true, by making up the reasonable legislator, you would get a more rational system of law, which would play into the basic purpose of law, which is to try to make people able to live better together. The Constitution too.
I would say one of the great unsaid purposes of the Constitution though everybody says it. But they aren't taking in that this is a constitutional principle. Because what you had Franklin say, "Hey, this is a document here. And one, is not just democracy. It's not just human liberties. It's not just organizing the government. It's also something that's gonna work and it's going to work for a long time."
And you think about that when you have certain difficult constitutional cases and you try to choose something that moves in the direction of something that will work for a long time, among other things. Now that's a rough description of what I mean by pragmatism.
Jeffrey Rosen: [00:22:39] Wonderful. What is the role of precedent in pragmatism? Colin Teebo, who's one of our star students here in the class, says that according to SCOTUSblog, you, Justice Breyer, voted to overturn a precedent the third least among the 11 justices who were surveyed. Why is precedent important?
Stephen G. Breyer: [00:22:57] Law is, in part, about stability. Part of what it's doing is to allow people to plan their lives. Part of their ability to plan their lives is going to be for either their lawyers or somebody else's lawyers or people in a community, who are interested in this to know what the law is. And the law might not be perfect, but if you're changing it all the time, people won't know what to do. And the more you change it, the more people will ask to have it changed. And the more the court hears that, the more they'll change it. And the more that, you see, it's a kind of circle which even if it doesn't start out that way, warns you against, now, you can't say never. What about Brown and Plessy? You can't say never, but be careful. And you really have to be careful sitting in where I'm sitting in this, in this job, because what you first think is for three or four years, anyway, sometimes five, sometimes three, what Douglas said, he said, you go around frightened to death. How do I know I'll be able to do it? I wanted to be appointed, but my God, had to be very lucky to get appointed here. Just the wheel of fortune had to turn around and there we are now I'm here. Can I really do it? And people really do get worried and they aren't quite certain how it works. And it takes a few years before you figure out how you're gonna do it. And then you begin to think, "Well, all right, I can do my best. But you know what? All these people who were here in the past and, and all the people who are here now, they're just people like me." That's a dangerous thought, but it does creep in. And then you begin to think, "Not only are they people like me but they got this past case wrong." And then after that, you think, "This is my only chance to change it. I better change it now or never." And then you're in perdition. And then, then you've lost the game. Because at that point there'll be too many changes. So you have to guard against that little insidious method of thinking that's caused by human nature, but it sneaks in and just keep it to the rare case where it's really necessary.
Jeffrey Rosen: [00:25:17] It's fascinating to hear you say at the beginning, you weren't quite sure you could do it, but then you got confidence that you could. And yet I also-
Stephen G. Breyer: [00:25:24] I wouldn't put it that way. You get confidence you can do it as well as you can do it.
Jeffrey Rosen: [00:25:29] I see. Well, you're doing it extremely well, at the, at the same time, I hear you say that humility is important. Is it?
Stephen G. Breyer: [00:25:38] Yeah, humility is a dangerous word. I mean, what is it? I would call it character. Try to keep a decent character. So that's also corny. And the only one who will know whether you're trying your best to keep your character to be a decent character, you. No one else. You know, some newspaper writes what a brave decision. It would have been brave to do the opposite. You know? I mean, that's, people will tend to agree with you. They'll say, "Yes, that's right." But be careful of that. Remember, I mean, you and a few friends maybe, and people you trust tell you the truth.
Jeffrey Rosen: [00:26:22] Justice Holmes used to say he learned that he wasn't God, but what's the, what's the danger? That you come to think you're God?
Stephen G. Breyer: [00:26:28] You don't come to think you're God, but you just tend to think, "Oh, I think it must be right." Yeah. Stay away. Stay away. Keep you know, somebody says a compliment, "Thank you. Thank you very much. Appreciate it." Look, I learned after about three, four years, we were at some kind of an event here in the court with young lawyers. And two came up and said, "Oh, Justice Breyer, would you ever sign my program? And I just really think your opinions are wonderful. They're so good. I really liked them." So I said, "Of course I will sign your program." So I signed his and as he walked away, he turned to his friend thinking I was out of hearing. And he said, "That makes four."
Jeffrey Rosen: [00:27:16] [laughs] That will teach you humility. What else have you learned during your decades on the court?
Stephen G. Breyer: [00:27:26] What have I learned? I don't know. I probably learned a lot of things. I've learned a lot of things. I've learned that I have less power to persuade people than I thought I might. I've learned that the best you can do is you do your best. And the interest of this job is, is and, and the interest of this job is, is that you have to sort of put out your best all the time. You, you, you, the cases are interesting and difficult. They matter to people. Don't let up. And, and there you are. And as you get older, you think that's a very big virtue, a very big virtue because we have what we have, all of us, whatever it is, everybody has something. And to be in a situation where you have to use that something, really, you hope for the benefit of other people, that is a privilege. That is a privilege.
Jeffrey Rosen: [00:28:22] How have you kept operating at your fullest level? Do you have a daily schedule where you set aside time for reading and time for leisure? What, what's your, what's your, what are your habits and your, your study regimen?
Stephen G. Breyer: [00:28:37] [laughs] Driving Joanna crazy I guess. She's been my wife of 53 years. I would get up at 7:30 or 7:00 and do my stretching, I'm here stretching, and then we'll have breakfast. And now these days we have a cup of tea and some fruit in the garden. It's nice. And grandchildren are helpful and they've been living with us up in Cambridge, and they're their little, noise level is a little loud, but it's fun to have them there. And, and then I, I will work. I'll come into my office or the last year, it's been working at my word processor up at my desk. And or talking to my lear- my clerks every day on Zoom, I'll do that. And I try to do a little, you know, fake bike riding in the afternoon on one of those machines. And meditating actually. I got, Joanna got me into that. That's helpful. And then in the evening we'll recently this last year we've been probably I've been watching MASH. Have you ever seen MASH?
Jeffrey Rosen: [00:29:34] Yeah, absolutely.
Stephen G. Breyer: [00:29:35] I love it. ...and Alan Alda is great. And I enjoy it. Or I'll read, I'll usually read before ... I found one of the worlds before I fall asleep and I shouldn't criticize this book, it's a very interesting book, but it's the history of the Hundred Years' War minute by minute. So well, there we are. I'll read and then we're out.
Jeffrey Rosen: [00:30:06] Let, let, and give us, give me a tip about meditation. When you meditate, what do you do? Do you try to clear your mind? Do you focus on something?
Stephen G. Breyer: [00:30:14] No, I focus on my foot. Very interesting. [laughs] I mean, you know, you go up through your body and try to relax your body and get up to your head. And by that time, your eyes are sort of closed and then you go down again. And then you might say a word or amida or something like that. And then the alarm will go off after about 30 or 40 minutes. And that's it. And it's just that, and it does, it does, in fact, calm you down. It does make you relax and you do feel, you know, feel better. So I recommend it.
Jeffrey Rosen: [00:30:52] And you do broad reading outside of the law?
Stephen G. Breyer: [00:30:55] Yeah, I read a lot of different things. We read, you mentioned one of them, The Plague. I mean, this was a good time to read The Plague and I used to read it because I thought, well, it's, it's it's Camus. It's it's about lawyers really. It's about the Nazis occupying Nazi occupying France. And it's about the need for keeping the the plague germ away from people. Which comes back over and over and over and over. And I figure, well, this is good for one of my talks, which I've not used it in 15 different talks, but I say, "Look, the the rule of law is one of the weapons people have to keep that plague of germ, to keep that germ plague in remission." But I re-read it recently. And it's more than that actually. I mean, it is about the human condition. It is a well-written book. It is something that you'll see all kinds of different people. That's what I tell the students frequently going to college. I'll do that. Try the humanities. If you're an undergraduate, you know, you can do a lot worse. You learn a foreign language or you learn something about history or literature and you'll see how other people live who aren't you, not even your family. And, and that's a very valuable thing to do.
Jeffrey Rosen: [00:32:05] Speaking of a foreign language you have described to me, the experience of reading Proust in French and what it feels like. Can you share that with our friends? Because it's, you describe it so memorable?
Stephen G. Breyer: [00:32:18] Well, I'm not sure what you have in mind, but I mean, I think he he is a great author. He's sort of, I mean, Shakespeare to me, is the greatest of course of the English speaking authors. And, and, and, and what Proust is a kind of Shakespeare of the inner mind. That is, he remembers everything. I don't know how. It's not really all about him, but maybe it is. And he, he, he, he remembers everything and he, he, he describes human experience. He doesn't have the experience of having children, but other than that, he goes through a tremendous amount of it, different human experiences. So there all kinds of things in the book, and he does it in poetry, a kind of poetry as does Shakespeare he said.
Ketteridge said that about Shakespeare. He said he knows every human being. He knows every kind of desire. He knows every kind of different reactions, of human reactions, better than the person does himself.
And he describes them all better than the person could describe himself and he puts it all in poetry. Well, Proust does something like that about, about sensations. And if you had one thing in there that I, that I think I came out thinking that I didn't, it isn't that men, women are rational animals. That's Aristotle, I think. The rational animal? Ha ha ha. I mean, maybe. Try, that's good. But I do think that I came out of that thinking, "Well what human beings do is they put form on things. They take this vast flux, which they first see when they're one month old, you know, and they try to impose form on it."
And that's why it matters so much, what you learn and what you see when you were a year old or two years or three years or four or five or six or seven. And that keeps coming back. And I mean, I am a child of what? Pre-war. I was born in 1938. I can remember World War II. I did grow up in San Francisco in the '40s, late '40s I remember. '50s, college, law school. All right? And did that shape how I will see the world? Of course it did. And it's the same for everyone. And that's why different generations have different views and so forth. Now you get all that in there. You'll see.
Jeffrey Rosen: [00:34:47] It's beautiful. You just described how it was different in French than English to me once. Can you-
Stephen G. Breyer: [00:34:54] No, it's better poetry. I mean, no, they have a new translation which is good. I think it's, it's it's Moncrief. Moncrief was the first person. Then this recent one is Moncrief and two others. I know their name. It's a very good translation. But it translates awkwardly sometimes because it seems stilted. It's not stilted in the French at all.
Jeffrey Rosen: [00:35:18] Wonderful. You know, there's just one more book on your list of five. So I'll ask you about it. What did you learn from Austin's How To Do Things With Words?
Stephen G. Breyer: [00:35:25] How to fight for, how to fight for a pragmatic or a purpose-based approach towards statutory interpretation rather than a textual version. Because I think that, I think they make various philosophical mistakes, the textual list, which I've written down somewhere. And I think that book helped a lot.
Jeffrey Rosen: [00:35:50] We have so many questions from students and the first important one is your favorites majority opinions and dissents that you've written?
Stephen G. Breyer: [00:35:58] I have written probably the I've written the ones that I put a lot of work on, probably that I feel I ... well, I don't know. I've put a lot of work into them anyway. The one on the death penalty. I wrote that it's about time to reconsider that and I wrote a long opinion, 43 pages. That's very long for me.
And the other, which is more controversial was I thought, but not, I thought the court should give more leeway than it seemed to be doing to school boards and other places on affirmative action. And I can't guarantee my reasoning. You'd have to read it and see.
But oddly enough, a case that I really enjoyed working, and it's not necessarily the world's earth shaking case is a case, the question was, can you copyright a design, that was the design of a cheerleader's costume. Now, why was that so interesting? Well, to me, it was interesting, cause it's a difficult legal question. But in part, because it forced you to go into a world of art. And and the world of art, of fashion, which is certainly a form of art. And we looked up all kinds of things and my law clerk, I'm looking right now and she got me a, a lamp that has a kind of 1920s style, and there's a cat over on the right made out of porcelain. And the, the law seemed to be that if that cat is over on the right made out of porcelain, you could copyright it. But if it was on the left where the cord ran through it, you couldn't.
Now we had to figure all that out. And it wasn't just an intellectual thing. It was also artistic. And, and so I enjoyed that. I, that comes to my mind is this sort of, you don't know what you'll get in this court. You don't know what kind of case you'll get. And, but they matter. It matters to people. It matters to people who are going to draw buy clothing, because it has effect on the price. And there we are.
Jeffrey Rosen: [00:38:17] You, you mentioned the lamp, so I'll ask you what the etchings behind you are. They look beautiful. What are they?
Stephen G. Breyer: [00:38:24] Those actually, the ones you mean up above?
Jeffrey Rosen: [00:38:27] Yeah.
Stephen G. Breyer: [00:38:28] Those are from a courthouse I think in I think it was in Michigan. And it's that's to be justice there. And they're, they're, they, they have them in the inside, I think, of the Capitol building. And I think now I haven't thought about them in a while where they're from, but I think it's either Wisconsin or Michigan. And, and they're nice is that you're allowed to do that as a privilege. You can go to the basement of the ... I went to the basement of the Museum of American Art and they will let you borrow things that they're not exhibiting, and they weren't exhibiting those. So I borrowed them.
Jeffrey Rosen: [00:39:01] We can't see the rest of your chambers, but are there, is there another piece of art or an artifact that is important to you?
Stephen G. Breyer: [00:39:07] Oh, the best, the most famous when I found his at that museum was what's his name? Gilbert Stewart, who painted George Washington. You can see it. It's over, you see it over there, there?
Jeffrey Rosen: [00:39:18] Oh yeah. Oh it's beautiful.
Stephen G. Breyer: [00:39:20] And they weren't showing that. It's a woman. So I borrowed it. Don't tell them, they might decide they want it back.
Jeffrey Rosen: [00:39:29] We won't tell them. Who's the woman?
Stephen G. Breyer: [00:39:31] I don't know, unknown woman.
Jeffrey Rosen: [00:39:34] Beautiful. And you care a lot about architecture and helped build the courthouse in Boston. Why do you like architecture?
Stephen G. Breyer: [00:39:43] It makes a difference. I learned a lot that year. I learned a lot from the architect, Henry Cobb. I learned a lot about looking at courthouses. I mean, the, the, the architecture, I hope people go and look at it. What we really wanted to do, and why, why did Henry- when we had five architects and Judge Woodlock and I were on the panel that was going to choose the, the architects. And we had very, very good architects who applied. And we made an effort to look at their buildings, others that they had designed. And we'd ask people, "Do you like working in this building? And how long have you been here? Do you like it or not? What do you think?"
And we wanted that affirmative action. And there were four or five they said, "Yes, we do." And okay, so Harry, what he showed us, he showed us a picture of a Virginia courthouse in the 17th century. He said, "Look at this. There's a spire. That suggests it's a public building. There's a porch. That's a place where downtown, people could meet who weren't lawyers and weren't judges and discuss the day or discuss their problems, discuss whatever they wanted. It was a public space. And inside there was one room. And in that one room, that's where the court's business goes on." I said, the challenge today is, let me show you. And he showed us a picture of a courthouse recently built. I won't say what city, but it was actually Los Angeles. The, the, the he said, "Is that a public building? Or is it an office building? Is it a courthouse? Or is it an apartment complex, what is it?"
We don't want that. We want a building that will tell the people who go in, "I'll tell you something," says the building, the way you are a part of this system, this building belongs to you. Mr. Citizen, Mrs. Citizen. It is part of this community. And a function goes on here, a function that you take part in, say on the jury, or that you need to bring law and justice to this community.
And it doesn't belong to the judges and it doesn't belong to, you have a lot of people there. You have some security people. You have judges, you have a cafeteria. You have a daycare center. You have a beautiful view looking out over Boston Harbor. And when the people come in here, I want them to think, "Oh," and when they go and look at a courtroom, a courtroom, even if there are 19 of them now, which is the problem, how do you get 19 in that Virginia courthouse? You can't. All right?
You get a lot there, but it's individualized. You want people to think this is a place which belongs to the public where the public's businesses is going on, which is serious. And where the lawyers will have the center of the courtroom, because that's the place where the action takes place with the judge being over in one side, the jury being over on the other, the witness being over here. And that is the, the, the, the framework of the action, which is taking place in front of the judge and the jury in the courtroom. You see? Your building, community building, an attractive building, a serious building, a building that will, with architecture, help you understand what's going on and how you are part of it. We wanted that. And we think Harry did a pretty good job and Ellsworth Kelly. That was a great thing that Senator Moynihan did.
He got a bill pass. It says every public building has to devote 1% or 2%, I can't remember the percentages of the construction budget, to art. And if you go and look at the Ellsworth Kelly, who basically gave us his paintings way below cost, and you, you go and you look in whatever direction you look, you see that little color, you see this color coming out over here, and you think this is attractive. And I don't care if people do or do not think that's a great painter, or this is a great architect, or this is architecture, this or that. I want to be able, as I can, ask them the question, how do you feel when you're in this building? Spirits rise? Successful.
Jeffrey Rosen: [00:44:13] Magnificent, so excited to hear about Pei Cobb. And I'm thrilled to report Pei Cobb designed the National Constitution Center, which is behind us.
Stephen G. Breyer: [00:44:20] Oh it's great.
Jeffrey Rosen: [00:44:25] There's so many students who are hanging on your every word really want to know about the personal dynamics within the court. Can you be friends with people you disagree with? Do you debate civilly? What was your relationship with like Justice Ginsburg? Give us a sense of what it's like and how you are able to have civil dialogue among the people you disagree with on the court.
Stephen G. Breyer: [00:44:49] The answer is, of course you can. I used to hear President Clinton. He would say, you know, "Hate the sin, love the sinner." And I'm not saying their views are a sin at all, but I've been there many years, you know, and every week, just about, or most weeks we have conferences and we sit around by ourselves at the table and we discuss the cases. And we don't always agree on those cases as you well know. We agree more than you think. I mean, we agree almost half the time, we're unanimous and the five-fours are about, I don't know, 20%, 25%, 15%, depending on the year. And it's not the same five and the same four.
But regardless there is quite often fairly, a disagreement. So? So what? I've never heard a voice raised in anger. Never. I have never heard people saying mean things about each other, not even as a sort of joking, they don't, they don't. It's professional. You have friendships and you have respect always. And just politics in the Senate. I saw that. Politics was one thing and personal relations is another.
You may think that two congressmen or two senators aren't getting on because they have opposite political views, but personally they might. And in this institution, that's what I see. And Justice Ginsburg both. Of course. I mean, I miss her. I just said that the other day I said we were, we were, we had, I was talking to Mike Florence about a case. So I said, "Well, let's go see what Ruth thinks." Oh, there we are. There we are. She went off with Justice Scalia to India and rode with him on the elephant. [laughs] There we are.
Jeffrey Rosen: [00:46:41] People were always surprised that she could be such good friends with Justice Scalia and you're, but you're, of course and you're friendly with Justice Thomas of course, famously as well.
Stephen G. Breyer: [00:46:53] Very, very decent person. You know? People can have different views than I have, or maybe you have, or whatever. That doesn't ... they can, the world's a big place and that's not corny. And it's true. And if we didn't understand that, we wouldn't have 330 million people living together in pretty good peace in this country. Try to understand where they're coming from. You don't have to agree with it. You do have to make an effort to try to understand it. So, okay, you have a different view. So? So what? What kind of person is it? What kind of character does that person have? And that's the basis of friendship.
Jeffrey Rosen: [00:47:41] Has it become harder to have those cross partisan friendships and have polarization and social media made it harder?
Stephen G. Breyer: [00:47:51] I don't think social media has. I mean, you know, you don't have to watch it. [laughs] And it actually becomes easier if you're technically in competent, it becomes easier not to watch it.
And polarization, it's not so much polarization here. It's I mean, what you see, what I think happens is that political groups are, are polarized, perhaps more than they have done, which is worrying. All right. Then when a judicial nomination comes up, they will try to get X or Y appointed or X or Y not appointed.
And, but that isn't because X or Y is going to act politically. It's because they think that X or Y will have jurisprudential views, so the basic views about what law is like the Constitution and so forth, that will correspond with what they think is politically good. That's a little complicated, but that's the only way I can understand how the fact that I see and what I do see is that judges are acting the way they think is the proper way to act as judges. And how do I reconcile that with these tremendous, you know, partisan statements and hearings and the political world? What do they think they'll end up? Maybe, maybe they will, in some cases, and maybe they won't in some cases. A lot of that remains to be seen and, and so forth.
Jeffrey Rosen: [00:49:14] I'm always reluctant to hand the mic back to Kerry, but we've kept you too long. But maybe we have about five minutes. If you'll, if you'll allow us to stay. Kerry, if they are just an explosion of questions, and I know you'll be great in choosing. If we could stay till two and Kerry will do better than I, than I do in picking questions from the students. So back to you, Kerry, wonderful.
Kerry Sautner: [00:49:36] So as you can imagine, a million questions basically ending up with how do I get your job? [laughs] So the students are really interested in the jobs you had before you became a Supreme Court Justice, where you, the Cunningham class, Collin, Milo, they were all wondering, you know, what, did you always want to be a justice? And then Collin pointed out a really good question, what about the other jobs like clerks? What do you look for in a clerk? So a lot of questions from all of the students about the career choices.
Stephen G. Breyer: [00:50:08] No. Well, the clerks, they're great. I love my clerks. They keep me, you know, on my toes and it's great. They're great. They, they, it's a job for a year, and they usually have done very, very well in law school. They're, they're, they have good grades and the teachers think they're great. And they've, they've worked for another judge usually on the court of appeals. And, and I will probably select clerks on the ground. I meet them and I, a lot have, they'll have a nice personality and be able to get on with me, which is, which is necessary.
And I'll ask, how did they do in their last job? I'll ask the judge and that's the, the the normal thing. Then they'll stay here for a year and then they'll go on to the other thing and they have to make their lives for themselves. Now as far as my life, I've been pretty lucky in my life. I mean, I became, well at that time, if you go back to the 1950s and '60s, I mean, I'm not saying it isn't true today, but children used to do what their parents said.
And my father was a lawyer, his lawyer for the school board in San Francisco. This is his watch here, for 40 years. And so it was sort of, I thought I'd probably like to be a lawyer. And I did go to law school and I did clerk for a year for Justice Goldberg.
And then I worked in the Justice Department for two years in the antitrust division. And then I got an offer to teach from Harvard law school. So I went there and taught for about 14 years. And during that time I spent sometime working for Archie Cox when he was doing Watergate. And then I worked for about two or three years with Senator Kennedy when he was chairman of the Judiciary Committee.
One thing sort of leads to another. And, and then there was a vacancy. And through a total fluke, I was appointed to the Court of Appeals in the first circuit. And then when a vacancy came up here, first time, I didn't, I wasn't appointed. And then I was considered again, and I was appointed the next time there was a vacancy.
So all those things, there is no way. You don't know. I mean, of course you don't know. Don't count ... of course I would have liked to have been a Supreme Court Justice if somebody asked me, but, but I mean that isn't going to happen. It's like light- and to be a federal judge, I usually think lightning has to strike twice, once, once. And to be on the court Supreme Court, it has to strike quite in the same place.
And what Tom Clark used to say when he was a justice here, he said, "Well, you, it's like, he said you can't control it." He said, "But you can." He said, "It's, it's helpful to be on the corner when the bus comes by." All right. And so my father would have said that and do, do, you'll get a job. You know? I say, lighten up too. You'll get a job. And do it as well as you can and listen to other people. And you do your job well and listen to other people that helps you do it well, and you may get a better job. Someone may notice. But even if you don't, you at least have the satisfaction of having done that job well. And that in itself is sufficient, should be. Here we are, there is no secret. So do your best you can at what you do.
Kerry Sautner: [00:53:21] No matter where you are. I love that theory. That's a good goal for life.
Stephen G. Breyer: [00:53:25] That the best you can do.
Kerry Sautner: [00:53:27] So Robert Hubgood's class is one of the teachers that we work with all year long, awesome teacher, wanted you to know that he's proud to say that you were a bit of a rock star in his civics AP government class. Quite notorious. Because they've used a couple of video clips that you've done with the Constitution Center before and Annenberg Foundation. And there was one in particular that the students were really interested in on judicial independence. So would you like to talk a little bit about the principle of judicial independence and the, the role of judicial independence?
Stephen G. Breyer: [00:53:58] Yeah. Well, it's, it's pretty important. It's very important. That's why, that's why Hamilton wrote into the Constitution that judges will be appointed for life. He didn't say "life," he said "on good behavior" and will receive a salary that is not diminished, or compensation that is not diminished. He thought that would help make them independent. It does help some, but it's, it's not always honored. Think of inflation, but it's the frame of mind.
And I say, well, it's a frame of mind that, that you have to develop. And for example, are you being true to the record when you read the record of a case, if you're an appellate judge, are you reading it honestly, for what it says? Because nobody will know. I mean, the, the lawyer who wins will say, "Sure, it was great." And the lawyer who loses will say he didn't read it right.
And then, but there we are and who will actually know? You will know. And so you have to do that. And the same, maybe double with the press. Double. I mean, of course it pleases you when someone comp- compliments you, but beware and don't look for it because you won't find it. And there what Paul [Backdorf 00:57:07] told me years ago, which is slightly facetious, but I think it's quite funny. He says, when you write a book, don't necessarily read the reviews. Now here's why: though, of course you're going to read the reviews, but he says, the reason you really shouldn't is because if it's a bad review, why would you want to read it? And if it's a good review, you'll think, "Oh, but do they know how really good it is?" [laughs]
And there's ... but ultimately the best thing I heard on the judicial independence is, I mean, the reason's obvious for independence, would you like to have a judge there sitting there, if you're totally innocent and you're very unpopular in your community? And you answer, I mean, you understand that. Okay. But Justice Kennedy and a few of us were speaking to some Russian judges. And he was talking about independence and he said, "Well, a judge can understand and can empathize with a different judge in a different system on the matter of being independent. He can't know whether that judge is really being independent. He can't know how the claim, the case in front of him, that other judge, how it should turn out, but he can understand the feeling of the effort to remain independent." It's that kind of loneliness and a kind of anxiety. Agony is too strong. Sometimes it isn't. And it's trying to get to the, to where you think it should be. But at time, it's complicated by the fact if you're dealing with eight other colleagues, you want to reach an opinion and you better be willing to compromise and how much compromise? How much? And when? And there is no credus that gives you an answer to that question. That's internal.
Kerry Sautner: [00:57:07] I think that it is an unbelievable charge to actually send our students off into the summer with, is this idea of understanding when to be independent and stand on your own alone, and then understanding when to come to the table and engage in compromise and balancing that in the appropriate ways. So this is unbelievably helpful. We'll all have to spend our entire life trying to figure that out as we go along and then measuring against, you told us earlier to use our character to say, are we measuring ourselves appropriately against ourselves and not to listen to others, but to listen to self. So thank you so much for wrapping up this fantastic year of classes with such brilliance and such grace, that we can really understand the dignity of the law and the dignity of the people. So thank you so much. Jeff, I'll turn it back to you for final words.
Jeffrey Rosen: [00:57:55] You said it so well Kerry. Thank you, Justice Breyer, for inspiring us to be our best selves, for inspiring us to learn about the Constitution and to think deeply and to empathetically and to listen to others and Justice, for being a model of moderation, prudence, civility, kindness, and decency, and for being such a great teacher and such a great human being and such a great friend to the National Constitution Center. Thank you students for learning with us for all of your passion and engagement and let's follow Justice Breyer's example by learning and growing and uniting around the principles of the Constitution. Justice, have a wonderful summer, and we really look forward to welcoming you the NCC in the fall to talk about your new book. So thank you so much.
Stephen G. Breyer: [00:58:39] Thank you. Thank you.
