3 Takeaways - Former Supreme Court Justice Stephen Breyer Speaks His Piece (#220)

Episode Date: October 22, 2024

Rarely does a former Supreme Court justice reveal what’s on their mind like Stephen Breyer. Listen to what this wise man says about the tug of war between constitutional originalism and contextualism, political partisanship on the court, structural reforms such as term limits, the invaluable lesson he learned from Senator Ted Kennedy, and more.

Supreme Court Justice Stephen Breyer ends his book with a wonderful quote from Alexis de Tocqueville. The quote is that scarcely any political question arises in the United States, which is not resolved sooner or later into a judicial question. Unquote. Courts are not well suited to resolve political questions, but unfortunately today, with the lawmaking vacuum in Congress, the Supreme Court as the highest court in the United States is being increasingly asked to resolve political issues. But how should Supreme Court justices decide cases? Is there a true answer? Should the Supreme Court justices decide based on the actual words, the so-called plain meaning of the Constitution? Or should they decide based on

a broader interpretation of what the founders meant? And should they take into account or even consider the consequences of their rulings. Hi, everyone. I'm Lynn Toman, and this is Three Takeaways. On Three Takeaways, I talk with some of the world's best thinkers, business leaders, writers, politicians, newsmakers, and scientists. Each episode ends with three key takeaways to help us understand the world, and maybe even ourselves ourselves a little better.

Today, I'm excited to be with former Supreme Court Justice Stephen Breyer. He served as a Supreme Court Justice for 28 years. Justice Breyer was nominated to the Supreme Court by President Bill Clinton and recently stepped down under President Joe Biden. He is the perfect person to ask about the Supreme Court and how Supreme Court justices see the law

and partisanship today. Justice Breyer's most recent book is Reading the Constitution. Welcome Justice Breyer and thank you so much for your service as a judge and also for joining three takeaways today. Thank you very much. Appreciate being here. It is my pleasure, my honor. Can you talk about the role of the Supreme Court and how the justices even decide which cases to take? even decide which cases to take? Well, what does an appellate judge do?

And that's true in the Supreme Court, and it's true in other appellate courts, too. I try to explain the nature of the job. I try to explain it to seventh graders. Now, it's not so easy to explain something to seventh graders, because you have to be very clear, and they're looking out the window quite a lot of the time. So I tell them about an example I read in a French newspaper

where a biology professor was bringing from Nantes to Paris in a basket 20 live snails. The conductor looks and sees the snails and says, have you bought them a ticket? What? Says the professor. A ticket for the snails and says, have you bought them a ticket? What? Says the professor. A ticket for the snails? Well read the fair book, says the conductor.

It says no animals on the train unless in a basket and then they have to have a half price ticket. Well, they don't mean snails. Aren't snails animals? So I say, there we are, class. There we are. We have to decide whether snails are animals under the Fair Book or not. What do you think?

And some say, my goodness, of course not. That's ridiculous. They mean dogs and cats. And others say, no, but isn't a snail an animal? And before you know it, they're not looking out the window anymore. They're all arguing with each other. And I say, that's what we do in the courts. The word isn't a snail an animal? And before you know it, they're not looking out the window anymore. They're all arguing with each other. And I say, that's what we do in the courts. The word is an animal.

The word might be the freedom of speech. But interpreting words in that document, the Constitution, statutes, that's what we do. The first thing you do is you look at the words. Of course, the conductor's that far is right. You look at the words. But it doesn't always tell you the answer. In fact, it hardly ever does if it's in the Supreme Court, because we only hear cases where lower court judges have come to different conclusions on the same question of federal

law. And so it's going to be a tough one because the lower courts have come to different conclusions. We read the words. If it says vegetable, it doesn't mean fish, no matter how much. But there are those who think. All you do is read the words. Just read the words. Okay. Let me come back to your example of the snails. So how do you decide that case? I would ask this question, why did the people who wrote that fair manual, why did they put the word animals in? Did they have snails or something like snails in mind?

Were they really thinking of caterpillars? Or were they thinking of dogs and cats and maybe a rabbit? So the question why those words were written, I think often has something to do with the answer. And similarly, suppose we start saying they apply to all animals, including mosquitoes. Oh my goodness, people would begin to count the mosquito bites that they have. I mean, that doesn't make much sense. So I would look at the consequences. And I might, too, if it were a real case, look at the values.

What? This is the Constitution of the United States. Right in here, there are basic values, democracy, human rights, equality, rule of law. All those things are there. And you want to not get too far away from those basic values that the framers wrote 250 years ago. Do Supreme Court justices uncover new evidence or new facts? Yes, every case probably involves some new facts. That's why it's difficult.

Do they go and look for new facts? Not particularly because in each case that we take, and remember, almost all the cases will be because lower courts have come to different conclusions on the same question. There are some times we take cases for other reasons, but not too often. So we'll look up what the words mean, but then beyond that, we might go back, and we used to do this a lot, and I think we should. What did Congress have in mind when they wrote this statute?

What was the mischief they were trying to deal with? What was the problem they were trying to overcome? What were those words doing there? And there are places you can look to get advice on that. You can look to the report that the members of the relevant Senate or House committee wrote. You can look to the debates in Congress. You can look to the testimony that was given before a congressional committee.

You can look to the kinds of letters people wrote. It depends on what's relevant in the particular case. You're not going to spend all your time on one case. But you can get an idea of what people had in mind. And often that helps. What are the advantages and disadvantages of judging based on the plain meaning of the words that are in the Constitution or in a statute?

I'll give you an actual case, an easier one. This is a lot easier than most of them. But if a family has a child, say the child has handicapped in some way, suppose that he needs special care in school, suppose that he needs special training, special teaching, he's entitled to it under the statute. And if the school district does not give him special lessons or special care, the mother or father can sue. And if they win their case in the court, it says they will receive their costs.

That seems easy enough, doesn't it? They get their costs. Yeah, it does. Yeah, it does. But does it mean their legal costs, just the cost of depositing the documents? Or does it mean the lawyers fees? Or does it mean the cost of hiring an educational expert? Which happened to be, in the case in front of us, $29,000. That was tough because maybe Congress wanted to save that money or maybe it didn't. Maybe it wanted to help the woman who had the child. Maybe. But I can tell you one way not to get the answer.

I go to my friends who are textualists and I say, what should we do? Look at the text. Okay, I'll look at it. You know what it says? Costs. I say, you mean look at it harder. Okay, I'll say it three times. Costs, costs, costs.

Oh, you mean really look at it. Okay, I'll look at it. Cost Cost, cost, cost. Oh, you mean really look at it. Okay, I'll look at it. Cost. Got it? Are you helped? No, not a bit. So I say let's look at a few other things like what they were talking about in the reports and in Congress and what are the, and so forth and so on.

So I think it's so apparently simple. Just read the words. And it's so in practice, so difficult when you get a real case where there are good arguments on both sides. And how do you decide which cases to hear? Is there a division, a real division of opinion, about what these words mean among lower court judges? And there are far fewer of those than you think. That's why we get down to 70 or 80 out of 8,000.

And sometimes, like Guantanamo Bay and the prisoners kept there, we'll hear a case even though there wasn't a split in the lower courts. Sometimes it's just important for the nation to have an answer. And so we'll take some of those sometimes. But that's the criteria, and then we go through it, we hear arguments, we get briefs. to have an answer. And so we'll take some of those sometimes. But that's the criteria. And then we go through it. We hear arguments, we get briefs,

and you read them, and you have some oral argument, and you go into conference and listen to the other judges, and each of us talks about it in turn. In order of seniority, no one speaks twice till everyone's spoken once. And we go back and forth and discuss them. And then someone writes an opinion. And if it's me, I hope I get from my colleagues

when I circulate those opinions, two words, I join. Sometimes I do. What we want to get is at least five people. And probably 40% of the time, we get nine people. We're unanimous. But they might say, I'll join you if, and then I change or modify or try to get agreement so that we can get at least five people on a single opinion. And what happens if you can't, if you're split?

If you can't, it just goes out in the lower court, whatever it was is affirmed. They have to go with that. But that doesn't really solve the problem. You have said that you emphasize purposes, values, and consequences in order that people can live peacefully and prosperously together. Can you explain what that means? In the case, remember our friend, the costs? Did it or did it not include the cost of hiring an educational expert?

$29,000 for the poor woman who had a son who had a handicap. Well, when you look back at what Congress was doing, you see there was a report, I think, that came over and said in that report that these words in this statute will help a family pay for an educational expert. And you know how many people objected to that on the floor of the Senate? You don't know, but I know. How many?

Nobody. Zero. And by the time I got through reading all that, I thought, yeah, I see. They do mean to include the educational expert. No, it doesn't always tell you the answer in those things, so look for some other things. You look around, it depends on the case, and you try, that's called judgment. And what you pay attention to and how much and where it is, well, that's in any profession that you're in. yours or mine or whatever, over time you feel you learned something. And when you learn it pretty well

and if it works pretty well, then people say, well, you had pretty good judgment. That's what we aim at. There is no secret magic formula. It isn't law, isn't computer science. If I know something in computer science, you know who I ask? Who do you ask?

My grandchildren. Okay. Okay. All right. But law is not, it's not science. But it isn't just making things up either. It is not science and you don't make things up and you don't do everything you just think is good.

I mean, it's a lot of different things. And Holmes, it was a great judge, said you learn over time. It requires experience. You get practice. Using judgment is bringing what people have, we hope, judgment to an argument that is in dispute. People are in dispute. They are disputing something. perhaps it's a crime, perhaps it's a lot of money, who knows? But you bring judgment. And a good compliment for a judge is when people say, he's brilliant?

No. That's not a compliment for a judge. A compliment for a judge is he has sound judgment. You understand the community. You understand the needs of the time. That isn't just American either. I read in a history of General de Gaulle that I was looking at, and Pompidou,

who is the president of France, and was trying to explain what did World War II, what did that general have, what was he looking for? He says it's not a discipline really, so much as it is an attitude. He says it's an attitude where you will stand firm on things of critical importance, but you will take into account the changes of society and how that society works now and the problems it has now It is an attitude that tries to keep the country strong. It tries to gather from its diversity opinions and views that will help the country and it tries to reflect the dignity of each human being I

Thought that was a good statement. I thought that statement tries to explain the goals that you might have as a judge interpreting the law. If you're deciding cases, very complicated cases, based on values and based on the best decision for holding the US together as a community, as a single nation. How do you square or reach agreements with other judges who may be more

inclined to read the plain meaning of the words of statutes? How do you come to an agreement? Well, what you said in terms of that's a lofty statement of what you do when you look at the consequences. You're more likely to look at the check that the woman's going to have to write or not write, and that's a much lower level of abstraction. And you're more likely to read the words in the report.

And how do you try to reach agreement? You try. I remember I worked for Senator Kennedy for a while, Ted Kennedy, and what he would tell us, Senator Kennedy, on that is, don't worry about the credit. Don't worry about your own role so much. When you are having a tough time, listen to people who think the opposite of you. And if they think the opposite of you, good! listen to what they say. You may learn something.

And if you don't learn something and they talk, and you get them to talk and you can explain what you think, eventually they will say something and you really agree with it. And when you really agree with it, you say, what a good idea you have. Let's see if we can work with that. And you work with that and sometimes you will produce

something and if you produce something you like and you get 30% of what you want, that's great. It's much better to get 30% of what you want than to hold out for 100%, get nothing, but all your followers say how wonderful you are. That's not what you're here for. Yes. You're here to get something done. And so you listen, and can we work with that? And maybe we'll get a compromise, and maybe it won't be perfect from your point of view, but it will be

better than it might have been. And that's what you try to do. Are there a few Supreme Court cases that have had a particular resonance with you or that you're proudest of? A case I was proud of was Google versus Oracle. It was a question of copyright law applying to a certain kind of algorithm in the Java language, which helped develop on new platforms, new programs. Now I can say that now I probably when I started with that case I couldn't even say that because I didn't know it was and I thought Java was some island in the Pacific

I didn't know it was a language I didn't even know what a language was but we worked for two years on that We worked for two years and looked up everything under the Sun and finally we wrote an opinion that I thought was okay And what I then read what the experts were saying after the opinion came out, I don't usually do that, but I did that in that instance not to see whether they were saying we were right but to see whether they were saying we understood the problem. Did we really understand it? And they said we did.

So I thought good. Right and wrong is often pretty close question in those cases. But I was pleased that we'd given our best. And we had made an effort over two years and understood it. Good. How do you see the partisanship of judges and the Supreme Court? No, I don't like it.

And I don't think there is much less partisanship, political partisanship, than people think. It's not politics. Look, politics, I said I worked for Senator Kennedy. Okay, Senator, you have two phone calls. One's from the Secretary of Defense. One is from the Mayor of Worcester. Which will he answer first?

Probably the mayor. Of course, that's politics. Of course, the mayor's Of course! That's politics! Of course! The mayor is where his constituents are. Can I get the Republicans to come to this exec? Can I get the Democrats to come? Can we have a quorum? Will this be popular?

Will this not be popular? What will the press say about it and how will people react to that? Of course, that's politics. I don't see that in the Supreme Court. I haven't seen it in any court in 40 years of being a judge. No. Well, there are things that people confuse with politics. For example, people do have certain basic approaches. Some will be more in the textualist or originalist direction. Some will be less so. But those are juridical philosophies. Those are

jurisprudential approaches. That isn't politics. And there's political science. What is this country about? What is a democracy and so forth? Again, that's political science. That's not politics. Or closer to politics.

I was born and grew up in San Francisco. I went to Lowell High School, a public high school. I went to Stanford and I went to Lowell High School, a public high school, I went to Stanford, and I went to law school at Harvard, and then I've held various, I've lived the life I've lived. And so have you. And so has everybody. And out of that will grow a certain approach, maybe to the country or to the Constitution. Maybe not, but it might. And you tried to escape anything like that because you want to be objective as possible, but you can't entirely. You can't jump out of your own skin. And so your background makes a difference.

The first miscegenation case, the mixed marriage racial case, that was political because they were afraid if they took it, the South would never go along with desegregation. They just wouldn't do it. And so they waited a few years and they took it and said that. But there's some of the things that are more political, but the real statement that I think describes what I've seen over 28 years on the Supreme Court was Professor Freund, my con law professor,

great professor, he said, politics and the judiciary says like this, no judge, no judge will decide a case according to the temperature of the day. You don't want that. But all judges are aware of the climate of the era. Absolutely. The US is alone in having unlimited terms as well as no retirement age for Supreme

Court justices. What do you think about the term of Supreme Court justices? I think absolutely it would have to be a very long term. You want 18, 20 years, 20 years, because you don't want a person in that job thinking about his next job. Right. He would perhaps require a constitutional amendment, and the effects of it, whatever they are, would be way into the future, and I will not be around. And so I can't be sure what. But I don't see much harm in that.

We don't know what would happen if you start this process in operation and end up with a 20-year term, an 18-year term 25 years from from now, I don't know. I mean, I wouldn't see a harm in it. I wouldn't have had to go through. About half the judges recently have retired a significant time before they died, and about half of them didn't. So I looked through all that, and I ended up deciding I was going to be about 83 years old. It was probably about time to retire. So that's what I did. AMT – What structural reforms, if any, do you recommend for the court? BG – I don't think about that at the moment.

I think the court works pretty well. Now it doesn't always agree. Well people in this country don't always agree. And it doesn't always have the same philosophy of law. Well they don't. And so my approach when somebody has exactly a different philosophy of how to go about deciding these cases, a different jurisprudential approach than I do, surprise, surprise, I try to follow Senator Kennedy's

advice. I listen, and then I try to write. If I want to write my reasons, well, here they are. And I try to write them in language. I try to describe the process and describe in language that someone who is not a lawyer, who is not a judge, who may be my friend the iSchool students, they'll be able to understand what I'm talking about. And then they'll see I want to put the pros and cons and I want them to read it, if they will, And then they'll see I want to put the pros and cons, and I want them to read it, if they will, and listen and think about it and make up their own minds. And so I don't sit down with a list of how to improve the court,

except for one thing. What's that? I wish people agreed with me more. Ha ha ha ha ha! What are the three takeaways you'd like to leave the audience with today? I'd like the audience to understand the difficulty of the decision-making process and how you have words right there. That could mean one thing, and some judges have thought this, and some judges have thought

the opposite. So we're only hearing pretty difficult cases. Let's say 70 or 80, about the 8,000 that conceivably could be put before us out of the, I don't know, maybe 800,000 federal cases in the courts, you see. It's only a small number and they're difficult by definition. And they're almost always more than you find in the newspapers. Good arguments on both sides. than you find in the newspapers. Good arguments on both sides.

And I'd like them to take away, I hope, of course, this is a little selfish. What I believe is the importance of, in those kinds of cases, the language doesn't often give you the answer. And you have to look beyond that to, as I say, not always the same thing in the cases, but to be sound, you have to look at things like purpose, what was the mischief Congress was trying to deal with, consequences, what will happen if I decide this way or the other way, and values. There's a good starting place right in this document, the Constitution. And I'd like them to take away what perhaps is the most important right now.

What Senator Kennedy told me, what John Stuart Mill I think wrote at one point, what people have said. When you get into really serious arguments, the thing to do is find people, intelligent people who disagree with you, and set them down and you can say a few things, but listen mostly. And look for those points of agreement which will exist, and then build on that, and go out and do it.

Spend some of your life doing that and working in the public interest, working in the community, not just for yourself, you're part of a community. Justice Breyer, thank you for your service in government, for serving as a Supreme Court Justice, and thank you for your time today on Three Takeaways. I also really enjoyed your book, Reading the Constitution. Thank you very much. If you're enjoying the podcast, and I really hope you are, please review us on Apple Podcasts or Spotify

or wherever you get your podcasts. It really helps get the word out. If you're interested, you can also sign up for the Three Takeaways newsletter at threetakeaways.com where you can also listen to previous episodes. You can also follow us on LinkedIn, X, Instagram, and Facebook. I'm Lynn Toman, and this is 3 Takeaways.

Thanks for listening.