Advisory Opinions - Justice Stephen Breyer: Law Is Not a Science

Episode Date: June 25, 2024

In a special live recording from San Francisco in late May, Sarah interviewed former Supreme Court Justice Stephen Breyer about his judicial philosophy, the future of the court, and accepting dissent in America. The Agenda: — How snails explain the Supreme Court — To recuse or to not recuse? — The Court’s public approval and its response to public approval — Rule of law — Unenumerated rights — Humor in the Court — Audience questions Show Notes: — Stephen Breyer’s Reading the Constitution — The Education of Henry Adams — Edith Wharton’s The Age of Innocence — Willa Cather’s The Professor’s House — Mahanoy Area School District v. B.L.: The “Angry cheerleader” SCOTUS case — Brown v. Board of Education & The Little Rock School Integration Crisis — District of Columbia v. Heller — Poe v. Ullman Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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the most out of summer right here? From our largest shrimp skewers ever to a Vietnamese-inspired dish ready in minutes, PC makes any culinary adventure an on-budget breeze. Ready? I was born ready. ["I Was Born Ready"] Hello everybody, my name is Vince Chabria. I'm a federal district judge here in San Francisco and I clerked for Justice Breyer about 20 years ago. The last time he was on this stage, I had the honor of interviewing him, and I'm still exhausted from that.

So we decided to go in a different direction this time. And what we remembered is that Justice Breyer has a long tradition of open-minded discussions with people from different ideological stripes. He is famous, he and Justice Scalia were famous for their road show, going all around the country, debating how best to interpret the Constitution in the interest of educating the public. On the court as a justice, he has long been known, perhaps better than anybody else, for his open-mindedness,

for his willingness to listen, and for his efforts to bring people together and find common ground between judges who might tend to approach cases differently. So, in that spirit, we have invited Sarah Isger to come interview Justice Breyer. Sarah. Sarah didn't know so many people from San Francisco like Sarah Isger. So Sarah is a fixture in the Washington conservative legal establishment.

And for present purposes, she is the host of the Advisory Opinions podcast, which happens to be my favorite, it's actually my favorite legal podcast. I don't always agree with Sarah or her co-host, David French from the New York Times, but I can always count on factually accurate descriptions of what's going on and objective analysis. So we should have a really great discussion here.

And it'll be in the great tradition of Justice Breyer. But what that means is that it would be a violation of Justice Breyer's tradition for anybody in the audience to shout out and prevent the rest of the audience from hearing this conversation. If you do that, you will be politely asked to leave. I'm confident though that everybody's going to be civil in the spirit of the speaker who is about to walk on the stage right now.

So everybody join me in welcoming Sarah Isger and Justice Stephen Breyer. This is a rock concert for you. This is exciting. Well I just wanted to start by saying for those who have not been able to read this book yet, I thought it was just one of the best explanations of the different types of judicial philosophy that are out there and a great explanation of originalism and textualism and the good parts and the problems with it. And so we're going to talk a lot about the book tonight, but as a conservative, I thought it was incredibly fair, steel manning

of the other side. So thank you for that. It was a treat to read. And I thought we'd start with books. What is the book in your life that changed the way you saw something, changed your paradigm, your zeitgeist, whatever it was, changed the way you saw the world? Well, before I answer that question, I would like to thank you for coming. I don't see why Vince said that only some people like you. I think you're very likeable. And I thank Vince too, he's a great clerk and it's just nice for me to be back in San Francisco. I am a San Franciscan. My father was born here. Look, this is his watch. This is his watch. And it says Irving Breyer, San Francisco Unified School District, just abbreviate it, 1933 to 1973. And you know where

the Board of Education offices were? Here, in this building, first at 90 Grove Street, which was better, I thought, because the circus came to the Civic Auditorium but nonetheless and he worked for the school board and that was my life growing up. I knew what it was. He used to say if you want to work for the school board, school administration, you better know the answer to a geography question. Well why? That's what people would say. What do you mean? What geography question? Where is City Hall? He used to say. Yeah, okay. And right, but this was a great place to grow up when I did. My brother's here. Federal judge. Very good. Very good. You can't take it away. I love it. But thank you for coming. And now what was your question? What books do I recommend to...

What book changed the way you see the world? I don't want to change the world. The world I can't say changed the world. But I do recommend two or three books to college students and they say what should we read about America? And I say the first thing you should read is Henry Adams, the education, the education of Henry Adams. And you will see 1838 when he was born to around 1920 something, and you see the country change through his eyes. It's not gonna be like Britain.

It is going to welcome everybody. And will they get along? Read that book. And I say also what's her name, you know, the Age of Innocence. Edith. Yeah, Edith Wharton. I say read that. And there you will see those robber barons and the people in New York and its great literature. And the other thing I like very much is not Edith Wharton, what's her name, the death comes for the Archbishop. Yeah, Willa Cather, fabulous. Read The Professor's House, wonderful book. He teaches and lives in Michigan. When he's 20 or 18 or 17 he goes to New Mexico and he goes up to

through the Indian reservation there which is in the side of the mountain and gets to the top of the mesa and looks out and that is Western America. That's why I went to Boy Scout camp. We had people who lived that and these life is changed and he never forgets that view. So, Willa Cather, Edith Wharton, Henry Adams, and those are the three that I want the college students to read because I want them to know something about this country. I like that. I've got a question just on your reading habits. If you're reading a book and you're, let's say, a third of the way through and you don't like the book, are you the type

of person who puts it down and moves on with life or do you finish it because you started it? No, I'm the kind of person who puts the book somewhere when he's one-third through and he likes the book and then he can't find it again. I think that's like a personality test of people who put down books versus going through. When I was thinking about the Supreme Court, and I feel like a lot of people see the Supreme Court through an ideological, through a partisan lens,

and I feel like there's a lot of media attention that's paid to that partisan lens and not a lot paid to the justices most likely to be in dissent right now are Alito and Thomas from last term. That the only five cases last term were decided six, three along ideological lines, that nine out of 10 cases decided last term had at least one of the liberal justices in the majority. And so something that I've talked some about is this idea that thinking of the Supreme Court only along that X axis, that ideological axis, can't be the full story. That there has to be this second dimension, a Y axis, whatever you want to call it, that must have something else going on. Institutionalism, consequentialism, something beyond that sort of ideological access. I'm curious if you felt like it was a 6-3 court or a 3-3-3 court and how you would define that

other access beyond the ideological side. Well, that's not quite the job. I mean, the job is we have about, oh, I don't know, 70, 60, 70, 80 cases in a year. What are those cases? You want to know the example that I use? I put in the book about explaining to the college students, low school students, what do we do? Can I give that example? Take a second.

This is the snail. Yeah, the snail. I love snails. All right. This is true. This is absolutely true. I read in a newspaper, a French newspaper somewhere, there was a biology teacher and he goes from Nantes to Paris and he has 20 live snails in a basket. Okay, remember I'm

talking let's say to the seventh grade and they're looking out the window. So snails, they got a little interested. So the conductor comes up and he says, what's in that basket? He looks, snails. He says, you have a ticket for the snails? The teacher said, what are you talking about? Ticket for the snails. He says you have a ticket for the snails The teacher said what are you talking about ticket for the snails? He says read the fair book It says no animals on the train unless they're in a basket in which case you have to buy a half-fare ticket So I said what are you talking about? That's about dogs or cats or maybe rabbits. It's not about snails You think it's about mosquitoes and fleas. I mean, it's ridiculous stubs. He says is snail an animal? Okay, so I say, now you got it. Got it? Is a snail an animal? Mm-hmm. So I'd say that's what we do on the Supreme Court. Maybe it's not snails. Maybe it's

the freedom of speech. Maybe it's the right to bear arms. But there's some word somewhere. Now what do you think about that? Do you think he has to pay the fare or not? Fabulous question because I don't have to say another word for the whole rest of the period. And they break down into they're arguing, yes but a snail's an animal isn't it? And then no no no. That's the texture. Yeah yeah right correct correct. And I say that's what we do except that the cases that we have are pretty difficult. Of course, the snail case is difficult. But who knows, maybe we'll have it.

We had a case about the meaning of a comma in the Internal Revenue Code. Was the next word which was a for a which or a that? I don't know. But I thought that was an interesting case. No one else did. But they've stood by. Regardless, the cases we have, lower court judges have

come to different conclusions on the same question of federal law. So maybe five of those cases or ten max, you know, usually, will attract the press attention, a bit of few yet. But those are ones that are connected with people's politics or social questions or something like that, but the most of them are not. And so when people ask me what's my favorite case that I wrote, that's a little self-centered, but nonetheless. What one? Google versus Oracle. Why? Because I think it will affect a lot of people and it took me two years to figure out what the hell the... sorry, what the hell the, oh sorry.

What was the Java language? I thought Java was a place in the Indian Ocean somewhere. But nonetheless we had to learn it and we had to get that right, right enough. There were two opposite positions there that were not both of them usually. Fairly intelligible, intelligent, good arguments. We have to decide it and after two years or so we did and I had to learn what Java was and that's uh, can you know? Can you code? Are you kidding? I have to learn it well enough to understand that the briefs and to and what would please me about that I don't usually do this. I don't usually do it. I don't usually go look at what the lawyers are saying afterwards I don't why should I the winning lawyers

will think it's great and the losing lawyers and link you're an idiot but they won't say it all right but but nonetheless I did there only to see did they think we got it right not the result but the way we understood the case and they did it's worth the two years okay do you understand what we do so then you come along and they and the press or somebody comes along says is he a conservative, a liberal, or what? Please. I mean I learned from a president who told me this. The applause dies away. Very quickly. Very quickly. And you're left with the job so you better like it and the death

two or three years I go to a reception in the Supreme Court a young lawyer comes up and says Justice Breyer we think your opinions are so wonderful will you ever sign my program so I say sure I sign this program as he walks away he turns to his friend and he says that makes four. Okay got it we understand that and yeah that's right you better like the job and the job is deciding these snail cases. No but the same kind of thing and they're difficult cases or they wouldn't be in our court and 28 years of doing that I'm glad I did.

Of course, of course. But it's not something that's easily broken down into whether on certain cases that have a lot of social or political content you are labeled this or that. By the way one of my favorite cases of the last several terms is the angry cheerleader case where a cheerleader uses Snapchat off school property, off school time to say something negative about her cheerleading situation, not making the varsity team. And I'm very curious whether for that case, did you and the clerks, did they teach you how to use Snapchat? Did they get that on your phone? We didn't need that, but that case

is a good example of something else that's hard is what are the words you put on that paper? What the cheerleader did she wanted to be on the first rank of the cheerleaders and she was put on the second rank and she was really annoyed about it and what she said I guess I can say that she said the cheerleaders okay alright it wasn't very polite and the school tried to discipline her for that which she did at her local shop, local whatever it was, coffee place, where she drinks coffee with pumpkin seed in it or something. But in any case, she sent that out and they disciplined her, and could

they or was she protected by the First Amendment? Now here's the problem in writing it. Yes, we said she is protected by the First Amendment? Now here's the problem in writing it. Yes, we said she is protected by the First Amendment actually. This has too little to do with school. It didn't affect discipline or anything else. But I don't want to say that the First Amendment for schools, high schools, grammar schools, is exactly the same application as anywhere else. Yeah, in a sense it is, but in a sense it isn't. The schools have power to discipline, and I want to say that, but I don't want them to forget the importance of allowing people to say what they think. Okay? Now, how do I do that? And I thought one of my clerks really came up

with this, if I'm honest about it. She found or I knew it was there. In the DC wedding service, ha, some words that I could stick in the opinion which I did. I don't know if they do any good at all. But these were the words and I probably because I grew up in San Francisco and knew about the public schools and I said America's public schools are the nurseries of democracy. Okay? Now, why did I say that? Because I don't want them to forget that in this democracy our problem in the First Amendment is part not of the problem but of the solution the founders came up with. That it's going to be a public opinion created through the clash of ideas as Holmes said the marketplace which when formulated in different parts will be transmitted. That's the last line. Petition the government for redress of grievances. It starts with freedom of thought.

That's religion and it goes through speech. Speech. You don't say everything you think. If I said everything I think, when I say everything I think I get into a lot of trouble. But the point is, yes, think what you want and of that say what you want. And when you say what you want then the press will transmit some of it, sometimes, to others and then opinion will form and then it's assembly, assembly to discuss it and create public opinions of different kinds which then go to Congress which is the public forum for people to debate what others in their

constituency think. This is Bird Newborn's idea, it's not original. Nothing I do is original. But the point is yes yes, that's there, that's important. Keep that in mind, public schools, when some student gets carried away. I thought it was a great case and a good outcome. Let's move to the court in the news a little bit. You testified in Congress in 2015 that there should not be a more formal code of ethics for Supreme Court justices because it could require more recusals. You said, I have a duty to sit as well as a duty not to sit. I can hear your voice saying that.

Michael O'Brien No, that's true. That's true more in the Supreme Court than other courts because if you disqualify yourself in the Supreme Court, there are gonna be eight people left. If I'm in the First Circuit, which I was, and I disqualify myself, they can put somebody else in my place. There are plenty of judges around, or left there. But you can't do that in the Supreme Court. So I said, be careful. You have a duty to sit and a duty not to sit.

So suppose somebody comes in, as they have, from time to time, and says, I should recuse myself. What I do, what I do, I'm only talking about myself, but there are seven volumes of ethical rules that apply to federal judges. So I look at those seven volumes and I look it up and I say what does it say and how does that apply to me and if it's tough and sometimes it is tough. I call an ethics expert. The law schools are filled with them, and I find them quite useful. So of course, of course every judge understands that ethics is important. Every judge understands that. And then how you apply, it says in the

code you can't, it has some words in the law which read and so forth. You look at the particular case and then you have to figure it out. And that's just what it is. And that's what I tried to do. Do you worry about the drop in approval of the Supreme Court? It dropped about 20 points from 2020 to 2021, which I find interesting because that's before Dobbs was decided. That's before a lot of the ethics stuff was in the news. But a 20 point drop in a trust in any institution is not good inside the institution, did you worry? But here's why it's tough. The reason that it's

tough is because, I put to you, you have a friend. That friend is the most unpopular person in the United States. Really unpopular. I'm sure you have no friends like that, but you might. You might. Some of them are here tonight. Yeah, I don't know. You might. And if that friend was on trial for his life or for his prison or for a fine or for anything else, do you want the judge to be moved by public opinion? Of course not. On the other hand, even the Supreme Court, you see, the public doesn't, the rule of law itself depends upon the public and not just lawyers and judges. And I tried to explain this to a woman who was the Chief Justice of Ghana and she said why she's trying to

make it a little bit more human rights sitting there and she says why do people do what you say hmm that's a good question we're just nine human beings after all and I have to go through examples I have to begin with Andrew Jackson and the Cherokee Indians, where John Marshall and Joseph Story said, that Northern Georgia, where they found gold, that belongs to the Indians. It does not belong to the Georgians. Very clear, very definite.

And Andrew Jackson supposedly said, John Marshall made his decision, now let him enforce it. And he sent troops to Northern Georgia, but not to enforce the Supreme Court decision but to throw the Indians out on the Trail of Tears where they marched to Oklahoma and their descendants live to this day. Joseph's story broke to Marshall, this is the end, he said. This is the end of the court, but it wasn't. And America's gone through all kinds of things. I mean, we had a civil war, we had slavery, we had Jim Crow, I mean, my goodness, and I was a law clerk.

Ten years after, Brown was decided. Ten years after. And I come away from working for Arthur Goldberg at the Supreme Court with an impression that they were still very worried about would it be enforced. Would it be enforced? Who helped them? Congress, I don't think helped them very much. Eisenhower did in sending the 101st Airborne into Little Rock. But would they do it?

Would they? Holmes wrote an opinion years before Brown, where he said, of course they don't let black people vote in the South, and that's illegal. But if I say that, nobody will do it. You see, he wrote that in his opinion. Very interesting. So they found some excuse not to decide that case or something.

But by Brown, by the time it came along, the country, it was a good chance. And look at some time, look at Thurgood Marshall's arguments in the Supreme Court. Fabulous. He doesn't say how illegal segregation is because he knows that every one of those judges agree with him about that. What he spends most of his time doing, or much of it, in the oral argument, is he's saying to the court, if you decide what you know is right, people will follow it. And what I say to the class is when I'm teaching them. Ten years later, I don't know, maybe, Cooper versus Aaron. I told an Air Force judge

from Russia, an Air Force general, State Department called up, this was after the Iron Curtain fellow said, be nice to this man because he's the one in charge of missiles and they used to be pointed at the US and he changed the direction. So he says what's your favorite case? I said not Brown but Cooper versus Aaron because nine people, nine judges signed that opinion saying integrate Central High School in Little Rock. Yeah but the day after they wrote that Governor Falbis I can remember closed the school. Closed Central High School. Nobody got educated. Just what Herbert Brownell and Eisenhower and the others

who sent the troops was afraid of, you see. And so I say, you thought this was a happy ending, but it wasn't. Ah, well, I'm not sure. Why not? Because it was too late for Phalbus. It was too late. That was the era of Martin Luther King, of the bus boycotts, of the Freedom Riders, and the North had awakened to the problem throughout the country. Public opinion, you say? Public opinion had shifted, and it was too late for the South to say,

We're not going to follow Brown. They didn't. And so why do I tell those stories? Because I say the story is that you, sometimes they're the South, but sometimes they Bush v. Gore. You know, I descended in Bush v. Gore. I thought it was wrong. But I told the class at Stanford. I said the amazing thing is what Senator Reid, who was a Democrat, said in the Supreme Court. He said the amazing thing about that is rarely remarked, people didn't like it. They thought it was wrong. At least half the country, maybe a little more than that, thought it was terrible. But regardless, they did follow it without throwing stones, without rioting.

And I said to the class at Sanford, I know that at least a third of you think, too bad there weren't a few riots, too bad there weren't some stones thrown. But I say, before you conclude that that's what we should do, go look at the television set and go see what happens in countries that make their decisions that way. You see, I'm telling her, the woman from Ghana, the people you have to convince, her, the woman from Ghana, the people you have to convince. To follow decisions sometimes they think are really wrong are not the judges. They get paid for that. Not the lawyers. But contrary to popular belief, 329 million of our 330 million people are not lawyers. Hardly anyone believes that. But they're the

ones you have to convince. So go to the villages. Send the lawyers out to the villages. Go to the towns. Go and explain why a rule of law makes sense. Now that's a little long, but you see why I worry about the drop? You see why? And, uh, and but where do you find the right balance there because you don't want your friend who was very unpopular to be in a court where the judge is paying attention to what the newspapers say about him all right so like most of the questions that you actually have to face in your life or mine they're tough they're difficult find difficult. Find a middle point. Find some point. Try to answer. DQ presents the sound of a genius idea with the new Smarties Cookie Collision Blizzard.

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Feel the beat of the drum. And celebrate. Come, walk with us, Indigenous Tourism Alberta. Can you tell us about a case or topic of law that you've changed your mind about over the course of your career? Oh, there, I'm sure there. You don't look back. Sandra O'Connor told me that.

She said the two rules that unwritten rules, unwritten rules that people adjust to and they'll do it. Nobody speaks twice in conference till everybody's spoken once. That's a very good rule and I was a junior member of the court for 11 years. I almost held the world records. Joseph's story beat me by 11 days and I was thinking to my predecessor, you know, I say wait for 11 days to get sworn in then I'll be be go down in history is the answer to a trivia question fabulous but but but but nonetheless nonetheless what was your question something you've changed your mind about yes okay I do but the second rule she said is tomorrow is another day. You and I on the court were the greatest of allies in case one.

Case two were totally opposite. And so you decide the case and now it's on to the next case. And I learned something from Arthur Goldberg about that. We'd get defeated on something or other. And I'd say to the justice, I'd say, gee, we were so right. That's terrible. And I bang on about it and he would say so what do you want me to do about that what we do I'll tell you what we do he'd say we

go on to the next case and we'll win that one and then we go on to the next one and that's what we do all right so what do I the one that comes to my mind it was something this shows you something else about the court too it's rather interesting to me it was something about this shows you something else about the court too, it's rather interesting to me. It was something about committing people to a mental asylum after they'd served their criminal sentence. And there was some question in there, and I was supposed to write an opinion for the court and I started doing it and I couldn't get it to write properly and I thought about

it and I thought I'd change my mind. Now the person who then was going to write the opinion for the court because I was then going to dissent was Clarence Thomas and I said to Clarence, shall I circulate my draft because then you see what you're up against, my dissent. And then you can write the, he said I don't know said, well, maybe we should ask the Chief Justice Rehnquist in the conference. So in conference, I said to the chief, I said, well, I've changed my mind on this. You've seen the memos.

And is it all right if I circulate my draft dissent before the majority circulates? And Rehnquist says, well, he says, does Clarence mind? And Clarence says, no, I don't mind. Fine. And so the chief says, well, circulate it if you want. It's no big deal. So I said, Clarence, we found the first goddamn thing

around here that's no big deal. KATE SHANNON BAKER-SHERMANN-TOMPSON LAUGHS Can you give us an example? Well, in your book, for instance, you talk many times about one of the problems is that originalism says one of its virtues is that judges can't come out simply in their policy preference.

Yeah. When in fact you point out many times that that's not the case, that it's not as constraining as originalists and textualists may think. not as constraining as originalists and textualists may think. And I think that's a problem with any jurisprudential philosophy is how do you keep judges from just saying, well, if I were in Congress, this is how I would have voted. So that's what I'm going to do. I'm curious if you can give an example of a case that came out differently than what your policy preference would have been, that the legal outcome was different than your policy outcome. Look at about 200 death penalty cases. Is that good enough? I wrote an opinion so I can discuss that. In the opinion, I said the court should reconsider. Its decision at the

death penalty is constitutional. I didn't say what I thought exactly. I'm not saying what I think exactly now. But nonetheless, it had a sort of anti-death penalty approach. And I did write 42 pages, I think, about it, which even for me is pretty long. And it has a lot of facts and figures and so forth. Okay, you're reading that and then read the cases that I decided upholding the application of death penalty because I said I'm not going to dissent in every death penalty case if I don't have a majority. And I did not have a majority.

All right? So there are quite a few. KATE BADERLY-FORD-KERNANCE A topic that has obviously been a big one of late is the overturning of Roe versus Wade in the Dobbs decision. And you write about that in your book. You also write about a case called Heller. So in 2008, y'all held.

This is like a weird thing to say. The Supreme Court, you. You were in dissent. But the Supreme Court held that the Second Amendment protects an individual right to keep arms in the home for self-defense. And something that you say in the book is that, at least a very plausible way of looking at the Second Amendment, is that, no, it protected an individual right to train for a militia, but that self-defense is nowhere in there. And so self-defense would be an unenumerated right in the Constitution, the right to keep arms for self-defense.

And so in that sense, the Second Amendment right, sorry, the right to self-defense being an unenumerated right, and the right to abortion being an unenumerated right, actually jurisprudentially are kind of similar. And so you talk about how Roe v. Wade shouldn't have been overturned. I'm curious if you think Heller should be overturned and why you would treat the two cases differently if we're talking about that same unenumerated right that states should have some ability to regulate unenumerated rights, why one and not the other. Well you could think of lots of things, the right to eat a lollipop or something, I mean,

that aren't in the Constitution. And that doesn't mean they exist or don't exist. But you have the base of your question, something that is a very serious and very difficult problem. And the way the court has traditionally referred to this problem is with two words, ordered liberty. And the virtue of those two words is that nobody really knows what they mean.

And if you in fact are interested, my own view of who's written the best on that subject is Justice Harlan in Poe v. Ullman. What are two Harlan? Which is the cotton-seggant. Two. Harlan two, okay. Yeah, it used to be considered a more conservative justice.

Well, he wrote an opinion, he went along with their finding a right to use contraceptives or whatever the thing was in that case. It was one of the marital rights. But he said, how do we decide this? And ordered liberty. Well, we look back into history because the words won't be there. Go read McCullough versus Maryland. John Marshall. Great opinion. One of the first. And he says this is a constitution we are expounding and what he means by that it's at a certain level of abstraction. So don't look for detailed words in there. He's saying we don't. He's had to decide in that case whether the Congress had the power to pass a law creating a bank of the United States. And you know how many times the word bank appears in

the Constitution? She does know. Zero. Okay? But he held they did have that right because of the abstract, certain abstract words that are there in the Constitution. So read what Harlan writes there and how you go back into history and look but more than that he says you also look to the application today and he talks about channeling that application into the future. Does that mean the judge can just do anything he wants? No. I kept saying when I get that question, which I have many times, I say I never do what I want. No, that's not quite true. But nonetheless, nonetheless, you're there as a judge. If you want to just do what you want, what

you think is good, then run for office. Or if you don't want to run for office, work on the staff, as I did run for office, work on the staff, as I did for Senator Kennedy. Work on the staff of someone who did obtain public office, and you'll have more leeway. But not as a judge. You have certain not you don't have to have definite rules. You don't usually have definite absolute rules

that determine an outcome. Law is not computer science, and it isn't any kind of science. But there are limits, channels, approaches, norms. Go back to 1584. And Reeve of Montesquieu writes, he writes the same thing people write today. He writes that there are approaches that you use. There are general standards. There are ways of behaving.

And you learn that. Maybe I've learned a little bit after 40 years. You realize that 40 years, that's terrible, that couldn't be true. But 40 years as a judge? Court of Appeals? Supreme Court? And that's why I really wrote this book. I wrote it because maybe I've learned something. I don't know if other people will benefit or not. I hope they will. But I write why and how with a lot of examples. I use a lot of examples because I know there are probably 200 law teachers who know more about the theory of it than I do,

but I've had some experience they haven't had. And I want to write about that experience and tell them in this book, when and now have I sometimes looked back to what somebody had some purpose in writing that statutory language somebody in Congress had an idea but were they trying to do what was their purpose consequences if we decide this way what's going to happen in terms of our our our beliefs and in terms of those purposes. Values. What are those values?

This is the document. I have it still in my pocket. This is the document that helps hold us together. And you go look at that and you see democracy. It's there. Basic human rights. A degree we hope of of equality? Rule of law? Separation of powers? Those basic values, you read it, you can't help but they come through. And John Marshall saw that. And how does this statute and this interpretation stack up? Sometimes that's relevant, sometimes it isn't. And so you but you're ready to use those things if they're relevant and if they help and that's what I'm trying to explain and now I forget the question

again. Well you see she's forgotten this. Just abortion and guns. No. What? If abortion and guns are both unenumerated why one and not the other because of why what abortion was far there are a lot of different theories on that and the strongest argument in my opinion for just letting Roe v. Wade alone it had been the law 50 years for 50 years that had been the law and the 30 years I think on on Casey and so I have my imaginary textualist what's a textualist a textualist is someone who thinks or an originalist. That a snail is an animal.

Yeah. That's right. That a snail is an animal. That's exactly right. That's exactly right. You go, what did it mean though? What did it mean to the persons who were alive and reasonable at the time the language went into the Constitution? Hey, with this, I can't resist making this. It's a sort of obvious point. But when that language about equal protection of the laws, when the language about not taking away people's life, liberty, or property without due process of law, when that language went into the Constitution, which is just after the Civil War, it seems to me there was about half the country that was not represented in the political process. Perhaps. Ah, yes, exactly, exactly. And so we're going to go back and figure out what all those people thought

when half, more than half the country really, because there were the people just liberated from slavery. And, and, they weren't part of it, okay? So be careful about looking at what people thought at that time and the fact that they didn't, that they didn't mention something. I mean that they didn't mention something, chose something, but not everything. And there were a lot of things to look at. And if Roe, you don't agree with Roe, you can say, well, Casey did it as a repair, some of the intellectual part that people were arguing with, like Ruth Ginsburg. I mean, she argued with some of Roe, she thought it wasn't as reasoned as much as she'd like, and so they cured that I think. But anyway

they've been the law for... so my imaginary textualist, imaginary, I say to that textualist, why? It's been the law for 50 years. Is it that you overruled this because you thought they didn't use originalism or textualism? I know what the answer to that is, no. That isn't the reason. That isn't the reason. Okay, because if it is the reason about almost all the cases of the Supreme Court ever decided would be up for grabs.

And nobody's going to think that, in my opinion. All right, then why did you overrule it? Well, I think the person will answer possibly, because it says it in the opinion. Because it was terribly wrong. Didn't use the word terribly on it. But nonetheless, very, very wrong. I say, oh, I see. You're ready to overrule those cases that you think are terribly wrong, but not those that you think are right.

Yeah, I get it. But you think that the problem of judges substituting what they think is right or wrong for the law is something that exists only with judges who are not textualists, but it doesn't exist with you? Maybe I should repeat that. What you're doing is deciding whether these old cases were right or wrong. Mm-hmm. But you're not gonna just substitute what you want. For what's the law? But a judge who doesn't follow your approach of textualism might, is that what you're saying? So if Heller thinks it to 30 years you don't overturn it? I'm not on the court then so I can't say. I can't really say what

people will do in the future. But I think the main problem with Heller and Bruin and so forth was what you say, they got their history wrong, the majority, and in Heller, the... John Stevens wrote a pretty good opinion. I thought in showing that this history really shows that they're interested in the militia. It's not about people having guns under their pillow to scare away burglars or whatever. It's not about that. It was because... Sounds like it was terribly wrong, though.

Which was terribly wrong? Heller. Heller was terribly wrong. Look I didn't write the words terribly wrong that was the opinion I descended from and then and by the way the descent will show if you read that descent you will see that the the argument about when you overrule a case is one argument about after about 50 reasons why this decision is wrong okay? That's what we were writing. But I picked that up because it seems to me somewhat contradictory for the textualist or the originalist to say, oh it's only the people who followed traditional

methods of interpretation where there's a risk that they'll substitute their own beliefs for the law. There's that risk just as much with the other. Just as much. And particularly when you start overruling cases. All right, I'll stay away for the law. There's that risk just as much with the other, just as much, and particularly when you start overruling cases. All right, I'll stay away from this because I express my...when I get really sort of upset about a case, my approach to doing it, I don't recommend it, but I try to write a dissent or join a dissent that even a child of two would have to say the dissent was right. Now, I can't guarantee I'm always successful at that objective, but I haven't asked many children of two lately as to whether they have read my dissents.

But there are many reasons in that dissent. Why we thought, and they're all public, why we thought the majority was wrong to overrule those cases. And just one of them is related to the textualism point. This episode is brought to you by the Kraken Goldspiced Rum. The Kraken presents the legend of goldspiced rum. Plundered from the darkest depths of the Kraken's keep. Savor for its rich, smooth taste with hints of Tahitian vanilla and dark spices. Discover the Kraken's newest treasure, the Kraken Gold Spiced Rum.

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filling notebooks with sketches, or up all night turning your bedroom into the booth. Thirst is everything. Obey your thirst. Right. You mentioned the Equal Protection Clause and women not having the right to vote at that time of the Equal Protection Clause. And I find that so interesting because under your reading of the Equal Protection Clause, as I understand it, the 19th Amendment

wouldn't have been necessary. And I think that highlights a problem with the purpose-based approach, because if you too broadly expound a constitution and expand it, it undercuts that political process because it's so much easier to fight over a confirmation hearing for a justice than it is to ratify an amendment, to compromise, to do the hard part about convincing your fellow citizens. And so how am I supposed to think about the Equal Protection Clause, which we want to be broad, but then the 19th Amendment, which means that those who ratified the Equal Protection Clause did not think that it, for instance, included women's right to vote, and that the 19th Amendment is a good thing because it meant that everyone had to kind of get on board with that. It wasn't judges making that decision.

I accept that, of course, and to go back to an earlier question that you asked, what's the role of this public opinion? What's the role of people who think of politics, if you like, on the court? And I think the best explanation was given by Paul Freund, who was a very good scholar, a great scholar of constitutional law, and he said this, no judge is moved or should be moved or is moved by the temperature of the day, but all judges are aware of the climate of the era. Now, you have to think about that because no one really knows what it means. But, but, but the way that the Equal Protection Clause applies to women is something that developed, discrimination against women, is something that developed

over time. And that's true of many other rules of constitutional law or the approaches or the theories, et cetera. But it takes the pressure off the political branches. What? It puts the pressure on the court. Oh, that's a problem. That's a problem. That's a problem. If you go too much too fast, and what's too much?

And how do you... what goes beyond the limits that are there now in the words and the principles and so forth of this part of the Constitution or that? And you think I have a clear rule-based answer to that? No, of course not. And if I did, then law would be something of a science, but it's not. And you go back to 1584, and what he says in that essay, it's a great essay on experience, and what he says, I think, is that life exceeds the bounds of any law or any group of laws or any idea that people have now of what the law should be forever. Be careful. Human life has no limit to the experience that people will have, do have, are going to have. We don't know. We don't know. And so you have to have an approach that limits you, of course.

And that's true under any theory of interpreting the Constitution. And you expect someone to say what it is they can say, but they're not. I don't believe them. I don't believe them. And so the 19th Amendment question is a good question, because actually, by the time the 19th Amendment comes along, we're living in a different world. Or as Ruth Bader Ginsburg liked to put it, it isn't true anymore that the woman's place is in the home. No longer true, and that's true by the time they pass this. And so that's obvious. But that's the problem of interpreting constitutional law. And what do you want to do? Change human life? Maybe we should. You give this great example in your book, and overall your point is everyone's using standards, not rules. Law is about standards, not rules.

And so you give an example of the speed limit, right? We have a speed limit, that's a rule, 55 miles an hour. But we could have a standard of driving dangerously. Yes, we in California, when I grew up at Lowell High School we did have to take a course in driver ed and the law at that time was just what you said. Really? Yeah. That's terrifying. It's worse than you think. My first summer I worked for my uncle and he gave me an old used car as a pay. He was a Chevy and I don't think he wanted to see me drive. And my Joanna says it my driving is not improved. It's a good thing we have the Marshalls here. Having a 55 mile an hour speed limit as a rule is both over and

under inclusive, right? Because there are people driving very safely at 65 miles an hour and there's people who drive very dangerously like you at 45 miles an hour, 20 miles an hour, etc. And so that's your point. Standards are better than rules because they can take that into account. Not always, not always. You better have a rule as to how many days you can wait before filing that appeal. True. You better have a rule when it tells you how much, how many words you can put in that brief that you just filed in my brother's court. I was going to say, now you're just saying rules that are helpful to you as a justice. Wait a second.

That's a good point. But it occurred to me in reading that in the book, because I thought it was such a good example and an easy one of the difference between standards and rules that part of the reason that over time, I think societies tend to move from a standards-based society to a rules-based society is that standards can be applied very unfairly, that it would turn out in a don't drive dangerously speed limit, that we might find that it was more common that men were found to

drive safely at 65 miles an hour and more common to find that women were found to drive not safely at 45 miles an hour and then we'd have an argument over whether that was because men and women drive differently or because the people applying the standards were doing so unfairly or in a biased way and so at the end of the day we just moved to a rule. It's 55 miles an hour, and we can apply that to everyone equally. And isn't that a problem with standards? And that's why we move to rules, and that's why something like textualism, for instance,

which is more of a rule-based legal philosophy, I think, is attractive to some people because it's like, look, if you didn't write the words, if you didn't get that law passed the way you wanted to, then go do it again. But it's not my job to read into a standard because that could be applied unfairly. Why do I do that? Because it depends on the case.

Depends on what you're talking about. Procedural rules in courts are probably better in the form of rules. I'm sure they are. And other things like the First Amendment? Standards will help. Be careful of becoming too rule-based. Be careful. You might say something like which I've written against a lot. Content-based regulations. You see content-based regulations you see content-based regulations violate the First Amendment they do I mean the courts written that as a kind of rule yeah I see but on the wall of my office are for our there's the US code and the US code is filled it's filled with content-based regulations. Try the SEC. Are you really going to apply

that to every job in the nation? No. They can't. Can't be done. And or if we're done, okay. But so sometimes it's rules and sometimes you want standards. And you want me to tell you when? I don't have an absolute rule for that. It's a standard. I don't have a standard on it. You have to. That's what judges do. Judges in appeals courts decide whether a snail is an animal.

OK? If you wanted me to really go into the answer to that question, I don't know. And we'll never find out, because the railroad company reimbursed the poor teacher for that was a real story yes you think I make these things up I certainly thought that was made up no so wait what's the ending to it he pays the ticket each snail and then no not for each snail he the conductor was not

totally a basket yeah one basket of full snails right see that doesn't seem like though textualist you had to pay per snail doesn't say anything about that in the snail but maybe maybe regardless it was written in the newspaper what I told you and I read I believe don't take my stories about what goes on when I read in the newspaper is accurate but nonetheless I believe that the company reimbursed the professor. Well, perhaps we could work it out in civil society, and that's really the answers to keep it out of the courts. Well, there, there, I can't remember who wrote this. They said if you had a society, and that's the first thing I asked the students, the seventh graders.

Ever been in any arguments? Ever get into arguments? With your brother, your sister, your parents? Yeah. And what happened after that? Well, they got over it somehow. They got over it. So I say there are probably four billion arguments in the United States every year. And almost all of them you get over. But some you can't. Crimes or big money or torts or all kinds of things. Some you can't get over. So who do you go to, I ask them. And they say,

that's too fast. No, no. You don't. You go to a lawyer. And the lawyer is supposed to help you get over this argument. And he's supposed to talk maybe to the other lawyers. And most settle. Not many cases get into court. But if you can't settle it, well even on the steps of the courtroom, they'll settle it. Chuck will tell us. And by now, a few get through. And I once asked Justice Liacus, chairman of the SAC in Massachusetts, how many cases do you think really get into court? He said 16 million. I said really? He said but most are traffic tickets. So I said really? And he said but only two or three million are real cases. Ah, I said, really? He said, but most are traffic tickets. So I said, really? And he said, but only two or three million are real cases.

I said, how do you know? He said, I don't know. I just made it up actually. But there are a lot. Of those, 58 get to the Supreme Court. Well, how does it work? One side wins, the other side loses, if they go to trial. And they don't settle during the proceeding. Remember, the judge doesn't decide the facts usually, it's the jury that decides the facts. The judge says the law and tells the jury if there's a jury in the case. Fine, one side wins the other side loses. The lawyer who wins,

wait, the lawyer who loses thinks the judge is an idiot. I already told you that. So he made mistakes of law, thinks that losing lawyer. Now what does the winning lawyer think of the judge? What do you think he thinks? What do you think? Solomonic wisdom, right? No, he doesn't think anything of the judge. He thinks he's a good lawyer. The losing lawyer appeals. We go to the Court of Appeals or maybe we go to the California Supreme Court eventually and eventually if you look at all of these cases in a year and how many involve federal issues of federal law, federal law that's Congress or the administrative agencies or the

Constitution how many maybe a hundred thousand and of those maybe eighty thousand let's say eighty thousand just to round it off because about eight thousand asked the court to take their case that's the only place left for them to go and we take about 80 okay and so it isn't the Supreme Court that's deciding these sub it's it's, well why? Every week I get on my desk I got, you know, big stack of memos written by the law clerks, all the people who ask 150 a week. We have a pool and I look through, well how can I look through those and narrow it down to maybe that out of that?

And I say because I'm looking for something. We take a case almost always because the lower courts have come to different conclusions on the same question of federal law. If they've come to the same conclusion, why us? They're perfectly good judges. But if they've come to different conclusions, well, there's a need for some uniformity across the country, so we'll probably take it. So that's what I'm looking for. Not 100%.

If a lower court judge says that a law of Congress is unconstitutional, we'll probably take that case. Do you think y'all should be taking more cases? It's not a number he's... Sandra O'Connor used to sit there in the conference and she would always say, we've got to take more cases. I found some over here. We found some over there.

You know, I'd say that's why I started with this. If you have a country where people don't have big arguments and they decide all different, good, good, excellent. I think there was a Chinese philosopher who said that. There was, there was, I promise. And so we're trying to help people resolve their problems under law and we're taking cases where there's differences of points of view. That's almost all of them. Sometimes, say Guantanamo, we'll take a case because we think the country needs a Supreme Court decision. And in Guantanamo, we had four cases.

Each of those was brought by a person who was not popular. You think Ben Laden's driver was popular? In each of those, that plaintiff is suing the Secretary of Defense for the President of the United States, and in each of those cases, the plaintiff won. And we said Congress cannot take away that Guantanamo prisoners' right to come into a court, for example. Okay? And we took that because we thought the country needed that. I think we're right in that. The court isn't always right about that. It isn't always right. But the primary thing is, is there a split? And then we'll try to work it out.

And Brandeis said, often with many of these cases, it's better to have an answer, even if the answer is the wrong answer, because people can adjust to it or Congress can do something. All right. We're about to take audience questions, but I have two more for you. One, you mentioned being the junior justice for 11 years, and the junior justice comes with certain responsibilities. You have to open the door at conference when there's a knock. But one of the most important responsibilities of the junior justice is to sit on the cafeteria committee. And I'm curious what the most contentious fight was over the course of your 11 years on the monthly cafeteria committee meeting. You think

that was easy? There are some people who would like to have meat sandwiches for lunch and there are others who prefer salads. How do you work that out? And why is it when I could never work that out that I'm entrusted with deciding these constitutional decisions? That's a little tough to understand. I said go up to the Boston courthouse because they have a very good cafeteria. That's how we, that's how, that's how we, uh, I think we was, I was there for 11 years. And we got on well. I mean, we get on in the conference, I always say, which is true,

I've never heard a voice raised in anger at that conference, 28 years. And really big disagreements on some cases. And I've never heard a judge on that, in that conference or there alone. Who's the funniest justice in conference? No one is funny. Believe me, you don't. Who's the funniest justice in conference? No one is funny, believe me you don't. Even I try. I mean, I, I, brain quiz would never let a joke slip in. So I was very proud of myself when I had been assigned an opinion to write, which was supposed

to be unanimous, and it ended up five-four. So I said in conference, chief, I've discovered the way to get five people on an opinion. And he said, oh, really? What's that? I said, you start with nine. Even he thought that was slightly funny. But that's as far as you go. It's serious. You go around. People see what they say, what they think about this case. And believe me, it is a mistake in that conference to go and say anything that suggests what I'm really saying is ha ha ha I have a better argument than you are if you say something along those lines the other person will simply think no I have a better argument than you are that gets you nowhere and so you've learned

which I learned in from Senator Kennedy do a consider listen, listen, listen to what other people are saying and see where they're coming from and then see if you can adjust, if you can say something helpful and when you do you get somewhere and sometimes you do and sometimes you don't. But that is what it's like. Nobody speaks twice until everybody's spoken once and then there's some back and forth on the cases you've heard that week. And that's how conference was 30 years ago when I started off, and that's how it was when I retired two years ago.

Okay, last question, and then we're going to do audience questions. Two of my favorite cases are the two where you are the swing justice. It's about the Ten Commandments. And in the Kentucky case, you said that the display of the Ten Commandments violated the First Amendment. And in Texas, on the grounds of the state capitol where I'm from, you said it did not violate the First Amendment. And I think it's a really interesting pair of cases that you are the only vote that switches. And that's what makes it a fun read. So I'm curious, which is more fun, being the swing vote in a situation like that or

writing a really spicy dissent? I don't think and I can't remember a case where I was moved one way or the other by thinking this would be fun. That is not exactly the nature of the job. You have to decide the case. I mean I can't say one way or the other. Did you have more fun writing dissents? I know you didn't choose to dissent because it was more fun, but are writing dissents more fun? It's not fun. What you're doing is trying to explain and you're not writing something that is the law. You're trying to explain why you came to a certain position. You're trying to explain to people and your audience

will sometimes be just the lawyers. Bankruptcy case, tax case. I always think I asked Marty Ginsburg once, he was Ruth's husband, he's a great tax lawyer. I said is it true that when the Supreme Court takes a tax case the reason that you feel the earth is shaking is because all the tax lawyers are trembling because they'll never get it right? But he said yes, but yeah okay that isn't the issue. Can you explain it clearly? Can you explain why you came to this result. That is the nature of the job and you do take it seriously. And I say sometimes to the students,

look, it's like being a doctor in a sense. A doctor does not say, this patient has a disease that I've seen a thousand times so I'm not going to pay attention. Ha ha, no doctor says such a thing or even thinks it and that's what the judicial process is supposed to be about. There's somebody who's affected by this and you better take it seriously and that's what he meant when he said you better like the job and if you want a job that you know it says your view on politics or your view on philosophy or your view on whatever you want, take some other job. Not that one. And that's, I liked it. I liked it very much. But, uh, understand what it is.

We'll take some questions from the audience for a bit. So we're gonna bring up the house lights so that y'all don't fall on your way to the microphone. There it is. This first question will come from the far back right. Hi Justice Breyer, my name is Sarah Fawn and I'm a second, I just finished my second year of law school. I would like to know what advice you have for young lawyers who aspire to advocate before the Supreme Court No, my advice would be you're through the worst part Yes, I mean it's the first year that's absolutely killing and by the second you begin to think well pretty soon I'll be out practicing and you have to it's a very hard to argue in the Supreme Court

Yes, it is really in any court because you you don't know in the Supreme Court, you have nine judges there, you don't really know what they're going to ask you. And that oral argument is not for you to present your views. That oral argument is for the judges to ask questions. They've already read a pile of briefs like this, and everyone's gotten those briefs. The blue brief, petitioner, red brief, respondent, the yellow brief, fly. I always read the yellow brief first because it says the same thing as the blue brief, but it's shorter. Then you have light green on the petitioner's side, dark green on the respondent's side, and you're in there arguing a case.

It's very difficult because the judges expect you to know your case, they expect you to know the record, they expect you to be able to answer a question that they're really asking because they want to know the answer. And those are the best questions. You know, I've asked some awfully ridiculous questions in my time, but nonetheless I know what I'm trying to do. I'm looking for a question if I'm trying to do. I'm looking for a question if I'm going to ask one, where I don't know the answer, and I think

that lawyer in front of me does know something about it, and I think when he answers the question I will be helped in reaching decision. Now you might think that that's a very few of the questions. Well, it's quite a few like that. And then there's a question you might ask to show the rest of the court where you're coming from. What are you thinking so far? And then you want to tell a joke and a question? Don't do it. I can't say I've always refrained from that temptation, and Nino Scalia is no better than me on that one. But don't do it. Scalia was no better than me, I'll tell you, on that one. But don't do it. Don't do it.

It's a serious process. You're trying to learn something from that lawyer. And so my advice for someone who goes into law, you're going to have to know your case. You're going to have to know that area of the law. You're going to have to try to help that client. And that's the best I can do. This next question comes from the front.

Hey, Justice Breyer. Thanks for coming. My name is Nicholas. I'm an engineer here. But during COVID, I went home to Virginia for about a year and started reading a lot about US history. One thing I think we're living in interesting times, but from my readings, it's not unprecedented. And I'm curious on your view. There have been a lot of debates and polarization

in the past, but one thing that I've noticed is that like Adams and Jefferson or Lee and Grant, they were enemies in ways or opponents in ways, but they often respected each other greatly. I see in the media that that might not be the case now, but knowing that you have an intimate view of politics in Washington, do you believe that that respect is still there? And more of a specific question, do you think Trump and Biden respect each other? I'm not going to go into personalities, actually not, but it's obvious if you read the paper that people are worried about the question. I mean my view is pretty much reflected in your question. I don't

really know. I'm not working on the Senate staff anymore. I tend to think that probably everyone thinks this, the time that I worked in the Senate, 79, 80, 75, 76, that was the golden period. Of course we think that. But it was. We tried to get on. Republicans and Democrats did try to get on.

And when I'm asked that kind of question, which I rather agree with, I have to say, I don't know. I'm not there. On the court, I think people try to get on. On the court, I think they try to get on. On the court I think they listen to each other, though they might not agree with each other. And very often they don't. But is that true generally? Maybe less, maybe less. And that's our problem. And so we have to try to overcome that. I tell the students

again when they asked me about my confirmation. You know, it wasn't unanimous, but it was pretty close. And that was true of Ruth, too. And it isn't true anymore. They say, well, that shouldn't be. And I say, maybe it shouldn't, but if you want it not to be, I learned that the senators will ask the questions that their constituents want asked. And if they don't, they won't be senators for very long. And so don't talk necessarily to the senators, talk to their constituents. Talk to other people who disagree. We can go into that later on. But that's important. That's important. So if you say your question reflects a problem, I agree with you. But would you say the justices on the court respect each other?

I think they respect each other. Yes. Respect each other, yes. They're not necessarily the best of friends, but they get on all right. And by the way, that's not necessarily the point. The point is basically, but I want people to understand the atmosphere, but the point basically is how do you reach a result in this case? That's what we're doing. That's what I'm trying to explain to people and that's what I hope they pick up. His question is in the balcony, towards the center. It's really exciting to be here. My name is Swamath Janjanam. I'm a senior in high school and I had a question more about your perspective of being a judge on the court. Do you think, even though various on case by case, do you think it's more important to take in

consideration legal stability when looking at a case or the climate of the era per se, uprising social values and norms? That's actually a pretty difficult question to answer and it's a very good question. I mean how does the political atmosphere actually affect the court? And I think the articles that are written that it's all just politics, a lot of people think that. I bet if I could see into your minds in this audience a lot of people think why are we talking about this? It's all just politics. I don't think it is. See, I think there are at least six things in

that question and in the notion that it's all just politics. I mean, I learned about politics. Suppose Senator Kennedy got a call from the Secretary of Defense here and at the same time from the mayor of Worcester. Which will he answer first? That isn't a difficult question. It's in Worcester that there are the constituents. Okay, that's politics. How do the Republicans feel about this? What's popular? What's gonna help get our bill through and what are they gonna say about it? The newspapers and how are people gonna vote after that? That's politics. Do I see that in the court? No,

I haven't seen that. Well, what do I see then? Why are people writing this? And I see this. One, I'll give you six. One, they do have different approaches. And this thing about the textualism, the originalism, I would probably not have written this if I hadn't seen what I called a title wave, a title wave of movement towards that. Because of course course it sounds great. We have a system easy to apply, ha ha ha, read some of those words. We have a system, I have a few examples, but we have a system that will reach the same results across the country, not quite ha ha ha, just ha ha. and we have a system here that will help congress because they know what the judges will decide no we have a

system that will rein the judges in i think you have to read it no more than any other system no more than any other you're going to be not be an honest judge don't be a judge. What's the point? You're not in it for the pay. OK. You see, that's their different philosophies, different approaches. That exists.

And maybe the people who got the judge appointed were very political. But they tried to get a judge appointed whom they believed would decide on the merits in a way that led to what they like politically. They think it's politics. The judge thinks he's deciding the law correctly. Okay, that's there. Two, political philosophy. What's that? I don't know what they teach it at the universities and and it's pretty vague and well that that exists. What's that? I don't know if they teach it at the universities and it's pretty

vague and well that exists. What is this country like? And probably because I taught antitrust for 13 years I think antitrust is important. Alright, somebody else might not. But that's political philosophy. And what do you think about the country? The judge grew up somewhere. I grew up in San Francisco. You went to high school somewhere. I went to Lowell. I went to Stanford. I've had the life I've had, just as you have.

And by the time you're in your 50s or about there, you begin to have views. You begin to have views about what do you think this country is about? What do you think this city is about? What do you think we ought to do? Who am I talking to? Who am I? What is this all about? You begin to have views. And you can't escape your own skin. You can't. You try. Try to be as objective as you want. But, and I used to think, how terrible, since I'm so reasonable, why don't they all agree with me?

And then I began to realize after a time, it's a big country. There are 330 million people. And my mother used to say, as I've said 1,000 times, there's no view so crazy there isn't somebody in this country who doesn't hold it. And then she added they all live in Los Angeles, don't tell anybody. I said, but okay you see and you try, try, keep it down, try, but that'll come through. And then there's sometimes when I have to say it's really politics. When is it really politics? Go look at the miscegenation cases.

Frankfurter said to the court, don't take the first one. Don't take it. We're having trouble getting Brown enforced. And what they're afraid of is mixed marriages. And don't do it. So they didn't do it. And they did take it later and said they're unconstitutional laws that forbid miscegenation. But they waited.

And that's a political decision on having to do with enforcement. Okay? That's all there. That's all there. And then sometimes, what? There's something else. Taft said this when he was Chief Justice. He'd been President of the United States.

And he said in a letter to Justice Sutherland, he said, of course, I want those who were appointed to be knowledgeable in law. Obviously, it's a legal job. But I also, they hope, they know something about the higher politics. Ah, what's that? What's that, the higher politics? You see, it's there somewhere more in the Supreme Court, perhaps than in a court of appeals. And what is it? I'm not sure. Do you take account sometimes

that this is the third branch of government? That a third branch does have some authority like branch one and branch two? And they're all there in article one, in article two, in article three, and they don't say one is more important than the other? So what is it? You see, go back to your question about the plummeting of the rates. What's it to do with that? To what extent is a judge on our court, the Supreme Court,

supposed to be aware of the higher politics and what is it? And that, my friend, is a good question and that's something you can think about, read about, learn about, and write about if you'd like. But I don't have a good three second answer. All right last question here you seem deeply optimistic about the future of the court the country why? Why am I optimistic? I'll tell you why and it's it's it's what listen to the questions that were asked, particularly from the high school. Yeah.

Okay? Yeah. Now. S-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s I know I'm going to get a question from a high school student and they'll say, what should we do? And I say, well my friend, don't ask me. It's your country. You're the ones who are going to have to bring us together. You are the ones. You got to figure it out. And I'll tell you something about this document. I hope for you, and I say this at graduation sometimes, I say I hope you find someone to love. I hope that you have a good job that's interesting and I hope you participate in public life. And you could participate by voting, you could be on the library commission, the school board, do something, but don't just withdraw. And Derek Bach was president of Harvard

and he wrote a good book about education. He put in there, I don't know if it's true or not, but he said that Pericles, in his great speech, the funeral oration in Athens, where he extols the virtue of Athens, he says, what do we say in Athens for a century BC or whatever it was? He says, what do we say about the man who does not participate, who does not participate in public life. We do not say he is a man who minds his own business. We say he is a man who has no business here. Good, tough, but good point. And I'm telling that to them. And I say, I'll tell you, I will pass on.

I will pass on to you what the main thing that I think I learned from Senator Kennedy or certainly one of the main things, and it was a great job. I love that job. it was a great job. I love that job. It was a great job. But what he said was on his staff, when you're on my staff, he says, you're trying to get on with the other people. We're trying to achieve something. We're trying to achieve something,

and we find it difficult. You go find someone who really believes the opposite of what you think and sitting down and talk to him no don't talk too much listen and if you talk a little and listen you will be surprised that at some point that person will say something you really agree with and as soon as you find that stated you say what a good point you have what a good point let's see if we can work with that and now you work with it and you try to get somewhere and if you get 30% of what you want take it don't sit there and hold out for a hundred percent so your followers normal say what a great man you are woman okay got it you get the 30% and fine and I saw Kennedy

quite a lot when he'd be at the press conference when we did sometimes achieve something and the press would say you did a good job on this senator Kennedy said don't thank me thank or an ad to the Republican on the committee he came up with the idea that allowed us to make progress. So I say remember that and you go out and talk to people and you go out and find what's bothering them and you go out and find how you can get together and you think we don't get together in this country you should have been in Cambridge mass during COVID where people made committees and they went through the streets to find out if the older people were okay and I

bet they did the same thing in San Francisco or San Diego or Des Moines. You go through this country? Yes, this is Squada Guatia in my fifth grade at Grant School, where she gave an assignment and four people had to work on it together. They got one grade. You learn how to cooperate. And yeah, that's right. Now, why do I that make me optimistic? Because I see the look in their eyes when I say that. Maybe I'm making it up, but I don't think so. I think they're pleased.

I think they're pleased, those high school students, to have something concrete to do to help bring us together. Good, they want to do it. And so maybe I'm overly optimistic, but I hope I'm not overly. I hope it's true. And I believe it's true. Those kids in the high school, they'll be all right. The country will swing back, forth, back, forth. That's how it goes. But they'll help. And that makes me optimistic. Well, I want to thank Justice Greyer. Thank you so much for being here and for sharing all this with us.

I want to thank the City Arts and Lecture program for having us here. And, you know, speaking of everything you've just said, Sydney Goldstein, who this theatre is named after, was someone who was deeply involved in public service. If you don't know the history of this auditorium, the history of what she did for this city, it's everything you just described and she is the one who had the inspiration for these conversations. I sister a lot. And thank you for being here because that's what makes these conversations fun and interesting. So thank you.