Supreme Court Justice Stephen Breyer discusses how the nation’s highest court can maintain the public’s confidence, his perspective on the Constitution as a living document, and his pragmatic approach to deciding cases.

Guests

  • U. S. Supreme Court Justice Stephen Breyer associate justice of the United States Supreme Court

Transcript

  • 11:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Constitution's form and language have helped it endure for 223 years. But as Benjamin Franklin once said to a questioner, the Constitutional Convention "created a republic, madam, if you can keep it." Associate Justice Stephen Breyer believes the founding fathers intended the Supreme Court to enable the Constitution to work, not only in theory, but also in practice.

  • 11:07:40

    MS. DIANE REHMHis latest book is devoted to educating the public about the work of the court and its place in our society today. The new book is titled, "Making Our Democracy Work: A Judge's View." Justice Stephen Breyer joins me in the studio. You can join us as well, 800-433-8850. Send us your e-mail to drshow@wamu.org. Join us on Facebook. Send us a tweet. Good morning to you, sir. It's so good to meet you.

  • 11:08:26

    JUSTICE STEPHEN BREYERWell, good morning, Diane. It's very nice to be here.

  • 11:08:29

    REHMYour book is subtitled, "A Judge's View." Do you see a judge's view as being different from say, my view or an ordinary citizen's view?

  • 11:08:45

    BREYERWell, a judge has a different job.

  • 11:08:47

    REHMCertainly.

  • 11:08:47

    BREYERAnd I'm writing about my job, and what I want people to know is, what is that job? What is the job of the nine people who are there? What has been the job of the Supreme Court over the years? Why is it that Americans have come to accept it as having the last word on the meaning of the Constitution in most areas? Why, and should they? And what is the point of what we do? And how did they do it? I want to go into those questions by telling stories and by explaining. In part, I guess I'm doing it because my predecessor, Harry Blackman, told me to do it.

  • 11:09:26

    REHMHe did?

  • 11:09:27

    BREYERWell, he did. He said two things. He said, you know, when I was appointed -- I was replacing him -- and he said, you will find this an unusual assignment. Quite right. And he also said Americans have an unquenchable thirst to know about what the court does. They know it's somehow important. They know it has something to do with the Constitution. They know it can affect them, what the court decides, but they want to know how it works. So every chance you get, tell them. Explain it as best you can.

  • 11:10:02

    REHMSo you've written a number of books, and it seems to me that one of the issues that makes the Supreme Court less attainable than perhaps the other parts of government, is that we as ordinary citizens cannot see you at work.

  • 11:10:32

    BREYERThat's probably true.

  • 11:10:36

    REHMAnd it makes for understanding how the court works that much more difficult for us. Are you like the rest of the justices in favor of or against having courtroom procedures televised?

  • 11:10:58

    BREYERI don't have a definite answer, and the reason is like so many things. Oh, you're going to say, oh, this is a judge. He can never reach a decision. He just goes back and forth. But the -- from the point of view you're talking about, I think it would be wonderful to televise the proceedings, the oral argument -- wonderful because people would see nine men and women hard at work, deciding questions that are at the borderline of the Constitution. They are border cases, and they're difficult. And there are two sides.

  • 11:11:30

    BREYERAnd what they'd see is judges at work, trying to work out what the right answer is. And it's hard, always hard. Because if it weren't hard, why is the case in front of us? It would be wonderful if they could see that, but there are negatives to having the television in the courtroom. And the negatives are different. People worry that if it were in the Supreme Court, given the symbolic importance of the court, perhaps it would be in every criminal case as well. And there are special features of criminal cases, witnesses and jurors, who really have reason for not wanting to be on television.

  • 11:12:09

    BREYERAnd then people worry that -- well, the oral argument is only 5 percent of what we do. Most things are in writing, and people on television particularly identify with other people. And they'll say, oh, it's this person, the good one, versus that person, the bad one. That's undesirable because most of the people we affect are not in the courtroom. We're concerned with rules of law that will affect 300 million who aren't there. And no one knows if there'll be soundbite problems or not.

  • 11:12:39

    BREYERSo what I'm doing is sketching to you uncertainties on the other side, and I would remind you -- as you well know, and people know at some level -- we're just trustees. We're in part of an institution for a short time. That institution has a long life before us, and we hope a long life after us, and it has proved important to the American people. So we'll be very conservative as trustees and not jump into something without some evidence or reason to think that the good will outweigh the bad.

  • 11:13:15

    BREYERAnd that's why I reach my question mark. I've always said and say it, and people turn it off because it sounds so boring. But I would actually like to see a little research done on what's happened in the states that have it and what's happened in the states that don't...

  • 11:13:27

    REHMHmm...

  • 11:13:27

    BREYER...and what the public attitudes are and to the extent to which it does promote understanding. And all that sounds boring, but as a trustee, I would hesitate to make up my mind without a little bit more information which can be got.

  • 11:13:40

    REHMIt can be gotten indeed, and if you've just joined us, Associate Justice of the Supreme Court Stephen Breyer is with me. We're talking about his new book "Making Our Democracy Work: A Judge's View." You raised two issues I'd like to raise with you. One is that the Supreme Court justices are appointed for life. When that was originally decided, people did not live as long as we do hopefully now. Do you think that that decision, a lifetime appointment, still makes sense?

  • 11:14:35

    BREYERI think it has to be a long appointment. I don't really talk about this particularly in the book for a reason that I actually think if it were a 15-year term or an 18-year term as opposed to a life term, it wouldn't matter. The important thing is to have a long term, so that you don't have the judge thinking about his next job.

  • 11:14:53

    BREYERAnd that's really the point, and it doesn't even say life in the Constitution. It says during good behavior, but it has been interpreted that way. You're right, and there we are. In any case it would probably -- I don't think -- I don't know if Congress or the Constitution is going to be amended for that, but I do think a long term is important. And I won't get into an argument about whether it should be 15 years or 18 years or life or whatever. That is not a matter I think of great importance compared to what is important, which is what the court does and how it has done it and how it has gradually come to be accepted by the American public.

  • 11:15:30

    REHMHow would you describe your vision, your own particular vision, and that vision and that of so-called conservative jurists like Antonin Scalia?

  • 11:15:47

    BREYERWell, that's part of what I'm writing about. It's only part. And I'm writing about it because if I want to explain as you would explain how -- if you want to explain how radio programs work, and particularly interview programs, you'll draw on your own experience because you see it through your own eyes. And, here, I think I can best explain the court through my own eyes. It's one judge. It's not necessarily a judge who has a monopoly of the right way to go about it.

  • 11:16:17

    BREYERBut I think that the problem is, why are you interested in this question? And it's a good question to be interested in because an awful lot of the people think that the way we decide important cases -- politics. That's what they think -- junior league politicians -- and a lot of what I'm writing here is to show that that is not the right way to describe it. Why did Hamilton -- why did Alexander Hamilton want a Supreme Court? Why did he think a Supreme Court would have the last word as to the meaning of the Constitution in many cases? Because he couldn't think of where else to put that power.

  • 11:17:05

    BREYERHe thought if we give that power to the president, he'll be a tyrant. If we give it to Congress, well, they'll decide what's popular. They're experts at that. And why will they strike down a provision where it's unpopular to do that? And much of the Constitution is designed to protect people who are unpopular. All right. We'll give it to these judges. No one's heard of them, totally obscure, not much power, not the purse, not the sword. We'll give it to them.

  • 11:17:37

    BREYERAnd he never asked if they're so obscure and have so little power, why will people do what they say? Well, part of the book is about that. But, you see, I want to say it couldn't be politics. There'd be no reason for us to have the job if that's what it was, and it isn't either just every judge doing what he thinks is good because if that were the law -- if that's how we went about it, you'd have nine different views, and probably with overtime, you'd have 900 different views. And where, I think, the people who favor originalism -- and I think Justice Scalia does -- what they think is, look, there is a way of stopping judges from using their own subjective views of what's good.

  • 11:18:24

    REHMStephen Breyer, associate justice of the Supreme Court. His new book is titled, "Making our Democracy Work: A Judge's View." We'll take a short break. We'll be right back.

  • 11:20:03

    REHMAnd welcome back. If you've just joined us, I have the honor of having Stephen Breyer here in the studio. He is, of course, a sitting justice of the Supreme Court. He was on that bench yesterday, hearing all about free speech. Today, he's talking about his new book "Making our Democracy Work: It Is a Judge's View." (sic) And just before the break, you mentioned, Justice Breyer, the word originalism, which is what I want to come back to. I'd like to understand further what you mean, what others may mean by that.

  • 11:20:53

    BREYERWell, I think that -- well, most people will agree you can't have the judges just deciding things politically, and they shouldn't go off deciding everything whatever they think is good. And originalism is a serious effort to try to control the subjective impulse of the judge by saying there's a way to answer these difficult questions by looking back to what the framers think. And my own view is that that doesn't work. I do think we should look back to see what values they were trying to protect. I think the value of free speech was not changed much, but I can't find the details.

  • 11:21:31

    BREYERSo my arguments, which are -- there are several here as to why I think that doesn't work -- one of them is what Justice Jackson said, trying to understand on a matter of detail what the framers thought is more difficult than interpreting the dreams of the Pharaoh. He said Joseph had an easy time compared to that. If you want history, let's appoint nine historians. And I can't, on really difficult matters of detail, find the answers in history. So then what do I suggest? I think what I'd do if I were to describe it, in general terms, is looking back into history a little further to where Gordon Wood was writing about the history of this republic, said in the 18th century and ever since, judges have described the difficult work of appellate judging as using prudence and pragmatism.

  • 11:22:27

    BREYERAnd the great judges who I admire -- Brandeis, Holmes, Learned Hand -- have all tried to use something that can be generally described in that way. And what I've tried to do in a third of the book is to say, that isn't a bumper stick, and that isn't just a Fourth of July speech. It can be given content in different areas of the law. And I try to explain enough so that people without having to read the many, many opinions that have been written -- which is too much for anybody to read -- that people will be able to understand what I'm driving at, that that has real content, it can't be explained in five minutes, but it doesn't take thousands of pages either.

  • 11:23:08

    REHMYou call the Constitution a living document. Other people see it as it was written, it must stand. How do you reconcile the two views with a court made up of such disparate views?

  • 11:23:35

    BREYERWell, because they aren't as conflicting as you think. That is, I think that you look back to what the Constitution meant in 1789 when you're trying to figure out what is the basic value underlying words like interstate commerce, freedom of expression -- that doesn't change. But what changes are conditions and circumstances.

  • 11:23:59

    REHMRight.

  • 11:23:59

    BREYERThey didn't think then about the internet. They didn't think about television. They didn't think about what interstate commerce would turn into. And the difficult problem for the judges is how do you apply a constitution with unchanging values to a world that is continuously changing? How does free expression apply to the internet? Now, those are difficult questions, and you're not going to find the answer to that question in detail in what they thought then. As I say, some judges, nonetheless, believe we should try to look and find answers in that history. And others, like me, think it's not going to work. But, you know, it's a big country. And there are 300 million people, and they think a lot of different things.

  • 11:24:52

    BREYERAnd the object of this document, the Constitution, is to allow 300 people of different races, religions, points of view, who think many different things, to live together in one government. And it's not a bad thing that people on the Supreme Court have different possible approaches. That isn't a bad thing. It's a good thing. I grew up in San Francisco. I lived most of my life in Boston. I thought I'd seen a lot of different points of view, and then I came down here and was on the Court. I saw some points of view I hadn't seen before. And my first reaction is, oh, I'm right, and they're wrong. That's a wrong reaction. The correct reaction is it's a fine and foreseen thing.

  • 11:25:31

    BREYERWith judges with a long term, you will get people of different basic points of view on the Supreme Court. And they'll have to live together and try to work things out together. And 30 to 40 percent of our cases are unanimous, and the five-fours you read about are about 20 to 25 percent. And it isn't always the same five and the same four. And it is not, in my opinion, politics, and it isn't either people trying to do what they think is good. Now, I'm trying to explain all that, and I have to admit it takes a few pages to do it.

  • 11:26:03

    REHMAnd you also concede in this book the Supreme Court does make mistakes, and you cite the Dred Scott case...

  • 11:26:15

    BREYERYes.

  • 11:26:16

    REHM...as one of those mistakes. Here's an e-mail from Kathleen who says, "I had the good fortune to sit in on part of the Supreme Court 2000 Bush v. Gore hearings in D.C. I lost all faith in the Court after that politically partisan decision." She says, "It appeared to be a Supreme Court judicial coup, not an election -- or a selection of former President Bush."

  • 11:27:00

    BREYERWell, I was in dissent in that case. I wrote I didn't think we should've heard it. I thought we should dismiss it rather than decide it. And if we were to decide it -- which we did -- that in my opinion, the count -- the recount should've gone forward in Florida, so I thought it was wrong. But I use that case in the book. And what I want to show is this, remember the question we started with? Why would people follow what a court says? Why would they do it? And I use Hotspur's question. Do you remember that? In Henry IV Owen Glendower says, I can summon spirits from the vasty deep. And the Hostpur says, well, so can I, so can any man. But when you call them, will they come? I mean, why follow the court, which could be wrong?

  • 11:27:47

    BREYERAnd we had a president, Andrew Jackson, who when the court said that northern Georgia belongs to the Cherokee Indians -- which it did -- he didn't follow it. He said, John Marshall's made his decision, let him enforce it. He sent the troops to evict the Indians, and they traveled the Trail of Tears to Oklahoma where their descendants still live. And then we had a president, Dwight Eisenhower, who after the Court said, there will be no more segregated schools, and a judge in Little Rock said, integrate that high school, and the governor said no, he wouldn't, Eisenhower sent the 101st Airborne to escort those children into the school. That was a great day for law, and it was a great day for America.

  • 11:28:31

    BREYERAnd, now, back to the point. I heard Harry Reed, Senator Reed say the following about Bush v. Gore, and it rang a chord. He said the most remarkable thing about that case is something that's very rarely remarked. It is that despite the fact that half the country, at least, thought it was wrong -- and in my opinion, it was wrong -- despite that, there was no violence in the streets, and people accepted it. Now, I'll tell you, I run into people -- 'cause I say that to people in audiences. I want people to understand this matter -- and I'll run into a few who will say, it's too bad there wasn't violence, too bad. And I'll say, you really think that? Turn on the television set. Go look and see what happens in places where there is violence.

  • 11:29:24

    BREYERAnd, now, look at what we've done. What we've done is have a court of nine fallible human beings, very fallible. I understand that, being one of them, and they can make mistakes. But their job is there to try to enforce the Constitution even when it's unpopular to do so, and I see in front of me people of every race, religion, point of view. And they have decided to resolve their differences under law and not through violence in the streets. And even when I am most depressed, and I am most in dissent, I think of that point. And I think still the country has a treasure in this system of law run by fallible but independent judges.

  • 11:30:10

    REHMWhat about the Dred Scott case?

  • 11:30:13

    BREYERWell, I guess your last e-mail person might disagree with this, but in my opinion, Dred Scott was the worst, the worst. It was a case before the Civil War and the Court -- the Court held that the descendant of a slave, a black man, was not a citizen, could not be a citizen, was not a person who could bring a suit in a court. And on the way to saying that, what they said was that the Missouri Compromise was unconstitutional, that you could not take a slave away from a master, even in a free state or free territory, and, my goodness...

  • 11:30:55

    BREYERNow, two things about that. One, the most you could say for it -- if you're looking for something good to say about it -- is that Chief Justice Taney thought by saying this he would avoid a Civil War. Well, that's what he thought. He sure was wrong, and it shows how bad politicians judges are. The other thing is, there was a great dissent. It was dissent written by Benjamin Curtis from Massachusetts, and he just, point by point, showed how wrong it was. That dissent was picked up by President -- not then president, but Abraham Lincoln -- and Abraham Lincoln used it as the foundation for his Cooper Union speech, which helped catapult him to leadership in the Republican Party and help elect a government that was not a slave-favorable government and led to the Civil War, perhaps, and ended up with a victory that ended slavery. So I like that dissent. I like that dissent 'cause it chose a...

  • 11:31:56

    REHMYou like that dissent...

  • 11:31:59

    BREYERYes.

  • 11:32:00

    REHM...because it takes us to a better place.

  • 11:32:05

    BREYERNo, that isn't why. It did, and I'm glad it worked...

  • 11:32:07

    REHMUltimately.

  • 11:32:08

    BREYERUltimately, yes. But I like it because it chose the power of reason. It shows that reason matters in an opinion because the Taney decision, the majority decision, was wrong at the time. It was wrong in logic. It was wrong in law, and it was wrong then in law. And Curtis just shows that calmly, point by point.

  • 11:32:32

    REHMIt is remarkable that something like that can evolve into something else that ultimately has some good.

  • 11:32:49

    BREYERYes, that's right.

  • 11:32:50

    REHMStephen Breyer. His new book is titled, "Making Our Democracy Work: A Judge's View." He is, of course, Supreme Court Justice of the United States. We're going to open the phones. Let me remind you you're listening to "The Diane Rehm Show." You'll need to put on those headphones, and we'll go first to Clearwater, Fla. Good morning, David. You're on the air.

  • 11:33:27

    DAVIDGood morning. Thank you, Diane.

  • 11:33:29

    REHMCertainly, sir.

  • 11:33:31

    DAVIDJustice Breyer, this is an honor. Thank you for taking my call.

  • 11:33:34

    BREYERThank you.

  • 11:33:35

    DAVIDI wanted to ask you a question and then maybe get to something that you brought up -- Lincoln, and it's related to him. Everybody -- and I'm sure you are familiar with the speech he gave that began, "Four score and...

  • 11:33:50

    BREYERYes.

  • 11:33:51

    DAVID...seven years ago..." and he ends that with the phrase "the government of the people, by the people and for the people." Do you think we have that government?

  • 11:34:02

    BREYERBasically, I think so. That's what -- I know there are lots of complaints about the political process. But if you look at the document, the Constitution, I think most of us today who work with it -- I work with it, so we have some experience with it -- will say the primary object of that document, the primary object is to create institutions so that the people can decide democratically what kinds of cities, towns and states and nation they want. And it's a special kind of democracy. It's a democracy that protects basic human rights. It assures a degree of equality that divides power so no one becomes too powerful. Three branches of federal government and federal and state governments, and it tries to guarantee a rule of law.

  • 11:34:53

    BREYERBut those basic elements are written into that document, and we, on the Court, see those basic elements as boundaries -- as boundaries. And those laws or actions which go beyond the boundaries are the actions that we, sometimes with great difficulty, decide are either inside the boundaries and permitted or outside and forbidden. And people focus on that, but they sometimes forget that we're at the boundaries and that in between those boundaries is a vast, vast area where the public -- you and me as a citizen, 'cause I can vote, too -- that we have to decide how to vote. And we have to decide what kind of city, town, state and federal government we want. Now, that's hard work. It's hard work. It requires participation.

  • 11:35:42

    BREYERIt requires what you're doing, which is to think about the flaws in the system at present. And then you have to think how are we going to cure them? And then you have to convince others. And the way we get something done is by thinking about it, learning about it, arguing about it, discussing it -- maybe even sometimes not too civilly, though it should be civil -- and trying to persuade others to come along. And it's -- Tocqueville said that. He said that in the 1830s. He said the first thing he notices in America is the clamor. Well, what's that? The clamor is everybody arguing, but out of all those little groups, city's meeting, town meetings, seminars in universities, newspaper articles, letters to the editors, congressional hearings.

  • 11:36:29

    REHMBut what about in the Supreme Court closed door?

  • 11:36:34

    BREYERI know that's something that bothers you, and it bothers you quite a lot. In the Supreme Court closed door, which will remain closed, is when we discuss our arguments.

  • 11:36:42

    REHMDiscuss or argue?

  • 11:36:44

    BREYERDiscuss. I've never, never, never in 16 years heard a voice raised in anger in that room. I have never heard one justice say something deprecating or insulting of another. Those discussions are civil and professional and always, always. And people have very different points of view. What good would it do to start shouting? The other person would just think he was right, and we don't do it. And it is a tremendous virtue of that discussion session.

  • 11:37:22

    REHMDavid, thanks for your call. Associate Supreme Court Justice Stephen Breyer. His new book is titled, "Making Our Democracy Work." We'll take a short break and be right back.

  • 11:40:03

    REHMAnd we have a follow-up from one of our earlier e-mails. Kathleen says, "If Justice Breyer is claiming that the Supreme Court is not politically partisan, how do you explain the Gore -- Bush v. Gore decision if not based on political partisanship?" And I must tell you, there were lots of e-mails to that effect.

  • 11:40:38

    BREYERWell, I can tell you what -- the presumptions that I start with. I dissented, didn't I? And I was appointed by President Clinton, and Vice President Gore was his vice president whom I'd met. And one could view my decision as favoring Vice President Gore, and I had to ask myself -- I knew that. And I had to ask myself before reaching my conclusion, would I reach the same conclusion were the names reversed? So I tried to imagine that. And I went into that thought in my mind in depth, and I assume that others did the same. And there we are. I was asked that question at Stanford, and I said, I understand. I know what I did. I understand I'm human, and human beings can kid themselves. We're pretty good at self-kidding, so I have to do my best to try to make sure I'm not kidding myself.

  • 11:41:34

    BREYERAnd you can only go so far. And that's what I said, and all that's truthful. And, now, they ran a headline saying Justice Breyer thinks he was wrong in Bush v. Gore. That's not what I think. I think I was right. But I'm trying to make it as realistic, so people understand it is possible. And that's why I want them to read how we do decide things. And then if they want to say there's an element sometimes of some political or value thing that enters in, fine. But they're not going to be able to say what it is, is all politics. They'll have a realistic understanding that the basic...

  • 11:42:09

    REHMFar more nuanced.

  • 11:42:09

    BREYERYeah, yeah, yeah. That's what I want.

  • 11:42:10

    REHMFar more nuanced.

  • 11:42:11

    BREYERThat's what I want.

  • 11:42:13

    REHMLet's go to Woodstock, Ill. Good morning, Lydia.

  • 11:42:17

    LYDIAGood morning to you both.

  • 11:42:20

    REHMThank you.

  • 11:42:20

    LYDIAI have a question, and if you could, please, follow up and tell me if it was a ruling. By now many people know that the Citizens United that we are currently talking about is based on a Santa Clara vs. Southern Pacific Railroad case. And it is an issue for me because the court's opinion never took place in that procedure. If I could just read the clerk's statement that the Supreme Court utilized to declare that corporations or persons -- this is a very short paragraph, and I'd like your opinion, please.

  • 11:43:02

    LYDIAThe court quotes, "The Court does not wish to hear the argument on a question, whether the provision of the 14th Amendment to the Constitution, which forbade a state to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." Does this clerk's preface -- a note that was inserted in the procedures -- count as a ruling? And is it to correct -- is it correct to say that the Citizens United case that we are currently talking about can be based on this procedure? Thank you.

  • 11:43:46

    BREYERThat's an interesting question. I would put in I dissented in Citizens United. John Stevens wrote a long dissent of 75 pages or so that incorporated the ideas of the four of us. Now, what you're referring to there is a very old case, and it has to do with the 14th Amendment where it says no person can be deprived of liberty -- life, liberty or property without due process of law. And for purposes of that clause, it has been long established that corporations can be persons who could be deprived of property unconstitutionally. That doesn't have that much to do with the case in front of us, which was really a first amendment case. And the question was whether freedom of speech protected the corporate contribution. And five people thought it did, and four people thought it did not. Now, I -- you know, there have been several cases where I've dissented pretty strongly, and -- but I do. And I think when we dissent strongly, you can't shout. You have to be civil, and you have to be reasoned.

  • 11:44:53

    REHMWhat do you think is the impact of that court decision?

  • 11:44:58

    BREYERI didn't think it was desirable. That's what John Stevens said. But you -- remember, the -- as I've said, some of these present close questions. And the people who are on the other side, the majority -- those who have been on the court a long time on the majority -- have always written and thought that the first amendment's protection of free speech prevents Congress from regulating campaign finance. And their reason basically is, although money is not speech, you certainly need money to communicate in a political campaign. And don't get into the business of saying who can contribute and who can't. Now, I, myself, have not agreed with that argument. I have very elaborate and strong, I think, convincing reasons as to why that argument doesn't carry the day where there are a large number of people who can make huge contributions. And I've explained why I think the Constitution permits that regulation, but I just want the listener and others to understand. Like many questions, there are two sides. And obviously I think my dissenting side is the right side, but others on the other side don't.

  • 11:46:15

    REHMHow does it feel to be on the dissenting side as much as you have been of late?

  • 11:46:26

    BREYERYou say, of late, because, I mean, when Justice O'Connor was there, we -- I -- the last year she was there, I think I was in the majority more than probably anyone else. And I have dissented more. And the way it feels is -- I got -- this question comes up in various forms. Some student asked me once, well, do you get depressed? I said, what if I had -- no, because it was about Arthur Goldberg, whom I clerked for that particular seminar. And I said, what would he have told me? He'd say, depressed? What business do you have being depressed, really? You sit there and write. You do your best, and I'll go back and tell Joanna, my wife. And the next case, that's another day. And I'll say I've written a dissent, or it won't be a dissent. It's going to convince everybody. And she says, I've heard that one before. And so maybe it won't.

  • 11:47:13

    REHMWives are so real.

  • 11:47:13

    BREYERWell, then I'll write another -- right. That's right, that's right, so -- but you -- each -- that's another very, very good informal practice of the court. Tomorrow is another day. You and I might have been totally opposed on one case, and that fact has nothing to do with the next case. On the next case, we may be great allies, and tomorrow is another day. And that's, I think, the correct attitude that I try to have.

  • 11:47:41

    REHMThere are a number of people asking how you felt about the State of the Union address that President Obama delivered with his passing reference and criticism of the Court and the response from the Chief Justice.

  • 11:48:08

    BREYERWell, I'm used to people saying whatever they think about the Court. My job is to write opinions and decide cases, and it's up to other people to decide what they will or will not say and whether they approve or not. But as far as the State of the Union is concerned, I think it's important we go to the State of the Union -- very important. And I'll continue to go, and the reason that I think it's important to go is people today -- and, now, you may say, since we're on radio, unfortunately, but people today learn more and more from what they see, and they're watching that television. And the State of the Union is a moment when in front of them are leaders of all the branches of the federal government -- the president of the United States, the members of Congress, the joint chiefs of staff, the Cabinet and, I think, the judges should be there, too, because I want people to see that. Even if what they say is, who are those odd men and women in black robes? Then they'll learn something about it, and they'll find out something about the Court and why courts are important to them.

  • 11:49:14

    REHMI have a personal issue I'd like to raise with you. How would you feel about a non-lawyer on the Supreme Court?

  • 11:49:29

    BREYERWell, normally, I think it's good to have diversity of background. I'm glad there are women on the Court. I'm glad it's diverse. We've sort of pushed that with a non-lawyer. I think -- I mean, it would depend on who it was. I think a non-lawyer would have a pretty tough time. I don't think there's ever been a non-lawyer.

  • 11:49:49

    REHMNo, I know there hasn't.

  • 11:49:51

    BREYERI'd have a pretty tough time because these are...

  • 11:49:53

    REHMYou know, my husband is a lawyer. And I have argued with him about so many principles of law because they have not taken into account the humanity behind the law.

  • 11:50:12

    BREYERWell, they should. The very purpose of law -- the very purpose of it is to have a set of rules and practices and cases and all kinds of precedence and things that help people in society get along better and achieve their objectives, productivity, peace and so forth more effectively. That's why we -- there are laws. And so if you come across a decision -- or I come across a decision -- that looks as if this decision and this interpretation is really going to work out badly for everybody, you ask yourself twice, am I sure? And the hardest thing about being an appellate judge -- I mean, sometimes it does 'cause Congress passed this law, and there we are. You're sort of stuck with it. But you have to think hard about those things.

  • 11:50:59

    BREYERJudges in an appeals court spend the day in a room. And in that room there is a word processor to write, and there are a lot of things to read. And, therefore, I think it's a good idea that they're appointed a little later in life after they have some other experience. And I think they have to use their imagination and understanding to try to understand how people who aren't in that room -- all kinds of people -- will be affected by their decision. And that's normally relevant to the question of law. So you say, is it okay? There have been governors who have been on the Court. There have been former senators, and, now, you say you (word?) push it -- a non-lawyer. So I'll just stop by saying that non-lawyer's going to have a tough time.

  • 11:51:42

    REHMAll right.

  • 11:51:44

    BREYERThe others have worked out.

  • 11:51:44

    REHMI accept. Here's an e-mail, "Can Justice Breyer discuss the idea of activist judges? Wasn't the recent reversal of the 100-year precedent regarding corporate money in elections simply judicial activism from the Robert's court?"

  • 11:52:11

    BREYERWell, I tend to think the word activist is a kind of buzz word insult. If you don't like something, you say it's an activist. I once looked up the origin. I think it may have come from an article in Look magazine by Arthur Slazenger, Jr. in 1948 where he was describing Black and Douglas as activists because they -- and he described Frankfurter as more in judicial restraint. Well, I think everybody in today's court's probably pretty much in favor of a degree of restraint. And then it was used against Earl Warren when there was desegregation. I remember those signs. Don't you? Impeach Earl Warren.

  • 11:52:44

    REHMAbsolutely.

  • 11:52:45

    BREYERWell, you should have looked at the conditions then.

  • 11:52:46

    REHMAbsolutely.

  • 11:52:47

    BREYERI mean, look at the conditions. They were terrible, those conditions of segregation, but in any event, that isn't today's court. And, today, if it's a question of who tends to uphold the laws of Congress the most, I think that probably I'm pretty high up on the list.

  • 11:53:03

    REHMSupreme Court Justice Stephen Breyer his book is titled, "Making Our Democracy Work." Let's go now to Rochester, N.Y. Good morning, Keith. You're on the air.

  • 11:53:18

    KEITHYes, two comments and a question. Justice Breyer's stating of Dred Scott is good enough, but like modern-day thinking people, he does have the advantage of hindsight, even if we agree that if you were living in the 19th century, he still for himself would think that way. But Justice Taney, like it or not, represented the majority of thought in the country. And, yes, you will always have that Massachusetts justice writing for the minority. I feel that we modern people in our times, we judge too harshly all of those who went before us and, in our terms today, might have made regrettable decisions. I don't think Justice Breyer takes that into due enough consideration. I do, as a conservative, thank him for dissenting in the People's case.

  • 11:54:09

    KEITHI would greatly chastise and take to task my fellow conservatives on the court that People's case ruling was very much in error, but on the other side, I would like to ask the liberal justices -- I'm always concerned that you don't understand and appreciate how the rest of us in the real world live. I'll give you a fast example with drugs being decriminalized and drug dealers -- pushers being allowed back into our communities, we are the ones who have to put up with the street corner drug sales. And I don't think the justices understand the impact of crime on our communities.

  • 11:54:45

    REHMAll right, Keith. Thank you.

  • 11:54:47

    BREYERWell, as to crime, that's mostly a question for the legislature. It's a question for Congress and your state legislatures as to what penalties they want and what they want to do about drugs and crime. It's really not normally for us though there could be. I mean, there could be a constitutional question. But as to Taney, you make a really interesting point. And what I've tried to do here -- I understand I see things through our modern lense. You're absolutely right. But what I've tried to do is go back and read the opinions that were written at the time and try to imagine myself in the shoes of the judges who wrote them. And, see, that's what I found interesting about the opinions in Dred Scott. That's one of the things.

  • 11:55:28

    BREYERIt was that, in terms of the logic at the time -- see, for example -- well, famous -- you see, Taney wrote that the descendant of the slave, a black man, had no rights that a white man need respect. Now, that was a pretty shocking thing to say, and at the time it was. You can't find another Supreme Court opinion where people used language like that. It was inflammatory. Or if you look back and see his -- he said, well, they're property -- the slaves are property. And you can't deprive a person of life, liberty or property without due process of law, and so you can't take the slaveholder's slaves away. And then Curtis says, well, let's look back. Let's look back to the time of the Constitution.

  • 11:56:20

    BREYERLet's look back to the history where free states did take slavery away, and the founders thought that. And they got that language from the Constitution, and nobody thought that those laws -- they got that language from the Magna Carta, and nobody thought those laws violated the Magna Carta. See, it requires a little imagination, so you go back -- see it. Read those opinions yourself, and see what you think.

  • 11:56:43

    REHMSupreme Court Justice Stephen Breyer. His new book is titled, "Making Our Democracy Work: A Judge's View." I want to thank you so much for joining us.

  • 11:56:57

    BREYERThank you.

  • 11:56:57

    REHMAnd, also, to tell you that we are planning a series on the Constitution, starting with a program on the separation of powers.

  • 11:57:11

    BREYERGood.

  • 11:57:11

    REHMI hope you'll be listening. Thanks for listening, all. I'll be away tomorrow. We'll take a holiday on Monday, back with you Tuesday. Thanks for listening.

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