Stephen Breyer

♪ This is my kitchen table and also my filing system.

David, voice-over: Over much of the past 3 decades, I've been an investor.

David: The highest calling of mankind, I've often thought, was private equity... [Laughter] David, voice-over: and then I started interviewing.

I watch your interview because I know how to do some interviewing.

David, voice-over: I've learned in doing my interviews how leaders make it to the top...

I asked him how much he wanted.

He said, "250."

I said, "Fine."

I didn't negotiate with him.

I did no due diligence.

I have something I'd like to sell.

David, voice-over: and how they stay there.

You don't feel inadequate now because being only the second wealthiest man in the world, is that right?

[Laughter] When I was a young staffer on Capitol Hill, I met another young staffer named Stephen Breyer.

He was then on leave from Harvard Law School.

I thought he would no doubt would remain a professor at Harvard Law School for his entire career, but I was wrong.

He later became a justice of the United States Supreme Court and served for 28 years.

Before he announced his retirement, I sat down with Justice Breyer to discuss his future and the future of the Supreme Court.

I have to start with the question that's on everybody's mind, obviously.

Why is this book that you've just written so small?

It's a very small book and I'm used to bigger books.

So, why is this book so small?

I mean, why didn't you get a bigger book?

Stephen: This is the Constitution and it's smaller.

David: OK. All right.

[Applause] A lot of justices of the Supreme Court carry around the Constitution all the time.

Is that because you're gonna forget what's in it or are you--you just like to remind people or you just read it over and over again?

Stephen: You never, never know when somebody's gonna ask you a question, you see.

Somebody says, "What does Article III, Section 19 say?"

David: OK. Stephen: And they expect you to know.

David: OK, so, you have to have it.

Stephen: Here.

There it is.

David: There it is.

So, your book, this book is a interesting book in the sense that it came from a series of lectures you gave named after somebody who was an ideological, let's say, opponent of some of your views, and that was Justice Scalia.

So, were you a friend of his even though you had ideological differences?

Stephen: Yes, I think so.

We would-- we would debate those differences, and we'd go-- Oh, I thought we had a terrific debate in Lubbock, Texas.

There were several thousand students who'd come.

They'd never seen a Supreme Court justice.

And we'd talk about our differences.

You know, I say, "Hey, if I had your theory, "my goodness, don't you think "that--do you think George Washington "knew about the Internet for free speech?

Do you think he--" and Scalia would say, "Hmm.

I knew that."

David: Well-- Stephen: "Good point."

Then he would say, "I'm not saying my theory's perfect."

He would say, "You know, the two hunters, they're hunting bears "and one's putting on his tennis shoes.

"Where are you going?"

"He says, "Bear's coming."

"You can't outrun a bear."

He says, "Yeah, but I can outrun you."

See, that was his view of my way of deciding cases, and we--of cour--I never, and I still, 28 years now, I've never heard a voice raised in anger in that conference room.

I've never heard one justice say anything mean or even snide.

David: Nobody pounded the table or anything like that?

Stephen: What good would that do?

I try to explain that to the students.

You know, you get all excited and all that happens is people who disagree with you think, "Well, you know, he's all excited.

He must be wrong."

And that's--that's so true.

So, we get on well, personally, and we're friends personally, and we disagree on some things.

Not as many as you think, but some.

David: It's not always been the case.

There was a Supreme Court justice who refused to talk to or be in the presence of Justice Brandeis because he was Jewish.

Stephen: McReynolds.

David: Right.

So, it hasn't always been that friendly, but you're saying right now, since you've been on the court, 28 years, people don't yell and scream at each other.

Stephen: And they don't insult each other, and they're not rude to each other, and it's a professional job and you go in and do your best professionally.

And if you want people to listen to you, the most--the best you can do is to think through this problem, listen to where the other person is coming from, and see what you can contribute to that thought.

David: But sometimes the dissents are a little bit tough on the person who wrote the majority opinion.

That's--Nobody takes that personally?

Stephen: I get that question a lot, and I used to get it more when Nino Scalia was on the court.

And the two of us would be there and somebody'd ask that question, and I'd try to answer it because I didn't want him to, and I'd say, "Look, I know "you're not aiming that question at me.

"You're aiming it at Nino.

"OK, I get it.

"But what you don't understand is that "some people suffer from a disease.

"It's called good writers disease.

"And if a good writer finds a felicitous phrase, "he won't give it up.

"Let the word-- Let him destroy himself.

Let the world come to an end."

It's like a good comedian.

You can't give up that joke.

No.

That's Nino.

He is a very good writer.

He has a felicitous phrase, and we all know that and we don't take it personally.

David: Do you have a lot of unanimous decisions these days, or they don't get that much attention, and do you really have a lot of 5-4 decisions and they get all the attention, it seems, but is that where the court really has its arguments with each other, the 5-4 decisions, and-- Stephen: No, not necessarily.

What you read about are the ones that the press thinks the public will be interested in, which usually has a political or a social content, and they'll say that is the most important.

I don't know.

One of the most important decisions I wrote this last year was called Google versus Oracle.

David: Right.

Stephen: And it was-- it took a year for me to write that.

It was about copyright and something called programs--interface programs, and I was told that that was very, very important.

Well, for me it was like learning Latvian.

I mean, I don't know how I did that.

But you see, it's--I'm not saying all the-- I see what they're saying.

I see what they're saying.

And it's true that a lot of the sort of exciting cases are more close.

David: But do the justices-- Let's suppose you have a decision.

It's 5-4, and one justice kind of goes to another justice's chambers and says, "You know, your argument isn't so good and maybe you should do something different," or is everything just done by memos and writing?

You don't have people going down the hall and saying, "Let's have lunch together "and maybe I can persuade you my position is better than yours"?

Does that ever happen?

Stephen: Most of it is memo, but quite a lot can be visits to chambers, but if I'm going into your chambers, I'm not going to say, "No, your argument isn't so good."

This would not be a helpful way to start the conversation.

And if you go into somebody else's chambers, you better be prepared to listen to them as well as hoping that they will listen to you.

And then you try to see where is there some common ground and is there common ground enough that you can work with it?

And if you work with it-- and Kenny said this a lot-- if you work with it and you get somewhere and it's successful, don't worry about the credit.

If it's a success, there'll be plenty of credit to go around, and if it's a failure, who wants the credit?

And credit is a weapon.

David: Let's go back to your earlier life.

I worked on Capitol Hill, and you worked briefly on Capitol Hill.

You were a Harvard law professor.

I'm just curious--when you go to Harvard Law School and you are at the top of your class, when you start Harvard Law School, there's always kind of a intimidation factor.

You have 600 people.

You have to figure out, you know, are you gonna be good or not.

When did you realize you were really good at law school kind of things, taking exams?

Did you know right away you were gonna be a great law school student and, therefore, become a potential law school professor, or were you nervous the first year or so?

Stephen: Ha!

Think I was pretty nervous.

I mean, I remember talking to a friend of mine I'd been in undergraduate with and he was there, too-- Paul Dodyk, actually.

And we both said, "Well, this is the end of our great careers," after our first year, and we both did pretty well in law school.

David: So, you were on "the Harvard Law Review" and when you're on "the Harvard Law Review," sometimes you get to clerk on the Supreme Court for another justice, and you clerked for... Stephen: Arthur Goldberg.

David: And what was that like?

Stephen: It was terrific.

He was great.

He was an enthusiast.

He had loads of energy.

Jack Kennedy said that he was the smartest man he ever met.

David: So, you clerked for him and then you went to teach at Harvard Law School.

Stephen: That's right.

David: And when you went to Harvard Law School, did you say, "This is gonna be my life.

I'm gonna be a professor"?

Nothing terrible about that.

You can teach great law school students and so forth.

Or did you say, "Maybe someday I'll be on the Supreme Court.

Maybe I'll be a judge"?

Was that in the back of your mind?

Stephen: I didn't think, "Maybe someday."

Anybody who thinks, "Maybe someday I'll be on the Supreme Court," I mean, I don't want to say there's something wrong with him, but there is something wrong.

David: So, are--but you then, after teaching at Harvard Law School, you got a very good reputation.

Senator Kennedy invited you to come down and work on his staff, I think, to work on regulatory reform.

Stephen: Yes.

David: And that's where I first encountered you when I was working on Capitol Hill and so forth.

You got a very good reputation.

And then something happened that was a surprise to people.

President Carter nominated you to be a judge on the First Circuit, and that's not a surprise, given your reputation and so forth.

But it required a Republican to sign off on it-- Strom Thurmond, one of the most conservative Republicans.

Why did you think Strom Thurmond said he would let a presumably somewhat liberal Harvard law professor get on the First Circuit?

Stephen: I mean, those were days--it was a different day.

You remember that.

People did try to work together.

And every single morning, Ken Feinberg was like-- I was chief counsel, and he was general counsel of the Judiciary Committee-- and we would have breakfast with Emory Sneeden, who was a former JAG general and was Strom Thurmond's chief person on Judiciary, and we would plan the day.

We planned out the day.

We wanted no secrets.

We wanted to try to accomplish something.

And we'd figure out how do we color it red for this party and how do we color it blue for the other party.

But the important thing is, if it's desirable, let's try to get it through.

That happened a lot.

I can't say there was no conniving, but Ken and I and Emory used to call what we did open conniving, openly arrived at.

David: OK.

So, you went on the First Circuit and you had a very good reputation there, and then you were being considered to be on the Supreme Court.

And so you came down for an interview with President Clinton, but you had a bike accident and you had a lot of injured bones, if I recall.

So, did you think that was bad karma that you had this accident before you had the interview, and did that affect your ability to do the interview well, or it didn't make a difference?

Stephen: I have no idea.

I mean, that's the truth of the matter.

And later, I thought about it, and the--of course, the newspaper people wanted to say, "Weren't you terribly disappointed?

Da-da-da-da-da."

And I said-- "I'll tell you what."

I said, "Well, you know, it's not such a terrible thing "in your life to be seriously considered "to be on the Supreme Court, "even if you're not appointed, and that's about the best you can do."

And I was thinking partly I said that because it's true... David: OK. Stephen: And partly I said it because I did have children.

Hey, my friend, you don't always win everything you want.

And my goodness, what you want those children to learn.

And you want them to learn, fine, sometimes you'll get everything your heart desires.

Not very often.

And sometimes you won't.

And you better be a good sport about when you don't as well as when you do.

David: Well, Mick Jagger has a song about that.

"You can't always get what you want."

And so-- Stephen: Right.

David: You didn't get it-- Stephen: That's after my generation.

I'm-- David: But Justice Ginsburg was appointed first, but then you were appointed next by President Clinton.

So, when you got on the court, how had it changed from when you were a clerk?

Was it much different?

And were you surprised by the changes?

Stephen: Yes.

I thought it was different in this respect.

When I clerked, I felt it was a court with a mission.

What mission?

In 1954, the court had decided that Plessy v. Ferguson, rightly, was down the drain, and legal segregation is contrary to this document.

Equal protection of the law.

They said it in 1954 and we both know what happened in 1955--nothing.

David: Right.

Stephen: Next to nothing.

1956, yeah, double nothing.

1957, a rather brave judge in Little Rock said those Little Rock Nine, those 9 brave Black students are going into that white school, Central High School, but the governor, Governor Faubus, said, "Maybe those students have a court order, but I have the state militia, and they're not."

And Eisenhower-- I'd like to see that at the monument that they're building for him-- He called in 1,000 troops from Fort Bragg, the 101st Airborne, and they took those 9 Black children and walked into that white school.

No.

I'd like to say that's the end of the story, but it wasn't.

What happened was after a few months, the troops had to withdraw.

And when that happened, the school board said, "We're not gonna integrate anymore."

And when that happened, a very famous case went to the Supreme Court-- Cooper vs. Aaron.

And when that happened, all 9 justices signed the opinion saying, "Integrate.

Now.

"Do it right now in Little Rock."

Hey, but they're 9 people.

Maybe there could have been 900.

Maybe 9,000.

Uh-huh.

Uh-huh.

Faubus closed the school.

That's what happened, for those of us who remember and those of us who don't.

But they couldn't keep it closed because that was the era of Martin Luther King, the Freedom Riders, and suddenly the North woke up.

And others woke up and said, "This is an intolerable situation," and eventually, through a lot of work and a lot of work and a lot of moral effort and a lot of physical effort and a lot of organizing effort and so forth, eventually legal segregation was brought to a conclusion, and the reason that I find that story important, and I told that story to a woman from Ghana who is the chief justice, who is trying to improve the Constitutional system there and asked me, "Why do people do what you say?"

And my response was, "Ma'am, "301 million people in this country and 300 million are not lawyers."

That comes as a surprise.

And those are the people you have to convince.

Convince what?

Convince that they should try to follow the court to the rule of law when they don't like it, when they think it's wrong.

And that's why I wrote this book.

In a sentence, that is why.

I want people to see in some detail.

It's not moralizing, it's my experience.

And I want them to see what the court can do, but when you say, "The court can do," it doesn't mean 9 people.

It means the country as it's come to develop a long time, 200 years, and then maybe, maybe we have a country that can use this weapon called the rule of law in order to prevent some pretty terrible things.

David: You talk about the peril of politics.

That's one of the main points.

You don't want the court to be seen as political.

Yet the court can't control that because you have members of Congress who are political and you have lots of things that are very political.

So, for example, when you have confirmations these days, it's very, very political, it seems, and when you were confirmed, it wasn't that political, but today, you have these votes that are very, very narrow, and the Democrats are always voting for the Democratic nominee, a president, and the Republicans are voting for the Republican president's nominee.

How do you think that you can avoid politics when you have the rest of the country looking at the court in such a political way?

Stephen: I feel pretty strongly that the senators will ask the questions and vote in ways that they believe their constituents, by and large, want, and if they don't, they won't be senators for too long.

So, if you think we're too much at loggerheads, it's too much a question of your political affiliation and not enough of a question of, well, where can you get together in the merits?

That's what I tell the students at stanford.

It's pretty tough.

I say, "you get out there and participate.

"You get out there and try and convince people.

"You get out there and talk to people who "disagree with you and find out what they think and see if you can find some common ground."

That's easy to say and not easy to do.

The thing that Sandra O'Connor used to think, which I certainly think, is the first thing is teach civics in the high schools.

Every one in this country.

Of course it's their government.

They ought to know how it works and they better.

And second, participate.

Second, vote.

Take part in public life.

David: Let's talk about what's called the shadow docket.

For people who are not lawyers, what is the shadow docket and why is it becoming such a big thing?

Stephen: What it is, is that in between hearing the cases on which we have decided to hear, someone will make an emergency motion.

Now, that's what it is.

An emergency motion.

The country is divided.

I'm in charge of the First Circuit, for example.

But everybody's in charge of some circuit.

So, if there is a litigant in the First Circuit who believes that he needs immediate attention, to issue an injunction or to stop an injunction, well, then he'll file it with me and I'll look at it and--most of them there isn't much to, and so it's easy to deny it.

But some there is something to.

And then you--I usually will refer it to the whole conference.

And if I should have and didn't, he can go to any other judge and it will be referred to the whole conference.

Most of these that are the subject of the whole conference are death cases and at the very last minute.

Because of covid, I think, there have been some recent cases which did not just involve the death penalty or something that wasn't too difficult, and there I thought--I was in the dissent in those cases.

David: Well, the most recent abortion case-- Stephen: I was in dissent.

I thought it was wrong and I thought we should have heard the whole thing.

It was a procedural matter.

They didn't decide the substance of the statute.

David: But there will be a case presumably working its way up to the court, but it might take a year or so for a-- Stephen: Well, we're having-- there is a case in November where that's the subject.

David: You've been on the court now 28 years.

What are you most proud of having done and what's the pleasure of being on the Supreme Court?

Stephen: It's a great privilege to be on the court.

I mean, there's no doubt.

And from a personal point of view, I'd say it requires you in middle age, when you get there, to give your best to this every minute.

And you say, "is that a big virtue?"

Yeah.

Yeah.

And the older you get, the more you see it as an enormous virtue.

David: Einstein famously said if you try something over and over again and expect a different result, that's the definition of insanity.

So, if somebody asks you a same question over and over again expecting a different answer, I guess that's the definition of an insane interviewer, but let me ask the question you've already been asked many, many, many times.

I know you're not gonna give a different answer, but I have to ask you the question.

What is your thinking about all of the issues relating to your retirement?

Stephen: Yes.

David: OK. Stephen: Einstein was right.

David: Einstein was right.

OK.

So, you have said that you don't want to die on the court and presumably, nobody would want you to die on the court.

So, what do you-- [Laughter] Stephen: It's--Einstein is coming back.

David: So, what is it that you would like to do when you are alive after you're off the court?

In other words, would you like to go teach again?

Would you like to write?

Would you like to just take life easy?

What would you like to do?

Stephen: It's hard to take life easy but I don't know.

We'll see.

David: OK.

So, you haven't thought about what you might want to do or-- Stephen: No.

Different thoughts go through my mind.

David: President Biden has put together a commission that's gonna look at the court, and you have already articulated your view that you don't think expanding the size of the court is a wonderful idea.

I think you've said that.

Stephen: What I said is that they better be pretty careful about it 'cause two can play at that game and, of course, what's worrying me, and I've said this, I try to explain to people in the book the extent to which politics is relevant or not relevant or present or not present and in what form in the work of our court.

And what worries me is that people will think we're junior league politicians.

And if they think that, their second thought should be, "why not have a senior league politician?"

And once you begin to think along those lines, two can play at that game, as I said.

You could have Republicans appointing and then Democrats appointing and vice versa.

But I see the overall tendency of that is given the history, given the way we work, given the country, et cetera, as weakening the confidence of the average person in the decisions of the court.

And you can say, "What's wrong with that?"

and I say, well, that's sort of a step towards a world away from a rule of law.

David: What would you like most people to know about the Supreme Court if you could say to the average citizen, "Here's what you should know in a paragraph about the Supreme Court"?

I assume, you know, it would be something along the lines that it's not as political as some people think, but what would it be you would say?

Stephen: The judge, once he puts on that black robe, I'm not gonna say it's a midnight transformation, but look, a judge-- and I have to think this about myself there, too.

I have to.

A judge is there for all Americans.

He's not there just for Democrats.

He's not there just for Republicans.

He's not there just for the president of the party that appointed him.

And even if half the country thinks he's a real idiot and they can't stand what he writes... in his own mind, and the way he approaches the job, he has to remember he's there for everybody.

All 331 million.