Does the Supreme Court Follow the People?
Popular constitutionalism says that constitutional change comes from grassroots activism, while others argue that change comes from the courts.
Does the Supreme Court Follow the People?
THE ASPEN INSTITUTE
ASPEN IDEAS FESTIVAL 2011
DOES THE SUPREME COURT FOLLOW THE PEOPLE?2
LIST OF PARTICIPANTS:
Director, Justice and Society Program
Richard E. Lang Professor of Law and Dean of
Stanford Law School
Associate Justice, US Supreme Court
SANDRA DAY O'CONNOR
Retired Associate Justice, U.S. Supreme Court
* * * * *3
1 P R O C E E D I N G S
3 MS. CHERTOFF: Good morning. I'm Meryl
4 Chertoff, director of the Justice and Society Program at
5 the Aspen Institute. Aspen is the Justice and Society
6 Program's home and has been for 32 years.
7 Our signature seminar, co-founded by the late
8 Harry Blackmun has examined issues of justice and fairness
9 against the backdrop of these beautiful mountains.
10 Justice Breyer and Justice O'Connor, two of our panelists
11 today, have been great friends of the Justice and Society
12 Program, participating on our programs both here and in
13 Washington D.C.
14 I'm pleased to introduce today's topic. One of
15 the big questions when we talk about the role of the
16 Supreme Court in constitutional interpretation is the
17 question of exactly what the enterprise is, what do judges
18 do? In the famous formulation of Chief Justice Roberts in
19 his confirmation hearings, do they merely call balls and
20 strikes? In the words of critics, are the judges --
21 justices no more than politicians in robes, or is there a
22 role, something much more subtle?4
1 Many state judges are elected and people in
2 polls in those states say they want the judges to follow
3 the public will, but in the federal system judges have
4 life tenure, given to them precisely to insulate them from
5 the public will.
6 Even the visual cue, when we see the judges don
7 their black robes suggests that he or she is not meant to
8 be like us. Nobody is better-suited to discuss these
9 issues than our moderators and panelists today. Jeff
10 Rosen is legal editor at The New Republic, a fellow at the
11 Brookings Institute and professor of law at George
12 Washington Law School. Stephen Breyer, associate justice
13 of the U.S. Supreme Court is the author, most recently, of
14 Making Our Democracy Work: A Judge's View, which
15 articulates his views on many of these issues.
16 Larry Kramer is the dean of Stanford Law School
17 and professor there and author of The People Themselves,
18 the role of the Supreme Court in American democracy. And
19 Sandra Day O'Connor is retired Associate Justice of the
20 U.S. Supreme Court, author of numerous books and an
21 outspoken advocate of improved civic education and state
22 court judicial election reform. Please join me in 5
3 MR. ROSEN: Thank you so much, Meryl, for
4 introducing the topic so well, and even accounting for
5 moderator hyperbole, Meryl is absolutely right that there
6 is no group in the world better-equipped to discuss this
7 crucial topic, "Does the Supreme Court follow the People?"
8 There were a series of polls conducted recently
9 by Quinnipiac University, which found that up to 54
10 percent of the respondents believe that the Supreme Court
11 should consider changing times and current realities in
12 applying the principles of the constitution. That
13 contrasts with up to 44 percent who believe that the court
14 should consider only the original understanding of the
15 authors of the constitution.
16 And obviously, this debate between the living
17 constitutionalists and the originalists has huge stakes.
18 Earlier this week, in a case involving violent video games
19 from California, we saw a fiery dissent from Justice
20 Clarence Thomas, arguing that because the framers of the
21 constitution thought that parents should have total
22 ability to control what their children read, including 6
1 what he called -- I love this part -- vain books, profane
2 ballads, filthy songs, or amorous romances --
4 MR. ROSEN: -- therefore, California should be
5 able to ban video games today. I think Justice Thomas was
6 also struck that if the kids disobeyed the parents in the
7 founding era they could be beaten into submission.
9 MR. ROSEN: Now, Justice Breyer also dissented
10 in this video games case but on very different grounds.
11 He found a series of empirical studies showing what he
12 thought was a clear correlation between violent video
13 games and violent action. He was appalled by the irony
14 that you can restrict young children from buying topless
15 magazines but not gruesome and violent video games. And
16 he said, because of these empirical studies, the court
17 should have deferred to the elected representatives in
18 California and respected their democratic judgment.
19 So this is the stakes of the debate that we're
20 going to have today and we're going to ask Justice Breyer
21 about his opinion. Now, as it turns out, this vision that
22 Justice Breyer and Justice O'Connor have defended more 7
1 eloquently than any other justices on the court, namely
2 that rather than inflexibly applying historical values,
3 the court should work in partnership with the other
4 branches of government to reflect the values of the people
5 today has a long history.
6 In 1900, the fictional Mr. Dooley famously said,
7 the Supreme Court follows the election returns. That may
8 be putting it a little more starkly than the justices
9 believe. But in recent years there has been an explosion
10 of scholarship arguing that regardless of what you think
11 the court should do, this is precisely what it has done.
12 Over the course of time, far from being a platonic
13 guardian of inflexible values, the court has mirrored the
14 views of the majority of the country. And on the rare
15 occasions, when the court has imposed values that are
16 intensely contested by a majority of the country, it's
17 provoked a backlash and often a judicial retrieving.
18 The most important of these books of a school
19 that is now associated with the phrase popular
20 constitutionalism was written by Dean Larry Kramer of
21 Stanford who coined the phrase. And in his path-breaking
22 book, The People Themselves, Kramer argued that over time 8
1 values have been enforced by the people rather than
2 exclusively by the court. He became convinced in the
3 1990s that the framers of the constitution themselves
4 expected it to be interpreted not just by judges, but by
5 the people themselves through petitions, juries, voting,
6 and civil disobedience, and he thinks it's a grave
7 historical mistake to focus only on judges as interpreters
8 of the constitution.
9 So this is the topic we're going to be
10 discussing today. It couldn't be more rich and timely,
11 and I'm going to begin by asking Dean Kramer to explain
12 your thesis, does the court follow the people and should
13 the court follow the people?
14 MR. KRAMER: So I'm going to try and be quick
15 here because I'm assuming that except for some small
16 number of you who may have kids looking to get into
17 Stanford most of you have come to see the other panelists.
19 MR. KRAMER: So, I'd -- and if you do, come see
20 me afterwards.
22 MR. KRAMER: I took some notes, because it's a 9
1 relatively complicated idea that I want to get out on the
2 table pretty quickly. And so let's -- the should folds
3 into the, what the court does, and when it's contrary to
4 some things that I think in the last generation or so have
5 become relatively commonplace to say but that aren't
6 really true either to American history of most of our past
8 So the first is the notion that the constitution
9 is a counter-majoritarian document. It's not. It was not
10 meant to be a counter-majoritarian document, it's meant to
11 be a majoritarian document. The very definition of
12 republican government is understood by the founding
13 generation, what's majority rule, and the idea that any
14 part of this government would not be subject to majority
15 rule would have been contrary to the whole movement that
16 had produced the revolution in the constitution.
17 At the same time, of course, what the first few
18 years of experience had revealed was that simple majority
19 rule posed some pretty significant risks or in Madison's
20 words in Federalist 10, ills incident to republican
21 government. And so they had to find a solution to that.
22 And Madison writes about this, of course, in The 10
1 Federalist papers and talks about the need to find a
2 republican solution to the ills most incident to
3 republican government, and it's that first republican that
4 you need to focus on because the solution itself needed to
5 be consistent with the idea of majority rule.
6 If you ever get a chance, go back and re-read
7 Federalists 10 and 51 which really lay out I think most
8 clearly the theory that the founding generation or at
9 least the people who constructed the constitution had in
10 mind for how that would be achieved. There were a couple
11 of keys to it though. One was to make the republic very
12 large with the idea that that would slow down the
13 formation of majority factions, and so give opportunity
14 for leadership within governments to educate the public.
15 And the other was to make the government very
16 complex, have different levels and different branches
17 within each level, again for the same purpose, to slow
18 things down, to provide numerous inlets for people with
19 different views, to push their views, to give the
20 different branches and levels of governments ways to check
21 each other, all with the idea of forcing the debate back
22 to the public, which ultimately had to be the decider on 11
1 any question but particularly questions of core
2 constitutional values. So the key here of course is
3 leadership. The understanding of democracy is not that
4 government just reflects what an instant majority of the
5 public thinks. But neither is it that government acts
6 completely independent of what the majority of the public
8 And so the idea was to create a complex ongoing
9 conversation in which there is a degree of independence in
10 the government and each of the branches has a different
11 degree of independence. Members of the House are
12 different from members of the Senate, particularly as
13 originally constructed when they were, of course, elected
14 by state legislatures, different from the president and
15 different from the court. All have different degrees of
16 independence but all are meant to also have a degree of
17 accountability so that they're not operating independent
18 or fully independent of the public.
19 Now, it's worth noting and passing that in the
20 original construction of the constitution there was no
21 significant role imagined for the court in this,
22 particularly in constitutional enforcement. It would go12
1 too far to say that there was no role imagined. It would
2 go too far to say that there was one view on this. All of
3 this was new and just beginning to develop. So there was
4 a small group of people who did envision a role for the
5 courts, although even they didn't envision a particularly
6 significant one. And that's why there is no specific
7 provision for judicial review in the constitution.
8 There were people who recognized that it might
9 happen but nobody thought it would be a very powerful
10 check. They were focused on other sorts of checks. And
11 then they were really a -- most of the public had never
12 actually even thought about the court as an enforcer for
13 constitutional values. They thought it would happen the
14 way it had traditionally happened, all through colonial
15 history and in the early republic, which was some
16 combination of elections and petitions and pressure on the
17 government, popular action and so on.
18 Nonetheless, a role for the court emerges quite
19 early, and the idea of judicial review establishes itself
20 within the first 10 years. Marbury v. Madison doesn't
21 create judicial review, it really recognizes a practice
22 that by that point has become relatively widespread. But 13
1 it's a particular form of judicial review in which the
2 court is one more voice in the ongoing public debate,
3 neither more nor less significant than the other branches,
4 and subordinate to the community at large.
5 And so the court, when it renders decisions, it
6 is another voice offering views on the constitution, but
7 ultimately subject to what the people themselves in the
8 phrase of the 18th and early 19th century, what the public
9 at large or the community at large believes its
10 constitutional values should be with the idea that this
11 long, slow complicated process has taken us to the point
12 where this is probably as good as we can get.
13 And it's worth in thinking about that to
14 remember that there are never issues, the issues that
15 actually come before the court or before the country.
16 There are never issues that are easy or clear, the ones
17 that become controversial are controversial precisely
18 because there is disagreement, and it's not as though the
19 whole elite agrees in what the right answer is and it's
20 just sort of the hoi polloi out there who don't get it.
21 The divisions run all the way through. The
22 court is typically divided. The public is typically 14
1 divided. The intellectuals are typically divided. They
2 are hard questions. And so the idea is to force the right
3 kind of deliberation as much as you can, but with the idea
4 that at the end of the day, it is the settled views of the
5 public as reflected through the actions of political
6 leaders that should determine what we do.
7 Mostly, this has not been a problem across
8 American history. And so here we come to the -- what the
9 court does do, because the court is in a funny position.
10 Unlikely other branches, it can't derive its authority
11 from electoral politics. It can't claim that kind of
12 mandate. And so the only authority that it has comes from
13 its institutional authority and its ability to command the
14 respect of the public, and commanding the respect of the
15 public requires a certain amount of paying attention to
16 what the public thinks.
17 And so the court has, relatively speaking,
18 played a deliberative role in which it has for the most
19 part never or rarely veered very widely from strong --
20 strongly settled public opinion. And where it has, one or
21 the other has yielded, either the public has moved towards
22 the court or the court has moved towards the public. And 15
1 that's largely because with only institutional authority
2 for support the justices tend as an institution to be
3 relatively miserly with respect to their -- for lack of a
4 better word -- miserly with respect to their institutional
5 authority, that is say they preserve it.
6 And so when there are -- when threats arise,
7 when things seem to be getting a little too far in terms
8 of the kind of pushback they're getting, the justices tend
9 to temporize, and that's been the case from the martial
10 court forward.
11 MR. ROSEN: Excellent. Thank you for setting up
12 the topic so well. Now, we get a chance to ask the
13 experts. Justice Breyer, Dean Kramer has told you what
14 the framers expected you to do and what you should do.
16 MR. ROSEN: Do you do it? Do you follow the
18 MR. BREYER: Thinking about what the dean said
19 one way, I think, of course. Thinking about it another
20 way, I think certainly not.
22 MR. BREYER: And the truth does not lie between 16
1 those two. The -- what we're -- I think it is of course
2 is and quite rightly so. People say quite often you're
3 just junior politicians. They don't say it, they think
4 it. So in order to get the audience to say it I say
5 that's what you're thinking. And they say, yeah, you're
6 right. Because they don't say it, they just think it.
7 So, I say, well, that's totally misleading, I
8 think. I haven't seen that since there and then I know
9 what they're going to bring up. I say, you know, I need
10 an hour, I can convince you, I think, of anything.
11 Politics, I used to work for a politician. I worked in
12 the Senate. I worked for Senator Kennedy for few years,
13 and we -- politics is why didn't throw this -- young lady
14 came into my office and she was going through all my law
15 books and wrecking everything. I, who are you, where she
16 came in from, I don't know where but I suddenly thought,
17 well, hey, she might be a constituent, I better be nice,
18 that's politics.
20 MR. BREYER: Because who is up and who is down,
21 who has the votes and who doesn't, are you democrat, are
22 you republican, no, that's really out. Well, you mean, 17
1 ideology, that's what you mean, are you an Adam Smith, a
2 free enterpriser or a Maoist struggle session,
5 MR. BREYER: I mean, which is your true
6 philosophy? And I say, if I catch myself doing that I
7 think it's wrong, can't always not but you try not to.
8 But then there is a third thing. I mean, as I've said
9 5,000 times, absolutely true, by now I know it, I was born
10 in San Francisco.
12 MR. BREYER: I did go to Lowell High School. I
13 have lived a certain period of time, and in any of our
14 professions over time you develop views in law. And if
15 you are a judge particularly, there are views that you
16 have about how law relates to the United States or
17 America, what kind of country is it like, how does it work
18 here, what are these rules, are they rules, when are they,
19 when aren't they? And, of course, you can't jump out of
20 your own skin, nor should you.
21 Well, then why don't we all come to the same
22 conclusions? Well, I did grow up in San Francisco. I 18
1 went to Stanford.
2 SPEAKER: I know.
4 MR. BREYER: No.
5 SPEAKER: Not the law school.
7 MR. BREYER: Now, my grandchildren are the one I
8 am interested in at the moment.
10 MR. BREYER: But the -- and I've had certain
11 experiences as we all have. Okay, fine, well, I was in
12 Massachusetts, I lived there for many, many years and I
13 found people disagreed quite often, but I didn't know what
14 disagreement was. So I got to appointed to Supreme Court
15 of the United States. Now I found people who really
18 MR. BREYER: And I've got annoyed for a while, I
19 think why don't you see things clearly? Then I realized,
20 that isn't a bad thing, that is actually a good thing.
21 United States of America has 309 million people and
22 contrary to popular belief, 308 million are not lawyers. 19
1 The --
3 MR. BREYER: But they think different things.
4 Now, presidents over time have appointments. A president
5 who thinks that he is going to appoint a judge who will
6 decide everything the way he wants is making a huge
7 mistake. Teddy Roosevelt appointed Oliver Wendell Holmes;
8 three months later he is in dissent in the Northern
9 Securities case. Roosevelt thought that was terrible,
10 said I could carve a judge with more backbone out of a
13 MR. BREYER: He was annoyed. Well, he shouldn't
14 have expected Holmes to follow it. But if they are
15 thinking at a very abstract level, the basic principles
16 about how the country might work and how law affects those
17 people in that country, they'll have better luck, and not
18 a 100%, but they will have better luck. So given the
19 fact, as Jefferson said, the trouble with the court he
20 said is that they never retire and they very rarely die.
22 MR. BREYER: Therefore, we are there for a while 20
1 and there will be presidents and they will appoint
2 different people, and I have learned over time, finally,
3 it took me some time to figure this out, people who want -
4 - say they want a conservative judge, whatever that might
5 mean, or a liberal judge, whatever that might mean, the
6 judges who are appointed are not people who want to do
7 whatever the public wants, and they think the public is
8 liberal or conservative.
9 They are judges who truly believe that the law
10 does call for the outlook or decisions in their decision,
11 and that is why I think I can say I have not seen politics
12 affect the decision of the court, although you hold
13 yourself up to it, which way is the wind blowing? The one
14 person who I think really did that, Roger Taney, Dred
15 Scott. He thought by deciding Dred Scott, he would stop
16 the Civil War. He started it, okay? That's how good
17 politicians' judges are. I mean, they're terrible
18 politicians for the most part.
20 MR. BREYER: But, do you see -- you shouldn't do
21 it, you couldn't do it, and we don't do it, but over time
22 because of the change in the appointments process, you21
1 will get, you will get different judges. I say you should
2 have a system where the judges are doing what they need,
3 because even beyond making good decisions, whatever that
4 might be, I think the country will respect the court for
5 doing what Hamilton in '78 said they should do. And I
6 think what he says they should do is this document, is
7 they are not just who are the powerful, the document is
8 there for the unpowerful. The document is there for the
9 least popular person in the United States who has the same
10 rights as the most.
11 So this court will from time to time have to
12 protect those very unpopular people in which case the
13 public will think they're out of their minds. Right? But
14 that's the job, and as you can see what happens from Roger
15 Taney, if you don't do it, I think eventually in history
16 you'll be criticized a lot more than you will be by doing
17 what the job is.
18 So, you see, I really agree with you because I
19 think over time you're right. And if you're saying I'm
20 going back there tomorrow and hold my finger up to the
21 wind, I would say, no, that's not the job, the job is to
22 apply it. Now, we have different views about that, but 22
1 that's a different matter. And so I think people do, even
2 when I disagree with them, they are trying to apply it and
3 they're not holding their finger up to the wind.
4 MR. ROSEN: Wonderful.
5 Well, Justice O'Connor, I had the great
6 opportunity to interview you a few days ago, we had a
7 wonderful conversation. And I said after listening to
8 you, how much the country lost when you retired from the
9 Supreme Court.
11 MS. O'CONNOR: I was there a long time, so.
12 MR. ROSEN: You were. And you, one -- among
13 your many virtues, you had a great knack for moderation,
14 for pragmatism and freely expressing the views of the
15 moderate majority of the countries, sometimes even more
16 effectively than the other branches of government. I want
17 to be specific about this and ask you one question in
19 In 1992, when the court upheld Roe versus Wade
20 in an opinion that you joined, you said that early-term
21 abortions had to be protected but late-term choice could
22 be restricted. That exactly coincided with the views of 23
1 the majority of the country. Two-thirds of the country
2 felt, early-term choice had to be protected and greater
3 majorities thought the later term choice could be
4 restricted. Was that at all a factor in your decision? I
5 can't imagine you read the polls, but were you aware of
6 what the country thought at that time and that influenced
8 MS. O'CONNOR: Well, I can only say that most
9 members of the Supreme Court do read newspapers.
11 MS. O'CONNOR: It's not forbidden.
13 MS. O'CONNOR: They do, generally speaking, know
14 what's going on, and, obviously, members of the court have
15 observed at whatever distance it might be the problems
16 arising out of the controversy over abortion. And that's
17 been with the nation for quite some years now. And the
18 nation itself has never resolved that debate. There is no
19 clear consensus out there as far as I can tell on the
20 proper rules for regulating abortion. And so the members
21 of the court are as aware of that as are you or any of us.
22 And I don't think -- as Justice Breyer said, I don't think 24
1 members of the court read the election results and the
2 latest polls to write an opinion. That isn't how the
3 court was established, it isn't what it's supposed to do.
4 It's supposed to find out whether the challenged law or
5 public action is within the bounds of the constitution.
6 Well, there are a lot of hard-and-fast rules
7 written in the constitution. So the court has to look
8 back at now over a great many years of written opinions by
9 the court because once their issued, they become part of
10 the law of our country, and when you decide a case you
11 have to look back at that too. So deciding an issue, the
12 answer to the question -- I don't know who wrote the
13 question, it was not a very useful question, because the
14 answer is clearly no, to the question that's posed.
15 But in a broad sense, the justices themselves
16 are appointed by presidents. Every president, starting
17 with George Washington, has tried to appoint people who
18 thought like he did about key issues. I mean, George
19 Washington wasn't going to go put someone on the court who
20 had wildly different views from his own, neither was
21 Ronald Reagan and neither is President Obama. They are
22 going to look for people who may believe have generally 25
1 views that are at least somewhat consistent with their own
2 views of the appointing president.
3 And so, over time, you're going to have
4 presidents try at least in their appointments to find
5 people when they appoint them who aren't going to be
6 wildly off the chart form the president's own views of
7 things. And as a result, you are apt to have effects on
8 the constitution in its -- in the decisions reached by the
10 And I guess the example we all look to was back
11 in the days when the court was overturning every action of
12 Congress that came before them, and we have the justice
13 who stepped down in the nick of time to save nine and --
14 Justice Roberts -- and the court kind of changed its
15 course and stopped overturning every single law that was
16 passed by the Congress.
17 And so I -- it's I think logical to assume that
18 justices like presidents and like members of Congress tend
19 to have certain broad views about how the country should
20 be responding to issues. And it isn't the job of a judge
21 to reflect those views, but obviously every judge is
22 affected in some remote way by their overall approach to 26
1 things. Are you a person who thinks legislative bodies
2 have power to enact laws? And by and large, we should
3 enforce those, it's the legislative judgment.
4 So when the court has to look at them, we have
5 to generally make an effort to enforce them. So I don't
6 think they read the election returns and thereby make a
7 decision, but to say they're unaware of broad views is
8 unrealistic too. So I think the answer is no, and now
9 where do we go?
10 MR. ROSEN: All right. Now, Dean Kramer, we have
11 a little bit of conflict between the court and the
12 professoriate here. The two justices have said that, yes,
13 although it's true in a broad sense that the court
14 reflects views over time, each of them is shocked, shocked
15 at the idea that any judge in a particular case would
16 actually be swayed by popular opinion.
17 So my question is, is it just a big coincidence?
18 I mean, after all, you and others have assembled reams of
19 data, polls and so forth showing that in case after case
20 by and large the coinciding of the people's views and the
21 court's views is very precise. But they deny that this is
22 intentional, so what are we to make of this?27
1 MR. KRAMER: Okay. So, I have to preface this
2 because I'm in a hard position here because I am in fact
3 institutionally very beholden to the court and also to --
4 MS. O'CONNOR: I went to Stanford too.
6 MS. O'CONNOR: He --
8 MR. KRAMER: So I just -- very beholden in
9 certain ways -- well, and I have clerkships and you have
10 to promise you'll still take clerks. After I --
11 MR. BREYER: Everything we learned, we learned
12 at Stanford.
14 MR. ROSEN: -- Aspen.
15 MR. KRAMER: So let me say a couple, just a
16 couple things. So one is just in terms of what empirical
17 literature shows, there is an empirical body of literature
18 that dwarfs, you know, what Justice Breyer sighted in on
19 violence and video games with respect to the extent to
20 which the court adheres closely to where the public is
21 over time, and not over long times, like very precisely.
22 I mean, abortion has been an interesting issue, because in 28
1 fact the public has moved significantly between say the
2 time of Roe v. Wade and time of Casey, and it moved in
3 different directions and the court tended to follow it,
4 and it's really striking.
5 Now, that said, so it's impossible to ignore
6 those facts. I mean, they're out there and they're pretty
7 stark. That said, I don't think nobody thinks that the
8 justices sit there self-consciously deciding that way. I
9 mean, nobody does. And that would be too much to expect
10 anybody who is in the role of a justice, not just to admit
11 publicly if they did, but to actually go about the role
12 that way. I don't think anybody does.
13 On the other end, think about your own process
14 of decision making with important decisions in your own
15 life or anything like that, and it's a complicated
16 process. So, you know, the -- I mean, I face this all the
17 time as dean the -- I get the similar kind of acquisitions
18 about why I've done what I've done. And, of course, if I
19 step back and think about it, I realize that because I'm
20 always embedded in a lot of lot of different pressures
21 from a lot of different directions, the way I understand,
22 what I do is inevitably a product of that. So, I don't 29
1 think there is disagreement on the broad sense, except to
2 the extent that I think it's a much more refined feedback
3 mechanism than either of the justices have stated here. I
4 think it's actually -- there is a much closer
5 correspondence, and it does occasionally veer way out. It
6 veers way out when you do get justices as we do
7 occasionally, historically, who are really strongly
8 committed to an ideology and so adhere to that even as the
9 public continues to move.
10 And then when the gap becomes too large, you get
11 a very, very significant pushback. And that's what
12 happened in the New Deal era. That's what happened -- it
13 was starting to happen actually at the end of the Warren
14 Court except there were four very short retirements. And
15 so President Nixon got to change the membership of the
16 court as a devise for bringing it back around.
17 It happened around the time of Judge Scott. It
18 happened around the time of the Second Bank of the United
19 States. In the 1830s it happened in the early republic
20 around the time of Marbury. So it happens, but rarely,
21 and that's because most of the time the justices are
22 embedded in the same society, come from it, and are 30
1 inevitably to some extent aware, and for myself, as I say,
2 I think that's a really good thing.
3 I would be very, very troubled by a court that,
4 you know, self-consciously said, you know, we really don't
5 care what the community at large thinks. In fact, we only
6 care what we think, that that's not a part of the way we
7 decide things, and I don't think that's the case for any
8 of them or any of us or anybody who would be put on the
10 One other point I just want to put out there,
11 which is the hard cases are -- I do disagree essentially
12 with one way in which Justice Breyer just phrased
13 something. It is never in the hard cases, the ones that
14 make us care about the Supreme Court. It is never the
15 case that it's just a matter of figuring out what the law
16 says, because the reason they are hard is because the law
17 has run out for us.
18 There is just -- there really are open-ended --
19 not that they're inconsistent with the law, but the lines
20 of authority and the text and the history and all the
21 sources, whichever ones you're drawing have put you in a
22 position where there really are choices to be made that 31
1 are not themselves being made by these materials. And
2 it's really important to acknowledge that.
3 To me, one of the most corrosive things that has
4 happened in the confirmation process has been the
5 inability to openly recognize that fact so that when
6 Justice Breyer points out that he was raised in San
7 Francisco, went to Stanford, that these were influences
8 that helped shape who he is today, and so how he decides
9 cases, that we have to run away from that. And public
10 debate is I think a really serious problem when it comes
11 to constituting the court going forward.
12 MR. ROSEN: All right, Justice Breyer, the dean
13 has accused you of false consciousness.
15 MR. KRAMER: No more than the rest of us --
16 MR. ROSEN: No. He says that, you know, you
17 think you're doing one thing but you're really doing
18 another, but I guess I'm surprised to hear you resist so
19 much to claim that judges shouldn't be sensitive to
20 popular views. In your wonderful book, Making Democracy
21 Work, you say the whole point of the court is to encourage
22 democratic deliberation by deferring to the views of 32
1 elected legislatures. I want to ask you how this plays
2 out in the video games opinion.
3 So it was important for you in the video games'
4 dissent that all of these statistical studies, which you
5 and your law clerks found, which suggested a possible
6 correlation between violent behavior and the violent
7 games, supported the judgments of your elected
8 legislatures. And that's why you said you should defer.
9 If you hadn't seen those expert studies that convinced you
10 of that, would you not have deferred and would you come
11 out -- would you have come out the other way?
12 MR. BREYER: If the expert studies had come out
13 the other way, maybe I would have -- that isn't the same
14 thing as being -- having it being deciding through a
15 popularity poll. The -- I probably wasn't clear. I don't
16 think law is mechanical. I think that there are many,
17 many different features that go into it. But once you
18 tend to work out -- Sandra said this very, very well,
19 absolutely true, my goodness, I've discovered that. Your
20 first 2 years in the court you make footprints and it's
21 very hard to escape those footprints you've made. And
22 what the footprints are, are methods of working out in 33
1 different areas very difficult kinds of cases. This term
2 almost 50 percent of the time were unanimous. That
3 doesn't mean those cases were easy.
4 MS. O'CONNOR: That's a higher percentage --
5 MR. BREYER: Than usual.
6 MS. O'CONNOR: Yeah.
7 MR. BREYER: But I think took more technical
9 MS. O'CONNOR: Yeah.
10 MR. BREYER: We were 5-4, about 18 percent, 20
11 percent of the time, and I would say it's more the same
12 usual suspects than it was when you were there. So that
13 suggests some increased polarization. Then you say, well,
14 why is that? Well, you'd have to look at putting aside
15 vast numbers of cases.
16 I think a good metaphor was Learned Hand's when
17 we interpret statutes, he was talking about. In some
18 degree it's true of the constitution. He said a judge is
19 like a musician in the sense that if you're going to play
20 the surprise symphony, you cannot play it like a dirge.
21 That's out of the picture, okay?
22 Now, within the range of what's in the picture, 34
1 there are degrees, and it's not just degrees' free choice,
2 it is degrees that you might get a little better, you
3 might get a little worse, and that's what people are
4 striving for. A very good example that impressed me at
5 the time is I think it's so typical of a really hard case.
6 Arkansas, some of your may remember, not
7 Arkansas but the issue, said that no one can serve more
8 than I think with six terms in Congress. And does
9 Arkansas under the constitution have the power to limit
10 the number of terms of a member of Congress? Well, my
11 goodness, that was difficult.
12 Why? You look at the words. The words say that
13 a qualification is a citizen of the United States,
14 resident of the state of which he is elected and over 25
15 years old. And it doesn't say, well, that's all. If
16 that's all, then they can't. If you could add others,
17 they can. So, I don't know. Look at the words. Read
18 them 50 times. It is not going to help too much.
19 Well, let's use commonsense here. Couldn't you
20 keep a lunatic out? Now that you're nervous enough, you
21 say all right, but then you cannot. Oh, of course, well,
22 if you could keep a -- if you could keep a lunatic out, 35
1 well, what about insisting you own property? Can't do
2 that one. Well, let's look at what they did at the time.
3 There was a state that did have a property qualification,
4 I think it was Virginia, and the others didn't. So was
5 that a fluke or does it show the trend?
6 Let's look at what the founders said. The
7 founders are fabulous because you have Jefferson and
8 Story, Story close to being the founder. He said, of
9 course, they can add these things. You have Madison and
10 Hamilton saying, no, they can't. So every -- and the
11 president, the president went both ways, absolutely. I've
12 never seen. We sat there absolutely amazed.
13 In my own opinion, what it sort of came down to,
14 and you say, well, is this a -- I don't know what you call
15 this. I think some judges instinctively look at the Tenth
16 Amendment and they say that reserves to the states the
17 powers that are not delegated in the Constitution -- it
18 reserves the powers to the states. And that Tenth
19 Amendment is very important. And the more important you
20 make it, that's degree, I don't -- it doesn't tell you
21 somewhere. The more you think Arkansas should be able to
22 do what it wants. But then there are others who will 36
1 focus on Article One, the legislature and its power to
2 control its own qualifications, and they will think, my
3 god, that has to be widespread because otherwise the
4 staffs will get in control or all kinds of terrible things
5 and they'll lose their power in the Senate and of the
6 Senators who are elected or the representatives, and it
7 will move us away from that democratic system. That's all
8 in the constitution too.
9 And the more you put weight on that, the more
10 you think they should not be able to do it. And the case
11 -- if you'd heard the oral argument if ever one would be
12 broadcasted, I would say, the people were really trying to
13 figure this one out, and it ended up 5-4, and it was 5,
14 they couldn't do it. Read the opinions, I think the
15 correct response to the opinions, gee, I am not sure
16 that's a tough case.
17 Now, never in that calculus, which I have tried
18 to give you a little at some length, because I want you to
19 just introduce you to what some of these are like, never
20 in that calculus are you thinking is it popular to have
21 terms limits or isn't it?
22 MR. KRAMER: Just one quick word, just to 37
1 clarify something. No one is saying, including me, no one
2 is saying anymore than the other branches of government,
3 what do you think politics is? That's actually what I
4 resist. The idea that whatever the public thinks is
5 therefore politics, it's blowing with the wind. That is
6 not the idea at all.
7 But the idea that what everyone else out there
8 thinks is you're relevant to be resisted that it's a
9 virtue to go against it, that also strikes me as deeply
10 troublesome. Ask yourselves, what is the difference
11 between that and a monarchy, except that it's limited just
12 to some portion of the government, although it's that
13 portion that we tend to want to identify as the most
14 important and central one to us. It's our core value.
15 So we're going to take -- we're going to say
16 we're going to have a democracy except for the things that
17 are really important. For those, we're going to give them
18 to people who we don't elect and who get to be there for
19 life, much like a king and let them do what they want.
20 That would be a problem. Now, I don't think that's what
21 is going on. I hope that's not what's going on, I'm sure
22 that's not what's going on. But the extent and the way in 38
1 which and the notion and the responsibility that a judge
2 might have to be paying attention to where the society is,
3 meaning, not just what's popular out there for the moment,
4 but what is the -- where there are settled views, what are
5 the trends, what are the views of the public, that has to
6 be a part of the job, and I would be scared --
7 MS. O'CONNOR: It certainly is a part of the job
8 to the extent that a judge wants to understand that, and
9 if you take a position under the constitution that is
10 against the majority view, you have to be able to explain
11 it well enough that maybe you can persuade some of that
12 majority to agree with you for the reasons expressed.
13 That's the effect of it, not that it controls the vote,
14 but it makes your very conscious of what you have to
15 explain to the public when you write an opinion.
16 MR. KRAMER: Yeah, and it's ongoing.
17 MS. O'CONNOR: Yes.
18 MR. BREYER: Example that you brought up, why
19 look at all those studies, because over a long period of
20 time, in many First Amendment cases, not just this one, I
21 have tended more in the direction to say, let's look to
22 see what the genuine harm is to First Amendment interest 39
1 to expression, let's look to see what the justification is
2 that the state wants to restrict expression, and let's
3 look to see if there are alternative systems.
4 And often you find something in all those
5 categories, and there is not much of an alternative to do
6 a little balancing. But in this instance, I looked out
7 and so the restriction on speech is that a child, 16, or
8 13, or 15, under the age of 17, cannot buy an X-rated or,
9 sort of -- I will not describe them to you -- video games
10 without their parents' permission, but if the parents want
11 them to have it, they can go get it. So I say that's
12 something but not much of a restriction.
13 Then I look at the rationale for it, and I find
14 that 130 studies or whatever they are, and I say that's
15 not such a bad rationale, and I look to see if there are
16 alternatives, I cannot find one. Okay, you see the model
17 there, that does not have to do with whether video games
18 are popular or not. It has to do with trying to work out
19 how the law is in this area. And it's not definite and
20 judgment is always entering, and you're never certain
21 because there are very good arguments on both sides, but
22 that's not a system which is simply looking to the public 40
1 and --
2 MS. O'CONNOR: So the answer is no.
3 MR. BREYER: Yeah, the answer is --
4 MS. O'CONNOR: Right. I agree.
5 MR. KRAMER: Actually I don't think the answer
6 is no.
7 MR. ROSEN: Just --
8 MR. KRAMER: I think the answer that you guys
9 gave is actually partly and fortunately so partly. That's
10 actually what -- and I would have to agree, what can I
12 MR. ROSEN: Justice O'Connor, how would you have
13 approached the video games case? You both agreed on so
14 many things but would you have thought the first amendment
15 banned the sale of violent video games or not and why?
16 MS. O'CONNOR: Well, one wouldn't just on the
17 surface of things think that the court reached the
18 decision you'd expect. Now, I don't, as a former member
19 of the court I'm not going to sit here and say, oh, my
20 God, they made it, you know. But you don't read it and
21 think that's what is required, the first amendment that
2 MR. ROSEN: So you would have been with your
3 former colleague, that's good to hear.
4 MS. O'CONNOR: You're drawing wrong conclusions.
6 MR. ROSEN: I just did. All right, Larry, once
7 again, the professoriate has to return to its statistics.
8 So the affirmative action cases remarkably track public
9 opinion. When Justice O'Connor wrote her path-breaking
10 opinions suggesting that some forms of affirmative action
11 were permitted but hard quoters (phonetic) had to be
12 rejected. The public was in the exact same place
13 supporting affirmative action but opposing racial
14 preferences. About a few years later in the 2007 Parents
15 Involved case the country is more conservative,
16 questioning affirmative action and the court restricts it
17 more. Justice Breyer wrote a 70-page dissent he was so
18 exercised and this is the way he expresses his distress he
19 writes these great dissents.
20 MR. BREYER: Punish people by making them read
22 MS. O'CONNOR: Making them read it.42
2 MR. ROSEN: So my question is were they,
3 obviously not following the polls but was it -- were they
4 unconsciously influenced by it or was it the fact that
5 Justice O'Connor had been replaced by a justice who took a
6 much less pragmatic approach than she does? He had a
7 strong ideology, he's not as interested in public opinion
8 and it just is these 5 to 4 splits are the result of that?
9 MR. KRAMER: Well, again, there's no easy
10 answer. I mean, I come back to -- we all need to reflect
11 on our own processes of decision-making and whatever it
12 is, and they are complicated and many things enter into
13 it. And they have different effects. And its not false
14 conscience, but there are things with different degrees of
15 conscience in driving our decisions. So that's part of
16 it. Part of it clearly is the changes in the appointments
17 process. I've actually taken the position of public I
18 think it's downright immoral for a president to make
19 appointments to the court with the idea that what I'm
20 really going to try and do is get justice's on there who
21 agree with my ideology who are really young so I can
22 extend it well beyond my term in office.43
1 MS. O'CONNOR: Well, that's what they've done
2 ever since --
3 MR. KRAMER: Yes.
4 MS. O'CONNOR: -- George Washington.
5 MR. KRAMER: Well, no, no.
7 MR. KRAMER: Actually not since Washington, it's
8 really a product of the last 30, 40 years that it's been,
9 let's find people who are young and who've said nothing so
10 we can slip them through the confirmation process and will
11 be on there for a really long time. They're now pretty
12 open about that these days which is somewhat -- so that's
13 an effect as well. The -- but there has, none the less
14 across American history, even without formal term limits
15 been a relatively steady turnover on the court.
16 The average tenure of the justices actually is,
17 has been around nine years. That's changed and it's
18 getting longer now and that's why we're seeing more
19 tensions and will as time goes on. So what happens there
20 though when you have the regular turnover then because
21 presidents still do tend to try and put people on who
22 roughly share their ideology is, you know, you get some 44
1 concurrence there. I think we're in a period where it's
2 quite possible, depending on the direction the country
3 takes that you could have one of those rare periodic large
4 divergences where you have justice's who are not
5 pragmatic, who are very ideological in their decision-
6 making, who don't care what the rest of their community
8 And that's when you get trouble, right, that's
9 when it happens. Because politics inevitably will only
10 accept so much from the court. And that's what happened
11 around the time of the New Deal and it has happened
12 periodically. And, as I say, as long as there is a rough
13 concurrence in the long term kind of trend that Justice
14 Breyer talks about we don't get flash point conflicts but
15 when you get big divergences they inevitably come about.
16 MR. ROSEN: Very good. Ladies and gentlemen, I
17 think it is time for your questions. And there will be
18 mikes roaming around and -- yes, right in the middle.
19 Yes, ma'am. There's a mike just coming over to you now.
20 JANE: My name's Jane and I didn't go to
21 Stanford. Is it okay to ask a question?
22 MR. ROSEN: Its fine, you're among friends --45
1 JANE: Okay.
3 MS. JANE: How would you respond to those that
4 really believe that Bush versus Gore was a political
5 decision of the court?
6 MS. O'CONNOR: Of what?
7 MR. ROSEN: Bush v. Gore was it --
8 MS. O'CONNOR: Or Bush v. Gore.
9 MR. KRAMER: That's what Justice Breyer said he
10 need an hour to explain --
11 MS. O'CONNOR: We were on -- we were on
12 different sides on that question.
13 MR. BREYER: Oh, I would say it was my point of
14 view, all right, because that's -- I said at a Stanford
15 audience actually, I get that question. And I said, well,
16 now, I was in dissent. I thought it was completely wrong.
17 You know, and Stanford audience had a big applause
20 MR. BREYER: So I said, moreover before I think
21 my side was the more popular side by a few hundred -- but
22 the --46
2 MR. BREYER: But, but two things. One, before I
3 could make that decision I had to imagine in my mind would
4 I make the same decision if everything were the same but
5 the names reversed, okay? And unless I can be comfortable
6 that I would do that I can't. And I had to do, I went
7 through because I'm far imaginative and I -- what happens
8 to me, blah, blah, blah, all right. Anyway I went through
9 a process and came to that conclusion. And then I
10 foolishly said to -- of course, I could kid myself and
11 people do kid themselves but you try not to.
12 And I am sure that all my colleagues did the
13 same, did they? And that is -- that's what I think people
14 haven't taken that into account when they say it was just
15 politics. The other thing which maybe I'll discuss
16 tomorrow but one very good, I heard Harry Reid (phonetic)
17 say about that decision, a great thing was people did
18 follow it even if they might think it was wrong. And that
19 I think speaks well for the court. And --
20 MS. O'CONNOR: It does. We are lucky that even
21 in very divisive cases the country has followed the
22 decision that's been handed down. We haven't gone to war 47
1 over them. And that's a great blessing. It shows that
2 the system is more or less working. And in Bush-Gore it
3 came -- it was a federal election of a president. And
4 they're carried out at the state level.
5 And in this case it was Florida. And it boiled
6 down to the votes in four counties. And it turned out
7 that Florida did not have uniform policies to instruct the
8 little volunteers who were counting the votes on how they
9 should count these ballots out of machines they had never
10 used before for voting which left hanging chads, remember
11 that term.
13 MS. O'CONNOR: And some were hanging by three
14 corners and some by one and so forth. And no instructions
15 were given to the vote counters how to deal with hanging
16 chads for instance. So what kind of a result were you
17 getting because it was very close? And we took the first
18 case and unanimously sent it back to Florida and the court
19 did not respond, it never has. And they never instructed
20 the voters. So back came the second case and there we
21 were divided 5-4. But it wasn't the end of the world.
22 When it went back in favor of Bush, all of the ballots 48
1 were saved, all of them for the four counties. And the
2 press had access to them and they had recounts of the
3 votes in the four counties by the press, it did not change
4 the outcome at all. So forget it, okay, it's over.
7 MR. BREYER: -- if people don't I mean, I
8 thought I was thinking of this because it is an example
9 what I think a basic job and I'm looking for disagreement
10 because at some level we don't disagree too much. We're
11 looking for disagreements. But this is one where maybe we
12 do that I think that -- what this shows and what other
13 cases show is one of the main jobs of the court, not
14 always emphasized, but I find that in Hamilton 78, I find
15 it in Federalist 78. That's a serious matter, making a
16 decision where you're making it in favor of someone who's
17 very, very unpopular. E.g., we had four cases involving
18 Guantanamo including what you wrote I think was Bin
19 Laden's driver. Bin Laden's chauffeur was not the most
20 popular man in America.
21 MS. O'CONNOR: No.
1 MR. BREYER: He was bringing a case against the
2 most powerful President Bush. In each of those cases it
3 was a similarly unpopular person. And in each of those
4 cases the court decided in favor of the unpopular person.
5 Now, I'm not saying that's the only thing the court does.
6 But I'm saying that's one of the things. And that takes a
7 very, very long time.
8 And if the public will go for that, then we're
9 following the public. And it has to go forward because
10 the secret to court, it seem to me, is a long period of
11 time over which people have gradually become educated to
12 the point where they will accept an institution that is
13 not a monarchy, not elected, not democratic, making
14 decisions that will often be unpopular and maybe wrong.
15 Because since we're humans, after all, we do decide things
16 that are wrong. And how can you get the popular support
17 for that?
18 So I would turn his question on its head and say
19 it isn't that you are reflecting every jot and tittle
20 certainly of public opinion. The important job is why
21 she's out there everyday with iCivics and trying to get
22 civics into the classroom, is how you maintain the 50
1 acceptance in the next generation or two of a system that
2 does have these nine people there and sometimes, but
3 certainly not always, they may do the right thing. And we
4 take it.
6 MR. ROSEN: All right, Larry, you shrugged, you
7 think the court was being less heroic in those Guantanamo
8 cases that Justice Breyer suggested?
9 MR. KRAMER: Well, I think we need to define
10 what the issue was from a public perspective. So the
11 question wasn't whether the individual people were popular
12 or not. The question was where did the public stand on
13 the same questions with respect to executive power and the
14 way in which we should treat even very unpopular people.
15 And actually the court took the popular line, it
16 was the Bush policies that were very unpopular through
17 there, and the court was on, I think, the side of right
18 side of public opinion, for what it's worth. This is
19 actually all well documented, you know, out there. So the
21 MR. BREYER: I hope my studies were better than
22 this one because I think if you put to people the 51
1 question, are you in favor of protecting the country from
2 national terror -- from terrorists by locking them up in
3 Guantanamo or are you in favor or letting the judge let
4 them out?
5 MR. KRAMER: Sure if --
6 MR. BREYER: I have an idea if you put it that
7 way --
8 MR. KRAMER: I have no question if you put it
9 that way.
10 MR. BREYER: Yeah.
11 MR. KRAMER: On the other hand --
12 MR. BREYER: All right.
13 MR. KRAMER: -- if you put the question to the
14 public, are you in favor of United States betraying all
15 it's core values and locking people up with no process, no
16 opportunity to talk to a lawyer, no opportunity to have
17 the evidence against them checked or tested you get the
18 same answer as well.
19 MR. BREYER: -- protection of national security
20 versus protection of traditional civil rights, what's the
21 answer? I don't the answer --
22 MR. KRAMER: I don't think there is any answer.52
1 MR. BREYER: Well, what does the public say?
2 What does the public say?
3 MR. KRAMER: -- there is a poll actually. The
4 public was asked, what do you think of the Patriot Act and
5 50 percent thought it struck the right balance between
6 liberty and security, 20 percent thought it didn't go far
7 enough and only 20 percent thought that it went too far.
8 The people who thought it, you know, went too far, most of
9 them are in this room actually.
11 MR. KRAMER: But it's been -- it's a coalition
12 of civil libertarian liberals, libertarian conservatives
13 in the Aspen Institute essentially, that is a minority of
14 the country.
16 MR. KRAMER: So again, so -- and now I feel like
17 I actually am fighting a little uphill battle because what
18 I do find, and I will just say this frankly, is I think
19 most liberal laws also not judge, hold most the country in
20 relative contempt for their intelligence and ability to
21 make decisions and I don't. I'm actually teaching a
22 course this coming year with Josh Cohen, he's a political 53
1 philosopher on democracy and constitution in which we're
2 really trying to recapture -- this is a Lincoln's line --
3 about the long slow wisdom of the public. And that's
4 really what we're talking about here.
5 I reject polls pretty much actually top to
6 bottom because they're entirely a product of how you frame
7 them. And asking somebody, do they favor the Patriot Act
8 or not in that context with no further information, with
9 no sense of the details and the particular details that
10 were at issue in these cases just is useless. On the
11 other hand, as I said the polls that I looked at actually
12 put the facts out there and the issues at stake. And
13 there was actually general opposition to what the Bush
14 administration was doing.
15 For what it's worth, I don't think that's what
16 drove the court. I just don't think those are good
17 examples of the court heroically standing up to the
18 public. But I don't think that's the right way to frame
19 it either. What I've been trying to say all along is
20 Justice O'Connor also and I think Justice Breyer also it's
21 a conversation that the court is engaged in with the
22 public. And what I'm concerned about is not justices like 54
1 these but justices who in fact do not regard a
2 conversation with the public as important or relevant
3 because there will be a point when you've got sufficiently
4 strongly ideological people up there who do not regard
5 that as the responsibility that you are going to get
6 trouble, right? And that's what I worry about. So I -- I
7 didn't ask the question by the way, it's his question.
9 MR. KRAMER: But to the extent that the question
10 is being asked I'm more interested in the, the should
11 question which is absolutely the justices should and must
12 be aware of what the larger community around them thinks.
13 And if they think that community is wrong they should try
14 and explain otherwise but they have to be listening to the
15 feedback as well. And when the point comes that there's
16 been a long-term engaged public debate, I don't want a
17 court that says, well, we're right and you're wrong and
18 that's all there is to it, you have to obey us because
19 that's not going to produce a healthy democratic republic.
20 MR. ROSEN: Justice O'Connor, the Abu Ghraib
21 pictures came out I think several days before the oral
22 argument in Osama's driver case. Were you aware of those 55
1 and did that influence you at all?
2 MS. O'CONNOR: I don't remember that I was
3 aware, and that isn't the basis for the court's decision.
4 Now, we have time for about one more question out there,
5 and we have some hands up.
6 MR. ROSEN: -- we got lot of hands. We're going
7 to take them all. Yes, sir, right here in the front.
8 SPEAKER: Given the comment that presidents are
9 appointing younger judges and that longevity obviously is
10 much greater today than was when the constitution was
11 written, is it still in the public interest to have
12 lifetime judges?
13 MS. O'CONNOR: What's the question?
14 MR. ROSEN: Is it still in the public interest
15 to have lifetime tenure for judges?
16 MS. O'CONNOR: Well, you can always have the
17 constitution changed. Do you think you could get support
18 to change it? It's tough. Good luck.
20 MR. BREYER: Yeah, yeah, no, no, you have to
21 have a long term, you have to have a long term. If
22 somebody says 18 years as opposed to life, fine. I mean, 56
1 you want a long term because you don't want people
2 thinking about the next job.
3 MR. KRAMER: I'm okay with 9 years. It's worth
4 noting that almost all of the modern constitutions that
5 have been written post-World War II have courts with
6 judges who have limited terms that are staggered with the
7 -- exactly the idea of producing a regular turn --
8 MS. O'CONNOR: Yes, most countries, and there
9 have been many, that have formed or adopted constitutions
10 in the last 25 to 30 years have set term limits for their
11 highest court judges. Our -- the framers in our
12 constitution didn't, and the only way to change it is by
13 an amendment to the constitution. And maybe there will be
14 public support for that some day, I don't know. I haven't
15 seen evidence of it so far. So -- and I don't know, we
16 are living longer and therefore serving longer. So it is
17 a legitimate question to ask of what our public policy
18 should be. But as of now there is no limit.
19 MR. ROSEN: More questions. Yes, sir, over
20 there, by the side. Sorry, I'm making you jog across the
21 room as part of the Seka (phonetic) manual fitness program
22 of the Aspen Institute.57
1 SPEAKER: So how did the original intent
2 advocates on the court now rationalize recent First
3 Amendment decisions regarding the free speech right to
4 marketers selling prescriber data and not leveling the
5 playing field in political elections? How does that jive
6 with original intent? And since it's so hard for me to
7 understand how it does, how can we understand it as
8 something other than a political decision?
9 MR. ROSEN: Great question. Justice Breyer you
10 were in dissent in that pharmaceutical privacy case and
11 you certainly wrote a -- were part of a fiery dissent in
12 the Citizens United case, how can that be reconciled with
13 original understanding?
14 MR. BREYER: I leave it to other people to
15 discuss the contradictions of their own opinions. I have
16 enough trouble explaining the contradictions in my own.
17 MR. ROSEN: But can you even say more, Justice
19 MS. O'CONNOR: None of the language of the
20 constitution had been tested at the time it was adopted.
21 It's framed in broad terms throughout. And they did a
22 fantastic job when it comes down to it. That doesn't mean 58
1 there can't be very tough issues today. And that's the
2 job of the court to try to explain when the court decides
3 some of these cases to explain to all of us why the
4 majority reached the outcome it did. That's the big
5 challenge because it isn't always clear from the language
6 of the constitution and that's the job of the court,
7 that's why it matters how we get good people on the courts
8 of our land. And we care about it for that very reason.
9 But I just think you have to hope that those who are
10 serving as the nation's judges and those on our highest
11 court can think through these issues and explain them well
12 enough that all of us out here understand the reasoning.
13 MR. ROSEN: Larry, do you -- you can be a little
14 less judicious. Do you agree that the framers of the
15 constitution would have protected corporations as persons?
16 MR. KRAMER: I actually think the framers of the
17 constitution, you couldn't, they would be confused. There
18 is no concept of corporation in the modern sense, so.
19 MS. O'CONNER: -- corporations, we didn't have
20 them, they hadn't thought about it. So --
21 MR. KRAMER: Right. What I -- oh, sorry.
22 MS. O'CONNER: Yeah, okay.59
1 MR. KRAMER: But what I do think is this. I
2 think people, we all have commitments, lots of them and
3 they're kind of hierarchically ordered. There are things
4 we care about more and things we care about less. And
5 this is true for judges as well. So they have a hierarchy
6 of commitments, some of which are jurisprudential, some of
7 which are substantive. And for anybody, for judges less
8 than anybody else, when a higher commitment comes in
9 conflict with a lower one, the higher one wins. And how
10 important a jurisprudence is to a justice or a judge just
12 I got blessed, Justice Brennan, who I clerked
13 for, he had a jurisprudence, it was a relatively weak
14 commitment for him. He had many more substantive
15 commitments that he cared about. And so there was a great
16 deal of inconsistency jurisprudentially in his opinions.
17 But it's understandable in terms of the man and I don't
18 think necessarily inappropriate for a judge.
19 Other judges -- so for any, you know, Justice
20 Scalia, is an -- is an origanlist to appoint. He cares
21 more obviously about certain, the better example than
22 First Amendment for most of them is race issues. So it is 60
1 completely impossible to be an origanlist and take the
2 position that conservatives have taken on affirmative
3 action, completely impossible. And you'll notice in the
4 opinions they don't even try, they don't do the historical
5 argument there because they have a stronger commitment to
6 a particular notion of equality that is colorblind or
7 whatever, and that's what trumps in those cases. So
8 that's just going to be the case with any decision-maker
9 and anybody deciding.
10 MR. BREYER: It is not, remember that -- you
11 see, you're getting one side of it when you read my
12 dissent or John Stevens, which I agreed with. There is a
13 serious argument which I don't agree with, and I don't
14 want to convince you of it. But there is a serious
15 argument that campaign finance restrictions are contrary
16 to the First Amendment. And the argument in outlined form
17 is simply that money is not speech, but you try speaking
18 in today's political world without money, you can't.
19 And, therefore, when someone wants to give money
20 to a candidate, that will enable the giver and the
21 receiver to get across a political message which is
22 important under First Amendment principles because the 61
1 country has to run on a conversation of different view.
2 And when you try to limit that for however good a reason,
3 for however good a reason you want to equal the playing
4 field. You get into what Learned Hand said, do not go
5 down that road, the road of trying to limit some speech to
6 get more from others.
7 And he said one, the reason for that is because
8 he said, if you do that you will discover yourself
9 enmeshed in a host of restrictions that no one will
10 understand and you will find that many of those
11 restrictions could be written by people who want to write
12 themselves into office. So don't try.
13 Now, that is a theme that underlies many of the
14 opinions with which I have disagreed. And what you see is
15 the working out of that theme in a whole host of areas by
16 people who believe it strongly. So I am not going to bore
17 you with why I think that's a bad idea, but there are
18 arguments I wasn't to show you, on both sides both people,
19 both groups honestly committed to different perspectives
20 on important issues which are not cut and dried, this is
21 right and this is wrong.
22 MR. ROSEN: Yes, ma'am, right -- toward the 62
1 front here. You've got the mic there, if -- go ahead.
2 MR. EDLARS: I'm Stephen Edlars (phonetic), and
3 I'm not going to ask a softball question. It has to do
4 with trust in the judicial system. Judges don't, can't do
5 everything. They still are governed by a code of ethics
6 and code of conduct. Let's consider a theoretical
7 situation where a judge is married to someone who has an
8 interest in a specific advocacy and makes a lot of money.
9 How does a judge get in a position where he has his own
10 view on whether he should recuse himself or not?
11 MS. O'CONNER: Well, as you know the -- there is
12 no code in the constitution telling judges at any level,
13 federal judges at any level when they could recuse
14 themselves. And it's been left to the good judgment of
15 the judged themselves. In some cases courts have adopted
16 general guidelines to be used by the judges. I think we
17 have some general guidelines for the federal court judges
18 in what to use to decide whether you should be recused or
20 And there isn't such a code at the Supreme Court
21 level. So what most of the justices have done in recent
22 years, I don't know what they did in earlier years, was if 63
1 there is a real question they discuss it with their
2 colleagues and get advice from their colleagues on what to
3 do. That's not a bad way to go, I think, in terms of
4 deciding it, but there is no written code. And they've
5 generally followed the one that applies to all the lower
6 court federal judges.
7 MR. BREYER: In the last few years this has come
8 up more, I bet most. In my office I have seven volumes.
9 The seven volumes are the codes of ethics that comply,
10 that all federal judges are supposed to comply with.
11 Technically, I'm not bound by it, but I have yet to find a
12 situation where any judge on our court in any difficult
13 situation would not try to comply with the same code of
14 ethics as everybody else. I know I do, I know Tony
15 Kennedy does, I know anyone I've discussed it does. So
16 this is a false issue in my mind.
17 Now, as far as what your wife does or your
18 husband, I, myself, have tried to stick to a certain
19 principle and I feel fairly strongly about it that a wife
20 or husband is an independent person and they make up their
21 own minds what their career is going to be. And you work
22 that out together.64
1 But if person X, the wife decides she wants this
2 career, that's just fine with me. And if there is going
3 to be something, for example in the disclosure forum every
4 year I have to disclose every penny that I earned or have
5 as an asset, that my wife earns and has as an asset, that
6 any minor children earn or have as an asset. And it costs
7 quite a lot of money to pay accountants to do all that
8 perfectly because you know if there is one thing wrong
9 that there is going to be a headline. And, therefore,
10 some of these decisions are pretty tough but you work them
11 out the way judges work them out.
12 The Supreme Court is different in one respect.
13 In every other court if I decide and I have a close matter
14 to recuse myself, hey, that's the easy decision, that's
15 one fewer case I have to decide and besides bringing
16 somebody else to decide it. If I recuse myself on the
17 Supreme Court, there is no one else, and that could switch
18 the result.
19 So before, in a really tough case, I have people
20 I telephone who are experts in ethics and they'll let me
21 know what they think, and they won't necessarily, they
22 don't have to follow it but I'm certainly guided. So 65
1 ethical questions do come up sometimes. I think they have
2 to go at it very carefully.
3 And I think the fact that my wife who happens to
4 be a clinical psychologist at Dana-Farber, and when I get
5 cases involving psychology I sit in those cases, okay?
6 And I can't tell you how many times. Sandra and I have
7 been asked to go to conferences where there will be for --
8 one of the Navajo Reservation, lot of them, and they don't
9 have the money and somebody comes in, how are you going to
10 pay for that, we say go to a foundation. So they go to a
11 foundation and get the money, okay? I don't see anything
12 wrong with that. And I would continue to do it.
13 And the -- so there are lot of things, I'm
14 saying, in this world that are actually a lot tougher when
15 you look at them through the microscope, case by case, and
16 understand the duty to sit as well as the duty to recuse
17 and the independence of two members of a family who are
18 married. I say you bring all that things -- that thing in
19 and the cases you're thinking might not be quite so easy
20 to sit there.
21 MR. ROSEN: Ladies and gentlemen, at the Aspen
22 Institute as at the Supreme Court it's important to end on 66
1 time. So I just want to note in conclusion that you have
2 seen a vigorous disagreement between our jurists and our
3 scholar at the suggestion that justices actually follow
4 public opinion in particular cases but you've seen broad
5 agreement that over time the court does reflect the broad
6 currents of public opinion. And most of all you've seen
7 the commitment that both of these two justices have to
8 engaging in a dialogue with Congress, with the people of
9 the country, rather than imposing constitutional values
10 from on high, and for that reason we are very lucky to
11 have them on the Supreme Court. Please join me in
12 thanking them.
14 * * * * *
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