The Rule of Law on the Move: Challenges and Disasters
Featuring Stephen Breyer, Associate Justice of the Supreme Court of the United States, and Noah Feldman, Bemis Professor of Law at Harvard University
The Rule of Law on the Move: Challenges and Disasters
Aspen Ideas Festival transcripts are created on a rush deadline by a contractor for the Aspen Institute, and the accuracy may vary. This text may be updated or revised in the future. Please be aware that the authoritative record of Aspen Institute programming is the video or audio.
THE ASPEN INSTITUTE
ASPEN IDEAS FESTIVAL 2013
Tuesday, July 2, 2013
LIST OF PARTICIPANTS
Director of Justice and Society Program
Supreme Court of the United States
American author and Bemis Professor of Law
at Harvard Law School
* * * * *
THE RULE OF LAW ON THE MOVE: CHALLENGES AND DISASTERS
MS. CHERTOFF: Good morning everybody. Good morning
and welcome to the last day of the Aspen Ideas Festival. I know we all
want to spend maximum time listening to what our speaker and our
moderator have to say here today. My name is Meryl Chertoff and I direct
the Justice and Society Program at the Aspen Institute. I'm delighted to
welcome you all here this morning for a discussion of the rule of law.
What is the rule of law? We'll hear about that in this morning's discussion.
It's a critical issue around the world today. The rule of law is challenged
and there are even questions about the rule of law even here at home.There are two wonderful people here today with us. First,
Justice Stephen Breyer, associate justice of the United States Supreme
Court and a frequent visitor to Aspen. I know that all of you are familiar
with his resume. Prior to joining the U.S. Supreme Court, he was a judge
of the First Circuit Court of Appeals in Boston. He's been a professor at
Harvard Law School. He's worked both in the executive branch of the
United States government and he's worked for Congress.
He is truly someone who embodies the spirit of Aspen. I have
to say on a personal note, I've had the privilege to know him for almost
10 years now, probably not nearly not as long as some of you have
known him. He embodies the spirit of Aspen with a broad understanding
and interest in so many things, law and beyond, the world of literature,
travel, history. He truly is a wonderful person and we're very lucky to have
him with us today.
Noah Feldman is --
MS. CHERTOFF: Noah Feldman is Bemis professor of law at
Harvard Law School and the author of a best-selling book on history of the
Supreme Court during the Roosevelt administration, the "Scorpions," and
more recently the modestly named "Cool War: The Future of Global
Competition." Noah spoke about the cool war yesterday. I urge you to
look for the book. It's a wonderful book and quite a bit of it is about our
relationship with China and the future of China. I'm sure that all of you will
have questions and Justice will take a few at the end of the conversation.
And with that, thanks, let me turn it over to Noah.
MR. FELDMAN: Thanks, Meryl. Justice, thank you very much
and welcome to Aspen.
MR. BREYER: Thank you.
MR. FELDMAN: Let me begin with a question that's on
everybody's mind which is you had a bike accident in April. How is your shoulder doing?
MR. BREYER: Better. Two things, one it takes a long time if you
have a new shoulder, and two, it is amazing how many people have new
shoulders or torn rotator cuffs. I mean, maybe it's just my friends, I go into
any room and 14 people come up and say, oh, that happened to me.
Do your PT. Don't forget the PT. And so if I get up and do a few exercises
in the middle of this, you'll understand.
MR. FELDMAN: On a happier note, you were recently one of
just a handful of non-Frenchmen inducted into the Académie des Sciences
Morales et Politiques, the Academy of Moral and Political Sciences,
which is one of the four academies of France. It's about as big an honor
as the French have to confer. And you spoke at length and in French
about the question of rule of law there. And I thought to introduce our
topic of rule of law, I would first ask you about the comparative side and
ask you how did you come to cultivate a lifelong interest in French law,
culture, and language?
MR. BREYER: You've really been doing research. Well, it is a
different world and it's the reason actually which I think you learn, all of us,
as we go through school, why study literature? Why study another
language? And what I usually tell students who are now more and more
in college being urged to go and study just economics or -- nothing wrong
with studying economics, nothing wrong with studying business, nothing
wrong with studying government. But I say, my goodness, you know,
when you're an undergraduate, you have one chance, and it's a chance
that I would say don't study law to go into law.
Do that later. But if you know another language, or if you read
another book, or if you read novels, you can find something out. You only
have one life to live. You only really know your own and a few others
who are close to you possibly. And books and languages can give you
an opening, a little window into how other people think. And you can
learn a lot of lives. And that's a valuable thing to know. And so for
yourself that's what I urge them to do. So I can't urge other people to do it
without doing it a little myself. So I pretend I speak French and I read a
MR. BREYER: And so I'm always reading some kind of a
French book and I do -- I say to them it's -- they say you must love France. I
say I don't know. I'm not -- I don't -- it's like France, but I do like --
MR. FELDMAN: You actually say that to them in French?
MR. BREYER: Yes, yes, yes, I say, look, I've learned so much
about people who think in a very interesting way, who have a very
different culture than we do. And to the students, I say, do Chinese,
Burmese, I don't mind, but do something. And I think I have learned a lot
from reading books and from learning and speaking, trying to speak
MR. FELDMAN: And when you read French legal material, if
you ever make yourself do that task do you see that the -- of course their
system is very different from ours, but do you get the sense that the rule of
law is a value that is common to both systems?
MR. BREYER: Certainly it is. Certainly it is.
MR. FELDMAN: And how -- yeah.
MR. BREYER: I mean, people -- I don't know how interesting it
is, but I mean, the -- I mean, they have what they call the inquisitorial
system. So what I'm saying to them, I say, well, the inquisitorial system
everyone in America thinks you've got Torquemada up with the -- there
was some kind of torture devices, it isn't that at all. Rather it's a system
where the judge has greater power to go into the facts and find out for
him or herself what's happening than probably our judge does, where the
judge is supposed to be an empty receptacle that the lawyers put
information into and try and get the answer out that they want. And it
annoys the lawyers if you say you have a mind of your own because
you're not supposed to. Yeah.
All right. Now, is that useful to us to know that? Yeah, I think it's useful. Why? Well, for example, look at our system of criminal law. In
our system of criminal law, we have an adversarial system. You have a
lawyer on one side, a lawyer for the government, and you have all kinds
of rights at a trial not to answer and you can call witnesses and there's
cross-examination and it works pretty well when it works. How often does
it work? Three percent of the time; 97 percent of the time the person will
be what happens to him, he will be a person who pleads guilty and the
person who decides what he pleads guilty to and what happens to him is
Well, I say, hey, you know what our system actually is? Our
system is actually the same inquisitorial system they have in France with one
exception -- I'm exaggerating but not too much -- with one exception, the
person who does that in France is called a procureur, he's a judge, and
he goes to judge's school. And he learns in this judge's school that the
object of the exercise is to find out what really happened, not to secure a
conviction. Now that system doesn't work perfectly, but nor does ours.
Well, I said, why don't we take a few prosecutors from the DOJ
or from some state systems and send them to that school? You know what,
they teach courses in English too. And any way it won't hurt them to learn
a little French, but the -- so go there for a few weeks and find out what this
other system is because you, Mr. Prosecutor, are actually going to be the
decision-maker of what happens to that human being who is accused of a
crime. And I'm not exaggerating that one because that is what happens in
95, 96, 97 percent of the cases. Well, I say, it is useful to find out
something about their system.
MR. FELDMAN: You just said something in the course of that
point that I found pretty remarkable, namely that our system in which
almost all cases are plea bargains, actually more closely resembles the
inquisitorial system than perhaps it resembles the classic common law
MR. BREYER: I say in that respect of which I spoke, I have to
be very careful.
MR. FELDMAN: Of course. Of course, I'm not trying to create a headline of Breyer says "American system inquisitorial."
MR. BREYER: But you know, if it just said "Breyer prefers French
system," and everybody would say, that's right, we knew that was good.
MR. FELDMAN: But I want to ask you then about what that
means for our court trying to interpret a Constitution that was designed not
to imagine that system, but to imagine trials, a system in which the trial by
jury was at the very essence of the Founding Fathers' conception of what
liberty meant. At least they said that a great deal. And that poses, I think,
a core question in interpretation that is very much connected to your own
writing about the nature of constitutional interpretation. So what do we
do when we have a system designed for one system and we actually have
a very different system?
MR. BREYER: Well, you can see, I think even our court cases a
movement that reflects the very, very few trials there are either on the
criminal or the civil side. And if I give an example, the one that comes
immediately to mind is a case called Martinez, we've had two similar
cases over the last 2 years. And that says that the federal rule is now that
a person who pleaded guilty and went to prison can later complain in a
federal court that his lawyer was inadequate, not just at the trial, there was
no trial, but was inadequate in giving him advice about how to deal with
the plea bargaining process.
Now, he might not win very often, but sometimes he will, but
the notion that that -- and that comes under the Sixth Amendment's right to
counsel, he is entitled to a right to counsel and the counsel has to be
adequate. You see the difference? He's always had to be adequate
when he appears in court, but what about when he is talking to the
prosecutor about the plea bargain and talking to his client about how to
plea? You see the germ, the beginning of a jurisprudence arising out of
that case and when I think of those two cases, I think that is the courts
responding with the Constitution to the facts on the ground in the criminal process at the moment.
MR. FELDMAN: You were with the majority in that decision.
MR. BREYER: Yes.
MR. FELDMAN: You were in the dissent in a decision on
sentencing this term in which the issue was whether the sentencing
provision in the statute that raises the mandatory minimum sentence needed
to be submitted -- whether facts proving that mandatory minimum needed
to be submitted to the jury or not and there the more originalisticallyminded justices seemed to think that it did have to be submitted. And they
made historical argument, they went back to the 18th century -- at least
Justice Thomas went back to the 18th century to make that argument.
MR. BREYER: When you think about whether in a mandatory
minimum sentence you have to prove the facts -- I was in the majority in
MR. FELDMAN: Were you really?
MR. BREYER: Yeah.
MR. FELDMAN: Oh, so you --
MR. BREYER: I rarely remember which side I'm on --
MR. BREYER: -- but I do think in that one I was in the majority,
the fact come to think of it, I was -- there were only five votes in the
MR. FELDMAN: So you were the deciding vote of the
MR. BREYER: Each of the five of us was. It is -- (Laughter)
MR. FELDMAN: Joining Justice Thomas' Originalist opinion?
MR. BREYER: Yes. Yes. It's not always, you know, five, four
cases, are not always the same five and the same four in which you vote.
MR. FELDMAN: Certainly true. So --
MR. BREYER: And I usually think that when I see in the
newspaper Justice X, it says -- I mean, perhaps I shouldn't think this way,
but I'm in the majority, therefore Justice X decides the case. I say, couldn't
they have mentioned me? I was one of the five.
MR. FELDMAN: So that --
MR. BREYER: Yes.
MR. FELDMAN: My mistake makes the question I think maybe
an even more interesting one. Why did you join Justice Thomas' opinion
which essentially argued that at the founding the nature of the jury trial
required every fact to be submitted to the jury and be decided beyond a
reasonable doubt, which was a very old-fashioned, as it were, opinion.
MR. BREYER: Yes. No, I didn't actually join his opinion.
MR. FELDMAN: You concurred. Right.
MR. BREYER: I mean, unfortunately I joined the result and I said
the reason that I think -- this is awfully inside baseball, but I mean there is a
set of cases that say when you have to submit certain facts to the jury or
not, and I tended to disagree with most of the majorities in that, but I said --
I painted myself into a corner such that there should be a uniformity in the
law and I thought at this point it was time to say okay, I've dissented
enough and I am not going to keep dissenting forever and I think the
system will be fairer as a whole if we treat all of these cases alike.That by the way is a very good question because one of the
most difficult things for a judge on our court is to decide when I've taken a
position on a particular issue and a similar issue comes up and it comes
up again and you've made your point in a dissent, at what point do you
say, all right, I've made my point, it's time to go now and change because
the law did not take in what I said. I don't want to be the minority forever
and now it's time to move on to something else. There is nothing in the
Constitution that tells you the answer to that question. It is a personal
question, but it is a personal question about law and it's often very hard to
figure out and this was one of those.
MR. FELDMAN: So the value of consistency then was doing a
lot of work for you there, yeah. To shift to the question of what the rule of
law looks like in other places, I was in Tunisia recently and people were
talking excitedly about a presentation that you made, I think from the U.S.
remotely, again in French, and I don't mean to make that the theme, about
constitutional development there, and again you were speaking about the
value of the rule of law. A major topic of debate in places that are
developing rule of law is whether there is a distinction between the rule of
law and rule by law and I wonder if that distinction is one that you think is
a useful one or a valuable one?
MR. BREYER: Before -- let me say something about the thing in
MR. FELDMAN: Yeah. Yeah, please.
MR. BREYER: Because I found it so very, very interesting. I was
doing this thing by the -- what do you -- Skype where they have a picture
and it's there. And after a while if you're talking to people in an audience
even via this, the barrier begins to break down and you begin to get into
communication with them really and I got a couple of questions from some
women there who were law students. And one of them said, well, do you
have -- how do you deal with freedom of religion in the United States? Do
you have groups that want to -- and then she said something I didn't quite
understand, and then I got a somewhat similar question, and said to
myself, oh my goodness, I see what this is about.And I said to her, oh you're asking this question because you're
afraid that the government might take from you because you are a woman
the right to attend law school or something similar. And she said,
absolutely. And then the others began to talk about that and they were
genuinely worried. They were actually concerned and they wanted to
know how could I help and I said, I can't, I don't know. I do believe this,
I do believe that the answer to the problems that some of these countries
are having is going to lie in the hands of the women.
I said, I believe that, I can't prove it. But I think your attending
law school -- and you know, there's no difference in the law students, I
could be at Berkeley, I could be at -- there is no difference, you know. I
mean, it's a slightly different law, but I mean, there it's -- they're as clued
into the rest of the world as most of us are. And I said, keep it up, keep it
up, just don't let them take it away from you if you possibly can and get as
many people as you can to use that mechanical device where you can
get on to the Internet and see how things happen all over the world
because when you're mothers, you'll want your children to use that and so
will maybe the fathers too. And so, you know, I have no answer. Well, I
can see the problem right there in front of me and I don't see any answer
except to encourage her to keep going. But that's what's going on and
that was -- I came away from that session feeling that very strongly
emotionally, very strongly. And to go back to your question --
MR. FELDMAN: If I could just follow-up -- no, actually let me
just follow-up on what you said --
MR. BREYER: Yeah.
MR. FELDMAN: -- because it suggests that -- so Tunisia is
drafting a new constitution.
MR. BREYER: Tunisia is way out in the forefront.
MR. FELDMAN: Right, and these students were worried
among other things that if religion were incorporated in some way in the
constitution, this could threaten their rights. Now, as it turned out, they didn't put a reference to sharia in the constitution. Nevertheless the worry
exists. It sounds like your answer to her though was that the rule of law
won't ultimately offer sufficient protection.
MR. BREYER: No.
MR. FELDMAN: That it's only the political action of --
MR. BREYER: Well, a very good way of putting the point. The
-- you overstate it a little bit, but not much. The question I get -- I mean, I'll
show you why I say that. I mean, over and over, when I'm talking to, as
I'll do, to foreign judges, I get more and more questions from the African
judges, the South American judges, the Asian judges and they will in 2
seconds, and you can see by their eyes lighting up, what do they really
want to know. And if I put the question they really want to know, it's this.
Why in heaven's name (inaudible) asking me in my office, why do people
do what you say? You see? Why?
What's the secret, that's what the woman who is the president
of the court in Ghana who is really trying to do good things in that -- with
the system in Ghana, making it more democratic, protect human rights and
so forth, why do they do it? And I got that same question with some of the
francophone judges. And what I say, I think I have the Constitution.
MR. FELDMAN: Let me just readjust your mic. So the
Constitution has interfered with your perfect speaking.
SPEAKER: Well, they want to hear it on the Constitution.
MR. BREYER: So I say this is a very -- I want them to see the
document. I say, well, look, this is a very, very great document. It took the
ideas of the enlightenment and really froze them and the values haven't
changed very much that are there in the document, democracy, protection
of human rights, degree of equality, a rule of law. I'd say, but you know,
there are a lot of fine documents. This is part of it. And so if you want to
know how has the United States brought this world about, I'll tell you, we
had a civil war, we've had 80 years of legal segregation, we had
slavery. I mean, if I go back to 1834, there is a famous case, Andrew Jackson, when the Supreme Court said the Cherokees own the land in
The Georgians are trying to throw them out to get the gold, the
land belongs to the Cherokees, Andrew Jackson said, John Marshall made
his decision, now let him enforce it. And he sent troops to Northern
Georgia, not to enforce the court order, but to kick out the Cherokees
which they did and they traveled the Trail of Tears. And that trail by the
way passes and you can find a grave of the chief's wife, Chief Ross, who
was a great chief, the grave of his wife is exactly one mile from Little Rock
High School, Central High School in Little Rock, interesting, because I tell
them that story too. I have to tell them a series of stories and I tell them the
story of how, you know, Governor Faubus, which some of us remember,
said, no, never, we're not going to do it, and they had all the white
citizens, counsels, and they were stopping the Little Rock Nine from going
And President Eisenhower reached a different decision which I
think is a great decision, one of his greatest that he decided after taking
advice from people who told him not to do it. I mean, Jimmy Burton said,
if you send troops to Little Rock what you're going to have to do is you're
going to have to reoccupy the South, you're going to have a second
reconstruction. And Herbert Brownell told him, his attorney general, no,
you've got to send them and he did. He sent a thousand paratroopers
and they went to Little Rock and they escorted the children into that high
And a year later, Governor Faubus closed it, but it was too late
and eventually it was reopened. And why? They were the Freedom
Riders, that was Martin Luther King, there was -- we remember that, and it
wasn't just the judges. So my point to them is the answer to your question.
Yes, judges are important, perhaps less than they think, but nonetheless
MR. BREYER: The lawyers are important, but my goodness, we
have 308 million people in this country who are not lawyers, who are not judges, and they are the ones who have to want a country where after a
wrong decision in my opinion, after a wrong decision, Bush versus Gore --
MR. FELDMAN: Yeah.
MR. BREYER: All right?
MR. FELDMAN: Yeah.
MR. BREYER: Fine, fine. People were -- I thought it was wrong
and I thought it was important. And what Harry Reid I heard say, which
was my reaction too, important, wrong, very unpopular among at least
half the country, very unpopular, no guns, no paving stones killing people,
no riots of that kind. And I say this at Stanford with a lot of them say -- they
sort of go, so I say, I know you're thinking too bad there weren't. But
before you think that, go turn on your television set and go look and see
how things go in countries that decide their things through riots in the
And you see, I'm trying to tell her a story and that story is a story
that took us 200 years and it still is ongoing, and it still is something you
have to pass on, and you're going to pass it on to your children and your
grandchildren, and it's not going to just be passed on by the judges. So I
say the judges -- when I told this Russian general this story because that's
one of my favorites and I think it's so important, I said -- he was a
paratroop general and he was sent to the court because that was the time
when they changed the missile directions away from the United States to
some other direction and he was the one who did it and the State
Department said, we want to be nice to this man.
MR. BREYER: And so I told him the story and I said the judges
and the paratroopers must be friends. There's a point to that. The point is
what Eisenhower did there was major and major importance, and so is
what the Freedom Riders did. And if they want that in this country -- in these other countries, you tell them, please don't just talk to the lawyers.
Talk to the lawyers, but please go out and talk to people as much as you
can who are not lawyers, who are not judges, so they will understand that
a rule of law means, well, you supported even though the judges who are
human being are pretty benighted and reached the wrong result, that's
hard for people to understand the importance of that. So that's why --
that's a long answer, but you see where that --
MR. FELDMAN: Yeah, so it -- no, in that answer, at one
moment, the president has to send the army to enforce the judgment, and
then at another moment, you know, just under 50 years later, the culture
does the work in some way. So do you have thoughts on what causes
that transformative process? And I want to ask it specifically because in
Egypt, just in the last few days we've seen a public that brought down a
dictator now trying to bring down the president whom they elected whom
they don't like very much and hasn't done an especially good job, but
nevertheless was elected, and they're using the same technique to bring
down the dictator -- sorry, to bring down the elected president that they
used the last time. And they're looking to the military to do it.
MR. BREYER: I obviously don't have the answer to that. Best
answer, Jane Harman, she said -- she told the group of legislators who
had come, who were on the liberal side, and they told her -- tell me if I get
this wrong -- that they're putting all kinds of things in this constitution we
don't like, which are pretty reactionary, and so forth. And she told them,
from what I read in the papers, "Stay in the room. Don't walk out. Keep
going." You see, that's the most -- that's why I say that to that -- to this
student in Tunisia.
There's no guarantee in this world you get your way. There's
no guarantee you get -- so that's why Sandra O'Connor is going around
the country trying to develop iCivics and trying to make certain that those
12th graders are taught civics just as I was when I was a 12th grader.
And she -- so far in iCivics she said the other day they had 43 million hits.
That's good. That means that people are learning something. And of
course that's what a lot of people in public life believe very, very firmly in
their hearts that's the most we can do. There are not magic answers. We
try to persuade people by telling them what their government is about, by telling the history, by telling them how it works.
MR. FELDMAN: And does this system have to be basically a
just system, or basically a fair system for people to buy into the use of law
to govern them?
MR. BREYER: People wouldn't want an unfair system. I don't
know the -- that's too complicated. I mean, we want fair systems
obviously, obviously. And no system is perfect. Ours isn't perfect. There
are all kinds of flaws in it, but most of the constitutional systems that have
developed in Eastern Europe, which you know, and you know more
about the Middle East, you know how that's going.
MR. FELDMAN: And it's a mess. I mean, we're seeing it now,
we're seeing what a mess things are turning out to be. I mean Tunisia is
an example of constitutional success, and Egypt is a much bigger and
probably much more important example of, at this point, constitutional
MR. BREYER: We took us a while.
MR. FELDMAN: Yeah. Do you think that the rule of law can
ever be a bad thing or that rule by law can be a bad thing, where a
system administers things increasingly effectively using lawyers and using
judges and allocating property rights, but is continuing to put into place a
system that most people consider to be basically unjust? I mean, it's
communist China that I have most specifically in mind when I say that, but
the question could be put more generally too.
MR. BREYER: No, I'm not universally knowledgeable on that.
There -- obviously in our system, as in any legal system in the western world
that we think of as fair, there has to be a certain way of getting what I call
"oil in the joints," and that's why for example prosecutors have discretion as
to who they prosecute. It's why juries might sometimes just refuse to
convict. It's why judges sometimes have some degree of sentencing
flexibility. There are many, many ways that we have built into our system
ways of taking care of a special case. There has to be something like that
because fairness consists both of treating like cases alike and also treating different cases differently. And you can't get rules that work perfectly for
every case. So all systems are rather like that.
But you are interested in systems that are basically unfair like
China, and there my knowledge is too weak. I mean, I know I did hear at
Brookings a very interesting talk by a professor from China who is a
professor of law and on the reformist side. And he's somewhat optimistic
about changes being made that would make it a fairer system.
MR. FELDMAN: Yeah. I want to ask you about how the kind
of culture of respect for the judiciary survives in a world where we don't
just have Bush v. Gore, but many, many close decisions on very
controversial issues. And certainly the last week of the term this year
showed close decisions on controversial questions, you know, in
successive days, on affirmative action, then on the -- that was less
controversial, then on the Voting Rights Act which was highly controversial,
and then Defense of Marriage Act, again very, very close. Do you have a
general view on how the court should try to retain its legitimacy when it's
deciding crucially important issues on which the country is divided, and
doing it by a very close margin?
MR. BREYER: The difficulty is that -- we have 73 cases. This
last year we probably decided a higher percentage than usual, about 60
percent unanimously. We also decided a somewhat higher percentage.
We usually decide about 20 to 25 percent five-four, and this year it was
about 30 percent five-four, but most are unanimous or maybe one dissent
or two. That isn't the impression that the public gets. The reason they don't
is because newspapers want to sell newspapers I think, and unanimity is
boring. And -- or because people are more interested in the subject matter
of the very controversial five-four cases.
MR. FELDMAN: And you --
MR. BREYER: My own subjective reaction is that the court is
trying hard to pull together among people who have quite different beliefs.
And when I say beliefs, I don't mean religious beliefs, I mean beliefs about
how law basically works. And it isn't necessarily political. If I ask you
how do you really think in these close cases that are very visible, people decide things, you'll say they decide politically. You'll say they're junior
league politicians. That's not my experience. It's just not my experience,
and it would take me a long time to persuade you of the contrary because
that's what most people in the public really believe. That's bad for the
court. And the only way to -- we have very little power to overcome that
impression. The best -- when I get into that kind of situation -- my father
didn't give me too much advice, but one was he told me -- before he died,
he said stay on the payroll, which I've always done.
MR. BREYER: And the other thing he said, which I think is true
is, is do your job. You know, do your job as best you can do it. And I
think that is the route that the members of the court try to follow. No one is
perfect, nobody does it perfectly. But the cases are difficult, and I can
usually understand if I'm in the four where the five are coming from, or vice
versa. And it's usually a much closer question than you'd have the
impression from just reading the newspapers or looking at it on television.
So I think we continue to do what we do. We do our job as best we can
do it. And I wish you in a way could be there. Would you be there more
if we were on television? I don't know, that's a tough one. Maybe,
maybe not. That's the only answer I have.
MR. FELDMAN: Yeah.
MR. BREYER: And try to explain to people every chance you
get, every chance you get. Well, I learned from Sandra so much. Try to
explain what we do. Try to explain what the role of the court is. Try to
explain that it's not to tell other people how to run their lives, that's what
democracy is for. It's to enforce the boundaries that this document puts
around what the democratic process can do. And those boundaries are
mostly there to help assure a democratic system, to ensure basic human
rights, to ensure a degree of equality, to ensure a rule of law. So I do
what I can in terms of explaining and that's what Sandra does, and that's
what a lot of us do.
MR. FELDMAN: One case just decided that might help show
the nonpolitical divisions was the Maryland case around the permissibility under the Fourth Amendment of the collection of DNA from people who
were arrested for serious crimes. The lineup wasn't a familiar automatic
political lineup. Do you think that might be an example to use as a
explanatory device for how things don't necessarily follow --
MR. BREYER: Well, it's -- sure, it's a difficult case. The question
is can the police take your DNA, which they do with a swab in your -- they
take something out of your mouth, your saliva or something, when -- if
you're arrested for a crime. Now five of us, including me, thought that
yeah, they can. They use -- they take fingerprints, they take mug shots, they
take your name. And the difference between DNA and fingerprints is that
the DNA is more accurate and less intrusive, all right? So I thought that's
the big argument for the DNA. And the argument of the other side was,
well, they may use DNA to find out all kinds of things that they couldn't find
out about you otherwise and do all kinds of other investigations.
Then the reply on our side, Justice Kennedy wrote the opinion,
he said, there are laws against that and besides they use fingerprints to
find out all kinds of other things too. And so one group is sort of more
concerned about getting the booking and getting that information to get
the right person better. You got to find the right person, so be sure you
don't have -- try to get the -- try to convict the guilty and free the innocent.
And the other side is worried about misuses. And what the Fourth
Amendment says about this to help us is that they can have reasonable
searches and seizures. You can't have unreasonable searches and
So which side is reasonable and which side is unreasonable?
And there are a few, those who will read people's best efforts to explain
why their side of it is the reasonable or unreasonable side of the issue.
Now that's a 41-minute summary of something that we get say 40 or 50
briefs about, which we read, that we think about for a considerable
period of time, that we listen to oral arguments and ask questions, that we
go into conference and talk to each other. It's not true we just sit there and
say our own view. We do say our own views, but we're listening to other
people's views too. And then try writing it up in drafts and writing to sense
and the law clerks who might think they write the opinions, but they don't -- (Laughter)
MR. BREYER: -- what they'll do is they'll do research and they'll
come in with a 40-page document that will tell me what other people
have said about this and why. And if I want to know how often they've
used the DNA in the past or misused it and so forth, I probably can find
out pretty well. That library of ours is fantastic and it can find out things
from all over the world pretty quickly. And what law clerks are really
good at doing is finding out a lot of information that's public and getting it
and putting it in a usable form. So there we are, I'll have that material, I'll
have the different drafts, and I will do my best on the case.
Now the best is not always right, it's just doing your best like
anybody else in the room. That's how the system works and that's the, you
know, 1-minute or 2-minute account in the 12th grade civics text and
unlike many institutions, I say that that 12th grade civics text description is
pretty accurate. What really goes on behind the scenes? Not much.
MR. BREYER: Discussing the things I just said, that's what goes
on beyond the scene. Here we are, that's why they don't like -- the private
life of a judge, I mean, my goodness, really, that's going to be like number
zero on your hit parade.
MR. BREYER: And that's -- you do the job.
MR. FELDMAN: Do you think -- we're close to a moment when
I want to get the audience in for questions, but I just wanted to ask one
more question. As you look around the world, travel around the world,
look at the rule of law, do you think in the broad sense that there is
progress? Do you think we're moving in some positive direction with
respect to development of the rule of law and of rights globally or do you
think we're kind of in a random walk and right now things might look
good and next week they might look less good?MR. BREYER: I tend to be optimistic. I mean, you've started this
really -- I mean, look at the difference even on the docket. When I started
in my present job really 19 years ago, I had done some traveling, we
went around, and I was giving a talk at NYU and I said, it's really
interesting to learn how people do things in other parts of the world and
it's helpful. So he said, give me one example. I shouldn't have said that
before thinking that through.
MR. BREYER: No problem with that question now. You go
look at our docket and you will see maybe 10 percent, maybe 10 cases,
maybe 12 cases out of the 73, maybe 8, a sizeable proportion that
suddenly requires us -- requires us and nobody doubts that it does, requires
us to know something about how law is working in other parts of the
world. A copyright case, you might think, oh no, there we're just looking
at American law. No, we're not. That copyright case affects a $1 trillion
worth of commerce, foreign commerce, and it is going to be answered
properly only if we know what the British government and what the Dutch
government and what a lot of other lawyers who think their governments
are wrong, from those countries think about those issues.
Same thing is true with the question of whether a foreign person
can come to this country who's been tortured abroad by a foreign
government and get damages here, a big question under a statute that
was enacted in 1780 or 1790 to protect us against pirates. Who are
today's pirates? If we can find them and maybe torturers are among them,
maybe the people can get relief in our court, major. And how are people
to protect us in the Unites States against terrorism? Where? That's going
to involve the conflict between basic rights, between basic individual rights
and the needs of security.
Don't we need to know what other countries are doing too and
cannot that help us? Of course it will. And when you look around, you
see whether it's intellectual property, whether it's protection of individuals
who've suffered serious human rights violations such as torture, whether it's
this conflict between security and individual rights, you find a certain
similarity or at least an exchange of views that's really there, that's really helpful, and that when comparing it to 19 years ago does not consist of
my standing up somewhere and saying, oh it was helpful, but which can
be reduced to chapter and verse.
And that's because their country is all over the place, but want
a system of government that's basically democratic, that's basically
protective of human rights, that basically has a rule of law, and that will
work to protect their citizens and also to allow them functioning well -- to
function well as a government. Well, that's what we have in a sense to
put on the table. We were talking about that the other night. We have
that to offer. We don't have the perfect system, but we do have a system
that's worked with its ups and down not too badly. And so when other
countries look around, they say, well, America may not have the best
violent films, or probably has the best violent films --
MR. BREYER: -- but regardless they do have some experience
with something that we want. And that gives us a certain prestige which is
now called soft power, but it means that other people in the world want
something, want to listen to us as long as we're prepared to listen to them
too. And I mean, I just say you started that with this French thing, but my
goodness, it's not just that, it's French Francophone Africa.
MR. FELDMAN: Yeah.
MR. BREYER: It's all over the place and when you see that kind
of interest all over the place, you say thank you, maybe we do have
something to help with and maybe other people can help us and maybe
there is a little progress being made here. So if you want my emotional
reaction, yeah, we're making progress, no sure thing we're making
progress, so we keep going.
MR. FELDMAN: Well, that's an inspirational note on which to
turn to the audience.
(Applause)MR. FELDMAN: We have microphones; if they would come to
the front row that would be great. Congresswoman Harman.
MS. HARMAN: Thank you. Justice Breyer, you had a lot of
experience working in the United State Senate for Ted Kennedy. Most of
your colleagues have not had much legislative experience, I was trying to
think about it, Sandra Day O'Connor did, but she was an elected
legislator and maybe Clarence Thomas worked a bit for senator --
MR. BREYER: And John Stevens.
MS. HARMAN: And John -- well, okay, but of the current
MR. BREYER: Yeah.
MS. HARMAN: -- one of the big things that runs through many
of your controversial -- the controversial decisions is how much deference
to give to Congress. Do you think that legislative experience is helpful to a
judge -- to a justice and the lack of it on the part of so many has
unfortunately led them to do things -- I don't want to characterize it, but do
you think --
MR. BREYER: Well, the problem with part of that --
MS. HARMAN: -- let's make it positive, do you think legislative
experience has helped you as a judge?
MR. BREYER: Yes.
MR. BREYER: And I'll tell you the reason simply is it's surprising,
which I'm sure you know, for most Americans the Congress is a black box.
They do not understand how it works, so they suspect the worst, and the
worst is a lot worse than the worst really is --
(Laughter)MR. BREYER: -- is what they suspect, they don't understand.
And that's why that civics course is important for the legislature too. And
working there for a while -- I loved working there, you know, I really liked
it. Maybe that was the golden age. We all think that was the -- but
people are trying to do the right thing.
MR. SUSSMAN: Justice Breyer, Steve Sussman (phonetic). This
morning the Pew Research released the results of a poll of Americans taken
in the last few days. It showed today 43 of Americans approve of the job
the Supreme Court is doing, down a third from a decade ago. It used to
be over 60 percent. In an unrelated story, there was a comment -- one of
your colleagues during the reading of an opinion last week rolled his eyes
and nodded, and members of Congress are now calling for a code of
conduct for members of the Supreme Court.
MR. FELDMAN: No more facial gestures.
MR. SUSSMAN: So -- but my question is this, if the court too is
a black box, what is your view about letting television cameras come into
the court so that the American public can see what you are doing and
wouldn't that satisfy keeping your colleagues from rolling their eyes?
MR. BREYER: Well, yeah, the -- television is somewhat different.
It's a tough question with regard to television. Why? Because what you
bring it into is the oral argument. The oral argument is -- there are two
things -- the things for it, the obvious thing for, you know, if the public saw
the questions in say a case like the -- I found a fabulously interesting very
difficult case, whether Arkansas could impose term limits on members of
Congress. That is a very tough constitutional issue, and my God, people
were struggling with that. If the public had seen the oral argument, they
would have said these are nine people trying to do their job and I think
that would have been a pretty big plus. Nobody is trying to gesture for
the cameras, nobody is trying -- they're doing their job, okay?
But what we don't know is what happens once they come in the door. I mean, after all, the oral argument is only 5 percent of what
goes on. It's mostly in writing. More importantly, human beings do relate
to others who are human beings. And they see two people arguing there,
there's going to be the good one and the bad one, there's going to be the
good client and the bad client, but our decisions are not made really
particularly in our court for those parties because they affect 309 million
people who are not in that court. And the decision has to be made taking
into account how that rule of law will affect those people the public will
But most of all nobody knows what happens with the sound
bite problem. That's not necessarily what people say, that could
necessarily be how it turns up. I find a tremendous difference in the
coverage, between the coverage by what I'd call the professional corps of
press people who was normally in the court, they have their offices there,
and somebody who comes in who is a reporter that covers the Supreme
Court once every 5 months. Boy, the second, it's almost unrecognizable.
So we don't know the answer on the television. I feel I don't know it.
You have a conservative institution in the small sea sense.
None of us who are trustees for an institution that has worked pretty well
for the country, none of us wants to be the person who helped make the
decision that wrecked it. Believe me, believe me. So I say, you know,
we're out in outer-space in this, but I'm trying to explain to you the two
sides as I see them, so I don't know the answer. In terms of the Pew poll
and so forth, the court is still ahead of the other institutions.
MR. BREYER: Yeah. But it's the same problem with all the
institutions. God, the people who wrote this, you know, they knew
perfectly well that you cannot run a country without a government and you
can't run a government which people have no confidence in. So how do
we do it? And I wish I had a better answer. And the only answer I have
which is the trite one I've given 15 times already which is you go as you
do it and you'll talk to your editorial board and you'll talk to the schools.
And I say the lawyers go on all day, please, please, and we hope that the information that we're getting out and the learning survives
the negative stuff that comes out over that Internet. And in the meantime
that oral argument I will talk to Justice Thomas last, I will talk -- sit tentatively
more and do my best and I have a very good critic over here, my wife,
who tells me you were talking when somebody else was, why did you do
MR. BREYER: That's the world as it is.
MS. PORGES: Good morning. Thank you so much for all
your insight and input. Shelly Porges with Ready for Hillary PAC. What
do you think the country has learned from the Bush v Gore decision, what
has the court learned, what has the country learned, and do you think it
would be possible again to end up in a situation like that?
MR. BREYER: Is it possible? That's the easiest thing. I tended
to think -- though I don't have insight into this, I tended to think that that
election in a way turning on Florida and turning on these very small
number of votes and so forth, the electoral votes is like flipping a coin, it
lands on its side. It can happen, it just doesn't happen very often.
Requires an odd concatenation of circumstances. I wrote at the time that I
thought the court should stay out of it. I thought they should stay out of it. I
thought whatever happens, the thing that I think carries over in terms of my
own view is of course there was a similar situation in the Hayes-Tilden
election, was it 1878?
MR. FELDMAN: Six.
MR. BREYER: 1876, yeah, and in '76, Tilden won the most
votes and Hayes was, I got the most electoral votes and they were
disputed delegations, disputed delegations including a disputed
delegation from Florida, and -- Florida, North Carolina, I can't remember
the third. And they set up a committee that had a Supreme Court justice
on it, Bradley, who was very much respected and the committee that was
supposed to chose which were the right delegations voted, including
Bradley, who was appointed by a Republican write down eight Republican, seven Democrats and they elected Hayes. So years later a
law professor at Yale I think looked into it, Bickel, and he's a very good
professor and he said, you know, it was really done on the merits, that
Bradley really decided on the merits. It wasn't true he was siding this
politically and I wrote that in my opinion and I wrote, but nobody believed
it at the time. So I would hope if that arises again, the Supreme Court
would find a way this time to stay out of it.
SPEAKER: The other night, Noah made the point in
conjunction with discussing the situation with all the changes going on
with this kid who is now in Russia and all that sort of stuff about how if he
had self-published versus going out through the Guardian which is a
London newspaper on the left side or whatever, that there might not be a
protection of journalists in the way that we're getting quite a bit of talkback
about leaks and all that kind of stuff. And I'm just curious, there is so much
change in technology, how does a document that's that old be able to
take care of really issues that didn't and couldn't really exist in free speech
and discussions of free speech or even in discussions of, let's say, insider
trading where we're discussing whether a 2-second advantage knowing
about Michigan satisfaction surveys gets you the time to put, you know,
insider high-speed trades on before everybody else? The technology is
moving so fast that it's impossible in some ways to take free speech or the
Fourth Amendment and be able to really understand how they have to be
rethought in this day and age.
MR. FELDMAN: And this will be the last question.
MR. BREYER: Okay. Well, I'll give you -- I'll do this. I decided
I wasn't going to answer a question anything about Mr. Snowden
because as far as I know, he might be a case in front of us and I have to
be pretty careful about that. I don't want to end up disqualifying myself in
a case. And then I thought a second reason that I better not discuss it is I
don't know that much about it. That doesn't usually stop me, but --
MR. BREYER: -- the -- but I did then think of a question I could
put to you to think about which I don't have the answer to, but it did strike me that this is somewhat what's going on that, one, because I used to --
one of the great questions in law and it's a question that we don't -- it's
such a general question that we don't often think about it. But it's been a
question since law began. It's a question -- the Romans put it, we had to
learn this in law school, quis ipsos custodiet, who will regulate the
regulators? Who will control the controllers?
And we have that problem all the time in the United States, and
we have many, many answers to that question. We have answers that we
control people through elections, all right, but we know that isn't the
whole story. We control people through congressional committees,
having hearings, we control people through inspectors general, we
control people by giving a course of action to go to court to any person
who is adversely affected or aggrieved by an action of an administrative
agency that they believe is unlawful. Now, there are others. We have
many ways of trying to control our controllers.
But almost all of the methods that we use are public, that is
people know by and large what's going on. Now, we have a problem
and the problem is that we do have a real security problem, we do have
a real security problem that requires us to get information. And to get
information Congress wrote some statutes that try to control the information
controllers. And I had a case -- we had a case last November where I
had to read the statute in depth and so when I read these recent articles, I
didn't find too much there that I hadn't already read last November, and
all that was public, but it doesn't tell you exactly how it's working and it
doesn't tell you about the individual cases. So they've set up a court
called the FISA Court, which again is an effort, it's a court, it's a regular
court with regular judges, but what they do isn't public.
And so now suddenly we're facing a problem where we have
systems to control the controllers, where we're seeing the people who
created and implement those systems say they're working pretty well, trust
us, in a world where the trust in public institutions has fallen by 20 percent.
And so a lot of people, particularly the younger generation, say we're not
sure we want to trust you. And then the older generations say, okay, what
do you suggest? What do you suggest here? And I thought because I've
been talking to some of the younger generations, I don't think this is so terrible, they say, hey, what do you suggest then? Why not make some
more -- and is this is right amount being -- and I said, I'm sorry, I'm -- I don't
have it, okay, I can pose that question, can't I. And I can suggest that in
my own mind that's what's underlying a lot of the argument that is going
on with Mr. Snowden and the leaking, the leaking of information that
shows we're spying. The Canard enchaîné I was told on Sunday ran an
article where they put all this on page 3 saying it doesn't deserve page 1
because we've known everybody is spying on everyone since 1945.
MR. BREYER: But now, yeah, yeah, yeah, quite right, shake
your head, is this true? All right. I leave you with that question, I don't
have the answer.
* * * * *
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