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Justice Breyer: ‘Now, I’m Probably More in Dissent’

October 7, 2010 at 12:00 AM EST
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Supreme Court Associate Justice Stephen Breyer talks to Jeffrey Brown about his new book, "Making Our Democracy Work: A Judge's View," the role and responsibilities of the high court, and the shift in dynamics that a new justice can bring.
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JEFFREY BROWN: And finally tonight: the role and responsibilities of the Supreme Court, as explored in a new book, “Making Our Democracy Work.” Its author has a view from the inside. Associate Justice Stephen Breyer has served on the court since he was appointed by President Clinton in 1994. Welcome to you.

STEPHEN BREYER, U.S. Supreme Court Justice: Thank you.

JEFFREY BROWN: Making democracy work — you talk about the court needing to be practical in its use of power, in working with other branches of the government. What do you mean by that?

STEPHEN BREYER: I chose this title, “Making Our Democracy Work,” and the subject of working because this document, which the framers wrote more than 200 years ago, they intended as a document that wouldn’t be a painting in a museum for people to look at.

They intended something that would be effective. And as soon as you take that notion seriously, that this is a recipe for an effective democracy, a democracy that protects human rights and assures a degree of equality, and splits power among many groups, and insists on a rule of law, as soon as you take those points seriously, that they have to be real in the world, that helps not only guide the court; it also helps shape attitudes among people in the country.

JEFFREY BROWN: Well, speaking of attitudes, one of the things that you hit over and over again here is the notion that public acceptance of the court and its rulings shouldn’t be taken for granted.

Now, that’s an unusual idea. These days, we sort of take it for granted. But you’re saying we shouldn’t and we might not.

STEPHEN BREYER: And it’s a remarkable thing. The Pentagon once sent over a Russian general, because he had been in charge of missiles pointed at the United States. He had changed direction. And he — we should be nice to him. And we should explain how the court worked.

And the first thing he wanted to know is, why do people do what the court says? I had a — the chief justice of Ghana, a woman, who’s trying to make their court work: Why do people follow this document?

And that’s a question that Hamilton might have asked that he didn’t, because he didn’t know the answer. And it’s been a long, long struggle.

JEFFREY BROWN: One of the things you argue, you talk about here is, you call for a — to make democracy work better is a restraint on the part of the court.

And we are facing a — we’re in a time where people talk a lot about judicial activism. And you talk about a case like Citizens United, a recent case, where you’re in the minority, but the court overthrew a lot of long — a lot of precedent there, right?

STEPHEN BREYER: I was in the minority. I do sometimes dissent.

(LAUGHTER)

STEPHEN BREYER: And I want to show to people what it’s like to be a member of the court. And the differences among judges are probably less than people think.

JEFFREY BROWN: Really?

STEPHEN BREYER: We decide about 30 percent to 40 percent of our cases unanimously. The 5-4s are about 20 percent to 25 percent. It’s not always the same five and the same four.

And, where there are differences, those differences are drawn less on the basis of what people think, which is politics — that’s what they think — and a lot more on the basis of very basic views about how law relates to the country, about what people in this country are like and supposed to do, and how law affects that.

Now, that’s a jurisprudential kind of consideration. Now, I can’t say that everybody agrees. They don’t. But I want people to understand what the bases for disagreement is. And I think it will come as something of a surprise, unless you believe, on the one hand, that law is driven by computers, which it is not, or you suddenly jump on the other hand to think law is whatever the judge says, and he just decides what he likes, which it isn’t.

JEFFREY BROWN: But some people think that, right?

STEPHEN BREYER: I know. Some people think either of those things. And I want to show through my own eyes that neither of those views is completely right. Neither of them is right. Rather, there are approaches that people take which can be coherent and consistent.

And I want to go back to a period of time before the Constitution, where Gordon Wood in his book, a history book, quotes a Connecticut judge as saying that, in the United States, judges basically follow views of prudence and pragmatism.

And great judges, Holmes, Brandeis, Learned Hand, have tended to follow that kind of approach. And I have tried to explain here what that comes down to. It’s not a bumper sticker. You can put meat on those bones. And that’s what I have tried to do.

JEFFREY BROWN: But I can see in the book and I can see in your passion here this interest in getting people to understand what it is the court does. And what does a justice do? What is the most challenging thing that you do as a justice?

STEPHEN BREYER: What I do every day is decide cases, very concrete cases that are in front of us. And I know there’s always speculation and lots of speculation that, now it’s liberal, now it’s conservative, now it’s this, now it’s that. But that’s not my job. My job…

JEFFREY BROWN: But are you concerned about a sense of — that the court is too politicized?

STEPHEN BREYER: I would like — that’s what you will say, because it’s your job to make that kind of judgment.

I don’t think that. I would prefer that people agreed with me more. So would everyone. I mean, I understand that. People have different views. And, over time — maybe go back five years, I think I was in the majority one year more than — more than anybody. And now I’m probably more in dissent.

All right. It’s a big country. There are 300 million people. And people sometimes have very different basic views. It’s not surprising that in a court that has to be a court to preserve this document for 300 million people, and where they have long tenure, you find people with very different basic views.

And there we are, not quite as different as people think, less political than people think, less, well, it’s left, right, or center than people normally write about. And I want them to have what I would call a somewhat more nuanced view. And, of course, I have to see it through my own eyes.

And that’s all part of the bigger effort. The bigger effort here is to say why, why people in the United States might support an institution, the job of which is to enforce the words of this document when it’s unpopular to do so.

(LAUGHTER)

JEFFREY BROWN: I asked you — I asked you what’s most challenging here, the thing, but — challenging part of your work, but you enjoy this work, don’t you?

STEPHEN BREYER: I do. I do. And I was going to say, you pick your case. You take one of those 5-4 cases that’s closely contested, and what we’re doing there is, we’re really deciding what the boundaries of this document are. We’re like the boundary patrol. Is abortion in or out? Which side, permitted or forbidden?

JEFFREY BROWN: Do you feel the weight of that?

STEPHEN BREYER: Yes. Yes, you do. I mean, my goodness. I can think of a few, the affirmative action cases, Bush vs. Gore, if you like, where, of course, you feel the weight of that. And, of course, the first few years there, I was nervous as a cat, and can I do this, because there’s no place to go after us, really, in many issues.

And the best you can do is the best you can do. And you learn that, and you learn you’re always on duty, and you learn that, over time, you get to understand the document a little more. But it’s always, always, always filled with open questions that you have to think pretty hard about, read, and take in, and use your imaginative powers to understand how they will affect — your decision will affect people in the United States.

JEFFREY BROWN: Let me ask you one more subject, because this is the — we’re in the first week of the new term.

STEPHEN BREYER: Yes.

JEFFREY BROWN: And you have a brand-new justice there, Elena Kagan.

STEPHEN BREYER: Yes.

JEFFREY BROWN: You had another new one just a year ago. There’s been a lot of — basically, an unusual amount of change in a short time in the makeup of the court.

STEPHEN BREYER: Yes.

JEFFREY BROWN: How does a new justice change the court? Or how — I guess that’s a way of asking, how do personalities shape the court, what goes on behind the scenes, what kind of rulings come out?

STEPHEN BREYER: Well, it’s not just personalities. It’s sort of views of law and how law works. And Justice Byron White once said, well, with every new appointment, it’s an entirely new court. And there’s considerable truth to that.

JEFFREY BROWN: Do you feel that?

STEPHEN BREYER: Yes, of course it changes it. Now, how it changes it, you can’t really say too easily too quickly. But you know it does change it.

JEFFREY BROWN: Of course, one thing that’s changed in the last few years is, you have moved up to a more senior position.

STEPHEN BREYER: I have one vote when I’m very junior. And when I’m more senior, I have one vote.

(LAUGHTER)

JEFFREY BROWN: But do you have the potential for — I mean, court-watchers all look at the reshaping here, and they say, well, OK, who is going to be — for example, one question is, might Justice Breyer be the head of the liberal — the liberal champion of this new court?

Do you think in terms like that?

STEPHEN BREYER: No, absolutely not, absolutely not. That’s something that commentators might, but I don’t. My job — and I don’t think others on the court do. The job that we have is to decide the case in front of us as best we can. And that requires a lot of thought and discussion and working out how this Constitution or the statute works.

And, partly, I have wanted to give a little view on how that’s done from my own point of view. It has to be, because I only see — I see things through my own eyes. But I think, when people understand it, they will be less tempted to start talking about the leader of this or the leader of that, or force of this or force of that.

It’s perfectly fine. They can talk about what they want. I will just say that, on the inside of the court, it does not — that’s not really a consideration.

JEFFREY BROWN: All right, Justice Stephen Breyer, thank you for talking to us.

STEPHEN BREYER: Good.