>> Braude: TONIGHT ON "GREATER BOSTON:" HISTORY WAS MADE TODAY, WITH THE SWEARING-IN OF THE FIRST-EVER BLACK WOMAN SUPREME COURT JUSTICE, KETANJI BROWN JACKSON.

SHE WAS SWORN IN BY BOTH THE CHIEF JUSTICE AND HER PREDECESSOR, JUSTICE STEPHEN BREYER, WHO OFFICIALLY RETIRED TODAY.

WE'LL HEAR MUCH MORE FROM A CONVERSATION I HAD HERE WITH JUSTICE BREYER, ON THE COURT-- BOTH PAST AND PRESENT-- A LITTLE LATER IN THE SHOW.

BUT FIRST, TO THE CURRENT COURT, WHICH RELEASED YET ANOTHER CONTROVERSIAL RULING TODAY THAT WILL AFFECT EVERY SINGLE ONE OF US, LIKELY FOR GENERATIONS.

IN A 6-3 DECISION, THE ANTI-MAJORITARIAN MAJORITY SIGNIFICANTLY LIMITED THE GOVERNMENT'S ABILITY TO ADDRESS CLIMATE CHANGE, RULING THAT THE ENVIRONMENTAL PROTECTION AGENCY CANNOT REGULATE CARBON EMISSIONS FROM POWER PLANTS.

INSTEAD, THAT POWER RESTS WITH CONGRESS, SAID CHIEF JUSTICE JOHN ROBERTS, WRITING FOR THE MAJORITY.

BUT, IF THE PAST FEW YEARS OF CAPITOL HILL ACTION ARE ANY INDICATION, I WON'T BE HOLDING MY BREATH-- THOUGH WITH THE DEGRADED QUALITY OF THE AIR, I MAY HAVE TO.

HERE TO DISCUSS THE RULING, AND POSSIBILITY OF ITS REASONING BEING EXTENDED TO FEDERAL REGULATION OF HEALTHCARE, HOUSING DISCRIMINATION, AND MORE, IS BILL McKIBBEN, FOUNDER OF THE ORGANIZATION 350.org, WHICH WORKS TO BUILD A CLIMATE MOVEMENT FOR A FOSSIL-FREE FUTURE, AND OF THIRD ACT, WHICH WORKS TO BRING PEOPLE OVER 60 INTO THAT FIGHT.

HE IS ALSO THE AUTHOR OF DOZENS OF BOOKS, INCLUDING THE GROUNDBREAKING "THE END OF NATURE," PUBLISHED IN 1989, AND HIS LATEST WORK, "THE FLAG, THE CROSS, AND THE STATION WAGON: A GRAYING AMERICAN LOOKS BACK AT HIS SUBURBAN BOYHOOD AND WONDERS WHAT THE HELL HAPPENED."

BILL, THANKS SO MUCH FOR YOUR TIME, I APPRECIATE IT.

>> PLEASURE, JIM.

>> Braude: BILL, YOU WROTE IN YOUR PIECE IN THE NEW YORKER TODAY ABOUT A RALLYING CRY THAT WAS PUT OUT BY NOT YET THEN JUS TIS-- TO BUSINESSMEN 50 YEARS AGO WHAT DID THE MEMO SAY?

>> WELL, THIS FAMOUS POWELL MEMO WAS SORT OF THE BEGINNING OF THE FIGHT BACK AGAINST AMONG OTHER THINGS THE FORMATION.

EPA THE YEAR BEFORE AND THE PASSAGE.

CLEAN AIR ACT AND WHAT HE SAID IS WE'RE GOING TO HAVE TO USE ALL THE WEALTH AT OUR DISPOSAL TO WIN THIS COUNTRY BACK AND THIS WEEK THAT IS WHAT WE HAVE BEEN SEEING.

IT IS WORTH NOTING THAT ALL THE DECISIONS THAT WE'VE SEEN, THE DECISIONS ON ROE, ON GUNS, ON THE CLEAN AIR ACT TARGET THINGS THAT HAPPENED IN THAT BRIEF WINDOW OF TIME 1968 AND 1973 OR SO.

THEY'VE BEEN WAITING A LONG TIME AND PATIENTLY BUILDING THE WHEREWITHAL TO DECIMATE AND DESTROY THOSE DECISIONS AND NOW THEY HAVE DONE SO.

THIS HAS BEEN AN EPIC WEEK IN AMERICAN POLITICAL HISTORY.

>> FIVE DECADES LATER WHAT DOES THIS EPA DECISION MEAN FOR THE COUNTRY.

>> WELL, THIS EPA DECISION MEANS IN THE SHORT RUN THAT IT IS GOING TO BE VERY HARD FOR THE EPA TO DO ANYTHING ABOUT CLIMATE CHANGE.

IT TAKES AWAY MOST OF THEIR AUTHORITY TO REGULATE CARBON.

IN A SLIGHTLY LONGER-TERM IT SEEMS TO BE SETTING UP A SITUATION WHERE THE COURT WILL DENY AGENCIES IN GENERAL THE RIGHT TO DO MUCH REGULATING.

AND FOR THE WORLD, IT, AND THIS MAY BE THE LARGEST CONSEQUENCE T UNDERCUTS ANY ABILITY THAT AMERICA HAS TO LEAD IN THIS FIGHT, THE SADDEST PERSON ON THE PLANET TODAY HAS GOT TO BE JOHN KERRY BECAUSE I DON'T HAVE ANY IDEA HOW OUR INTERNATIONAL CLIMATE ENVOY GOES AND TALKED TO THE CHINESE OR THE INDIANS AFTER THIS.

>> YEAH, I WANT TO GET BACK TO THAT, THE TEN AK ELS OF THIS POTENTIALLY REACHING WELL BEYOND THE CLIMATE.

PARIS CLIMATE, ACCORD EVISCERATED BY THIS.

THE ZERO EMISSION GOALS OF JOE BIDEN, SAME CATEGORY, YEAH?

>> YEAH, THERE IS NO WAY HE CAN MEET THE TARGET THAT HE SET OR IT BECOMES INFINITELY HARDER WITHOUT BEING ABLE TO DO THIS KIND OF COMMON SENSE REGULATION.

>> Braude: YOU KNOW, I WAS THINKING OF YOU TODAY WHEN A LISTENER UNFORTUNATELY SEFNT ME A COPY OF AMY CONEY BARRETT AT HER CONFIRMATION HEARING WHEN SHE WAS ASKED BY I THINK LOUISIANA SENATOR JOHN KENNEDY ABOUT WHAT SHE READ ABOUT THE CLIMATED.

HERE IS WHAT CONEY BARRETT NOW JUSTICE CONEY BARRETT HAD TO SAY.

>> I'M CERTAINLY NOT A SCIENTIST.

>> I'M NOT SAYING YOU ARE.

>> I HAVE READ THINGS ABOUT SCIENCE CLIMATE CHANGE I WOULD NOT SAY THAT I HAVE FIRM VIEWS ON IT.

>> Braude: SHE HAS FIRM VIEWS NOW, LET ME ADD TO THAT.

PART OF WHAT CHIEF JUSTICE ROBERTS SAID, HIS OPINION TODAY, CAPPING CARBON DIOXIDE EMISSIONS A NATIONWIDE TRANSITION AWAY FROM COAL TO GENERATE ELECTRICITY MAY BE A SENSIBLE SOLUTION STO THE CRISIS OF THE DAY I CAN'T EVEN READ ANY MORE.

WHAT WAS YOUR REACTION WHEN YOU READ THOSE WORD, THE CRISIS OF THE DAY, BILL McKIBBEN.

>> AS I WROTE IN THE GLOBE EARLIER TODAY, THIS SUPREME COURT DECISION WILL BE VISIBLE IN THE GEE LOGIC RECORD FOR EONS TO COME.

YOU KNOW, THERE IS NOTHING THAT THIS SUPREME COURT HAS DONE THAT WILL LAST LONGER THAN THIS THESES ARE CRUCIAL FEW YEARS WHEN WE HAVE TO BE TURNING THE CORNER ON HAD FEET ON CLIMATE CHANGE AND THEY JUST MADE IT HARDER.

NOT IMPOSSIBLE, THERE ARE THINGS WE CAN DO BUT MUCH, MUCH HARDER I WILL GET TO POSSIBLE IN A COUPLE OF MINUTES, JUST BY CHANCE WE HAD THE MAYOR OF BOSTON, CLIMB AT REPORTER FROM THE GLOBE ON THE RADIO AND MAYOR WU WHO YOU PRAISED AS AN ENVIRONMENTAL LEADER SAYS WHILE SHE BELIEVES, I DON'T KNOW IF IT WAS FALSE OPTIMISM, I DON'T WANT TO CHARACTERIZES IT, SO I WILL LET YOU, LOCAL AND STATE GOVERNMENTS CAN FILL A DEEPEN PERCENTAGE OF THE HOME, CABLE ABLE SAID THE MARKET WITH TECHNOLOGICAL ADVANCES, THINGS LIKE THAT THEY WEREN'T BEING NAIVE SUGGESTING THAT IT COULD FILL THE WHOLE HOLE CITED BY THE DISARMING OF THE EPA.

ARE THEY ON TO SOMETHING OR IS THAT FAINT HOPE?

>> WELL LOOK, WE HAVE REAL POSSIBILITIES.

I MEAN THAT'S WHAT MAKES THIS SO TRAGIC.

THE PRICE OF RENEWABLE ENERGY HAS PLUMMETED IN THE LAST TEN YEARS.

NOW 90% IS THE CHEAPEST POWER WE HAVE GOT.

SO WE COULD MOVE QUICKLY NOW.

BUT POT WE ARE OF INVESTED INTEREST IS ENORMOUS.

THIS HE HAVE DONE THAT NOW AT THE FEDERAL LEVEL.

SO NOW IN BLUE CITIES AND STATES PEOPLE WILL TRY TO DO WHAT THEY CAN.

BUT IT'S FRACKLY CRAZY TO BE TACKLING GLOBAL WARMING ONE CITY AT A TIME.

WE SHOULD BE WORKING AT THE VERY CLEES AS A NATION TO DO THIS.

>> JUST SAYING ON THAT FOR A SECOND.

YOU WROTE ABOUT 1,000 THINGS BUT ONE OF THE THE THINGS I READ.

DIDN'T YOU SAY, MAYBE IT WAS THE GLOBE, THAT EVEN SOMETHING LIKE MILEAGE ISSUES OR THAT SORT OF THING, THOSE PASS BY A BLUE pSTATE LIKE MASSACHUSETTS ARE SUBJECT TO CHALLENGE WITH THIS COURT AS WELL, NO?

>> THE COURT INDICATED THAT NEXT YEAR IT IS GOING TO TAKE CASES FROM THE SAME REPUBLICAN ATTORNEYS GENERAL IN THE FOSSIL FUEL STATES, CHALLENGING THEM FROM ONE STATE TO SET AUTOMOBILE STANDARD EMISSIONS.

AND DON'T EVEN TRY TO GET AT THE MOJIC-- LOGIC OF WHAT WE ARE SENDING TO THE STATES.

ST ALL JUST, THESE ARE THE OUTCOMES THAT THEY WANT.

AND THE YOU GOT TO SAY, BIG OIL AND THE KOCH BROTHERS GOT WHAT THEY PAID FOR OVER 30 YEARS.

>> I WANT TO RETURN TO SOMETHING YOU SAID WHICH CONCERNS ME AS MUCH AS SEBLES, THE POTENTIAL FOR THIS TO BE USED MUCH MORE BROADLY TO CHALLENGE THE SO CALLED ADMINISTRATIVE STATE AS CRITICS CALL T OF A REGULATORY AUTHORITY, A WHOLE HOST OF FEDERAL AGENCIES.

MY TAKE ON THIS, IS WITH A CLEAN POWER PLANT NOT EVEN IN PLACE RIGHT NOW, A TYPICAL SUPREME COURT WOULD SAY THIS CASE IS NOT READY FOR US.

IT'S NOT RIGHT, COME BACK US TO WHEN THE TIME IS RIGHT AND THE REASON THEY TOOK IT ANYWAY IS CUZ THEY WANTED TO MAKE THIS KIND OF DID HE CLARATION IN THE EPA CASE, PLANT THEIR FLAG AND THEN COME BACK AND DO FAR MORE DAMAGE TO REGULATORY AUTHORITY ACROSS-THE-BOARD.

>> WELL, AND YOU SAID IT IN YOUR INTRODUCTION QUITED CORRECTLY, THEY ARE SAYING, AS IF BUTTER WOULDN'T MELT IN THEIR MOUTH, THAT WHAT THEY WANT IS FOR CONGRESS TO BE SUPPLYING REGULATIONS THAT ANYBODY WHO HAS LOOKED AT OUR POLITICAL SYSTEM FOR THE LAST 40 YEARS KNOWS THAT THE IDEA THAT CONGRESS IS GOING TO BE WRITING EXPLICIT REGULATIONS ABOUT HOW MUCH METHANE SHOULD-- I MEAN THAT'S JUST FANTASY LAND.

THAT IS WHY WE HAVE THINGS LIKE THE EPAS WITH EXPERTS GOOD AT THIS STUFF AND WHY WE GIVE THEM THE AUTHORITY THAT THEY NEED.

>> AND FOR THE PEOPLE WHO DON'T FOLLOW THE REGULATORY WORLD AND FRANKLY I DON'T EITHER, IT'S EVERYTHING FROM PUBLIC HEALTH TO, I MEAN EARLIER THIS YEAR THEY STRUCK DOWN THE EVICTION MORATORIUM SAYING THE CCDC DIDN'T HAVE THE REGULATORY POWER THERE THE QUALITY OF WATER, THE QUALITY OF FOOD.

OBAMACARE REGULATIONS.

VIRTUALLY EVERY ASPECT OF OUR LIFE.

>> THIS IS JUST THE BILLIONAIRES LEAVE ME ALONE CAUCUS.

IT IS TRIUMPHING AT THE MOMENT, OKAY.

AND IT IS INCED BREE POWERFUL.

BUT AND HERE'S THE THING THAT I THINK IS IMPORTANT TO SAY.

THEY HAVE WON THESE FIGHTS BUT THEY'VE DONE IT WITH TINY MINORITIES OF AMERICANS BEHIND THEM.

THESE ARE UGELY ANTI-MAJORITARIAN RULINGS, -9D 0% OF AMERICANS WANT SOME COMMON SENSE GUN CONTROL.

70, 65 OR 70 WANT ROE UPHELD.

70% WANT ACTION ON CLIMATE.

THEY HAVE OVERREACHED.

THEY HAVE WON FOR THE MOMENT BUT HAVE OPENED THEMSELVES UP TO A BACKLASH LIKE WE HAVE NEVER SEEN BEFORE IF THOSE OF US WHO WANT PROGRESS IN THIS COUNTRY ARE ABLE TO SEIZE THIS MOMENT.

THIS SHOULD TURN WHAT LOOKED LIKE IT WAS GOING TO BE A ROUT FOR THE REPUBLICANS IN THE FALL ELECTIONS, THIS SHOULD, IF WE TAKE THE FURRY THAT WE ARE FEELING NOW AND CHANNEL IT, THERE IS A POSSIBILITY OF A REALLY INTERESTING POLITICAL OUTCOME GOING FORWARD.

>> Braude: CAN I APPEAL TO YOUR HISTORICAL KNOWLEDGE AGAIN AS I DID AT THE BEGINNING HERE.

YOU KNOW, THERE WAS A SIMILAR SITUATION, YOU AND I BOTH AGREED IT IS LAUGHABLE TO SUGGEST DISIS FUNCTIONAL CONGRESS IS GOING TO FIX ANY OF THIS.

I MAY GET THE YEARS WRONG, 2 THOUSAND WHEN THE SUPREME COURT SAID THE FDA DIDN'T HAVE THE POWER TO REGULATION-- REGULATED TOBACCO AND A DECADE LATER, GIVE OR TAKE A YEAR, CONGRESS ACTUALLY DID, TOBACCO IS ABOUT AS HARD A NUT TO CRACK IN TERMS OF STANDING UP TO BIG BUSINESS.

WHY WERE THEY ABLE TO DO IT THEN, DO YOU RECALL?

>> WELL, I MEAN, IT WAS BECAUSE THEY MOBILIZED HUNDREDS OF MILLIONS OF AMERICANS ON THE RIGHT SIDE.

THEY USED THE COURT SYSTEM, IN THAT CASE, SUCCESSFULLY, AND EVENTUALLY THEY WERE ABLE TO SUM MONDAY THAT POLITICAL AUTHORITY.

WE CAN DO IT AGAIN, ALTHOUGH IT MUST BE SAID BIG OIL IS STRONGER THAN BIG TOBACCO EVER WAS.

WE CAN DO IT AGAIN BUT IT'S GOING TO TAKE ORGANIZING.

THE REAL THING TO REMEMBER HERE IS WHY WE HAD THE CLEAN AIR ACT IN THE FIRST PLACE.

BECAUSE IN 1970, 20 MILLION AMERICANS, 10 PERCENT OF THE THEN POPULATION WENT INTO THE STREETS FOR THE FIRST EARTH DAY, THAT WAS THE BIGGEST PROTEST IN AMERICAN HISTORY.

IF WE DO THAT AGAIN, IF WE MUSTER THAT KIND OF POLITICAL INTENSITY, THEN WE HAVE A CHANCE.

BUT OTHERWISE, OTHERWISE, THIS SLOW DRIFT TOWARDS THE KIND OF BUREAUCRATIC FASCISM IS GOING TO CONTINUE AND ST THE MOST DEPRESSING WEEK OF MY LIFE IN THAT REGARD.

>> Braude: I WANT TO SPEND THE LAST MINUTE TALKING ABOUT THE TARGETS OF THOSE MOBILIZATIONS SHOULD BE.

BECAUSE NEAR THE END OF YOUR NEW YORKER PIECE YOU WRITE BUT BEYOND, AND YOU MEANT BEYOND A NARROW BUILD BACK BETTER WHICH I, TARGETS THE EXACT POINT OF-- WHY MARCH ON THE CAPITOL OF THE WHITE HOUSE, THE SUPREME COURT WON'T LET ELECTIVE LEADERS ACT EVEN IF THEY WANT TO.

SO WHAT IS THE TARGET IN THIS ENVIRONMENT.

>> TWO TARGETS.

ONE, WE HAVE GOT TO GO AFTER WALL STREET TO THE BIG BANKS, FINANCIAL INSTITUTIONS THAT HAVE DONE THIS JOB, AND THAT HAVE THE POSSIBILITY OF EXERCISING POWER, BUT TWO WE DO HAVE TO GET ENGAGED IN THIS POLITICAL FIGHT.

WE HAVE TO ELECT PEOPLE WHO WILL DROP THE FILIBUSTER AND-- ONCE WE ELECT THEM, THEN WE HAVE TO NOT WALK AWAY BUT GO PRESSURE THEM.

REMEMBER THOSE SUN PRICE-- WHO SAT DOWN IN NANCY PELOSI'S OFFICE AND WOULD NOT LEAVE, THAT IS HOW WE DEAL WITH EVEN THE PEOPLE WE ELECT BECAUSE WE ARE SO FAR BEHIND THE EIGHT BALL NOW THAT IT IS GOING TO TAKE REAL WORK, REAL WORK OVER YEARS.

>> WHEN YOU UTTER THE WORDS WE'VE GOT TO PUT PRESSURE ON WALL STREET, DO YOU HAVE TROUBLE EVEN HAVING THOSE COME OUT AS THE LAST HOPE, AT LEAST NOW FOR FIXING THIS NIGHTMARE?

>> I ACTUALLY THINK WE CAN DO, I THINK WE CAN PUSH WALL STREET PRETTY HARD.

YOU KNOW, OUR POLITICAL SYSTEM GIVES ENORMOUS POWER TO RED STATES.

WYOMING HAS AS MANY SENATORS AS CALIFORNIA BUT ALL THE MONEY ENDED UP IN THE BLUE STATES.

65% OF THE GDP IS IN COUNTIES THAT VOTED FOR BIDEN.

HE CAN STILL REACH THAT MONEY, THOSE ARE PLACES WE CAN FIGHT MORE EASILY THAN MONTANA AND NORTH DA COATEDA.

>> Braude: ONE OF THE FEW REASONS FOR HOPE THAT I HAVE IS THAT YOU ARE STILL THERE, BILL McKIBBEN THANKS FOR YOUR TIME, I REALLY APPRECIATED IT IN EACH OF THE SUPREME COURT PAST SEVERAL DAYS, WE'VE HEARD POWERFUL DISSENTS FROM THE THREE LIBERAL JUSTICES.

AMONG THEM: JUSTICE STEPHEN BREYER, WHO, AS WE MENTIONED EARLIER, OFFICIALLY RETIRED TODAY.

OVER HIS NEARLY THREE DECADES ON THE COURT, JUSTICE BREYER HAS MADE A NAME FOR HIMSELF, NOT ONLY FOR HIS DISSENTS, BUT ALSO FOR HIS EFFORTS TO BUILD CONSENSUS-- AN IDEA THAT FEELS ALL BUT IMPOSSIBLE THESE DAYS.

AS A RECENT POLL SHOWS, JUST A QUARTER OF THE COUNTRY HAS A GREAT DEAL OF CONFIDENCE IN THE SUPREME COURT, THE LOWEST NUMBERS EVER.

AND THAT FALLING CONFIDENCE IS SOMETHING THAT'S LONG CONCERNED BREYER, AS HE TOUCHED ON WHEN HE JOINED ME BACK IN 2015.

WE DISCUSSED A VARIETY OF TOPICS, FROM THE LIMITS OF THE SECOND AMENDMENT, TO MY PERSONAL OBSESSION, CAMERAS IN THE COURTROOM; TERM LIMITS, A DISCUSSION CLEARLY MORE RELEVANT NOW THAN EVER; AND HIS THEN-NEWLY RELEASED BOOK, "THE COURT AND THE WORLD: AMERICAN LAW AND THE NEW GLOBAL REALITIES."

JUSTICE BREYER JOINS ME NOW.

THANK YOU FOR BEING HERE.

>> THANK YOU.

>> Braude: WHEN I PICKED UP THE BOOK I THOUGHT IT WAS GOING TO BE DEEP, AND IT IS EYE-OPENING AND TERRIFIC.

DECISIONS MY APOLOGIES IN ADVANCE.

THE THESIS IS IN THE AIR OF GLOBALIZATION AND THE SHRINKING WORLD, THE COURT HAS TO LOOK BEYOND OUR BORDERS.

HAS TO LOOK TI REST OF THE WORLD, LAW AROUND THE WORLD AND EXPERIENCES?

AM I RIGHT?

>> YES.

>> Braude: GIVE US A REAL-WORLD EXAMPLE FROM NATIONAL SECURITY, DOMESTIC LAW, ENVIRONMENTAL-- GIVE US AN EXAMPLE HOW THAT WORKS?

>> THINK OF DOLLY ORTEGA.

SHE WAS FROM PARAGUAY AND CAME TO NEW YORK IN THE MID-'70s, AND SHE DISCOVERS THE MAN WHO TORTURED HER BROTHER TO DEATH ALSO FROM PARAGUAY.

AND FOUND AN OLD LAW IN ORDER TO PASSED IN 17 90S IN ORDER TO HELP VICTIMS OF PIRATES.

SHE USES THE LAW AND BRINGS THE LAWSUIT, AND SHE WINS.

SHE GOES BACK TO PARAGUAY AND SAYS, "I WANTED TO LOOK THAT MAN IN THE FACE, AND I CAME BACK WITH SO MUCH MORE."

WELL, AFTER HER LAWSUIT, LOTS OF OTHER PEOPLE BROUGHT SIMILAR LAWSUITS, AND NOW WE HAVE TO BEGIN TO INTERPRET THE STATUTE WHICH SAYS AN ALIEN CAN BRING A TORT SUIT FOR A VIOLATION OF THE LAW OF NATIONS.

THAT IS THE KIND OF INTERNATIONAL LAW.

BUT WHO, HOW, WHAT?

WHO ARE TODAY'S PIRATES?

WHAT DO WE DO IF SOUTH AFRICA, AS IT DID, SAY WE DON'T WANT AMERICAN JUDGES GETTING INVOLVED IN OUR PROBLEMS.

WE HAVE TRUTH AND RECONCILIATION COMMITTEES.

HOW DO WE, IN FACT, INTERPRET THAT STATUTE?

YOU MUST LOOK ABROAD TO HELP ANSWER THAT QUESTION.

>> Braude: AND EVEN YOUR COLLEAGUES WHO FIND THE CONCEPT RELATIVELY ABHORRENT WOULD AGREE THAT YOU HAVE NO CHOICE?

>> THEY WOULD LOOK TO WHAT WAS GOING TO HAPPEN ABROAD.

BUT WHEN YOU LOOK, >> Braude: IS IT TO INFORM FOR YOU TO CONSIDER OR IN SOME CASES TO FAIRLY DETERMINE IS IT NOT?

>> IN SOME CASES IT IS.

SUPPOSE THERE IS A TREATY ABOUT DOMESTIC RELATIONS ABOUT ABDUCTING CHILDREN.

THERE ARE LOTS OF OTHERS.

>> Braude: LET ME TALK ABOUT WHERE I THINK IS CRITICAL.

I WANT TO READ A LITTLE BIT FROM YOUR DISSENT IN THAT THE FINAL CASE OF THE LAST TERM, LETHAL INJECTION CASE OUT OF OKLAHOMA.

"I NOTE THAT MANY NATIONS, 95 OF THE 193 MEMBERS OF THE U.N. WHO HAVE ABOLISHED THE DEATH AND 44A BOLLISHED IT IN PRACTICE, ONLY 22 CARRIED OUT AN EXECUTION.

80% OF ALL KNOWN EXECUTIONS TOOK PLACE IN IRAN, IRAQ AND SAUDI ARABIA."

BUT YOU ARE NOT ARGUING THERE THAT THE REASON WHY THE DEATH PENALTY VIOLATES THE CRUEL AND UNUSUAL PUNISHMENT THE 8th AMENDMENT IS BECAUSE WE ARE AN OUTLIER.

THAT IS UP WITH FACTOR, CORRECT?

>> CORRECT.

>> Braude: WHAT IS THE REST OF YOUR ARGUMENT?

>> I SAID, FIRST OF ALL, WRONG PERSON SOMETIMES.

SECOND, VERY ARBITRARY, LIKE BEING HIT BY LIGHTNING.

PEOPLE WHO SHOULD PERHAPS DON'T AND THE PEOPLE WHO DON'T, DO.

I MEAN, THIRD, THAT THERE IS IN FACT 18 YEARS ON AVERAGE, 18 YEARS BETWEEN THE TIME SUCH A SENTENCE IS PRONOUNCED AND THE TIME IT'S CARRIED OUT.

AND VERY FEW EXECUTIONS REALLY TAKE PLACE.

PUT THOSE ALTOGETHER.

A HANDFUL OF COUNTIES HAVE IT.

THE WAY IT'S ADMINISTERED IT'S SUFFICIENTLY ARBITRARY, CRUEL, UNUSUAL, NOW.

WE SHOULD RECONSIDER THE MATTER.

>> Braude: PART OF THE UNUSUAL IS WHAT I READ, IS IT NOT?

>> PART OF IT.

BUT IT IS AMBIGUOUS.

DID THE FOUNDERS WHEN THEY WROTE THE RELEVANT CLAUSE FORBIDDING CRUEL AND UNUSUAL PUNISHMENT, DID THEY MEAN UNUSUAL IN THE UNITED STATES?

OR DID THEY MEAN UNUSUAL IN THE WORLD?

>> Braude: DO WE HAVE ANY IDEA?

>> NO, I DON'T THINK WE DO.

>> Braude: THE DEATH PENALTY IN A COURT THAT I THINK YOU MAY NOT LIKE THIS CHARACTERIZATION BUT MOST WOULD SAY CONSERVATIVE-LEANING SUPREME COURT AND THIS COURT HAS CUT BACK ON THE DEATH PENALTY WHEN IT KOSMS TO MENTAL CAPACITY, JUVENILE, THAT SORT OF THING.

ARE WE ON A TRACK TO END UP WHERE YOUR DISSENT WAS?

>> WELL, IT MIGHT OR MIGHT NOT TURNOUT TO BE WISHFUL THINKING.

I SAID WE SHOULD RECONSIDER THE MATTER AND WE'LL SEE WHAT HAPPENS.

>> Braude: TENURE.

21 YEARS?

>> YES.

>> Braude: IS THAT ENOUGH?

>> PERHAPS.

I DON'T KNOW.

WHEN WILL I RETIRE?

I SUPPOSE I WILL FIND OUT FROM MY INNER VOICE AND WE'LL SEE.

>> Braude: WHAT DO YOU THINK ABOUT LIFETIME TENURE?

YOU'VE SERVED THROUGH THE TERMS OF FIVE PRESIDENTIAL TERMS.

THEORETICALLY FIVE PRESIDENT, SOME OF YOUR COLLEAGUES EVEN LONGER.

IS THERE NOT SOMETHING WRONG WITH THAT PICTURE IN YOUR MIND?

>> I THINK WERE IT UP TO ME, I WOULD SAY THERE SHOULD BE A LONG TENURE.

WHETHER IT IS A TERM OF YEARS OR NOT, MAYBE IT WOULD BE BETTER TO HAVE A TERM OF YEARS.

BUT IT MUST BE LONG.

BECAUSE YOU DO NOT WANT A PERSON IN THAT JOB THINKING ABOUT HIS NEXT JOB.

THE REASON I TEND TO NOT GET DEEPLY INVOLVED IT WOULD REQUIRE IN ALL LIKEIHOOD, A CONSTITUTIONAL AMENDMENT AND OPENING UP THE CONSTITUTION TO AMENDMENTS IS NOT SOMETHING THAT I THINK IS GOING TO HAPPEN OR SHOULD HAPPEN.

>> Braude: AND SPEAKING OF THE CONSTITUTION, THE SECOND AMENDMENT WAS THE BASIS I BELIEVE OF AN IMPORTANT CASE IN 2008 THAT THE D.C.

HANDGUN CASE.

AS A LAY PERSON, WHILE MUCH OF AMERICA IS SAYING WE NEED MORE GUN CONTROL THE WAY I READ THAT DECISION IS THAT ARGUMENT CAN BE THE BASIS FOR ELIMINATING ALL GUN CONTROL IN THE COUNTRY.

AM I OFF BASE?

>> THERE IS A GREAT UNDECIDED QUESTION.

I WAS AGAINST THE MAJORITY.

THE MAJORITY READ THE SECOND AMENDMENT AS SAYING IT GIVES A RIGHT TO PEOPLE TO KEEP HANDGUNS IF THEY ARE QUALIFIED ET CETERA AND THE REASON I PUT IN QUALIFIED ET CETERA IS THEY SEE THAT YOU MAKEUP YOUR OPEN MIND TO SAY THAT REASONABLE REGULATION IS PERMITTED.

CERTAINLY 47 STATES THAT HAVE CONSTITUTIONS WITH PROVISIONS SIMILAR TO THE SECOND AMENDMENT, HAVE ALLOWED REASONABLE REGULATION AND I THINK MAYBE THERE'S ONLY ONE OR TWO EXCEPTIONS THEY HAVE APPROVED THE REGULATIONS THAT THEIR LEGISLATURES VOTED.

THEREFORE THE QUESTION REMAINS; PRECISELY WHAT KIND OF REGULATION WILL THE SECOND AMENDMENT PERMIT?

AND I HAVE USED THE WORD REASONABLE.

BUT WE FIND OUT CASE BY CASE.

IT HAS NOT YET SHUTOFF REGULATION.

>> Braude: HOW IS YOUR JOB SATISFACTION?

IN SOME WAYS, I SAY, AS A NON-SUPREME COURT ASSOCIATE JUSTICE, "HOW TERRIFIC TO BE IN THE MIDDLE OF HISTORY FOR A QUARTER CENTURY OF YOUR LIFE."

AND THEN I SAY TO MYSELF, HOW HORRIBLE TO BE CONFINED TO NOT SAY WHAT YOU THINK ABOUT THINGS THAT IT'S CLEAR ALL NINE OF YOU CARE DEEPLY ABOUT EXCEPT WITHIN THE CONFINES BEFORE YOU.

IS THAT NOT FRUSTRATING FOR YOU?

>> NO.

THE EXCEPTION FOLLOWS THE RULING.

>> Braude: MEANING WHAT.

>> MEANING I HAVE A LOT TO DO PEOPLE TAKE THEIR JOBS VERY SERIOUSLY ON THE COURT.

DAVID SAID YOU ARE ALWAYS ON DUTY.

AND THE REASON YOU ARE ALWAYS ON DUTY IS BECAUSE THERE IS ALWAYS IN FRONT OF YOU A STRING OF CASES RAISING LEGAL ISSUES WHERE GOOD JUDGES HAVE COME TO DIFFERENT CONCLUSIONS ON THE SAME QUESTION, TEXT OF A STATUTE OR TEXT OF A CONSTITUTION.

NOW THAT REQUIRES THINKING, CONSIDERATION, UNDERSTANDING OF HOW IT WILL AFFECT ORDINARY AMERICANS, PUTTING THAT TOGETHER AND DOING IT QUITE A LOT OF DAYS DURING THE YEAR, IS A VERY SATISFACTORY THING TO DO.

BUT YOU CANNOT RELAX.

YOU HAVE TO BE SERIOUS ABOUT IT.

>> Braude: YOU DO NOT HAVE BLOOD PRESSURE PROBLEMS?

AS A HUMAN BEING YOU ARE FINE WITH THAT?

>> YES.

I AM FINE WITH THAT.

>> Braude: TOPIC THAT GREAT SUPREME COURT OBSERVERS STEPHEN COLBERT RAISED WITH YOU IS SOMETHING WITH WHICH I AM OBSESSED CAMERAS IN THE COURTROOM.

I WANT TO READ BACK TO YOU WHAT YOU SAID WHICH SURPRISED ME.

WILL THEY UNDERSTAND THE WHOLE STORY MEANING THE PUBLIC?

WILL THEY YOU HAD WHAT WE ARE DOING?

WILL THERE BE DISTORTION?

ISN'T SEEING WHAT IS HAPPENING THE ULTIMATE IN ANTI-DISTORTION AS OPPOSED TO ALLOWING IT TO BE FILTERED?

TO THE LIKES OF ME STRKS ALMOST CONDESCENDING, IT'S ALMOST LIKE REAL PEOPLE CAN'T UNDERSTAND WHAT THE NINE OF US AND THE LITIGANTS DO.

IS THAT ALMOST WHAT YOU ARE SAYING?

>> NO, I THINK IN CONTEXT QUESTION WAS I WAS TRYING TO GET THE POINT ACROSS THAT 95% OF THE WAY WE DECIDE IS IN WRITING.

AND THAT ORAL ARGUMENT IS JUST A SMALL PART OF IT.

YOU CAN SAY WILL THERE BE DISTORTION?

MAYBE NOT.

BUT HE HELD UP A BOOK A COPY OF THIS BOOK AND SAID, IF YOU WERE ON TELEVISION, YOU WOULD NOT HAVE TO COME HERE TO PROMOTE YOUR BOOK.

YOU COULD HOLD IT UP.

AND I SAID, EXACTLY.

EXACTLY.

AND I HEARD ONE PERSON SAY-- AND I DON'T KNOW IF IT'S TRUE OR NOT, BUT A PERSON WHO WAS CLOSE TO A PRESIDENT SAID, IF THE JUDGES WERE ON TELEVISION, I WOULD HAVE TO RECOMMEND THAT A PRESIDENT APPOINT SOMEONE WHO IS GOOD ON TELEVISION.

AND NOW, IS THERE TRUTH TO THAT OR ISN'T THERE?

I DON'T KNOW.

AND IS THERE TRUTH?

PEOPLE HAVE TOLD ME THIS.

WAIT UNTIL YOU SEE THE FIRST TIME A JOURNALIST WHO IS NOT NECESSARILY SO RESPONSIBLE.

I DON'T KNOW IF THERE ARE ANY SUCH PEOPLE.

BUT SUPPOSE YOU ARE TOTALLY DISTORTED WILL THAT AFFECT THE WAY YOU DECIDE THE NEXT CASE?

AND WE ARE CONSERVATIVE IN THAT RESPECT.

WE WORRY ABOUT IT.

THIS INSTITUTION HAS SERVED THE COUNTRY WELL.

SO ALL YOU'RE SEEING IS NOT A BUNCH OF LOGICAL ARGUMENTS.

ALL YOU ARE SEEING THE OTHER WAY IS I'M NERVOUS ABOUT IT.

I DON'T KNOW WHAT THE CHANGES WOULD BE.

I DON'T WANT TO BE THE ONE WHO IS RESPONSIBLE FOR THE COURT DOING WORSE.

>> Braude: CAN I HAVE ONE LAST CRACK?

EVERY STATE COURTROOM IN THE COUNTRY AS A CAMERA IN THE COURTROOM.

WHEN DZHOKHAR TSARNAEV WAS PROSECUTED, I COULD NOT SEE THAT.

AND WHITEY BULGER.

I COULD NOT SEE THAT.

AND THAT IS MORE DIFFICULT.

>> I KNOW IT IS.

DO YOU WANT TO SEE?

DO YOU WANT THE NEIGHBORS TO SEE?

THE JUROR?

DO YOU WANT THE NEIGHBORS TO SEE THE CASE?

EARL WARREN, THE FORMER CHIEF JUSTICE OF THE UNITED STATES SAID A CRIMINAL TRIAL IS NOT AN ENTERTAINMENT.

NOW, I THINK THE REALITY IS I'M TORN.

AND I'M TORN IT'S NOT I DO NOT LOSE SLEEP BUT NONETHELESS.

LOOK IF YOU COULD SEE ON TELEVISION THE ARGUMENTS PUT FORWARD IN OUR COURT IN ORAL ARGUMENT ON A CASE LIKE DOES THE CONSTITUTION PERMIT THE STATE OF ARKANSAS TO LIMIT THE TERMS OF CONGRESSMAN TO TWO OR TO THREE?

IT WOULD BE TERRIFIC LEARNING EXPERIENCE.

>> Braude: I DON'T HAVE TO WATCH.

WHAT DID YOU SAY TO ME ABOUT YOUR COFFEE WHEN YOU CAME OUT HERE >> I SAID THERE'S COFFEE IN THE CUP.

>> Braude: PIGEON IN A CROSSWALK.

WRITTEN BY THE PRODUCER OF ANDERSON COOPER, CHET CURTIS' PRODUCER AND HE INTERVIEWED YOU.

THERE IS AN ESSAY ABOUT THE INTERVIEW HERE IS CHET: HELL OF A GUY-- MEANING YOU.

BRILLIANT, ONE OF THE MOST INTERESTING PEOPLE I'VE INTERVIEWED PAUSING AS IF HE HAD SOMETHING ELSE TO ADD BUT I SAID, NERVOUSLY AND CHET SAYS CAN YOU BELIEVE HE GAVE US INSTANT COFFEE.

IS THAT HOW YOU PLEAD?

GUILTY?

>> I GUESS SO.

I DON'T DON'T NORMALLY, BECAUSE THIS ISN'T INSTANT COFFEE, >> Braude: WE DON'T DO THAT HERE.

JUSTICE, YOUR BOOK IS FABULOUS.

>> Braude: THE BOOK IS THE COURT AND THE WORLD, AMERICAN LAW AND ITS LOCAL REALITY.

THAT AS FOR BREYER'S LEGACY HERE IS WHAT HE TOMED CHRIS WALLACE, THIS IS HOW HE WOULD LIKE TO BE REMEMBERED.

>> THE BEST THING THEY COULD SAY, I THOUGHT I LIKED VERY MUCH IS IT HAS AN APPEAL TO ME WAS WITH THURGOOD MARSHALL SAID, HE SAID WHAT DO YOU WANT ON YOUR TOMBSTONE, AND HE SAID HE DID HIS BEST.

THAT IS IT.

>> Braude: CERTAINLY DID.

THAT IS IT FOR TONIGHT.

IF YOU MISSED TODAY'S GBH COMMUNITY CONVERSATION ABOUT THE SUPREME COURT ABORTION RULING HOSTED BY PARIS ALSZSTON, CALLIE CROSSLEY, MARJORIE EAGAN YOU CAN FIND IT ONLINE COMMUNITY CONVERSATION ABOUT THE SUPREME COURT ABORTION RULING, HOSTED BY PARIS ALSTON, CALLIE CROSSLEY, AND MARGERY EAGAN, AND YOU CAN FIND IT ONLINE AT YouTube.com/GBHNews.

WE'LL BE BACK NEXT WEEK.

THANKS FOR WATCHING.

AND DON'T FORGET UKRAINE.

S Captioned by Media Access Group at WGBH access.wgbh.org