BONUS: SCOTUS Justice Stephen Breyer on Ari Melber’s "Summit Series"

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1:13Stepping down from the Supreme Court bench and his new book is reading the Constitution. Why I chose pragmatism, not textualism out now. Welcome. Thank you very much. I have a question about rules for you. Talk about that big decision overturning row, Dobbs. Where were you when you heard that a draft opinion leaked of it? I don't know where I was. I can't remember where I was. What did you think? But that's what I can remember. Yeah. I thought this was pretty unfortunate. Yeah. Very, very unusual to have something leak. Very, very unusual. Is it fair to say that at this moment, you, a member of that court, don't know who leaked it?

1:53Yeah, that's correct. And the chief justice took this seriously. They did a process. But as you know, that didn't resolve it. Does it concern you that it was leaked? Do you think there was a goal or a motive from within the court? And should we expect more leaks or not of draft opinions? Because unlike you and I were speaking before we sat down, unlike every other part of government in Washington, what everyone thinks of the court, it generally has not had that problem. And a lot of judges are concerned about that. So I give you the floor on all of that. I would be concerned, but it's not the first time.

2:27Interestingly enough, I read at least one book, if I remember, which said that Dred Scott, which I think would be viewed among a group of students of the subject as one of the worst, if not the very worst, decision reached by the court. There is some view that that was leaked or that somebody told President Buchanan before it was released. That's possible. That's possible. It doesn't happen often. When it's happened, it hasn't been desirable. And the court is pretty good, not perfect, obviously, but pretty good at not releasing things privately and not leaking things. Obviously not perfect. Yeah.

3:12But there's a concern or a view out there that maybe it came from within the court to distort the process or to lock in a vote. Do you have any view of that? Well, I can't because I don't know. You see, I really don't know. And I hesitate to speculate on something as serious as that. And whether it'll continue to happen? We have no idea. We think not. I mean, we, you and I, you've worked at the court. You've seen it's a pretty closed—because people might change their minds, you know, until the very last minute, people can change their minds, the judges. My last question on that, do you recall any justices discussing it with you?

3:51Was it something you guys talk about around the water cooler, so to speak? Not around the water cooler, but I think people I spoke to more or less shared the attitude. I have this very serious matter. Yeah. You have said with regard to how we run the court that if there were some kind of time limit for justices without going into them having to worry about their next job, that could be a workable solution to some of the other concerns people have. It might. Tell me about that. I don't know whether it would not be a solution to other problems. When I've discussed this in the past, people have talked about changing the system at the court.

4:34And we have a system where the Constitution says appointed in good behavior, which is taken to mean life. To change that, maybe you'd need a constitutional amendment. I don't know. I haven't looked into it that much. But you made a choice to figure out how you wanted to serve. When we spoke, this was now almost a decade ago. Here's what you told me. You've been on the court over 20 years. How do you know in a job where only you decide? How do you know when it's time to retire? That's a good question. And I feel I will know. No, I feel so far I seem to be able to do the job. And there will perhaps be some indication or I'll think about it, but I haven't thought it through enough yet to be able to give you much guidance on when I'll retire.

5:28And that's what you did. You chose to retire. other people, and I say this not just in the court, but in Congress, where some people have very long terms because they kind of benefit from incumbency, on the court where it's really only up to the justice pretty much, people put that decision off so long, shall we say, with all due respect, that they die on the job. And here we are in a modern society with a lot of challenges, and there's a lot of people who say that's not the best solution. So you found a way to serve a good long term and then bow out, give up power, if you want to put it in the Washingtonian tradition.

6:06Would it be better to have a system that at 18 or 20 or 22 years has some cap on Supreme Court justices? It would make the decision earlier, because even though I was about 83 years old, it sounds old, but, you know, it's a hard decision. It's a personal decision. You think of a lot of different things. And that's why I said, you know, it might be better, but it has to be a long term because you don't want the person looking for another job. Because that could be corruptive in its own way. Right. You don't want that. Yeah. But maybe even, I mean, I think the committee that the president set up looked into that, and I want to read that again and so forth.

6:46But they're personal decisions. And there's an old joke, which I don't know if it's true or not. supposedly when Holmes was 90. He was thinking of retiring. And who did they send in to see him? They sent in someone to see him. Maybe it was Brandeis. I don't know. One of the judges. And to tell him, the other judges thought maybe it was about time. And Holmes had said the same thing to, was it, who was it? The California judge, I think. Anyway, judge, whoever it was, Brandeis, or whoever, would have said to Holmes, do you remember the day that the court sent you in to see Justice so-and-so to tell him that really it might be about time for him to step down?

7:32And Holmes or whoever replied supposedly, yes, I do remember, and a dirtier day's work I've never done. Right. So it's a complicated decision. Complicated and a big question for society here, especially because, as we all know, it's great. You said 83 sounds old. That was your words, right? It does sound old. It does. I understand. It's now the new 20. Or the new 70. But whatever it is, with health and medical technology, people are living longer than ever, and we expect that to continue. But it creates an imbalance. We talked about pragmatism from how people originally started. So that's why it was interesting to get your views on it.

8:13You know, ask questions. We rarely get to ask you questions. So that's why it's fascinating. But it's a little bit more than a personal decision in this sense. People ask me a lot. If you just go to the view of people who maybe aren't lawyers, maybe a lot who are lawyers, they think these decisions, which you're quite right, I wrote, or participated in writing rather strong dissents. I didn't like those decisions. But they think they're all political. I don't. I don't think it's political. It's something sort of like political, but it takes too long to explain, unless they read it in the book.

8:52Yeah. All right.

8:57But Paul Freund, who is a great law professor at Harvard, he said, politics in the court, no judge, no judge decides a case on the basis of the temperature of the day. But every judge is affected by the climate of the season. That's well put. I mean, that's very interesting because it leads to something else I want to ask you about that's serious. You have a former president who's also running for office who is going through our justice system. And as we know, he's legally presumed innocent and the process plays out. But unlike almost all defendants, he is repeatedly attacking judges, almost daring the system to see what it might do.

9:47For example, attacking the judge overseeing the New York trial as totally compromised. He should be removed. Attacking his daughter. He published online lies about his daughter that are false. I'm not going to repeat them here. By one count from Reuters, the number of threats and hostile communications made towards judges and their court staff has more than tripled since 2015. You are a judge. And as a as a Supreme Court justice retired, you still go on and can judge federal appeals, which we were discussing. Is that kind of attack protected free speech or is it wrong? And what do we do about increasing documented threats against judges in our country?

10:32You have several parts to that. And the part that you really want me to answer, I can't answer because I am in the habit and a part of a system. I thought you said you don't read minds. How do you know that we want your answer on that? I don't know. I'm guessing. You happen to be right. Yeah, I can't answer the political parts. You're careful to avoid anything regarding the defendant. Understood. You can say not with regard to it, but regard to anyone, regard to anyone. They're very, to physically threaten someone, to physically threaten a judge, to physically threaten a civil servant, to physically threaten someone who works in the government, to physically threaten someone who doesn't work in the government is wrong.

11:16I mean, that isn't exactly a brilliant insight, but I think 99.999 % of all Americans would say, do not physically threaten other people. And it's not just that physical harm caused a person is not right, but we in this country, and that's why this document is so relevant, and why what Brian said and Hart and Sachs about law is so relevant. every race, every religion, every point of view. My mother used to say that. She used to say there's no point of view so crazy. There isn't somebody here who doesn't know this. And she said they all look in Los Angeles. No, she said, no, she said look in Los Angeles.

12:00Also, sure. But we've learned to live together. Yeah. And what Senator Kennedy said when I worked for him, you find people who disagree with you and you talk to them. and don't just talk to them about why you're right and they're wrong. Listen to them. And if you listen long enough, you will discover something that you agree with. I like that. You are writing about and discussing for the public how to interpret the Constitution. Why does that matter to a regular citizen who's not a lawyer? And how do you do it? I want regular citizens who are not lawyers. And by the way, 320 million people in this country, 319 million are not lawyers.

12:47That comes as a surprise. But nonetheless, I want them to know how does the Supreme Court work? How do courts work? How do federal courts work? It's an important part of the government and the law that governs them. And I want them to see it. It's through my eyes. I've been a judge totally 40 years. So I've had some experience there. and I don't guarantee that I have the only way to do it or I even have the best way to do it, secretly I think I do, nonetheless. But I want them to know. And particularly now, because there's sort of competing ways of doing it. There's what I think of as a traditional way.

13:25Chief Justice John Marshall, Oliver Wendell Holmes, Brandeis, Cardoza, Learned at Hand. And what's that? Well, you read the words and the word says cost. And you say, does that include the cost of an educational expert? Well, read it again. It says cost. Three times. Cost, cost, cost. Doesn't tell you. So most of the words in cases, in the Constitution or statutes, in the Supreme Court are tough. If it says fish, that doesn't mean carrot. But what does it mean? So traditionally, I think very good judges whom I admire and learned in law school to admire, what they've done is they look. Who wrote this?

14:10Why? There's a purpose. What's the purpose? It might help you. And what are the consequences if you read it one way or the other? And how do the values, if you read it one way or the other, stack up with the Constitution of the United States and the values that are contained in that document? Which you still pack. So we talk about what does bear arms mean? You still bear the Constitution. You carry that with you every day. And it's less of a problem than bearing arms. I would imagine. And so when we see these words that take significance, bear arms, due process, free speech. When you say pragmatism, how does that enlighten or reveal what those words should mean today?

14:58I think the word pragmatism is simply a shorthand. To say what Chief Justice John Marshall said years ago, when you get a difficult set of words, you use the materials that you can find that will help, and in particular, purposes. The values here in democracy, human rights and so forth, equality, they'll help in many cases, not all. But pragmatism is a shorthand way of saying try to, with the Constitution, maintain those values. John Marshall said this is going to last for a long time. It will deal with problems and situations that we now, he's saying in 1788 or 1800, that we now can see only dimly, if at all.

15:50And that's what they wrote this for. And statutes, too, work it out. Was the educational expert's costs included in the word costs or not? Yeah. I think you have to read a lot to get an answer to that. And in the book, we mentioned bear arms, which brings me to one of your dissents in that somewhat controversial case about what is the right to bear arms mean. Certainly, the United States has historically had weapons. But we've now been told by this by the court, it's actually a greater right than originally thought. You dissented. You wrote that guns today pose a, quote, unique threat to American society, if not properly regulated.

16:34Explain to us in plain English, if you can, how you drew that conclusion with the approach you take. First, can I give you another example and then go to there? Sure. Look, this is what I tell the seventh graders. They're not so easy to entertain the seventh grade. Right. So I say, here's what we do. They want to know, perhaps, what does a judge do in an appeals court, Supreme Court? I read an article. It said a biology teacher going from Nantes to Paris, a French biology teacher, had 20 live snails in a basket. Conductor comes up, looks at the basket. Have you paid a fare for the snails? What?

17:18Are you crazy? Says the biology teacher. Snails? Read what it says. It says no animals on the train except in a basket and pay half fare. He said, but these are snails. They're like, you know, bugs. Yeah, right, exactly. They don't mean that. They mean dogs or cats are, says the conductor. Is a snail an animal? Yes, sir. So I asked that to the class. I don't have to say another word. They're fighting like mad. A snail's an animal. Well, what about a mosquito? I mean, really, really, ridiculous. And I can just sneak out, you see. But that's what we do. Now, we don't do it with singles. But you pointed at one thing we did it with, right to keep and bear arms.

18:06Right. Okay. How do we do it? How do we do it? I say, of course, look to the words. Now, I was a very strong dissenter on that. And we received a brief from some linguists. And they said they looked up bear arms. and there were 120 ,000 examples between 1760 or 1720 and 1760, and they all had to do with the militia. But the majority didn't agree with that. Okay. And how much does it matter that guns are so dangerous and such a big problem? That was the main point. That was the main point. I said, Well, look, this had a purpose, and it wasn't to subject everybody to the fact that in the United States there are 400 million guns, and we're number one in the world, and Yemen is number two.

18:59And there are a lot of deaths, and there are a lot of injuries, and just look at them. They range from policemen killed on duty to spouses killed during an argument, and even at football games it can happen. You know, people get too excited. And so, of course, that's a very strong reason in trying to keep this country together that we do something about guns. And, of course, they wouldn't have written a phrase in here which said you can't. And anyway, how do you know, Mr. Majority? You know I can go on for about an hour. But I said we look to history. That's what Nino said, Nino Scalia. We debated this.

19:38We were good friends, but we didn't agree on these things. And I said, look, you mean I'm supposed to look back to see what people thought? Hunt centuries ago was a weapon equivalent to a gun? I said, I looked that up in Wikipedia just because I knew I was going to discuss this with you, Nino. This was outside of court. I said, but they talk about a skill ladder and a haldebard and an Asian fire. You threw it over the ramparts, I think, to burn everybody up. Did you know what those were? I certainly didn't. You think I'm supposed to do things via history? I'm not an historian. I'll do my best if I have to, but I'm not an historian.

20:17And you tell me I can't go and look at the fact that there are a certain number of people walking down the street, children in schools, spouses at home, policemen trying to keep law and order, innocent people caught by accident. There are all kinds of things that happen when you have too many guns. So regulation of guns must have been part of the idea behind the Second Amendment, though you couldn't forbid them entirely. Yeah, which is striking. And you write about this and someone hears this and thinks, OK, what would this have to do with Roe and issues around pregnancy and abortion? And yet you write about how you need some realistic or factual bearing for the words and the understanding at the time.

21:06And so I want to read again from you discussing originalism, this idea of, oh, you just start there and you refer to some of those complexities. You say if you use just this original approach, it would limit rights protected under the 14th Amendment to, quote, those contemplated by men who existed at a time when women were not considered to have a legal identity separate from their husbands. End quote. and that strong dissent to the decision over ruling Roe. Roe is a term more famous than Dobbs, but that was the name of this case, as many of our viewers probably do know. You and the dissenters write that that decision overturning Roe discards a known, workable, predictable standard in favor of something novel and probably far more complicated.

21:55Explain to us how that connects, because you're looking at how you interpret that based on history. and what seems to be an arguable contradiction for the majority. They say they're doing something so original, and yet you're arguing that it's actually novel, complicated, new. It's a new problem they've created. And this is a rather deep question because of the principle in Roe. There are many, many principles, many, many, many arguments on our side, I think, were the better arguments than the dissenters. But Roe is overturning a case. Dobbs is overturning Roe. Yeah. And they are overturning Casey.

22:43And those are cases that have been around for 50 years, 30 years. They've been around a long time. And some people think they work badly, but other people think they work well. And giving a woman a choice. There's a principle in law called stare decisis. They put them in Latin in order to show it. They're the only ones that understand it. But nonetheless, stare decisis simply means don't overturn cases. If they've been decided, they're decided, even if they're wrong. Never overturn a case? No. Sometimes you can't. And sometimes it's a very good thing to overturn one. Plessy versus Ferguson was overturned by Brown versus Board of Education saying goodbye to Jim Crow.

23:30A very good idea. But be careful how often you do it. Because if you do it too often, you will create of law a mess. People will not know what to follow. Everybody who has a lawyer will tell that lawyer, let's overrule such and such. So the principle that you're trying to follow there is a workable principle. It's a principle that says, keep to the law, but under certain circumstances, rare perhaps, but you can't overrule a case. Now, why do I bring that up in there? Because the people who like to say, hey, all you do is read the words. I read costs? Yeah, read costs. Will that tell me the answer?

24:12Well, they seem to think it will, but I don't know. All right. But they say, read the words. And if you follow our system, you will read the words. It will be fair. It will be easy. It will be simple. And it will, it will stop judges from substituting what they personally think is good or bad for the law. So you keep the judges under control. So I say you've made four promises. I don't think you can keep any. I don't think you can keep the simple part or the clear part. I mean, I can give you 50 examples of text cost, maybe even one, a simple one that just isn't clear. So if you think you can be simple and clear or more simple and clear than Marshall and Holmes and all those people.

25:04You know, right down there, I'm sorry that you changed the background because I think it was New York. And I have you. We still have a little bit of New York. Well, I have all the way back. If you think that right there, you know, you can create a simple, clear system with those words that are in our cases. Yeah. Well, I have a bridge to sell you. It's just on the other side of that big tower there. No, but more than that, more than that. You're going to overrule cases, Mr. Textualist or Mr. Originalist. You're going to overrule them. Which ones? Which ones? Are you going to overrule every case?

25:41that wasn't decided by a textualist or originalist method? You know what? That's all of them. Or almost all. Or all before. Hey, we'll end up with no law. Oh, you're not going to do that. Of course you're not going to do that. You're going to overrule the ones you think are really wrong. Stop. The ones you think are really wrong. wrong the ones you the judge think are really wrong gee doesn't that sound like what you just accused me of right well let me jump in because on that point that's what many people felt was wrong with the decision overturning row which you dissented against and among other points the majority said this is simple they'll overturn it it'll go back to the states it'll be as you say As you say, they say a simple process from there.

26:40That's not what's happened. The dissent warned about that. You said no one should be, quote, confident the majority is done with its work. The right that Roe and Casey recognized doesn't stand alone. And you talk about the other rights linked to it. You also wrote, quote, women lacking financial resources will suffer more from today's decision. An economist who spoke with NPR said in the first year since that Roe decision was struck down, And 100 ,000 lower income women would now be restricted from getting an abortion, whereas people who are wealthier might be able to evade the restriction through travel and other means.

27:15So is it fair to have something that seems to discriminate, among other reasons, on wealth? So you'll pardon my confirmation or potential flattery. But you and the dissenters were prescient. You were right. What do we take from that now that this isn't resolved? We've seen and our audience is well aware of the fights that are going on in some places, criminalizing abortion, in some places, criminalizing or preventing IVF, fertility and other measures. How do you feel being right? What should we take from this? I don't feel good about being right because I don't like the result. And why I wrote this book was not just to explain the result in that case, but to say really more than people think, more than people think.

28:06It's not a question of politics. It's not a question of the judges being politicians. I would put higher on the list, higher on the list of reasons they got there. You know, I can't read another person's mind. Sure. But cases that I think are pretty unfortunate, of which there are several here, I think it's a method. It's a method that they are adopting. It is a way of thinking about law. It is an approach to the interpretation of law. And the best way for me to try to change that approach, since I am a lawyer, since I am a judge, since it is what I've learned, is to explain. Explain to people who aren't on the court or explain to people who are on the court.