Stephen Breyer: No. I mean only vary rarely would that actually matter. And it can’t really influence your judgment in terms of consequences directly on the court – what will the press say? Will they say you’re good or bad? Will they see this is terrible or wonderful – you just cannot let it because that is the road to perdition? We’re not there to be popular. We’re not there to decide according to the majority. We’re not there to decide according to what the press is going to write. If you were to take that view of the job, why take it? The point of this job is to do your best as a judge. It is a judicial job. It is a job where you’re trying to apply as best you can to apply the law in different circumstances. And the cases in front of us – 80 a year – sounds like a few, but each of them is really difficult because they are cases in respect to which lower courts have continuously disagreed. Years ago in the 1830s, there was a case involving the Cherokee Indians and Georgia. And they were . . . Their land bill was discovered, and the Georgians seized their land. They hired a lawyer, William Worth – a great lawyer in that time – and he brought a case to the Supreme Court. And he won eventually. He won. The court said the land belongs to the Indians. It doesn’t belong to the Georgians. And the President, Jackson, said – supposedly said – John Marks has made his decision and we must enforce it. And he wouldn’t enforce that decision. Indeed he sent troops there eventually. Those troops evicted the Indians. Well John Joseph’s story and John Marshall had a correspondence that year. And it was a dark year for the court. And they wondered, in writing, what will happen to this court. And John Marshall said something that’s famous. He said, “Well the people made the Constitution, and they can unmake it.” So ultimately we’re floating on a sea of public opinion. And that public opinion does not have to agree with our decisions, but they do have to follow them. And indeed we’ve seen over the course of history. I often use as an example Little Rock, where a different president – Eisenhower – sent troops. And Governor ______ stood in the door and said, “I will not . . . I will not let those black children in this white school.” And Eisenhower said, “We’re sending the Airborne.” The 101st Airborne Division went to Little Rock, and they took the children by the hand and they walked them right into the school. That was a great day for the law, for the country. And today people do tend to follow the opinions . . . They understand, at some level, that 300 million people of every possible race, religion and point of view to live together, they have to have a way of resolving their problems, and they turn to the law. Now there’s no guarantee that will continue. The court is working at it, but it is an incredible asset, a treasure to the country. And I see it every day. I see it every day. I understand that the court has to maintain standing in public opinion; but the way to do that is not for me to base my decisions on public opinion. Out of the question. The way for me to do it is to do just what I’m doing now. It’s to do my best to explain to people what the court’s about. And to hope I’ll interest them enough, so that they – whether they’re high school students, or college students, or grammar school students, they say, “Well maybe we ought to know something about this. Maybe we should find out. Maybe we ought to know about our government. Maybe even participating in government or participating in the community is a good thing for us.” And if they think about that, then I’ve done what I can in that respect.
Recorded on: 7/5/07
Discuss
Jim Payton on January 8, 2008, 6:14 AM
I appreciate being able to hear a Supreme Court justice speak to the public. It helps to humanize these people.
Jim Payton on January 8, 2008, 11:14 AM
I appreciate being able to hear a Supreme Court justice speak to the public. It helps to humanize these people.
Leslie Gura on January 10, 2008, 4:35 PM
What a lively interesting conversation with Justice Breyer! How I wish I could be certain that all judges believed this.
Leslie Gura on January 10, 2008, 9:35 PM
What a lively interesting conversation with Justice Breyer! How I wish I could be certain that all judges believed this.
Mark Whitley on January 11, 2008, 7:04 AM
The music in between responses is annoying and interferes with the message. Please re-think having it anywhere but at the beginning or the end.
Mark Whitley on January 11, 2008, 12:04 PM
The music in between responses is annoying and interferes with the message. Please re-think having it anywhere but at the beginning or the end.
Jen Something on January 11, 2008, 1:01 PM
You work for us. Get that naval flag out of our court room. IT IS DECEPTION.
Jen Something on January 11, 2008, 6:01 PM
You work for us. Get that naval flag out of our court room. IT IS DECEPTION.
Scott Underwood on January 12, 2008, 7:48 AM
Public opinion is a non-issue I think what about personal opinion? That must influence the decision making process.
Bruce Williams on January 12, 2008, 12:00 PM
I wish the Supreme Court would listen to public opinion more, like when we voted for Gore and they gave it to Bush. Or when Scalia went duck-hunting with the Vice-President and ruled that the Vice-President is "special" in regards to the Freedom of Information Act, contary to past rulings.
That the Supreme Court is above politics ranks right up there with Santa Claus and the Tooth Fairy.
That said, he did a good job of promoting an ideal. I wish the ideal was reflected more in reality. The current Court has done more damage than good to the bonds of trust between the Court and people, an issue he touched on, but did not address.
Scott Underwood on January 12, 2008, 12:48 PM
Public opinion is a non-issue I think what about personal opinion? That must influence the decision making process.
Bruce Williams on January 12, 2008, 5:00 PM
I wish the Supreme Court would listen to public opinion more, like when we voted for Gore and they gave it to Bush. Or when Scalia went duck-hunting with the Vice-President and ruled that the Vice-President is “special” in regards to the Freedom of Information Act, contary to past rulings.
That the Supreme Court is above politics ranks right up there with Santa Claus and the Tooth Fairy.
That said, he did a good job of promoting an ideal. I wish the ideal was reflected more in reality. The current Court has done more damage than good to the bonds of trust between the Court and people, an issue he touched on, but did not address.
Mark Klosinski on January 13, 2008, 4:48 AM
justAJoe, obviously you must have slept through US government class in you Government School. This country is a Republic, not a democracy. Do you ever say the pledge of allegiance? Our Founding Father absolutely feared that this country might slip into a democracy, and I believe their fears are true. This country is supposed to be based on the rule of law, and that rule of law is the US Constitution. Read it sometime. Over time, we have move away from the basic concepts of the Constitution. This country would be a better, stronger, and more productive if we moved back closer to the original concepts of the Constitution.
Richard Giannamore on January 13, 2008, 7:22 AM
The Court is here to make sure laws are followed not to make new law by interpretation. That is why we have a legislative branch of government.
They should not guess at what the founding fathers specifically meant by the law through their own interpretation. But should look at the merits of the specific case at hand and decide as honorable men and woman coming down on the side of law and not fairness (though I wish were the case) for that is their responsibility.
I pray for fewer egos more humility for every judge at what ever level.
What make it all work is our equal three branches of government with its checks and balances; Executive, Legislative, and Judicial. And with no one branch having more rights or powers over the other. Lets%u2019 keep it that way, no more legislation from the bench that is the legislatives job.
Mark Klosinski on January 13, 2008, 9:48 AM
justAJoe, obviously you must have slept through US government class in you Government School. This country is a Republic, not a democracy. Do you ever say the pledge of allegiance? Our Founding Father absolutely feared that this country might slip into a democracy, and I believe their fears are true. This country is supposed to be based on the rule of law, and that rule of law is the US Constitution. Read it sometime. Over time, we have move away from the basic concepts of the Constitution. This country would be a better, stronger, and more productive if we moved back closer to the original concepts of the Constitution.
Richard Giannamore on January 13, 2008, 12:22 PM
The Court is here to make sure laws are followed not to make new law by interpretation. That is why we have a legislative branch of government.
They should not guess at what the founding fathers specifically meant by the law through their own interpretation. But should look at the merits of the specific case at hand and decide as honorable men and woman coming down on the side of law and not fairness (though I wish were the case) for that is their responsibility.
I pray for fewer egos more humility for every judge at what ever level.
What make it all work is our equal three branches of government with its checks and balances; Executive, Legislative, and Judicial. And with no one branch having more rights or powers over the other. Lets%u2019 keep it that way, no more legislation from the bench that is the legislatives job.
Jarrod Massey on January 14, 2008, 10:37 PM
In order to appreciate the true nature of our government, we must lend credence to the value of public opinion. Public opinion, in and of itself, is what shapes a vast majority of the law. When I speak of public opinion I do not want to confuse "popularity" into this discussion. However, I define public opinion as the shared social values of a community. I resist sounding too "Naturalistic" concerning the origin of law, but in reality the fundamentals of our values are what create law. If we removed this aspect of partiality from law making, we could reduce law to economics and debate the efficiency of the laws we make. Public opinion and those values associated with it are, and will continue to be, the brightline we use to evaluate law.
Jarrod Massey on January 14, 2008, 10:38 PM
In order to appreciate the true nature of our government, we must lend credence to the value of public opinion. Public opinion, in and of itself, is what shapes a vast majority of the law. When I speak of public opinion I do not want to confuse "popularity" into this discussion. However, I define public opinion as the shared social values of a community. I resist sounding too "Naturalistic" concerning the origin of law, but in reality the fundamentals of our values are what create law. If we removed this aspect of partiality from law making, we could reduce law to economics and debate the efficiency of the laws we make. Public opinion and those values associated with it are, and will continue to be, the brightline we use to evaluate law.
Jarrod Massey on January 15, 2008, 3:37 AM
In order to appreciate the true nature of our government, we must lend credence to the value of public opinion. Public opinion, in and of itself, is what shapes a vast majority of the law. When I speak of public opinion I do not want to confuse “popularity” into this discussion. However, I define public opinion as the shared social values of a community. I resist sounding too “Naturalistic” concerning the origin of law, but in reality the fundamentals of our values are what create law. If we removed this aspect of partiality from law making, we could reduce law to economics and debate the efficiency of the laws we make. Public opinion and those values associated with it are, and will continue to be, the brightline we use to evaluate law.
Jarrod Massey on January 15, 2008, 3:38 AM
In order to appreciate the true nature of our government, we must lend credence to the value of public opinion. Public opinion, in and of itself, is what shapes a vast majority of the law. When I speak of public opinion I do not want to confuse “popularity” into this discussion. However, I define public opinion as the shared social values of a community. I resist sounding too “Naturalistic” concerning the origin of law, but in reality the fundamentals of our values are what create law. If we removed this aspect of partiality from law making, we could reduce law to economics and debate the efficiency of the laws we make. Public opinion and those values associated with it are, and will continue to be, the brightline we use to evaluate law.
Sydney Taber on January 15, 2008, 8:18 PM
I think that Justice Breyer answered this question quite eloquently. While the Supreme Court "is afloat on a sea of public opinion", the Court should not use public opinion on a particular case to sway it. After all, it is their business to pass judgment on laws to determine whether those laws are constitutional. While every decision will be influenced to a certain degree by their personal beliefs and histories, education, social class, legal education, legal experience, and a host of other things, their decisions must be based on the law that applies to the particular issue at hand. That being said, interpretations of law will lead to differing opinions as frequently happens on the Court. Justices base their opinions on a host of considerations including precedents set by past courts, argument amongst themselves, common law, and their own judicial philosophy – it is their job to judge whether a law is constitutional which requires a degree of interpretation. This is exactly what they are supposed to do. The legislative branch creates law; the executive branch enforces law; the judicial branch interprets law. Are they infallible? No. Sometimes the Court will take on a case to revisit a past decision that is no longer sound or to clarify an aspect of law that causes confusion in lower courts. Those who like the notion of strict constructionism would deprive millions of Americans of the right to be free humans and citizens. Strict constructionism is a reactionary judicial philosophy based on the supposition that the Constitution is simple, clear and unchanging. Human society and mores change and so must the law. If, for example, Justice Thomas were to strictly apply the Constitution as he believes the Supreme Court should be doing, he would not be on the Court. He would be considered the equivalent of 3/5 of a white man, women would be chattel and only white males with property would be able to vote.
Sydney Taber on January 16, 2008, 1:18 AM
I think that Justice Breyer answered this question quite eloquently. While the Supreme Court “is afloat on a sea of public opinion”, the Court should not use public opinion on a particular case to sway it. After all, it is their business to pass judgment on laws to determine whether those laws are constitutional. While every decision will be influenced to a certain degree by their personal beliefs and histories, education, social class, legal education, legal experience, and a host of other things, their decisions must be based on the law that applies to the particular issue at hand. That being said, interpretations of law will lead to differing opinions as frequently happens on the Court. Justices base their opinions on a host of considerations including precedents set by past courts, argument amongst themselves, common law, and their own judicial philosophy – it is their job to judge whether a law is constitutional which requires a degree of interpretation. This is exactly what they are supposed to do. The legislative branch creates law; the executive branch enforces law; the judicial branch interprets law. Are they infallible? No. Sometimes the Court will take on a case to revisit a past decision that is no longer sound or to clarify an aspect of law that causes confusion in lower courts. Those who like the notion of strict constructionism would deprive millions of Americans of the right to be free humans and citizens. Strict constructionism is a reactionary judicial philosophy based on the supposition that the Constitution is simple, clear and unchanging. Human society and mores change and so must the law. If, for example, Justice Thomas were to strictly apply the Constitution as he believes the Supreme Court should be doing, he would not be on the Court. He would be considered the equivalent of 3/5 of a white man, women would be chattel and only white males with property would be able to vote.
Jen Something on February 13, 2008, 5:51 PM
The naval flag thing is real! That is why so much b.s. goes on this rot goes to the top!!!!! ***GET THE YELLOW FRINGED FLAG OUT OF THE COURTROOMS ACROSS AMERICA!!!!!!!
AND FIX THE MARKETS AND FIXED VOTING SYSTEMS!
Shame on you.
www.blackboxvoting.org
www.investigatethesec.com
www.thesanitycheck.com
Jen Something on February 13, 2008, 10:51 PM
The naval flag thing is real! That is why so much b.s. goes on this rot goes to the top!!!!! ***GET THE YELLOW FRINGED FLAG OUT OF THE COURTROOMS ACROSS AMERICA!!!!!!!
AND FIX THE MARKETS AND FIXED VOTING SYSTEMS!
Shame on you.
www.blackboxvoting.org
www.investigatethesec.com
www.thesanitycheck.com
carlos acuña on April 14, 2008, 4:27 PM
I am persuaded that Archibald Cox answered this question best: "It is the function of the courts to keep the rights of the individual beyond the reach of majoritarian tyranny."
Public opinion, as I interpret it, means "majoritarian opinion," thus, tyranny. As such, it should be ignored where the rights of the individual are concerned. An individual—as per the Constitutional charter—joins a society for protection and cedes some "privileges," but never surrenders his rights, especially those specifically enumerated in the Bill of Rights.
carlos acuña on April 14, 2008, 8:27 PM
I am persuaded that Archibald Cox answered this question best: “It is the function of the courts to keep the rights of the individual beyond the reach of majoritarian tyranny.”
Public opinion, as I interpret it, means “majoritarian opinion,” thus, tyranny. As such, it should be ignored where the rights of the individual are concerned. An individual—as per the Constitutional charter—joins a society for protection and cedes some “privileges,” but never surrenders his rights, especially those specifically enumerated in the Bill of Rights.
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