Stephen Breyer
Associate Justice, U.S. Supreme Court
09:28

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The normal attitude when you write a dissent is "how right I am."

Stephen Breyer

Stephen Gerald Breyer is an associate justice of the Supreme Court of the United States. Appointed in 1994, Breyer is often regarded as more liberal than most other members of the court. He is highly regarded across the political spectrum for his pragmatic, rather than ideological, approach to the Constitution. In Bush v. Gore, which settled the controversial 2000 presidential election between George W. Bush and Al Gore, he issued a widely respected dissent which criticized those who would decide the case on the basis of equal protection. Breyer, a Rhodes Scholar, was educated at Stanford, Oxford and Harvard. He is the author of Breaking the Vicious Circle: Toward Effective Risk Regulation. Ideas recorded at the 2007 Aspen Ideas Festival on: 7/5/07

Transcript

Stephen Breyer: I don’t think about that. I really don’t. I think one of the greatest men on the Supreme Court ever was Thurgood Marshall. And I think he said he just wanted to ...that he did his best. I think that’s what most people would like. You do your best. And that’s . . . You know? That’s it. You have a job. You do your best. You take other people into account. You try to figure out and think about what the . . . what you’re doing will mean for people. And then you try to do this as well as you can do it. Question: What impact does your work have in the world? Sometimes it will have major consequences. Think of Brown v. Board of Education, which turned the nation away from segregation, and when we started to make the Constitution mean what it says, in my opinion, certainly. You don’t know what will have consequences. You can’t . . . you don’t know. I think history looks back. And it’s sort of like the stock market, my view of history, which is not very sophisticated. And the stock market, it goes up or it goes down. And then the experts tell you the next day why you should’ve known the previous day. And of course they don’t. All they do is 1,000 things happen and they pick out what’s significant. Well the historians look back and they say, “Of course this would have happened, because these earlier things happened.” But they know what happened, and they’re looking to see what’s significant. And we’re operating in a world where we’ll decide things, and we don’t know precisely what will happen in the future. So what we do is we do our best on each case. If a district judge is deciding a case of two people in front of him, that case is tremendously consequential for those two people. And a district judge at the trial level will take that with tremendous seriousness, because it matters to those people. It might be a matter of prison. It might be a matter of whether one is bankrupt or not. It might be a matter of family. There are lots of things that matter. Now every judge at every level takes the job seriously. And that, I think, is the most that a person in my position can do. You can do your best. Question: What is the biggest challenge facing law? That’s Yogi Berra. I never make predictions, particularly not about the future; but you don’t know. I don’t know. I know that the most important thing, as you’ve probably gathered from the ... the conversation, is as a judge, to get people to focus on the particular cases; to make certain that the court is not a political institution; to make certain as best I can that people understand what we do; to make certain that we do our job. That’s the primary thing. So that’s one thing . . . I think I got that from my father, is to say “Do your job as well as you can.” By the way, people notice, you might get a better job. But if they don’t notice, you’ll still have the gratification of having done your job fairly well. Question: Why do you read your dissents from the bench? Well it’s always been true that usually once or twice a year, someone . . . someone will read a dissent from the bench. And it’s typically a dissent in a case that we think has some importance, and that we think . . . the dissenters usually think is very wrongly decided. The normal attitude when you write a dissent is “how right I am”. I mean that’s human nature. But there have been more than usual. And I think what the dissenters have been saying in their dissents is we think there are quite a few decisions with which we strongly disagree. Question: How is globalization changing the law? We had six cases out of the 80 in the year I counted . . . it was about two or three years ago . . . six out of the 80 involved questions of foreign law. And they weren’t these questions you’ll see in the newspaper . . . like Guantanamo, the Geneva conventions. They were questions such as a plaintiff in Ecuador who sold vitamins – a vitamin distributor – wanted to sue a vitamin manufacturer in Harlem saying he was a member of cartel, and he was an American member, too. And he wanted to bring his lawsuit into the United States . . . an antitrust suit. Can he do it? Does the law allow him to sue here? That’s a very hard question, and an important question in the antitrust area. We had Mrs. Altman . . . Mrs. Altman who wanted the Clint paintings. She said that the Nazis had taken the Clint paintings from her aunt. She sued to get them back. The Austrian Museum said, “We’re part of the government. We have sovereign immunity.” Did they or didn’t they have sovereign immunity? That came to the court. I found an answer to that question, or help in answering in a Court of Appeals decision in Paris, France. But we had trucks coming in from Mexico. The trucks, who are part of NAFTA, selling goods in the United States. And there was a law that some were trying to vote to keep them out. And NAFTA seemed to trump it. Did it, or did it not? Terribly important. We had cases involving the Warsaw Convention on airline liability. We had cases of tort law. In 17-something or other, Congress passed a statute that allows a person injured by a violation of international law to recover damages. Well that was a pirate. See, if a pirate kidnapped you, you could get damages if you found the pirate. Even if you’re from Venezuela. And even if the pirate is from Ecuador and you’re in the United States, you can sue him if you can find him. Pirates, wherever they are. Who are the pirates today? Are they dictators in Paraguay? That was the question. And what about . . . So these questions all involve . . . If you’re gonna decide them correctly, they involve knowing something about the law of other nations. They involve knowing something about international law ... how these things work. So the law schools have to teach it, because I don’t know all those things. I have to look them up. How do I look them up? The lawyers have to lead me to the right sources. The lawyers have to tell me about them, and the lawyers won’t know about them unless they’re taught in the law schools. Therefore, more and more, you’re finding in law schools in normal courses . . . segments of the courses where they’ll bring in what’s happening elsewhere in the world. That’s a very good thing, and that’s part of what I mean by this loom that’s knitting. Question: Will international courts become more powerful in the future? I don’t know on that. I don’t really know. You don’t necessarily have to have an international court to have an integrated law. We have an integrated commercial law in the United States in all 50 states; but the reason is that all 50 states have adopted the uniform commercial code which was originally proposed, probably, and sold by the Uniform Law Commissioners. I mentioned them before. They went from state to state. So you didn’t have to have some hierarchical organization to get that done. So whether there will be more or not of international courts, I can’t be sure. I’m reasonably certain they’ll be specialized international courts. There are specialized courts as part of the World Trade Organization. There are specialized courts . . . we have them as part of NAFTA. There are specialized courts, I think, in respect to the Canadian . . . certain treaties . . . we’ve entered into commercial treaties with Canada. As there is more international commerce, there will be more international specialized courts. Whether they’ll be an international penal court or not, I think a lot depends on how well this one does. Question: Do you forsee jurisdictional fights on the horizon? No, I don’t. Because the law has a way of resolving all jurisdictional questions. I mean there are rules for resolving jurisdictional questions. There aren’t usually fights about it. There could be, but not usually. And interestingly enough, for example, I was looking at a decision that a European court in Luxembourg, which is the European Union Court, made. And in certain respects, the law of Europe was trumped by the law of the WTO. Well they don’t mind. You know, the judges don’t mind. That’s fine. They say that that’s their . . . this is the law under the rules of conflicts that governs, then they’ll apply it. They’ll apply whatever law is required to be applied by the law. The law of laws. Now see what a complicated subject that was?

Recorded on: 7/5/07


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