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
Stephen Breyer: I’d say if I think of people whom I find in other fields – philosophy, or even law or elsewhere – the things I put together that I remember . . . I mean Holmes, of course, is a very great judge. Because he saw what I admired in him, and what people do admire in him, is he said, “Look. It’s not a question of a few people dictating to others. It is a question of inspiring, or leading, or getting others themselves to resolve their problems. Sometimes when they resolve their problems, they run up against what he called a “can’t help”. He said a can’t help . . . I have a can’t help when I just have to say, “My god. This is wrong.” And we’ve seen a few of those. So it’s like being under pressure. It’s like you want these . . . It’s not my decision. It’s not my decision. It’s their decision. They’ve got to do it. They’ve gotta work this out. I can give advice, but I can’t tell anybody what to do. And then you run up against a can’t help. You can’t do that. You can’t do that. You can’t put those people in prison without any cause. You can’t do this kind of thing. It’s just too much, you see . . . speech, religion, whatever, I see those things in the Constitution. So I think it’s a . . . and Holmes was influenced by what I think of as the late 19th Century, early 20th Century American pragmatist. Other pragmatists are Henry James, Purse, and . . . There’s a pretty good book called “The Metaphysical Club”. I don’t know if you’ve seen it. Very good. And they describe . . . He describes a people like that time. And then I think of San Francisco, which was a cooperative. Western . . . it’s western. It’s open. It’s cooperative. It’s people of all walks of life getting together and trying to figure out how to solve their problems. And I think of when I was growing up back in San Francisco. You said what was the world supposed to be like? Well the world, in a way, that Dean Atchison created . . . or helped create. That was a world which was going to be a world where democracy would spread; where people’s basic rights would be guaranteed; where there would be free trade. Not totally free. The mixed economy, you see? Regulated competitive. Not communism. Not les a faire capitalism, but there would be something in between there where you’d take the advantages of free markets but regulate them so they don’t get out of control. And there would be international organizations whereby people could resolve their international disputes. So you say put that . . . say pragmatic. The pragmatic . . . Pragmatic is a . . . Pragmatism, American pragmatism . . . Henry James and Purse and those people, and Cline later on, and the philosophers . . . It’s not just do whatever is good. It’s not just look out at each decision and try to maximize whatever is good. It is to try to create systems, rules, organizations, methods of cooperation that you see over time will tend to push societies towards what is better. I mean when he talked about truth – this may be more than you want to know – but when he talked about truth, James and Purse were not saying that something is true because it works. What they were saying is that something is true because it’s part of a total system. And that total system works better for people than some alternative system would.
Recorded on: 7/5/07