What do you do?
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
Well remember our cases on the Supreme Court, we decide about 80 or so a year. Probably more than half involve the interpretation of statutes. But a very large number involve the Constitution. And the way that I see it is that the document – and at this level of abstraction most people agree – the document is basically about . . . The first seven articles, they’re basically about creating institutions – Congress, the rest of the institutions – that will enable people to govern themselves. That’s called democracy, but it’s a certain kind of democracy. It’s a democracy that is limited by respect for basic human rights. Because we’ve learned in the 20th Century, if not before, that the majority is conteranized. So there are lists of human rights that are First Amendment, Fourth Amendment. They’re protected. So it’s a democracy that protects fundamental human rights. It assures a certain degree of equality . . . equal respect for people. It divides power vertically between states and federal government among three branches – legislative, executive, judicial – of the federal government. It divides power so no group of people become too powerful. And it insists upon a rule of law. Having stated that, I’ve stated in general terms one, the democracy, and two, the limitations, the boundaries. And what’s our job? I see our job . . . we’re the boundary patrol. We’re the frontiersmen. We’re the guardians of the rails. We have to see that the rest of the process, when it’s brought before us, follows those Constitutional instructions. So we typically say, “Is this law – passed by the Congress or by the state legislature – is this law inside or outside the boundaries?” So I say life is not always easy at the frontier; but nonetheless, the cases are difficult. And our job is, “Which side?” Inside it’s okay. Or outside, it’s off the rails. Question: How does your approach to the Constitution differ from that of your colleagues? I think it takes time for anybody with lots of cases to begin to see the Constitution as a whole. But the job on the Supreme Court does lead anyone who’s there after a time to begin to see the Constitution as a whole. Justice Scalia and I have talked about the more general jurisprudential or philosophical differences. And I enjoy the discussions with him. He’s very serious about what he’s doing, as I think I am. And I’d say that what he thinks . . . Well here. Let me explain it this way. I think any judge who’s interpreting a text . . . I’ve used this example many times, but I think it’s helpful. Any judge who interprets any text in a case which is difficult . . . I mean it could be, “What is the meaning of a comma in the Internal Revenue Code?” Does that mean that the next word under Section 302-C-3 is a “for”? Should it be a “which” or a “that”? You know, it sounds like a trivial case. Probably was, but a difficult case, alright? Or it could be a case like a really most difficult one I’ve had recently, the Seattle Schools case. Or the campaign finance case. In either case you have a text. You have precedent. You have history. What’s the history of these words in the Constitution, or in a statute? What is the tradition that surrounds them? How have they become to understood? Precedent, previous case. What is the purpose? Someone wrote this statute. What was he trying to say? What are the values . . . values or purposes? The Fourth Amendment is about privacy. The First Amendment is about speech, for example, and consequences. The consequences are relative. What is likely to happen, if you know, in terms of not any old consequence in the world, but the consequence looked at in the terms of a basic value or purpose? For example, in the First Amendment, you are interested in free speech and speech consequences. In the Fourth Amendment, you might be more interested in privacy consequences. But everybody has those tools: text, history, tradition, precedent, purpose or value, and consequences. Now I think some judges, like Justice Scalia, think that the first four are enough. Let us not look to purposes. Let us not look to consequences, at least unless we really have to. Let’s try to get by with text, precedent, history, tradition. Others like myself say, “No that’s not going to work. It’s not going to work because life is too complicated.” And they don’t give you the answer. And they might sometimes give you wrong answers. So let’s look to – in addition to the first four – purpose or value, and consequence. Now I will certainly look to the first four as well as the last two. I emphasize the last two . . . purpose or consequence, or purpose and value, or consequence. Scalia . . . Justice Scalia might emphasize the first four. That’s the difference. Why does he do that? What he says is he does that because he’s afraid that my system will lead to too much subjectivity. The judges will try too hard to substitute their own personal values for what was written in the Constitution. They’ll be out of control. To which I answer, “No. I don’t think so. I don’t think judges are sitting there trying to put in . . . I don’t think I’m trying to write my own personal values into the Constitution.” I can’t escape . . . As you pointed out at the beginning, I can’t escape my own background. I can’t escape who I am. But my job is not to write my values in. My job is to try to work out what this provision means as applied today. So I tend to think his approach is too rigid. And I tend to think it often doesn’t give answers and introduce a kind of hidden subjectivity. I think mine is more transparent. And I think it also allows a Constitution that was written 200 years ago to adapt to the circumstances of today. Alright. So the argument goes on, because both of us admit that subjectivity should be avoided in law. We’re interpreting documents that others have written to govern people who are not us. That’s the job. And we also, I think, agree – to a degree anyway – that not every answer is going to be just found by just in the text. That can introduce its own dangers. Question: How do you tackle a case? Well there isn’t. I mean it’s . . . You know the thing that impressed me most ever written about judges interpreting text was a statement by Learned Hand, who is maybe the greatest judge ever had in the United States – certainly one of the few. And he said, “Interpreting a text is like a . . . it’s tough. It’s a difficult decision.” He said, “It’s closer to a performer interpreting a musical score.” You want to be true to that score. You want to be true to the intent of the composer who wrote the music. And there isn’t a magic formula. There’s not a magic formula that will tell you how to do it. And I would be amazed if I could give you a formula about how to use consequences in every case. Well I think if you put it more tritely, the proof of the pudding is in the eating. I write down what I think. And if people read it, they will see what the reasoning is. And they can criticize it and I might learn from that. But there is not a magic answer. You know I’m probably . . . since I recently wrote a dissent in a case involving the use of race-conscious criteria in the schools . . . whether the city of Seattle could use . . . As one criteria among several, they allowed high school students freedom to choose whatever school they wanted. They listed preferences. But they said no school could be more than 85% white. Basically that was their criteria. And the question was, “Could they actually overtly, in that way, use a racial criteria?” And the court, 5 to 4, decided that they could not. They could not. I dissented. I thought, “Of course they can’t.” Were consequences relevant there? They certainly were to me. Because I said, “If you interpret the equal protection clause to forbid this, how are people supposed to deal with problems of race and poverty in inner cities of America?” And I see the Constitution as a very workable document. I think Madison’s genius was to say we’re going to get these values. We stay the same. And we’re gonna embody them in words that allow their application over the course of the next 400, 500 years, if not longer. And to do that, you have to refer back to how do these values apply today? What’s the value of the equal protection clause? Trying to bring us together; trying to create one nation; trying to create race _____ separate ______ a caste system; and try to create one country out of this diversity. And it’s a miracle, but we’ve been able to do that to a degree. There’s still plenty of problems. And for me to think of that clause being posed as an obstacle to such an effort, I just think that that was wrong. And I expressed by view very concisely in about 77 pages. Question: In deciding a case, do you take public reaction into account? 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. And so ________ . . . Well it’s like when I think of . . . One comes to mind _______. 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. So therefore 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. Question: Do we have an independent judiciary? Well what I talk about is what I’ve been talking about, is it is important for people at all levels to understand the need for a rule of law and independent judiciary. And I think that that is fairly well understood; but where you try to get the understanding is at the high school level. That’s what I mostly think we can do. In respect to separation of powers as legal matters, they come up before us as cases. Now we’ve had Guantanamo, for example, three times. Most recent, we were going to hear another case. Don’t take anything I say as commenting on that case. We haven’t heard it yet. But the third case involved probably the least popular . . . or one of the least popular people in the United States . . . Bin Laden’s chauffer. And he was on one side against the most powerful person possibly in the world, the United . . . the President of the United States. And he was claiming that he couldn’t be tried by a military tribunal. And he came before our court, and he won and the President lost. So it’s a mistake to say that there isn’t an independent judiciary in America. In those cases, we decide the issues as we see them case by case. And so the general thing, “Is the President too powerful? Is the Congress too powerful? Are the courts too powerful?” In general terms, it’s a matter for the political scientists and the government professors to work out, and the newspapers to editorialize, and the people to think about; but it isn’t something that I necessarily . . . that I take into account when I’m doing my job. I’m trying to decide particular cases. Recorded on: 7/5/07
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