Speaker 1: When I was a young staffer on Capitol Hill, I
Speaker 1: met a man named Stephen Bryer who was a law
Speaker 1: professor at Harvard. I thought, very smart, he'll probably be
Speaker 1: an academic the rest of his life. But actually he
Speaker 1: became a Justice of the Supreme Court and has been
Speaker 1: in that role for twenty seven years. I recently had
Speaker 1: a conversation with him about his future and about the
Speaker 1: future of the Supreme Court. I have to start with
Speaker 1: the questions on everybody's mind. Obviously, why is this book
Speaker 1: that you've just written so small? It's a very small book,
Speaker 1: and I'm used a bigger books. So why is this
Speaker 1: book so small? I mean, why didn't you get a
Speaker 1: bigger book? Um, this is the Constitution and it's smaller. Okay,
Speaker 1: all right? A lot of Justices of the Supreme Court
Speaker 1: carry around the Constitution all the time. Is that because
Speaker 1: you're gonna forget what's in it? Or are you? It's
Speaker 1: just like their mind. People are just read it over
Speaker 1: and over again. You never never know when somebody's going
Speaker 1: to ask you a question. You see, somebody says, what
Speaker 1: does the Article three, Section nineteen? Say? Okay, and they
Speaker 1: expect you to know okay. So you have to have
Speaker 1: it here. It is so your book. This book is
Speaker 1: a interesting book in the sense that it came from
Speaker 1: a series of lectures you gave. Um named after somebody
Speaker 1: who was an ideological, let's say, opponent of some of
Speaker 1: your views, and that was Justice Scalia. So Um, were
Speaker 1: you a friend of his even though you had ideological differences? Yes,
Speaker 1: I think so. We would we would uh debate those
Speaker 1: differences and we'd go. I thought we had a terrific
Speaker 1: debate in Lubbock, Texas. There were several thousand students would come.
Speaker 1: They've never seen the Supreme Court justice, and we talked
Speaker 1: about our differences. You know, I say, hey, if I
Speaker 1: had your theory, my goodness, don't you think that. Do
Speaker 1: you think George Washington knew about the internet for free speech?
Speaker 1: You're thinking? And Scalia would say I knew that. Well,
Speaker 1: good point. Then he would say, I'm not saying my
Speaker 1: theory is perfect. He would say, you know, the two
Speaker 1: hunters they're hunting bears and one's putting on his tennis shoes.
Speaker 1: Where are you going? And he says, I'm bears coming.
Speaker 1: You can't outrun a bear, he s yeah, but I
Speaker 1: can outrun you. Say that was his view of my
Speaker 1: way of deciding cases, and we of course I never
Speaker 1: in and I still twenty eight years now, I've never
Speaker 1: heard a voice raised in anger in that conference room.
Speaker 1: I've never heard one just to say anything mean or
Speaker 1: table or anything like that. Good would that do? I
Speaker 1: try to explain that to the students. You know, you
Speaker 1: get all excited, and all that happens is people disagree
Speaker 1: with you. Think, well, you know, he's all excited, he
Speaker 1: must be wrong, and that's that's so true. So we
Speaker 1: get on well personally, and we're friends personally, and we
Speaker 1: disagree on some things, not as many as you think,
Speaker 1: but some It's not always been the case. There wasn't
Speaker 1: a Supreme Court justice who refused to talk to or
Speaker 1: be in the presence of justice grandise because he was Jewish. McReynolds, right,
Speaker 1: So it hasn't always been that friendly. But you're saying
Speaker 1: right now, since you've been on the court twenty eight years,
Speaker 1: people don't yell and scream at each other, and they
Speaker 1: don't insult each other, and they're not rude to each other.
Speaker 1: And it's a professional job, and you go in and
Speaker 1: do your best professionally, and if you want people to
Speaker 1: listen to you the most. The best you can do
Speaker 1: is to think through this problem, listen to where the
Speaker 1: other person is coming from, and see what you can
Speaker 1: contribute to that thought. But sometimes that a censor a
Speaker 1: little bit tough on the person who wrote the majority opinion.
Speaker 1: That's nobody takes that personally. I get that question a lot,
Speaker 1: and I used to get it more with Ninas Scalia
Speaker 1: was on the court and the two of us would
Speaker 1: be there, and somebody to ask that question, and I'd
Speaker 1: tried to answer it because I didn't want him to
Speaker 1: and I'd say, I'd say, look, I know you're not
Speaker 1: aiming that question at me. You're aiming it at Nino. Okay,
Speaker 1: I get it. But what you don't understand is that
Speaker 1: some people suffer from a disease. It's called good writer's disease.
Speaker 1: And if a good writer finds a felicitous phrase, he
Speaker 1: won't give it up. Let the word, let him destroy himself,
Speaker 1: let the world come to an end. It's like a
Speaker 1: good comedian, you can't give up that joke. Now that's Nino.
Speaker 1: He is a very good writer. He has a felicitous phrase,
Speaker 1: and we all know that and we don't take it personally.
Speaker 1: Do you have a lot of unanimous decisions in these
Speaker 1: days or they don't get that much attention? And do
Speaker 1: you really have a lot of five four decisions and
Speaker 1: they get all the attention it seems, But is that
Speaker 1: where the court really has its arguments with each other
Speaker 1: the five to four decisions and no, not necessarily what
Speaker 1: you read about are the ones that the press thinks
Speaker 1: the public will be interested in, which usually has a
Speaker 1: political or a social content, and they'll say that's the
Speaker 1: most important. I don't know that. One of the most
Speaker 1: important decisions I wrote this last year was called Google
Speaker 1: versus Oracle, right, and and it was it took a
Speaker 1: year for me to write that. It was about copyright
Speaker 1: and something called programs, uh interface programs, And I was
Speaker 1: told that that was very very important. Well for me,
Speaker 1: it was like learning Latvian. I mean, I don't know
Speaker 1: how I did that, but but you see it, it's
Speaker 1: it's it's it's I'm not saying all the I see
Speaker 1: what they're saying. I see what they're saying. And it's
Speaker 1: true that a lot of the sort of exciting cases
Speaker 1: are more close. But the justice is I suppose you
Speaker 1: have a decision. It's five to four, and well, I'm
Speaker 1: one justice kind of go to other justices chambers and say,
Speaker 1: you know, your argument isn't so good and maybe you
Speaker 1: should do something different? Or is everything just done by
Speaker 1: memos and writing? You don't have people going down the
Speaker 1: hall and saying, let's have lunch together and maybe I
Speaker 1: can persuade you my position is better than yours. That
Speaker 1: does that ever happen? Most of it is memo, but
Speaker 1: quite a lot can be business two chambers. But if
Speaker 1: I'm going into your chambers, I'm not going to say no,
Speaker 1: your argument isn't so good. This would not be a
Speaker 1: helpful way to start the conversation. And if you go
Speaker 1: into somebody else's chambers, you better be prepared to listen
Speaker 1: to them as well as hoping that they will listen
Speaker 1: to you. And then you try to see and that's
Speaker 1: what I learned in the Senate. That's what you try
Speaker 1: to see is where is there some common ground? And
Speaker 1: is there common ground enough that you can work with it.
Speaker 1: Let's go back to your earlier life. Um, I work
Speaker 1: on Capitol Hill and you work Premium Capital. Who you
Speaker 1: were a Harvard law professor and I'm just curious when
Speaker 1: you go to Harvard Law School and you're at the
Speaker 1: top of your class. When you start Harvard Law School,
Speaker 1: there's always kind of an intimidation factor. You have six
Speaker 1: hundred people. You have to figure out, you know, where
Speaker 1: you're going to be good or not. When did you
Speaker 1: realize you were really good at at law school kind
Speaker 1: of things taking exams? Did you know right away you're
Speaker 1: gonna be a great law school student and therefore become
Speaker 1: a potential law school professor or were you nervous the
Speaker 1: first year or so? I think God's pretty nervous. I
Speaker 1: mean I remember talking to a friend of mine I've
Speaker 1: been an undergraduate with and he was there too, pulled
Speaker 1: dotic actually, and we both said, well, this is the
Speaker 1: end of our great careers after our first year. And
Speaker 1: we both did pretty well in law school. Are you
Speaker 1: were on the Harvard Law Review. And when you're on
Speaker 1: the Harvard Law Review, sometimes you get the clerk on
Speaker 1: the Supreme Court for another justice and you clerk for r.
Speaker 1: Through Goldberg And what was that like? It was terrific.
Speaker 1: He was great, He was an enthusiast, He had loads
Speaker 1: of energy. Jack Kennedy said that he was the smartest
Speaker 1: man he ever met. So you clerked for him, and
Speaker 1: then you went to teach at Harvard Law School. And
Speaker 1: when you went to Harvard Law School, did you say,
Speaker 1: this is gonna be my life. I'm gonna be a professor,
Speaker 1: nothing terrible about that. You can teach great law school
Speaker 1: students and so forth. Or did you say, maybe someday
Speaker 1: I'll be on the Supreme Court, maybe I'll be a judge.
Speaker 1: It was that in the back of your mind. I
Speaker 1: didn't think maybe someday. Anybody who thinks maybe someday I'll
Speaker 1: be on the Supreme Court. I mean, I don't want
Speaker 1: to say there's something wrong with him, but there is something.
Speaker 1: Right after teaching at Harvard Law School, you got a
Speaker 1: very good reputation. Senator Kennedy invited you to come down
Speaker 1: and work on his staff. I think, to work on
Speaker 1: regulatory reform and um, and that's where I first encountered you.
Speaker 1: And I was working Capitol Hill and and so forth.
Speaker 1: You've got a very good reputation, and then something happened
Speaker 1: that was a surprise to people. Uh. President Carter nominated
Speaker 1: you to be a judge on the First Circuit. And
Speaker 1: that's not a surprise, given your your reputation and so forth.
Speaker 1: But it required a Republican to sign off on it.
Speaker 1: Strom Thurman one of the most conservative Republicans. Why did
Speaker 1: you think strom Thurman said he would let a presumably
Speaker 1: some somewhat liberal Harvard Laft professor get on the first circuit.
Speaker 1: I mean those are days. It was a different day.
Speaker 1: You remember that people did try to work together. And
Speaker 1: every single morning Ken Feinberger was like I was chief
Speaker 1: counsel and he was a general counselor of the Judiciary Committee.
Speaker 1: And we would have breakfast with Emery Snedden, who was
Speaker 1: a former JAG general, and it was Strong Thurman's chief
Speaker 1: person on Judiciary, and we would plan the day. We
Speaker 1: planned out the day. We wanted no secrets. We wanted
Speaker 1: to try to accomplish something, and we'd figure out how
Speaker 1: do we color it red for this party and how
Speaker 1: do we color it blue for the other party. But
Speaker 1: the important thing is if it's desirable, let's try to
Speaker 1: get it through. That happened a lot. I can't say
Speaker 1: there was no conniving, but Ken and I and ever
Speaker 1: used to call what we did open conniving. Openly arrived
Speaker 1: at okay, so you went on the first Circuit and
Speaker 1: you had a very good reputation there, and then um,
Speaker 1: you were being considered to be on the Supreme Court,
Speaker 1: and so you came down for an interview with President Clinton.
Speaker 1: But you had a bike accident and you had a
Speaker 1: lot of injured bones. If I recall so that you
Speaker 1: can think that was a bad karma that you had
Speaker 1: this accident before you had the interview. And did that
Speaker 1: affect your ability to do the interview well or it
Speaker 1: didn't make a difference. I have no idea. I mean,
Speaker 1: that's the truth of the matter. And later, later I
Speaker 1: thought about it, and of course the newspaper people wanted
Speaker 1: to say, weren't you terribly disappointed? Da da, da, da da?
Speaker 1: And I said, I'll tell you what I said. Well,
Speaker 1: you know, it's not such a terrible thing in your
Speaker 1: life to be seriously considered to be on the Supreme Court,
Speaker 1: even if you're not appointed, and that's about the best
Speaker 1: you can do. And I was thinking, partly I said
Speaker 1: that because it's true, and partly I said it because
Speaker 1: I did have children. Hey, my friend, you don't always
Speaker 1: win everything you want, and my goodness, what you want
Speaker 1: those children to learn? And you want them to learn. Fine,
Speaker 1: sometimes you'll get everything you heart desires, not very often,
Speaker 1: and sometimes you won't. And you better be a good
Speaker 1: sport about when you don't as well as when you
Speaker 1: do well. Mick Jagger has a song about that. You
Speaker 1: can't always get what you want, and so you didn't
Speaker 1: get us. After my generation, Justice Skinsburg was appointed first,
Speaker 1: but then you were appointed next by President Clinton. So
Speaker 1: when you've got on the court, how had it changed
Speaker 1: from when you were a clerk? Was it much different?
Speaker 1: Were you surprised by the changes? Yes, I thought it
Speaker 1: was different in this respect. When I clerked, I felt
Speaker 1: it was a court with a mission. What mission? In
Speaker 1: nineteen fifty four, the Court had decided that plus c v.
Speaker 1: Ferguson rightly was down the drain and legal segregation is
Speaker 1: contrary to this document equal protection of the law. They
Speaker 1: said it in nineteen fifty four, And we both know
Speaker 1: what happened in nineteen fifty five, nothing next to nothing.
Speaker 1: Nineteen fifty six, yeah, double nothing. Nineteen fifty seven, a
Speaker 1: rather brave judge in Little Rock said, those Little Rock nine,
Speaker 1: those nine brave black students are going into that white school,
Speaker 1: Central High School. But the governor. Governor Fables said, maybe
Speaker 1: those students have a court order, but I have the
Speaker 1: state militia and they're not. And Eisenhar, I'd like to
Speaker 1: see that at the monument that they're building for him.
Speaker 1: He called in a thousand troops from from Fort Bragg,
Speaker 1: the hundred and first Airborne, and they took those nine
Speaker 1: black children and walked into that white school. No. I'd
Speaker 1: like to say that's the end of the story, but
Speaker 1: it wasn't. What happened was after a few months, the
Speaker 1: troops had to withdraw. And when that happened, the school
Speaker 1: board said, we're not going to integrate anymore. And when
Speaker 1: that happened, a very famous case went to the Supreme Court,
Speaker 1: Cooper versus Erin, And when that happened, all nine justices
Speaker 1: signed the opinion saying, integrate, now do it right now
Speaker 1: in Little Rock. Hey, but they're nine people. Maybe there
Speaker 1: could have been nine, maybe nine thousand. U uh huh.
Speaker 1: Foulbus closed the school. That's what happened for those of
Speaker 1: us who remember and those of us who don't. But
Speaker 1: they couldn't keep it closed because that was the era
Speaker 1: of Martin Luther King, the Freedom Writers, and suddenly the
Speaker 1: North woke up and others woke up and said, this
Speaker 1: is an intolerable situation. And eventually, through a lot of
Speaker 1: work and a lot of work, and a lot of
Speaker 1: moral effort, and a lot of physical effort, and a
Speaker 1: lot of organizing effort and so forth, eventually legal segregation
Speaker 1: was brought to a conclusion. And the reason that I
Speaker 1: find that story important and I told that story to
Speaker 1: a woman from Ghana who is the Chief Justice who
Speaker 1: is trying to improve the constitutional system there and asked me,
Speaker 1: why do people do what you say? And my response was, ma'am,
Speaker 1: three million people in this country and three hundred million
Speaker 1: are not lawyers. That comes as a surprise. And those
Speaker 1: are the people you have to convince, convince what convinced
Speaker 1: that they should try to follow the court to the
Speaker 1: rule of law when they don't like it, when they
Speaker 1: think it's wrong. And that's why I wrote this book.
Speaker 1: In a sentence, that is why I want people to
Speaker 1: see in some detail. It's not moralizing, it's my experience
Speaker 1: and I want them to see what the court can do.
Speaker 1: But when you say the court can do, it doesn't
Speaker 1: mean nine people. It means the country as it's come
Speaker 1: to develop, a long time, two hundred years, and then
Speaker 1: maybe maybe we have a country that can use this
Speaker 1: weapon called the rule of law in order to prevent
Speaker 1: some pretty terrible things. Let's talk about what's called the
Speaker 1: shadow docket for the people who are not lawyers. What
Speaker 1: is the shadow docket and why hasn't becoming such a
Speaker 1: big thing. What it is is that in between hearing
Speaker 1: the cases on which we have decided to hear, someone
Speaker 1: will make an emergency motion. Now that's what it is,
Speaker 1: an emergency motion. The country is divided. I'm in charge
Speaker 1: of the first circuit for example. That everybody is in
Speaker 1: charge of some circuit. So if there is a litigant
Speaker 1: in the circuit who believes that he needs immediate attention
Speaker 1: to issue an injunction or to stop an injunction, well
Speaker 1: then he'll file it with me and I'll look at it.
Speaker 1: And if most of them there isn't much too, and
Speaker 1: so it's easy to deny it. But some there is
Speaker 1: something too, and then you, I use, you will refer
Speaker 1: it to the whole conference. And if I should have
Speaker 1: and didn't, he can go to any other judge and
Speaker 1: it will be referred to the whole conference. Most of
Speaker 1: these that are the subject of the whole conference has
Speaker 1: our death cases and at the very last minute because
Speaker 1: of COVID. I think there have been some recent cases
Speaker 1: which did not just involve the death penalty or something
Speaker 1: that wasn't too difficult, and there I I thought I
Speaker 1: was in the descent in those cases. Well, the most
Speaker 1: recent abortion case, I was in decent. I thought it
Speaker 1: was wrong and I thought we should have heard the
Speaker 1: whole thing. It was a procedural matter. They didn't decide
Speaker 1: the substance of the status. There will be a case
Speaker 1: presumably working its way up to the court, but it
Speaker 1: might take a year or so for a well where
Speaker 1: we're having there is a case in November where that's
Speaker 1: the sighting matter. You've been on the court now twenty
Speaker 1: eight years. What are you most proud of having done?
Speaker 1: And what's the pleasure of being on that Supreme Court.
Speaker 1: It's a great privilege to be on the court. I mean,
Speaker 1: there's no no doubt. And from a personal point of view,
Speaker 1: I'd say it requires you in middle age when you
Speaker 1: get there, uh, to give your best to this every minute.
Speaker 1: And you say, is that a big virtue? Yeah? Yeah.
Speaker 1: And the older you get, the more you see it
Speaker 1: as an enormous virtue. Einstein famously said, if you try
Speaker 1: something over and over again and expect a different result,
Speaker 1: that's the definition of insanity. So if somebody asked you
Speaker 1: the same question and over and over again expecting a
Speaker 1: different answer, I guess that's the definition of an insane interviewer.
Speaker 1: But let me ask the question you've already been asked many, many,
Speaker 1: many times. I know you're not going to give it
Speaker 1: differ an answer, but I have to ask you the question,
Speaker 1: what are your thinking about all of the issues relating
Speaker 1: to your retirement? Okay? Einstein was right? Einstein was right. Okay,
Speaker 1: So you have said that you don't want to die
Speaker 1: on the court, and presumably nobody would want you to
Speaker 1: die on the court. So what do you It's Einstein
Speaker 1: is coming back. So what is it that you would
Speaker 1: like to do when you were alive after you're off
Speaker 1: the court? In other words, would you like to go
Speaker 1: teach again, if you like to write, would you like
Speaker 1: to just take life easy? What would you like to do?
Speaker 1: It's hard to take life easy, but I do. We'll see. Okay,
Speaker 1: so you haven't thought about what you might want to do?
Speaker 1: Or yeah, go through my mind. President Biden has put
Speaker 1: together a commission that's going to look at the court. Um,
Speaker 1: and you have already articulated your view that you don't
Speaker 1: think expanding the size of the court is a wonderful idea.
Speaker 1: I think you've said that. What I've said is that
Speaker 1: they better be pretty careful about it, because two can
Speaker 1: play at that game. And of course, what's worrying me,
Speaker 1: and I say that I try to explain to people
Speaker 1: in the book the extent to which politics is relevant
Speaker 1: or not relevant, or president or not president, and in
Speaker 1: what form uh in in in the work of our court.
Speaker 1: And what worries me is that people will think we're
Speaker 1: junior league politicians. And if they think that, the first
Speaker 1: second thought should be why I don't have a senior
Speaker 1: league politician. And once you begin to think along those lines,
Speaker 1: two can play at that game. As I said, you
Speaker 1: could have Republicans appointing and the Democrats appointing and vice versa.
Speaker 1: But I see the overall tendency of that is, given
Speaker 1: the history, given the way we work, given the country,
Speaker 1: et cetera, as weakening the confidence of the average person
Speaker 1: in the decisions of the Court. And you can say
Speaker 1: what's wrong with that? And I say, well, that's sort
Speaker 1: of a step towards or away from a rule of law.
Speaker 1: What would you like most people to know about the
Speaker 1: Supreme Court? If you could say to the average citizen,
Speaker 1: here's what you should know in a paragraph about the
Speaker 1: Supreme Court. I assume you know it would be something
Speaker 1: along the lines that it's not as political as some
Speaker 1: people think. But what would it be? You would say
Speaker 1: a judge, once he puts on that black robe, I'm
Speaker 1: not going to say it's a midnight transformation, but look
Speaker 1: a judge, and I have to think this about myself
Speaker 1: there too. I have to a judge is there for
Speaker 1: all Americans. He's not there just for Democrats. He's not
Speaker 1: there just for Republicans. He's not there just for the
Speaker 1: president of the party that a pointed him. And even
Speaker 1: if half the country thinks he's a real idiot and
Speaker 1: they can't stand what he writes in his own mind
Speaker 1: and the way he approaches the job, he has to remember,
Speaker 1: he said, for everybody, all three hundred and thirty one million.
Speaker 1: Thanks for listening to hear more of my interviews. You
Speaker 1: can subscribe and download my podcast on Spotify, Apple, or
Speaker 1: wherever you listen,