WEBVTT - Stephen Breyer

0:00:03.240 --> 0:00:05.400
<v Speaker 1>When I was a young staffer on Capitol Hill, I

0:00:05.480 --> 0:00:07.520
<v Speaker 1>met a man named Stephen Bryer who was a law

0:00:07.520 --> 0:00:10.280
<v Speaker 1>professor at Harvard. I thought, very smart, he'll probably be

0:00:10.320 --> 0:00:12.680
<v Speaker 1>an academic the rest of his life. But actually he

0:00:12.720 --> 0:00:15.200
<v Speaker 1>became a Justice of the Supreme Court and has been

0:00:15.240 --> 0:00:17.840
<v Speaker 1>in that role for twenty seven years. I recently had

0:00:17.840 --> 0:00:20.360
<v Speaker 1>a conversation with him about his future and about the

0:00:20.360 --> 0:00:22.640
<v Speaker 1>future of the Supreme Court. I have to start with

0:00:22.680 --> 0:00:27.280
<v Speaker 1>the questions on everybody's mind. Obviously, why is this book

0:00:27.320 --> 0:00:30.000
<v Speaker 1>that you've just written so small? It's a very small book,

0:00:30.040 --> 0:00:32.000
<v Speaker 1>and I'm used a bigger books. So why is this

0:00:32.200 --> 0:00:33.760
<v Speaker 1>book so small? I mean, why didn't you get a

0:00:33.800 --> 0:00:39.960
<v Speaker 1>bigger book? Um, this is the Constitution and it's smaller. Okay,

0:00:40.040 --> 0:00:44.040
<v Speaker 1>all right? A lot of Justices of the Supreme Court

0:00:44.159 --> 0:00:46.760
<v Speaker 1>carry around the Constitution all the time. Is that because

0:00:46.800 --> 0:00:49.639
<v Speaker 1>you're gonna forget what's in it? Or are you? It's

0:00:49.680 --> 0:00:51.639
<v Speaker 1>just like their mind. People are just read it over

0:00:51.640 --> 0:00:54.800
<v Speaker 1>and over again. You never never know when somebody's going

0:00:54.880 --> 0:00:57.320
<v Speaker 1>to ask you a question. You see, somebody says, what

0:00:57.400 --> 0:01:00.760
<v Speaker 1>does the Article three, Section nineteen? Say? Okay, and they

0:01:00.800 --> 0:01:03.000
<v Speaker 1>expect you to know okay. So you have to have

0:01:03.080 --> 0:01:07.640
<v Speaker 1>it here. It is so your book. This book is

0:01:07.720 --> 0:01:10.200
<v Speaker 1>a interesting book in the sense that it came from

0:01:10.240 --> 0:01:13.759
<v Speaker 1>a series of lectures you gave. Um named after somebody

0:01:14.120 --> 0:01:17.920
<v Speaker 1>who was an ideological, let's say, opponent of some of

0:01:17.959 --> 0:01:22.399
<v Speaker 1>your views, and that was Justice Scalia. So Um, were

0:01:22.400 --> 0:01:26.120
<v Speaker 1>you a friend of his even though you had ideological differences? Yes,

0:01:26.280 --> 0:01:29.840
<v Speaker 1>I think so. We would we would uh debate those

0:01:29.880 --> 0:01:32.959
<v Speaker 1>differences and we'd go. I thought we had a terrific

0:01:33.040 --> 0:01:38.560
<v Speaker 1>debate in Lubbock, Texas. There were several thousand students would come.

0:01:38.600 --> 0:01:42.600
<v Speaker 1>They've never seen the Supreme Court justice, and we talked

0:01:42.640 --> 0:01:47.080
<v Speaker 1>about our differences. You know, I say, hey, if I

0:01:47.160 --> 0:01:50.360
<v Speaker 1>had your theory, my goodness, don't you think that. Do

0:01:50.400 --> 0:01:54.120
<v Speaker 1>you think George Washington knew about the internet for free speech?

0:01:54.480 --> 0:01:59.800
<v Speaker 1>You're thinking? And Scalia would say I knew that. Well,

0:02:00.000 --> 0:02:03.160
<v Speaker 1>good point. Then he would say, I'm not saying my

0:02:03.280 --> 0:02:06.920
<v Speaker 1>theory is perfect. He would say, you know, the two

0:02:07.080 --> 0:02:11.080
<v Speaker 1>hunters they're hunting bears and one's putting on his tennis shoes.

0:02:11.080 --> 0:02:15.239
<v Speaker 1>Where are you going? And he says, I'm bears coming.

0:02:16.200 --> 0:02:19.040
<v Speaker 1>You can't outrun a bear, he s yeah, but I

0:02:19.040 --> 0:02:22.440
<v Speaker 1>can outrun you. Say that was his view of my

0:02:22.919 --> 0:02:27.160
<v Speaker 1>way of deciding cases, and we of course I never

0:02:27.320 --> 0:02:31.240
<v Speaker 1>in and I still twenty eight years now, I've never

0:02:31.280 --> 0:02:34.919
<v Speaker 1>heard a voice raised in anger in that conference room.

0:02:35.240 --> 0:02:39.800
<v Speaker 1>I've never heard one just to say anything mean or

0:02:41.360 --> 0:02:43.920
<v Speaker 1>table or anything like that. Good would that do? I

0:02:43.960 --> 0:02:47.160
<v Speaker 1>try to explain that to the students. You know, you

0:02:47.240 --> 0:02:50.320
<v Speaker 1>get all excited, and all that happens is people disagree

0:02:50.360 --> 0:02:53.079
<v Speaker 1>with you. Think, well, you know, he's all excited, he

0:02:53.160 --> 0:02:58.200
<v Speaker 1>must be wrong, and that's that's so true. So we

0:02:58.280 --> 0:03:03.560
<v Speaker 1>get on well personally, and we're friends personally, and we

0:03:03.800 --> 0:03:07.000
<v Speaker 1>disagree on some things, not as many as you think,

0:03:07.680 --> 0:03:10.480
<v Speaker 1>but some It's not always been the case. There wasn't

0:03:10.520 --> 0:03:13.560
<v Speaker 1>a Supreme Court justice who refused to talk to or

0:03:13.600 --> 0:03:17.600
<v Speaker 1>be in the presence of justice grandise because he was Jewish. McReynolds, right,

0:03:18.040 --> 0:03:20.679
<v Speaker 1>So it hasn't always been that friendly. But you're saying

0:03:20.760 --> 0:03:22.959
<v Speaker 1>right now, since you've been on the court twenty eight years,

0:03:23.680 --> 0:03:26.639
<v Speaker 1>people don't yell and scream at each other, and they

0:03:26.680 --> 0:03:29.200
<v Speaker 1>don't insult each other, and they're not rude to each other.

0:03:29.480 --> 0:03:32.520
<v Speaker 1>And it's a professional job, and you go in and

0:03:32.560 --> 0:03:35.760
<v Speaker 1>do your best professionally, and if you want people to

0:03:35.840 --> 0:03:39.360
<v Speaker 1>listen to you the most. The best you can do

0:03:39.520 --> 0:03:44.760
<v Speaker 1>is to think through this problem, listen to where the

0:03:44.760 --> 0:03:47.680
<v Speaker 1>other person is coming from, and see what you can

0:03:47.680 --> 0:03:50.960
<v Speaker 1>contribute to that thought. But sometimes that a censor a

0:03:50.960 --> 0:03:54.280
<v Speaker 1>little bit tough on the person who wrote the majority opinion.

0:03:54.480 --> 0:03:58.560
<v Speaker 1>That's nobody takes that personally. I get that question a lot,

0:03:58.600 --> 0:04:00.360
<v Speaker 1>and I used to get it more with Ninas Scalia

0:04:00.480 --> 0:04:02.560
<v Speaker 1>was on the court and the two of us would

0:04:02.600 --> 0:04:06.480
<v Speaker 1>be there, and somebody to ask that question, and I'd

0:04:06.520 --> 0:04:08.520
<v Speaker 1>tried to answer it because I didn't want him to

0:04:09.000 --> 0:04:11.480
<v Speaker 1>and I'd say, I'd say, look, I know you're not

0:04:11.560 --> 0:04:15.600
<v Speaker 1>aiming that question at me. You're aiming it at Nino. Okay,

0:04:15.720 --> 0:04:18.920
<v Speaker 1>I get it. But what you don't understand is that

0:04:19.080 --> 0:04:25.960
<v Speaker 1>some people suffer from a disease. It's called good writer's disease.

0:04:26.800 --> 0:04:30.640
<v Speaker 1>And if a good writer finds a felicitous phrase, he

0:04:30.720 --> 0:04:34.000
<v Speaker 1>won't give it up. Let the word, let him destroy himself,

0:04:34.080 --> 0:04:35.720
<v Speaker 1>let the world come to an end. It's like a

0:04:35.760 --> 0:04:40.599
<v Speaker 1>good comedian, you can't give up that joke. Now that's Nino.

0:04:40.880 --> 0:04:44.040
<v Speaker 1>He is a very good writer. He has a felicitous phrase,

0:04:44.279 --> 0:04:47.240
<v Speaker 1>and we all know that and we don't take it personally.

0:04:47.320 --> 0:04:49.360
<v Speaker 1>Do you have a lot of unanimous decisions in these

0:04:49.480 --> 0:04:51.719
<v Speaker 1>days or they don't get that much attention? And do

0:04:51.760 --> 0:04:53.800
<v Speaker 1>you really have a lot of five four decisions and

0:04:53.880 --> 0:04:55.520
<v Speaker 1>they get all the attention it seems, But is that

0:04:55.600 --> 0:04:58.280
<v Speaker 1>where the court really has its arguments with each other

0:04:58.320 --> 0:05:02.120
<v Speaker 1>the five to four decisions and no, not necessarily what

0:05:02.200 --> 0:05:05.280
<v Speaker 1>you read about are the ones that the press thinks

0:05:05.400 --> 0:05:08.120
<v Speaker 1>the public will be interested in, which usually has a

0:05:08.200 --> 0:05:13.200
<v Speaker 1>political or a social content, and they'll say that's the

0:05:13.200 --> 0:05:16.120
<v Speaker 1>most important. I don't know that. One of the most

0:05:16.120 --> 0:05:19.520
<v Speaker 1>important decisions I wrote this last year was called Google

0:05:19.640 --> 0:05:22.960
<v Speaker 1>versus Oracle, right, and and it was it took a

0:05:23.040 --> 0:05:26.120
<v Speaker 1>year for me to write that. It was about copyright

0:05:26.240 --> 0:05:31.800
<v Speaker 1>and something called programs, uh interface programs, And I was

0:05:31.920 --> 0:05:36.520
<v Speaker 1>told that that was very very important. Well for me,

0:05:36.600 --> 0:05:39.040
<v Speaker 1>it was like learning Latvian. I mean, I don't know

0:05:39.080 --> 0:05:41.640
<v Speaker 1>how I did that, but but you see it, it's

0:05:41.720 --> 0:05:45.479
<v Speaker 1>it's it's it's I'm not saying all the I see

0:05:45.520 --> 0:05:48.559
<v Speaker 1>what they're saying. I see what they're saying. And it's

0:05:48.600 --> 0:05:51.800
<v Speaker 1>true that a lot of the sort of exciting cases

0:05:52.200 --> 0:05:55.400
<v Speaker 1>are more close. But the justice is I suppose you

0:05:55.440 --> 0:05:58.280
<v Speaker 1>have a decision. It's five to four, and well, I'm

0:05:58.279 --> 0:06:01.479
<v Speaker 1>one justice kind of go to other justices chambers and say,

0:06:01.560 --> 0:06:04.200
<v Speaker 1>you know, your argument isn't so good and maybe you

0:06:04.240 --> 0:06:06.440
<v Speaker 1>should do something different? Or is everything just done by

0:06:06.480 --> 0:06:08.760
<v Speaker 1>memos and writing? You don't have people going down the

0:06:08.800 --> 0:06:11.320
<v Speaker 1>hall and saying, let's have lunch together and maybe I

0:06:11.320 --> 0:06:13.680
<v Speaker 1>can persuade you my position is better than yours. That

0:06:13.720 --> 0:06:17.760
<v Speaker 1>does that ever happen? Most of it is memo, but

0:06:19.680 --> 0:06:22.360
<v Speaker 1>quite a lot can be business two chambers. But if

0:06:22.400 --> 0:06:26.080
<v Speaker 1>I'm going into your chambers, I'm not going to say no,

0:06:26.240 --> 0:06:29.640
<v Speaker 1>your argument isn't so good. This would not be a

0:06:29.680 --> 0:06:33.520
<v Speaker 1>helpful way to start the conversation. And if you go

0:06:33.640 --> 0:06:37.479
<v Speaker 1>into somebody else's chambers, you better be prepared to listen

0:06:37.520 --> 0:06:41.239
<v Speaker 1>to them as well as hoping that they will listen

0:06:41.279 --> 0:06:45.200
<v Speaker 1>to you. And then you try to see and that's

0:06:45.200 --> 0:06:47.640
<v Speaker 1>what I learned in the Senate. That's what you try

0:06:47.680 --> 0:06:50.760
<v Speaker 1>to see is where is there some common ground? And

0:06:51.040 --> 0:06:55.040
<v Speaker 1>is there common ground enough that you can work with it.

0:06:55.160 --> 0:06:58.440
<v Speaker 1>Let's go back to your earlier life. Um, I work

0:06:58.480 --> 0:07:01.040
<v Speaker 1>on Capitol Hill and you work Premium Capital. Who you

0:07:01.080 --> 0:07:03.560
<v Speaker 1>were a Harvard law professor and I'm just curious when

0:07:03.560 --> 0:07:05.919
<v Speaker 1>you go to Harvard Law School and you're at the

0:07:05.960 --> 0:07:08.520
<v Speaker 1>top of your class. When you start Harvard Law School,

0:07:08.520 --> 0:07:10.800
<v Speaker 1>there's always kind of an intimidation factor. You have six

0:07:10.840 --> 0:07:13.080
<v Speaker 1>hundred people. You have to figure out, you know, where

0:07:13.120 --> 0:07:14.720
<v Speaker 1>you're going to be good or not. When did you

0:07:14.760 --> 0:07:17.600
<v Speaker 1>realize you were really good at at law school kind

0:07:17.600 --> 0:07:20.400
<v Speaker 1>of things taking exams? Did you know right away you're

0:07:20.400 --> 0:07:22.720
<v Speaker 1>gonna be a great law school student and therefore become

0:07:22.760 --> 0:07:25.640
<v Speaker 1>a potential law school professor or were you nervous the

0:07:25.680 --> 0:07:29.720
<v Speaker 1>first year or so? I think God's pretty nervous. I

0:07:30.040 --> 0:07:32.360
<v Speaker 1>mean I remember talking to a friend of mine I've

0:07:32.400 --> 0:07:35.440
<v Speaker 1>been an undergraduate with and he was there too, pulled

0:07:35.480 --> 0:07:38.160
<v Speaker 1>dotic actually, and we both said, well, this is the

0:07:38.240 --> 0:07:42.000
<v Speaker 1>end of our great careers after our first year. And

0:07:42.040 --> 0:07:43.840
<v Speaker 1>we both did pretty well in law school. Are you

0:07:43.840 --> 0:07:45.440
<v Speaker 1>were on the Harvard Law Review. And when you're on

0:07:45.480 --> 0:07:47.600
<v Speaker 1>the Harvard Law Review, sometimes you get the clerk on

0:07:47.640 --> 0:07:51.640
<v Speaker 1>the Supreme Court for another justice and you clerk for r.

0:07:51.720 --> 0:07:54.680
<v Speaker 1>Through Goldberg And what was that like? It was terrific.

0:07:54.960 --> 0:07:58.280
<v Speaker 1>He was great, He was an enthusiast, He had loads

0:07:58.280 --> 0:08:01.800
<v Speaker 1>of energy. Jack Kennedy said that he was the smartest

0:08:01.800 --> 0:08:04.200
<v Speaker 1>man he ever met. So you clerked for him, and

0:08:04.240 --> 0:08:06.800
<v Speaker 1>then you went to teach at Harvard Law School. And

0:08:06.880 --> 0:08:09.080
<v Speaker 1>when you went to Harvard Law School, did you say,

0:08:09.160 --> 0:08:11.560
<v Speaker 1>this is gonna be my life. I'm gonna be a professor,

0:08:11.600 --> 0:08:14.760
<v Speaker 1>nothing terrible about that. You can teach great law school

0:08:14.800 --> 0:08:17.840
<v Speaker 1>students and so forth. Or did you say, maybe someday

0:08:17.880 --> 0:08:20.119
<v Speaker 1>I'll be on the Supreme Court, maybe I'll be a judge.

0:08:20.120 --> 0:08:21.800
<v Speaker 1>It was that in the back of your mind. I

0:08:21.840 --> 0:08:25.600
<v Speaker 1>didn't think maybe someday. Anybody who thinks maybe someday I'll

0:08:25.640 --> 0:08:28.600
<v Speaker 1>be on the Supreme Court. I mean, I don't want

0:08:28.640 --> 0:08:30.880
<v Speaker 1>to say there's something wrong with him, but there is something.

0:08:31.040 --> 0:08:34.920
<v Speaker 1>Right after teaching at Harvard Law School, you got a

0:08:34.960 --> 0:08:38.720
<v Speaker 1>very good reputation. Senator Kennedy invited you to come down

0:08:38.760 --> 0:08:40.440
<v Speaker 1>and work on his staff. I think, to work on

0:08:40.480 --> 0:08:44.840
<v Speaker 1>regulatory reform and um, and that's where I first encountered you.

0:08:44.920 --> 0:08:47.040
<v Speaker 1>And I was working Capitol Hill and and so forth.

0:08:47.080 --> 0:08:49.920
<v Speaker 1>You've got a very good reputation, and then something happened

0:08:49.920 --> 0:08:54.040
<v Speaker 1>that was a surprise to people. Uh. President Carter nominated

0:08:54.120 --> 0:08:56.800
<v Speaker 1>you to be a judge on the First Circuit. And

0:08:56.880 --> 0:08:59.839
<v Speaker 1>that's not a surprise, given your your reputation and so forth.

0:09:00.160 --> 0:09:03.040
<v Speaker 1>But it required a Republican to sign off on it.

0:09:03.160 --> 0:09:06.760
<v Speaker 1>Strom Thurman one of the most conservative Republicans. Why did

0:09:06.800 --> 0:09:10.480
<v Speaker 1>you think strom Thurman said he would let a presumably

0:09:10.600 --> 0:09:14.840
<v Speaker 1>some somewhat liberal Harvard Laft professor get on the first circuit.

0:09:15.600 --> 0:09:17.640
<v Speaker 1>I mean those are days. It was a different day.

0:09:17.760 --> 0:09:21.880
<v Speaker 1>You remember that people did try to work together. And

0:09:22.200 --> 0:09:25.800
<v Speaker 1>every single morning Ken Feinberger was like I was chief

0:09:25.840 --> 0:09:29.559
<v Speaker 1>counsel and he was a general counselor of the Judiciary Committee.

0:09:29.840 --> 0:09:33.440
<v Speaker 1>And we would have breakfast with Emery Snedden, who was

0:09:33.520 --> 0:09:37.920
<v Speaker 1>a former JAG general, and it was Strong Thurman's chief

0:09:37.960 --> 0:09:42.160
<v Speaker 1>person on Judiciary, and we would plan the day. We

0:09:42.240 --> 0:09:45.760
<v Speaker 1>planned out the day. We wanted no secrets. We wanted

0:09:45.800 --> 0:09:48.880
<v Speaker 1>to try to accomplish something, and we'd figure out how

0:09:48.880 --> 0:09:50.840
<v Speaker 1>do we color it red for this party and how

0:09:50.880 --> 0:09:53.080
<v Speaker 1>do we color it blue for the other party. But

0:09:53.160 --> 0:09:55.920
<v Speaker 1>the important thing is if it's desirable, let's try to

0:09:55.960 --> 0:09:59.959
<v Speaker 1>get it through. That happened a lot. I can't say

0:10:00.280 --> 0:10:03.360
<v Speaker 1>there was no conniving, but Ken and I and ever

0:10:03.520 --> 0:10:08.000
<v Speaker 1>used to call what we did open conniving. Openly arrived

0:10:08.000 --> 0:10:11.400
<v Speaker 1>at okay, so you went on the first Circuit and

0:10:11.480 --> 0:10:14.840
<v Speaker 1>you had a very good reputation there, and then um,

0:10:14.880 --> 0:10:16.920
<v Speaker 1>you were being considered to be on the Supreme Court,

0:10:17.640 --> 0:10:20.600
<v Speaker 1>and so you came down for an interview with President Clinton.

0:10:20.640 --> 0:10:23.640
<v Speaker 1>But you had a bike accident and you had a

0:10:23.679 --> 0:10:27.800
<v Speaker 1>lot of injured bones. If I recall so that you

0:10:27.840 --> 0:10:29.760
<v Speaker 1>can think that was a bad karma that you had

0:10:30.120 --> 0:10:32.920
<v Speaker 1>this accident before you had the interview. And did that

0:10:32.960 --> 0:10:34.800
<v Speaker 1>affect your ability to do the interview well or it

0:10:34.840 --> 0:10:38.920
<v Speaker 1>didn't make a difference. I have no idea. I mean,

0:10:38.960 --> 0:10:42.960
<v Speaker 1>that's the truth of the matter. And later, later I

0:10:43.160 --> 0:10:46.559
<v Speaker 1>thought about it, and of course the newspaper people wanted

0:10:46.600 --> 0:10:50.120
<v Speaker 1>to say, weren't you terribly disappointed? Da da, da, da da?

0:10:50.240 --> 0:10:53.480
<v Speaker 1>And I said, I'll tell you what I said. Well,

0:10:53.920 --> 0:10:55.959
<v Speaker 1>you know, it's not such a terrible thing in your

0:10:56.000 --> 0:10:59.120
<v Speaker 1>life to be seriously considered to be on the Supreme Court,

0:11:00.120 --> 0:11:03.679
<v Speaker 1>even if you're not appointed, and that's about the best

0:11:03.720 --> 0:11:07.120
<v Speaker 1>you can do. And I was thinking, partly I said

0:11:07.160 --> 0:11:11.640
<v Speaker 1>that because it's true, and partly I said it because

0:11:11.679 --> 0:11:18.080
<v Speaker 1>I did have children. Hey, my friend, you don't always

0:11:18.160 --> 0:11:23.000
<v Speaker 1>win everything you want, and my goodness, what you want

0:11:23.040 --> 0:11:27.800
<v Speaker 1>those children to learn? And you want them to learn. Fine,

0:11:28.160 --> 0:11:32.600
<v Speaker 1>sometimes you'll get everything you heart desires, not very often,

0:11:33.600 --> 0:11:36.960
<v Speaker 1>and sometimes you won't. And you better be a good

0:11:37.000 --> 0:11:40.200
<v Speaker 1>sport about when you don't as well as when you

0:11:40.320 --> 0:11:42.800
<v Speaker 1>do well. Mick Jagger has a song about that. You

0:11:42.840 --> 0:11:46.000
<v Speaker 1>can't always get what you want, and so you didn't

0:11:46.000 --> 0:11:52.240
<v Speaker 1>get us. After my generation, Justice Skinsburg was appointed first,

0:11:52.240 --> 0:11:55.120
<v Speaker 1>but then you were appointed next by President Clinton. So

0:11:55.120 --> 0:11:57.240
<v Speaker 1>when you've got on the court, how had it changed

0:11:57.280 --> 0:11:59.600
<v Speaker 1>from when you were a clerk? Was it much different?

0:12:00.080 --> 0:12:03.679
<v Speaker 1>Were you surprised by the changes? Yes, I thought it

0:12:03.720 --> 0:12:08.280
<v Speaker 1>was different in this respect. When I clerked, I felt

0:12:09.000 --> 0:12:13.480
<v Speaker 1>it was a court with a mission. What mission? In

0:12:13.600 --> 0:12:18.280
<v Speaker 1>nineteen fifty four, the Court had decided that plus c v.

0:12:18.440 --> 0:12:25.640
<v Speaker 1>Ferguson rightly was down the drain and legal segregation is

0:12:25.760 --> 0:12:29.880
<v Speaker 1>contrary to this document equal protection of the law. They

0:12:29.920 --> 0:12:34.160
<v Speaker 1>said it in nineteen fifty four, And we both know

0:12:34.240 --> 0:12:38.760
<v Speaker 1>what happened in nineteen fifty five, nothing next to nothing.

0:12:39.600 --> 0:12:44.520
<v Speaker 1>Nineteen fifty six, yeah, double nothing. Nineteen fifty seven, a

0:12:44.679 --> 0:12:49.679
<v Speaker 1>rather brave judge in Little Rock said, those Little Rock nine,

0:12:49.760 --> 0:12:53.680
<v Speaker 1>those nine brave black students are going into that white school,

0:12:54.080 --> 0:13:00.480
<v Speaker 1>Central High School. But the governor. Governor Fables said, maybe

0:13:00.600 --> 0:13:03.200
<v Speaker 1>those students have a court order, but I have the

0:13:03.240 --> 0:13:08.520
<v Speaker 1>state militia and they're not. And Eisenhar, I'd like to

0:13:08.559 --> 0:13:11.200
<v Speaker 1>see that at the monument that they're building for him.

0:13:11.280 --> 0:13:15.800
<v Speaker 1>He called in a thousand troops from from Fort Bragg,

0:13:16.440 --> 0:13:19.040
<v Speaker 1>the hundred and first Airborne, and they took those nine

0:13:19.559 --> 0:13:24.880
<v Speaker 1>black children and walked into that white school. No. I'd

0:13:24.920 --> 0:13:28.440
<v Speaker 1>like to say that's the end of the story, but

0:13:28.559 --> 0:13:33.160
<v Speaker 1>it wasn't. What happened was after a few months, the

0:13:33.320 --> 0:13:37.160
<v Speaker 1>troops had to withdraw. And when that happened, the school

0:13:37.200 --> 0:13:40.360
<v Speaker 1>board said, we're not going to integrate anymore. And when

0:13:40.360 --> 0:13:43.160
<v Speaker 1>that happened, a very famous case went to the Supreme Court,

0:13:43.200 --> 0:13:47.679
<v Speaker 1>Cooper versus Erin, And when that happened, all nine justices

0:13:47.679 --> 0:13:52.680
<v Speaker 1>signed the opinion saying, integrate, now do it right now

0:13:52.679 --> 0:13:56.400
<v Speaker 1>in Little Rock. Hey, but they're nine people. Maybe there

0:13:56.440 --> 0:14:01.760
<v Speaker 1>could have been nine, maybe nine thousand. U uh huh.

0:14:02.080 --> 0:14:07.400
<v Speaker 1>Foulbus closed the school. That's what happened for those of

0:14:07.440 --> 0:14:10.400
<v Speaker 1>us who remember and those of us who don't. But

0:14:12.440 --> 0:14:16.440
<v Speaker 1>they couldn't keep it closed because that was the era

0:14:17.280 --> 0:14:23.760
<v Speaker 1>of Martin Luther King, the Freedom Writers, and suddenly the

0:14:23.800 --> 0:14:28.760
<v Speaker 1>North woke up and others woke up and said, this

0:14:28.800 --> 0:14:33.520
<v Speaker 1>is an intolerable situation. And eventually, through a lot of

0:14:33.560 --> 0:14:35.840
<v Speaker 1>work and a lot of work, and a lot of

0:14:35.880 --> 0:14:38.280
<v Speaker 1>moral effort, and a lot of physical effort, and a

0:14:38.320 --> 0:14:46.760
<v Speaker 1>lot of organizing effort and so forth, eventually legal segregation

0:14:47.760 --> 0:14:51.200
<v Speaker 1>was brought to a conclusion. And the reason that I

0:14:51.240 --> 0:14:54.240
<v Speaker 1>find that story important and I told that story to

0:14:54.320 --> 0:14:57.280
<v Speaker 1>a woman from Ghana who is the Chief Justice who

0:14:57.360 --> 0:15:03.400
<v Speaker 1>is trying to improve the constitutional system there and asked me,

0:15:03.600 --> 0:15:10.640
<v Speaker 1>why do people do what you say? And my response was, ma'am,

0:15:10.640 --> 0:15:14.120
<v Speaker 1>three million people in this country and three hundred million

0:15:14.160 --> 0:15:19.400
<v Speaker 1>are not lawyers. That comes as a surprise. And those

0:15:19.480 --> 0:15:24.400
<v Speaker 1>are the people you have to convince, convince what convinced

0:15:24.680 --> 0:15:29.200
<v Speaker 1>that they should try to follow the court to the

0:15:29.320 --> 0:15:32.360
<v Speaker 1>rule of law when they don't like it, when they

0:15:32.360 --> 0:15:38.000
<v Speaker 1>think it's wrong. And that's why I wrote this book.

0:15:38.200 --> 0:15:41.600
<v Speaker 1>In a sentence, that is why I want people to

0:15:41.680 --> 0:15:46.240
<v Speaker 1>see in some detail. It's not moralizing, it's my experience

0:15:47.560 --> 0:15:52.160
<v Speaker 1>and I want them to see what the court can do.

0:15:53.280 --> 0:15:56.880
<v Speaker 1>But when you say the court can do, it doesn't

0:15:56.960 --> 0:16:03.520
<v Speaker 1>mean nine people. It means the country as it's come

0:16:03.920 --> 0:16:09.000
<v Speaker 1>to develop, a long time, two hundred years, and then

0:16:10.880 --> 0:16:19.080
<v Speaker 1>maybe maybe we have a country that can use this

0:16:19.120 --> 0:16:23.640
<v Speaker 1>weapon called the rule of law in order to prevent

0:16:24.720 --> 0:16:28.000
<v Speaker 1>some pretty terrible things. Let's talk about what's called the

0:16:28.040 --> 0:16:31.280
<v Speaker 1>shadow docket for the people who are not lawyers. What

0:16:31.520 --> 0:16:33.840
<v Speaker 1>is the shadow docket and why hasn't becoming such a

0:16:33.840 --> 0:16:39.720
<v Speaker 1>big thing. What it is is that in between hearing

0:16:39.760 --> 0:16:43.760
<v Speaker 1>the cases on which we have decided to hear, someone

0:16:43.960 --> 0:16:48.320
<v Speaker 1>will make an emergency motion. Now that's what it is,

0:16:48.360 --> 0:16:52.680
<v Speaker 1>an emergency motion. The country is divided. I'm in charge

0:16:52.680 --> 0:16:55.480
<v Speaker 1>of the first circuit for example. That everybody is in

0:16:55.560 --> 0:16:59.400
<v Speaker 1>charge of some circuit. So if there is a litigant

0:16:59.520 --> 0:17:05.560
<v Speaker 1>in the circuit who believes that he needs immediate attention

0:17:06.680 --> 0:17:11.280
<v Speaker 1>to issue an injunction or to stop an injunction, well

0:17:11.359 --> 0:17:14.720
<v Speaker 1>then he'll file it with me and I'll look at it.

0:17:15.080 --> 0:17:17.720
<v Speaker 1>And if most of them there isn't much too, and

0:17:17.800 --> 0:17:20.600
<v Speaker 1>so it's easy to deny it. But some there is

0:17:20.640 --> 0:17:23.560
<v Speaker 1>something too, and then you, I use, you will refer

0:17:23.640 --> 0:17:26.119
<v Speaker 1>it to the whole conference. And if I should have

0:17:26.240 --> 0:17:28.680
<v Speaker 1>and didn't, he can go to any other judge and

0:17:28.760 --> 0:17:32.240
<v Speaker 1>it will be referred to the whole conference. Most of

0:17:32.280 --> 0:17:35.960
<v Speaker 1>these that are the subject of the whole conference has

0:17:35.960 --> 0:17:39.640
<v Speaker 1>our death cases and at the very last minute because

0:17:39.680 --> 0:17:44.679
<v Speaker 1>of COVID. I think there have been some recent cases

0:17:45.320 --> 0:17:48.639
<v Speaker 1>which did not just involve the death penalty or something

0:17:48.680 --> 0:17:54.280
<v Speaker 1>that wasn't too difficult, and there I I thought I

0:17:54.440 --> 0:17:56.800
<v Speaker 1>was in the descent in those cases. Well, the most

0:17:56.840 --> 0:18:00.040
<v Speaker 1>recent abortion case, I was in decent. I thought it

0:18:00.080 --> 0:18:01.879
<v Speaker 1>was wrong and I thought we should have heard the

0:18:01.880 --> 0:18:04.840
<v Speaker 1>whole thing. It was a procedural matter. They didn't decide

0:18:05.280 --> 0:18:09.320
<v Speaker 1>the substance of the status. There will be a case

0:18:09.359 --> 0:18:11.080
<v Speaker 1>presumably working its way up to the court, but it

0:18:11.160 --> 0:18:13.480
<v Speaker 1>might take a year or so for a well where

0:18:13.480 --> 0:18:15.840
<v Speaker 1>we're having there is a case in November where that's

0:18:15.880 --> 0:18:18.080
<v Speaker 1>the sighting matter. You've been on the court now twenty

0:18:18.160 --> 0:18:20.600
<v Speaker 1>eight years. What are you most proud of having done?

0:18:20.600 --> 0:18:22.560
<v Speaker 1>And what's the pleasure of being on that Supreme Court.

0:18:24.040 --> 0:18:27.320
<v Speaker 1>It's a great privilege to be on the court. I mean,

0:18:27.359 --> 0:18:31.440
<v Speaker 1>there's no no doubt. And from a personal point of view,

0:18:31.560 --> 0:18:35.879
<v Speaker 1>I'd say it requires you in middle age when you

0:18:35.960 --> 0:18:41.880
<v Speaker 1>get there, uh, to give your best to this every minute.

0:18:42.680 --> 0:18:46.040
<v Speaker 1>And you say, is that a big virtue? Yeah? Yeah.

0:18:46.080 --> 0:18:48.040
<v Speaker 1>And the older you get, the more you see it

0:18:48.200 --> 0:18:52.800
<v Speaker 1>as an enormous virtue. Einstein famously said, if you try

0:18:52.880 --> 0:18:55.600
<v Speaker 1>something over and over again and expect a different result,

0:18:55.880 --> 0:18:59.280
<v Speaker 1>that's the definition of insanity. So if somebody asked you

0:18:59.320 --> 0:19:01.639
<v Speaker 1>the same question and over and over again expecting a

0:19:01.640 --> 0:19:05.640
<v Speaker 1>different answer, I guess that's the definition of an insane interviewer.

0:19:05.680 --> 0:19:08.680
<v Speaker 1>But let me ask the question you've already been asked many, many,

0:19:08.720 --> 0:19:11.480
<v Speaker 1>many times. I know you're not going to give it

0:19:11.480 --> 0:19:13.919
<v Speaker 1>differ an answer, but I have to ask you the question,

0:19:14.520 --> 0:19:18.080
<v Speaker 1>what are your thinking about all of the issues relating

0:19:18.119 --> 0:19:25.119
<v Speaker 1>to your retirement? Okay? Einstein was right? Einstein was right. Okay,

0:19:25.400 --> 0:19:27.320
<v Speaker 1>So you have said that you don't want to die

0:19:27.359 --> 0:19:29.800
<v Speaker 1>on the court, and presumably nobody would want you to

0:19:29.840 --> 0:19:35.960
<v Speaker 1>die on the court. So what do you It's Einstein

0:19:36.160 --> 0:19:39.680
<v Speaker 1>is coming back. So what is it that you would

0:19:39.680 --> 0:19:42.720
<v Speaker 1>like to do when you were alive after you're off

0:19:42.720 --> 0:19:44.320
<v Speaker 1>the court? In other words, would you like to go

0:19:44.400 --> 0:19:47.240
<v Speaker 1>teach again, if you like to write, would you like

0:19:47.359 --> 0:19:50.280
<v Speaker 1>to just take life easy? What would you like to do?

0:19:50.520 --> 0:19:54.119
<v Speaker 1>It's hard to take life easy, but I do. We'll see. Okay,

0:19:54.160 --> 0:19:55.919
<v Speaker 1>so you haven't thought about what you might want to do?

0:19:56.080 --> 0:20:02.000
<v Speaker 1>Or yeah, go through my mind. President Biden has put

0:20:02.040 --> 0:20:05.320
<v Speaker 1>together a commission that's going to look at the court. Um,

0:20:05.359 --> 0:20:08.120
<v Speaker 1>and you have already articulated your view that you don't

0:20:08.160 --> 0:20:11.040
<v Speaker 1>think expanding the size of the court is a wonderful idea.

0:20:11.040 --> 0:20:13.040
<v Speaker 1>I think you've said that. What I've said is that

0:20:13.080 --> 0:20:15.440
<v Speaker 1>they better be pretty careful about it, because two can

0:20:15.480 --> 0:20:18.800
<v Speaker 1>play at that game. And of course, what's worrying me,

0:20:18.920 --> 0:20:21.600
<v Speaker 1>and I say that I try to explain to people

0:20:21.600 --> 0:20:25.240
<v Speaker 1>in the book the extent to which politics is relevant

0:20:25.320 --> 0:20:27.959
<v Speaker 1>or not relevant, or president or not president, and in

0:20:28.040 --> 0:20:31.760
<v Speaker 1>what form uh in in in the work of our court.

0:20:32.440 --> 0:20:35.280
<v Speaker 1>And what worries me is that people will think we're

0:20:35.359 --> 0:20:38.520
<v Speaker 1>junior league politicians. And if they think that, the first

0:20:38.560 --> 0:20:40.520
<v Speaker 1>second thought should be why I don't have a senior

0:20:40.600 --> 0:20:44.520
<v Speaker 1>league politician. And once you begin to think along those lines,

0:20:44.600 --> 0:20:46.679
<v Speaker 1>two can play at that game. As I said, you

0:20:46.680 --> 0:20:51.000
<v Speaker 1>could have Republicans appointing and the Democrats appointing and vice versa.

0:20:51.400 --> 0:20:55.240
<v Speaker 1>But I see the overall tendency of that is, given

0:20:55.280 --> 0:20:57.680
<v Speaker 1>the history, given the way we work, given the country,

0:20:57.720 --> 0:21:02.880
<v Speaker 1>et cetera, as weakening the confidence of the average person

0:21:03.920 --> 0:21:07.040
<v Speaker 1>in the decisions of the Court. And you can say

0:21:07.040 --> 0:21:09.040
<v Speaker 1>what's wrong with that? And I say, well, that's sort

0:21:09.080 --> 0:21:13.880
<v Speaker 1>of a step towards or away from a rule of law.

0:21:14.800 --> 0:21:17.399
<v Speaker 1>What would you like most people to know about the

0:21:17.400 --> 0:21:19.520
<v Speaker 1>Supreme Court? If you could say to the average citizen,

0:21:20.240 --> 0:21:22.320
<v Speaker 1>here's what you should know in a paragraph about the

0:21:22.320 --> 0:21:26.119
<v Speaker 1>Supreme Court. I assume you know it would be something

0:21:26.359 --> 0:21:28.520
<v Speaker 1>along the lines that it's not as political as some

0:21:28.560 --> 0:21:30.720
<v Speaker 1>people think. But what would it be? You would say

0:21:32.000 --> 0:21:35.440
<v Speaker 1>a judge, once he puts on that black robe, I'm

0:21:35.480 --> 0:21:38.920
<v Speaker 1>not going to say it's a midnight transformation, but look

0:21:39.600 --> 0:21:41.880
<v Speaker 1>a judge, and I have to think this about myself

0:21:41.960 --> 0:21:47.639
<v Speaker 1>there too. I have to a judge is there for

0:21:47.800 --> 0:21:54.080
<v Speaker 1>all Americans. He's not there just for Democrats. He's not

0:21:54.160 --> 0:21:58.320
<v Speaker 1>there just for Republicans. He's not there just for the

0:21:58.359 --> 0:22:02.600
<v Speaker 1>president of the party that a pointed him. And even

0:22:02.640 --> 0:22:05.040
<v Speaker 1>if half the country thinks he's a real idiot and

0:22:05.119 --> 0:22:09.480
<v Speaker 1>they can't stand what he writes in his own mind

0:22:10.760 --> 0:22:16.000
<v Speaker 1>and the way he approaches the job, he has to remember,

0:22:17.680 --> 0:22:21.399
<v Speaker 1>he said, for everybody, all three hundred and thirty one million.

0:22:22.600 --> 0:22:25.119
<v Speaker 1>Thanks for listening to hear more of my interviews. You

0:22:25.160 --> 0:22:29.240
<v Speaker 1>can subscribe and download my podcast on Spotify, Apple, or

0:22:29.280 --> 0:22:30.119
<v Speaker 1>wherever you listen,