Supreme Court Justice Stephen Breyer – Print Edition FEATURE

Today the Virginia Review of Politics releases our first ever Print Edition, featuring a shortened version of our interview with Supreme Court Justice Stephen Breyer. The full transcript can be found below.  

Stephen G. Breyer is the 97th Associate Justice of the Supreme Court of the United States. Appointed in 1994, Justice Breyer previously served as Chief Judge of the United States Court of Appeals for the First Circuit. Born in San Francisco, California, August 15, 1938, Justice Breyer earned a degree in philosophy from Stanford University, before attending Oxford University's Magdalen College as a Marshall Scholar. After graduating from Harvard Law School, he clerked for Supreme Court Associate Justice Arthur J. Goldberg, before becoming a law professor at Harvard. Breyer was appointed by President Carter as a judge for the U.S. Court of Appeals for the First Circuit, before being named chief judge. Justice Breyer’s books include Active Liberty: Interpreting Our Democratic Constitution, Making Our Democracy Work: A Judge's View, and The Court and the World: American Law and the New Global Realities.

The following has been edited and condensed for clarity. The views shared here do not reflect nor do they suggest the views of the Virginia Review of Politics. 

Alex Hendel (Interviews Editor, Virginia Review of Politics): Among your many other accomplishments, one thing that doesn’t immediately come to the forefront is your time working on the Watergate investigation. How did this influence your approach to the practice and application of the law? What do you believe it said about the strengths of the American legal system?

Stephen Breyer: Well first, thank you for inviting me. Very glad to be at UVA and I'm really glad you're involved in this project. I think it’s great that you’re students. It’s trite that your generation is going to have to be the generation that solves these problems, and it certainly isn’t easy.

My involvement in Watergate was not major. I was a professor at Harvard, teaching antitrust. I knew Archie Cox during Watergate, and I worked with the justice department on criminal investigations. Jim Vorenberg was with him, and they wanted someone to organize – there was an antitrust part of it, involving something called the Dita Beard memo, which everyone has forgotten. I went down to organize that part of it.

And you say “what did I learn from that?” Well it does give you faith in american institutions. We have a very complex system. I’d say the two most important things that I learned: one, was working with Archie Cox. He was a very honest man. I mean, totally. Wherever that investigation – the set of them – was going to lead, that’s where he was going to go. If you wanted to recommend one thing to watch, it would be when he was fired, he gave a press conference. That was totally Archie. He said, “you know, I’m not in this job to somehow get the President of the United States. I sometimes think I’m getting too big for my britches. I have to be careful to do what I’m appointed to do, which is to look into the facts and find out what it is. Wherever they lead, they lead.” That’s what he was like personally: he was honest. He didn’t have some kind of political ambition. He would do his job. His friend was Elliot Richardson, and Elliot Richardson resigned too, as did Ruckelshaus, because they told the Senate that they would not dismiss Archie Cox. They kept their word. They couldn’t. A word to the Senate meant something, and does mean something. You keep it. So I would say the first thing I learned working for him is that it’s possible to be honest and to do your job. You may not always do it perfectly, but you do your best.

The other thing of course, was the complexity. I think it worked out pretty well in the sense that the people who were found to be responsible were held responsible in various ways, either by the legal system or by the political system.

AH: In his book, How Judges Think, Richard Posner lays out an argument that in many cases, especially those without judicial precedent, judges take into account extra-judicial factors, including public opinion. However, you have noted your disagreement with this position, saying that public opinion “can’t really influence [a judge’s] judgements.” To what extent then do you believe judges are influenced, consciously or unconsciously, by extrajudicial factors or extralegal factors?

SB: Extralegal factors...That’s a tough one, because I think most judges – indeed, Posner too – when you have a difficult case in a text, or a statute, or maybe the Constitution, there is a question: “What does it mean?” This typically means, “How does it apply?” In our court, we’re only going to hear cases – almost all the time the only reason we take a case is because lower court judges have come to different conclusions on the same question of law. There’s already division of opinion. Then, we’ll hear it.

All of us, whatever court, when we’re interpreting a question of law – and it’s difficult – use the same basic tools. One, we read the text. If it says animal, that doesn’t mean vegetable. Second, we look at the tradition where that’s appropriate. Suppose the word is habeas corpus. That has hundreds of years of tradition, and we’ll look at it. Third, we will look at the history of this provision. How did it get where it is? That leads to the precedent, which is often split. It’s not that there isn’t any, it’s that it’s indeterminate or uncertain. Then, you look at the purpose, which you may get out of the history, or you may get out of the context. Why are those words there? Somebody wrote them. They had something in mind. What is the purpose of those provisions? Finally you will look at the consequences. That is, normally the consequences in terms of the purpose: if it’s a first amendment case, it’s probably going to be consequences related to speech or religion; fourth amendment, probably related to search and seizure or privacy.

We all have the same thing. We all have text, tradition, history, precedent, purpose, consequence. Purpose might be what the constitution values. We all have the same six. Some judges will put more emphasis on the first four. That was Scalia. He said “I never go beyond the first four,” which is language, tradition, history, precedent. You know, we used to debate this and discuss it in public, universities too, it was great. I enjoyed it, he enjoyed it, it was very civil and quite fun and interesting. But I’d say, “Look, I read a book in which there’s an essay by you, about how you look at purpose and consequence.” He said, “Well, sometimes.” And I said, “Of course I use the first four. Everyone does. It’s a question of emphasis.”

Now when you get to consequences, of course you’re looking at the public – that’s what it’s about. That isn’t a non-legal factor. You want to know how it will affect people. Now if you mean by “opinion” whether the public is going to think it’s good or bad, that’s besides the point. I can’t say it’s 100% besides the point, for this reason: when the Supreme Court of the United States embarks on an effort to interpret the law, as every thinking person thought it should be interpreted, equal protection of the law means that black people should receive the same protections as white people. You don’t have to be a genius to figure that one out. Yet, the reason they couldn’t do it is because they were afraid – and Holmes wrote an opinion where he said this – they were afraid nobody would do what the Court said. And that led them to hesitate. Read Thurgood Marshall’s argument in Brown v Board. It is in a sense a legal argument, but it’s a legal argument where he knows that every single judge on that court thinks he’s right. So his real argument is, can you do it? Do you have the power to do it? Will people do what you say, or should you just not do it because you’re afraid it just won’t happen. Read the argument, and he says “You have to do it.” The arguments against it are unjust – and then he describes them.

But you see, so very rarely. You’ll say, “maybe we shouldn’t decide this now because maybe it’ll cause [something].” But that doesn’t normally happen. So where you say you’re influenced by public opinion – no. You try not to be. You do your best not to be. Are you influenced by what your children say or what your parents say? Well in a legal case you try not to be. You can’t escape your own skin, you can’t jump out of your own shoes. But, no, I think the answer is no, except very rarely. Do you take into account the public? Of course you do. Do you take into account the consequences? Absolutely. That’s part of the legal analysis.

Eric Xu (Editor in Chief, Virginia Review of Politics): You have always been the Supreme Court’s primary voice in favor of learning from international law precedent. What do you have to say to judicial isolationists who point to the United States’ unique tradition as precedentially removed from international decisions?

SB: In the book I’ve written, The Court and the World, which I’m giving a talk about, I put what you’ve just said in what may appear to be random, but they are carefully chosen, words. I say, look beyond our own shores. What I think is most interesting – and the views set in terms of foreign precedent is a part of it, but not the whole thing – is that we live in a world where our own shores are making less and less of distinction, whether you like it or don’t like it. I’m not here to argue whether you should like it or not like it.

The world is such that whereas when I joined the Court, maybe one case a year would require us to look beyond the boundaries of the United States, today it’s 20-30%, 15%, somewhere in there. That’s not a change the philosophy of judges, it is a change in the world. We live in a world where business, disease, migration, the environment, you name it – of course the problems are international. They require us to take them into account in interpreting American law. That’s the most interesting thing. There are many, many cases where to get the right answer under the statute in front of us – antitrust statute, securities statute, let alone an international security statute with national security implications – you have to know more abroad.

Sometimes you look at the precedent. There’s nothing wrong with that. See what they say. Occasionally, we are bound by it, and when we are, Justice Scalia and I would agree we are, say in interpreting a treaty, or in interpreting an agreement with another nation. But, most of the time we’re not avowed. It’s just a question of learning something. You might learn something and disagree with it. But hey, we read law review articles – we read all kinds of things. Where you find a relevant foreign opinion, read it.

EX: In your 2005 book, Active Liberty, you make the case that our understanding of the Constitution must work in conjunction with our received ideas about democracy, fairness, and liberty in order to stay relevant. Given increasing polarization and disagreements over what “active liberty” entails, how specific can the recommendations of your book be in deciding real cases?

SB: I want to show that an idea informed the creation of the Constitution that the people have tended not to overlook, but to minimize. That is that – going back to the Greeks – the average person, a citizen of the United States who is not a lawyer, not a judge – and contrary to popular belief there are 319 million of our 320 million who aren’t lawyers – that they vote. They have a right to participate, indeed they must participate. Their liberty, which is the active liberty, the active liberty is that they take part in the decisions that will affect them. Does that influence our decisions? Of course it does.

For example, we had a decision about free speech, involving a restriction on politicking at the voting place years ago in a case called Burson. In interpreting the first amendment, that first amendment is not simply a negative liberty. It is not simply a negative liberty, that government should leave you alone. It’s much more than that. Read the first amendment.

There’s a good book by Burt Neuborne at NYU, and he says the music of the first amendment – I hadn’t seen this, but it’s there – it starts with religion (“Congress shall make no law establishing religion or interfering with the free exercise thereof”). That’s a question, important at that time, generalizing a freedom to think. Conscious ideas that are in your head. Next comes freedom to speak. That’s a good point. You don’t have the freedom to say everything you think. But, if you think something you want other people to hear, say it. There we have freedom of speech. And then, freedom of the press, which is when you speak, then you communicate those ideas to others so that they can think and discuss them. Then we go into freedom of assembly, which is that they may get together in many forums. Think of that broadly. Forums like your magazine. Forums like a meeting of the bar association committees, of which there are thousands. Or a meeting of the ACLU or a meeting of the police association. All kinds of meetings. It’s called voluntary societies, where people talk about things. Then comes freedom to petition Congress.

You see, this is a kind of chain, translating the individual idea which was first in your head through speech, to communication, to gathering to discuss, to going to Congressional representatives, and eventually action. If you look at the form of that amendment, it calls to your mind through analogy that it isn’t just the government leaving you alone. It is also you participating in thought and consideration so that that thought and consideration of different ideas can lead to action in the form of government where you participate in order to bring about – we hope – a more rational and democratic result

AH: In your 2011 book, Making Our Democracy Work, you contest the standard conception of the Supreme Court as an aloof, impartial body that acts independently. How does the Court actively respond to other branches of government and the public? Do your fellow justices conceive of their role in that same way?

SB: It’s hard to say at the general level. I’m making two main points in that book. One is what Hamilton said, I’ll just repeat it. You could have the greatest constitution in the world, the most beautifully written and most wonderful document – Madison’s probably already written that – but if people don’t follow it, you might as well just put it up in the museum. The questions really is a practical question: Will people follow this document? You can generalize it and say “Will they follow the law?” That probably requires judges in part, but will they do what the judges say? I go through our own history to show that this is nothing you should take for granted. It is something that always requires education, teaching about civics in schools, getting people to understand that they’re part of this.

The second thing, as you said, is I see the document, not entirely, but probably an element of what the framers wanted. Obviously, a document that would work. That’s why Marshall said it’s a constitution we were expounding. They wanted a document that would work for at least a thousand years. A workable document is a document where judges, among others, understand the work of the other branches, and create, to some degree, a cooperative relationship. That takes many, many forms in the law.

When the New Deal came along and suddenly we began to have agencies, and these agencies nobody had ever seen before – what were they Constitutionally? They had to work out a way of judges making decisions which would take into account that the agency may know a lot more about, for example, securities regulation, than the court does. So how do we deal with that? Various doctrines and administrative law arose in order to try to produce a cooperative arrangement. The same will be true even more, I think, in the future, because there are going to be international organizations that will deal with the environment. We’ll have to work out some kind of relationship that allows rule of law and also takes into account the changing needs of other institutions. They, and the public, have to respect the rule of law and the work of the courts, and the Court in turn has to understand their role in the new government.

EX: In your 2015 dissent in Glossip v. Gross, you advance several arguments against the death penalty on 8th Amendment grounds. Why did you make the broader arguments that you did, rather than join Justice Sotomayor’s more case-specific arguments against the Court’s decision?

SB: Well, I’ve been on the Court for more than 20 years. I’ve seen a lot of cases involving the death penalty. Most, almost all were unanimous. A person is about to be executed. Even if they’ve been there a long time. Even if they’ve already had many arguments in courts. Raise an argument in our court at the last minute, normally it’s nothing new and nothing we can do about it. So I’ve seen a lot of death cases in that context. Gradually I have come to the conclusion that I came to in that opinion. It was fairly long, about 40 pages or so. I want to say that, isn’t it the case that at least there is a question? Is it possible to administer the death penalty in a way that is both fair and effective? Or, if you’re trying to be fair, are you gonna have people on death row for example, for 20, 30, 40 years, to a point where it no longer seems to make much sense in terms of any rational punishment? I wanted to point that out. And the only way to point that out, because it’s a long complicated argument – and there are sub arguments, and sub sub arguments – and if you really want to show that it seems to be irrational in its application, arbitrary in its application, arbitrary in who is selected, you have to spend time doing that. And probably I spent two years writing it. I knew there’d be a case where it would be appropriate. I put the result forward in part because that’s what I thought. In part, because I hoped people would discuss it and think about it. That’s why.

AH: Since you were confirmed by the Senate by a margin of 87-9, more recent nominees have been confirmed by much narrower margins. Do you feel that judicial nominations are becoming increasingly politicized? How does this bode for future Supreme Court nominees, and what are the implications for the judicial process?

SB: I think when I was there, being confirmed – and you say mine was easy – it doesn’t feel that way when there’s 17 Senators on one side of the table and you’re on the other side. I also had worked in the Senate – I worked for Senator Kennedy when he was chairman of the Judiciary. So I knew from those two years; I had been a teacher most of my life. The Senators will ask the questions, and do the things that they think their constituents want. I thought, that’s what they want to ask, it’s my job to answer as best I can. In a sense, you’re asking me about what the process should be. Remember, I was not the confirming person, or the appointing person. I was the confirmed position. So my opinion on that is sort of like asking for the recipe for chicken a la king from the point of view of the chicken.

The more serious point is that people don’t like the politics in Washington. If they’re unhappy about it – and I say this to students too particularly – I say “you know the first place to look?” I would call it – and it’s not a very nice thing to say – I say “the first place to look, if you don’t like what’s going on, is look in the mirror.” The elected people will reflect what they think their constituents want. If you think there are other people around, and you don’t like what they want, try to convince them. That’s the purpose of this freedom of debate. Eventually people might get fed up with too much partisanship, and they might think, “we want to get together more.” If they do think that, and there are enough of them who think we should get together more with people we disagree with, that will happen. That’s the great thing about America. I still believe in it. People don’t agree with what I think? Try to convince them. Better than the other ways of solving disputed.

EX: What has been your most memorable experience with your colleagues during your tenure on the Court?

SB: Well, we get along. We get along. So that’s a lot of minor things. No matter how much we disagree at the conference table we’ll have lunch together, and I never heard a voice raised in anger in that conference room. You’re really irritated about what someone else says, then go home and tell your wife or husband and that’s it. We don’t say mean things about each other. That works. We’re highly professional. Probably the most stressful case was Bush v Gore, because we knew everyone was watching, we knew a lot depended on it, and we had to decide it in a very short time. Normally you have two or three months at least. That’s a tremendous blessing, and that’s the comparative advantage that judges can bring to something: time to think the thing through, get the arguments, begin to understand them, ask the lawyers. That’s a tremendous advantage. In that case we had to decide quickly. It was important, and it was stressful. So I’d say that was probably that stick in my mind.

AH: Final question: What is your favorite kind of ice cream?

SB: [Laughs] My favorite flavor is rum raisin. My father would be shocked at that because his favorite flavor was peach. Now, vanilla is not bad, I completely agree. When I was a child, we would go visit my uncle in Redlands, California and they had a place which had date ice cream. Now I can still taste that in my memory. It was delicious.

ERIC: Thank you so much for joining us Justice Breyer.

SB: Thank you.