Skip to main content

tv   Justice Stephen Breyer The Authority of the Court the Peril of...  CSPAN  June 27, 2022 2:31pm-3:37pm EDT

2:31 pm
book tv every sunday on c-span2 or anytime online at television for serious readers. ♪♪ c-span now is a free mobile app featuring your unfiltered view of what's happening in washington, live and on demand. keep up with the day's biggest event with four proceedings and hearings from u.s. congress. white house event, the courts, campaigns and more for the world of politics. all at your fingertips. ♪♪ c-span now is available in the apple store and google play, download free today. c-span now, front row seat to washington anytime, anywhere. ♪♪
2:32 pm
>> it is my pleasure to introduce doctor monique. secretary for education. brings many years of public education and many years of public education, experience to the smithsonian, before joining us in june, she served as vice president for education, policy and strategic at the american institute for research. please join me in welcoming monique. [applause] >> good evening and thank you for that wonderful introduction. i like to start off with tonight's event, first offering the land acknowledgment. first i would like to acknowledge the nativein people. as well as the diverse
2:33 pm
communities who make their home in washington d.c. and for all of those streaming. i am so excited and pleased to tonight both personally and secretary of education. as you heard, this is a special evening as we are doing in person and live streaming for the first time and also education has been at the core of the smithsonian mission for 175 year pounding. the programming tonight it's been for 55 years through high quality in person programming and we are happy for that tonight. we have to fabulous people. this singular occasion spotlights associate justice stephen breyer and cnn analyst
2:34 pm
joan. let me start by introducing justice, the missoni and has a long valued connection with the supreme court. by tradition, chief justice is a member of the board of regents. how was holdings help us tell the story and shaping our democracy. they've all taken part in memorable events. we are honored to invite him back. justice breyer has a long history as a legal educator and continuing affiliation with harvard university.
2:35 pm
the book he will discuss today, authority of the court, in august 2021 for the harvard law school.ed present throughout the book is talks about the importance of judicial power, role they play in the american body. he talks about the landmark case of the 1964 brown versus board of education and amplify that throughf the three years later that reiterated that decision. the expansion of the court's authority catalyst in the 1960s.
2:36 pm
the supreme court decision and how the decision shaped our democracy. we are excited to talk about these ideas. alwe are excited to welcome joan and have her talk with him tonight.e she has covered the supreme court for 25 years and the author of several books. she most recently published a biography of cheese justiceoo roberts graduate of georgetown university and a finalist for the explanatory journalism in 2016. join me in welcoming them to the stage. [applause]
2:37 pm
>> thank you and thanks also lora rosenberg in arranging all of this. this is the first time you've been at the smithsonian and added bonus of justice breyer's in person inn washington d.c. he told me i couldn't say to the world because of the 92nd street some extra special things. you have something even better because today was the first time press and the eight justices were in the courtroom for oral arguments. they hadn't been together on the bench to hear a case since march 4, 2020.
2:38 pm
this was quite a big day. joanna breyer was there watching, kennedy was there, how does it feel to you? exciting to watch for us, what was it like to you? >> i want to first of all thank you for inviting me to the smithsonian and everybody here. how didid you feel, it fel better. [laughter] >> did you feel you were able tt get more out of the case? >> the telephone and we do it in turn, the virtue is you each get two or three minutes as you focus on the question and you focus on the answer.
2:39 pm
that is helpful, something you're supposed to do but in addition, you can't see what they look like,ha how they are reacting, you can pick up something your colleagues did so easily, what do they think about what's goingnk on? there are enough things that make it so it is an advantage. it is a big improvement. >> could you pick up on cues from your colleagues and cases argued? under cases in terms of the law but in terms of the opportunity, or able to sense where your colleagues were at?
2:40 pm
>> maybe a little more but a colleague had an analogy onto the ground. if they knew that would be the secret that they would focus on. one thing before we go into oral arguments and private conference, they call itt a private meeting, the conference, you always shake hands, are you doing that? i wonder about that. i know have had strong protocols but just as kavanaugh, even though he had been vaccinated,d, are you still eating together? tell me if you have done anything differently. >> i don't think so because it's been continuously.
2:41 pm
maybe once a week we would have more lengthy results several hours later. i don't think there's any different. >> one last thing, i never get to go. you don't talk about the case and try not to talk anything but music and grandchildren, was the general topic today? >> the proper name for the team in the area. [laughter] >> so you're getting a little political. >> i didn't know that was
2:42 pm
political because i was amazed at the knowledge of the nicknames of football teams across united states of america including those belonging to colleges but i know no and that was expensive. >> one of the biggest football fans was justice thomas, i'm sure because he loves football. i was wondering, this is thomas has always been the most silent during oral arguments and the teleconference he went in the sequence so they come second. many of us were wondering if he would go from the bench when you are back. what did you think about him jumping in from the start? >> it's good. it was 27 years, i know perfectly well he has very good
2:43 pm
questions and you would think they would be answered because others would ask those questions so i am very glad i imagine they would continue to do so. >> there was a pause and people were letting him go first. >> yes. >> okay good. i would like to turn to the book which i recommend to people although i understand it sold everywhere, people should at least still get on waiting list? >> yes, they are having a trucking crisis in. [laughter] >> i have several questions and several have come in from the audience tonight and people on
2:44 pm
zoom. it's always good to get a peek inside. the more serious ones, just as breyer related to public confidence in the court and that has been important because i watched your interviews related to the book making our democracy work. you have been having public confidence in the courts and i'm wondering if you thought in these polarized times for the public confidence and if you feel there is real risk here today. >> probably. if you look at the numbers andy. poles, you see one of the problems in the country is a lack of trust in public institutions.
2:45 pm
i think there was no trust. i don't see how any institution could without a certain degree. [inaudible]
2:46 pm
>> freedom of speech, you gave your speech and i think that's fine. [laughter] but we are going back. >> now is the time to retire justice breyer. [laughter] that's one of those sensitive questions, i did not set that up. okay. you handled that very well just breyer. let's get to that and get off the table. [applause] how do you respond to people who normally would say it more gently in your speech? what you say to people who argue you should retire as soon as possible while the democrats have the senate majority? at the basic issue -- >> that is their view, that's pretty much what i have to say.
2:47 pm
i don'td want to add to it, i noticed every time i have something, it becomes a big story. [laughter] i have noticed considerations in mind and we decide when the proper time is. i say i hope i don't die on the floor and there we are. >> because the topic is on the table, i think i will stick with that and say the notices are blackman in 1994 told the president in april of 94 that he would be stepping down and he told the president in march he would be stepping down and i think john paul stevens also
2:48 pm
did. now that we're into the term, do you think that husband hoping the president to know ahead of time? >> of look through the various practices in the only reason i don't want to answer that is because i don't want another headline. [laughter] this is about the book and i would like to stick to that. >> do you think the book has added to the polarization you are trying to step away from? >> that's an interesting question because we go back in history, you see many decisions i personally and much of the country disagrees with.
2:49 pm
that's always been true in my opinion, other people's opinion i can easily find cases but i think they are very wrong. the story i like because it made an emotional impression upon me, when chief justice was in my office, she's a woman trying to have greater emphasis on the courts and civil rights and democracy she asked me a simple question, why do people do what you say? that is what has led me into both history and the need for trust and also trying and that is whyhy i am doing. explain to people how the court works, what it does, what does when it works well and when it
2:50 pm
does well there were always be some people who think even when it does well that they are making wrong decisions so the ultimate thing i wanted to get across, you develop the habits of following the rule of law is you have convinced people who are not lawyers, not judges, they think the rule of law is enforced, it is their job. the whole thing is in this country so people often forget it, 301 million people, 300 million are not judges and they are the ones who have to understand what's important to them and follow-up opinions they
2:51 pm
disagree with. >> let me ask you this goes to why, one of the people who stood up with a sign said how could you act like things are okay when you see these? i know you write the courts differences, the public and appointed conservatives stand with the liberals, those divisions are the result, not of politics and ideology, what about the people who come back and observe so many cases, it seems like your colleagues might be voting along those lines? what to say to people who waive those issues?
2:52 pm
>> let's go back a step. if i say anything, it is the contrary. i don't say everything is going to be all right. i think itt is true of every person in this room. i want to say is the audience i talked to our high school students, law school students in the things i say is i signed a letter from george washington who said the same thing abraham lincoln said in the gettysburg address and what's that? each of my grandchildren who memorized the gettysburg address will get $20. some of them have, i don't know if everyone of them have some of
2:53 pm
them have. what i want to say there is he starts out with our fathers, what did they do? among the nation dedicated to the proposition that all men are created equal. war tofighting a great see if this nation or any nation so dedicated could long endure. all right. this is an experiment and that's what i found the letter saying the same thing, it is an experiment and a lot of europeans said it's a great theory of the enlightenment but it will never work, it will lnever work and that is what we are up against.
2:54 pm
we had 80 years of instruction in many more years of slavery before that. we've had all kinds of things and yet basically we've been able to show it sort of works. i mean, sort of. you have to be because there isn't one person who knows and all i can say is i think some institutions is an important prospect but continue it's so great.y' the younger generation, history and what our institutions do and belongs to them and that's what
2:55 pm
i say is true. [laughter] >> i get it so let me ask a specific question in the book, justice alito and a wife it covered speech recently quoted you from yourd book, his advice, just do your job. if except what you wrote. on the payroll -- >> and you've done it effectively. justice alito's larger points was defense of course emergency docket or standard docket as some people call it and he was trying to say when justices issued these emergency orders september 1 when the majority, the texas abortion ban go into effect but a lot of it is
2:56 pm
necessary and business as usual defending the process butes you signed on from justice kagan when the majority of texas enforced the abortion ban, itan said majority's decision is emblematic of too much of i this court decision making which everyday becomes more on recent inconsistent to defend so this gets to another important topic people are concerned about, what you think of justice alito's defense and what to do think about the emergency process getting impossible to defend? >> what did i think about the case? about was wrong, that's why i not only wrote it but signed of the dissent and what i think justice alito red primarily an effort to explain what the
2:57 pm
emergency docket is and why you have to have those decisions normally and you do, the emergency docket where someone believes the court will hear their case so why are we writing this? while we have the oral argument and while you move aside will please issue and injunction stopping this or making an injunction away and letting it go forward and they give reasons? iav have involved these cases as i'm afraid to say. he says i want you to accept this and in the meantime, stop the execution. more recent, it's involved cases that involve covid and also the
2:58 pm
case you talked about sort not always free about by any means, not always clear what you should do and in my opinion we should have done should have chewed in injunction. we stopped the law but it did not command a majority. i grew up n in san francisco, i lived in boston and i have said this in a times. i have seen people disagree but never to the extent that i've been here. i first thought oh my god -- not just on the court, a lot of people in the city of washington d.c. disagree, okay? even your newspapers i noticed they write abouty that so that s true and my first thought as you
2:59 pm
noted, i said it before and i'll say it again, is a pity everybody doesn't agree with. this is a big country, there are 301 million people who says that because every race, every religion, every view imaginable and those people, my mother used to say, so crazy that there is somebody in this country who doesn't know. don't tell anybody she said that but this is the thing, it is a big country. two days ago in an interesting article, comparing to a lot of
3:00 pm
evidence, we are held together in part by this docket so it is a nation of people have long disagreed and like you, i have my own opinion and i often think about what i got the lock to be and sometimes i do this and sometimes i don't. ...
3:01 pm
class concerns that have been raised >> i don't know other people's minds. i know my own and i thought as i said in my case that particular case was wrongly decided. that isn't the only case i mentioned. do you think plessy versus ferguson was correctlydecided ?
3:02 pm
>> wasn't part of the current pattern that people have raised concerns about an i wanted to follow up ... >> you at the writing in 1920 you would have said and i think many people would have that it was a court made up ofseven conservative justices and 2 liberals . and maybe a third. correct? when i grew up in the 40s, 50s, 60s, i had thought particularly the 40s and 50s that every appointee at the supreme court we used to have to learn their names in school. it's not such a greatthing but we had to learn what the court was about . that every single one had been appointed by either president roosevelt or president truman. i thought that the proper
3:03 pm
thing to do is all the justices should beappointed by democrats . >> do you still think that? >> i have no comment. >> let me ask two follow-ups. one is there an opportunity for the court to reverse itself on someweight on the texas order . >> the texas order sent specifically there's nobody whatsoever on the constitutionality of the texas law. the texas case is whether we should take basically a decision of the lower court was whether certain defendants in the texas case had an immunity from suit. >> but you were very concerned about what it would do why was that. >> for reasons that are
3:04 pm
obvious. >> i think they would like to know. >> because there were a lot of women who believed they had a right to abortion and that this might discourage or prevent someone from doing it . that taps into the procedural law because then the count is waiting that equity. that is to say if you issue an injunction, who will it hurt and how much you don't issue an injunction who will hurt and how much in my view that it might hurt a large number of women as i wrote who wish to exercise their constitutional right to i didn't think it was an honest harm to texas to postpone their law. that wasn't the only question that is involved in deciding
3:05 pm
such a manner. that was one question. of items that are important. the majority didn't even say whether i was right or wrong on that but they did say that this is not about the merits of the decision. the merits of the texas case. that remains an issue that perhaps the court will decide. the lower court will decide in this town. >> in your book you referred to roe versus wade is a piece of evidence for how the court is isn't asconservative as commentators say . you say in your book are counter the apartments the court has grown conservative but the court has upheld obamacare and not struck down roe versus wade. are you feeling as confident today about the future of roe as you were when you wrote that? >> when i wrote that i didn't know more than you.
3:06 pm
>> about what was comingup in texas . >> about how the courts will decide. that's a normal thing that happens. it is not 100 percent and it was 100 percent you would never have had around versus board ofeducation . that's what i proffered that's what i thinknow . >> tand what was that part? >> i realize you would like me to go into incredible detail in describing my views or other people's views in a case that may come debefore us and if there's one thing i am not supposed to do it that. >> i'm going to talk about 1996 when you were an opinion on the court. confirmed by a vote of 87 to 9 and the last confirmation
3:07 pm
we had justice any coney barrett was on astraight party line vote. what will it take to return to a less partisan time ? >> remember the confirmation process is a political process. i give a lot of reasons in that book. some or one or two of which but not all of which, i give one or two simple reasons in the book for thinking not that it's what the word or politics might mean as applied to a court which is very different from those of the senate or the house where i worked as a staff person for some time. and one thing i learned there , i learned a lot of things in that period. but i think it's important to me, that remain important to me and one of the things that i've learned is in my confirmation or somebody
3:08 pm
else's you want to get another situation,i'll tell you . i'll sit here for 15 minutes after this is over and you can say anything you like . how's that? it's clear. >> for those people on resume , another pair of members of the audience sent our democracy can't wait, justice breyer retire. this is one thing you haven't heard. >> do people recognize you on the street? >> not really. some do. not very often. sometimes in washington. sometimes in a restaurant somebody might.
3:09 pm
and sometimes somebody will come up and ask the question and it's always the same question. >> do they ever ask you going to retire? >> not really. >> what is the question of chaos? >> rtu justice souter. [laughter] >> but they told me justice souter who was appointed in 1990 by george bush retiredin 2009 . do you think people are still saying that to you? really? wow. i appreciate your references to justice kennedy. i'm sorry, senator kennedy . >> you wanted an answer. the answer to that was relevant to your question. it's that senators and congress by and large ask the question that they believe they want and if in fact you
3:10 pm
don't want certain questions. if they're not tentative to what their constituents want they won'tbe senators for very long . what i say to the high schools and this is not just aquestion. i say look , the thing is you are part of a decision making process or you soon will be in this country. so what i think is the experience of the country and what i think through that first amendment decision and i learned this in the senate to. listen. listen to what other people say. >> does that mean you think that today's senators and the senators who for example block the confirmation of
3:11 pm
merrick garland would set the tone for the polarization we're talking about . they were acting on what they believed their constituents wanted. >> then you have to ask them that question. already said i think senators who do not follow pretty much what their constituents want, that's my own opinion. what i did learn in the senate and what my stress is when i'm talking to the students because i saw senator kennedy do it all the time and he's a sort of his staff to do it.and maybe he'll be persuaded but most likely you won't you might try to persuade them but most likely you won't . if they talk long enough you'll find some people do actually agree. and when you hear the other person say something that you agree with you say maybe we can work with that. let's see if we can and then
3:12 pm
you try to work with them on that. and americans are pretty good at workingtogether even those that they disagree with . then by the way, you may get somewhere. if you get 30 percent, better to have 30 percent then be the hero of nothing. and i promise you that was his attitude. and he said look, don't worry about the press. if you get a positive result he out of that working with this other person, finding something, you get a positive result, it's good for people. give them plenty of credit to go around. and if you don'tsucceed , who wants the credit? now i would like, i believe that this is what the fourth grade or grants school had at
3:13 pm
least one class where four of us would have to work together for what was the government of san francisco like and you'd one great. so you'd better learn how to work with the other people. >> i know it probably should be like all of us, we'd like to be there so there are law clerks, any y kind of administrative staff and they go around the table and justice breyer as of last year when justice ruth bader ginsburg died you have is a roundtable so chief justice john roberts had another two. i know that you took this seriously. the idea of persuasion and what you might be able to do in the conference room and i just wondered if you could talk to people about what it is you're thinking when
3:14 pm
you're trying to get those that you know might be inclined to go in a different direction. what is your attitude now as the senior justice on the left and do you feel like you've been effective at persuading ? >> i'm not the one to ask and there are people putting more weight on what i mightsay . that's called ego and i can't resist telling you. i'm too involved. >> i understood. >> he came back and somebody said ken, was an interesting job and he said it was fabulous. it was so interesting i found i didn't think about myself for a second at the time. so you go back to the comment .
3:15 pm
i'd say it doesn't matter. that's not the issue if he's speaking for the justice the third. before his discussion and of course i know of some things where my colleagues would be sympathetic. i know others you might be surprised. i know someone who might be sort of surprised and the conference is not ha ha, i have a better argument than you. but you try to let the other person say aha i have a better ego. nonetheless, it's not a contest as to whohas the best argument . they very related to work well. >> because he did not get his way? >> because people he thought made up their minds. >> do you think it's sensational at this time?
3:16 pm
>> it may have done but it may have gone the other way. >> less. but i don't know. i don't know. i do know that the conversation is that nobody speaks twice and everybody spoken once that's a very good rule . i thought it was an excellent rule. >> then you have some back-and-forth at the back-and-forth works when we're paying attention to what the other person says and you work with what they say. it's exactly whatsenator kennedy said . i've never heard a word in that conference room or a voice raised. it doesn't happen that one person says one mean thing or even jokes about another person. it is professional n.
3:17 pm
serious. trying to get this case decided and there we are. we agreed more than you think . if you look back over the years and certainly if you throw in the 81, your way over 50 percent. and the five stories used to be about 20 percent, sometimes a little more but rarely not the same five or the same for. and often and i wrote this in the paper and found it very interesting. in an unusual combination they said unusual combination and the more unusual combination, they're all unusual accommodations. >> let's talk about another number. you had a truck in here where
3:18 pm
you talk about it's a former question soi'll try to go fast . but trumps approval rating was steady at a new set of around 62 percent. you get to the question that i had about what do you make of the fact that the approval ratings of the supreme court have plummeted. it's dropped nine points and is now in the 30s. do you have an explanationfor your job ? >>. [inaudible] people sometimes, i'm not saying all people sometimes. thinking of the cases that were decided so therefore there will be that means that fewer people approve of the. that's another part to it. >> you think that could be
3:19 pm
another ... >> the more important part i think is there is and it does help to show a lack of confidence ingovernments and institutions which is where we started . go look and compare even 40 percent with the approval rate of congress or even the presidency or even olson but a lot of institutions, a lot of institutions and that is i think you're quite right. absolutely right in saying that there weren't so the problem for all of us who've been so lucky to have grown up at the time and there are a lot of bad things but they could have been worse. and the country seems maybe i'm just reflecting.
3:20 pm
nonetheless suddenly our next generation seem to be about to be faced with real problems. so i'm not saying that this is a cause for celebration. i'm saying the opposite. and i want people to understand how i seen the court over 27 years because if they don't, i mean i might not be rates might not be right how i see the court but what i've triedto write down in one just as i've seen them . >> another line from your book because in the addition of talking about public comment you talk about the president dividing by ruling. i quote george w. bush after he lost a lot of guantcanamo would follow them and along the same lines when you refer to you notes that democratic
3:21 pm
leader at the time harry reid said that if there were no violent protests, rolling stones in the streets so i know that gave you confidence but i'm wondering if what you saw happened at the capital on january 6 could be a harbinger of perhaps people not accepting court rulings. >> i have absolutely no expertise in that matter. i mean, where not having the case before us. it's not there so i'll just stay away from it. but what i said about what i said about the no stones in the streets i think is i said look i dissented in bush versus gore. and in effect i think a lot of americans felt it was the wrong decision. nonetheless, okay.
3:22 pm
but i heard harry reid say the most remarkable thing is theyfollowed it . now, they didn't have guns or riots or stone throwing. and the stanford students i was talking to i said i know when i say that at least 20 percent, maybe 30 percent are thinking well, too bad there were a few stones thrown and so forth. i said before you come to that conclusion i would like you to look on television or elsewhere at what happens in places and times and countries where they decide their differences that way. because the rule of law is not an absolute and it's only one small part of this
3:23 pm
country's values embedded in this doctrine of the constitution. but it is an important part. and that's what i want you to do. is draw comparisons and i believe though i'm biased because i'm a judge perhaps i'm biased, i don't think so. i believe it is important to maintain that respect for the rule of law that ever since andrew jackson refused to carry out john marshall's opinion saying northern georgia belonged to turkey instead sent troops to index turkey but we've made progress in that respect and how to continue to make that progress and how not to retro dress is the question i raised. it isn't a question i can answer. i can have a few ideas about but there's certainly not docile.
3:24 pm
what i can do is i can go back and say ti want to tell you how i seen this institution with some history, with some explanation about where politics and an elaboration of the extent to which it is and isn't and some suggestions for things that might be done in the courts and outside . >> you did it in the book and i just want to get a couple of comments from our audience. this is from dave who is watching on zoom and he said our justice is concerned with the actions the republican party is taking nationwide to lessen voting rights and even throwing out legally cast ballots ? >> we are concerned with the issues that come in front of us. our job is to decide the cases of a person, i might have other views but unlike every other person i'm rather hesitant somewhat.
3:25 pm
maybe not enough to give my views on some of these other questions but i will give my view on the cases that come before the court when i am deciding them and when i write my opinion. that's the job and that's, i think it's important. >> let me bring you back to one other thing you said about senator kennedy and the experience of the legislative branch was in theother questions . i'm interested in criminal justice reform and sentencing during those years at as a justice you've separated yourself from your colleagues on capital punishment and how t long they may languish on death row but you never said capital punishment could be considered unconstitutional. the bank, would you be moving closer to that? >> my goodness. when you say i complained, i
3:26 pm
didn't complain. it's not my job to complain o. i write opinions and what i did on capital punishment is i wrote an opinion that was 46 pages. that's quite a lot for me and i gave a number of reasons why i thought the court again should reconsider the question of whether capital punishment is constitutional. of course i would not in that opinion give my own views precisely by saying i think it is. but nonetheless, my job is to decide even in a matter like that after reading the arguments of the voters, after hearing their oral arguments and after discussing it with my colleagues. and that is important point. because it is an honor, a
3:27 pm
great honor and a privilege to be a member of the supreme court of the united states. and one of the things that you take in after two or three years anyway if not for his i'm there not just for democrats and i am there not just for republicans. i am there for not people, the 301 million and maybe 200 million. who disagree with everything i say but i justwant to point out that even if they disagree , i still must be there for them and that remeans ... >> the reason i asked that question is your views are not unlike harry plessy and you remember what he did in the year or so before he was
3:28 pm
living in 94. he said he never wanted to tinker with the machinery of that because he felt like he had seen enough. i was wondering if you would suggest how views change over time on an issue like this in ageneral way ? >> i wrote the 46 pages i think because i've had the experience i've had with the death penalty over 27 years. i wrote that about three years ago. i wrote it because i wanted people to understand the difficulties with administering a system of threats in even a reasonably fair way as i pointed out the many factors that suggest that it can't be or it isn't and i said that's why i don't see a clear method here and
3:29 pm
is one additional reason perhaps why we should reconsider constitutionality of the deputy. don't take what i just said as an authoritative statement of what i wrote in that opinion. the only way you could do that is if you were willing to spend xml time. i won't say what next is in reading the opinion. >> get two more in and one is our audience might not know that you've written him of the most important cases on abortion rights. last year from louisiana back in 2015 from texas and last year you also wrote the decision upholding obamacare. so those werethree very important cases . how did you get theassignment ? did you ever ask to have a particular case western mark. >> you could. >> have you? e>> number to be absolutely honest i think i did once when i let one of my colleagues say something.
3:30 pm
i thought maybe we can work with that and it was likely to be 5 before i wanted it to go the way i wanted it so i told chief justice rehnquist maybe i can do this but aside from that i haven't. i once told him i discovered how to get five people on a single result in this court. but i said you start with nine. >> you talk about how if you would find yourself all of a sudden falling back on your own ideology when you're deciding in case you have a mental check and you think i don't want to dothis . >> you say this is what you like i'm just putting you. >> and then you go on to say that you believe that all of your colleagues also have
3:31 pm
that check on themselves. >> i'm trying to explain the nature and in the part that you're talking about i said look, we used today to debate this all the time and in front of college audiences and it came away i think be interested. look, judges typically have when deciding the case they typically have the text. they have the history of the statute. they have to tradition of habeas corpus. they have the purposes. some of them had another reason for writing it for the values that underlie the first amendment. they have the consequence. things that are relevant to the purposes or the values that are involved . some judges put more weight t like justice scalia on these
3:32 pm
texts. others like me put more weight on the purposes. the values and the relevant consequences but i'm not ignoring i know the word fish there thatdoesn't mean a carrot . you can't ignore the text. it's a question of degrees often. >> let me ask you i can tell the book is coming for us. we talk about strategy 1.1 page 60 when you talk about the 13 year gap between round versus board of education in 54 and 1967 loving versus virginia and he said the court, it was a part of the court's enforcement strategy reflecting its views aboutethe state of public opinion . when i say the word strategy i think it's the law. >> that's what i say. actually that's why i say sometimes that's why you
3:33 pm
can't say never political considerations. was it a political consideration, when justice frankfurter convinced the court not to take a miscegenation case immediately because they were having a very hard time getting desegregation enforced in the south and he was afraid if we take this origination now we're just going to make it impossible. they just won't do it.os they just won't do it and he convinced of them of that and they took the loving case which was changed several years later and decided again. does that ata political decision or was it institutional? what kindof a decision was that ? and i put that in because if you want to show this, that's why it's hard to say. >> that right now that maybe
3:34 pm
there may be some cases. >> i say thank you for this evening and it's been such an honor. justice breyer i'm going to give you the last word. if there's something you wanted to share, if you could close this event. >> i think i'd like to share with everybody what we see as a problem and they generally brought it out. she's done that. i think it's great. so we have a challenge. that's when it comes to. we have a challenge and believe me i feel that. and so does lleverybody around here. we have a challenge and the challenge can be simply said that's why people pay $20 to each of their grandchildren because the challenge is to show this experiment continues to work and will continue to work. and of course it does and if we could put long lines to it of course it will. of course we can.
3:35 pm
and that's how i feel about. i think you brought that out very well. >>. [applause] >> keep up with today's biggest events with live streams offloor proceedings and hearings from congress, white house events , the courts, campaigns and more from the world of politics all at your fingertips. you can also stay current with the latest episodes of washington journal and live scheduling information for rtd networks and radio was a variety of compelling podcasts. c-span now is available at the apple store or google play. download it for free today. your front row seat to washington anytime anywhere. >> bringing you an unfiltered view of government. our newsletter word for word
3:36 pm
recaps the debris from the halls of congress to daily press briefings to remarks from the president. scan the code at the right bottom to sign up for this email and stay up-to-date on everything happening in washington each day . subscribe today using the qr code or visit to subscribe anytime. [applause] >> welcome to the new york public library. if we could silence our cell phones. tonight we present the first conversation from the coleman center of our 20th anniversary year. corey robin will discuss his new book the enigma of clarence thomas with new york times columnist jamelle i am director of the


info Stream Only

Uploaded by TV Archive on