Stephen Breyer

Active Liberty by Mr. Justice Breyer, Part II

VTR Date: December 12, 2005

Associate Justice for the Supreme Court Stephen Breyer continues the discussion.


GUEST: Stephen Breyer
VTR: 12/12/05

I’m Richard Heffner, your host on THE OPEN MIND. And as I noted last week, I’m particularly pleased that I was not only right, but presciently so, when exactly a dozen years ago, I introduced to you the then Chief Judge of the United States Court of Appeals in Boston as having written “a very short but enormously consequential” book, “Breaking the Vicious Circle: Toward Effective Risk Regulation”.

For Stephen Breyer, now Associate Justice of the Supreme Court of the United States, has just written another very short and, for many more than just professional high court watchers, an undoubtedly even more consequential volume titled “Active Liberty”, published by Alfred A. Knopf.

Now, of course, it’s long been clear that Mr. Justice Breyer does not subscribe to the more literal, less textualist approach to constitutional issues shared by some of his Brethren. Perhaps best put, his point about high court interpretations of such issues is that “… a more literal approach has serious drawbacks.”

As he writes, “Whatever ‘subjectivity-limiting’ benefits a more literal, textual, or originalist approach may bring,” and as he says, “I believe those benefits are small, it will also bring with it serious accompanying consequential harm.”

Well, last week, I first asked Mr. Justice Breyer to identify that harm and to define “Active Liberty”. And let’s pick up from there. Now, Mr. Justice Breyer we were talking about, in terms of your firm belief in the voice of the people … the people, yes; the people shall judge. How we educate the people well enough to the intricacies of our government, to the nature of democracy and its meaning. And, you talked, as I was told you would talk, about the days back in your high school in San Francisco …

BREYER: (Laughter)

HEFFNER: … why is it that we … and I really mean this question … why is it that we fail now to teach the nature of our Constitution, of our government, of these processes.

BREYER: Everyone can have his own theory. Maybe there are more distractions for the 13 year old or 14 year old than there were when we were 13 or 14. The, the problem, of course, is going to be to get people to be active in their government. Now, that might not be as big a problem as you think.

HEFFNER: Why do you say that?

BREYER: I, I read not too long ago, I had to … I had to read Tocqueville for something I was doing …

HEFFNER: I hope you read my edition …

BREYER: (Laugher) I …

HEFFNER: Clearly you didn’t.

BREYER: Well, I may … did you edit Tocqueville? I didn’t then. I didn’t and I should have. All right. I … he’s terrific. Why? In 1840 … 1840, the first thing he says he’s asked himself “Why is democracy working in America?” After all, we’re starting with a frame of mind … whether we believe it or don’t believe it … we say each of us is as good as every other person.

My father used to take me down to Market Street in San Francisco and he’d point to somebody, just a rather disheveled looking character walking along … he say, “See that … that person has one vote just like you’ll have.” Now that is the theory and that is the system. And he said, why does it work?

I think his basic answer as to why it works is because in 1840 America … he said, Americans learn how to work in a democratic system. They learn about it, they have Town Meetings in New England. They practice. They practice government all over the place. And that practice, with groups all over, thousands of different groups … we call them lobbying associations today, or we may call them public interest associations, whatever we call them we still have them. He says they learn how to do it. They learn not to go too far, they learn how to listen to each other. So I say, “Well, if I have to choose, I want the schools to teach about the Constitution”. And I hope they do.

But I also want the schools in the fifth grade … what we learned in the fifth grade is we have study groups … we might have student government. We might somehow get the idea that if I’m going to succeed in this project I’d better listen to you. And you have the idea you’d better listen to me. It’s called learning to work together. There was a place on the report card for it.

And that is what gives people practice and I think that’s still there. So, I know I read in the paper about the debate over the Patriot Act or what’s going on in Iraq, or something like that. And my goodness, people get angry.

But I think back to Tocqueville … and Tocqueville says, “Well, the first thing that strikes me in coming to America is the clamor.” And what he means by the clamor is people arguing with each other. And he says, “What are they arguing about?” They’re arguing about politics. That’s what they’re arguing about.

What are they arguing about today? Politics. Policy. Rules. How we live together. And how do we decide then and how do we decide now … same way. Everybody starts to shout. Everybody says “Your idea is a bad one. This is a better one.” And eventually out of that kind of debate, that clamor … which takes place … the newspapers … journals, television, the classroom, all over the place, all kinds of groups, and eventually things boil down until we get a rule or a regulation or a law, and the first thing that happens when that Bill is proposed …some other group says, “That’s the worst Bill I’ve ever seen in my life.” And then it’s changed. Modified. And eventually … some experience. And eventually modification again.

HEFFNER: Am I allowed to disagree with a Justice …


HEFFNER: … of the Supreme Court …

BREYER: Yes. Most people do.

HEFFNER: Ahh. No, that’s not true.

BREYER: Or many do. They do privately.

HEFFNER: But there’s something different. Yes, Tocqueville talked about the clamor …


HEFFNER: It was the characteristic of America. But there is a line today, a bitterness, a nastiness about the divisions that is far different from what it was a hundred and more years ago. I noticed in, in reading many of the recent publications about Mr. Justice Breyer and his colleagues … you, in particular have a relationship with the Brethren, that though there are vast differences between and among you … there is a comity, there is an accommodation to difference of opinion on the High Court that we seem to have lost, whether in our legislative body, or in the conflict at the polls …


HEFFNER: What do we do about that? Are you that sanguine that the, the reflections of Tocqueville represent what is going on today?

BREYER: I’m not totally sanguine, but we’ve grown up at a special time, World War II where the country pulled together. Fighting the Communist … whatever … pretty strong unanimity. What about the Civil War? How did people feel about that? What about slavery? What about “Let’s have a war with Canada” in the 1830s?

HEFFNER: (Laughter)

BREYER: What about the Depression … were my father’s generation and yours … there was no work, there might have been a revolution. There might have actually been some form of a socialist revolution, or some other kind in the United States.

What about the turn of the century, where we had the Robber Barons. And the efforts of Progressives to create. Now, I don’t know enough of the history, not being there personally to be totally confident that this is, even in that respect “the worst of times”. I’m sure it’s not the best of times …

HEFFNER: You’re …

BREYER: … still, but …

HEFFNER: You’re showing that temperament that you say is so important … you’re showing here a …may I? A subjective need, and a desire …


HEFFNER: … to look at the bright side of things by showing us that there was a dark side … always … and you, you just listed them. But do you now think that there is a difference now? In public exchange?

BREYER: I think compared to most of my life … yes. I don’t like the bitterness … no. I sit in an institution though where people have very different views.

We don’t have the same view of every legal problem. The nine of us really disagree. But despite those differences of view and they’re serious, I have never in the 11 years I’ve been there … more than 11 … heard in that conference a voice raised in anger. Never.

I have never heard one member of the court say anything slighting about another, not even as a joke. I have seen in front of me, in front of that bench, where I think as I go in there, “This is the room that Brown versus Board of Education was decided.”

I didn’t decide it, but I’ve inherited a position in an institution that did. And in front of me are people of every race, every religion, every point of view. And some of them are really far out. (Laughter) Doesn’t matter. They’re treated with respect, they’re listened to, we think about it and we decide in a professional way.

Well, we, we can get on … and we do get on. And I, I say this to the lawyers, you know, or to the law students … I said, “What good does it do, really, in a legal context, to say how much right you are … I’m certain.” How does it … what good does it do to put down the other person?

Because there is no sensible alternative way to decide serious problems other than trying to convince other people and you’re not going to convince them by, by getting totally emotional. I mean I don’t say, a hundred percent, but pretty much.

So, you’ll say, “Oh, isn’t that terrible, what they’re doing?” I’ll say, “You may be right, convince them. Convince them. Convince them to do the contrary.”

“Oh, oh, I shouldn’t have to do that. I’m so right.” Oh, really? I mean, what’s the alternative?

HEFFNER: Well, you are talking … the alternative, sir, is … is told, it seems to me, in terms of the fact that it is your branch of government …


HEFFNER: … as our friend Alexis deTocqueville indicated, prophesying that it would always be the judiciary and as long as there are free courts, as long as the judicial system is there, it will act as a counter-balance, it will act as the greatest most important prop …


HEFFNER: …to the people … yes … to democracy.

BREYER: No. I mean a prop to democracy … yes. But that isn’t what people are really disagreeing about. We’re there to keep the democracy on the rails, we’re there to decide issues at the boundary. We’re there to decide if this kind of decision by someone else, the legislature … went too far, went outside the boundaries of the democratic process.

But there’s an enormous space between those boundaries. And that is a space where people decide for themselves … how … what kind of … where … and when … what rules will there be to govern our conduct in this society? That’s called policy.

What will our policies be? And that’s not for the courts. That’s for the public. And that’s for the public in the legislatures, that’s for the public in elections; that’s for the public by organizing and getting interested in issues.

HEFFNER: But I’m talking about the very civilized procedure …


HEFFNER: … I think I’m talking less …


HEFFNER: … about content here, then about the procedure. What you provide … what the courts provide as this means of establishing the, the limits. Isn’t the court then the very body that should take the lead in helping our younger people understand what we are all about? Do I understand correctly, do you and the Brethren …

BREYER: Yeah … I, I …

HEFFNER: … do this already?

BREYER: Yeah, I, I think that that’s true. And that’s, that’s one of the reasons I’m glad I wrote this and, and we have ways of doing it. I think sometimes we can be on programs like this. I think sometimes we can be on programs that are interested in trying to explain how the courts work. Or how the government works.

Were the object is teaching. Where the object is to explain to the students in particular. I love speaking, talking to student. I, I really … I enjoy that. I suspect you do. (Laughter) You start out as a teacher … because that’s where they are … that’s where the country … that’s where it works … they have to learn how to operate this very complicated government which rests on democracy.

HEFFNER: But this is something new, isn’t it? Not for you, as an individual, but for …


HEFFNER: … the court system. Opening itself and working out …


HEFFNER: … into to the rest of the nation.

BREYER: Yes. Well, it’s new because the communication is new. Television is there since my lifetime.

HEFFNER: Which …

BREYER: I can remember before television, you know. Not many people can. But I can.

HEFFNER: Now I’ll start with I can remember before radio, but it’s not quite true.


HEFFNER: All right, we’re on a very important subject.


HEFFNER: The means of communications and the court. The new means and the courts. Is it unfair for me to ask you at this point what you, your own position is on this matter of cameras in the courts. Radio in the courts?

BREYER: We’ve, we’ve started having radio broadcasts of some of the Supreme Court cases. And, and there is, I think, good to that. There would be some good to television in the courts. It depends on how you did it.

Because it would help explain to people how we work. And, and they would see that we take things pretty seriously. There are difficult arguments and also that all the good is not on one side. In those arguments there are often very, normally, very close questions and there’s a lot to be said on both sides. There would be a very good educational function by having that shown.

Now that said, there are also dangers, particularly in trials. Particularly in exciting trails where it becomes a kind of entertainment and moreover it’s risky from the point of view of the juror, who might not want his face shown on television in a criminal case where he may fear retaliation.

Or a witness, who may be thinking more, what am I going say that … my neighbors will see it. And, there are dangers there. And so there are dangers, particularly in criminal cases, particularly in trials.

There are advantages, so I’d have to say … haven’t made up my mind, personally. I’m not sure which way this goes. Or when. Or how. So we’re trying it out gradually.

HEFFNER: The … is there major opposition in the court …

BREYER: Well, some have said …

HEFFNER: … the High Court now?

BREYER: … some have said they’re strongly against having television in … but we’re operating in a vacuum of knowledge. And the trouble is that once you take a decision like that, it’s hard to go back. And so all of us are conservative, with a small “c” on something like that.

Whatever the theory, we’ve inherited our role in an institution that’s very important to America. I didn’t decide Brown versus Board of Education, but I’m a trustee of an institution where that was decided and that helped America a lot. And not one of us would want to take a decision that was going to hurt our institution or hurt its role in American life. So we’re cautious.

HEFFNER: You know, I think of a decade ago, when I … my wife and I brought our grandson, Alexander, to the court and you were kind enough to …


HEFFNER: … to talk to us at that time, and I always tell this story, and I hope you’ll forgive me for doing so, but when we left your chamber, you were kind enough to shake Alexander’s hand and to say, “Wait a minute, I have something for you, Alexander,” and you dipped into your desk and you took out a small copy of the Constitution and you gave that to him …


HEFFNER: … and this little six year old looked at it, saw that it was the Constitution, looked up to you and said, “But don’t you need it?”

BREYER: (Laughter)

HEFFNER: And I’ve often wondered whether any of your colleagues on the bench would take that story and do something good, or bad with that. Because you’re not a literalist …

BREYER: Mmmmm.

HEFFNER: … and I wonder whether you find now that there is a larger acceptance of your non-literalist, your rather contextualist position. Are things changing? Are they changing on the bench?

BREYER: Might be. Might be. It’s … in a sense we’re both in the best and the worst position to answer that question. Because I’m closer to what’s going on, I see it every day. But also, I don’t … I very rarely step back and try to impose a pattern upon several years of experience.

My instinct is a little bit more, I agree with you. But I’m not sure … and it’s really up to the people who watch from the outside to figure out where this enterprise, or try to make generalizations about it.

HEFFNER: You know I, I’ve wondered about the … whether the recent disputes …


HEFFNER: … over appointments are helping or doing damage to the cause of making people more familiar with how the court really works.

BREYER: Mmmmm. Well, they’ll, they’ll … familiarity with how the court works is a plus. To encourage the view that, that the job of the judge is to decide what he’s good for … what is good for people is a minus. That isn’t what we do. At least none of us thinks we do that. It’s up to others to say the overall effect here … I don’t know.

But I, I do want to say that it is tempting and I think absolutely wrong to think, “Well there, there are people who see the Constitution more literally and use the words more literally and interpret the text more literally. That those people have a theory that will hold the, the judges in check. And the others don’t.”

HEFFNER: Why do you say that …

BREYER: Because that is a common view.

HEFFNER: No, but why are you concerned with that?

BREYER: I’m concerned with that because I … all of us today agree that it is not the job of the judge to decide what policies are good. That’s the job of the legislature and ultimately the public.

It is our job to try to carry out the law. Now in doing that, I’ve tried to explain here why I think people who rely on purposes and people who rely upon purposes and consequences, judged in terms of those purposes, have just as strong a theory, have just as strong an approach … an approach that keeps them true to the law … and I think it’s more true frankly, then a person who relies on literal interpretation of the language.

HEFFNER: What do you mean by “true to the law”?

BREYER: Well, true to the law is … I’ve sometimes said, being a judge, and this is true in the Court of Appeals, and it’s true here. You have a difficult case … really difficult, words in a statute … what does Section 4037C of UMPTA … (laughter) … mean in context of a labor union strike where they’re trying to get more pay and for mass transit workers and how does this particular set of language … which hardly anyone can understand what it means … what does it mean?

Well, we’re trying … our job is to interpret that. And we want to interpret it true to what those who wrote it and enacted it in Congress meant it to do. I say sometimes it’s … Learned Hand said that … he was a great judge … he was a great in the … maybe the greatest of American judges and he said, “You’re like a musician, you’re trying to interpret a score. You’re trying to be true to what that composer wanted. And there’s no single formula that’s going to keep you true. But people who look at it later will know, and you’ll know in your own heart. It’s a matter of conscience.”

HEFFNER: You say though that this is the feeling of you and of your colleagues on the bench, and yet the statistics will show …


HEFFNER: … that you support laws that have been passed by democracy, by the Legislatures …


HEFFNER: … much more than some of your colleagues. You are less willing to overturn them. How do you account for that, if there is this similarity of purpose?

BREYER: Well, no, I take seriously the, the idea and I’m sure … I take particularly seriously the idea that what we’re there to do is to try to carry out the intention of the Legislatures and ultimately they will be responsible to the people for those intentions.

And therefore I’m pretty reluctant to overturn a law as unconstitutional. And the numbers you quote say that’s not just words, that is what I do.

Now sometimes you do have to overturn those laws, because sometimes, ultimately, I’ll come … and the others will come to the conclusion that those laws violate a provision of the Constitution that’s meant to carve out the boundaries of the democractic area. Maybe they infringe upon free speech. Maybe they are an unreasonable search or seizure … has happened. But I’m reluctant to do it. And I think I’m reluctant to do it because I take the views that I’ve written in this book pretty seriously.

HEFFNER: But not all of your colleagues …

BREYER: Well, each, each person … we’re nine individualists, you know, and we each have our own views and … we’re unanimous 40% of the time. We’re five to four … you wouldn’t know this from the press, but we five to four maybe about 20%. And it isn’t always the same five and the same four. I mean it’s mixed up. And the reason we differ is … they’re hard questions. Not so easy.

HEFFNER: Do you realize that for someone, not in your position … someone … almost the entire rest of the American population … it seems so strange to say, “Well, in 40% of the cases, we’re unanimous.”


HEFFNER: Because I think of the other 60%.

BREYER: Yes. But think of the cases we’re hearing. When I say 40%, we’re unanimous … I’m saying 40% of the 80 to 90 cases in the year we’ve decided to hear. What are those cases? They are cases where the legal system, which has millions of cases in it every year and those cases have proceeded through trials, they’ve gone to appeals and maybe to another appeal, in a lower court. So there’s always one trial, at least one appeal, maybe two.

And the judges in the lower courts in those millions of cases have come to different conclusions on the meaning of the same Federal law, a statute or a Constitution. So they’re differing on an important question, an interpretation of Federal law.

Now where you have the Federal judges and some good State judges and they come to different conclusions, usually radically different conclusions about the meaning of the same phrase … some think it means one thing, some think it means another.

Well, you’ve had a lot of judges go through this. And we’re only hearing those cases, by and large … a few others. But that’s what we’re deciding. So our agenda here, our agenda is supposed to be and usually is the most difficult and open of the questions of law. So is it surprising that on such questions, where other judges have all disagreed, we might disagree, too. I think it’s more interesting that 40% of the time we’re agreed.

HEFFNER: You’ll agree of course …

BREYER: Unanimously.

HEFFNER: … that that’s a good point ..


HEFFNER: … for us to end this program.


HEFFNER: So thank you once again for joining me, Mr. Justice Breyer.

BREYER: Thank you.

HEFFNER: And, for writing this wonderful book “Active Liberty”.

BREYER: Thank you very much.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.