Stephen Breyer

Rules That Make Decision Easy … But Rob It of Wisdom, Part II

VTR Date: December 14, 1993

Guest: Breyer, Stephen


Host: Richard D. Heffner
Guest: Stephen Breyer, Part II
Title: “Rules that Make Decision Easy … But Rob it of Wisdom”
VTR: 12/14/93

I’m Richard Heffner, your host on The Open Mind. And this is the second of two programs with Stephen Breyer, the distinguished jurist who, as Chief Judge of the United States Court of Appeals for the First Circuit, was so enthusiastically touted by the press as “Bill Clinton’s likely first nominee to the Supreme Court.” He wasn’t. But Chief Judge Breyer remains the choice of those who look to make sense in our times of those many societal dilemmas to which we might well apply Henry Ristin’s insight that often “Rules make decision easy, but they rob it of wisdom.”

Because Harvard University Press has recently published Judge Breyer’s incisive new volume on personal health and safety risk and regulation, called Breaking the Vicious Circle: Toward Effective Risk Regulation, and because my guest played such a large role in airline deregulation in the 1970’s, I’d like to continue along these lines today, though I also want to look into his views on another quite different area of rules and regulation: the guidelines that now largely determine sentencing in federal courts. Do they make decision easy, but rob it of wisdom too, Judge?

BREYER: (Laughter) Yes, you have a lot of good questions.

HEFFNER: Where should we begin? Let me … You know, let’s do the unthinkable. Let’s start at the end. Question of sentencing guidelines. I would certainly want to go back to risk regulation. But do the sentencing guidelines to any extent rob decision of wisdom?

BREYER: Yes, of course.

HEFFNER: Then why do we do it?

BREYER: Well, there’s a federal judge I work with every day who is an excellent judge, Judge Drurer, who is a district judge. And he would say to me and go over these cases, and I think probably he’s right, he does know by looking at the record and the background of the person what an appropriate sentence is for a particular crime, say, bank robbery, where you steal $50,000 with a gun. And I’ve also met outstanding judges in Texas and in California, and they too absolutely know or have a fairly good idea from the record and the background what that bank robber, $50,000 and the gun, what sentence he should get. And all three of those judges, Texas, California, and Massachusetts, use wisdom in deciding that, and all three come to totally different results.

BREYER: So, do you think it’s fair that a person, if he’s in California or Texas or Massachusetts, who has the same background and the same crime, gets totally different sentences depending on what judge he happened to be faced with? In New York, you know how they assign judges in cases in the federal court? With a wheel. And the defense attorneys insisted on that because they were afraid that the sentence would depend not upon the conduct, not upon the background, but upon the judge. And a system that treats people so differently depending upon what judge you get is a system that isn’t terribly fair. And that was Congress’s reason for instituting the guidelines.

HEFFNER: Could a critic of the guidelines say to you, much more knowledgeable than I am, “Judge, I know a judge in California, a judge in Texas, a judge in Massachusetts …

BREYER: yes.

HEFFNER: “… and despite the differences between and among the crimes committed …


HEFFNER: “ … they fit into, thanks to these guidelines, situation where each defendant or criminal who is convicted was sentenced to exactly the same, had to be sentenced exactly the same way.” Is that totally fair?

BREYER: The greatest problems for law …


BREYER: … are resolving two basic, conflicting principles. Justice tells us treat like cases alike. Justice tells us treat different cases differently. Treating like cases alike means have rules. Treating different cases differently means have exceptions. Any legal system has to be both. The decision of Congress was that we’d gone way too far in the direction of treating the same cases differently. And therefore we should have rules. Of course there’s a risk that those rules will be too rigid. But the way the guidelines operate is on the following principle: They have categories, hundreds of categories, and they say to you, the judge, “Judge, if you find a defendant and a crime that fits within this category, you apply it. But, but if you think that’s unfair, you may depart. All you have to do if you depart is give your reason why you’re departing. So you either apply the category or you depart. And if you depart, you give your reason. And an appellate court will review your reason for reasonableness.” You see, there’s an escape hatch built right into the guidelines.

Now, it doesn’t work perfectly. And there are lots of complicated reasons why. The major one being that Congress has passed a whole lot of different laws which say, irrespective of what the guidelines say, you have to have certain mandatory minimum sentences. That’s sort of eroded their own system. So it’s not perfect by any means, but I think, on balance, a step in the right, I think it helps, on balance.

HEFFNER: Well, now, what makes you think, then, that you can achieve more when we come back to the area of risk regulation than this situation that we’re faced with today where eventually your judgment is going to prevail …

BREYER: This is not a system which we’re all tempted to have, that if only I could decide every problem, if only you could decide every problem, we’d get the right results. And I understand that that’s not a solution. In risk regulation, you do have rough orders of magnitude estimates of, you know, not billions, not tens of billions, but hundreds of billions. Hundreds of billions of dollars that under present rules would have to be spent, a significant portion of which to go into reducing risks that are virtually nonexistent. At the same time, it’s a society where all you have to do is spend 15 minutes and you see problems that I frankly, I think are a disgrace to the human race. All right? And they’re there. Children who can’t read. People who have serious health problems. And you think, my God, some of this resource, you don’t have to go into the crime problem. But if some of this money could be used even within the health area, it would be possible to make an order of magnitude improvement in saving human life. What I mean by that is just take a little of it and use it for mammogram programs for women from ages 50 and above. My wife works at the Dana Farber Cancer Institute. She works with children who have cancer. I go and talk to some of the doctors there. It’s not too difficult to think of how the money could be used usefully, whether it’s flying people from the Middle West whose children have cancer so that they can actually take advantage of the treatment at Dana Farber, or doing certain things in terms of diet, even telling people to eat more fruits and vegetables and advertising war against fat, or telling people not to smoke in a major way. After all, 500,000 people die of cancer every year, and 30 percent of those deaths are traceable to smoking. You don’t have to be that subtle. All you have to do is read through about 15 journals and you’ll come up with 100 ideas as how significant amounts of …

Now, it doesn’t take geniuses, and it doesn’t take me and it doesn’t take you to develop a society where within OMB people would have the discretionary authority to take some of this money and spend it in ways that would, in fact, save human life. I can’t explain every detail in approximately ten minutes, but all we would need was an hour, and we could work out the details.

HEFFNER: Why haven’t we done what you think we should do?

BREYER: There are lots of reasons. There are lots of reasons. One reason is because for a long time – and it may be true forever and it may stop us from doing it – but for a long time you live in a world where, in fact, people do not trust the government. And if they do not trust the government, they are unwilling to give discretionary authority to people to carry out this kind of an improvement. Or you can look at the charts and you see what happens. But nonetheless, despite, despite people’s distrust of government, when a particular organization, whether it’s General Schwartzkopf in Iraq, or whether it’s the Federal Trade Commission in the late 1980’s, when they … Or whether it was the Submarine Corps under Admiral Rickover, when an organization, even within the government, demonstrates to people that it is, in fact, making an improvement that they want, they will begin to trust it. And that’s why I say start small, and let some of these organizations demonstrate that they can take money from an area where it is buying little in terms of human life and safety, to an area where it’s buying more. And if you don’t treat it that way, by the way, I mean, there are a lot, you can’t, if, once people get the idea that you’re cutting back on the commitment to health and safety, they won’t approve it.

HEFFNER: Why is it that we have the impression that Judge Breyer …


HEFFNER: … who is advocating, seemingly advocating a kind of super agency with the ability to say, “This priority must prevail, it takes precedence over that one,” and that’s common-sensical …


HEFFNER: … why do we associate you with the 1970’s and the liberal Democrat’s push for deregulation? The decision suddenly that the …

BREYER: Airline deregulation?

HEFFNER: Airline deregulation or other kinds.

BREYER: The reason behind airline deregulation. You say with a consistency. In airline deregulation the reason – I did work for Senator Kennedy at that time, we did go into airline deregulation – and the reason is explained very simply. We’re at a hearing in Boston in the mid 1970’s, and actually it was a snowstorm, I think, the question of travel on air from Washington to Boston, and a woman got up in the meeting, and she said, “Senator Kennedy, why are you holding hearings on airline deregulation? I’ve never been able to afford to fly.” And he said, “That’s the reason.” All right? And now, the woman, who had never been able to afford to fly, and Lamar Mews, who talked about how he took the people who had the chicken coops on top of their car, in New York, not, in Texas, and he put those people with their chicken coops on the airplane. That’s why we had airline deregulation, so that those people could fly, and so that the person who had to travel across the state with the chicken coop could go on the airplane. And if there were people willing to fly that man with the chicken coop and willing to fly the woman in East Boston across the country at a price that they could pay, at a price they could afford, why in Heaven’s name should the government be telling them that they can’t do it? And the simple fact is that the woman in East Boston now can fly across the country. And the student who is at university can afford to fly home to see his parents. And the people who drive the chicken coops can afford to go on the airline, and I grant you that isn’t pleasant for the business traveler, because it’s more crowded, and that business traveler has someone else paying the ticket, and so he may not care so much what the price is. And so there are lots of complaints and the planes are more crowded. And there are some … I mean, I’m not in favor of bankruptcies. It’s terrible. It’s terrible. But nonetheless, in a competitive world, from time to time there are bankruptcies.

HEFFNER: All right. Let me ask you whether you don’t think that competition may be a means …

BREYER: The answer to your question is, we thought at that time this was in the consumers’ interest.


BREYER: And I understand it’s controversial, but I still think it’s in the consumers’ interest.

HEFFNER: You’d do it again.

BREYER: I would do it again, because Fred Kahn, who keeps track of these things much better than I, says that the average fare level in real terms is down 20 percent. And as long as that’s so, I say it was in the consumers’ interest. This is an area where deregulation is not the answer. You don’t have, you’re not, it shouldn’t be like, you know, the man with the hammer who sees every problem as a nail. I mean, deregulation was the solution to that, but it isn’t to this. Because people cannot judge for themselves whether or not dioxin or asbestos or cyanide for that matter, or even rat poison, they cannot judge for themselves the extent to which that will or will not harm them if they come into contact with it. Inevitably they will require the government to take regulatory action. Well, that imposes a concurrent obligation upon the government to take sensible action. Because people can’t easily distinguish, when they hear over the radio, from television and so forth, that dioxin is a carcinogen. That’s true. Agent Orange is a carcinogen. That’s true. But don’t go swimming in Agent Orange. Don’t do it. But what about one molecule? What about two molecules? What about some tiny, tiny, tiny bit? Do you want to spend 15 or 20 or 30 million or 100 or $240 million on removing every last bit of PAH from an electrical transformer? You’re spending $240 million to help people avoid a risk that’s lower than their eating one raw mushroom. You see? It’s complicated, isn’t it? But it’s not impossible.

HEFFNER: Common sense again.

BREYER: Well, a degree of common sense. And I say that, common sense, a doctor, his name slips my mind, the person who created the green revolution. All right. I was at a meeting where he was about four or five months ago. And after listening to this subject, after awhile he’s pretty conversant, and he saved, I would imagine, more lives on this planet than virtually any other human being now alive. You say, my God, what this area needs is a small dose of common sense. He’s being conservative. A small dose.
HEFFNER: It’s funny that you, I understand what you’re saying, what he said and what you’re saying.


HEFFNER: Generally, people say that you don’t get small or even infinitesimally small doses of common sense when you expand the powers of the regulators, rather than make them subject to all kinds of checks and balances and …


HEFFNER: … as I said before when I had gone back to an earlier book of yours, Regulation and Its Reform, you said, “Given the technical nature of such subjects, and the ability of firms to hire excellent counsel to argue for them, it becomes difficult for the agency to separate the public interest from the private interest of the parties.” And that’s why, in our previous program, to some extent …


HEFFNER: … now, I keep coming back to your profession, the lawyers. As long as these decisions are subject to review, as long as the litigiousness of our country can play its role here, how in the world do you get out of the present situation? Even if you had God Almighty serving as the sole regulator, if he or she could be challenged …


HEFFNER: … in the courts.


HEFFNER: … you would be spending months and years nevertheless examining the sinkholes in New Hampshire or wherever in the world it was.

BREYER: I don’t know that judicial review is an enormous problem in the area. I mean, would the … I mean, agency decisions, and I think properly so, all government decisions are subject to judicial review.

HEFFNER: Do you think properly so?

BREYER: Yes, because this is, again, most of these questions we think are so modern are not modern. The question, “who controls, who regulates the regulators? Quis ipsos custodiat,” if I remember, that’s probably Latin.

HEFFNER: It was …

BREYER: Right. Who controls the controllers? Who regulates the regulators?

HEFFNER: But how can you avoid that question? How can you avoid that question?

BREYER: You can’t avoid it. That’s the key question. And because I think the judges have limitations in that area. Judges can only say something is totally unreasonable, and it has to be really extreme before a judge should, and normally, will, interfere with the decision of a government official on grounds of arbitrariness. And there are institutional reasons. The judges are so far removed from the details of this, they are so far removed from the basic knowledge and science and so forth of it, that to rely upon them to make matters more sensible in areas of public policy is to rely on a weak read. All right? So what I’m trying to do is not increase executive branch power, but reallocate executive branch power. The lower-level officials in the line agencies such as the EPA currently have loads of power. And they tend to exercise that power through, as we, you were complaining about the guidelines, far too many rules. I would like to reallocate some of this power towards a central branch, i.e., the Office of Management and Budget, the White House, to be exercised by people who have both line and central experience, who have worked in Congress, who know some of the substance, who know the line agencies, who know the problems of the President of the United States, so that the president can rightly exercise the authority. People don’t understand. They elect the president, and they think whatever he says just happens. It doesn’t happen. What I’m actually looking for is a way in which the president can better exercise that authority that the public has elected him to exercise.

HEFFNER: You want what Walter Lippman called “Organized Intelligence.”

BREYER: Oh, that’s organized. I guess that’s right.

HEFFNER: Organized, trained intelligence.

BREYER: Let’s call it The New Deal. Let’s say The New Deal, even in the 1990’s, shouldn’t be totally dead. The notion that in a world of technocracy and science and government, that there is room for Congress to delegate authority to an agency, a branch of government, with the instruction, “Exercise it wisely.” I mean, we can be cynical, but if we’re completely cynical, what we will find is a gridlock of rules. If you don’t give people a degree of discretion you will be drowned in a gridlock of rules.

HEFFNER: But I thought you New Democrats …


HEFFNER: … before you went on the bench …

HEFFNER: … I thought you were concerned that the Great Society had re-enacted The New Deal and what we found again and again was that that kind of power always fell over or …

BREYER: The Great Society was not The New Deal. The Great Society is something slightly different than The New Deal. The Great Society is filled with optimism, and the Great Society had problems when it tried to implement that optimism. But that optimism, in large part, I think – I mean, I’m certainly no expert on this, and you’re probably more than I – I mean, if you take huge amounts of money and you’re trying to allocate that money in an optimistic way, you better take into account political reality, which consists of 535 members of Congress, all of whom are interested in these problems.

HEFFNER: What do you mean by “optimistic,” by the way? That’s an interesting notion.

BREYER: Optimistic. Optimistic that we’re going to eradicate poverty, that we’re going to cure the problems of the inner cities. You remember the 1960’s. I do too.

HEFFNER: But I also remember the 1930’s, and that was the hallmark of The New Deal. The only thing we had to fear, after all, was fear itself. We could do this. And I thought you New Democrats were those who said, “Hey, we’ve realized that government can’t do this, and perhaps we can’t do this. Better let the market forces … ”

BREYER: But of course … No, no, no. Because, that’s because … Look, I mean, actually what I’d like to call, if I can be complimentary about it, is I’d like to say that the New Democrats are pragmatic. And you say, “What does that mean, ‘pragmatism’? Well, it is a certain amount of confidence that in a democratic society eventually you’ll come close to getting it right. What’s “It?” “It” is allocating power between people, individually, people when they get together in neighborhoods, people when they get together in cities, in states, in the nation as a whole. And in all those different groups, power is allocated in such a way that you better tackle the problems that people have living together in a society, whether those are problems of health or safety or airline deregulation. And if you think there is one kind of governmental solution to all those problems, I simply disagree with you. Those people who say, “The solution to all of these problems are deregulation,” are the last of the great Marxists. You know? I mean, they’re economic determinists. They think the market will solve every problem. But of course it won’t. Of course it won’t.

And so your job as students of government is try to move a little bit closer to an allocation of weapons, i.e., technical, bureaucratic or governmental or institutional weapons, organizations, checks, balances, governmental levels, and to have no fixed view in advance that there is one solution all these problems or one type of governmental solution I find a mark of sanity. Of course there is …

HEFFNER: No fixed views.
BREYER: No fixed view that there is one particular solution to every problem, even governmentally, and there isn’t. For airlines, I think, for reasons that I have mentioned, the solution was to get the government out economically. For the sentencing guidelines, this is a closer question. But I think eventually people will come to the view that fairness demonstrates, or we’ve taken a step in the direction of fairness. There are a few changes I’d like to see in that system, I have to mention.

HEFFNER: May I tell my judicial friends that?

BREYER: I say that. I mean, I talk to them quite a lot. I think it’s far from a perfect system.

HEFFNER: But listen, I don’t want to stick on that. We have a minute or so left, literally.

Look into the crystal ball. What do you think? Given your survey of realities, your pragmatic survey …


HEFFNER: … where do you think we’re going to go in the matters addressed in Breaking the Vicious Circle?

BREYER: I think we are all over the place, people who are interested in this, people who are interested in this are beginning to think there is a greater need for, I would call the word “setting priorities.” Setting priorities. And you combine the three words, setting priorities, not cutting back on the nation’s commitment to health and safety, not cutting back, priorities, not cutting back, trying to spend that commitment in ways that buy us more health, safety, and environmental protection. Those three ideas, I think, are around. And if you can develop a little bit of trust, a little bit of trust, so the environmentalists will actually say, “Gee, this may need more protection and not less,” so that the business community will say, “Hmmm, we’d rather have the money spent wisely than wasted, even if we don’t get it back,” so that Congress will say, “We’re willing to trust the executive branch a little bit more,” and so that the executive branch will exercise the leadership necessary to induce those three reactions, then I think you’ll see change.

HEFFNER: Judge Breyer, that’s a perfect place at which to end the program, since we must end it. You’re an optimist.

BREYER: (Laughter) I am. That’s true.

HEFFNER: Thanks very much for joining me today.

And thanks, too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program today, please write: The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150. For transcripts send $2.00 in check or money order.

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