Find our complete Television Schedule at cspan. Org. And let us know what you think about the programs youre watching. Call us at 2026263400. Join the cspan conversation, like us on facebook, follow us on quitter. Up next, u. S. Supreme Court JusticeStephen Breyer is interviewed by David Rubenstein about the importance of the magna carta on its 800th anniversary. They also discuss the documents influence on american law. They spoke at the library of congress. King john originally signed the documentf vn under pressure fros barrons, american revolutionaries looked to the rights guaranteed by the magna carta as they rebelled against the english crown. This is 40 minutes. Justice brier, thank you very much for taking the time to do this. Thank you. Were going to talk about the magna carta, but before we do so, i would like to talk about a few other things, because you rarely get a chance to interview a justice of the Supreme Court. So since i rarely get this opportunity, let me take advantage of it now and say that, when you grew up, u you grew up in california and went to stanford and then harvard lou school, did you always want to be a professor or to be a judge . How did that come about to be a judge. I wanted to go into law, my father was a lawyer. You may not remember this, youre not old enough. But there was a time when you sort of tended to do what your parents said. This is completely foreign to this entire audience, such an idea, but he was a lawyer and then as far as becoming a judge is concerned, for any lawyer, a federal judge, lightning has to strike, i mean it really does. To be on the Supreme Court, it has to strike twice in the same place. So you and i worked on capitol hill at the same time, i was working briefly for the senator, and you had come down to work for senator kennedy, buzz that unusual for a harvard law professor where you come down and work on capitol hill, was that unusual and did you enjoy that experience . Yes, it is unusual. And its odd, and its still true to a degree, in the academy, theres this tremendous respect for the executive branch. If i had left harvard and took a leaf as i did, i think to be a Deputy Assistant secretary of you name is department, oh, well, we understand that. To work on capitol hill, why would he do that . Now there was that attitude, spokesen or unspoken, completely incorrect. I loved working in the senate, it was fabulous. Fabulous. And i think it still is. As a staff person j0t there, i just i would get on my bicycle in the morning. I would ride in. First thing we did when i was chief counsel of the committee 79, 80, right after you left. I was ruining things when i was in the white house, it was going downhill. No. But we would have always breakfast. Who, Emory Sneeden who was ljchw thurmans chief person of the committee, me and ken fineburg. And we would plan the day. And the idea was where legislation seemed desirable to enough people, you can color it red so this group can color it blue, color it this way, color it that way. The object was to be able to present it so people of different political views could still vote for it. And we planned it, it worked. Kennedy, i learned a lot from him. He was wonderful to work for. As you know working for burch, which was fun. It was interesting. You want to accomplish something good and every minute, though, there are things that pop up and its a wonderful place to work. It was a unique thing because there was a sense that you were actually supposed to work on legislation and pass legislation. Yes, there was. Correct. [ laughter ]. At least, try. So youre working. What happened, if you recall, in 1980, jimmy carter, my boss, lost massively to ronald reagan. In that lame duck session that was then held, president carter had nominated you to be a judge on the First Circuit. But the republicans were going to control the senate after carter left and so they really could block anything. How did you get to be confirmed in that lame duck because the republicans knew that they could killed you in the [ next sess if they just held it up for a while. How did that come about when you got confirmed by an effective Republican Senate . I think partly its the way senator kennedy wanted this committee run. I mean, he wanted it run so there would be some kind of record of accomplishment and that meant his favorite things to feinberg and me, if i had to pick the phrase, three words, that i heard the most from his lips, work it out. That was our job work it out. The first day i got there he took me to the members of the committee and particularly i remember going and the republicans like the democrats, he said to allen simpson, great senator from wyoming, if you have any problems at the committee, steve is going to be the chief counsel. Phone him. I felt that i was of course working for senator kennedy. But i was also working for the 17 members of the committee and thats how we ran it. The other thing he said, which ive kept in my mind, is if you want to compromise, you work things out by compromise but a compromise is not im here, youre there, well see what we can give up to meet in the middle. Thats not compromise. The compromise is we dont agree about something but were trying to get together. I listen to what you say. Listen. And somewhere in this conversation you will Say Something i think is okay. Then i say, what a good idea you have. Okay. Fabulous. I think we can work with that. And then we work with this idea. goes through with this idea. The other thing he said is dont worry so much about credit. Its a weapon. If, in fact, you pass it and it works, there will be plenty of credit to go around and if it goes nowhere, who wants the credit . So hell push you in front, not himself. Dont worry about it. Youthe credit for your idea which enabled us to compromise. That was his view, any way. And]pd think i we worked pretty much with that view for a couple of years and i think perhaps the republicans on the committee were a very good group, in my opinion as were the democrats, burch was fabulous, i think they all got on pretty well. Now, im told it wasnt ideal, it wasnt paradise, it wasnt everybody throwing rose blossoms around and so forth, but they did get o and i think it was that what i would call a kind of cleej yal attitude that helped and i just had a drinks the other night with a group of staff, republicans and democrats from the Senate Judiciary committee. Now, its only judging them on the basis of an hour, but i would say things have not changed that much. Theyre enjoying it. Maybe theyve changed to some degree, but you can see, you bring up certain things and what is your day like and whats actually happening during this day, theres more. Theres more give and take and theres more with their friendship and so forth than i think sometimes we understand reading the paper. So you got on the First Circuit, thurman, the ranking republican basically said hes a good man and we can work with him, hes okay. Even senator kennedy supported him, well support him. You got on the First Circuit and had a very distinguished career. One of the things you were most famous for as a judge was designing the new building that the court had. How did you actually feel you had the expertise to help design i personally did not design the building. We had an architect called harry cobb who was the partner of pai, cobb and free who designed the building. What i did do and doug widlock, and take the time meant a day a week probably for two years where we would work with gsa, the General Services administration, and try to figure out how were going to select the architect. We hired we found the money to hire a consultant who was the secretary of the Prize Committee and he was great. We went around and saw others buildings and we had great people apply. And harry did a terrific job. Ill tell you one thing, we had to choose among five or six. Here is what he did were off the subject but were not completely off it because what he did is he showed us a courthouse in lfiqvirginia, a picture, a picture of 17th century virginia courthouse red brick, steeple, porch and he said look at that building. The porch is there because it is in the square and it is5c u a p for the public to meet. The steeple is there because it signifies a public building. That building works. The judge is there with his single courtroom. He is part of the network of people who are in the government who will help that government building to work for the community and people will be part of it because its part of the community. Now, ill show you third street cambridge or los angeles. What is that building . It looks to me like a hospital or it looks like an Office Building or what is it . I dont know. The challenge is to take whats a public building for the public where its our organization the judiciary, where a high official, pretty high, a judge, a federal judge, meets face to face with the citizen who has the problem and they engage in a kind of interchange so that rich, poor, whoever1 that citn is, that judge will take the time personally to resolve his legal problem. Thats an unusual institution. We want to express that in the building, but weve got to express it in a building that will the home to 18 courtrooms, not one. And how do you do it . And when we heard that, we thought thats our problem. How do we get the public to see that this is part of their government thats not the division they and the government. And harry did a pretty good job qu1ythat. So in boston, they do bring in the School Children and they do bring in the public for a variety of uses and they do begin to edge to chip away at this enormous problem that i think we have which is how do we get those 18yearolds to understand this document that i carry around is not a document for me, it is a document for them. And we have a system where, in fact, the people of america will decide what kind of government they want within this documents framework and its one that insists on a rule of law and now were back to the magna carta. And so now were part of a world and youre part of one where were trying to convince those High School Students that they better understand this and they should understand its history and they should understand how that relates to democracy, human rights, et cetera, rule of law. Because if they dont understand it, they wont have it. Thats the connection between the courthouse, the judiciary committee, the judiciary itself and the document you want to talk about which im delaying about. Before we get to that, one or two more questions that ive always people ask, i assume, you. When you got on the supreme clinton, when you had your interview with him, famously you had been injured unfortunately in a bicycle accident and then you kind of did you get out of the hospital to go to the interview or how did that wasnt that kind of awkwardmin go do an interview when you were in not such good shape, you had broken some bones . I dont know. I cant remember. All right. You get on the court. You get on the Supreme Court and when youre on the court, how was the court when you got to be a justice different when you were a clerk . You had clerked for goldburg after you graduated from harvard law school. Was it much different being a justice yes. Much better being a justice than a clerk . In some ways yes, in some ways no. The most significant cases since youve been on the court, youve been on the court 20 years. Yeah. Would you say that bush v gore was the most significant in your tenure . Yes. And do you think that that case would have been the one that decided the president ial way, in other words, suppose you hadnt made that decision or you hadnt taken up that case, do you think the president ial outcome would have been different . I dont actually. I mean, if you can debate that. But if you read through the statutes the way the president would have been selected and you can look at the later efforts to count the votes that were cast in florida, which i think the press did umpbd different scenarios, i think i would come down on the side it might have been the same but it wouldnt have been if it had been the democratic process is that were working in a very rather complicated way and not necessarily so perfectly. But that was not my job. My job was to decide that particular case on that case i decented in that case. But i think the most important thing about thead z case, the important the person who said this, the person who said this was harry reid, who i think would have thought that maybe my side was right. He said the most remarkable thing about that case is something thats very rarely remarked and that is despite the fact that the case was important, and it was, and despite the fact that it was not popular, and it was not popular with at least half the country i maybe a few more than half, but nonetheless, it was not popular particularly and it was in my opinion wrong and i think he thinks so too, the remarkable thing is that there were not people killed. There were not riots. There were no paving stones thrown at peoples heads in the street. There were no guns. People accepted it. Now, when i say that to a student audience, i usually add the following, i know id perfec well that a good percentage of you when i say that are sitting there thinking and too bad there werent a few riots. Too bad there werent a few. And for those people i would like you to turn on the Television Set and i would like you to see how what happens in countries where people decide major disagreements that way. And we have decided to decide our major disagreements under a system of law. And that is a remarkable thing that people actually follow that. Right. Has a long history and that history does begin 800 years ago with the document that i see robert here, its his committee, and hes trying to say that that document and king john and those barrens hoof beats or whatever it was, that that is where that began. 1215, there was a famous magna carta but why do you think its so famous in the sense that it was abry gated by king john and the pope very shortly after it was agreed to. So why did it become this big part of our legal history when it was actually never went into effect . You know more about the history of the magna carta than do i. You have helped preserve the magna carta with the archives because you help the archives preserve that. Thats the 1294 or whatever 97. 1297 that you have and youre asking a very good question and i wouldnt have known the distinction between 1297 and 1215, but as youve pointed out, lord cook, blackstone, over a period of time pointed to that document, habeas corpus developed afterwards so that people could take advantage of that document. Now, what part of it is that the part they want to take advantage of and thats lasted. The part that says you not be imprisoned except in accordance with judgment of your peers or the rule of law. Thats it. And they pointed to that2 institutions. But go back to a second for bush v gore, why is it so tough to embody it in antrk n institutio . Why, because we mostly its the same question with free speech. When im talking to students, i say youre for free speech. Everybody is for free speech. Theyre for the free speech of the people who agree with them. When they hear somebody really thinks something, not that. Not that. Surely not that. But that isnt free speech. And so what harry reid is pointing out that the remarkable thing about the rule of law in the United States is on matters that important, unpopular, and maybe wrong because judges are human beings and can get things wrong and do, theyll follow it. And its so easy to do it when you like it. Its so easy when you think its really not going to affect me. Its so easy to do it when, you know, okay great. Its wonderful. Doesnt make any difference, who cares, either case. But when you really think its wrong and its really going to affect you, its pretty hard to do and its that tradition thats been built up and its been built up over a long period of time and the magna carta that we recognize is not the document of 1215 nor the document that you have over in the archives of 1297, it is those documents and those words plus the fact that we have 800 years of practice in britain and in the United States and a few other places where for some miracle its built into a habit. Custom, into a way of behaving so that actually the people will do it when they dont like it. 6n now, there we are. That is rule of law. And its that to which blackstone and cook were pointing and thats were pointing right now. When our country was being created the colonies were being put together the charters were being drafted by people like cook, they have to be helped virginia charter. In there the charters would say the virginia commonwealth would have the rights of englishmen. I think that is where the sense came in the United States or the colonies that they should have the rights to magna carta because they had the rights of englishmen or the englishmen had the rights of magna carta. But when youre deciding a Supreme Court case, do you ever say, well, let me go look it up in the magna carta or do you say, well, not really we just kind of build on the magna carta . Do you actually have you ever written an opinion where you actually use the phrase magna carta . Ive talked about the magna carta and the opinion i think was one of the more important ones. Right. That we wrote was when we had cases we had a plaintiff or a petitioner probably who wasp . Bln a prisone began ta guantanamo and the respondent was the president of the United States. Well, you have a person like bin ladens driver. He was not the most popular person in the United States. Against george w bush, the president of the United States, very powerful individual, in each of those four cases it was the person, the prison, who won. The last case, which i think was the most important was and in this one, the question was could congress suspend the writ of habeas corpus. The writ of habeas corpus is the writ which is not from the magna cartaxjae but soon thereafter, you get to a judge, anything put it on a rock, i had a case where there was a rock being thrown out the window of husband from the woman of the dominican republ republic, take this to the judge. Im being detained illegally. Lk habeas corpus, bring me the body. Who is the jailer and let that ill jaer explain himself as to what the reasons are to see if that person is being held under the law or is being held arbitrarily and he explained himself. The judge said that that jailer was wrong, release him. Now, that writ of habeas corpus, there was a question, did it extend to guantanamo . We first said the statute extends to guantanamo. Congress passed a special law saying it doesnt. The question is whether or not that writ extended allowing them to come into court to a prisoner in guantanamo where Congress Says it doesnt. But there is a provision in the Constitution Congress may suspend the writ of habeas corpus in rebellion. Guantanamo is 90 miles away. If you look at the treaty, and we control it. We control onz pit. The they sovereignty in cuba but the cubans cant get it back unless we decide not to use it as a holding station anymore or now called a naval base. And so we said this is america and the writ does extend and in writing that, Justice Kennedy wrote the opinion for the court wrote an opinion says lets trace the history of this thing and right there is a whole para graph that the history begins with the magna carta and then fades into a period where its going to be enforced and the enforcement comes through habeas corpus and this is not a minor thing. We have a constitution that doesnt just guarantee democracy, it guarantees democracy, basic human rights, a degree of equality, it has separation of powers and so forth and it guarantees a rule of law. With a document like that, this is a critical part. And therefore congress cannot, it cannot, suspend this writ of habeas corpus. The prisoners in guantanamo have the right to come into court and claim and try to prove that they are being held contrary to law. Was that a unanimous i cant remember no, it was not unanimous. There was a majority that was for it and 9z i was on that sid so i tend to think it was unanimous. Lets suppose on bush v gore youre in the minority i have been in the minority. A few times. Youre in the minority. You ever go to one of the justices and say, i need a favor, can you switch your vote a little bit and maybe i can be on the majority . Li like that. No. They just dont. No. There are two unwritten rules that i think are important in the court. Theyre not written anywhere. But we have after a case, we meet in the conference room. We discuss it. Were alone. We go around the table. And everyone says what he thinks of case. And the rule is nobody speaks twice until everyone has spoken once. Excellent. Fabulous. Not written ÷anywhere. We have discussion after that but thats a very good system. The second rule is the cases are independent of each other. They arent necessarily independent insofar as the principle of law in relation to one another. You do this here, ill do that there. No. Its called tomorrow is another day. You and i were great allies on case one. Tremendous allies. We thought we were so right. And now we have case two and were absolutely at odds. How can somebody who thought so sensibly in the last case have lost his mind . I mean, thats what it is. That is cx what it is. Now, you have brought up a if you want me to go on. I dont know if you do . Yes. But the way i get your question often in a student audience is theyll Say Something sort of like what you said or something i say, i know what youre actually thinking. What youre actually thinking is arent we Junior League politicians. Thats it. There are three things people think. One thing they think is that we take cases just whatever we would like, what fun this case would be. That is not how the cases are chosen. Ill spare you that. Then they think, we just decide the case is the way we like. I do whatever i like. I say i never do what i like. Are you kidding . Its like being married. You say no. [ laughter ]. I dont just sit there. But the third thing they think is that we are Junior League politicians. I say, no. But they say naturally you would say that. I say, look, 50 of the cases are unanimous, 48 last year. The 54s were about 20 usually. In fact, there were 1054 cases last year out of about 73, 72, something in the 70s. And of those 10, 6 were what you would call the press view, the usual suspects, liberal, quote conservative, et cetera. Six out of ah, yes. Im making a little progress here with my audience but not that much because then they say, ones. Well, those are the ones that the press said. Thats not quite ah, well. I say, okay. Lets look at those. First of all, often because the person has a sort of basic judicial philosophy that leads him one way or another, isnt quite conservative liberal either. But look, the words liberty in the 14th amendment and in the 5th amendment, the words even the freedom of speech, they nthemselves. And were taking cases really on the criteria pretty much that Lower Court Judges have come to different conclusions on the same question94 of law. So theyre very hard questions and theyre right on the borderlines very often. And so look, were not going to be able to get the answer just by looking up some prior case. Were not computers either. Youre just beating around the bush. Im not. Ive been there 20 years. I have not seen a decision like that and i can even explain bush v gore decided on the basis of politics. Wbu politics are you democrat, are you republican . Where are the votes who is going to be popular. Bush v gore, i say i need an hour on that one but i can bring you around on that one. I didnt mean politics like that. I meant, ideology, oh, am i a Free Enterprise adam smith . Am i troublemaker, you mean like that . Yeah, more like that. I say, thats not right either. But there is something thats right. Something thats right is this that i grew up where i grew up. You say San Francisco . Yeah. I grew up in San Francisco. I grew up in the 1950s. I went to a public school. I have had a long time in the law. I am the person i am. And by the time youre in any profession for a few years and a while and you practice it and have life experience, youll have views. What kind of views . Very basic philosophical views. If youre a lawyer, juris prudence. What is this document about . ait relate to people . Whats the country like . Thats who you are in your profession and you cannot jump out of your own skin. And you shouldnt. And therefore on that basis you will find differences and you will find coalescing around certain basic things, but i dont think thats a terrible thing. Its a big country. We have 300 and some odd 20 million, 10 million, 20 Million People and they think a lot of Different Things and it is not such a terrible thing. But on the Supreme Court of the United States over long periods of time, you have people who think quite different basic views about how this document should be interpreted. Its okay. So youre obviously, as you know very well, very articulate. You know what youre talking about very well. So why not let the American People see the justices when theyre hearing cases, why not televise it . Thats a good question, which you may or may not like the answer. I actually actually had to vote on that, but the and there are Supreme Courts that do let the television in. And theres a good argument for doing it. o should the telev treated differently than the ev written press . The written press is there during the oral argument. Youre less familiar with the arguments the other way because i think the press is less familiar with them. No one understands an argument better when its in the majority. The things that go the other way are several. One is, there are several that are of some weight and some thats of real weight. The one thats of some weight is it will be in every place in the country, the criminal cases and the criminal cases the neighbors wont testify if they think theyre on television. Thats a significant thing. The oral argument is not the argument, its 5 of the argument. And they wont really understand the process is mostly in writing. Or people relate to people. Good. When you see a person on television, you relate to that person. Not necessarily in the press as much. But our job is not to decide the cases for these two people in the courtroom. It is to consider and write or explain a rule of law that is for 300 Million People who arent in the courtroom. That will not come across on television unless they make a real effort and some do but not too many. But then you want the real weighty reason, which i think which is . I have an awful lot of friends in the press who say you think you wont be affected by the camera in that courtroom, uhhuh, the press is there already. You think people will not behave differently. Uhhuh. You think youre used to it and you can just do exactly and say exactly what you want to do, which i do by the way sometimes do my disadvantage. But i do ask whatever i want. You think you will . Uhhuh. You wait and see. You wait and see what happens the first timevuzq q you look the Television Set and you see a total distortion of what you meant, making you look like a terrible idiot. I mean, some have claimed that the press, for example, keeps two pictures of justice, decide the way they want or dont want. How did he get in there . Now, and youve seen enough of television to think maybe, maybe so the true answer to that is i dont know. But i do know that we are in this sense all a very conservative institution and being a very conservative institution with a small c weve taken over an institution that works well for the American Public pretty well, not perfectly and its worked fairly well for a long time and im there as a trustee. And there were people before and people after. And the one thing the nine of us have all been united on, whoever they were for the last 20 years, is we do not want to take an action that will hurt that institution, not for us. Its not for us. And as long as theres that big question mark over÷n o what wo happen institutionally, people will hesitate. Now, i havetjez doubt. We will go. Others will come. There will be people there who have grown up so much in a world of television and internet and so forth that it will be there and people will be used to it. But you asked me about that issue during this period of time and ive tried to explain it as best i can. You did a very good job of it. And let me just say about the magna carta itself, add a note, there are actually 17 copies of the magna carta in existence. 15 are in british institutions, one in is in the Australian Parliament and one is at the National Archives and there are only four copies of socalled 1215 version. There was a 1217, 1225 and 1297 version and some others. Only 17 left and the reason is, its 800 years. Its hard to file things away and keep them and lots of times they were burned and other things. But the library of congress now has on display one of the four 1215 copies. Its very rarely in the United States. And i encourage everybody to take a look at it and see it if they can in part because even though it didnt go into effect and was abregated by king john and ultimately the pope, it was the basis for the subsequent magna cartas that did go effect the 1297 one did become the law of england and without the 1215 we wouldnt have had the 1297. If the magna carta had said the courts of United States should televise their proceedings, you would do it then, right . Didnt king job say that . I thought he did. [ laughter ]. I do absolutely agree with you. You know, there would be a lot you would not have if you had seen the way in which the cases are argued and people respond, i suspect, though its self serving, i think its true that people take these very seriously. Theres much more to be said usually for the opposite side of the case than youre prepared to think or i am when grow in and you suddenly hear it and people are wrestling with these difficult problems and the school of children particularly thats what im focussing on across the country could see that, that would be a plus. Theres no doubt it would be a plus. And thats why people are divided on this issue. Theyre uncertain. And im saying theres too much uncertainty for a group of conservative people to run a risk that the institution. But go back and one thing where i certainly agree with you is look at the exhibition here of the magna carta. Its fabulous. Partly because you see the document. You can see it at the archives. You can see it here. Partly because as you go through that exhibition, it will force you to think about the time that is past, the people who have been involved, a few of the ups and downs. I mean, think of this country. I mean, think of we lived in a period this country of slavery. We had a terrible civil war. We had 80 years of governmentbacked racial segregation. Ups abze÷ downs. And its taken a very long time before those words in the magna carta have come to be accepted in the customs and habits of the people and its something they wont be. I was in my office. I had about two years ago the woman who was president of the Supreme Court of ghana and she is trying to bring into reality in that country more of what she believes is a more democratic system and protection for human rights. And she said, how why do people do what you say . Why do they do what the judges say . Theres no answer to that question other than to go into a little history and say, look, its not just jujs and lawyers even who can get this done. The people who have to believe in it, thats harry reid, are the people who are not and believe it. Of the 311 Million People in this country, 310 million are not judges and are not lawyers. Theyre the ones. Its the people in the villages you have to convince that this is in their interest. Lawyers and judges might help you that they can talk about it and they should, but theyre the ones that have to be convinced. And go look at that history. And go look at the ups and downs. And thats what that exhibition will begin to make you do. And i think its really a great opportunity to see the documents and to see them exhibited with other things and im glad to have the opportunity to be here in part because i could see that. Well, highest calling of mankind, i think its fair to say is Public Service. I want to thank you on behalf of my fellow citizens and your fellow citizen for the Public Service youve given to our country. Thank you very much. [ applause ]. Cspans American History tv. We want to hear from you. Follow us on twitter cspan history. 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