Transcripts For CSPAN Discussion With Justice Stephen Breyer

Hello and welcome. We launched this series to provide more ways for you to hear from renowned leaders. The individ hello and welcome. We launched this series to provide more ways for you to hear from renowned leaders. Environment, weve been able to extend the reach of these events even more. And we hope to host these opportunities often over the coming months. For many in our community, this will be the first of countless only at g. W. Experiences to come. Our g. W. Community is fortunate to hear directly from the leaders, doers and thinkers who make many of the decisions that affect us each day. But our students, faculty, staff and alumni arent just passive listeners in these events. Youre leading the discussions and actively creating solutions. And youre leveraging this universitys teaching and Research Mission to drive positive choing in the world. Today on Constitution Day, were honored to host u. S. Supreme Court Justice steven breyer. For a conversation with our g. W. Community. Our constitution and its interpretation by our justices has farreaching implications. It affects us in big and small ways. As individuals, as citizens of this nation, and as citizens of the world. Today well gain new insight into these implications and well get a look inside one of our nations top legal minds. Justice breyer is joined in discussion by our very own g. W. Associate ana, and dean, allen. I want to this them for their leadership to g. W. And for their help in making this event possible. Dean matthew is a visionary and strategic leader of g. W. Law. And she joined our community this year. She is a nationally recognized lawyer and legal scholar with three decades of industry and academic experience. She is an expert in Health Equity and Public Health policy and shes driven by a passion for Public Service. Associate dean morrison is the learner family associate dean for Public Interest and Public Service at g. W. Law. Hes responsible for creating pro bono opportunities for students, bringing a wide range of Public Interest programs to g. W. Law, and encouraging students to seek positions in the nonprofit and government sectors. I am now pleased to turn our program over to associate dean orrison. Asst. Dean morrison thank you. While Justice Breyer is often in dissent, hes in fact in the majority in one respect and always and that is the majority of the justices are now former law clerks with Justice Breyer having clerked for justice goldberg, followed by chief justice ren quift, and the three most recent appointees, Justice Kagen and justice gorsuch, and justice kavanaugh, all of whom clerked on the Supreme Court. Following his term on the Supreme Court, Justice Breyer worked for the antitrust division of the justice department, he was a law professor at harvard, assistant Watergate Special prosecutor and chief counsel for the Senate Judiciary committee. From that position, he went on First Circuit where he served for 14 years, in addition to his service there he was an original member of the United States Sentencing Commission and he became the chief judge of the First Circuit and that position, he was responsible for building the magnificent First Circuit courthouse in boston. That leads me to one of two lesser known facts about the justice that are not in his biography. The first of these is that he is one of the Seven Members of the jury for the annual pritsger architecture prize, often referred to as the nobel prize for architecture. Not surprisingly, hes the only lawyer on that panel. The second unknown fact about him or lesser known fact, is that he is fluent in french. He regularly lectures, he speaks and he writes in french. And in fact this summer he was preparing to give a speech in paris all in french, which he had written out. But alas, as was said in casablanca, well always have paris, but just not this year. I want to talk about now my favorite opinion of the justices. This is not a great constitutional opinion in what people think that. Its whole Womens Health against heller stat. In that case, the state of texas imposed very stringent requirements on clinics that were used to perform abortion services. The justice concluded that that was unconstitutional, not through grand constitutional doctrine, but by a methodical diggingthrough the record where he established that there were two major flaws. First, that the serious barriers prevented women from actually obtaining their constitutional right to abortion. And second, that the requirements for admitting privileges at hospitals within 30 miles of the clinic were wholly irrelevant to the health of the women. Justice breyer, had the good sense not to say what many of us who read the opinion thought, that the only reason that texas imposed these requirements was because it didnt want anybody to get abortions and this was the best way they found to do that. Speaking of health, Justice Breyer, all of us want to know, how are you feeling today . Justice breyer absolutely fine. Thank you. Weve been friends for years and years and years. Hes dug up, dean morrison, all of these facts about me. Dean matthews i am interested in health also. May i ask a question about health as well . Justice breyer please, dean. Dean matthews because of the Justice Breyer thank you for inviting me here. Dean matthew were so glad to have you. Because of the pandemic, there are many constitutional issues being played out in front of us on the streets, on the televisions, in the news, and so in many ways constitutionalism is a part of our debate and conversation every day. I want to ask you your view about the constitution and our democracy. One of my favorite of your books is about making democracy work, a judges view. And in this Public Health crisis, many are asking, does our democracy work . Can our democracy work . What must we do to make our democracy work . What is your view about what we must do these days to make our democracy work . Justice breyer well, on the first part, the constitution, one of the privileges, and it is perhaps the biggest privilege of my own job now, is i see in front of me every single day citizens of this country, and some who arent, but every race, every religion, every point of view imaginable, and believe me, my mother used to say, theres no view so crazy that there isnt somebody whodunit hold it in america, but there are all points of view, every national origin, and they have decided to resolve their differences under law. And when i talk to some of the students about decisions they dont like, they say, well, maybe thats too bad. I say, turn on the Television Set. Turn on the Television Set and see how people in other countries decide their differences. So that document, the constitution, here im just reaching for it over here on my desk, you see, there it is, that helps bring these people together in court. And get our differences resolved. So of course this is important. And the courts by the way, just like the document, have had their ups and downs. Its not 100 plus. But on balance, it is a pretty good way to resolve all the differences we might have. And what can the student does . Same as everybody. I think the most important thing they can do, and its not so easy, participate. You dent like whats going on you dont like whats going on, get out there and try to change it. How . You think about it. You convince people. You get allies. And by the way, i usually say, to the graduating classes, i cant tell you what to do with your life. But i hope, i hope that you will spend some time participating in public life. That can be on the library board, it can be on a jury, it can be on a school board. There are thousands of ways of doing it. But do it. And all i can tell you is after working with the document, is the people who wrote this thought, if you do not work. Pate, this wont and i have really come to believe that, thats absolutely true. O stop complaining and start convincing. And thats the what are you doing about it . So that would be my thought about whats the most important thing they can do. Asst. Dean morrison i saw yesterday that the Court Announced that the october cases will be heard only by phone as they did last may. How do you think those oral arguments went . Did the strict rotation help or hurt the process . Did the time limits prevent the justices from asking followup questions . What do you think about that whole thing . Justice breyer i think theres a plus and theres a minus. And what we do is we go in order and we each have two minutes to ask questions. And then we go back and, if that time isnt used up, we go back a whole time and ask some more. And what this machine does that were working on now, and what the internet does, and what all these do, is it makes you listen. You have to listen more closely. I mean, the technical system is fine. But you still have to listen to what the others are saying. And so i thought that was a plus. Because everybody hears what everybody else is saying and what the answers are and they pay close attention. There is a minus. The minus, and i sometimes think, well, its less fun, but its less fun why . You dont necessarily have as much dialogue. You cant get the dialogue. I like it very much, to listen to what my colleagues are saying and then sometimes theres some back and forth among us. And that makes progress. And it really makes progress, as you know, because youre a good trial lawyer, you very occasionally, but sometimes you get a situation where the judge and the lawyer are on the same wave length, they dont necessarily agree, but theyre having a practical conversation about what actually they believe, not just the client, what do you think this will do if we decide this way to Bankruptcy Law . And that lawyer knows more about it than i do, Bankruptcy Law. And youll get some back and forth. Thats why learned ann, who is a great judge, had all the seats of the judges at the same eye level as the lawyers who were speaking to them. Because he wants to get that contact. And he wants to get that conversation going. So, like most things, there are pluses and there are minuses. I like it but im not sure id like to do it all the time. Asst. Dean morrison are your weekly conferences among the justices, are those entirely audio or do you have visual like we have here today . Justice breyer no, theyre audio. The reason that theyre audio is just technical. I mean, the reason that because with most of these were told by the technical people that there can be security problems. And it is even so much what we say, its if somebody decided to be disruptive from the outside, the hackers or whatever. You dont know what would happen. And i think thats whats led s to be pretty cautious. Dean Matthew Justice buyer, i would like to ask you briar, i would like to ask you about one of my favorite sections of the constitution. I keep my constitution very close by like you. Heres my little copy. Im going to turn to one of my favorite, if im allowed to say that, that i have a favorite, its my area of scholarly specialty. Its the 14th amendment. I want to ask you about that for a number of reasons. Todays Constitution Day. But ive heard it also called constitution and citizens day. And wonder, because you write so often about different parts of the 14th amendment, the due process clause, the equal protection clause. You write so often about it that i wonder if you would share with us, thinking back on your time in law school, thinking back on the time that you first encountered the 14th amendment as a constitutional concept, did it strike you as one of the most important parts . Is that why you write so often about it . Tell us why this constitutional amendment, the 14th amendment, is so important today . Justice breyer the reason we write about it often is because the cases involve it often. When i was in law school, if we brown, mark t, and will and the others, the constitution, as it then was, probably focused primarily on the commerce clause. And it was before, it was just after brown vs. Board of education, it was about a decade after, but not too much had happened yet, and the reason i think its so important now, one reason, is it extended the protections of the bill of rights to the states. So the states could couldnt take away your free speech and treat you unfairly and so forth. And the other reason, it has very basic principles. It has basic principles of treating people fairly. It has basic reasons in that due process clause that go all the way back to king john and the magna carta. The great thing about the magna carta, which the barons forced on king john, was it said, due process of law, that means king john, you cannot just put people in prison because youd like to do it. You have to follow the law too. And every one of us has that protection. And its that very basic legal principle that really is the rule of law. One, you follow the law. Two, you dont like the law, you get together with other people and you get it changed. Through a democratic process. All thats in that document. And right there, and of course from a courts point of view, you can go back 2,000 years and read what some of the thinkers thought. Some of those thinkers said, how do we get people to live together in society . How do we get them to follow the leadership of a government . Well, they can make you through force. But really they cant. And courts dont have force. Thats what hamilton said. They dont have the person, they dont have the sword purse, they dont have the sword. We cant hand out money. Theres a third way. Convince people that your decisions are fair. And justice just. And then they might respect that leadership. And then theyll follow it. As i say, there are ups and downs. But i think that probably is the best way. And it may be the only way. And the 14th amendment helps get you right there. Ith those words. Dean matthew i want to ask you about that third way and the 14th amendment. Its true, is it not, that even after making the decision that people should be treated equally and fairly, many did not follow the courts decision. Im thinking of brown v. Board of education. Many did not follow and the court was unable to enforce immediately brown v. Board of education. How do we get people, what is that third way, how do we get people to do the things the court says are constitutional . Or to not do things that it says are unconstitutional . Especially when those decisions might be unpopular. When brown was decided, it was unpopular. How do we make that third way work . Justice breyer yes, thats a good question. I wish i had a good answer. I mean, go back to brown. As i say, i finished college about five or six years after brown. I went to law school a few years after that. And you know how much integration there was in the south . Not much. Brown was 1954. You know what happened in 1955 . Nothing. I mean, next to nothing. Lucy tried to go to the university of alabama and she was kicked out. 1956, nothing. In 1957 was little rock. And thats when a judge down in little rock said, you better integrate this school, central high school, and nine brave students, black, decided they would be the ones who went into little rock high school. White. And the governor sat in front of that door and he said, no. And he had the police. And he said, you have a judges order but i have the state police. And there was a standoff and there was a lot of disagreement. And finally the president of the United States, Dwight Eisenhower, and i think this was a great thing that he did, Dwight Eisenhower called in the 101st ashe air born, the heroes of normandy, the heroes of the battle of the bulge, and they flew to little rock and 1,000 of them, they took those children by the hand and walked into the school, but they couldnt stay forever. And the governor closed the school. Closed it. And nobody was educated. But the Supreme Court in cooper v. Aaron, have the students read that one. That was one of my favorite opinions. Because in cooper v. Aaron, a Court Unanimously says, you go integrate that school, stop stopping integration. Dont do it. And thats when he closed the school. So he didnt do it. But it couldnt last. It couldnt last. So what did it take . Martin luther king, bus boy cotts, the freedom riders, that was the boycott, the freedom riders, that was the period when the nation woke up. Thats why i told, have told, the president of the court of ghana, a woman trying to bring civil rights more to ghana and protection, she said, how, why . The same question you. Had i said, i cant tell you how you build that habit but i do know this. Its not just up to judges and lawyers. Contrary to your popular elief, here, we have 330 Million People and 329 million are not lawyers. And not judges. Those are the people you have to convince. Go to the villages, go to the towns, go to the cities, theyre the ones. And by the way, it cant just be the lawyers, it cant just be the judges who try to convince them. Theyll say, oh, they have a selfinterest. No. It has to be a movement. It has to be history. It has to build a habit. You have to build a custom. And we have that custom. And it has to be a custom of following a lot of decisions you dont like. And really are wrong. I mean, somebodys wrong if its 54. So, big complicated answer, but it comes back to my first answer. [talking simultaneously] get out there and convince people youre right. And then gradually you build a habit. A habit, a custom. Which lasts a long time, we hope. It is that custom that brings to us this day, which is called law day. Which means, a rule of law. Which means, well, we hav