Transcripts For CSPAN3 Justice Breyer On The Magna Carta 201

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 Justice Stephen 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 rep