Documents influence on american law. The men spoke at the library of congress where a 13th century copy of the magna carta is on display. King john originally signed the document under pressure from his barons in england. American revolutionaries looked to the rights guaranteed by the magna carta as they rebelled against the british crown. This is 40 minutes. [applause] justice breyer, thank you very much for taking the time thank you. To do this. Were going to talk about the magna carta, but before we do so, id like to talk about a few other things because we rarely get a chance to interview a justice of the Supreme Court. Since i rarely get this opportunity, let me take advantage of it now and say that when you grew up, you grew up in california and went to stanford and harvard law school, but did you always intend to be a law professor and then want 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 that you are not old enough but there was a time when you use to do what your parents said. [laughter] completely foreign to this entire audience, such an idea, but you as a lawyer and then as far as a judge is concerned, for any lawyer a federal judge lightning has to strike. It really does. And then to be on the Supreme Court, it has to strike twice in the same place. You and i worked on capitol hill at the same time. I was working briefly in the Senate Judiciary subcommittee on constitutional amendments, and you had come down to work for senator kennedy. Was that unusual for a harvard law professor . Why did you decide to do it . How did you like that experience . Yes, it was unusual. It is odd, and it is so true to the degree that if i had left harvard and took a leave, as i did, i think to be a Deputy Assistant secretary of you name the department oh, well, we understand that. To work on capitol hill . Why would he do that . There was that attitude. Completely incorrect. I loved working in the senate. It was fabulous, and i think it still is. As a staff person there i would get on my bike in the morning and ride in. First thing we did later in 1979, 1980, after you left when you left, things began to go downhill quite a bit. [laughter] but we would have always breakfast food. I was working for senator kennedy, who was the chairman then and ken feinberg, who was like, the number one and a half, and we would plan the day. The idea was where legislation seemed desirable to enough people, you would color and read. This group, color it blue. Color it this way. Color it that way. The object was to be able to present it so that people of current political views could still vote for it. We planned it. It worked. Kennedy i learned a lot from him. He was wonderful to work for. As you know, it was fun. It was interesting. You want to accomplish something good, and every minute, there are things that pop up. Its a wonderful place to work. There was a unique and because there was a sense that you were supposed to work on legislation and pass legislation. Yes, there was. [laughter] at least try. In 1980, jimmy carter, my boss, lost massively to ronald reagan. And that lameduck session that was then held, president carter had dominated you to be a judge on the First Circuit. But the republicans were going to control the senate after carter left, so they really could block anything. How did you get to be confirmed in that lameduck . Republicans knew that they could kill you in the next session if they just held it up for a while. How did that come about they you got confirmed by a Republican Senate . I think part of it is the way the senator kennedy wanted the committee run. He wanted it runs or that there would be some record of a competent, and that meant his favorite thing i depict the phrase three words 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. He said to alan simpson great senator from wyoming if you have any problems at the committee, steve is going to be chief counsel. Phone him. I felt that i was of course working for senator kennedy, and i was, of course, working for the members of the committee. That is how we ran it. The other thing he said which i have kept in my mind is you work things out by compromise, but a compromise is not, im here you are there, we will see what we can give up to meet in the middle. Thats not a compromise. The compromise is we do not agree about something, but we are trying to get together. I listen to what you say. Listen. Somewhere in this conversation, youll Say Something i think is ok, and then i will say, what a good idea you have. Fabulous. I think we can work with that. And then we work with this idea. And if he goes through, the other thing he said was not to worry so much about credit. If you pass it and it works, there will be plenty of credit to go around. If it goes nowhere, who wants the credit . So he will push you in front not himself. Dont worry about it you will have the credit for your idea, which enables us to compromise. That was his view, anyway. We worked with that view for a couple of years, and i think perhaps the republicans on the committee, who were a very good group, in my opinion, as were the democrats i think they all got on pretty well. Im told it was not ideal, it was not paradise. It was not everybody just throwing roadblocks, and so on but they did get on pretty well. I think it was that what i would call kind of a collegial attitude that helped. I just had jinx the other night with a group of staff, republicans and democrats from the Senate Judiciary committee. Its only just on the basis of an hour, but i would say things have not changed that much. They are enjoying it. Maybe they have changed to some degree, but you just see what the day is like and what is happening during the day, there is more give and take, and theres more friendship and so forth than i think sometimes we understand. So you got on the First Circuit. Strom thurmond, the ranking republican basically said, hes a good man. We will support him. You got on the First Circuit and had a distinguished career, but one of the things you are most famous for is finding the new building that the court had. How did you feel you have the expert takes just the expertise to design i personally did not design the building. We had an architect called harry called. What i did do is what i would call anyone can do its called take the time. Take the time meant a day of week probably for tws where we would work with gsa the General Services administration and try to figure out how we are going to select the architect. We found the money to hire a consultant, and he was great. We went around and saw peoples buildings, encouraged everyone to make ourselves credible in the architectural world. Harry did an incredible job. Ill tell you one thing we had to choose among five or six. Here is what he did wear off the subject but not completely off. What he did was he showed us a courthouse in virginia, a picture. A picture of eight a 17thcentury virginia courthouse, redbrick steeple porch. He said, look at that holding. The porch is there because it is in the square, and it is a place for the public to meet. The steeple is there because it signifies a public building. That building works. The judges there with a single courtroom. Hes part of a network of people who will help the government go to work for the community and people will be part of it because it is part of the community. Ill show you 3rd street cambridge or los angeles what is that building . Looks to me like a hospital. Or it looks like an office building. What is it . I dont know. The challenge is to take what the public building for the public as a high official, pretty high, a judge, 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 that judge will take the time personally to resolve his legal problems. That is in unusual institution. We want to express that in the building, but weve got to express it in a building that will be home to 18 courtrooms not one. How do you do it . When we heard that, we thought thats our problem. How do we get the public to see that this is part of their government that is not the division, they and the government, and harry did a pretty good job of that. In boston, they do bring in the school children, and they bring in the public for a variety of uses, and they do begin to edge just chip away at this enormous problem we have, which is how we get those 18yearolds to understand this document that i carry around is not a document for me. It is a document for them. 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 we are back to the magna carta. We are part of a world and you are part of one where we are 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 etc. , 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 that you want to talk about which im delighted to let you talk about. One or two more questions that are always people ask, i assume you. When you got on the Supreme Court, appointed by president clinton, when you had your interview with him, famously you had been injured, unfortunately, in a bicycle accident and then you kind of get out of the hospital to go to the interview or wasnt that kind of awkward to go do an interview when you were not in such good shape, you had broken some bones . I dont know. I cant remember. [laughter] all right. So 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 than when you were clerk. You had clerked from Arthur Goldberg when you got through with harvard law school. Was it much different being a justice than a clerk. In some ways yes, in some ways no. Are the most significant cases since youve been on the court youve been on the court 20 years would you say 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 election had it gone another 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 you can debate that. But if you read through the statutes that the way the president would have been selected and can you look at the later efforts to count the votes that were cast in florida, which i think the press did in the different scenarios, i think id come down on the side of might have been the same. But the democratic processes that were working in a 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 was in a dissent. I dissented in that case. But i think the most important thing about the case, most 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. Harry reid said something thats the most remarkable thing about that case, something thats been very, very remarked. That was, despite the case that it was so important and it was and despite the fact that is not popular and it was not popular with at least half the country. May a few more than half. But nonetheless, it was not popular particularly and it was, in my opinion, wrong. I think he thinks so, too. The remarkable thing is there were not people killed. There were not riots. There were not paving stones thrown at peoples heads in the street. There were no guns. People accepted it. When i say that to a student audience, i usually add the following. I know perfectly well that a good percentage of you and i say that are sitting there thinking, and too bad there werent a few riots. Too bad there werent a few. For those people i would like you to turn on ot Television Set and i would like you to see how what happens in countries where people decide their major disagreements that way. We have decided to decide our major disagreements under a system of law, and that is a remarkable thing that people actually follow that. As a long history and that history does begin 800 years ago with the document that i see robert here its aides his committee hes trying to say that document, king john and those hoofbeats or whatever it was, that that is where that began. There is the famous magna carta. But why do you think it is so famous in the sense that it was abrogated by sing john andking john and the pope very shortly after it was agreed to. Why did it become a big part of our actual history when it 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 1297. And youre asking a very good question because i wouldnt have known the distinction which you would have known between 1297 and 1215. But as you pointed out, and others, 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 the part they want to take advantage of and thats lasted . The part that says you will not be imprisoned or fined or disseized your land taken away except in accordance with the judgment of your pierce or peers or rule of law. Thats it. They pointed to that as the most basic thing. Thats what adams and others, the founders, found so important. And it is a symbol of that which it contains. And indeed thats why our constitution has no person shall be deprived of life, liberty or property without due process of law. Twice. Once in 1787 and written again after the civil war so that it makes certain it applies to everybody in the United States of america. And thats what it is such a simple idea. But thats what people all over the world today are trying to see if they cannot embody in institutions. But go back for a second to bush v. Gore. Why is it so tough to embody it in an institution . Why . Because we mostly its the same question as with free speech. When im talking to students, i say, you know, youre for free speech. Everybodys for free speech. Theyre for the free speech and someone who agrees with them. When they hear someone that really disagrees with them, they say not that oh, not that. Truly not that. I hate to tell you this but that isnt free speech. So what harry reid is pointing out, that the remarkable thing about the rule of law in the United States is on matters that are important, unpopular, and maybe wrong. Because judges are human beings and can get things wrong. And do. Theyll follow it. Theyll follow it. And its so easy to do it when you like it. Its so easy to do it when you think its really not going to affect me. Its so easy to do it when, you know, ok, great, its wonderful, doesnt make any difference who cares. Either case. But when you really think its wrong and it is really going to affect you, it is 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. Its built into a habit, into a custom, into a way of behaving so that actually the people will do it when they dont like it. Now, there we are. That is rule of law. And it is that to which blackstone and book were pointing and thats what were pointing right now. So when our country was being created, the colonies were being put together, the charters for the colonies were being drafted by people like cook. They actually helped the virginia charter. In there, the charters would say the virginia commonwealth will have the rights of english men the people will have the rights of englishmen. I think thats where the sense came in the colonies. When you are deciding a Supreme Court case, do you ever say to one of the other justices, 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. Have you ever written an opinion where you actually used the frayed magna carta. Ive talked about the magna carta and the opinion i think was one of the more important ones that we wrote was when we had four cases involving guantanamo. And in each of those cases we had a plaintiff or a petitioner, probably, who was a prisoner in guantanamo. And the respondent or the defendant was the president of the United States or the equivalent. Now you have a person like bin ladens driver. Bin ladens driver was not the most popular person in the United States. Against george w. Bush, the president of the United States a very powerful individual. In each of those four cases it was the person the prisoner who won. The last case, which i think was the most important, washere the question was could congress suspend the writ of habeas corpus. It is the writ, not from the magna carta but soon thereafter over the years. And it means that if you get to a judge, anything i had a case where there was a rock thrown out the window of someone that was being detained, the husband of a woman from Dominican Republic was being detained by a customs officer in puerto rico. He threw a rock out the window says bring me to the judge. The judge says bring me the body and let that jailer explain himself to see if that person is being held under the law or is being held arbitrarily. He explained himself. The judge then said that jailer was wrong, now release him. That writ of habeas corpus there was a question, did it extend to guantanamo. And we first said the statute does extend to guantanamo. Congress passed a special law saying it doesnt. So the question was whether or not that writ extended allowing them to come into court, to a prisone