And by bloomberg, a provider of multimedia news and Information Services worldwide. Captioning sponsored by Rose Communications from our studios in new york city, this is charlie rose. Rose the Supreme Court began its new term this monday, the focus has been less on the dock et and more on the courts future which hangs on the outcome of the president ial election. The seat held by the late Justice Anthony scalia remains vacant as Senate Republicans have refused to consider the nomination of judge merrick gar land. Steven breyer has served for more than two decade, president clinton nominated him in 1994. He was first named to the bench by president carter in 1980. He served 14 years as a judge and laters achieve judge of the court of appeals for the First Circuit in boston. He is known for his practicing mattism, love of literature and love of architecture. His third book, the court and the world was published last year. It explores the role of foreign and International Law in american judicial decisions. I spoke with Justice Breyer at the 92nd street y here in new york city, and here is that conversation. I begin with this book which he has written called the court and the world, american law and the economies are a tour deforce analysis of the Supreme Court vees a vee the rest of the world. We were talking backstage and show this book which is now in paper back and you and i talked about this, is getting a resurgence. I hope so. Well, you know it is. Why is that, do you think . Speculate about that. Is it because of our times . Is it. I think its not just here. But in europe, in other places in the world. There are a lot of people who are see a turning inwards, not just this country. But in many places, and were theyre worried about that. Theyre worried because they see problems that face us that require us to turn outwards. And so it might help, it might. To familiarize people with the kinds of problems that we have in one Small Institution and Important Institution but a small part of america. But what are the problems in front of us that require us to look beyond our own shores for a solution. And when you see those, you think oh, well have to. And i think thats reassuring. Because if well have to, thats like someone said about economics. Im not a great economist. He said in economics, that which has to happen does happen. Rose does happen. I mean whats interesting talking about globalization and antiglobalization move we saw in europe coming from the upheaval of the middle east and migration and some sense of people being a feeling that show that there is a in history that is against them. I wouldnt think that necessarily so because when i talk to people at stanford in the audience or berkeley or tenth graders or i talk to my grandsons school here in the fifth grade, you know, ill say to them, i just would like you to think, i know law. Immediately go to sleep, you are talking to a fifth grader, what . I mean but law is one way of solving problems. Trying to. Now you wanted the alternative, turn on the television set. And youll see what happens in countries that have other method. Rose but there is a weight of pop lism that is feeding on the sense of show the forces of globalization have affected the way their future, their economic insecurity, and the way they live. We saw it in the brexit vote. We see it in some of the political discussions taking place in america. We see it in political choices being made in europe. If here at least and if you are interested enough in the court and will take the time to read a few pages, you will see a long period of time when the watchword was, where you have needs for security, you have security, the president , the congress, got to keep us secure, theyre the ones who have the authority under the institution but we have the authority and respect of civil rights. And what happens when they clash. Ars, perhaps thousands where the key to what the court should do, you want one word, what they thought the court should do. Rose yes. Nothing. Cicero. Cicero said when the canons roar, the laws fall sigh lent. Now actually he didnt say that. Someone pointed that out to me. That the romans didnt have canons. But i mean that ruined my that ruined the whole thing. But none the less, you get the point. Now go back and look. This has a rather long wind up and a short pitch. The wind up is, look, adams our hero, great man. But people. Rose john adams. John adams, Abraham Lincoln put 18,000 people in prison. He had a problem. Rose he wanted to win a war. Correct. But they had no trial, no nothing and they werent soldiers. You had wilson, woodrow wilson, great man and continuously stopping what people said. And you had world war ii 70,000 citizens of japanese origin put in camp. Rose so what is your point . My point is, why does he want to know the point. Such an interesting story. You always have to have a point . The point is that in guantanamo, in seal seizure case, the court turned. And the court said Sandra Oconnor, the constitution does not write a check blank. No blank check to the president. Not even in time of war. And the four detainees won the four cases. And the president lost. Thats the point. The point is what is in your mind right now. Whats the question in your mind when i say that. If it doesnt write a blank check, what kind of check does it write . And thats going to be our job. Quite possibly. And terrorism is international. Countries all over the world are democracies too. Rose the court ought to be influenced by all information. If not influenced, at least have the information. Rose aware of appreciate information around the world. Right wz wherever it comes. Justice scalia differed from you on this. I dont know how much on that. Rose well, he said so to me. Kely to say that in are cases where they involved the death penalty, they involved gay rights, and we were on opposite sides. And my wife was a good psychologist, clinical psychologist. She says displacement. Youre angry at a, you blame b. All right, you might not have liked the results in those cases. So who does he blame, International Law. What does that have to do with it, thats poor b, getting blamed for a. An i think a lot of the criticism comes out of that. But that is just sort of pot psychology. Who wrote the opinions which paid tremendous attention to briefs filed by lawyers from all over the world, cases where there is a plaintiff in you are ug way, a defendant in holland, an antitrust case. And weve got to decide how american law applies or how does american law apply Securities Law when you have a plaintiff, australian, he wrote the opinion, is my point. I joined his opinion. He certainly looked to foreign law. And what i am trying to show here is there are many, many cases in many different fields, you cant avoid it. If you are going to decide that case correctly, i can give you case after case. You have to look beyond our shores. I want. Rose i want to come back to jus cities Justice Scalia and your opinion. Is the best opinion you have ever written, you ever wrote desenting opinion or a majority opinion or a concurring opinion. I dont think thats up to me to say. I would say im not necessarily a good well, maybe the best i ever wrote, i dont know, i have written some majorities that i was very pleased with. One of them is in this case involving a student who thailand who goes to cornel, and cornell and he discovers the same text books in bank cot, half the price. Says to his parents, send me a few. They sent more than a few. He began to sell nem. Rose right. Publishers got annoyed. Can he do it or not. Lawsuit in our court. The answer lies in a few obscure words in a statute that no one can really understand very well. And we received briefs from all over the world. I ended up writing the opinion. I felt i had to know what goes on in different parts of the world. The student eventually won. But thats not the point. The point is to do a decent job in that case. Rose you had to know. You have to know what goes on elsewhere. That is the majority. Des ent is probably in the affirmative action case, i wrote an affirmative action case. I believe that affirmative action was constitutional. I was in d serks dissent. I felt strongly about it and sent considerable time trying to show that the constitution does not prohint affirmative action, positive discrimination. Rose let me ask you this. Did you ever, ever, ever, ever, did your wife, ever, ever, ever think that your name would be in the same sentence with Kim Kardashian . laughter this comes about through teaching. You know, when you are teaching, what you do is you want to give an example that the class is going to remember. So then sometimes when im asking a question, in the way, not everyone thinks this way, thank goodness. But its pretty stream of consciousness. I have a question i want asked. Im really curious. I want the lawyer to focus on it. And i have gotten into the habit of using examples that are perhaps overly done. Rose but hell get the point. Please explain what you did. I dont want to discuss an ongoing case. I mean ive said a lot worse things than that. And its because i want an illustrative point. And i dont want to watch every two seconds what i am saying. But i want the lawyer to get the point that im making so i will get an answer out of that lawyer. Interestingly enough, and not surprisingly, in an oral argument as in briefs, lawyers are trying to win their case for their client. But from our point of view, and its sometimes happens, more often than you would think, the lawyers are there to help us. And were not saying who is the best lawyer. Were not saying who is the best client. What we are saying is interpreting some words in a constitution or in a statute. And having an interpretation that will work well and be consistent with the law, it will be the law for 319 or 20 Million People who arent in that court room. And so sometimes in an oral argument, people sort of get going and the lawyering say what do you foa about this bankruptcy case. What is in your experience. You are a bankruptcy lawyer. Tell me what will happen if you will do that. And you will begin to get a conversation going. And when you get a conversation going in a court room, and it is, you know, right on the merits, it isnt people taking poses or positions. You can make a lot of progress. And much of what we do is to try to get that situation going. Rose before oral argument, i mean you have law clerks and you study the briefs. You think about the questions you have coming out of the briefs. Does the oral argument have a significant influence as to how you end up . Yes. I think it does. The law clerks think it doesnt. Interestingly enough, it depends, you put it just exactly the way i would put it. Does it affect the way you think about the case. If you are looking for an absolute switch from x to not x, that happens but not too often. If you are looking for how do i think about the case, what are the words in that opinion going to be, what is the sort of main point. And which points do you deal with and which points are not really that significant. That makes a huge difference to the law. And the oral argument affects that quite a lot. Rose after 22 years, how do you how have you changed in terms of how you see your role. And how you see the constitution. And how you see. I think the first three or four years david seulter said this, justice suiter said this. He said what i am about to say, which is that you are sort of frightened. You are worried. How do i know, i mean where can people go if im wrong. And you are worried you are going to make a mistake. I thought i could do this but how do i know i really can. And that after a while, you begin to think well, for better or for worse, here i am. And the most i can do is my best. And what david also said which i think is absolutely right, i mean youre always on duty. You say, be careful. I skirted the line i think with that. But be careful. You are always on duty. And then you think well, the most i can do is my best. And i think that all of us, since i have been there, every one of us has really tried to do his or her best. I mean youre putting out. And as you get older, that becomes a privilege, more and more. You have a job where you can go in every day and you just have to do your best. And then you say over time, you begin to think well ive seen these cases before. Be careful, you havent really. Theyre not quite the same as what you saw before. And then again over time you see, youre not it goes back to the question that you wrote. That you said. What is the best opinion. What is the worst opinion. Its not a contest. Its not a game. Its not a contest. You do the best you can. And its going to be up to other people, sometime in the future, to know whether the views you took of the constitution or the views that you took of statutes or the way you approached a case, whether that was the best way to do it. You talk about Justice Scalia, indeed, one of the best discussions i had with him took place in front of 2,000 students in lu bbock, texas. And they probably hadnt seen a Supreme Court justice. And we went on for about an hour. We tried to describe what we did. We tried to explain we do have different points of view, to some degree. Not as much as people think but to some degree. And i went away thinking. And he did too at the end, it is not so important whether they agree more with him. You see hes afraid i would be too subjective. And i would tend to substitute what i think is good for what the law requires. And i would think well, i try not to do that. But more importantly, i would say but you have a method that is, i think, too rigid. I think that the way sometimes you approach, its not i dont see it in a rude way but he knows thats what i think. That the constitution wont work as well for the people who have to live under it now and we talked about that. Whether they agreed more with me or more with him. I think the 2,000 students left feeling a little bit better about the institution were in. Because they saw were friends. They saw that we proceed on the basis of reason and argument and thought and try to understand each others point of view. And try to understand each others point of view, is not so terrible in this country. People have different points of view on the spleem Supreme Court. Its a big country. Rose do the justices on the Supreme Court agree much more and rule nonzero or more often than we imagine . In other words, is there more agreement thats lets say agree 70 of the time. 50 . Rose its 50. 50 percent were unanimous. Rose 50 of the time the nine justices agree. Yes. And probably its 54 about 20 . And its not always the same five and the same four. And so i will say that, you know, a university audience, law school audience, and they will say, because thats our biggest problem. People think were Junior League politicians. Rose s that do they really. Yeah, were Junior League politicians, thats what they think. Rose amateur politicians. I would say Junior League because laughter look, you know who tried to be a politician, in my opinion, was roger tainy. And he thought that perhaps, he thought, that by reaching a decision saying a black person was not a person, thats roughly what he held, unbelievable, but he thought he would help prevent the civil war. Giving him, you know, some credit. If anything, he helped bring about the civil war. Because Benjamin Curtis wrote a great dissent showing i think at the time his decision was wrong. Its not using hindsight but really wrong. Abraham lincoln picked it up. Read tainey decision and said this is a shocker. Then used the dissent in his speech at cooper union which was the speech that propelled him to the head of the republican party. And helped get him the nomination. And then all followed. He was really an abolitionist at heart. They knew that in the south. And then the civil war followed. So if that was taineys idea, he was wrong. Judges are not good politicians. They may have some exposure to politics, but thats what i mean when i say Junior League. But theyre not even Junior League and can i explain that later, if you wish. Rose i do. But i just talked last week in the chambers of the Supreme Court to Justice Ruth Bader ginszburg. And she said to me that in 14e would like to see more of a conversation between the kowrd and the congress. Its hard to get a conversation done. Rose but you understand what she means. Absolutely. Absolutely. Because sometimes you can find something in a statute, say why did you she has written that. Rose or have them think about in a dissents because she had them, the come plex shun of congress had changed and the new congress, i think this was i have forgotten the case but the congress then changed the law. Yes. Rose because of what she had pointed out or someone had pointed out in dissent because there was a dialogue. Yes, yes. I think that is good. But it is not easy to bring about. I think that i worked in congress for awhile, on staff. Rose Judiciary Committee with ted kennedy, wasnt it . Yes. And i would guess theyre on different time frame. You see, we take things slowly. The virtue of were not elected. The virtue of having nine unelected people, hamilton said this in federalist 78. I mean they can take the time and think. Theyre not particularly powerful. He thought that. And maybe thats basically true comparatively speaking. But other than a periods of time well think about something, weeks, months. You are a member of congress, you dont have a second. There is a con stitd went you in front of you, or on the phone or emailing you and telling you something and that constituent is very surprised if you cant remember his or her name. Rose yes. And every single thing that he has or she has st a problem. And havent done about it yet because after all you received the email yesterday, why havent you acted now. And it is a very hard job. And the time frame is different. Now the court used to have its offices in congress. What he said when they built this beautiful palace, he s