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TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

It's not often that you get to ask a Supreme Court justice about how he arrives at his opinions. So I'm very pleased to have as my guest, Justice Stephen Breyer. He's written a new book called "Making Our Democracy Work: A Judge's View."

He says he wrote the book to increase the public's understanding of what the Supreme Court does. He explains how the court first decided it had the power to hold federal law unconstitutional; how the court managed to gain and hold the public's trust, even when its decisions have been highly unpopular; and how, in Justice Breyer's view, the court should help make the Constitution work well for contemporary America.

Justice Breyer was appointed by President Clinton in 1994. He's a former Harvard Law School professor.

Justice Breyer, welcome back to FRESH AIR. It's great to read about the court from the point of view of a Supreme Court justice. So thank you for writing the book.

And let's start with your constitutional philosophy, that the Constitution should be a living Constitution, that it needs to work for contemporary Americans; whereas Justice Scalia, in the court, thinks that the Constitution should be read more literally, and justices should keep in mind basically what the framers had in mind and only that. Would you describe what you see as the fundamental difference between the two points of view?

Justice STEPHEN BREYER (United States Supreme Court; Author, "Making Our Democracy Work: A Judge's View"): I can say what I think. I think that we're following an intention by people who wrote this document: Madison, Adams, Washington.

I mean, the framers Hamilton - they had an idea that they were writing a Constitution. In that Constitution, they would create certain institutions. The institutions were designed to create, basically, democratic systems of government of a certain sort; protecting basic liberty, as it turns out; ensuring a degree of equality; separating powers, so state, federal and three branches so that no one has too much power; and assuring adherence to a rule of law.

Now, those are very general statements, and much in the Constitution is written in a very general way. Words like freedom of speech do not define themselves, nor does the word liberty. And what they intended, I believe, with these very basic values, in a document, would last for hundreds of years.

So they had values that changed, but little, while the application of those values changes as circumstances change. They didn't foresee the Internet. They didn't foresee automobiles, or television or radio. And yet they wrote words that can apply to those changing circumstances.

GROSS: If we interpreted the Constitution only literally in the way that the framers had in mind, would we still have slavery?

Justice BREYER: No, not necessarily. We fought a war against that, and the Constitution didn't say you had to keep slavery. Rather, the framers tried to postpone the issue. They thought it would go away. They were wrong. It certainly didn't go away. It didn't go away...

GROSS: What do you mean they thought it would go away?

Justice BREYER: They thought eventually, or many of them thought, that eventually, perhaps in 50, 60, 70 years, the South would come to the realization that slavery didn't work and was an evil institution and would abolish it.

And instead of that coming about, it seems, from what I read, that things got worse, and we ended up in a civil war. And there is a lesson in this for the court.

GROSS: Which is?

Justice BREYER: The worst case ever decided, the Dred Scott case; where the Supreme Court said the descendant of a slave was not a citizen or a person who could sue in the United States, even if he became free. That was a terrible decision.

And the only justification I've ever heard for it, was that Roger Taney, the chief justice, and the majority thought that by deciding that, they would avoid the Civil War. It happened the opposite way. They fed the flames of the Civil War. .

Abraham Lincoln said he couldn't believe that decision. He called it an astonisher, a legal astonisher. And the lesson, in part, is that judges are not very good politicians. And if you want people to decide politically, you better let Congress decide, not the judges.

We're in an institution that is not really to decide, politically, and is to be there in order to protect people who might be very unpopular.

GROSS: Let's look at an example where you tried to interpret the Constitution as a living Constitution, trying to figure out the values of the framers, as opposed to a literal interpretation. And you ended up being in the minority decision on this one.

And I'm thinking of the Second Amendment case in Washington, D.C., about a law, a local law prohibiting handgun possession and whether that violated the Second Amendment or not.

So what was your thinking in deciding that this law prohibiting handgun possession did not violate the Second Amendment? And let me just read the phrase here, that we're considering. That a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Justice BREYER: Yes, that's what it says. And parts of that I use this as an illustration how, I would say, I very often and some others do approach difficult constitutional questions.

And the first thing I think we want to know, is what are the values, what's the basic objective of the Second Amendment? And their history is relevant.

And some people thought, the majority thought, that a well-regulated militia, being necessary for the security of a free state, that that isn't the heart of the thing.

The heart of the thing is the right of the people to keep and bear arms, and that means to protect themselves from attack, even by burglars. The minority, of which I was one, looked back over the same history, and they say: No. This was put here for a particular reason.

What happened was that Madison and the others who wanted the Constitution faced opposition from states, and the states were afraid that Congress would call up state militias as part of the federal army and then disband them, and the states would not be protected.

Don't worry, says Madison and Hamilton - we will write these words into the Constitution, and they will protect the states' right to have a militia.

Now the minority thought that was the basic value underlying these words. So there was a disagreement. If, in fact, you accept the minority view - look back at the words, look back at the language, look back with the history - this does not have much to do with keeping a pistol on a table to protect yourself from a burglar.

Now the second half is assume the majority is right, which I did not assume they were right, I don't believe they were right, but I'll assume it for arguments sake.

Still, on the assumption that they're right, and this has something to do with keeping pistols next to your bedside, the question is, what does it have to do with it?

The District of Columbia had passed a law which said that you cannot have pistols in the District of Columbia. And the question would be: Is that law prohibited by the Second Amendment as the majority interprets it?

And I thought, and the others in dissent thought, the answer is the District of Columbia can pass such a law, because it serves a very important objective: saving lives from burglars, from accidents, from suicide.

And it is overwhelmingly important. But you see, what we're trying to do there, is to work out: Is this kind of prohibition that the District of Columbia has proportionate? Is it fair? Is it reasonable in light of the ends, the objectives, the values in the Constitution?

GROSS: When you were having - when the justices were having a spirited debate about this handgun decision, did you ever think that you would actually change anybody's mind except perhaps a swing voter like Justice Kennedy? Did you ever think there was any chance, on the face of the Earth, that you would change Justice Scalia's mind on this?

Justice BREYER: I might. What you're doing, you see what you're I see how you're thinking. And this is probably because this is your job, and the press's job is to take those decisions that are, that usually have very great visibility because they're political. So they're in the newspaper.

But you should remember, first of all, that probably 40 - 30 to 40 percent of our decisions are unanimous; that the five-fours account for maybe 20, 25 percent; and it isn't always the same five and the same four. And so we discuss, and it isn't always a sure thing.

GROSS: In terms of your ability to change other justices' minds, particularly the mind of Justice Scalia when it comes to a decision like handguns, I think a lot of Americans, a lot of court watchers, court reporters, see this court as a court with a bloc of activist conservative judges who are very strongly conservative and are very consciously trying to move the court and the country in a more conservative direction.

And I'm wondering, from your seat on the bench, if you would agree with that perception?

Justice BREYER: I'd say this about the perception. Put it in context. Put the perception in a context where you're probably talking about a very small number of cases, maybe 10 cases out of 80 or 90 during a year.

Then put it in a context where people, in trying to change other people's minds, all know that the other people want to change their minds. And the way to change somebody's mind is to make certain your own mind is open and that you have a genuine discussion.

Not in every case can you possibly have such a conversation, because there might be - you're too distant. There might not be a point.

And then remember to put in context when you use the word political. Of course it's understandable that the press, in writing about the court and the political scientists in describing the court, want to describe this in ordinary political terms.

But one of the reasons I wanted to write this book is I wanted people to put that phrase in context. In the sense of pure politics, I don't - politics, I worked in the staff of the Senate, I've been I know some pretty good politicians, and that isn't what a judge is. And that isn't what we do.

Now, you say well, what about ideology? I'll say ideology, pure ideology, are you an Adam Smith free enterpriser? A Mao-Marxist troublemaker or something? That kind of thing doesn't influence it much.

But a person's basic values, over time, of course people develop approaches as to how legal questions could be solved better.

GROSS: I think that the...

Justice BREYER: Yeah...

GROSS: I think the perception is that presidents, particularly some presidents, appoint judges because of their politics, because they're conservative or because they're liberal.

Justice BREYER: Teddy Roosevelt appointed Oliver Wendell Holmes, and within three months, I think, Oliver Wendell Holmes had decided away a very important case, antitrust case, contrary to the way Roosevelt thought. He was in dissent in the Northern Securities case.

And Teddy Roosevelt said: I could carve a judge with more backbone out of a banana. He was pretty annoyed. So if presidents think they're going to get the decisions that favor them out of judges, sometimes they're right, and sometimes they're wrong.

But if what the president is trying to do, is trying to appoint someone who, in law, has a general view of the country and how law relates to people and what it's about that is closer to his own, a president will be more successful, perhaps, not completely successful always.

Now, that means that judges over time will, there will be a diversity of ideas on those very basic jurisprudential or philosophical points on the court.

This country is a country of 300 million people or more. And people think very different things, and it isn't a bad thing that quite different, basic approaches are represented on that court. And I keep that in mind in those instances where I'm so certainly certain I'm right.

GROSS: My guest is Supreme Court Justice Stephen Breyer. His new book is called "Making Our Democracy Work: A Judge's View." More after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Stephen Breyer, Justice Stephen Breyer, and he's written a new book called "Making Our Democracy Work: A Judge's View."

One of the things you write about in the book is the question of when the Supreme Court was established, would people follow the court's decisions?

And, you know, you write about a decision with Andrew Jackson as president, where he didn't follow the court's decision; and then you write about President Eisenhower, who sent in troops to uphold the court's decision in Brown versus Board of Education, when the South wasn't desegregating schools as they were told to by the Supreme Court.

In the Bush v. Gore decision, which you write about, and you were in the minority on that, you thought that the court shouldn't have heard the case, and if they did hear the case, they should have decided differently. You point out that Al Gore went along with the decision.

Did you ever think, after Bush v. Gore, that Al Gore wouldn't go along with the decision or that the decision would be so unpopular that there would be massive demonstrations or rioting in the streets?

Justice BREYER: No, I didn't think that, and I don't think many people did. And what I show in this first part, that that is not just a given, but it reflects a lot of history, and it's a positive direction.

That wasn't true, as you pointed out, in the Cherokee Indian case. It required the 101st Airborne in the case involving segregation in Little Rock. And it was more or less taken for granted.

I've heard people say, including Senator Reid - one of the most remarkable things about the case is something that isn't often remarked, and it's just what you said. It's that people did not turn to guns or battles in the street. They more or less accepted decisions they thought were wrong, and I agree with them, it was wrong. But I think it's a treasure that we do accept the decisions of the institution.

GROSS: When you accept a decision like that, that you really think is wrong and that, you know, had a profound effect on the country, can you just kind of like let it go and move on to the next decision, or does it eat at you and upset you?

Justice BREYER: It upsets me. It upsets me, but I know that tomorrow is another day, and we'll have other decisions.

GROSS: So, let me ask you about another decision. One of the things you write about in your book is how the court tries to uphold previous courts' decision, but sometimes a court decision really needs to be overturned - an example being Plessy versus Ferguson, which said separate but equal is okay. And then it took Brown versus Board of Education to say no, separate but equal isn't okay, and schools had to be desegregated.

So you were recently weighing in on a Supreme Court decision that kind of overturned previous court decisions, and I'm thinking about the Citizens United case, which gave corporations the right to give unlimited funding to candidates, because to restrict the funding would violate the corporations' right to free speech.

And a lot of critics of this decision said, well, you're basically giving a corporation the right of a human being to free speech, and a corporation isn't a human being. So what decisions do you think that decision overturned?

Justice BREYER: Well, there were number. They're listed. John Stevens wrote a long dissent, and the four dissenters agreed with that dissent. And he found instances going back many decades, where he thought that the power of the state to regulate the contribution of a corporation or a labor union was pretty well-established.

GROSS: So what was the argument within the court, if you could give it, between overturning these decisions and not? Because one of the paradoxes that I think a lot of court-watchers saw in this decision, was that judges who oppose, quote, "judicial activism" ended up overturning precedence.

Justice BREYER: The people who were for it, thought that the deviation from prior precedent was not great and that the Constitution, the heart of it, did permit the corporations to give the money to further speech, political speech.

The persons against it, thought the contrary. I can't easily summarize the opinion, and I'm reluctant to, because what's written is what's there, and what is it's best to let other people do the summaries, and it's best to encourage people to read what they want to read there.

The power of the opinion is important. That's where we put down our reasons. That's where we support our reasons. That's where we can be criticized. I think most judges will go into a job like mine, and they'll think some decisions should be overruled.

As you said, Plessy versus Ferguson had produced a country that was divided and segregated by race, contrary to what the 14th Amendment assures. And that had become apparent by the time of Brown, that it was contrary - it did not produce an equal protection of the law.

So the decision was overruled, and I think most of us would say, correctly so. But that doesn't mean you can overrule every decision with great ease, because that way lies chaos.

So one of the more difficult things for judges to decide is when you overrule decisions, and there are helps in the standards that have been laid down for that. But ultimately, you have a need for stability and not overruling that must be respected, and sometimes you think it's necessary in order to get to a truer meaning of the Constitution, to overrule the past.

GROSS: Have you ever decided to overrule a decision?

Justice BREYER: I'm sure that I have, and...

GROSS: If you could think of an example.

Justice BREYER: Yes, I can.

GROSS: Great, because I'd love to hear how you weighed it, yeah.

Justice BREYER: The one that I was on the decide the side, was the Bowers v. Hardwick, which talked about the right of the state to forbid homosexual conduct. And that was later overruled by the court, and I joined the decision, overruling that earlier decision.

And there were a set of reasons there, which included the fact that this law was rarely enforced, that it allowed the police to enter the bedroom, that there was no specific harm being done and that the court, the first time, deciding the case, decided not too much previously, had made in the majority's view a number of serious errors that meant less protection for a group of people who were going to have this law enforced, perhaps arbitrarily, against them.

GROSS: My guest, Justice Stephen Breyer, will be back in the second half of the show. His new book is called "Making Our Democracy Work: A Judge's View." I'm Terry Gross, and this is FRESH AIR.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross, back with Supreme Court Justice Stephen Breyer. He's written a new book called "Making Our Democracy Work: A Judge's View." He served on the court since 1994, when he was appointed by President Clinton.

The Florida preacher who threatened to burn the Quran, some people said well, that's his free speech right and then, but what about the rights of Muslims who would be offended to the core, outraged by that act? As a Supreme Court justice, I wonder how you looked at - if you're willing to talk about it - how you looked at that event and if there's the possibility that burning a sacred text of any religion would be considered a hate crime. Like, how do you balance all of the rights and positions involved in a situation like that?

Justice BREYER: Well, I don't look at those things that - issues and so forth -that might come up in the future, because if they do come up in the future, I'll have the issue in front of me and it will be very, very well briefed. They'll be lots written about it and I'll be able to form a more intelligent opinion. I would say that where you're talking about the freedom of speech and something like this preacher or anything like that, I would keep two cases in mind.

One is years ago, Justice Holmes said you cannot shout fire in a crowded theater because that could kill people. Very well. That sets limits to the freedom of speech. But the court also said where an American flag is being burned in protest, that the Constitution protects that because it is a purely symbolic action which is being done, despite how much people hate it, to express a point of view. So, we probably, were we to have such a case, we'd have to have a law in front of us, see what it says, see what the actions are. But I've given you an outline, which sort of sets boundaries.

GROSS: You've been in the Supreme Court since 1994. What are some of the ways you've seen the court change since then?

Justice BREYER: Well, it's gotten a little harder for me in some respects. First few years I - pretty nervous about whether I could do this job. Then you adjust to it. And I think that over time, I work pretty well with some of the members there and I was...

(Soundbite of clearing throat)

Justice BREYER: ...quite often in the majority and then Justice White said years ago, that with every new member it's a new court and we've had a number of new members and the court's changed and people learn to work with each other again and there we are. I'm more in the dissent now, if you want a more precise statement, that's it.

GROSS: And what's the difference between being in the dissent and being in the majority when you come to work every day? Like...

Justice BREYER: I prefer to be in the majority.

GROSS: Mm-hmm. Okay.

Justice BREYER: It's not quite as nice to be in the dissent. For one thing, people pay less attention and you have the law going the way that you think is wrong.

GROSS: How would you compare the Roberts court versus the Rehnquist court?

Justice BREYER: Well, from the personal point of view you said it. The Roberts court is one where so far I've found myself more in dissent. You want a characterization in terms of conservative and liberal, but that's not my job. That's your job. That's the job of the press and the public to characterize. My job is to decide the cases, write the decisions as best I can.

GROSS: I guess I was wondering if you think Chief Justice Roberts is different as a chief justice than Chief Justice Rehnquist was.

Justice BREYER: Every new appointment is different. Every new person who comes on makes it a different court. So the difference is not just the individual, it's the reactions of the others to that person. White said that some time ago and I have found truer words were never spoken.

GROSS: But do they run the court differently to the extent that the chief justice runs the court?

Justice BREYER: No. No. The chief justice in charge of administration. But each of us has a vote and each of us votes on everything. And the one power that the more senior members have, and the senior justice is the most senior, the chief justice, is that in those cases where there is a - if the chief justice is in the majority, he will say who writes the opinion in the case. But there are constraints. We all write the same number, approximately, of cases over the year. And quite often, the assigning, who is going to assign the case, it sort of answers itself, that question. It's fairly obvious from what people say in the conference. So there is some additional authority there but not additional voting authority.

GROSS: You know, when I interviewed Jeffrey Toobin, the legal correspondent for CNN and The New Yorker, and this interview was not too long ago, shortly before Justice Stevens retired, Toobin said something that really just astonished me, which is that sometimes in courting a swing voter, they will be told that they can write the opinion if they're in the majority and that's a kind of a little carrot that can be presented to the swing voter as incentive to vote with the team that wants to be the majority.

Justice BREYER: I wouldn't - that's true but I don't put it in that way. Look, put yourself in the courtroom in our conference. There is an issue. It's either A or B. The first four people say A. The second four people say B. And there I am, the most junior member. I say I don't know. Who will you assign that opinion to? You have to assign it to me.

GROSS: Why?

Justice BREYER: Because your job as chief, if you're the - your job is to get a majority for a position. The job of the court is to decide. You have to assign it to me because I'm uncertain. And however I go, so will go the court. So I'm the only one that will produce a majority. Since the others are certain and I am not certain and it's four to four, the canics(ph) of the court require it to be assigned to me.

GROSS: But is that political?

Justice BREYER: You tell me how...

GROSS: Is that political, getting you to do it as an incentive?

Justice BREYER: No it's not - no. No.

GROSS: No?

Justice BREYER: No. It's nothing to do with an incentive. It is to do with what the court is supposed to do, which is the court is supposed to decide cases. That's our job and we decide one case after another. Now, how can you get a decision of a court in that circumstance without assigning the case to me? Because I will be the one who determines whether it's A or whether it's B. Now that circumstance does not arise often but sometimes it does.

GROSS: Were...

Justice BREYER: And so I learned from that that if I don't want to write the decision in such a case, I better say I'm pretty sure.

(Soundbite of laughter)

GROSS: Were you in that position of being uncertain...

Justice BREYER: Sure. I have been.

GROSS: ...and then you (unintelligible) to write the opinion?

Justice BREYER: I have been. That has been the situation in some instances. Occasionally that's happened. That happens with everyone. And that's why I say sometimes the assignment decision, it decides itself.

GROSS: So how, I don't know if you could give us an example of this, but in a situation where you were uncertain, how did you make up your mind?

Justice BREYER: I've been uncertain in that sense fairly - it's not totally rare. I mean, I just had a case where I really thought that I was going to join this particular person's opinion. I really thought that was the better opinion. But I thought before I make my mind up definitely - and it wasn't one I was writing in - before I make up my mind definitely, I want to sit down and review them.

And I went down, sat down, reviewed the opinions and then thought about it for a while and said I can't join that other one. Not that it's wrong, but it's more consistent with what I've generally been thinking and really have thought generally to join the other opinion. So I joined the other opinion, having thought that first I wouldn't.

And that's what Sandra O'Connor means when she says that when you're there for a while you create footsteps. That is, you take approaches and there's a need to be consistent with what you've said before. You don't want judges who feel they're jumping from one thing to another in terms of their general philosophy or outlook. So what you do is sit down, think about it, and then you reach a decision.

I'll tell you something interesting about that too, if you want - human nature.

GROSS: Sure. Yeah.

Justice BREYER: I've found it interesting. I bet it's true whether you're in business, whether you're in law, whatever field of life you're in, you have a tough decision to make, really tough, and you think, my goodness, this is evenly balanced. Oh my goodness, what will I do? But I'm sorry, time is passing. You better make up your mind. And so you do and you think this side has a slight edge. Now time passes. Do you think you think I might have been wrong? No. As time passes you begin to think, I think I was probably right. More time. Yeah, I was right. More time. I sure was right. More time. How did I think the opposite? That is called the self-protective psychology of human nature.

(Soundbite of laughter)

GROSS: That's been your experience on the court?

Justice BREYER: By and large.

GROSS: No regrets?

Justice BREYER: Well...

GROSS: But have there been decisions where you really lost sleep in trying to figure out which side you were on?

Justice BREYER: Yes, I would say. It's an uncomfortable feeling. It's a kind of void before you begin to make up your mind and before you were - and it happens a lot. You read - it's not that you don't have a point of view. You know, you read the first brief and there is the question, say I bet I know how that comes out. But then you read the next brief and you think, oh my God, no, it comes out the other way. And then you go back to some of the reply briefs and say, oh. And then in the oral argument you can go back and forth. That doesn't mean you don't have a point of view. And it doesn't mean that you're not open-minded.

Open-minded is you may well have a point of view but you're open to changing it. And I've discovered that - that quite a lot. It isn't really a void. It's that you are not quite easy so far with your decision. It's like that old joke about the judge. The judge says to the, he hears the well, the plaintiff and says, you're right. You're absolutely right. The defendant says judge, you haven't heard me. Says okay, what do you have to say? Listens, says, you're right. You're absolutely right. And the plaintiff says hey, judge, I mean you said I was right, now you say he was right. We can't both be right. And the judge says you're right. You're absolutely right.

(Soundbite of laughter)

Justice BREYER: More like that than you think.

GROSS: So, the outsider perspective is that all arguments now in the court are pitched to Justice Kennedy because he's perceived as the swing vote.

Justice BREYER: You're probably thinking of some cases, which is going to be a minority out of the 80. And you're probably thinking that you can read what he's thinking. I've learned over time I can't necessarily read what the others are thinking. I find out best when I'm talking to them in the conference, then I'll know.

GROSS: You were the junior member of the Supreme Court for many years and now there are - you are not.

(Soundbite of laughter)

Justice BREYER: That's true.

GROSS: And there's two very new members now, Elena Kagan and Justice Sotomayor. So does that change your experience a lot, not being the junior member?

Justice BREYER: No. The junior member opens the door in the conference when somebody knocks and they usually have some papers that somebody forgot. So the junior member hands them the papers. Sometimes you might hand somebody a cup of coffee. I handed Justice Scalia a cup of coffee. He said you've been doing this for a long time. I did. I did it for 11 years. I said yes, and I've gotten very good at it. And he said. No you haven't.

(Soundbite of laughter)

Justice BREYER: (Unintelligible) and there we are. That's - the junior member is not a significant matter.

GROSS: And in terms of how...

Justice BREYER: (Unintelligible).

GROSS: ...of how you think and your position as a leader in arguments?

Justice BREYER: The argument isn't just simply the argument and discussion. It may be sometimes an advantage to go first, earlier in the discussion, because then people listen to you and their minds are less made up. But it also can be an advantage to go last because then you've heard what other people say and what you say can be affected by what they said. So sometimes it works out one way, sometimes it works out the other.

GROSS: Well, Justice Breyer, thank you so much for talking with us. I really appreciate it.

Justice BREYER: Thank you.

GROSS: Justice Stephen Breyer has written a new book called "Making Our Democracy Work: A Judge's View." You can read an excerpt on our website, freshair.npr.org.

Coming up, Ken Tucker reviews Ricky Skaggs' new album of pop, gospel...

(Soundbite of laughter)

GROSS: ...pop, gospel, bluegrass music. This is FRESH AIR.

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