(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")
TAMARA KEITH, HOST:
Hey there. It's the NPR POLITICS PODCAST. I'm Tamara Keith. I cover the White House.
NINA TOTENBERG, BYLINE: And I'm Nina Totenberg. I cover the Supreme Court.
KEITH: And, Nina, this is a treat. You sat down to interview Justice Stephen Breyer this week, at a moment that the Supreme Court is coming under a lot of scrutiny. He has a new book out next week called "The Authority Of The Court And The Peril Of Politics." We will get to that, but first, refresh us a bit on who the justice is and what role he plays on this court.
TOTENBERG: Justice Breyer has served for 27 years on the court. He is a member of the so-called liberal bloc, but he is something of a pragmatist. And he's a - what he calls a purposefulist (ph). That is that the whole idea of the Constitution is to enable government to function freely and with the purpose that the legislature wants, that the people want democratically. He has brokered a number of compromises on the court. And he's disappointed liberals from time to time by not being very doctrinaire, but he's also foiled attempts by some of the court's most hard-line conservatives to adopt their point of view, so it's - he's played an interesting role, a balancing role, on the court.
KEITH: Most people who have thought about Justice Breyer in the past year have thought, is he retiring? He is one of the older justices. He is a liberal justice. And right now, Democrats control the levers of power, and there was sort of an outside pressure campaign on him to call for him to retire. I imagine you had to ask about this, but I also imagine, like, how the heck do you ask about this?
TOTENBERG: Well, I guess you just have to ask. And I said, we're going to begin this interview with me asking you some rude questions and getting it out of the way, so I did.
So at least as I look at things now, I would guess that at sometime relatively early in the upcoming term, you will announce plans to retire. Am I wrong?
STEPHEN BREYER: I'm only going to say that I'm not going to go beyond what I've previously said on the subject, and that is that I do not believe I should stay on the Supreme Court or want to stay on the Supreme Court until I die. And when exactly I should retire or will retire has many complex parts to it. I think I'm aware of most of them, and I am and will consider them.
TOTENBERG: What are the factors that a justice...
BREYER: Oh, there are quite a few, and I'm not going beyond what I said for the simple reason that I would like this interview to be about my book.
TOTENBERG: (Laughter) So, you know, President Trump rammed through your - this is no commentary on the newest member of the court. It is a simple fact that after Justice Ginsburg's death, President Trump and then-Majority Leader McConnell rammed through the nomination of Amy Coney Barrett to the Supreme Court in record time for modern times and that it changed the balance of the court quite dramatically.
Within a week of a new justice arriving, we saw a flip on the outcome of decisions involving COVID restrictions and the interconnections with religion - COVID restrictions on religious exercise and large, you know, large numbers of people getting together. And just last week, we saw the court again, by a 5-to-4 vote, refuse to block a Texas law on abortion even though it directly contradicts nearly a half-century's worth of abortion precedence. And the decision came in the dead of night with virtually no explanation. Why shouldn't these events lead people, the general populace, to believe that the court has been politicized already and that perhaps we should change the way justices are appointed - and for how long?
BREYER: Look. I thought the last decision you mentioned was very, very, very wrong. I'll add one more very. And I wrote a dissent, and that's the way it works. You see, Dred Scott was very, very - I'm not saying they're the same thing. This was a procedural decision, and I wrote down my reasons why I disagreed with it.
Very well, you say, but politics isn't the right word. And actually, you're on to something, it seems to me, that is a - has no good answer. It's not politics. We don't trade votes. You know, as I pointed out, the cases - the number varies and so forth and so on. And it is - what is it? It's not ideology. I mean, some people like, you know, Scalia and I used to debate this a lot and - before student audiences and others.
Look, he put more emphasis on the text. Whether it's the Constitution, statute, he put more emphasis on the history. He put more emphasis on precedent. I didn't ignore those things, but I put more emphasis than him probably on the purposes, the values, the consequences. And he would say to me, my God, you have a system so complicated you're the only one who could do it. And I'd say to him, you might, you know, have a system there that works on the text, but nobody's going to want that Constitution. And we'd debate this, you see. So people have different jurisprudential philosophies. They grow up in different places. I pointed out I grew up in San Francisco and lived in Boston. And everyone, including you, has by the time you're, let's say, middle-aged, a certain views, certain views about the country, about the values we hold, about the more important than the less important. So do I know what it says in these big open questions? Big open questions. Freedom of expression. Freedom of speech. Freedom of the press. Freedom of religion.
So do I know the extent to which my decision in a case like that reflects more, reflects less, the underlying value that I've grown up with? So a person who's grown up with the importance of freedom of religion might put a little more emphasis on that. I might put a little more emphasis on a different thing, or I might - it depends on the case. And those differences are really there. And you get a name for them. Politics isn't the right name, and nor is it right to think that every case reflects those things. But that's when you're talking about, what you're - when you write about differences of view, when you write in the - and that's inevitable with human beings. That is just inevitable. You are who you are. You can't jump out of your own skin. And of course, what you do reflects that somewhat. But all that's there. There's never going to be somebody who always agrees with me or always disagrees.
TOTENBERG: You are always posing hypotheticals to counsel, so let me put this hypothetical to you - what do you suppose the court's conservatives would do if New York passed a strict law banning guns that was to be enforced not by state officials but by the general populace, the same mechanism used to enforce the Texas abortion law? What do you - do you think they'd do the same thing?
BREYER: That really isn't a hypothetical.
BREYER: What you've done is try to work out - and in dissent, we pointed out things like that - we didn't use the New York thing - and thought that that particular case should not be decided just on an emergency basis. And as I said, I thought the majority was very, very wrong to do that, and I said that in dissent and so did others. So that's true. It's wrong, I think. And we'll see. But it's a procedural matter, and so we'll see what happens in that area when we get a substantive matter in front of us.
KEITH: Nina, in his answer there, he did use a lot of sort of big and abstract language. What do you think the gist of his point is on the abortion decision?
TOTENBERG: That he disagreed with it fervently, I think. And that I think the inference really is that something that the Supreme Court has been doing more and more over the last four years - I mean, dramatically more - is, starting in the Trump administration, what had been a very rare occurrence of blocking lower-court decisions and blocking state and local laws while they work their way through the courts - it was very rare that the Supreme Court would intervene as those things did work their way through the courts.
And in fact, over the Bush years, the eight Bush years and the Obama years, each of them had four emergency applications from the government saying to the court, please, stop this from happening while we proceed up through the appellate process. Out of the eight, the court granted four. Now there have been dozens and dozens and dozens of them during the Trump years and leading into the early years of the Biden administration and when we saw this Texas law go into effect because the court would not intervene as it has intervened in other cases. And that's what he objected to so much. And what he was saying was, this is a procedure that is really bad, I think, is what he was saying. But we'll see what the court says about this law when the law is actually before the Supreme Court itself, when it comes up to us as a substantive matter, whether it's constitutional or not.
KEITH: All right, we are going to take a quick break. And when we get back, Nina and Justice Breyer will discuss his book and how political ideology impacts the court.
And we're back. Nina, this conversation was tied to a new book that Breyer has out. Odd how when people have books, they become available for interviews. But it's a good thing. And it's a book all about the perception that the court is a political body, and Breyer has a lot of thoughts about that.
TOTENBERG: This is something that Breyer feels deeply about - that Justice Ginsburg, the late Justice Ginsburg, was opposed to all of these proposals for changing the court structure, adding justices, etc., etc. Breyer's view is that we should not rush into changing the Supreme Court because at this moment, we think it's doing us wrong or we're disagreeing with what it does and that it's not really a political institution as most people think of a political institution. It might be that people have highly developed judicial philosophies, but these are not political philosophies per se.
BREYER: I'm afraid if the general public begins to think that the Supreme Court justices are junior-league politicians, junior-varsity politicians - and I think that's not true - and I think that if they think that, a lot of unfortunate things will happen because they think, why don't we want senior-varsity politicians? Why do we want junior-varsity politicians? A lot of unfortunate thoughts for the institution can go through people's minds. That's why I wrote this - to try to explain the court from my point of view.
TOTENBERG: Your argument in your book is that people respect the court even when they disagree with it because the public at large has come to understand and respect the law and that that's become sort of the coin of the realm, as it were, and that if we fiddle with the court structure - that's your view - we will be frittering away all of the long-won respect that the court has earned over, you know, centuries now and that people will no longer respect the court's decisions. That's what you were just saying, that they'll view the court just as junior-varsity politicians, and they won't abide by decisions that they think are just delivered by a bunch of pols? Isn't that sort of the sum of it? You know...
BREYER: That's not the sum of the book.
TOTENBERG: No, but isn't it the sum of the argument?
BREYER: Well, is - does the book have an argument? Now, of course. Part of what I'm saying is that I've learned over time it is very, very difficult to get people who think that the court decision, a court decision, some court decision is totally wrong to think, well, I should follow it nonetheless. And the person I heard say that? Harry Reid, the head of the Democrats. After what case? Bush v. Gore. He said the most remarkable thing about this case is something that's rarely remarked, even though it affected a lot of people, and probably half the country didn't like it at all. And it was totally wrong, in his opinion and in mine. All right. People followed it, and they didn't throw brickbats at each other, and they didn't shoot each other, and they didn't have riots. And I know I've talked to some of the universities. They say too bad there weren't a few more riots. I say, really? Really? Go look at what happens in places where they don't have this willingness to accept. And that's what's taken us 200 years to get to a certain point. I carefully try to be careful. I don't say, therefore, don't change the court. I say, take all this into account, my friends.
Of course, the courts made some terrible decisions - Dred Scott, Plessy v. Ferguson, Lochner. I mean, you can go back and look them up. You know them by heart, but some don't. Of course, it's made some terrible decisions, and it's made some very good ones - Brown v. Board of Education. That's my opinion. And others can have opinions, but be careful. Be careful because I once said this to a woman who is the president of the Supreme Court of Ghana, and she was trying to make civil rights more acceptable in Ghana, more widely enforced. And she asked me, why do people do what you say on the Supreme Court of the United States? And my truthful answer is - which I gave her - I don't know. I do know it's a question of habit. I do know it's a question of habit developed over a long, long time.
TOTENBERG: So I picked out the same quote you did from Harry Reid when I was sort of trying to figure out what I would ask you.
TOTENBERG: The problem is that the court was a very different place then. It was - conservatives have spent 40 years trying to remake the face of the court, and as we sit here, have largely - not exclusively but largely succeeded. Now, Democrats and liberals in particular are trying to do the same thing. The trouble with what Harry Reid said back in 2000 is that that's not what really happened in '20 - in the 2020 election and that your book - your critics say - blinkers reality. In 2020, President Trump thumbed his nose at the court and the Congress, and he urged followers to stop the steal. And you know what happened after that, the storming of the Capitol. The question really is, have - what evidence is there that in the world we live in today, not the 2000 world, not the world of institutionalists like you and to some extent me and I suppose Chief Justice Roberts and maybe every member of your court for all I know - people don't actually have that kind of faith in institutions at the moment.
BREYER: Maybe not. Maybe not. But I say here too, what goes around comes around. When I got there - this is a personal remark, and it doesn't necessarily show much insight - but I lived in, grew up in San Francisco. I had my career here in Massachusetts. And I'd seen a lot of disagreement but not much compared to when I got down to Washington. And I thought, my goodness, why doesn't everybody just agree with me, who is so reasonable as I am? All right.
TOTENBERG: You're just a reasonable man (laughter).
BREYER: Yes, exactly, exactly. And then after a while, I began to have a slightly more mature attitude. And I said, you know, it's a big country. I mean, there's every race, every religion, every point of view. And my mother used to say there is no point of view so crazy there isn't somebody who doesn't hold it in this country. And she said, they all live in Los Angeles. Don't say I said that. But that was long ago. All right. So the court does change very slowly over time. That's the nature of this country I see in front of me every single day. I mean, those people, 330 million, and they believe, even if they don't know what's in this document, they think this is one of the things that helps to hold us together. And I believe that. It's one of the things, that it's allowed this very, very diverse country to function as a single country.
So when you tell me or if others tell me, hmm, mmm hmm, mmm hmm, we want to change the institution, I say, be careful. Be careful. That's all. Be careful. And it's either rule of law or it could be dictatorship or tyranny or something worse. And so that's what I tell the students because I add one other thing. Hey, it's your world now. And it's up to you, senior in high school, senior in college, law school student. It's up to you, my friends, to try to figure out how in this country, which has this document and which has the values that underlie this document - it's up to you to figure out how to live together harmoniously, peacefully and productively.
KEITH: So, Nina, isn't it sort of a copout for a man who's been on the federal bench shaping policy for more than four decades to say, well, since the court isn't made up of politicians, it's up to the youth to figure out our way out of this mess? I mean, you'd think that at this point, he'd be in a position to make some suggestions.
TOTENBERG: Well, I think his suggestion is that if the Democrats can change the process today, remember that Republicans can change it tomorrow and vice versa. And that - I think his fear is, as he said, that the alternative to the way we do it now could be very bad for a democracy.
KEITH: We are going to leave it there for now. I'm Tamara Keith. I cover the White House.
TOTENBERG: I'm Nina Totenberg. I cover the Supreme Court.
KEITH: And thank you for listening to the NPR POLITICS PODCAST.
(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")
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