American Systems of Government

We have just under an hour. So I am going to dispense with more introductions. This panel really doesn't require them. I also I don't if our mikes were on earlier, but you missed an extraordinary exchange between Ted Olson and Justice Breyer on the meaning of the eco protection clause, because Ted noticed that all of you in the audience had access to drinks form the bar, so he insisted he insisted that the clause apply apply here as well. The and we do have to end at 9 o'clock unless Justice Breyer you are going to take to the drums and we'll pretend we're the Supremes. But there actually there actually is going to be someone coming in and playing after this. Yeah we actually have it right here. But it's its respect All right right. Well one person does need an an introduction or a brief one. Steven Carter cannot be with us and he regrets that. So we asked Michael Sandel, a very distinguished political philosopher from Harvard to join our panel. Theodore Olson is one of the most respected Supreme Court advocates in the country and I would argue in in actually American history, with a singular record of success representing the United States in the Supreme Court and of course the lawyer who argued the cases in the Bush against Gore cases that determined the outcome of the 2000 election and of course the incomparable Justice Steven Breyer - Any time and of course the incomparable Steven Breyer who writes dissenting opinions for the Supreme Court of the United States. I have to get the conversation going, which doesn't look like it will be very difficult. But I do want to give ample time for questions. So do be thinking about them. Justice Breyer; this was I think your 13th year on the court; perhaps not the most fortunate number nor the most fortunate in your ability to forge majorities. And I am wondering if if you would tell us how this term may have been different? Historians are already saying that this may have in fact been a key transitional year or a special milestone in the Court's history. But how does it compare your experience this year with your previous 12 years on the court? I don't know if this has anything to do with it. But I remember reading in my history book, there was a man called Damien who tried to assassinated Louis the XV and he was caught and they sentenced him to being hanged and then he was going to be drawn and corded and four horses were tearing him apart, and the morning of his execution they came in and said, "How are you this morning?" He said "It's going to be a rough day." I'd say if you back and more so it's I've been here 13 years, that's true. And I think over time; any one who is appointed to the job has begun to see the constitution as a whole, that is the difference between the job on the Supreme Court and in a Court of Appeals is really Courts of Appeals deal with the constitution in bits and pieces occasionally. But for us it's a steady diet. And therefore you begin to understand the document as a whole. And it takes time, there is no doubt that it takes time, but say my own view of it which is probably shared across the board in general terms, is this is a document that first and foremost creates a democratic political process. I mean, people don't understand that. The first seven articles are trying to create a democratic process. Now it's a special kind of democracy. It's a democracy that protects human rights, it assures a certain degree of equality, it divides power horizontally, three branches of government, vertically States, Federal Government and it insists upon a rule of law. All right, having said that, which takes about 40 seconds; most people will agree. But then what is the job? I say I am there to interpret the constitution doing my best to interpret it. I don't believe I will make it up. I do believe I am trying to get the heart of the document. And what I see our job as to use a metaphor - is the document gives the public the power to decide things but there are boundaries. There is a frontier and didn't I say it's a special kind of democracy, basic human rights, equality etc? And our job on the court is I would say we are there at the frontier. We are trying to say it as "this law or that law or this action or that action go outside the frontier". People sometimes think what we are doing is we are saying that's good for everybody. I never think that. I mean nobody really thinks that on the court. We think what we are trying to do is to decide whether what other people have done, usually the legislature has gone beyond those boundaries. They are the ones and the people to whom they are responsible, who decide what's good for the country, what's good for the city, what's good for the town, what's good for the state, what's good for the nation. We are at the frontier, now I use that metaphor because that immediately will call to mind the fact that life is sometimes very rough on the frontier. And indeed, the case is that we have are arguable outside, arguable inside. That's what we are trying to figure out. Now you see the nature of the job. So with that as a background, we have about 80 cases in the year probably post to half are statutory cases. May be close to half constitution, what was different about this year. What was different about this year? Well, there we are I mean - if I have look at the numbers if you are interested in numbers, I would say look back to the year 2004, which was Sandra Connor's last year, Sandra and I got on very well. I mean I like Sandra very much as a person, I liked to talk to my colleagues people, but we had very much certain cast of mind as to how we looked at things we agreed quite a lot, not always. Also I take that year 2004-2005 and compare it with 2006-2007. First usually about 30 to 35 percent of our cases are unanimous. This last year it was 22 percent. In 2004, or usually, I usually say 20 to 25 percent five four I usually say that. In 2004, it was 22 percent, this year that number of five fours went to 33 percent. Then I usually say, and it's not always the same five and same four. We are sort of split around. I mean and I compare with that. I looked at those five four cases. And the five four cases in 2004, I lets see, five four cases, it was around I think 55 percent of the time. That it was the same five or four. Do you see what I mean by that I am taking - me say Well, we weren't actually interestingly enough yeah I am going to go look this up because I don't want to be here we go own well, yeah no I am sorry, go back to 2005, I was in the majority, forget that The point is the four of us voted together about 55 percent of the time in five four cases two years ago. This last year we voted together 80 percent of that. So as far as me personally I mean do you think I ever am interested in myself personally. I am different from all other human beings in that respect. No if I go back personally, I wrote that number down two in - I do here we go. I was in the non unanimous cases non unanimous and so we get rid of the unanimous things. In 2004, I was in the majority 82 percent of the time. This last year, 55 percent. So there is a big drop, big increases in what I would call the four five and a drop in unanimity and a big rise in five fours. Well, just to continue with that down Ted I you know, my guess is that your reaction to the differences this year compared to last year, not necessarily as an advocate but rather as you know, very distinguished, conservative constitutional scholar who has had a lot to do with the development of organizations like the federal society and who has strong opinions about the kind of judges who should be interpreting the constitution original intent and the like. I would assume from your perspective that the changes that made it not exactly of drawing and quartering year but a challenging year for the justice who welcome once from your perspective. But I have a question about it from your conservative jurisprudence one in this statistics that one could look at this year is the number of cases that were explicitly over ruled the two were at least three cases overruling president and there were least another seven or more were either the descanters or the concurrent opinions in the majority set the majority, the - the plurality opinion may say that it's not overruling a case but obviously it's overruling a case. I would have thought that one of the central tenants of conservative jurisdiction at jurisprudence is respect for president and tradition and work lawyers call steri-decisis. How? But I I assume you don't have an answer to that and in fact that you are not troubled by those cases that are overruled and what that means about the role - Well on the first place I think uh-huh let me say a couple of words about the court first if I can do that - the court is a remarkable institution in American government. These nine justices serve generally for 20 to 30 years which is four to five to six to seven presidential terms. They are a remarkable group of people. I practice law before the supreme court for a long time and I have never feel and I loose cases one of them which we were talking about back there in so called green room, I lost nine to zero and I don't think they saw as as John Roberts once said when someone ask him why he lost the case nine to zero I said because there is only nine justices. So I'm not talking about whether I won a case or lost a case or agree with it. The justices on this court are a very colleague group, they work well with one another, they are invariably, extraordinarily well prepared and I ask very difficult penetrating questions and they do their work in public in the sense they render their - they go back and render their decisions but where in the world do you have an institution of one third of your government where they would listen and look at the citizens, they hear the arguments they are there in public so that you can watch it if you happen to be in court, you can get the recording you can see their questions what are they thinking about and when they render a decision they explain why they have done it and they explain why they have departed from a previous president if they have this is a very transparent institution in that sense and it is a very responsible institution and that's one of the reasons why people don't respect president these days if you look at the polls and people don't respect congress these days if you look at the polls, but they do respect the judiciary. Now with respect to the decisions to share the word, I don't think there was many cases overruling president as you say or the supreme court decided a number of the three most controversy of cases I suppose were the late term abortion case, the campaign financing case and the school cases which were decided at the end of the term. Those were all basically five four decisions they work five four decisions that was departed from previous decisions of the court if you looked at that at a certain way in each case the majority of the court explained that they did not think if they were overruling previous presidents. They were looking that in a different way. The court with both liberal and conservative justices will say that we try to decide the cases in the right way, we do respect president, we depart from president or distinguish president when we feel it's appropriate to do so in the one case where a president was clearly overruled and antitrust case that I argued it on that it would come up in the right way I mean five to four you were disagreed perhaps but that was overruling the 96 year old president and I trust long when I explained it to Eliot before we came out on the stage you said oh that was just a 96 year old president, that wasn't the two year old president. Well would you argue that a small important to issue that those ones or the shorter - the shorter ones. The court is doing a good job it came out five to four and I gather if we took a vote in this room, you like it the way if was the other way, but there are clause cases that and I said this today, or said in another context, is that liberal or conservative, well lets say the campaign finance case, just as Kennedy was by the way there were 24 five to four decisions and justice Kennedy was in the majority in 24, so that is very that has not happened very often, but the campaign finance case, came out in favor of more freedom with respect to groups, who wanted to advertise issues at election time, and that's a free speech issue, it may be that the conservative side, I don't know which is more conservative or more liberal, the deciding that the constitution permits more people to speak under more circumstances or less people to speak under elections, I mean I don't want to see as show off hands about which is liberal, which is conservative, but I think you could argue about that, so I mean there these arguments can go on and on, but if you read the explanations of the justices both in the majority and in the minority in those cases, you will respect the reasoning that goes on and the effort to explain to the American people why we came out, why we didn't. Thank you Ted and you have used the word respect a number of times and I would like to turn to Michael, who teaches about American government, you are not a lawyer, one of the remarkable things about our system of government is the respect, given to the supreme court, given - especially given that it is not an elected institution and perhaps now Ted, you noting that so many of the Justices now, stay for a very long time, many presidential terms, arguably the framers did not anticipate the presidents would be choosing people in their early 50s hoping that they would stay in a predictable ideological position for 30 years, and we may be able to talk about that, and you should also very much respect the fact that this country accepted your victory, in the post against your case, and that would not be true of many other countries, but I ask you Michael, is there any risk when the court is as closely divided as it is today, when it is as partisan as it is today, when whether in fact or an interpretation, it appears to many that presidents are being overruled, simply because the change and composition of the court is there a risk, that this extra ordinary institutions may be respected less by the public? All right this is striking thing, I Elliot about the court that people obey with what it says, even though they don't have any real enforcement mechanisms unlike the legislative and executive branch, and so people have worried over a long period of time. About how just how fragile is that legitimacy, and the willingness to obey with out with out any force or enforcement mechanism, and people worried about that during the days some critics of the war in court, said that if the war in court in the name of doing good and doing justice is taking on decisions, that many of us in this room would applaud, but if they are reaching beyond that their role interpreting the law, then and Alexander Bikel worried about this, where people stop according the court the respect, and a striking thing whether it was in in this question that the war in court or the question as it's there as now, the legitimacy and the willingness to obey does not seem to be tainted I would like to go back to the discussion about president and what's liberal and what's conservative and also in the five to four the increase in the five to four votes and the decline in the unanimous votes, now just reading the room here Even though it's very dark, we can't see any of us but I could hear when Steve gave when you gave those figures about the decline in unanimous rulings and the increase in five to four. There was an audible gasp, people were people didn't like that. They or they were troubled by it, and then on the issue of president, Ted when you said or may be it was Elliot about the presidents seeming to be more and more over turned in this problem and there was a great warmth of feeling in this room, for stare decisis. Now when did stare decisis become a great liberal principle? It's an interesting question well it became a great liberal principle, when the composition of the court began to change and we saw this in the in the confirmation hearings of chief justice Roberts and Justice Ellito when the senators who wanted to protect law without saying in in so many words. Instead of talking directly about what that they said, "Do you respect President?" And they passed the distinction between a President and a Super President. Yeah, all of that, so suddenly adherent to President instead of I have became a great a liberal Court. Well, that's because the case that people wanted to be protected in the name of President. Is one of the liberals, agree with what Elliot pointed out in in the question to Tedd, "President and started decided traditionally at hearing to tradition and the weight of the pass rather than launching out on your own a new tradition, and that's a conservative idea. So I you know, I I agree with Steve, when he is in the defense, and when he is in the maturity. But but I think it's a mistake regardless of ones opinions on on the cases. I think it's a mistake to suddenly put all of the emphasis enter to and almost to title legitimacy of the court to upholding President. The discussion I think should be about the merits of the cases and the arguments. So let's argue about law. Let's argue about all those Senators who have questions. Let them ask about Roosevelt. And if they accept which was earlier privacy case. I would rather see for the sake of public education, but also for the Senate confirmation process that the attention that that we are do not shadow box. Or let's talk about President and how unanimous, or how divided. We know why it's more divided, the composition to court change, and it change for political reasons. And we knew that that when when the President Presidential campaigns were going. Do you know how that works? So, that's what happens. And that's why the board patterns change. There is nothing damaging to the republic about more of five to four votes; that's that's but the composition of the court, that's been created through this political process. So, I don't think we should worry about five to four votes except we should worry about what the votes are for and what the decisions are. And I don't think we should worry about President as such we should worry about whether the Presidents are right or wrong, whether they arguments persuasive or not. Tedd, they want I wanted to say one thing. I have heard Justice Breyer do this a couple of times and these people should hear it. He talks about President and the court getting things right sometimes and getting things wrong sometimes and the respect that the American people have for the court. And he talks about it. And in such elegant terms I mean this; I think you should all hear this. I don't I don't know whether you can so it in a short you know, a period of time that this this context from this - But it is it is beautiful. And it and it says a lot about the respect that we in America whatever the politics have for the Supreme Court even when they get it wrong. And when they get it right, I mean, this is part of his speech. That's true. No the the point that I that I make which I I think is an important point, and you see it physically in the Court room that I will explain what I mean by that in a second. But I usually I would like to tell the students, I go back to the famous case, that probably you will never heard of you know, as part of anyone. But the Cherokee Indians in 1834, own some land they were evicted. The Supreme Court said that the land belongs to them, and Andrew Jackson said, John Marshall, the Chief Justice has made this decision now let him enforce it. And Jackson sent troops, and the troops did not go to enforce the law. Eventually they evicted the Indians. And the Indians walked along the trail of tears. Oklahoma where their descendents live. Well, I then I wanted to run the clock forward and I I will talk about Little Rock. Because Little Rock was an instance were troops were sent again. That was where I am sure you know most of that. Governor Faubus stood in the school house door and he said, "No black children in this school." And he had the state police. And President Eisenhower sent the troops, the Para-troopers; and this time they went to enforce the law. And they took the children by their hand and they walked into the school. I thought that was a great day, great victory for the law a great victory for the law. And that's when I want to say that I would actually Senator Reed say this, and, I thought my goodness I saw him, later he came to it. I said, I still agree with you. He said the remarkable thing about Bush we know is that which is very rarely remarked. No Para-troopers, no rocks picked upon the street, no riots, no nothing. People followed it I was in decent. Then I think it was wrong; absolutely wrong absolutely wrong. But, I know lot of people did. But the amazing thing and the important thing is after the civil war and 80 years of legal segregation and a lot of else you know people have learnt and what they have learned and that's why I come back to what I see everyday but I see in every day in that in that court room I see people in every race, every religion, every point of view and they decided to resolve their differences under law and that is a fabulous thing to this country and that's what you mean you know I say something that you don't agree with, because I wrote this and did the same. You know obviously what I think and you can see a little of emotion in what I am saying I think a part of that is away 300 million people trying to figure out how to resolve their problems themselves in a democratic system while respecting human rights a degree of equality etc and since I think that's what the constitution is really about. I don't think liberal conservative, I don't think it, because I have trained myself not to think that, may be may be it's just 25 years of experience on the bench, I don't think it, I do think and that's why I said this in the Seattle school case. I do think the first and fore most in that constitution is a decision and so far as possible let people make up their own minds - what people, everybody everybody it's an inclusive country and that's why I fought strongly because I thought of the interpretations of the equal protection clause, the treat is the same which was not my interpretation, it treats the same whether the discrimination is invidious, whether the discrimination excludes people, whether the discrimination is the kind of discrimination that we saw in the south under segregation and I think that's not the same constituently speaking as the kind of discrimination that is inclusive and designed to cure the problems that segregation caused that's why I thought the color blind is not true of the equal protection clause and that's what I spend several minutes and 77 pages to explain it. That's right that's right - I thought may be I read the whole decision but I decided not to. You know I illustrate that because I wanted you to see what we can feel strongly about it. I can feel strongly about a certain vision of the constitution, about a vision of the constitution that will define that clause in terms of bringing us together trying to create a nation one people etcetera. The people who are on the other side are in perfectly good faith, and they see that interpretation as well and they have a different one right. But it is not liberal conservative, it is different views of what that basic document is about, and I'm sorry I have not been there for 13 years and I don't think I'm about to change those basic views. And I don't disagree with that at all, anything that you said just as were its written in book called "Active Liberty" which explains its approach to many constitutional questions which I think most of you know about but if you haven't - don't know about it you should have, and I guess I should say you should buy. I would actually like to follow up and then we think I'm going to give you the questions to the audience your book your brilliant little book is a quick and wonderful read "Active Liberty" and also thinks that Michael writes about one of the principles is the is almost an obligation for public participation, and the strength of democracy because of our participation in the political process. And I'm wondering why it seems to be and you talk about shadow box and you are going to sent it that so much of the debate today in dialogue about critical questions about justice and the quality and whether the issues of school busing or campaign finance is relegated to the supreme court, and are not debated as vigorously as I think may be the framers intended Michael in the other and populate branches of government. Yeah. I think it has something to do with the fact, is that in America in top film notices back in 1830s when he came, almost every political question is turned into a question about rights. Because the idea of rights and of individual rights are so deeply in grained not only in the constitution or in the bill of rights. But also in American public culture and the political culture we cannot argue so much in the name of good society or the good life or even the common good, its it's a more natural reflex to think about every dispute in argument and political controversy as you debate about rights sometimes competing rights, and how they should be resolved. And the court is that the court's business to interpret the constitution and to define rights, and I think that is one of the reasons that so many of our public political questions are turned into questions first about rights, and therefore they went up in court. I'm not sure that's in altogether desirable thing important just of qualities and of course important it is to interpret the bill of rights. Because sometimes its what happens is that by pushing everything into the language of rights and therefore into a legal question. We fail as a society is a political community really to address and to trash out among ourselves. The competing conceptions of the good life and of the good society that underlie a lot of our debates about rights and very often the justices are forced to think about those questions, but in the in the language of rights, and in the language of law.