Good afternoon. Welcome to Democracy and the Court. I'm Tom Wilson; I'm the CEO of Allstate. I would like to thank the Aspen Institute and The Atlantic monthly for sponsoring this today. We have a great program this afternoon, so bear with it; I know it's late in the afternoon. But if you get your energy up, keep focused, it will be worth your while. We have two great people here with us today. Jeff Rosen, who is a professor of law at George Washington University, has written extensively on legal affairs. He's actually written a book about the Supreme Court. And of course we know the Supreme Court is quite a unique institution in our land and in many ways has the final say. We live it with a responsibility to interpret our founding principles and our justices are appointed for life. And when you have such a unique institution it requires a unique leadership, somebody who cares more about themselves than they do more about us than they do themselves. Sorry there that may be my speech on sort of some of our newer people but somebody who really wants to listen in things broadly and Justice Breyer is currently you know one of our fabulous justices and been on the court for over 13 years, so if we could thank him for everything you've done for us so far and what he'll do for us today, please with no further adieu, Jeff Rosens'. Ladies and gentlemen, it's always a unique opportunity to having a conversation with Justice Breyer about democracy and the courts. But this isn't an especially exciting time for our conversation today. Since he joined the court Justice Breyer has been the most eloquent defender of the vision of pragmatism and liberal judicial restraint. He caused this active liberty and he says that by paying attention to the democratic purposes of our constitution judges can promote democratic deliberation and by paying attention to the consequences of their decision they can better serve society. Now as you all know just a few weeks ago, in the Seattle Schools case Justice Breyer delivered one of the most inspiring, incisive, passionate and convincing dissents that he has ever written. And if you want to applaud him for that I think it's well deserved. If any I don't care whether you are lawyers or not, all of you have no excuse, go look it up on the internet, supremecourtus.gov, its only 77 pages, but believe it or not, it is riveting reading. You'll find that you can't put it down because it is so convincing, logical and strong in its defense of judicial restraint. Justice Breyer, obviously we have to start with this case. I know you talked about it earlier this week, but not all of us were there. You're now among a small group of friends on public radio and YouTube, so you can speak candidly without any fear of us betraying your confidences. What was it about this decision in particular that set you on fire and got you so worked out? Is this on is it one? Yes. All right, good, thank you for that introduction by the way. Now I'm going to have to answer all your questions very thoroughly. It's such a nice introduction. But I think can I go back first up? Because I think you'd have to see - which is what you were talking about in general, you would have to see how at least I'm thinking of this document, The Constitution of the United States, which I've had the privilege of interpreting or helping to interpret over the past 13 years. It has a few words in it, seven articles, I think 27 amendments. And after a period of time on the court, I think any judge with the steady diet of constitutional cases that we have, begins to see the document as a whole. Now I can describe in general terms, not three words, not one word, but probably in under a minute, how I think most of us see that document. Sandra O'Connor, Tony Kennedy and I were at Mrs. Annenberg who is doing a marvelous thing trying to get civics taught in the high schools. It couldn't be better. And we were looking at a number of surveys that they took of lawyers. What is the constitution about, what should we teach first? And some said the First Amendment. Some said equal protection, some said privacy, or religion. But we all used a word that was way down on the list. And that word was democracy. Now anyone who is a judge will look at the document and say the heart of the document is the first seven articles and those articles create democratic political institutions. So if you have to say in a word what the constitution is about, you say it's about democracy and what that means is it isn't the constitution that decides how people should live together. It is up to individuals through the democratic process to decide what kinds of cities, states, towns, and nation they want. And if they make bad decisions that's up to them, and we hope them make good ones, but they are not our decisions to make. It is in the document. Now having said the word democracy, you have to add a few words. So well it's a certain kind of democracy, it's a democracy that is protective of basic human liberty, that's the amendments. It assures a degree of equality, that's the 14th Amendment. It divides power horizontally, three branches of government, executive, legislative, judicial; and vertically state, federal, so that no single group of people in government can become too powerful. And it insists upon on a rule of law. All right, you see, there we have it. Democracy fundamental rights, division of powers, equal protection, rule of law. And I think all nine of us would at that level begin to agree, for at least we would be in agreement of three or four minutes. Now I spelt that out because once you see that you can see the basic job of being a judge on our court. I see that basic job as well, the document leaves virtually virtually, but not all decisions up to you. And what we are doing is patrolling the boundaries. That is it creates a big space for democracy to work, but there are boundaries. And who are we? We are the boundary patrol. We work at the frontier. Now life at the frontier is sometimes a little tough, because it's sometimes field with very difficult cases, are they inside that boundary or outside the boundary. Now that's the introduction. Now I can answer your question, because in the school's case, what we were asked to do as I see it, is we were asked to decide whether a certain kind of activity in the school districts in Seattle and Louisville, what kind, they were trying to achieve a degree of integration in the schools and in particular they were trying to get inner city kids spread around a little bit so that all those schools would be good enough, or you didn't have isolation in the community. Now to do that what they did was they had one they didn't want force busing. That was very unpopular and it led to white flight. So what they did was they said no more busing, we will in fact give every high school student that was Seattle or all students in a certain complicated way, a choice. They can go to whatever school they want, but if the school that they choose has too many minority children or too few minority children what's too many or too few? Well in Seattle, if a school was more than 85 percent white it would have up to 85 percent, but we want be sure a minority population in every school of at least 15 percent. Now if your choice or your child's choice put it over that 85 percent the child couldn't go to that school. In Seattle you have to go to a different high school for a year. And then he could transfer and get a choice that he might prefer. Right now that's what's in front of us. And the question is note, its race conscious that condition that I just mentioned. It's race conscious. And so the question is does that race consciousness that race reference does it or does it not go beyond the boundary? Well, what's the boundary here? The boundary here is set by the equal protection clause and the equal protection clause says, "No state shall deprive any person of equal protection of law." Right now you have the general approach, now you have the question. Now, you still haven't got your answer, which is why was I so exercised? The short answer is of course, I thought if there ever is a case I overstate that only by a millimeter, if there ever is a case that the constitution wanted to be left to local school boards, states, local governments, maybe even national governments but not judges, that's the example. So why not, why would the court find this so difficult? It found it so difficult and probably, reasonably so difficult, it's not as easy as you might think. And the reason it's not as easy as you might think is the following. Remember those words I just told you, equal protection of the law. Well, there are two views of what that means. One view of what that means is called shorthand, the colorblind view. And on the colorblind view, if you say "race" it's out. We don't care if you are helping minorities, hurting minorities, helping white people, hurting white people, helping what a race out, colorblind, goodbye, that's the end of it. And there is more to be said for that point of view than I am normally prepared to admit. But there is quite a lot to be said for it. But there is a second point of view. And it is the point of view that of course I favor, and I believe it's the point of view that's been embodied in the law for a long time. And call that the purposive point of view. And the purposive interpretation says, "Let's go back and look at why this clause was written". What clause the equal protection clause of the 14th Amendment. Who wrote it? Well, the Congress that had won the civil war. And why did they write it? They wrote it, because they saw people who had been slaves and had been kept down in a caste we know that story and it's a terrible story. And they wanted those people to be brought into American society. And they wanted minorities to be brought into American society. And what their problem was, with race differences, laws that had race differences, laws that discriminated in manners that excluded in a way that excluded people. And so what the purposive view says is, "There is a difference a difference in the constitution between a discriminatory practice or law that excludes people and one that includes people." All right now I have really given you a whole law class. And I of course favor that difference. I say there of course there is a difference. So I say, Mr. Madison you know who is here in my mind, "Mr. Madison, when you wrote this" of course it's totally anachronous because he didn't even write the 14th Amendment. So I said, "Well, Mr. Madison, when you wrote the constitution, what was your idea? Would you think that what was your point here?" And I think he would say since he can't help himself, since I put words in his mouth, he said, "We want a document that will work in a democratic way for 200 or 300 or 400 or 500 or a 1000 years". And to get that to work in a democratic way you cannot have systems in my well, lot more than my opinion, I think it's the constitution's opinion. You cannot have societies that exclude people on the basis of race. So therefore what? Therefore when you have a law that includes people that helps the democratic process to work and as soon as I think of that, I think of course there is a difference. And why do I think this is the case, and now this is your answer. One, I think that colorblind view is very wrong. Two, I think it's never been in the law, I think it's never been accepted before by a majority of this court. Three, if my goodness if there was ever a decision that should be made locally it is this one and why do I think that, because I look at a few facts and figures. And one of them says that one black child out of every six is now in a school where the population of the school is 99 to a 100 percent black, because I can read as well as you and we look around and say there are problems of race and poverty in the inner cities of America. And so to disable the democratic process from dealing as best it sees fit with those problems of course I got slightly exercised. And the way that I take out my ideas where I show this is I write 77 page opinions and people are then put to the trouble a few of them, of having to read it. Excellent bravo. I hope you continue to get exercised as it makes for very good reading. But I want to ask you more about precedents. You said that in this case it was your view that the majority was overruling precedents without saying so explicitly and it seemed that in several cases this year that same pattern recurred, the majority insisted that it was respecting previous precedents and you felt that they were just being less than candid. Is it better for the court to overrule precedents openly and does the current majority disrespect precedents in this way? I'll answer the first part of the question. The first part of the question is in my opinion it is better to be open and of course you know when I will give you a couple of numbers. There were 10 cases listed as important cases in the newspaper if you can take that a base. And I was in the majority twice, that was better than nothing. And in the other cases in three of the cases, the majority said it was overruling prior precedent and in four other cases the minority or other judges on the court said, "You are overruling prior precedent". So remember there is disagreement about this. I thought that there was quite a lot of precedent overrule. But the people on the other side who are very good judges, they thought that they weren't overruling the case. And here you only have the chance to hear one side of it and it really my judicial instinct knows that that's unfair. But still I have my view. So I think it's better to be open. It's not the case never overrule a precedent. That isn't true, it's not right. Think of Brown v. Board of Education. Brown v. Board of Education is a case in which Plessy v. Ferguson, which had been the law for 80 years and created a caste system in America, was over ruled. Do I think that was bad? No I think it was great. I think you do have to be careful about overruling precedent, because people plan their lives on the basis of law. And if law is too unstable they won't know how to plan their personal lives, their business lives, their they won't know how to live. And that is a very undesirable thing. So if you want a basic rule, the basic rule is, you can overrule precedent if you are on a court like mine, but please be very careful about it. And I think and explain what you are doing. And focus on the issue why, and say why. Now of course I had a what I guess a slight well, I will say what I said and I won't characterize it. In the school's case, I did I do admit to having asked the question, because I discussed a lot of cases and I did say "Well, what happened to Gruder, that was the affirmative action case in the Michigan Schools, what happened to Swann, what happened to McDaniel's, what happened to Crawford, what happened to the Seattle School District Number One, what happened to the Boston School Committee, and I was listing a bunch of cases and in my view I said, well these cases have been vibrant and alive and now they have been erased from the law. And so I thought that they were not paying adequate attentions to the precedent there the majority, but the other side thought they were. So if you are going to read mine, you better read theirs. Now it wasn't only precedent that the court majority said it cared about, in a series of interviews last year, the new Chief Justice, Chief Justice Roberts said that he cared a lot about unanimous narrow decisions that would allow people from both sides to converge on a common outcome. He said that this to lots of people including in an interview with me of all people in The Atlantic, which he gave last July. Now some people thought I was too charmed by Chief Justice Roberts in this interview, he is very charming and in fact my wife said that I had a man crush on Chief Justice Roberts based on this interview. So naturally I was very distressed to look at the statistics this term and see they are far from having a lot of narrow unanimous opinions. There were more five to four decisions that in anytime in recent history. Why did chief justice Roberts fail in his much vaunted effort to achieve narrow unanimous opinions and might he succeed in the future? I would say that's a question best asked to him. I would say, I've learned from interviews, beware of charming interviewers. I can say, well I mean, I know there are some statistics and you are right about you are right about there being more of five-four. I was interested because the last full term that Sandra O'Connor was there, it was 2004 term; 20042005 and comparing that to this term, the number oh, sorry, I was yes, good point. I the 2004 term if we compare it to this term, that was Sandra O'Connor's last full term and this is really our first full year, you know with the things - of sort of well with our new members. The number of unanimous opinions and I I tend to know this; I exaggerated a little sometimes when I talk to the audiences and and I talk to school kids, which I love doing; I I say, you know, and and I talk to audiences about the court, you know. I will say, "Well, about 30 to 40 percent of our cases are unanimous and you don't know that because that the reporters find those boring." And but I have to say this year, the number was about 32 percent or so in 2004, this year I think it fell about 10 points to about 22. And I say then, and you know, take the cases that aren't unanimous. Really the five-fours are about to 20 percent to 25 percent, typical number. But this year, they went up to 33 percent. And then if you look and I then add and it's not always the same five and the same four; which I am glad to see that. I mean, I don't decide a case on the ground I mean, is it going to be the same five or the same four or anything like that. It's the job of other people to characterize the overall results. I work on a case on the basis of what do I think is the right answer here. And you know that's often difficult because of course there are two about two or three of four different answers. But still, if I look back to the five-fours and if which I hate to do; you are to say, "Well, I know what you mean by the usual suspects" and that's sometimes for good or sometimes for bad. You are going to say, in the end John Stevens and Ruth Ginsburg and David Souter. So I look to see, how often were we on the same side of a five-four case in 2004? And the answer was, just over a half around 55 percent. So it wasn't the same five and the same four, no this year, 80 percent. Now, you can say, well, remember that this year may be some what atypical; they are always important decisions and always decisions that have some kind of social or political resonance that happens quite a lot. But this year, we had a case involving abortion. We had a case involving race the use of race in schools. We had a case involving campaign finance, and so those are three perhaps unusually contentious issues. Yes. But you've had those cases before all of those cases; and when Justice O'Connor was on the Court, that was not the same polarization. So what would you make if the hypothesis that Chief Justice Roberts, whatever his good intensions, had the effect not of bringing you together but polarizing you. This was the year where you wrote your most passionate dissent and Justice Ginsburg who is so wonderful wrote the spectacular dissent in the partial-birth case. She was uncharacteristically passionate. Justice Stevens was passionate, you know it's hard to avoid the conclusion that something Chief Justice Roberts is doing is getting your guys backup. And and what a horrible thing it is to have to go to an event where you have a judge speaking. It's terrible, we are trying to interview one, because I have been my answer is of course I am not in the characterization business. I am in the deciding business. And those are quite different things. So, it's up to other people to characterize what we do. But this is you know that this is not a trivial series of questions. I didn't say it was trivial. I just said it wasn't my business to answer. It's not your business, but it's something you care a lot about, because in your book, "Active Liberty", you say that it's important for the legitimacy of the court to act in a way that the Public can perceive as being legitimate. So you are not the kind of person who typically flies off the handle and writes ill conceived dissents. What I want to know is might there be a possibility that Chief Justice Roberts will do better in the future and if so, what would that take? I have got a lot riding on this prediction. Will he do better in the future? Yes. Might he achieve -? He could join my dissents. But the the serious answer the serious answer is is the following. That that it, this is job that people who are appointed to have for a long time. And when I first came to the court, the first question in anyone's mind is well this is quite a significant position. And it makes a difference to people, a major difference. So how can I do this? Let's be careful, and it takes a while. It just takes a while. I don't care who is appointed no matter who it is, it takes a while before you have enough experience, cases in front of you that you begin to understand or at least have a a view of what this document is and a view of the institution. It's extraordinary to me still, as I sit there two things. One is the complexity of an institution with only nine people. It is very complicated, historically and at any point in time. And the other is, as look out and I have said this 50,000 times so I will say it a 50,001st. Perhaps the most extraordinary thing is you look out at that court room and you see people of every race, every religion, every point of view imaginable and there are 300 million people in America and 900 million points of view and several others that are not imaginable. But but they they are there in this court room, in this diverse society of 300 million people and they are being held together because of their belief in law. That's an incredible thing in the course of history, that they have decided to decide their differences not on the streets but in courtrooms. And there they are. Now that works on a person. And you see that day after day and you begin, it never loses its extraordinary quality, never. And and I think all those things over time work on any person who is appointed to our court and that's why it's very hard to predict about any person, how he will decide things, five or ten years into the future after experience and the nature of the court and the institution begins to have an impact. It's a different job, different job being a lawyer or a law professor than a judge. I mean its its not trying to figure out what is the most brilliant thing. It is trying to figure out and I think this is the word that use of judges, not what the decision is brilliant, is it sound? And by sound they mean is it the kind of decision that people can live with and the in my view of course, that those who created the constitution, those who created the statutes, they had some problems in mind, they wanted people to live satisfactorily under their legislative results. And a sound result is one that carries out those basic purposes. Last rude question is their bad blood because of these disagreements? I I've sat in that conference room for a long time and people are very professional. They are very professional. They don't raise their voices. They simply go through the the case and they discuss the matter. What good would it do to raise your voice in that conference room? Suppose I said, oh I feel very strongly. Well, somebody who disagreed with me would say, "So do I." And I'd say "But don't you see its so important?" "Exactly." "And don't you see that I have the right approach here?" It's "Oh there I disagree." You see that that's but, so we go around the table, we discuss these things and the virtue of it being in writing is of course before my long lengthy dissent became public, it was seen by other people in many versions. So in a sense a dissenting opinion is a failure because I am not really writing not initially, I am not really writing for the public. My object in writing these things is first and foremost to try to show my colleagues that at least modify what to do, may be you will see that I have a few good points. And these go through many drafts and they go back and forth and people do respond and their responses and responses and then if you still at the end of the day think that the majority is wrong, fine, then I'll modify it again a few times and then eventually it will see the light of day. But that that's the process. How often have you changed the other side's mind because of a dissent? Well I will tell you I got the question. Actually it was during Bush v. Gore, which was a very stressful case and I was in the dissenting side. All right, so I had a question on that a few years later, and that's directly your question, a student I think in Virginia somewhere said, "Well are you disappointed when you are in dissent?" And he meant in that case. And I said "Yes, of course I am disappointed." And it was something a man I clerked for and I admire very much was Arthur Goldberg and I was law clerk and it was an event honoring him. And I knew what he would say if he were alive. And it's this because it's so true, fine, I wrote my dissent. I wanted to convince other people and I did it. So I am disappointed. So, write another dissent the next time And it's true, I do go home and I do say to Joanna, now I've written something this time that is really going to convince her. And she says I've heard that before. All right then may be it won't. So try the next time. And one of the great things about the court and it's good because as you remind me of the courts you lift my spirits, one of the great things is tomorrow is another day tomorrow is another day. I mean, fine people didn't agree in that case, then they didn't. But we will have other cases. And more and more and more and if they don't agree the next time may be it will be the time after that. And the great interest and emotional satisfaction in a sense is the job you put the thing behind you. You go on to the next one and and you will see you will see, I will write a dissent and it will convince people and you will never know it was a dissent. I am delighted to hear you say that thinking about the court lifts your spirits. Do you find yourself optimistic or pessimistic about the future of the court? It all depends don't you know, you can see easily, I am of course not happy that there were so many divided opinions. Of course I am not happy that it was those line up all the time, but I said and of course I am not happy that I was so often on the dissenting side. The the statistic I didn't tell you and I admit to having looked it up but in 2004 October term, I was in the majority over 80 percent of the time. And I looked at this term that's in all the cases you know lot of and then I looked at this term, it has dropped to about it has dropped 35 points. And so I was in the dissent quite a lot. But it is a strong institution and that's what people sometimes miss. These institutions I mean, you know its 200 years and a civil war and all these terrible problems of segregation and so forth. And throughout our institutions of that survive. So I am always optimistic I am always optimistic. Well, you are an optimist by nature because your judicial philosophy is premised on an idea that people left at their own devices can resolve important social problems and that's why I want to return to this theme of judicial restraint. Is it now the case that the liberals are the party of judicial restraint and the conservatives are not? I looked at the some statistics too and I found that in the for past couple of years, you were tied you were nearly the justice least likely to strike down state and federal laws. Only Justice Ginsburg was more restrained by that measure. By contrast, the most activist judge by that measure the one most likely to strike down state and federal laws was Justice Kennedy followed by Scalia and Thomas. So is it now the case, we are talking about race and campaign finance and a whole series of cases you are arguing for deference to democratic outcomes and that's the conservatives who are arguing for second guessing them. Are liberals now the party of judicial restraint? That's your characterization. I mean it's odd in a way. But I mean it because you it's difficult for people who haven't been in this judicial business to see it, when you start seeing liberal and conservative, I have a I kind of I have a negative reaction, because you really do train yourself. I was saying this the other day and people were talking about - asking what do the judges think of something or other. I remember remember the Rodney King case and and there were policemen were acquitted and everybody had an opinion about that everybody. So I went into lunch. I was on the First Circuit Court of Appeals and with my colleagues and I said, "What do you think of that?" And I got no answer. And I said you know, surely you have a view. And then I think it was Lee Campbell said "I wasn't there, I didn't see the evidence. I wasn't in the Jury box, I wasn't the judge. I said "There is a judicial training." You see you get that training, you actually begin really to think, I have enough things I've have an opinion about. Why should I have an opinion about something I don't have an opinion? Is that so you do and then you think of it in terms of these cases are coming up, I will do my best with the case and then somebody says it's liberal or conservative. All right that's their right to say that, that's fine. But I'm not in the characterization business. All right, well I'll put the question in a more high minded way. You are apart of a tradition on the court that has both liberal and conservative advocates and you know this as well as I do. I began with Justice Holmes, who is no political liberal and Judge Hand whose is was not a conventional liberal either. He was carried on by people like Frankfurter and Brandeis. In the modern era we saw people like Justice White embodying this tradition. So there is nothing partisan about it. But you are now the most prominent defender of this vision. Do you feel that you are the new acolyte of judiciary restraint? By acolyte you mean sort of like a teacher, what is an acolyte? I guess now I'm the acolyte, you are the visionaries -. But you don't know what the acolyte is? You know you are sort of embodying it. You are defending you're just sending it more prominently -. Well I mean you see that's what I tried to put in the in the thing that I wrote. I mean I think it is true that I think in to a very large measure judges have to be careful about intruding into the legislative process. Most decisions, vast, vast numbers are left by the constitution to that process, to people, ordinary people deciding and through their elected representatives and that's why I like in fact to give the same talk to high school students because I want to tell them which is I want to tell them I can't tell you to participate, but I can tell you the constitution expects you to participate. I can't tell you you know, that you'll have a better life if part of that life is devoted to the community in a thousands different ways, whether it's the school board or political life or anything else. I can't tell you to do that. But I can tell you that the document that I interpret expects that that will happen. And that's what reminded me of the business quotation, you say because we've really a sort of a shocking quotation, hard for people to accept. But I use this say I use it. It's Pericles and Pericles is the funeral oration. And I said that what did he say in that famous funeral oration that's relevant right now. He said, "What do we say in Athens?" In ancient democratic Athens, "What do we say about a man who does not participate in public life?" We do not say this is a man who minds his own business; we say this is a man who has no business here. You know tough and I suppose that the framers read that document, they knew that. They had read about ancient Rome and they knew about Athenian democracy. And they had limited democracy. They didn't have women, they didn't have the slaves, they didn't have the minorities etc. But among the people that they were prepared to that time to admit as citizens, that democracy was first and foremost. Now overtime we've seen that the court waver from that. And indeed the 19th century court and the early 20th century court reacted in a way that probably didn't respect that vision. And when Roosevelt was appointed the court began to change. And the whole point of judicial restraint was just that, leave to the legislature leave to the legislature the decision making. But then and that's why Frankfurter and others had such a problem. They didn't see in the early New Deal Court, because they weren't quite faced with the problem of civil liberties. And they were had some and some saw it, but many didn't. And then with Warren when the Warren Court came in this is just my view I mean, you better get a really good historian if you want to know. But my view of it is that the Warren Court suddenly said because the country understood that we are going to make this phrase in the constitution, equal protection of law mean what it says, because we look across the country, equal protection what are you talking about? All you have to do is look to the south and there is no equal protection at all. But it says equal protection of the law, so let's do it. So you say that it's a literal court, that's a court that is not respecting wrong, because that's why I started the way I started out. I started out saying there is a constitution, that at the heart of it leaves to the democratic process lots, but not everything, because we understand better than anybody after the 20th century that democracy can tyrannize too. And that's why I started out by saying, yes it's a democratic process, but a democratic process with limits; limits that respect fundamental liberty, limits that makes certain that the power is divided, limits that makes certain that equal protection of the law and rule of law. Right now this is complicated vision, but not too complicated. And I think that is what in my mind if I want to imagine what people who aren't here would have said, that if Learned Hand had been brought up to a period past the Warren Court, he would have come to some conclusion like that, at least I hope so, but anyway that's how tried to that's how I see it. Good, okay you say lots but not everything. And you very convincingly argued that in the Affirmative Action case or rather the Race case, not the Affirmative action case, and the Campaign Finance case you were arguing for deference to democratic outcomes. I want to ask you about the third most controversial case this year, which doesn't fit into this pattern. That was the Partial-Birth Abortion case and Justice Ginsburg wrote a wonderful dissent where she said that there is no empirical evidence for this claim that women who have this late time abortion have an abortion trauma, it doesn't make any sense. Nevertheless, for someone who defends active liberty as you do it democratic deference, why not uphold this law, because most of the states passed it, Congress with bipartisan majorities passed it, 70 percent of Americans, Republicans and Democrats supported. You could have construed it with the health exception, not to apply to the protected pre-viability abortions; doesn't your general instinct to defer in the phase of uncertainty lead you to the opposite conclusion in this case? See he has planned this whole interview just to get up to this question. No, no, no. Because he wants to he wants to get me talking about abortion No, no, no. - where I've been pretty careful not to talk outside the scope of my opinions. Really I've wrote an opinion in Nebraska v. Cathcart which raises the same issue and five to four. I came to the conclusion that it was unconstitutional. And I can say a few things about it. I can say if you look at Justice Ginsburg's dissent in this case, what I find very interesting about it is she has tried to bring in the 14th Amendment and the 14th Amendment has a question of women's what? Of treating women equally. But women are not biologically the same. And so how do you people people equally when the women but not the man has this particular gives birth and has children. And that is very deep, difficult question. But we come into that question; both Justice Ginsburg and I come into that question with a history of case law. Roe v. Wade was decided 1973, I was appointed in 1994, that's quite a long time period of time. And they decided Casey v. well you know, they decided other cases. So the only question for me when you ask something like that, so am I going to overturn? Am I going to suddenly decide to overturn a whole lot of precedent? No and there is a strong basis that this was right as it started, and so that's why I am not going to go one bit further down this road and I am sorry I got in to it in the first place. A judicious answer and thank you for it. Yeah. There is one other broad criticism that the conservative critics of your vision raise and that's that it's really just politics, you are saying judges should follow the election return, they should be sensitive to the democratic visions of local and national majorities, but the constitution should be unchanging. It should mean only what the framers thought and therefore you are not paying proper attention to the rule of law. I know you have thought a lot about that challenge but what is your answer to it? Just no but its not just I mean just as you said, I mean the the fact that I think that democratic process is important at the heart of the constitution does not mean I decide every case in favor of the law that comes up, that's why they are the limits, that's why you are at the boundaries. And now obviously, sometimes I'm on one side of the boundary and sometimes I think it's on the other side. I think certain things are unconstitutional and I have written that certain things are unconstitutional. And now you come to I am trying to put it in a framework you are trying to say, oh well what you do when you decide what's on one side of the boundary or the other is you just write your political opinions into law, what you happen to think is subjectively good, that's your question. Any one knows an answer? No, that's the answer. Now, what do I I will elaborate a little bit. I will elaborate a little bit, because I often get people who want to know, is it all politics, is it just politics. And I know this is how I respond and I have thought about it. Politics for even someone who was once on the Senate staff and thus has some exposure to what it is to be an elected politician, though I doubt I'd ever achieve elected office, but look, politics, are you Democrat, are you Republican? Who has the votes? And which particular Senator or aspiring Senator is popular? That's politics. Is he going to be elected? Is he going to be defeated? Are you a Democrat, a Republican? I would say that level; I've not seen that in the Supreme Court of the United States. And you say, "Well, what about the Row are you now then what about Bush v. Gore?" We'll put that to the side and I can discuss that a little bit later if you want. But I mean I know you are skeptical about that. But I will grand you over your skepticism, save me that, I could perhaps make you a little less skeptical if I but anyway. I haven't seen that; period. Now there is another thing. You say, well what about ideology? Are you really a you know, are you an Adam Smith free enterpriser? Are you a Marxist, Maoist trouble maker? What are you anyway, what's your ideology? And I will say, "Now sometimes you can see that creeping in, but it that kind of level of abstraction; no." If I catch myself, saying well I am just doing this because I think it's generally good or part of some kind of ideological picture, I think I've done the wrong thing. And I will try to go back up and go down the track a little bit more thoughtfully. Now, what about well who am I? I went to Lowell High School; I grew up in San Francisco. I grew up in the 1950s. I, like any other human being, has his own life experience. I have worked in law a long time. I like other lawyers or other people who do have views about the relationship of law to life, of law to the individual, of how it all works, but that's me. I can't escape that and I don't think I should escape it. And you say, "Well, does that influence you?" Yes, yes it does. But all that is translated into a highly complex reasoning or legal kind of process that the process isn't a mask. It isn't just a joke; it isn't some kind of a fake. A good opinion and may be that's why there were 77 pages, I am trying to write a good opinion. A good opinion of the judge can't prove that he is right in the manner of Euclid. So it can't actually prove to you that the other side is wrong. But a good judge can put his or her reasons honestly down on that piece of paper. You put the reasons down and others can criticize. And the key to it is they have to be the real reasons. Don't and who knows if they are? Only the only the person knows, only the individual. But what fun or interest or value would there be in a job that you couldn't write down honestly how you get to that conclusion. I am glad you mentioned your upbringing, at Lowell High School and your formative experiences, because surely temperament matters. This little book I just wrote said that it's crucial in determining success. You're one of the heroes of the book because the broad thesis is that over time, the pragmatists have been more effective, the people who can get along with their colleagues, compromise and the interests of the institution, where as the ideologues, the law professors, the ones who are just trying to write treatises have been less effective. I want to ask about how your experiences especially in the Senate, growing up in San Francisco, dealing with bipartisan majorities, achieving practical problems and deregulation, how that affected your pragmatic temperament, and if my thesis is right, then why aren't you in the majority more often? A lot of things in what you say, first the pragmatism. It's a special it's not pragmatism in the sense that you are sitting there, that can I go into that for a second? Please do. Because I think a lot of the difference between say, the approach I will take or say someone like Justice Scalia, what does it come down to and I think a way to understand that is to think of a judge there, trying to interpret a text and the text, just oh my god by the way it's a statute or may be it's a special part of the constitution in a difficult circumstance, you have some words and there is a situation and my goodness, it's unclear. Now how does the judge attack that? I think all judges have six weapons that they will use to attack it. One, they read the text. Two, they look at the history of that text, where did it come from, who wrote it, what was their -? Three, tradition what kind of tradition has grown up around the words? What is that what have words like that have come to mean in the law? Four, precedent, what does the precedent say? Five, the purpose or the value what is the purpose of this statute? What are the values that underlie this particular provision? You see, the First Amendment expression, it's free speech values. The Fourth Amendment, privacy values. And the First Amendment, it's not about privacy. Fourth Amendment isn't about speech. But they have different values that underlie it. Six, consequences now that's where you bring in pragmatism. But its not consequences, any old consequence in the world, its the consequence of deciding one way or another as related to, viewed through, evaluated in light of the purposes or the values that underlie that particular text. For example if you are dealing with a speech case, probably the relevant consequences have to do with speech, not with privacy. So it's not all any old consequential trying to figure out what's good or bad. You are trying to figure out in terms of that text. Now every judge has those six weapons. Some judges and here I'll tell you nothing we did Justice Scalia and I discussed this, I mean I think some judges he will say, let's look at the first four; text, history, tradition, precedent and beware of those last two, purpose and consequence, because those last two will just allow the judge to substitute his own view for what the law was meant to be. Now, my view is let's look at the last two. I don't say don't look at the first four. We do look at the first four. But often in my opinion the first four don't tell us the answer. So look at those last two and try to figure out what people are trying to do. And I say I try not to be subjective. I try to figure out what the people who wrote this text had in mind, what were their purposes, what were their values and how will it work out. And I don't think there is more risk of subjectivity though he thinks there is. But I do think if I would have followed the other way, it would tend to cut the law loose from life. It would tend to cut that connection. But law is about life. Law is about how people in a group, communities, cities, states, nations, can live together. And they pass those rules to improve. That's the idea, there is no legislator I have ever seen who says I am passing this law because I want to make things worse. Somebody has the idea that they are trying to improve some area of human life. So the judge cannot and should not cut that law loose from life. And then when you get into the constitutional area, I think my goodness, when they wrote that document they had one purpose in mind above all others and that we want a document that will live. We want a document that will live for several hundreds of years. And therefore we insert values; those values don't change. But the circumstances change. And so there I probably will try to ask and I think judges in this tradition, not making myself special, judges in this tradition will tend to ask, how do we take those values that were there 200 years ago and before and long after and apply them to the circumstances of today? Now that's what I am trying to do by way of pragmatism and I've forgot the rest of your question. To return the case with which we began, the Schools case - are judges good in predicting the consequences of their decisions? In that case you predicted first that there would be lots of litigation, which must be right because now the law is influx, but you also said that this might actually harm integration and I talked to a couple of scholars on both sides of the political spectrum, they said, really the court has a limited ability to harm or hurt society, Brown wasn't all that responsible by itself or integration, it took the civil rights movement; and in this case this is a small percentage of districts, may be five percent that use these things to begin with, and if they really want the programs they can resort to rouses, they can talk about socio-economic disadvantages. But they can somehow keep doing it and the rest the district aren't doing to it anyway; so it's really not that big a deal. It depends on what consequences. I I don't want to turn things on consequences that aren't fairly obvious. So, what I will do in an opinion like that is in fact they are they are it gets into rather arcane legal text, for those who aren't lawyers or tests. But one question that people wanted to ask, to see whether this program was lawful? Was the question is there a very strong interest in using race in this circumstance, it's called sometimes a compelling interest. Well I said, "Yes, there is." That interest is in part remedial because we started with the history of segregation, and we've never totally overcome that never. And the need for remedy is still there. And it's in part educational. And that's because it's what what the Thurgood Marshall said years ago. He said, how can our children how can if if our children can't learn together, our people will never learn to live together. And I think that's fairly safe as a prediction. I think that's a fairly reasonable point that most people would agree with. You see at the level I am I am doing this. And then there is the civic interest. Better education, bring people together, civic reasons, educational reasons, remedial reasons. Put them together, I say that's compelling. If that isn't compelling, what is? And then there is a part where you go through, well, did they try to tailor this narrowly, to meet the compelling interest and I thought yes, for reasons I'll not go into at the moment. It's very detailed. But then I did go into what are the consequences of the other view. And there, I said, well, I don't see how it's not going to lead to a lot of litigation. And I don't think stirring up a lot of litigation in this race area is something that's likely to be constructive. And then I I rather limited in I think, what I said. I said there is a terrible problem. To see the problem all you have to do is look at the numbers of what people describe as kind of re-segregation in the inner cities. And what you see is you see overtime after Brown and after the de-segregation movement got well underway, a real decline in the number of schools and the percentage of schools that work one race schools. And now what you see more recently is retrogression in that respect. And you don't have to really risk your reputation as a seer to say that there are problems of race and poverty that are mixed in the inner city. And so my only consequence relevant consequence there was to say, "I think, that it is not helpful and that the Constitution doesn't foresee removing a weapon from those who might find it useful." I don't take a position as to whether that's the best way to solve the problems of race in the city. But I do take a position on what group of people the Constitution gives that decision making authority to. And it isn't us in my opinion. It is the Local Boards. So that was the way I was using consequences in that decision. Well, I would love to continue this part of the conversation but as Jane Austin said, I think I've delighted you long enough and therefore we have a few minutes for questions from the audience.
