Brian Lehrer: It's the Brian Lehrer show on WNYC. Good morning, everyone. We have a very special show today for three reasons. Reason one, Supreme Court justice, Stephen Breyer, reason two, Supreme Court justice, Sonya Sotomayor. Let me start briefly with reason number three, it's a winter membership drive reason. Today's show is the only dollar-for-dollar matching period in our winter membership drive, the Kaplen Brothers Fund is offering to match every dollar you donate between now and noon up to $200,000.

This is only during our show, so if you've been meaning to become a member or renew your membership, now would be an awesome time for you to do that because every dollar you pledge only during today's show, only until noon will be matched dollar for dollar by the Kaplen Brothers Fund up to a max of $200,000. Now, obviously, that'll go a long way toward funding the BBC Newshour, and The Takeaway, one of which many of you are just listening to on our AM or our FM station and the WNYC newsroom and this show and everything else we produce or pay for on the station. Let's see how much of that $200,000 from the Kaplen Brothers Fund we can earn.

You can get that membership or renew it right from the homepage of our website at wnyc.org, or call us on the phone at WNYC 888-376-9692. Thank you for helping us take full advantage of this opportunity to raise a lot of money for the station. 888-376 WNYC or on the homepage at wnyc.org. Thank you so much for considering it and for doing it on this special morning. Now to those other two reasons, it's a special show today with justice Stephen Breyer retiring from the Supreme Court, and president Biden nominating judge Ketanji Brown Jackson for that seat.

Everyone is thinking anew about what the Supreme Court is for and what makes the Supreme Court a better or a worse court at any given moment in our democracy. Well, as it happens, we have had the rare privilege of having had Justice Breyer and Justice Sonia Sotomayor on the show, talking about the court and taking calls from our listeners. We are going to play most of those interviews today. They're a few years old, but we talk not much of about the news of the day in those conversations, but rather about the Supreme Court and democracy and other big ideas.

As you might imagine, Breyer and Sotomayor are both great on the big ideas of the Supreme Court and our democracy. Sotomayor also talks about growing up in New York in our conversation so that was really great too, to hear her riff on the Bronx and everything. We'll also have time for a Supreme Court quiz along the way, complete with prizes. If you answer your question right. We'll get to that but it's Justice Breyer first.

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Brian Lehrer on WNYC and we are delighted to have with us now, US Supreme Court justice, Stephen Breyer. His book Making Democracy Work, a judge's view is just out in paperback. It is rare enough that Supreme Court justices do any media interview, so we are especially honored that justice Breyer is with us today. Justice Breyer, thank you so much for coming on WNYC. Good morning.

Justice Stephen Breyer: Good morning. Thank you for inviting me.

Brian Lehrer: I can accurately say welcome back to the Brian Lehrer show because you were on this program in 1993 or '94, shortly before President Clinton nominated you to the court, I think to discuss federal sentencing guidelines.

Justice Stephen Breyer: Oh, yes, sure.

Brian Lehrer: you do, remember that show, don't you?

Justice Stephen Breyer: I certainly do.

Brian Lehrer: Of course. Every 20 years or so we get together. I love your book and the piece of history that I didn't realize until I read it is that when we were a new nation, there was no guarantee that the decisions of the US Supreme Court would even be followed. We take it for granted today that the other branches of government enforce the constitution as interpreted by the court, whether it's Roe versus Wade or Bush versus Gore or anything else, but it wasn't all so automatic. Is that one of the main points that you're trying to make?

Justice Stephen Breyer: Yes, it is absolutely. The founders expected some group of people would have the power to say when others in government went outside the very broad guidelines, borderlines, frontiers, that the constitution described. I think Hamilton in Federalist No. 78, very interesting little pamphlet to read. He said, "That power should belong to the court." Why? Because he feared that if the president had the power to say when everything was or wasn't constitutional, he'd become a tyrant. He feared that if Congress had that power, it wouldn't work when a decision was unpopular.

He said, "Look at the document. The document gives the same rights to the least popular person in the United States as to the most popular. How can we expect Congress, experts in popularity, or they wouldn't be elected, to do something that's unpopular." Then he said, "That leaves the court. The court is anonymous or pretty much so. They don't have the power of the purse. They don't have the power of the sword so they won't overreach, or at least the danger of that is smaller."

Now, he didn't ask this, if this institution, the court is so weak, no purse, no sword, almost anonymous, well, if it's so weak and it's going to decide on popular things, why would people do what they say? I get that very question today. I get that question from African judges, from Asian judges, from Latin American judges. Why do Americans do what the court says when it could be very unpopular? By the way, we're all human beings there, all nine of us and we can very well be wrong. Judging from the dissents, somebody is some of the time.

The question is topical today as it was 200 years ago, why should Americans support nine unelected judges? Why? When they're going to make unpopular decisions and indeed when some of those decisions might be wrong. What I'm trying to do is through history, explain how this has come about, which I think answers the why question.

Brian Lehrer: Before you actually answer the why question, I'd like you if you would, to talk about, I think the prime example in your book of when other arms of the government did not comply with the Supreme Court ruling and it was a hard, shameful piece of American history that most people don't know and certainly didn't learn in school about the Supreme Court trying to uphold a treaty that the US government signed with the Cherokee Indians in the 1830s, recognizing their sovereignty over land that they lived in Georgia before anybody from Europe came here.

Can you tell part of that story of how the state of Georgia and even the president of the United States, Andrew Jackson defied a Supreme Court decision?

Justice Stephen Breyer: Sure. At that time, the Cherokee tribe owned Northern Georgia clearing the treaties. This is 1830s. They had given up hunting and fishing. They were farmers. They had an alphabet, they had a constitution. They had a great leader, chief Ross, indistinguishable from their Georgian neighbors. They had one thing the neighbors didn't have, they found gold. The Georgians thought, "Why should the Indians have the gold? We should have it?" They grabbed it. Well, the Indian tribe being very civilized, did what any civilized group would do. They hired a lawyer.

Now, that lawyer was the greatest lawyer of his day. He eventually got the decision to the Supreme Court. The court eventually made its decision said, "Of course, the Indians are right. Of course, the Cherokees own the land." That was the decision that many have heard because Andrew Jackson supposedly said, "John Marshall, the chief justice has made his decision, now let him enforce it." Jackson, the president sent troops to Northern Georgia, but not to enforce the decision, rather, to drive the Cherokees out of Georgia, where they traveled along the Trail of Tears because so many died on the way to Oklahoma, where their descendants live to this day.

Now, that was not a happy beginning. Indeed, that suggested to Marshall and the others, the famous question of Shakespeare. When Shakespeare has in Henry IV, that quote, it's a good quote. Owen Glendower, the mystic Welshmen, all the Welshmen, and Shakespeare mystics. He comes in and says, "I can summon demons from the vasty deep." Hotspur the practical Englishman says, "Well, so can I, so can any man, but will they come when you do call for them?" Well, it looked like nobody else was going to come when the Supreme Court made its decisions.

Brian Lehrer: You do write that president Jackson came to regret defying the Supreme Court.

Justice Stephen Breyer: Yes, he did as soon as he saw that North Carolina and some of the others said when they looked and saw that Georgia wasn't following the court and Jackson was saying, "Oh, that's all fine, et cetera." The words to that effect, they said, "Well, hey, we have a good idea. If Georgia doesn't have to follow the court, why should we,?Why should we pay taxes? Why should we pay customs?" At that point, Jackson realized that the union itself was threatened and he changed his mind, but it was a little too late for the Indians. The Indians all did travel that Trail of Tears, and many died. Well, that was quite a long time ago, but it really wasn't, I think, until the Civil Rights Movement and the case that I think is so terribly important there. One of my favorite cases there came a few years after, Brown versus Board of Education. In 1954, the Supreme Court, simply looking around, said, "Racially segregated schools, racial segregation in a third or so of the nation is really wrong, it deprives people of equal protection of the law. It's a nightmare." It's in effect, what they said, and that's what it looked like at that time, a nightmare.

The law says, "No state can deny any citizen equal protection of the law." "Racial segregation," Said the Court, "does do that. It's totally unconstitutional." That's 1954.

Guess what happened in 1955. Answer, not much. Guess what happened in '56. Same answer, very little. Then in 1957, a federal judge in Little Rock said, "We will have integration beginning next September." The Little Rock Nine, nine brave Black children prepared to enter a white school. The school board was ordered to let them in.

September rolled around, and the governor, Governor Faubus, said, "Maybe the judge thinks they're going to enter, but I'm the governor, and I control the state police, and they're not going to enter." Well, there was chaos at that school. A picture was taken of Elizabeth Eckford, a rather brave Black girl, with a white woman behind her, her face contorted with rage. That picture went around the world, gave a bad showing of what the United States was like.

Well, after a while, the governor met with President Eisenhower, and the governor said, "He dressed me down like a general dresses down a lieutenant." He told the president he would go ahead with integration, he went out and told the press the opposite. Eisenhower was pretty angry. Now, he got advised, Eisenhower, that if he sent in troops, he would have to reoccupy the entire South, he'd have to have a second Reconstruction, but he got advised from Herbert Brownell just the opposite, "You'd better do it. It's a question of the rule of law and inequality in America."

Eisenhower, very quickly, over the course of a couple of days, said, "I'm sending the troops." He took the 101st Airborne. Everyone in '57 knew who they were. They were the heroes of Normandy. They had parachuted into Normandy in World War II, got hung up on the steeples, a lot were chopped down by the Germans, they were the heroes of the Battle of the Bulge. He put 1,000 of those soldiers into airplanes, and he flew them to Little Rock, and the next day, they walked with those Black children into that white school. That was a great day. It was a great day for the rule of law in America, it was a great day for the cause of equality, it was a great day for the United States of America.

Brian Lehrer: You're saying that the reason that Americans today so routinely accept Supreme Court decisions as the final word is that President Eisenhower was willing to use force to back one up?

Justice Stephen Breyer: I wish it were that simple. Unfortunately, I can't end the story where we just seemed to end it because a lot went on. The troops had to withdraw after a while, you couldn't keep them there forever. A segregationist school board was elected. They wanted to stop the integration, and eventually, the Supreme Court told them, "You cannot stop the integration. You go right ahead, you have to do it." The day after the Supreme Court made that decision, Governor Faubus closed all the schools. Nobody was educated for nearly a year. It was a long, long battle, but it could not be lost.

Eventually, the schools reopened, they couldn't go without the education, we had the Civil Rights Movement, we had Martin Luther King, we had the bus boycotts, we had the Freedom Riders, we had all kinds of things in the South that eventually led to a dismantling of that legal apparatus of segregation. My point has to be a far more complicated one and a far less certain one. The point is, I'm a judge, and I believe those thousand troops made a difference. They made a difference. To die was cast.

There was a Russian air force general once who came to the court because he'd been in charge of pointing missiles at the United States. The state department called up and said, "He changed the direction of the missiles, we should be nice to this man." They sent him to the court, and he asked me, "What are your favorite decisions?" I told him about the one I just told you about. I said, "It shows the paratroopers and the judges must be friends." There's something to that, but the judges cannot temper their decision to meet popular opinion. The job's to decide it as it's supposed to be decided under the law.

Still, that day, when the president decided to send those troops, I think that was an important day. I can't say it made all the difference, but for me, it was an important day. I want people to understand how complicated that situation was. While I might think that, sure, when you mention Bush v. Gore, and-- do you want me to-- I'll tell you one word about that.

Brian Lehrer: You know what, hold that thought. We're going to take a break. I want to spend a little time on that because, ultimately, that's the end of this narrative, I guess, is that here is maybe one of the most fraught decisions of our lifetime, who was going to be president of the United States, or at least whether the recount would be able to continue, decided by the Supreme Court, and what happened after that. We will continue in just a minute with US Supreme Court Justice Stephen Breyer. His book is called Making Our Democracy Work: A Judge's View. We will take some of your phone calls for Justice Breyer as well. Our lines are full at this point. Brian Lehrer on WNYC.

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Brian Lehrer: Brian Lehrer on WNYC with US Supreme Court Justice Stephen Breyer. You talked about the time in the 1830s with respect to Indian sovereignty, that the rest of the government defied the Supreme Court, the time in the 1950s with respect to civil rights in Little Rock, where the State of Arkansas tried to, and, ultimately, you get to one of the most controversial decisions of our lifetimes, Bush versus Gore, in which the Supreme Court stopped the Florida recount in December, 2000, giving President Bush the election. I guess you marvel there at what Mr. Gore did after that decision, right?

Justice Stephen Breyer: I think he said, "Don't trash the Court." Just as interestingly enough, after the Guantanamo decisions, President Bush said, "I'll follow that decision." It was against him. He said, "I don't have to agree with it." There are really, 200 years of history that go behind that." I was in dissent in Bush v. Gore, so I thought it was wrong, a lot of people thought it was wrong. It was certainly unpopular. At least half the country thought, very unpopular.

I heard Senator Harry Reid, the majority leader in the Senate, say the following, and I agree with this completely, he said that the most remarkable part of that decision is very rarely remarked, despite its unpopularity. I think he probably thinks it was wrong. I certainly did. Despite all that, people did follow it, they did not throw sticks or rocks in the street, they did not shoot themselves, they did not have riots where people died. He said, "That is a treasure for this country."

I know I say this quite a lot to audiences because I want them to know about it. I say, "I sense a lot, about 20% of you are thinking, well, too bad there weren't more riots." I said, "If you're thinking that, go turn on the television set and listen and look and see what happens in countries that decide their differences in the street with guns." I see every day in my job, every day, people of every race, every religion, every point of view, and we have 300 million people in this country, and they probably have 900 million points of view, and some are very strongly held.

What I see is that they've decided to resolve their differences under law, in a courtroom, rather than killing each other with guns in the street. That's a miracle and a wonderful thing.

Brian Lehrer: If the grievances are serious enough and the system illegitimate enough, then even violent revolution becomes justified at some point.

Justice Stephen Breyer: That's a good theoretical point. That's even happened sometimes in the history of the United States, but it should be kept in the realm of theory and not in the realm of practical possibility. What is important here, and why I'm doing this, why I'm really talking to you, why I wrote this book, is we're living in a period where people are pretty cynical about the government. Some of that is justified, but if too much cynicism goes on, this democracy won't work, and the rights that are in that document won't be guaranteed.

I want to tell people, I want to do my bit, it's a small bit, towards telling people, "Please teach civics in the high schools,. Try to explain to the students what kind of constitution they have, what it says, how it's enforced, how they can participate in their government. That's what this is about. Just as I'll explain to the Chief Justice of Ghana, who is in my courtroom and says, "Why does this constitution work?" She's trying to bring democracy and human rights to Ghana or a judge from Asia or one from Latin America. Younger people, college students, law students, high school students, and their teachers in our own country, I think, the more they know, the more they understand it's called 12th-grade civics, why, and how their constitution works, the more they understand about it, the safer we are, and the more they will become committed to resolving their differences under law.

I think most people in public life feel that and this, in a way, is my effort to make a contribution describing the institution I know, the constitutional institution. So that people can understand what we do and why. That we are imperfect human beings, as all human beings are, that we will decide unpopular things, that's part of our job, and that, nonetheless, the constitutional institutions need their support. That's a very complicated thought, and people are busy. They don't necessarily have time to listen to all that though, but I'm trying to do my best here to get that point across.

Brian Lehrer: People are in their cars, you have a captive audience. [chuckles] If I could linger on Bush v. Gore, for just a second, most non-lawyers don't remember that it was decided on the technical questions of whether the state legislature, as opposed to the state courts in Florida, should get to decide whether a recount proceeds and whether different counties could do their recounts under different rules about what constitutes a valid vote. I got the chance a few years ago to ask retired Justice Sandra Day O'Connor if she came to regret her swing vote. She was the deciding vote. She elected Bush. According to many people's lights, here's what she said.

Justice Sandra Day O'Connor: Florida had the opportunity to recount votes and did but the court found that the Florida courts were not correctly applying federal law in the election process there. After the decision of our court became final, there were three separate recounts of the votes in the counties that were affected by the decision, and those were conducted by members of the media. In none of those votes would the result have changed. Indeed, the Florida vote count was as it was, very close, indeed, but it went in favor of George Bush.

Brian Lehrer: I guess you never second-guessed yourself on that one.

Justice Sandra Day O'Connor: Well, I don't know that I need to.

Brian Lehrer: Sandra Day O'Connor a couple of years ago here. What's your reaction hearing that today?

Justice Stephen Breyer: My reaction today is I don't go into the merits of prior cases very, very, very rarely. For my purposes, I'm just interested in the fact that there were five and there were four. I was in the four, so I thought the decision was wrong. I use it as an example of what Harry Reid said, and I think it's a good example of that. Going back over all the details of the cases I've decided it's something I should stay away from because I'm still sitting there and I will stay away from it.

Brian Lehrer: Jim in Hackensack, you're on WNYC with Justice Stephen Breyer. Hello?

Jim: Yes, hi. I wanted to ask about, I think one of the most important decisions recently of the court, Citizens United, which really upheld the right of money to be given at almost any time. To me, we're in a crisis of money influencing government. We're in the place that Roosevelt said, the Roosevelt question, "Will finance control the government for the benefit of the few, or will the government control finance for the benefit of the many?" When we have this much money pouring in to our election process is that not really the opposite of what Roosevelt advocated? I'm wondering if you can say what you think the implications of Citizens United will be for our democracy.

Brian Lehrer: Thank you, Jim. Justice?

Justice Stephen Breyer: No, there is a problem. [chuckles]] He said, "Can I say?" He had a great question, and I can't give a satisfactory answer. The reason is it's too recent the case. I was in the minority. I joined John Steven's opinion and he wrote a long explanation of why he thought it was wrong. The majority, which was five, wrote a long explanation of why they think it was right. It's a tension between the First Amendment and the expression of speech. On the one hand, do you interpret that to cover all campaign contributions?

If so, that's the end of it, but if not, which ones can Congress regulate and how? The four of us thought Congress can regulate this to a considerable degree, and the five thought not. There we are. Speculation, it would be on my part, is just what the consequences are because I'm not an expert in that. I have to stay away from giving you at least an answer to that question. I'm sorry.

Brian Lehrer: Well, let me follow up on his question. Maybe you'll duck this in the same way.

Justice Stephen Breyer: I probably will duck it. I almost started to duck it. There's very little I can say about things that are really controversial.

Brian Lehrer: I'm going to put it in the context of your previous book, Active Liberty, published in 2005 before Citizens United was decided. Part of your thesis in that book, and correct me if I'm wrong, was that the job of the court is not just to interpret the text of the Constitution, but to promote active participation in government by the people, by the many. I think to Jim, and many other of our listeners, what Citizens United does is suppress participation by the many in favor of participation by the moneyed few.

Justice Stephen Breyer: Fine. You see, what you've done is you've read sections of my book and I have more sections in this book, which certainly 90% of it we haven't gone into. People can read those and make up their minds what I think about something like that, but there you have it. I wrote this book in part, so I could explain quickly and simply on radio or television, what I believe is the importance of people understanding about the Constitution.

In the books, I have far more about it, but I've learned that saying one or two words on a radio or television program can be picked up and not fully understood, so I'm pretty careful about what I say. I'm a little, I think, more elaborate and describe it a little more fully in the book.

Brian Lehrer: Steve, in Manhattan you're in WNYC. Hello.

Steve: Good morning, Justice Breyer.

Justice Stephen Breyer: Hi.

Steve: Oftentimes, when we read about one of the Supreme Court justices in the media, you're defined by the president who appointed you, and I guess the theory is that a conservative president would appoint a conservative justice and a moderate president would appoint a moderate justice. I'm wondering if there is ever a reason or even a way to create a balance, mandate a balance between the two?

Justice Stephen Breyer: That's a very good question. Assumption, by the way, is sometimes wrong. Before I was on the court I had been a judge in Massachusetts. I grew up in San Francisco. I found out many disagreements that I had with other judges. When I came to Washington, there was even more disagreement. I didn't even know what the disagreement was so I got there. People really do think different things.

About presidents, well, President Teddy Roosevelt appointed Oliver Wendell Holmes. Within three months, Holmes had decided the opposite way on a big anti-trust case that Roosevelt hoped for, and Roosevelt said, "I could carve a judge with more backbone out of a banana." He was furious. Judges cannot be predicted by presidents to appoint them, but at a level of general philosophy, what the country is like, what law is like, how law relates to people, presidents may have more success at getting someone who shares their general philosophy. Very general and it's going to be a jurisprudential thing.

Well, I have come over time to think that that's probably a good thing. Why? Because we're there for a long time, we're there for life, and over that time, different presidents will be appointing different judges. This is a very big country. There are 308 million people and they really do think different things. It is not such a terrible thing if you have judges on the court, who in fact come from different places, jurisprudentially speaking. By the way, it's easy to overstate the disagreement. We are unanimous close to 40% of the time. We're five-four probably 20% to 25% of the time. It isn't always the same five and the same four.

The disagreements, I think the word political is not the right word to characterize them. I think they come from different views about how law relates to people in this country and how general or how specific or how case-specific or how bright line or rule you ought to have, how much you should use history, how much you shouldn't use history, how much you should use consequences, how much you shouldn't, how much you look to purposes, how much you don't. They're pretty legal-type things and people look to the document, the Constitution, but they sometimes find different things in that document.

Brian Lehrer: Yet, I think a lot of Americans think that all those pieces of judicial philosophy, how much respect for precedent and all the things you just mentioned are used as excuses by one side or the other to justify their political positions, whether it's on abortion or campaign finance, or whether Bush or Gore wins the election, or whatever it may be.

Justice Stephen Breyer: Well, good for you because I think that's-- the first reason I wrote this book was really to explain the dilemma to people of supporting an institution that will make unpopular decisions which can sometimes be wrong. The second reason I wrote it is because I know that that's just what people will say because they get it from the newspapers. What people are doing is they're junior league politicians, and they're just really deciding their political views.

Well, all my experience over 17 years tells me that's wrong. They are not junior league deciding junior league political questions with their political views, but it takes quite a while to explain that. I won't convince everybody, but I'm trying to explain what we really do in the second half of the book. I would describe it as more legal. It is legal in nature, interpreting this document. The law is not a computer. It doesn't mean it spews out answers like a computer. Humanity and human beings are involved both as consequences and as judges. It's hard, and it often requires the use of values and human values. We sometimes come to different answers, but political is the wrong word to describe it.

Brian Lehrer: Take one more phone call for you. Walter in Manhattan, you're on WNYC with Supreme Court Justice Stephen Breyer.

Walter: Good morning to you, Brian, and special good morning to Justice Stephen Breyer.

Justice Stephen Breyer: Good morning.

Walter: A quick question is, why do you think they started the Senate confirmation hearings in the '20s instead of the early days of the constitution? If I could tag one more in there, where in the constitution does it say you have to be a lawyer to be a Justice, even though it's a good idea?

Brian Lehrer: [laughs] Justice Breyer?

Justice Stephen Breyer: The answer to the second question is nowhere. It doesn't say it. There are those who say, "Why not sometimes?" There have been people coming from a lot of different backgrounds. You sure you have to have a lawyer? Well, it doesn't say you have to have a lawyer, so that's up to the president.

Brian Lehrer: It ever happened?

Justice Stephen Breyer: I think they've all been lawyers. They certainly haven't all been judges, but on the--

Brian Lehrer: Confirmation?

Justice Stephen Breyer: Yes, and on the confirmations, it was at some point. I can't tell you you need a historian to know why it was this point rather than that. The confirmation process is in a sense, bringing a little democratic window of opportunity so that people have a chance to look at this person, hear them, and through their elected representatives, say whether they want them or not.

Now, that's understandable compromise in a document like the constitution that's going to send us, if confirmed, to a position where we will have power over other people and it's very hard to remove the judges, very hard. It should be if they're going to make unpopular decisions in favor of people who are unpopular, but this is a democratic window of opportunity.

Now, I know there's a lot of criticism as to how it goes at the moment, but those who criticize it and think it's not wrong I say, "I'm necessarily the right person to ask." I say, "I was not nominating person. I was the person who was nominated. I was the person confirmed. I didn't involve the confirming, so to ask me about that process is a little bit like asking for the recipe for Chicken à la King from the point of view of the chicken. It's a good question.

Brian Lehrer: A good answer. Before you go, I'm not going to ask you to state any more positions or explanations with respect to any cases, but would you be willing to say what the most emotional, if that's the right word, case or couple of cases that you have had to decide were for the group of you. Was it Bush versus Gore or Citizens United, which will probably be the top two for our audience, did they stir the most passion among the nine of you?

Justice Stephen Breyer: Remember passion. We are judges and I've never heard a voice raised in anger in that conference room in [crosstalk]

Brian Lehrer: It must get hotter at some time than others.

Justice Stephen Breyer: It does, but the way it's expressed is not through shouting or insulting.

Brian Lehrer: There must be some cases-

Justice Stephen Breyer: Correct. You're right.

Brian Lehrer: -where you think so much is at stake more than other cases.

Justice Stephen Breyer: What do I feel very strongly about? I felt people were feeling very strongly about Bush v. Gore. Absolutely. They didn't shout at each other and they didn't insult each other. They proceed professionally, but of course, people felt strongly about that one. If I were to choose another one, for me, it wasn't Citizens United that was a very important one. It was probably the Seattle case involving affirmative action and the constitutionality of affirmative action. I felt very strongly. The way I showed I felt strongly I did dissent, but I read my dissent for 20 minutes from the bench. That's a long time.

That might have been a punishment for my colleagues, but I felt strongly about that one. There are many that we feel strongly about. I tell the law students this, "When you feel strongly, you think through your arguments and you try as a lawyer to present them in a reasonable, calm way. You will not get further in winning by showing you're all emotional about it because the other side will just say, 'Well, we feel strongly about it too and your emotionalism won't help.'" Sometimes it does, but you proceed in a rational and professional way, and that's how I think what we do.

Brian Lehrer: Last thing. 30 seconds, if you can. Cameras in the courtroom. In your opinion, should the Supreme Court allow them?

Justice Stephen Breyer: No. Maybe they will eventually, but there are a lot of risks in there. We're not certain about how the court would end up appearing, whether it would get into every courtroom, including criminal cases because we're a symbol, whether people would understand that we decide cases for rules of law that affect the 300 million not in the courtroom, not just the two before us. We're all conservative in respect to that. We don't want to hurt the institution. Eventually, it may appear that that will not be a problem for the institution in which case they'll come in, but I think we have to be shown that first.

Brian Lehrer: United States Supreme Court Justice Stephen Breyer, his book now out in paperback, is Making Our Democracy Work: A Judge's View. We so appreciate you spending much time with us today. Thank you so much. I really enjoy it.

Justice Stephen Breyer: Thank you. Thank you.

Brian Lehrer: Brian Lehrer, on WNYC.

 

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