tv The David Rubenstein Show Peer to Peer Conversations Bloomberg September 29, 2021 9:00pm-9:31pm EDT
>> this is my kitchen table and it is also my filing system. over much of the past three decades i have been in investment. the highest calling of mankind i often thought was private equity. then i started interviewing. i have learned from doing interviews how leaders make it to the top. >> i did not negotiate with him, i did no due diligence. >> you do not feel inadequate now because you are the second
in the world, is that right? >> on capitol hill, i met a man who was a law professor at harvard. i thought he would be an academic the rest of his life, but he became a justice of the supreme court and has been in that role for 27 years. i recently had a conversation with him about his future and the future of the supreme court. i have to start with the question on everybody's mind, obviously. why is this book you have written so small? it is a very small book and i am used to bigger books. why is this book so small? >> this is the constitution, and it is smaller. a lot of justices of the supreme court carry around the constitution all the time is that because you are going to forget what is in it or you like to remind people? you just read it over and over? collects you never know when somebody is going to ask you a
question. somebody says what is article three section 19? they expect you to know. david: so you have it here. your book -- this book is interesting in the sense that it came from lectures you gave named after somebody who was an ideological let's say opponent of some of your views. that was justice scalia. were you a friend of his even though you had ideological differences? >> i think so. we would debate those differences. i thought we had a terrific debate. in lubbock, texas, there were several thousands of students. they had never seen the supreme court justice. we talked about our differences. i say, hey, if i had your theory, my goodness, don't you think -- do you think george washington knew about the internet for free speech? and scalia would say, i knew
that. then he would say, i'm not saying my theory is perfect. he would say, you know the hunters hunting bears and one is putting his tennis shoes, where are going? he says a bear is coming. you can't outrun a bear. yes, but i can outrun you. that was his view of my way of deciding cases. we -- 28 years now, i have never heard a voice raised in anger in that conference room. i have never heard one justice say anything mean or snide. what good would that do? i try to explain that to the students. you get all excited and all that happens is people disagreeing with you think he is all excited, he must be wrong. that is so true.
so we get on well personally. we are friends personally. we disagree on some things. not as many as you think, but some. david: there was a supreme court justice who refused to talk to rb in the presence of justice brandeis because he was jewish. it has not always been that way. you say since you have been on the court, people don't yell and scream at each other. >> they are not rude to each other. it is a professional job and you do your best professionally. if you want people to listen to you, the best you can do is to think through this problem. listen to where the other person is coming from and see what you can contribute to that. david: sometimes the dissents are rough on the person who
wrote the majority opinion. nobody takes that personally? justice breyer: i get that a lot and i used to get it more when scalia was on the court. i would try to answer because i did not want him to. i would say look, i know you are not aiming that me. ok. i get it. but what you don't understand is that some people suffer from a disease. it is called good writer's disease. if a good writer finds a phrase, he will not give it up. let him destroy himself, let the world come to an end. it is like a good comedian. you cannot give up that joke. that is him. he is a good writer and we all know that and we don't take it personally. david: do you have a lot of unanimous decisions these days? they don't get that much attention. the 5-4 decisions, is that where
the court has its arguments? justice breyer: not necessarily. what you read about are the ones the press thinks the public will be interested in which usually has a political or a social content, and they will say that is the most important. i don't know. one of the most important decisions i wrote this past year was called google versus oregon. it took a year for me to write that. it was about copyright and something called interface programs. i was told that was very, very important. well, for me it was like learning latvian. i don't know how i did that. but you see, i see what they are saying. it is true that a lot of the sort of exciting cases are more close. david: suppose you have a decision that is 5-4.
will one justice go to another justice's chambers and say your argument is not good, or is it done by memos? you don't have people going down the hall saying let's have lunch together and maybe i can persuade you. does that ever happen? justice breyer: most of it is memo. quite a lot can be business to chambers. if i'm going to your chambers, i'm not going to say your argument is not so good. this would not be a helpful way to start the conversation. if you go into somebody else's chambers, you are going to be hard to listen to them. as well as hoping they will listen to you. then you try to see -- that is what i learned in the senate. what you try to see is, where is their common ground? is there common ground enough that you can work with this person?
♪. david: can you talk about the parallel politics? you don't want the court to be seen as political, yet the court cannot control that because you have members of congress who are political and many things that are political. when you have confirmations, it is very political it seems. when you were confirmed it was not that political, but today you have these boats that are very narrow. the democrats are always voting for the democratic nominees and republicans are voting for the republican president nominees. how do you think you can avoid politics when you have the rest of the country looking at the court in such a political way? justice breyer: i feel strongly that the senators will ask the questions and vote in ways they believe their constituents by
and large want. if they don't, they will be senators for too long. if you think we are too much at loggerheads, it is too much a question of your political affiliation and not enough a question of, where can you get the other in the merit, i tell students at stanford it is tough. you get out and try and convince people, you talk to people who disagree with you, find out what they think, see if you can find common ground. it is easy to say and not easy to do. the thing sandra o'connor used to think that i think is the first thing is teach civics in high schools. everyone in this country, of course it is their government, they ought to know how it works. second, participate.
vote. take part in public life. ♪ david: let's go back to your earlier life. i work on capitol hill and you work -- you were a harvard law professor. i'm curious, when you go to harvard law school and you are at the top of your class, when you start harvard law school, there is an intimidation factor. you have 600 people. when did you realize you were really good at law school kind of things, taking exams? did you know you were going to be a great student and therefore become a potential professor? or were you nervous the first year or so? justice breyer: i think i was pretty nervous. i remember talking to a friend
of mine i had been undergraduate with and he was there. we both said, well, this is the end of our great careers after our first year. and we both did pretty well. david: you were on the harvard law review. sometimes you get the clerk on the supreme court -- you get to clerk on the supreme court for another justice. what was that like? justice breyer: terrific. he had loads of energy. jack kennedy said he was the smartest man he ever met. david: you clerked for him and went to teach at harvard law school. when you went to harvard law school, did you say this is going to be my life, i'm going to be a professor? you can teach great law students and so forth. or did you say one day i will be on the supreme court? justice breyer: i did not think maybe someday. anybody who thinks maybe someday i will be on the supreme court, i don't want to say there is something wrong with it, but
there is. david: after teaching at harvard law school you got a good reputation. senator kennedy invited you to work on his staff. i think you worked on regulatory reform. justice breyer: yes. david: that is right first encountered you when i was working on capitol hill. then something happened that was a surprise to people. president carter nominated you to be a judge on the first circuit. that's not a surprise given the reputation and so forth. but it required a republican to sign off on it. strom thurmond, one of the most conservative republicans. why do you think strom thurmond said he would let a somewhat liberal harvard law professor get on the first circuit? justice breyer: it was a different day. people did try to work together. every single morning, the judiciary committee -- we would have breakfast with a former
general and with strom thurmond and we would plan out the day. we wanted to try to accomplish something. we would figure out, how do we color it read for this party and blue for the other party? the important thing is that it is desirable, let's try to get it through. that happened a lot. i cannot say there was no conniving. but we never used to call what we did open conniving openly arrived at. david: so you went on the first circuit. you had a good reputation. you were being considered to be on the supreme court. you came down for an interview with president clinton, but you had a bike accident. you have a lot of injured bones.
do you think it was bad karma you had this accident -- you had the -- justice breyer: that is the truth of the matter. ater i thought about it. -- later i thought about it. i said i tell you what, well, it is not such a terrible thing in your life to be seriously considered to be on the supreme court. that is about the best you can do. i was thinking partly of that because it is true and partly i said because i did have children. my friend, you don't always win everything you want. and my goodness, what do you want those children to learn? you want them to learn, fine,
sometimes you will get everything your heart desires, not often. sometimes you won't. you better be a good sport about when you don't as well as when you do. david: and mick jagger has a song about that. you can't always get what you want. justice ginsburg was appointed first, but you were appointed next by president clinton. when you got on the court, how hot it changed? was it much different? are you surprised by the changes? justice breyer: yes, i thought it was different in this respect when i clerked. i felt it was a court with a mission. what mission? 1954, the court had decided that plessy versus ferguson rightly was down the drain and legal segregation is contrary to this document, equal protection of the law. they said it in 1954 and we both
know what happened in 1955. nothing. next to nothing. 1956, double nothing. 1957, a rather brave judge in little rock said those little rock nine, those nine brave black students, are going into that white school, central high school. but the governor, the governor said maybe those students have a court order, but i have the state militia and they are not. and eisenhower -- i would like to see that at monument they are building. he called in 1000 troops from fort bragg, the 101st airborne, and they took those nine black children and walked into that white school. i would like to say that is the end of the story, but it was not. what happened was after a few
months, troops had to withdraw. when that happened, the school board said we are not going to integrate anymore. when that happened, a very famous court went to the supreme court. one that happened, all nine justices signed the opinion saying integrate now, do it. right now in little rock. there are nine people. maybe there could have been 9000. the school was closed to the governor. that is what happened. for those of us who remember and those of us who don't. but. they could not keep it closed. because that was the era of martin luther king, the freedom riders, and suddenly the north woke up and others woke up and said, this is an intolerable
situation and eventually through a lot of work and a lot of moral effort and physical effort and organizing effort and so forth, eventually legal segregation was brought to a conclusion and the reason i find that story important, and i told that story to a woman from ghana who was the chief justice who was trying to improve the constitutional system there and asked me, why do people do what you say? my response was, ma'am, 301 million people in this country and 300 million are not lawyers. that comes as a surprise. and those are the people you have to convince. convince what? convince that they should try to follow the courts and the rule
of law when they don't like it. when they think it is wrong. that is why i wrote this book. in a sentence, that is why. i want people to see and some detail, it is not moralizing. it is my experience. i want them to see what the court can do. it does not mean nine people. it means the country as it has come to develop a long time, 200 years, and then, maybe, maybe we have a country that can use this weapon called the rule of law in order to prevent some pretty terrible things. david: what would you like most
david: let's talk about the shadow docket. what is the shadow docket and why is it becoming such a big thing? justice breyer: what it is is that in between hearing cases on which we have decided to hear, someone will make an emergency motion. that is what it is. an emergency motion. the country is divided. i am in charge of the first circuit for example. everyone is in charge of some circuit. if there is a litigant in the first circuit who believes he needs immediate attention to
issue an injunction or to stop an injunction, well then he will file with me and i will look at it and most of it there is not much to. it is easy to deny it. but for some there is something to end you will refer it to the conference. if he should have been did not, he can go to any other judge and it will be referred to the conference. most of these that are the subject of the conference are death cases at the very last moment. because of covid i think there have been recent cases which did not just involve the death penalty or something that was not too difficult. and there, i thought i was in the dissent in those cases. david: the most recent abortion case -- justice breyer: i was in dissent.
it was a procedural matter, they did not decide the substance of the statute. david: there will be a case presumably working its way to the court that might take a year or so. justice breyer: there is a case in november. david: you have been on the court now 28 years. what are you most proud of having done? what is the pleasure of being on the supreme court? justice breyer: it is a great privilege to be on the court. no doubt. from a personal point of view, i would say it requires you in middle age when you get there to give your best to this every minute. and you say, is that a big virtue? yes. the older you get, the more you see it. an enormous virtue. david: einstein famously said if you try something over and over again and expect a different result, that is the definition of insanity. if someone asks you the same question over and over expecting a different answer, i guess that is the definition of an insane
interviewer. but let me ask a question you have been asked many times. i know you are not going to give me a different answer, but i have to ask you. what are your thinking about all the issues relating to your retirement? justice breyer: yes. einstein was right. david: einstein was right. you have said you don't want to die on the court. presumably nobody would want you to. so what is it you would like to do when you are alive after you are off the court? would you like to teach again? would you like to just take life easy? what would you like to do? justice breyer: it is hard to take life easy, but we will see. david: you have not thought about what you might want to do? justice breyer: what goes through my mind -- david: president biden has put
together a commission that's going to look at the court. you have articulated your view that you don't think expanding the size of the court is a wonderful idea. justice breyer: what i said is they better be careful about it because two can play at that game. i have tried to explain to people in the book the extent to which politics is relevant or not relevant or present or not present and in what form in the work of art work -- of our court. what worries me is people we -- will think we are politicians. junior league politicians. the second thought will be, why not have a senior league politician? two can play at that game. you can have republicans appointing, republicans appointing -- democrats appointing, vice versa. given the history, the way we work, given the country, that is weakening the confidence of the average person in the decisions
of the court. you can say what is wrong with that? i say it is a step toward or away from a rule of law. david: what would you like most people to know about the supreme court? if you could say to the average citizen, here is what you should know in a paragraph about the supreme court -- i assume it would be something along the lines that it is not as political as some people think, but what would it be you would say? >> a judge, once he puts on that black robe, i'm not going to say it is a midnight transformation, but i have to think this about myself. i have to. a judge is there for all americans. he is not there just for democrats. he is not there just for republicans.
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