tv The David Rubenstein Show Peer to Peer Conversations Bloomberg December 15, 2021 9:00pm-9:30pm EST
>> this is my kitchen table and my filing system. over much of the past three decades i have been an investor. the highest calling i thought was five equity, and then i started interviewing -- private equity and then i started interviewing. i learned how leaders make it to the top. >> i did know due diligence. david: and how they stay there. >> you don't feel inadequate now
being the second, do you? on capitol hill, i met a man named stephen breyer who was a law professor at harvard. i thought he will probably 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 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'm used to bigger books. why is this book so small? why didn't we get a bigger book? >> this is the constitution, and it is smaller. david: a lot of justices carry around the constitution all the time. is that because you are going to forget what is in it? you just like to remind people? you read it over and over? >> 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: there it is. this book is an interesting book in the sense that it came from a series of lectures you gave named after somebody who was an ideological i would 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 thousand students. they had never seen a supreme court justice. we talked about our differences. you know, i say, if i had your theory, my goodness, don't you think -- do you think george washington knew about the internet or free speech? and scalia would say, i knew that.
good point. then he would say, i'm not saying my theory is perfect. he would say, you know, the two hunters are hunting bears and one is putting on his tennis shoes, where you going? he says, a bear is coming. you can't outrun the bear. he says yeah, but i can outrun you. [laughter] that was his view of my way of deciding cases. i never, and i still, 28 years now, i have never heard a voice raised in anger in that conference room. i never heard one justice say anything mean or snide at the -- david: at the table or anything like that. justice breyer: what good would that do? i tried to explain that to the students. you get excited at all that happens is people disagree with you are saying he is all
excited, he must be wrong. that is so true. we get on well personally, we are friends personally. and we disagree on some things. not as many as you think, but some. david: it has not always been the case. there was a supreme court justice who refused to talk to or be in the presence of justice brandeis because he was jewish. it has not always been friendly. but you are saying right now, since you have been on the court, 28 years, people don't yell and scream at each other? justice breyer: they are not rude to each other. they do not insult each other. it is a professional job. you do your best professionally and if you want people to listen to you, the best you can do is think through this problem. listen to where the other person is coming from. and see what you can contribute to that thought. david: sometimes the dissents are little bit tough on the person who wrote the majority opinion. nobody takes that personally?
justice breyer: i get that question a lot. i used to get it a lot when scalia was on the court. i tried to answer because i did not want him to. i would say, i know you are not aiming the question at me. you are aiming it at nino. i get it. but what you don't understand is that some people suffer from a disease. it is called good writer's disease. and if a good writer finds a felicitous phrase, he will not give it up. let him destroy himself. let the world come to an end. it's like a good comedian, you can't give up that joke. that is nino. he is a very good writer, he has a felicitous phrase and we all know that and we don't take it personally. david: do you have a lot of unanimous decisions? you have a lot of 5-4 decisions.
they get the attention but is that where the court has the 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 social content. 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 oracle. it took a year for me to write that. it was about copyright and something called the interface programs. i was told that was very very important. well, for me it was like learning latvian. [laughter] i mean, i don't know how i do that. but -- i see what they are saying and it's true that a lot of the exciting cases are more close. david: but the justices -- let's suppose you have a decision that is 5-4.
will one justice will go to another justice's chamber and say, you know, your argument is not so good and maybe you should do something different, or is everything done by memos and writing? you don't have people going down the hall and saying, let's have lunch? maybe i can persuade you. does that happen? justice breyer: most of it is memo but quite a lot can be visits to chambers. but if i'm going into 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. [laughter] and if you go into somebody else's chambers, you better be prepared to listen to them as well as hoping they listen. then you try to see and that is what i learned in the senate. you try to see where is their -- where is there some common ground, and is there common ground enough that you can work
with them? ♪ david: you talk about the peril of politics. you do not want the court to be seen as political, yet, you have members of congress who are political and lots of things that are very political. for example, when you have confirmations these days, it's very political it seems. when you are confirmed, it wasn't that political, but today you have these votes that are very narrow and the democrats are voting for the democratic nominee and republicans are voting for the republican president's nominee. 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 senators will ask the questions and vote in ways they believe their constituents, by
and large, want. if they don't, they won't be senators for too long. so, if you think we are too much at loggerheads, it is too much a question of your political affiliation and not enough of a question of, where can you get together on the merits, i tell the students at stanford it's tough. i say you get out there and participate, get out there and try to convince people, you talk to people who disagree with you and find out what they think and see if you can find some common ground. that's easy to say and not easy to do. the thing sandra o'connor used to think, which i certainly think, is the first thing is teach civics in the high schools. everyone in this country, of course, it is their government, they ought to know how it works . they better.
second, participate, vote, take part in public life. ♪ david: let's go back to your earlier life. i worked on capitol hill and you worked on capitol hill. you were a harvard law professor. when you go to harvard law school and you are at the top of your class, you start there is always an intimidation factor. you have 600 people, you have to figure out if you are going to be good or not. when did you realize you were good at law school things, taking exams? did you know right away you're going to be a great law school student and potentially became a professor? or were you nervous the first year or so? justice breyer: [laughs] i think i was pretty nervous. i remember talking to a friend of mine that i was an
undergraduate with. he was there, too. we both said this is the end of our great careers after our first year. and we both did pretty well. david: you were in the harvard law review and sometimes you get to clerk on the supreme court for another justice. and you clerked for -- justice breyer: arthur goldberg. david: what was that like? justice breyer: he was great. he was an enthusiast. he had loads of energy. jack kennedy said he was the smartest man he ever met. david: you clerked for him and then you went to teach at harvard law school. justice breyer: that's right. david: when you went to harvard law school, did you say this going to be my life? i am going to be a professor, nothing terrible about that, you can teach great law school students. or did you say, someday maybe i will be on the supreme court? maybe i will be a judge. was that in your mind? justice breyer: anybody who thinks maybe someday i will be on the supreme court, i don't want to say there is something wrong with them but there is. [laughter]
david: after teaching at harvard law school you got a good reputation. senator kennedy invited you to work on his staff on regulatory reform. justice breyer: yes. david: that is where i first encountered you when i was working on capitol hill. you got a good reputation and then something happened that was a surprise to people. president carter nominated you to be a judge on the first circuit, not a surprise given your reputation. but it required a republican to sign off, strom thurmond, one of the most conservative republicans. why did you think strom thurmond said he would let a, presumably, liberal harvard law professor get on the first circuit? justice breyer: it was a different day. you remember that. people did try to work together. and every single morning, ken feinberg of the judiciary committee, we would have breakfast with amory stevens, a
former general and was strom -- and with strom thurmond's chief person on the judiciary. we would plan the day. we planned out the day. we wanted no secrets. we wanted to accomplish something and we figured out how do we color it red for this party, blue for the other party, but the important thing is if it is desirable, let us try to get it through. that happened a lot. i can't say there was no conniving, but we used to call what we did open conniving. openly arrived at. david: you were on the circuit and you had a very good reputation there. you were being considered to be on the supreme court. so you came down for an interview with president clinton, but you had a bike accident and you had a lot of injured bones if i recall. did you think that was bad karma that you had this accident before the interview? did that affect your ability to do the interview well?
or it did not make a difference? justice breyer: i have no idea. that is the truth of the matter. later, i thought about it, of course the newspaper people wanted to say weren't you terribly disappointed, and i said, well, it is not such a terrible thing in your life to be seriously considered to be on the supreme court. even if you are not appointed. that is the best you can do. and i was thinking partly, i said that because it is true, and partly i said it because i did have children. hey, my friend, you don't always win everything you want. and my goodness, what you want those children to learn, you want them to learn fine, sometimes you will get everything your heart desires, not very often.
and sometimes you will won't and you better be a good sport about when you don't as well as when you do. david: mick jagger has a song about that, "you can't always get what you want." [laughter] justice breyer: that is after my generation. [laughter] david: justice ginsburg was appointed first and then you were appointed next by president clinton. when you got on the court to how had it -- when you got on the court, how had it changed from when you were a clerk and were 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? in 1954, the court had decided that plessy v. ferguson, rightly, was down the drain. and legal segregation is contrary to this document, equal protection of the law. they said it in 1954. 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 said maybe those students have a court order, but i have the state militia and they are not. eisenhower, i would like to see that at the monument they are building for him, he called in 1000 troops from fort bragg, 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 wasn't. what happened was after a few months the troops had to
withdraw. and when that happened, the school board said, we are not going to integrate anymore. and when that happened, a famous case went to the supreme court, cooper v. aaron. and when that happened, all nine justices signed the opinion saying integrate now. do it. right now in little rock. hey, but they are nine people. maybe there could have been 900, maybe 9000. the governor closed the school. 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 work and moral
effort and physical effort and a lot of organizing effort and so forth, eventually legal segregation was brought to a conclusion. and the reason that i find that story important -- and i told that story to a woman from ghana who is the chief justice who was -- is trying to improve the constitutional system 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, in some detail, it is not moralizing. it is my experience. and i want them to see what the court can do. but 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 people to know about the supreme court? justice breyer: a judge is there for all americans. ♪
♪ david: let's talk about what is called the shadow docket. for people who are not lawyers, what is the shadow docket and why is it becoming a big thing? justice breyer: what it is is that in between, during the cases on which we decided to hear, someone will make an emergency motion. that is what it is, an emergency motion. the country is divided. i'm in charge of the first circuit, for example. everybody is in charge of some circuit. if there is a litigant in the first circuit who believes he needs to be immediate attention to issue an injunction or stop an injunction, you will file it
with me and i will look at it. most of them, there isn't much to, so it's easy to deny it, but some there is something to it, and i will refer to the whole conference. and if i should have and didn't, he can go to any other judge and it will be referred to the whole conference. most of these that are subject to the whole conference are death cases at the last minute. because of covid, i think, there have been recent cases which did not involve the death penalty or something that was not too difficult and i thought i was in the dissent in those cases. david: the most recent abortion case. justice breyer: i was in dissent. i thought it was wrong. i thought we should have the whole -- should have heard the
whole thing. it was a procedural matter, they did not decide the substance. david: it will be a case working its way to the court but it might take a year or so. justice breyer: there is a case in november where there is the subject matter. david: david: you have been on the court for 28 years. what is the pleasure of being on the court? what are you most proud of having done? justice breyer: it is a great privilege to be on the court. there is no doubt. and 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? yeah, yeah. the older you get, you see it as an enormous virtue. david: einstein famously said, "if you try something over and over again and expect different results, that is insanity." i guess if somebody asks you the
same question over and over that is the definition of an insane interviewer. but let me ask you a question you have been asked many, many times. [laughter] i know you are not going to give a different answer, but i have to ask you the question. what are you thinking about all of the issues relating to your retirement? justice breyer: yes. [laughter] david: ok. justice breyer: einstein was right. [laughter] david: einstein was right. you have said you don't want to die on the court and nobody would want you to. [laughter] justice breyer: einstein is coming back. [laughter] david: what would you like to do when you are alive after you are off the court? would you like to teach again? would you like to write? would you like to take life easy? what would you like to do? justice breyer: it's hard to take life easy. we will see. david: you have not thought about what you would like to do? justice breyer: eh, it goes through my mind. david: president biden has put together a commission to look at
the court and you have articulated your view that you do not think expanding the size of the court is a wonderful idea. justice breyer: what i said is they better be careful about that because two can play at that game. what is worrying me -- and i tried to explain in the book the extent to which politics is relevant or not relevant or present or not present and in what form -- and what worries me is people will think we are junior league politicians. and if they think that, their second thought would be why not have a senior league politician? once you think along those lines, two can play at that game. as i said. you can have republicans appointing, democrats appointing and vice versa. but i see the overall tendency of that is, given the history and the way we worked etc., as weakening the confidence of the average person in the decisions of the court.
you can say what's wrong with that? i say, well, that is a step toward, or away, from 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 along the lines of, it is not as political as some people think. but what would it be you would say? justice breyer: a judge, once he puts on that black robe, i'm not saying it is at midnight transformation, but i have to think this about myself, too. i have to. a judge is there for all americans. he is not there just for democrats. he is not there just for republicans. he is not there just for the president of the party that appointed him. and even if half the country think he is a real idiot and can't stand what he writes, in his own mind and the way he
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