tv The David Rubenstein Show Peer to Peer Conversations Bloomberg December 18, 2021 9:00am-9:31am EST
david: this is my kitchen table and also my filing system. over much of the past three decades i've been an investor. the highest calling of mankind, i've often thought, was private equity. [laughter] and then i started interviewing. i watched your interviews, so i know how to do some interviewing. [laughter] i've learned from doing my interviews how leaders make it to the top. >> i asked him how much he wanted, he said $250k, i did not negotiate, i did no due diligence. [laughter] david: and how they stay there. you don't feel inadequate now because you are only the second
wealthiest man in the world, is that right? [laughter] when i was a young staffer on capitol hill, i met stephen breyer. i thought he will probably be an academic for the rest of his life, but he became a justice of the supreme court. i recently had a conversation with him about his future and the future of the supreme court. i have to start with the questions on everybody's mind. why is this book you have written so small? [laughter] it is a small book and i am used to bigger books. why is the book so small? why did you not get a bigger book? justice breyer: this is the constitution, and it is smaller. [applause] david: a lot of justices of the supreme court carry the constitutional the time. is that because you are going to forget what is in it? [laughter] you just like to remind people or read it over and over? justice breyer: you never know when somebody is going to ask
you a question. what is article three, section 19 say? and they expect you to know. david: you have it here. justice breyer: there it is. david: your book, this book is an interesting book in the sense that it came from a series of talks you gave named after somebody who was an ideological , let's say, opponent of some of your views, and that was justice scalia. were you a friend of his even though you had ideological differences? justice breyer: yes, i think so. we would debate those differences and i thought we had terrific debates. in lubbock, texas there were several thousand students. they had never seen a supreme court justice. and we talk about our differences. you know, i say, hey, if i had your theory, my goodness, 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. and i never, and i still, 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 at the -- -- or anything snide at the table or anything like that. 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: that 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. justice breyer: yeah. david: so it has not always been that friendly, but you are saying since you have been on the court, 28 years, people don't yell and scream at each other? justice breyer: the note -- they do not insult each other and they are not rude to 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 to 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 a little bit tough on the person who wrote the majority opinion. nobody takes that personally? justice breyer: i get that
question a lot, and i used to get it more when scalia was on the court. the two of us would be there and somebody would ask that question, and i tried to answer because i did not want him to. i would say, i know you are not aiming that question at me. 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. now, 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? do you have a lot of 5-4
decisions -- and they get all the attention, it seems -- 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 programs -- interface programs. i was told that that was very, very important. well, for me it was like learning latvian. i don't know how i did that. [laughter] i'm not saying -- i see what they are saying, and it is true that a lot of 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, this is not so good, to be -- maybe you should, 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. and then you try to see -- and that is what i learned in the senate -- he tried to see where is there common ground, and is
their common ground -- there common ground enough that you can work with it? ♪ you talk about the peril of politics. -- 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 can you avoid politics when you have the rest of the country looking at the court in such a political way? justice breyer: i feel pretty strongly that senators will ask the questions and vote in ways
that they believe their constituents, by and large, want. and 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, well, where can you get together on the merits, i tell the students at stanford it's tough. get out there and participate, get out there and try to convince people, 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. that thing sandra o'connor used to think, which i certainly think, is the first thing, teach civics in the high schools. everyone in this country, of course, it is their government, they ought to know how it works
, and a better. and second, participate. second, vote. take part in public life. ♪ david: let's go back to your earlier life. i work on capitol hill and you worked on capitol hill. 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, you start harvard law school 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, taking exams? did you know right away you're going to be a great law school student, and therefore potentially became a professor? or were you nervous the first year or so? justice breyer: [laughs] i was pretty nervous.
i remember talking to a friend of mine that i was an undergraduate with, and 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 in law school. david: you were in the harvard law review and sometimes you get to clerk on the supreme court and you clerked for -- justice breyer: arthur goldberg. -- david: and what was that like? justice breyer: he was great. he had loads of energy. jack kennedy said he was the smartest man he ever met. david: so 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 is going to be my life? i am going to be a professor, 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 mean, i don't want to say there is
something wrong with that, there is. [laughter] david: after teaching at harvard law school you got a good reputation. senator kennedy invited you to come down and work on his staff, i think on regulatory reform. justice breyer: yes. david: that is where i first encountered you when i was working on capitol hill. you got a very good reputation, and then something happened that was a surprise to people. president carter nominated you to be a judge on the first circuit. that is not a surprise, given your reputation and so forth, it required a republican to sign off on it. strom thurmond, one of the most conservative republicans. why did you think strom thurmond said he would let a, presumably, somewhat liberal harvard law professor get on the first circuit? justice breyer: those days 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 jag general, and it was strom thurmond's 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's try to get it true. that happened a lot. i can't say there was no conniving, but ken and i used to call what we did open conniving. david: so you were on the first circuit and you had a very good reputation there. then you were 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. do you think it was bad karma that you had this accident
before the interview, and did that affect your ability to do the interview well? justice breyer: i have no idea. that is the truth of the matter. later i thought about it, and, of course the newspaper people wanted to say, what you terribly disappointed? and i said -- i will tell you what, 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. and that is about the best you can do. and i was thinking partly i said that because it is true, and partly i said it because i have did have children. hey, my friend, you don't always win everything you want. and my goodness, what you want those children to learn, and you want them to learn, fine, sometimes you will get
everything your heart desires, not very often. and sometimes you won't. and you had 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, but then you were appointed next by president clinton. when you got on the court, how had it changed from when you were a clerk? 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.
and we both know what happened in 1955 -- nothing. next to nothing. 1956, yeah, 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 versus aaron. and when that happened, all nine justices signed the opinion saying integrate, now, do it right now in little rock. there were nine people, but maybe there could have been 900. 9000. they 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 a lot of moral effort, and a lot of is a go 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 is trying to improve the constitutional system there, and asked me, why do people do what you say? and 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. and 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 when you see the court can do, it does not mean -- when you say 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 people to know about the supreme court? justice breyer: a judge is there
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 such 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. now, 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. so if there is an -- if there is a litigant in the first circuit who believes he needs to be
immediate attention to issue an injunction or to stop an injunction, well, then you will file it with me and i will look at it, and 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 it 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 of the whole conference are death cases, at the very last minute. because of covid, i think, there have been some recent cases which did not just involve the death penalty or something that was not too difficult. and there i thought i was in dissent in those cases. david: the most recent abortion case. justice breyer: i was in dissent. i thought it was wrong and i thought we 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: you have been on the court now 28 years. what is the pleasure of being on the supreme court? justice breyer: it is a great privilege to be on the court. i mean, 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, the more you see it as 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."
that might be the definition of an insane interviewer. i know you are not going to give a different answer, that i have to ask you the question. [laughter] i know you are not going to give -- 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 die on the court. [laughter] justice breyer: einstein is coming back. [laughter] david: right. 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 write? would you just like to take life easy? what would you like to do? justice breyer: it's hard to take life easy. we will see. david: so you have not thought about what you might want to do? justice breyer: eh, it goes through my mind. david: president biden has put
together a commission that is going to look at the court, and you have already articulated your view that you do not think expanding the size of the court is a wonderful idea. i think you have said that. justice breyer: what i have said is that they had better be careful about, because two can play that game. what is worrying me -- and i 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 our court. and what worries me is people will think we are junior league politicians. and if they think that, their second thought should be, why not have a senior league politician? and once you think along those lines, two can play at that game. you can have republicans appointing, democrats appointing , and vice versa. but i see the overall tendency of that is, given the history , given the way we work, given the country, etc., as weakening the confidence of the average person in the decisions of the court.
you can say, what is wrong with that? well, i say it 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 something will -- be something along the lines of, it is not as political as some people think. what would you say? justice breyer: a judge, when he puts on that black rope -- i'm not saying it is a 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
emily: jeff bezos shocked the world when he stepped down as ceo of amazon. less shocking was his choice for successor. andy jassy was not only one of his longest-tenured lieutenants, but the architect of amazon's multibillion-dollar cloud business, amazon web services, a moonshot that helped transform amazon into an enterprise -- into not just e-commerce, but an enterprise juggernaut. jassy then needed to find his own successor, tapping a former colleague who helped grow aws in its earliest days, but had since
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