tv The David Rubenstein Show Peer to Peer Conversations Bloomberg December 31, 2021 1:30am-2:00am EST
tom: 70% of adults now have their booster shot. the government strategy is under pressure with shortages of test kits and a growing caseload. hospitalizations are well below their peak in january. fresh insights into the fed plan next week at the release of decembers fmoc minutes. it starts 20 22 facing persistent inflation and falling
unemployment. opinion columnist from bloomberg says that is not enough. >> let us not head ourselves -- does not kid ourselves, there is still too much stimulus for what developments and forecasts are so if i were them i would accelerate more the taper so i don't risk a policy mistake in the middle of next year. tom: a check on the markets. gains in mainland china, 0.6% on the manufacturing and nonmanufacturing data. coming in well above the line of 50 in terms of the expansion we are seeing offering some relief as officials in china switch to more easing. the future state side point to losses of more than a 0.1%.
the dollar index is currently flat. crude is down 0.1%. it going. it is closing in on a 55 moving average. stay with us, this is bloomberg. ♪ 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 said fine, i did not negotiate with him, and i did no due diligence.
[laughter] david: i have something to sell you. 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 a man named stephen breyer, who was at harvard. i thought he will probably be an academic for the rest of his life, but he became a justice of the supreme court. he 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 questions 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 so small? why didn't you get a bigger book? justice breyer: this is the constitution, and it is smaller. [laughter] [applause] david: 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? [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. somebody says, what does 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 we would go -- i thought we had terrific debates. in lubbock, texas, there were several thousand students who would come. 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, don't you think you think george washington knew about the internet for free speech? and justice 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 that are hunting bears and one is putting on his tennis shoes, where are you going? he says, a bear is coming. you can't outrun a 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 have never heard one justice say anything mean or anything snide. david: nothing said 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, all that happens is people disagree with you are saying he is all excited, he must be wrong. that is so true.
so 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. mcreynolds. david: so it has not always been that friendly. justice breyer: no. david: but you are saying since you have been on the court, 28 years, people don't yell and scream at each other? justice breyer: no. they do not insult each other and they are not rude to each other. it is a professional job. you go in and 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 would try to answer because i did not want him to. i would say, i know you are not aiming that question at me. you are aiming that question at him. 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? or they don't get that much attention? and you have a lot of 5-4 decisions. they get all the attention, it seems. but is that where the court has the arguments, the five to four decisions?
justice breyer: no. 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 last 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] but you see -- i'm not saying -- i see what they are saying. i see what they are saying. and it is true that a lot of
these sort of exciting cases are more close. david: but to 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, 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 together and maybe i can persuade you my position is better than yours? does that ever 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, no, 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 is hoping they will listen to you. david: i see. justice breyer: and then you try to see, and that is what i learned in the senate, you try to see where is there common ground. and is there common ground enough that you can work with it?
yet the court can't control that because you have members of congress who are political and -- david: let's go back to your earlier life. i work on capitol hill and you worked briefly 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, when 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 things, taking exams? did you know right away you're going to be a great law school student, and therefore, potentially become a law school professor? or were you nervous the first year or so? justice breyer: [laughs] i got pretty nervous. i remember talking to a friend of mine that i was an undergraduate with, and he was there too. we both said, well, this is the end of our great careers after our first year. [laughter] 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 for another justice and you clerked for --
justice breyer: arthur goldberg. david: and what was that like? justice breyer: it was terrific. he was great. he was an enthusiast, 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, nothing terrible about that, you can teach great law school students." or did you say, "maybe i will be on the supreme court? maybe i will be a judge." was that in your mind? justice breyer: i did not think maybe someday. anybody who thinks maybe someday i will be on the supreme court, i mean, i don't want to say there is wrong with them but there is something wrong with them. [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 to work on regulatory reform. justice breyer: yes. david: that is where i first encountered you when i was working on capitol hill. you've 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. but 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 kleinberg, i was chief counsel and he was the general counsel of the judiciary committee, we would have breakfast with amory sneedin, 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 try to accomplish something, and we figured, how do we color it red for this party and how do we color it blue for the other party, but the important thing is, if it is desirable, let's try to get it through. that happened a lot. i can't say there was no conniving, but ken and i never used to call what we did open
conniving. openly arrived at. 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? or did not make a difference? 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, weren't 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: right. that is after my generation. [laughter] david: justice ginsburg was appointed first, but then you were appointed next by president clinton.
justice breyer: yes. david: when you got on the court, how had it changed from when you were a clerk? was it much different? 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. david: right. justice breyer: 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 1,000 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 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 very 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. but they are nine people. maybe there could have been 900. maybe 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 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 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 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 for all americans. â♪
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 a litigant in the first circuit who believes he needs 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 a 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: but there will be presumably 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 that is the subject matter. david: you have been on the court now 28 years. what are you most proud of having done and 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." if somebody asked you the same
question over and over again expecting a different answer, i guess that's the definition of an insane interviewer, but let me ask you the question you have already been asked many times, i know you will not 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. ok. you have said you don't want to die on the court and presumably nobody would want you to die on the court. [laughter] justice breyer: it is 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? in other words, 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 it because two can play that game. of course, 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 begin to 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? i say, well, 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 along the lines of, "it is not as political as some people think." what would it be you would say? justice breyer: 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, 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
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tom: these are your first word headlines from around the world. the u.s. and russia will hold three rounds of talks on european security next month. the plan was revealed after a phone call between presidents joe biden and vladimir putin. the kremlin says vladimir putin was satisfied with the talks. the white house said biden called russia to de-escalate tensions over ukraine. avoid cruise travel even if you are vaccinated, the latest warning from the cdc. the traveler lord
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