tv Justice Stephen Breyer The Authority of the Court the Peril of... CSPAN January 31, 2022 4:45am-5:51am EST
food journalists, dan saladino reports on the consolidation of food production and why he thinks diversity in our diet is important in eating to extinction and in the grieving brain. neuroscientists mary frances o'connor examines how our brains manage loss and grief. find these titles this coming week wherever books are sold and watch for many of these authors to appear i the near future on book tv. it is my pleasure to introduce dr. monique. chisholm secretary for education responsible for defining in the institutional's educational priorities she oversees the smithsonian's collective initiatives communication strategies and funding for programs that benefit learners of all ages. under secretary chisholm brings many years of public education experience to the smithsonian before joining us in june. she served as vice president for education policy and strategic initiatives at the american institutes for research. so now please join me in welcoming monique chisholm.
good evening, and thank you lauren for that wonderful introduction. i'd like to start off tonight's event by first offering a land acknowledgment. so first, i would like to gratefully acknowledge the native peoples whose ancestral homelands we gather as well as the diverse communities who make their home in, washington, dc. and for all of those streaming to acknowledge the lands that you are coming to us from i am so excited and pleased about tonight's event both personally and also as the under secretary of education. as you heard, this is a special evening for us as we are doing an in-person and line live streaming for the first time and also that education has been at the core of the smithsonian mission since our hundred and seventy-five year bounding. in fact the spirit and purpose
of the programming that you will have tonight. smithsonian associates has been doing for 55 years through high quality in-person programming and we're happy to extend that tonight. and particularly excited about this event because we have two fabulous people appropriately the singular occasion spotlights associate justice stephen breyer and also cnn legal analysts joan john biscubic. let me first start by introducing justice breyer. the smithsonian has a long and valued connection with the supreme court. by tradition the chief justice is a member of the board of regents. and our collections encompass countless holdings that make that help us tell the story of the courts vital role in shaping our democracy. justices set sonya's hot. so tomorrow ruth bader ginsburg,
sandra day o'connor antonio have all taken part in memorable smithsonian associates events. and justice breyer joined that esteemed list in 2016, and we are honored to invite him back. justice breyer as you probably know has a long history as a legal educator. and a continuing affiliation with harvard university in fact the book that he will discuss tonight the authority of the court and the peril of politics. had its beginning in august 2021 at a presentation for the harvard law schools scalia lectured series. an educators voice is present throughout the book as he talks about the importance of judicial power. the rule of law and the role that the judiciary plays in the american body policy. for example, he talks about the landmark case of the 1954 brown versus board of education
decision and then amplifies that through the discussion of cooper v aaron which came three years later which reiterated that decision. we are happy to see that he takes on this discussion about how the expansion of the court's authority and these events become key catalyst for a wider civil rights movement. that was defined in the 1960s. he really helps us think about the essential role of public competence. in the supreme court decisions and how those judicial decision decisions shape our democracy. so we are excited to have him here tonight to talk about these ideas. we are also excited to welcome joan and thrilled to have her talk with him tonight. she has covered the supreme court for 25 years and she is also the author of several books. she most recently published a
biography of chief justice. john roberts entitled the chief. in 2019. she's a graduate of georgetown university and she was the finalist for the pulitzer prize in explanatory journalism in 2016. so please join me in welcoming both of them to the stage. thank you, dr. chisholm. and thanks also to lauren rosenberg who was quite helpful in arranging all of this. this is the very first time you've been back in person at the smithsonian and i have to say you've got the added bonus that this is justice breyers first in-person in washington dc. he's already told me that i couldn't say in the world because he was up at the 90
second street y in person but so you have this extra special thing and you also have something even better because today the first time that the press and the eight justices minus justice kavanaugh. we're in the courtroom for oral arguments and they hadn't been together on the bench to hear a case since march 4th to 2020. so this was quite a big day and joanna breyer was there. watching justice kennedy was there retired justice kennedy was there jane roberts the chief's wife was there? how did it feel to you very exciting for us to watch? what was it like for you? of course, i want to thank you for inviting me to businesssonian and do everybody here second. i'll answer your question. how did it feel? it felt better. did it feel like business as usual, did you feel like you were able to get more out of the case cases as they were already?
i think it's better to be there. what we we'd organized is that a we have these telephone, you know telephone and we ask the lord's questions on the phone and we do it in turn now the virtue of that is since we knew we were each going to have a turn of two or three minutes as you focused on the question and you focus on the answer but the distance and that's helpful. i mean, that's what you're supposed to do, but in addition the negative part is it's less human. i mean you can't really see what the people look like. how are they reacting? you can't pick up something that your colleague said so easily what is what is this scholar? what is he or she think of the what's going on and when you're there in person it's it's a more human thing, which is there enough things that make it not human and so having one that makes it more human is a definite advantage and and i'd say that's what it was a big
improvement today. could you hear could you pick on any up on any cues from your colleagues even in the cases that were argued one was a water rights case and water rights was never so exciting as today one was the water rights case and the other was a criminal law case and they were they were under the radar cases in terms of the law, but in terms of this opportunity, were you able to sort of sense where your colleagues were at in that case those cases more than you would have the last 16 months. well, maybe a little more but i mean one of my how to an analogy with wild horses running around under the ground and he might not have said that if he knew that that was going to be the single question everybody would focus on right actually very good question, right and you picked up on it. you used that i now thing i was going to ask is before you go into or i'll arguments and before you go into your private conference and they call their private meeting the conference. you always shake hands are you
doing that? you know the rubbing elbows. you're knocking. okay? okay, i wondered about that and i know that you've all had regular testing and have very strong protocols. but have you increased in the precautions since justice kavanaugh found out that he was infected even though he'd been vaccinated, you know, for example, are you still eating together and keeping your math stuff or tell me if you did anything differently found out about that? i don't think so because we're tested continuously. and and you have you know, the home test it just taking it the result in 15 minutes and and maybe once a week. we'll have a more lengthy test where you get the several hours later. and so i don't think there was anything different that i can think of we had lunch together. okay? and just one last question on lunch and then i actually have a last question and i'm getting so and we never get to see behind the curtain. that's why andrew lunch you i mean, yeah, you never yeah, i never get to go so but i so many justices have said that you
don't talk about the cases and you try not to talk. anything but like sports and music and grandchildren things like that. what were the general topics today? movies as well what the proper name for one of the football teams in this area ought to be so you do get a little political. well, i don't know if that was political because i was amazed at the breadth of knowledge of the sort of weird nicknames of football teams across the united states of america including those belonging to colleges. i didn't know about but i now know because of the football team and so it was an extensive conversation. okay? well one of the biggest football fans around the table was justice thomas, i'm sure. loves football and i was wondering you know, he just as thomas had always been the most silent justice during oral arguments and then during the teleconferences he he went in the sequence that chief justice
john roberts had set up, you know, so we'd always come second and many of us were wondering if he would speak from the bench when you were back to the usual format of mixing it up. what did you think about him jumping in right from the starch? yes. he did. he did speak fine. it was i fine that's good. he always i i'm sat in extreme for 27 years and i know perfectly well. he has very good questions, and he thinks they'll be answered because others will ask those questions and sometimes they are and sometimes they're not so i'm rather personally. i'm very glad that he did ask questions and i imagine we'll continue to do so and it's had plenty of chance to do that. he doesn't like to interrupt other people, right? so it was good that there was a pause and it seems like people were letting him go first today. yes. yeah. okay good. so i'd like to turn to the book which i recommend to people although. i understand that it's prickly like sold out everywhere. right but people should still at
least get on waiting lists. yes, i guess it's sold out or they're having a trucking crisis, which is okay, so get into. yeah, so that's that's to you all who haven't gotten it yet. i have several questions for the justice and then we also have several questions that have come in from the audience here tonight and also people on zoom and i'm going to mix up some of the substantive ones with questions related to court culture because i as i said, it's always good to get a little peak peek inside, but i'm gonna start with one of the most serious ones and that goes to the thesis that justice breyer has related to public confidence in the court. and that has been a really important theme that you've had from the start i think because i went back and watched some of your interviews related to your 2010 book making our democracy work and i noticed you've long been stressing public confidence in the court, and i just wondered if you thought it was harder these days in these
polarized times to to build up public confidence and and if you feel like you're it's there's a real risk here today. probably if you look at the numbers in the polls and so forth. you see that one of the problems in the country is is a lack of trust in public institutions and when i was in grammar school i think it was there was more trust and you see that in the polls and i don't see how a nation or any institution. can work without a certain degree. it and you're talking like everything is that's going on.
we're lucky. yeah, let's be calm. why should we be problem? we're losing our right when these right-wing maniacs want to take away. it's not acceptable. this is a crisis and you're just going off like everything is fine. it's not all right to be taken away. do you remember the time a lot of people losing your life? that's not we don't want to hear. well, there's freedom of speech now you gave your speech and and i think that's fine. okay, so just people we're going back to the other right what people it says now is the time to retire justice prior, so, just jump to that. why don't we did that? that was i wasn't that's always one of the most sensitive questions. i did not set that up. but okay, you handle that very well just as prayer. so now how do you wait? let's just get to let's just get
to that and we'll get it off the table. how do you respond to people who normally would say it more gently than bringing a sign to one of your speeches? but how do you what do you say to people who? argue that you should retire as soon as possible while the democrats have the senate majority. that's the basic issue that those those protesters that's their point of view. i've said pretty much what i have to say. there are a lot of considerations and i don't want to add to what i've had to say tonight because i notice every time that i had something it becomes a big story and so the less i add the better and it's i think i'm not from pluto. i think i knew it this gentleman thought and i think i have most of the considerations in mind and i simply have to weigh them and think about them and decide when the proper time is i've also said that i don't i hope i don't die on the supreme court and there we are.
um, i'm going to because because that topics on the table, i think i'll stick with that and i'll just say your predecessor blackman in 1994. told the president in in april. of 94 that he'd be stepping down. and then before him byron white told the president in varsity be stepping down and then i think john paul stevens also did the spring is there now that we're into the term? you think that kind of practice has been helpful to a president to know ahead of time? i've looked through the various practices and the only reason i don't want to answer. the question is simply because i don't want another headline about because this is really about the book and and i'd like to stick to that. do you think the court has added to the polarization? that you are trying to step away from with some of its rulings.
of course, that's rather. i mean, that's a very interesting question because if you go back into history you see many many decisions. the i personally and a lot of the country really disagree with i mean try plessy versus ferguson, for example a try a lot of the lochner kind of decision and and that's always been true in in my opinion like other people's opinions. i can easily find cases where i think they're very very wrong. and the story i like because it really made an emotional impression upon me was when the chief justice of ghana i've said this many times. was in my office and she is a woman who is trying to have greater emphasis on the courts and on civil rights and in democracy in ghana, and she asked me a simple question.
why do people do what you say? and that is what has led me into both history because they didn't always. and also the need for trust and also trying and that's really why i'm doing it. to explain to people how the court works what it does what it works when it does well and believe me when it does. well, they'll always be some people who think even when it does well that they're making very wrong decisions. so the ultimate point that i wanted to get across. how do you develop this custom? how do you develop the habit? of following a rule of law is that you must convince people? who are not lawyers? who are not judges? of course the judges think the rule of law is important. as their job and lawyers think about the same at least in the
judge's present and the the point though. is that in this country? though people often forget it. of the 301 million people 300 million are not judges and they're the ones. who have to understand why it's important to them? normally to follow opinions that they disagree with. and that's what i said durham i said, yeah, let me ask you about something. yeah, and this gets to why you know one of the people who just stood up with the sign said how can you act like things will be? okay when we're seeing so many divided rulings. and i know that you write that the court's differences the six republican appointed conservatives and the three democratic liberals that those divisions are the result of jurisprudence and not of either
politics or ideology. what do you say to people who come back to you and observe that there are so many cases that split that way and it seems like some of your colleagues might be voting a long lines. that would be more political. what do you say to people who raise that issue? thank you. for example, yes. well, let's let's go back a step. let's go back a i don't say here. and indeed if i say anything is the contrary. i don't say everything's going to be all right. i don't know if it will be. all right. and i think that's true of every person in this room. we don't know. are you more concerned? we don't know. well the point that i want to make is the audience that i talked to about being. all right are our high school students college students. law school students and i point the thing that i point out,
which i like very much is i found a letter from george, washington. who really said the same thing? that abraham lincoln said in the gettysburg address and what's that? joanna said each of my grandchildren who memorizes the gettysburg address will get $20. and some of them have i don't know of every one of them has but some of them have and the point that i want made there. is he starts out? four score in seven years ago our fathers what did they do? they? on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal. we are fighting a great ward to see if this nation or any nation so conceived and so dedicated can long endure. all right now. he doesn't know.
this is an experiment and that's what i found a letter of washington saying the same thing. it's an experiment. and there were a lot of europeans in 1789. who said it's a great. theory of the enlightenment but it'll never work. it'll never work. and that's what we're up against. and what we're up against is to try to show. and and we had a civil war. we had 80 years of slavery of reconstruction of just about slavery and many more years of slavery before that and we've all kinds of things. and yet basically we've been able to show well. it's sort of work. i mean sort of you see and you have to be hesitant. you have to be hesitant because there isn't one person. who knows. and all i can say is i think some trust in institutions is an
important aspect. of trying to get that experiment to continue and i know the smithsonian is not going to do this. it's so great. that we have to teach those younger generations history and what our institutions do and that they're part of it and it belongs to them. that's why i say well, that's true. and that's what i'm trying to say here. i get it. so let me have to specific question from something you wrote in the book justice alito in a widely covered speech recently quoted you quoted something from your book and his his advice to judges and to justices was just do your job. he picks up what you wrote on page so that wasn't me you follow us your father. yeah, my father now, i know my father my father said two things one is he says like advice one was do your job. that's correct. and the other was stay on the payroll right?
and you yes, you believe right, but justice alito's larger point after as he quoted you was a defense of the court's emergency docket or the shadow docket that some people call it and he was trying to say that when the justices issued these images emergency orders for example on september 1st when they the majority let the texas abortion ban go into effect that really a lot of it is is is necessary in business as usual he was defending the process, but you just as prior signed on to a statement from justice kagan on september 1st. when the majority led, texas enforce that abortion ban that said the majority's decision is emblematic of too much of this court's shadow docket decision making which every day becomes more unreasoned inconsistent and impossible to defend didn't i write my own decision you did but you sign this one and i so i'm just no i mean this is this is this gets to kind of another important topic that people are concerned about. what do you think of justice alito's defense and what did you
think about the emergency order process that was getting impossible to defend? what did i think about that case? i thought it was wrong. that's why i not only wrote a descent but i signed other descents. and what i think justice alito i've read is it's primarily it is primarily an effort to explain. what the emergency docket is? and why you have to have quick decisions normally. and you do what did a basically the emergency docket is a docket where someone who believes that the court will fully hear their case? says court while we're writing the briefs. and while we're having the oral argument and while you will decide will you please issue and injunction stopping this or taking it injunction away and letting this go forward and they
give reasons they mostly in my experience. i have involved death cases. i'm afraid to say. and somebody has a point and he says i want you to accept this and in the meantime, will you please stop the execution? now more recently. it has involved cases that involve covid. and so and and then it had also the case you just talked about and so it's not always free of doubt by any means. it's not always clear what you should do. and in my opinion what we should have done was we should have you didn't injunction and stopped the texas law from taking effect, but the instrument the the but that was did not command the majority look. i grew up in san francisco. i lived in boston. i've said this many times and i was some i've seen people disagree.
but never to the extent that i've been here. and i first thought oh my god, you mean on the court? i mean not just on the court a lot of people in the city of washington dc disagree. okay, and even in your newspapers, i noticed that they write about that. all right, so that's true. and my first thought was as you know, because i've said it before and i'll say it again. it's such a pity. that everybody doesn't agree with me. who after all i'm so reasonable? of then i began to have a perhaps more mature view this is a big country. there are 301 million people as i said, it has every race it has every religion. it has every point of view imaginable and those people and my mother used to say that.
can i say this? i don't know. used to say there's no view so crazy that there isn't somebody in this country doesn't know that and but you didn't think that in san francisco, so they've been the southern part of the state, but don't tell anybody she said that and but the point is this the point is this it is a big country. and i read this two days ago in a very interesting article. that compared to a lot of other countries. we are held together in part by this doctor. and so it's a nation of people who have long disagreed and of course like you. i have my own opinions and i often write them about what i think the law ought to be. and sometimes i do convince people. and sometimes i do not. very well they've agreed on a system for trying to live together and work out their differences. and all i am saying is that system is an experiment.
it's one part of a larger experiment. and one of the problems of the country is not that the court is working perfectly. i hope that gentleman who had the flag has read the book, but but look one of the problems is how do we continue? to have a nation where people of different points of view can work together? undo the law that's the point. that's let me ask you to follow up questions on that and because because you have you're reluctant tonight. and i get that. but i'm thinking of things that you've said out loud in other forms and one is your concern for the those emergency orders. and that you're the line that you signed on to that it was impossible to defend or getting impossible to defend. do you think we might see more
caution among the justices on the shadow docket just because of some of these concerns that have been raised. i don't know other people's minds. i know my own. and i thought as i said in that case that that particular case was wrongly decided that isn't the only case and i mentioned these just to try to put do you think that plus he be ferguson was correctly decided. i know i don't quite it wasn't but it wasn't on it wasn't part of the current pattern that people have raised concerns about and then i'm going to ask one other follow-up about the first story you had been writing the 1920s. mmm, you would have said and i think many people did say. that it is a chord. made up of seven conservative justices and too liberals a brandeis. no and maybe a third. all right. when i grew up. in 40s 50s 60s. i had thought particularly
forties fifties that every every appointee of the supreme court and we used to have to learn their names in school. not that that's such a great thing, but we had to learn what the court was about a grant grammar school and lowell high school that every single one had been appointed by either president roosevelt or president truman, so i thought that the proper thing to do is all the justices should be appointed by democrats. do you still think that i have no comments? well, let me ask let me ask two follow-ups one is do you think there will be an opportunity for the court to reverse itself in some way on the texas order? it's not good. the texas orders said specifically that it expresses no view whatsoever. on the constitutionality of the texas law the texas case was
weather. we should take a basically a decision of a lower court, which was whether certain defendants in the texas case had an immunity from suit. that was a proced relationship, but you were very concerned about what it would do to people in, texas. yeah, it was why was that? for reasons that are obviously i know i think i think they would like to know because there were a lot of of women who believe they had a right to abortion and that this might discourage or prevent some from doing it and that fits into the procedural law because one of the things you take into account is weighing the equities that is to say if you issue in injunction, will it who will it hurt and how much and if you don't issue an injunction, who will it hurt and how much and in my own view it
might hurt a large number of women. that's what i wrote. who wish to exercise their constitutional right to have the abortion and on the other hand? i didn't think it was an enormous harm to texas to postpone their law. okay, but that wasn't the only question that is involved in deciding such a matter, but that was one question that i considered important. a majority didn't even say whether i was right or wrong on that, but they did set. that this is not about the merits of the technical decision. all right. i'm sorry the merits of the texas case so that remains an issue that perhaps the court will decide the lower courts are deciding it now. in your book you refer to roe v wade as a piece of evidence for how the court isn't as
conservative as commentators often say you talk about how you say in your book to counter the argument that the court has grown conservative that the court has upheld obamacare and that it is not struck down roby wade. are you feeling as confident today about the future of row as you were when you wrote that? when i wrote that i didn't know more than you. about what was coming up from texas? no about how courts will decide normally we follow president. that's normal thing that happens. it isn't a hundred percent and if we're a hundred percent, you would never have had brown versus board of education. so that's what i thought then and that's what i think now. that and what is that part that what you think now, i realize that you would like me to go into incredible detail indescribing my views or
preferably other people's views on a case that may come before us and and if there is one thing i am not supposed to do it's that okay, okay. okay, i'm going to talk about 1994. when you were when you came on the court. you are confirmed by a vote of 87 to 9. and the last confirmation we had of justice amy coning. barrett was on a strict party line vote. what do you think will take to return to a less partisan time? in the confirmation process right first remember this that the confirmation process is a political process. i give a lot of reasons in that book some or one or two of which but not all of which you have mentioned. i give one or two several reasons in the book for thinking not that it's what the word politics might mean is applied to a court which is very different from the senate or the
house. where where i worked as a staff person for senator kennedy for some time. and and one thing i learned there i learned a lot of things at that in that in that period that i think the important to and have remained important. and one of the things that i learned is in my confirmation or somebody. somebody else you want to give another speech. i'll tell you what i'll do. i'll stay here for 15 minutes after this is over. and you can say anything you'd like. how is that? oh, it's clear. yes for those people on zoom another pair of members of the audience held up assigned that says our democracy can't wait justice for a retire. this is nothing you haven't heard before. no, that's true. the do people recognize you on
the street? no, not really. and and i mean some doctors, but the the i used to say that not very often, but sometimes in washington sometimes. in a restaurant or somebody might and then i said sometimes somebody will come up and ask a question. it's always the same question. do they ever ask are you going to retire? no. not really. no, not really. what is the question they ask aren't you? just a suitor? yeah. they don't still do that just as soon or who was appointed in 1990 by george hw bush retired in 2009. so i don't do think people are still saying that to you. yeah, really? wow, you know you i i appreciate
your references to justice kennedy. i mean, i'm sorry, senator kennedy justice kennedy was in court today, but senator, oh you wanted the answer the answer. that was this that that i learned in the that was relevant your question. is that senators and congress members of congress will by and large ask the questions? that they believe their constituents want us. and if in fact you don't want certain questions, you know if they're not sensitive. what their constituents want they will not be senators or members of congress for very long. and so what i say to the high school students because this comes up it's not you know this kind of a question. i'd say look. the thing is you are part. of the decision-making making process or you soon will be in this country and so what i think is the strengths of the country. and what i think really that first amendment is there for and
i learned this in the senate too. listen. listen to what other people say. you might not convince them. does that mean that you think that today's senators and the senators who for example blocked the the confirmation of merrick garland back in 2016, which set a tone for the polarization that we're talking about a lot today that senators were acting on what they believed their constituents winery. well, then you'd have to ask them that question. i already said that i think senators who do not follow pretty much what their constituents want won't be there too long, but that's just my own opinion. that i did learn in the senate and i stress this when i'm talking to the students. because i saw senator kennedy do it all the time. and he's what he wanted his staff to do. and you listen? you hope maybe you'll be
persuaded but more likely you won't. you might try to persuade them, but more likely you won't so what are you listening for? you're listening because if they'll talk long enough. you'll find something that you actually agree. and when you hear the other person say something that you actually agree with you say hey, maybe we can work with that. let's see if we can't. and then you try to work with them on that. and americans have been pretty good at working together, even with those they disagree with find something and then by the way, you may get somewhere. if you get 30% better to have 30% then be the hero of nothing. say and i promise you that was his attitude and he said look. don't worry about the credit. if you get a positive result out of that working with this other
person listening finding something where there's some degree you get a positive result. hey, it's good for people. they'll be plenty of credit to go around. and if you don't succeed. who wants the no, i would like i believe that mrs. squad aguatza in the fourth grade or fifth grade at grant school. at least one class. were four of us would have to work together on what was the government of san francisco like and you'd get one grade. so you'd better learn how to work with the other people. okay, so let's bring it into the conference room. this is you're sitting at the table now. that's why what's is not in the car? i know but she would probably she'd be like all of us. she'd love to be there. so there there without their their law clerks or any kind of administrative staff and they go around the table and just as breyer as of last year when justice ruth bader ginsburg died moved up in seniority and is now
the third person to speak around this table. so first is the chief justice john roberts then it's clarence thomas and then it's you and i know that you take very seriously the idea of persuasion and and what you might be able to do in the conference room, and i just wondered if you could talk to people about what what is your thinking when you try to get colleagues who you know might be? inclined to go in a different direction what is your attitude now as a senior justice on the left and you feel like you've been effective at persuading your colleagues? well, you'd have to ask i'll lose if i've been in fact if i mean, i'm the one to ask. a big people are always like me putting more weight on what i myself saying things that's called ego and the job is in i can't resist one because ken galbraith oh, i know the story,
but you can tell it. okay can go break who's appointed ambassador by jack kennedy india, and he came back. he was up at harvard and somebody said ken was that an interesting job. he said interesting. he said it was fabulous. it was so interesting. i found i didn't think about myself for seconds at a time. okay, so when to go back to the conference, yeah being third doesn't matter. i mean that's not the issue of who's speaking first or second or third there is discussion and and of course i know on some things where my colleagues will be thinking and i know on other things i might be surprised in another things. i might be sort of surprised and and i will not it conference is not hahaha. i have a better argument than you. well, you try that. the other person says hahaha. i have a better he doesn't say haha, but neither of us do but
nonetheless you see it's not a contest who has the best argue. it is when it works well, and enos will be a a thought that very rarely did it work. he didn't he thought the conference didn't work. well, yeah, that's why because he did not get his way, but he didn't no no because he thought people are too made up their minds when they come in. i didn't think do you think that i changed it? all since his time remember he he's gone in 2019. i made it may have done but if it's maybe going the other way, i mean people are coming in a little. bit more sitting there no less. i'd be left, but i don't know. i don't know. i do know that the conversation goes nobody speaks twice to everybody spoken once. that's a very good rule out for 11 years. i was the junior justice. so i was last and i thought it was a excellent rule, but then there's some back and forth and the back and forth. so it's 20 years i the back and
forth works when you're paying attention to what the other person says and you work with what they say exactly what senator kennedy said. and and that's i've never heard a word as i've often said in that conference room that is raised in anger a voice raised it doesn't happen and it doesn't happen that one person says one mean thing or even as a joke about another person it is professional serious trying to get this case decided. and there we are we won't always agree, but we agree more than you think if you look back over the years and if you certainly if you throw in the eight to one's of the seven twos you're way over 50% that are like unanimous. and the five fours used to be about 15% 20% sometimes a little more but rarely and not the same five in the same four and often
and i read this in the paper and find it very interesting they say in an unusual combination. right, right. i counted the times when you're were they said unusual combination and there were more unusual combinations and there were usual combinations. okay. i will talk about another number you you love charts and you love poles and you love you have a chart in here where you talk about how and we have only time for about four more questions. so i'll try to go fast for you. the court's approval rating was pretty steady. you've noticed you say, you know up around 62% and this is a question that i had but also some one of our zoom watchers joseph g has asked what do you make of the fact that? the favorable the approval rating for the supreme court has plummeted recently since july it dropped nine points, and it's now in the 40s. does that concern you and you have any explanation for the job? what is it? probably depends on what
question you ask. well. no, there was the same question you referred to. yeah, that's correct. but but people sometimes i'm not saying all people but one is sometimes they're thinking of the cases that were decided. and so therefore there will be that definitely means that fewer people approve of the outcome. do you think i could have another part to it? do you think it could have been the texas case or the assignment? no? okay more but they're more important part point of that think is really more. is there is and it does help to show. a lack of confidence in government institutions, which is where we started go look and compare even the 40% with the approval rate of congress or even the presidency or even i won't say, but but but a lot of a lot of institutions. and that is i think you're quite
right. absolutely, right? in saying that's a worrying thing. and so i think the problem for all of us. have been so lucky. to have grown up at a time. when there are a lot of bad things. but they could have been worse. and the country seemed you know. maybe i'm just reflecting that. views when jack kennedy was elected, but not not nonetheless. you see it's and and all suddenly our next generations are going to are seen to be about to be faced with with real problems. so i'm not saying that this is a cause for celebration i'm saying the opposite. and and i want people to understand. how i've seen the chord over 27 years. because if they don't and i mean, i might not be right how i've seen the court. but what i've tried to write down in the hundred pages is how
i've seen it. will be refer to one other line from your book then because in addition to talking about the importance of public confidence, you also talk about the importance of a president abiding by rulings and you quote george w bush after he lost a lot of guantanamo bay cases saying he didn't like them, but he would follow them and along the same lines when you refer to bush vigor you note that senate democratic harry reid said but look there were no violent protests. no throwing of stones in the streets. and i know that gave you confidence, but i'm wondering if what you saw happen at the capital on january 6th. could be a harbinger of perhaps people not accepting court. i have absolutely no expertise in that map. i mean, we're not having that case in the court. it's not maybe it'll come maybe some case will it's not there and so i don't i just stay away from that. what i said about the what i
what about the north stones in the street i think is i said look, i just sent it in bush vigor. i didn't agree. and it affected a lot of americans. and i think a lot of americans thought it was a wrong decision. maybe have maybe two more but nonetheless, okay. but i heard harry reid say the most remarkable thing is they followed it. they did. have guns or riots. or stone throwing and i then say to say i did the stanford students i was talking to and said i know when i say that at least 20% maybe 30% of you. are thinking well too bad. there were a few riots. too bad there weren't a few stones thrown and so forth.
i said before you come to that conclusion. i would like you. to look on television or elsewhere of what happens in places and times in countries where they decide there are differences that way. because rule the rule of law is not an absolute. and it is only one small part. of this country's values embedded in this document the constitution, but it is an important part. and that's all that's all i want them to do. it's called comparison and i believe though i'm biased because i'm a judge perhaps on biased. i don't think so. i believe that it is important for us. to maintain that respect for a rule of law that ever since andrew jackson refused. to carry out john marsh's
opinion saying northern georgia belongs to cherokee. he's been instead sent troops to evict the cherokees. that we've made progress in that respect and how to continue to make that progress and how not to retrogress is the question. i raised it isn't a question. i can answer i can have a few ideas about it. but there's certainly not gospel. and what i can do though. is i can go back and say i want to tell you how i've seen this institution in some detail with some history with some explanation of that word politics and elaboration of the extent to which it is and the extent to which it isn't and some suggestions where things that might be done both within according outside. so that's what i i know and you did it you did it in the book and we've got i just want to get a couple from our audience here. this is from david a who's watching on zoom and he says are the justices concerned with the
many actions. the republican party is taking nationwide to lessen voting rights and even throwing out legally cast ballots. oh, we are concerned with the issues that come in front of us. my job as a justice is to decide the cases as a person. i might have other views but unlike every other person and the united states i remember a hesitant. somewhat maybe not enough. to give my views on some of these other questions, but i will give my views. on the cases that come before the court when i am deciding them and when i write my opinions and that's that's the job and that's that's i think it's important. let me bring you back to one other thing. you said about senator kennedy and experiencing the legislative branch that also was echoed in some of the questions. i presume that you're interested in criminal justice reform in
sentencing was sparked during those years and is a justice you've separated yourself from your colleagues with complaints about the capital punishment. and how long inmates will languish on death row, but you've never said capital punishment should be considered unconstitutional. do you think would you be moving closer to that? my goodness john when you say i when you say i complain i don't complain. it's not my job to complain i write opinion. and what i did on capital punishment is i wrote an opinion of a certain length 46 pages. that's quite a lot for me and i gave a number of reasons. why i thought the court again should reconsider the question of whether capital punishment is constitutional. course, i would not in that opinion. give my own views precisely by saying i think it is even though people might get an idea, but
but nonetheless. my job is to decide even a matter like that. after reading the arguments of the lawyers after hearing your oral argument and after discussing it with my colleagues. and that is important point. because it is a honor a great honor. and a privilege be a member of the supreme court of the united states. and one of the things that you take in after two or three years anyway, if not before. is i'm there. not just for democrats. and i am there not just for republicans. i am there for the united people the 301 million and maybe 200
million well disagree with everything i say, but i just want to point out. that even if they disagree with it, i still must be there for them. and that means the reason i ask that question is that your views are not unlike what harry blackman is saying? in his time and do you remember what he did in the year or so before he was leaving in 94 was he said he'd no longer wanted to tinker with the machinery of death because he felt like he had you know, he had seen enough and i was just wondering if if you would suggest anybody just how how views change over time and an issue like that in a general way. i wrote with 46 pages, i think because i've had the experience i've had with the death penalty over 27 years. i wrote that about three years ago. so three or four years ago. and i wrote it because i wanted people to understand the difficulties with.
administering a system of death you know even a reasonably fair way. see i pointed out many factors that suggest that it can't be. all right, or it isn't and i said, that's why since i don't see a clear method here of making it fair is one additional reason perhaps why we should reconsider constitutionality of the death penalty now, don't take what i just said. as an authoritative statement of what i wrote in that opinion the only way you could know that is if you were willing to spend x amount of time, i won't say what x is in reading the opinion. let me get two more in and one is our audience might not know that you've written some of the most important cases on abortion rights the last year from louisiana and back in 2016 from
texas and last year. you also wrote the decision of holding obamacare. those were three very important cases. how do you how do you get the assignment once you tell them can you ever ask to have a particular case? you could and have you no. you've always well to be absolutely honest. i think i did once when i thought heard one of my colleagues say something at the conference that i thought. hmm, maybe we can work with that and it was likely to be five to four and i wanted it to go the way i wanted it. and so i did tell chief justice rehnquist. i said, well, maybe i can do this, you know, but aside from that i haven't i once told him i said well i've discovered. how to get five people on a single result in this court he said what i said you start with nine. now you know if you find
yourself. all of a sudden falling back on your own ideology when you're deciding a case. you have a mental check and you think i don't want to do this. i switch course ideologies. no. no you say this is what you write. i'm just quoting. you know, that's why yeah, i'm just holding you you take and then you belong to say that you believe that all of your colleagues also. have that check on themselves. i'm trying to explain the nature of the job. and in the part that you're talking about i said look. nino and i used to debate this fall the time and and in front of college audiences and they came away. i think pretty interesting. it's a very it's it's look judges typically have when deciding a case what these words mean? they typically have the text. you know, they have the history of the statue they have the tradition, you know, if it's
habeas corpus long tradition there. they have the the purposes somebody had a reason for writing this or the values that underlie say the first amendment or say the fourth amendment. they have the consequences those that are relevant to the purposes or the values that are involved here. some judges put more weight. like, you know, it's julia. upon text and history but he doesn't ignore the other. others probably like me put more weight. upon the purposes the values and the relevant consequences. but not ignoring if i see the word fish there. i know that doesn't mean a carrot, you know, i mean, you can't ignore the text. so it's a question of degree. very often let me let me just ask you that. i can tell the hook is coming for us you talk about strategy at one point. i'm paid 60 when you talk about
the 13 year gap between brown v board of education in 54 and 1967. loving versus virginia. and you said the court was that was a calculated part of the court's enforcement strategy reflected the reflecting its views about the state of public opinion when i see the word strategy. i think it sounds as if factors other than the law. yes, that's what i say. okay, so right that's why i say sometimes that's why you can't say never political considerations. was it a political consideration when justice frankfurter convinced the court not to take a miscegenation case immediately because they were having a very hard time getting desegregation in forced in the south and they he was afraid that if we take miscegenation now. we're just going to make it impossible. we'll never get down. that just won't do it. they just won't do it and he
convinced them of that and they took the loving case which was misogenation several years later and decided against it. okay. now was that a political mad decision or was it institutional? what kind of a decision was that? and and i put that in if you want to show yes, that's why it's hard to say there can be instances like right now. maybe there's some cases interrupt so and say thank you for this evening and joan and justice. it's been such an honor just aspire. i'd like to give you the last word if there's something that you wanted to share with us and didn't have an opportunity to share if you could close this out for this this event. well, i think the thing to share is everybody in this room what we see the problem and joan is brought it out and and it's pretty good, but she's done that. i think it's great. and so we have a challenge. that's what it comes to. we have a challenge. and believe me i feel that and
so does everybody around here? and and we have a challenge and the challenge can be very simply said not quite joanna paid $20 to each of the grandchildren the challenges to show that this experiment continues to work and will continue to work and of course it does and if we put warminds to it, of course we can do it. of course we can. and that that's how i feel about it, and i think you brought that out. very very well john and he's join me and welcome. here's a look at publishing industry news the national book critics circle awards finalists were announced last week the awards given in six categories and selected by a jury of critics and book reviewers will be presented during a virtual ceremony on march 17th. this year's general non-fiction. finalists are patrick radinke empire of pain joshua prager the family row sam quinones the least of us clint smith how the
word has passed and rebecca soulnet or wells roses. also in awards news the american library association named the winners of this year's andrew carnegie medals for excellence in fiction and nonfiction the award for nonfiction went to hanif abdurakib for a little devil in america and the winner for fiction was tomlin's novel the thousand crimes of ming su. in other news this month marks the 150th anniversary of the book industry news. source publishers weekly first released on january 18th. 1872 publishers weekly plans to celebrate the occasion with an anniversary issue in april for more information. visit publishersweekly.com in more news cnn. anchor jake tapper will be hosting a weekly author interview program on cnn. plus this spring mr. tapper is the author of five books including his novel from last year the devil may dance and according to npd book scan print book sales fell 3% for the
weekending january 16th. nonfiction sales were down close to 8 percent book tv will continue to bring you new programs and publishing news and you can also watch all of our past programs anytime at book tv.org. you're watching book tv with top nonfiction books and authors every weekend book tv television for serious readers. and so now i'm delighted to introduce tonight's speakers. wil haygood is the author of tigerland which was a finalist for the dayton literary peace prize showdown a finalist for the n-double-a-cp image award in black and white and the butler which was made into a 2013 film directed by lee daniels. he has been a correspondent for the washington post and the boston globe where he was a pulitzer finalist and he is currently bodeway visiting distinguished scholar at miami university in oxford, ohio. joining will on our digital stage this evening is
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