Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Stephen Breyer:

Can I give a rule as to when empathy, or values, or purposes, consequences when they carry the day? No, I can’t give a rule, because each case is really different from the others.

Preet Bharara:

That’s Justice Stephen Breyer. Appointed by Bill Clinton in 1994, he served nearly three decades as an associate justice of the US Supreme Court before retiring in 2022. On and off the bench, Breyer has advocated for a more flexible way to read the Constitution and federal laws, seeing the law as a living tool meant to serve people, not a mechanical process. He lays out that philosophy in his book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. Justice Breyer joined me last week before a live audience at the Cooper Union’s Great Hall. In our conversation, we discussed judicial integrity and political pressure, how the court deliberates and decides cases, and the proper response to demands to impeach judges over their rulings. That’s coming up. Stay tuned. How does a judge balance empathy with the obligation to remain neutral? Justice Breyer talks about bringing both your head and your heart to the bench.

Good evening. Thanks for the response. It’s great to be here. We have a full house.

Stephen Breyer:

I believe.

Preet Bharara:

You have now made clear you’ll clap for anything. So I don’t know, Justice Breyer, I don’t know if you care a lot about crowd size but… By the way, I shouldn’t need to point out we’re in New York City on a Friday night, they had other options, but they’re here for good reason. It’s really an honor to be with you, Justice. Thank you for your service. I’m going to start with an easy question. What is it that a justice does? Is it just calling balls and strikes? Are you just an umpire?

Stephen Breyer:

Well, what do we do? But before that, I want to thank you for inviting me. You’re in this place, you think of Abraham Lincoln. And he tells you something about a judge because he really gave this speech, the Cooper Union speech he gave after the Supreme Court had decided Dred Scott, probably the worst decision they ever made, that African Americans weren’t citizens and really couldn’t bring cases in court. The only justification I’ve ever heard for that decision is that Taney, the Chief Justice gave the opinion, that Taney thought it would end a political fight because the country wanted to know could you have slavery over here, and territories in this territory, and he would make it clear that you could. Well, what that proves, which is a well-known thing, which is true today too, judges are terrible politicians. Really. Because Lincoln, when he read the dissent, which was Bradley, it was up from Massachusetts, he read that, he said, “This case,” he said, “the holding,” he said, “it’s a shocker. It’s a shocker.”

And then he came here, and he gave that talk that vaulted him to the head of the Republican Party, and probably assured him the nomination for president. Which meant there would be a war, not that there wouldn’t be. All right. I wasn’t there, I didn’t know Taney, contrary to popular belief, but regardless. And Preet was US attorney for years. My brother is a district court, a trial court judge in San Francisco, he says, “The only people who understand law are litigators and trial court judges,” he said, “you may think you do.” He won’t tell other Supreme Court justices that, but he does tell me that. He says, “You might think you do.” Well, all right, let’s go out to a different subject. So thank you. And you want to know what I do? I like telling people what I do, I particularly like telling high school students. And I particularly… I’ll go down to the seventh grade and tell them if they’ll listen.

So what do I say to the seventh graders what we do? They know we are appointed by the president, we’re confirmed by the Senate, there are nine of us, and so forth. But what I want them to know, I say, “Here’s the best example,” hard to get to them because they’re looking out the window while I’m talking, but I’ll say, “Look, I read in a French newspaper, it explains the whole thing.” A biology professor is traveling from Nantes through Paris to meet his class, and he has in a little basket 20 live snails. Conductor comes up, looks in the basket, says, “Do you have a ticket for the snails?” The professor says, “What are you talking about? A ticket for the snails?” He says, “Well, read the fair book, here it says, ‘No animals on the train unless they’re in a basket, and you buy a half-price ticket.'”

So professor says, “They’re talking about dogs or cats, maybe a rabbit. They’re not talking about snails.” “Well, is a snail an animal?” So I ask the class, is a snail an animal? And my God, you produce an argument. Some of them say, “Of course, it’s an animal. He has to buy a ticket.” And the others say, “Are you kidding? Well, you have to buy a ticket for a mosquito, you have to buy a ticket for a rabbit, or a fly, or something? That’s ridiculous.” And they go on for about five minutes. And I say, “Now you know what we do on the Supreme Court.” It’s true. Words a little different, the freedom of speech, not animals. Same idea.

Preet Bharara:

So how did the seventh graders decide? Which way did they come out?

Stephen Breyer:

[inaudible 00:06:16] the problem. The same way the judges decide who. We don’t flip a coin.

Preet Bharara:

Did he have to buy a ticket or not?

Stephen Breyer:

The newspaper wrote the article, and the result of it was that the company reimbursed the professor. Now, you know just as much about that as I do, which is nothing useful. Okay.

Preet Bharara:

Does it get appealed to ninth grade? How does that-

Stephen Breyer:

Good point.

Preet Bharara:

How does that work? Remember the Supreme Court, probably 11th grade. You say something else in the introduction to your book, I should repeat your book’s name, Reading the Constitution, Why I Chose Pragmatism, Not Textualism. We’ll get into what all those words mean, and why you have made the choice that you have made. But you say, “This book’s organization, in a general sense, mirrors what I often tell students about a career in the law. That career asks you to exercise both your head and your heart. Everyone has a heart, but not everyone has a good head.”

Stephen Breyer:

Well, I’m not naming names.

Preet Bharara:

Really?

Stephen Breyer:

Yeah.

Preet Bharara:

Is it also true that everyone has a head but not a good heart? And I asked that question because I wonder, for the role of a judge or a justice, is it more important to have a good head or a good heart?

Stephen Breyer:

You need both. Both are helpful. Both are helpful. And what I’m trying to explain in this book… there’s a better title. Actually, they translated it into French, it’s a better title in French, they talk about this called The Constitution, the Letter or the Spirit. Yeah, that explains it better. The publisher got this one. It’s perfectly good, but nobody knows what it means, which means actually more people will buy it because they… but nonetheless, nonetheless, what we’re trying to do is decide, is a snail an animal? No, not with those words, but the freedom of speech, the right to bear arms. What is the scope of those phrases? How far do they apply? What do they apply to? When do they apply? And the reason that there are law schools is, sometimes, questions like that and thousands of others are difficult to answer. So when I’m talking to the undergraduates, I say, “Why law school?”

I can’t say it’s the greatest thing to do. Maybe it should be architecture. We had a great architect, Henry Cobb, who designed our courthouse in Boston, and what he thought about the courthouse, and he spent several months listening to cases in the courthouse, he didn’t think just about lines, or just about spaces, he thought about spaces, he thought about lines, he thought about color, he thought about the experience of the people in the courthouse. He thought of their understanding, “What is this courthouse for? What is this building about?” But he also thought there are human beings here, and they’re going to come into work every day, and they’re going to come in and see a case decided, and it may be their case, or they may be on a jury, or they may be a judge, but this is one institution among others in the United States that help us, the courthouse and the law that it represents, that help us, 330 million of us, live together a little more peacefully, a little more productively.

And you want to keep that in mind. And you don’t need to be a genius to understand that, but you do have to have a degree of empathy, a degree of sympathy, a degree of understanding what this building… no, what this building and what it stands for, what are they for ultimately. And so I’ll say you’ll represent a client, you’ll help them, we hope, and you also will represent this institution, just like the architects, you represent an institution that is there to help us live better together. I’m not trying to convince him to going to law school, I’m just explaining why as he well knows, you need to have a heart as well as a head.

Preet Bharara:

So some people might say that empathy… I don’t say this, but some people might say empathy is an interesting value to exalt for a judge. And the question is, how does the value of empathy intersect with the value of neutrality?

Stephen Breyer:

I’m going to get a… well, when I say, because in here, if you do read it, you’ll see that I don’t think you look… you look at the words of this statute, we decide the meaning of the words of statutes. You look at the words of the constitution, they’re very, very relevant. If the word on that statute is fish, that doesn’t mean a chicken, and don’t pretend it does. But there is more than that to it, because particularly in the Supreme Court, we only take cases probably, probably, almost all the time. Lower courts have reached different decisions as to the application or the meaning of the same statutory or constitutional words. So it’s difficult, and the words are unlikely to tell you the whole answer. So look to other things too. Well, somebody wrote those words in a statute, what did they have in mind? In the 18th century, they used to say, “What’s the mischief that these words are trying to cure?”

You might look at the consequences. If the consequences of this interpretation rather than that interpretation are pretty bad, take that into account when you’re deciding the correct interpretation. You might look to values. What values? Well, we have a pretty good set of values in this document, the Constitution, and there are others. I believe, from what I have read, that you know a great deal about criminal law. And I’ve always thought, and please don’t undelude me if I’m deluded, that the criminal law, when you think of it as a whole, when you think of it as a whole, you are trying… you try people who have done something morally as well as legally wrong. And when you come across a case where the person has done… euthanasia is a possible example. They’ve done something that in the circumstances you think is morally right, even though it could be legally wrong. You hesitate, and sometimes, you don’t prosecute.

Okay. And there’s an example, and you say, “Can I give a rule as to when this empathy, or values, or purposes, consequences when they carry the day?” No, I can’t give a rule, because each case is really different from the others. But I can say that you, yourself, your colleagues, the lawyers, maybe even if you’re very special or something, maybe history sometimes, will tell you if your decisions have been sound. What is it? Is it experience? Is it… well, sound. What’s that? Works fairly well, helps carry out the values in this. Is there a rule for it? I don’t know the rule. I don’t know the rule. Does that mean I just pick out whatever I think is good? Surely not, surely not. I went to law school and I taught law, and I’ve done a lot of things, and you will have too. By the time you’re in your 40s, your 50s, your 60s, you’ve had a life, and that life has helped to shape you, and it’s helped to shape those things that you consider to be more important and less important, and what you’ll actually act on and what you won’t.

And you can say all you want, I try just to follow the law, and I say, “Yes, that’s what I do. I try just to follow the law.” But the law is not computer science, the law is not just a set of rules, the law is that which as I’ve said 98,000 times, one instrument to help us live together more peacefully and more productively, and you know all those things, and you read the briefs, and you listen to the argument, and you have law clerks there to do research, and then you hear what your colleagues say and you listen to that too, and then you try to write an opinion possibly if it’s assigned to you. And that sounds trite, but in my opinion, it happens to be true.

Preet Bharara:

It doesn’t sound trite to me, the way you talk about empathy, I asked a false dichotomy in my question about empathy versus neutrality. Having empathy for someone in my mind, in the criminal law that you invoked, doesn’t necessarily mean that you’re going to decide the case based on that empathy, it’s an understanding, as you mentioned in your answer, that there are human beings involved, and there are institutions involved, and there are stakes that are very, very high for those people, sometimes, the highest stakes moments of their lives. And to appreciate that is to have empathy, and understand that your job is an important one, as yours has been. Speaking of the importance of the job and the difficulty of the job, I’m going to get back to interpretation in a moment, but something that’s on a lot of people’s minds, including folks in this room, presumably, is what is perceived as threats to the judiciary. Threats to the judiciary, in some cases, physical, but largely, rhetorical.

We have members of the United States Senate declaring that when the lowest level judge, a trial court, federal judge, on a temporary motion rules a way that they don’t like at least one has called that a judicial coup, there are prominent people who are talking about impeaching judges for opinions they don’t like. What do you think about that?

Stephen Breyer:

What do you do when you get an opinion that you don’t like, if from a district judge?

Preet Bharara:

Well, we would appeal it.

Stephen Breyer:

Yes. Very simple. You appeal.

Preet Bharara:

I rarely impeached the judge.

Stephen Breyer:

Good. Right. Another thing I explained to the class, I said, “Look, do you ever have any arguments?” “Yeah,” the class says. ‘Arguments with your brothers, your sisters, your parents, et cetera?” “Yeah.” “You get over it.” “Yeah.” “How many arguments are there in the United States?” “I have no idea.” 18 billion every year. We settle most of them. If you can’t settle, you go to a person and he is called a what? An arbitrator? Oh, you’re miles away from the arbitrator. Before you go to the arbitrator, who will charge you for that, but before you go to the arbitrator, who do you go to? A lawyer. That’s right. See?

Preet Bharara:

The person goes straight to arbitration has read the terms of service. It’s like the only one.

Stephen Breyer:

I once asked the head of the International Arbitration Association, “Why are so many people going to arbitrators now instead of judges?” He says, “You don’t want to hear the answer.” I said, “No, no, I do. I’m curious. Is it that they’re less expensive?” He says, “No, they’re just as expensive.” “Is it that they take less time?” “No,” he says, “they take just as much time really.” So I said, “Why do you go there?” Why aren’t you in court? Why do you go to the arbitrator?” He says, “You really want to know?” I said, “Yeah.” He said, “Because they have better judges in arbitration.” I said, “No, I don’t want to know.” Okay. In any case, in any case. I once asked Justice Rehnquist, “You see, you settle it, maybe you go to a lawyer, he’ll probably settle it.” “You can’t settle it [inaudible 00:19:36] risk a few cases.” “You go to the steps of the courthouse, and what do you do on the steps of the courthouse? You settle it.”

And then on those few cases that you can’t, you’re in front of the judge and the jury. Jury decides the questions of fact, probably. The judge decides the questions of law, probably. One side wins, one side loses, and what does the lawyer think of the judge? The lawyer who loses? You never lose, you never lost. He never lost a case, so he doesn’t know. What do you think, Preet?

Preet Bharara:

They don’t like it.

Stephen Breyer:

They don’t like it, this judge is an idiot. Do you say this judge is an idiot?

Preet Bharara:

I would not say such a thing in front of a thousand people.

Stephen Breyer:

No, of course not. So what do you do? Oh, by the way, what does the lawyer who wins think of the judge?

Preet Bharara:

Genius.

Stephen Breyer:

No. No, he doesn’t think of the judge, he thinks he’s a good lawyer. But in any case, as the losing lawyer, you appeal. And if you lose on appeal, where do you go?

Preet Bharara:

If you lose an appeal, you go further up.

Stephen Breyer:

Yeah, well, higher court-

Preet Bharara:

The court you’re familiar with.

Stephen Breyer:

… and higher and higher court. And finally, there’s no place to go but the Supreme Court, and they have a choice whether they take it or not. And we only would decide questions with a federal issue in them, that’s Congress’s [inaudible 00:21:01] the Constitution maybe. And maybe they’re 80,000, 90,000 out of those 10, 28 billion arguments. They get to the highest court before the Supreme Court, and they ask us to hear the case, and we get about 8,000 requests a year, and that’s about 150 a week. And the law first write memos on what their briefs are, and then you read those memos though you can read the briefs too, and then you vote at conference. And four votes means we’re going to hear the case, and fewer than four, not./ And then they start writing. That’s what it is.

So what I end up with each case, I get a blue brief, petitioner, read brief, the judge was right, petitioner said he was wrong, a yellow brief… see, they think we’re stupid, so they color-coded, a yellow brief, that’s the reply brief. I always read that first because it says the same thing as the others but it’s shorter. Okay. Then we have light green, that’s the petition… you can follow one, light green, or the amici for the petitioner, dark green, amici for the respondent, and the government may follow… you probably got them to file briefs, and they’re gray, the government’s always gray. I don’t know. But there was the briefs. Now, why are they called briefs? They’re not brief, but regardless, we read them, and then my law clerk will write a memo, and then we’ll go into oral argument. And the oral argument will be for us, the judges, to ask questions.

“If you had a great argument, why didn’t you put it in the brief?” “It’s long enough.” All right. But in any case, within two or three days, we’re in conference, a table, we’re there by ourselves, we go around, discuss the case five minutes or 10 minutes in order, nobody speaks twice until everybody’s spoken once. An excellent rule for a small group. And for me, I was the junior justice, I spoke last for 11 years, I missed by 11 days being the greatest, longest junior justice ever. Justice Story holds that. I thought of writing to Alito and say, “Can you wait 12 days to be sworn in?” I said, “Then I can go down in history as the answer to a trivia question.” Okay. And after you go around and you write down what you want in a book about what the other people are saying, after, there’s back and forth.

And by the way, and I think this is important, back and forth, don’t sit there and say something which they’ll understand instantly if you say it. “I have a better argument than you, ha, ha, ha, ha.” What that kind of response does is it produces on the other side, “I have a better argument than you, ha, ha, ha.” Okay, you get nowhere. So listen to what they say, and when you listen to what they say, then out of that, sometimes, you can get some agreement, some change, and an opinion that is a better opinion because it reflects a broader point of view. Okay, now you understand the entire Supreme Court.

Preet Bharara:

But that United States Senator does not.

Stephen Breyer:

United States Senate is different. It’s different in this way. It’s different in this way. When I was… we both worked. We both-

Preet Bharara:

Both worked in the Senate.

Stephen Breyer:

Yeah, we worked in the Senate-

Preet Bharara:

Separated by a little bit of time.

Stephen Breyer:

Didn’t you like it?

Preet Bharara:

I did.

Stephen Breyer:

I did too. That’s the greatest job I had actually.

Preet Bharara:

But neither you nor I heard a senator back in the old days say about a district court judge’s decision, “That’s a judicial coup.” Is there something different in the air, in the water now?

Stephen Breyer:

They can say what they want in the Senate. Anybody can say what he wants. That’s his opinion. Fine. I don’t know the decision-

Preet Bharara:

Do you have an opinion on their opinion?

Stephen Breyer:

What?

Preet Bharara:

Do you have an opinion on that opinion?

Stephen Breyer:

I don’t know who he’s talking about.

Preet Bharara:

Mike Lee.

Stephen Breyer:

He’s trying to… if there are district judges, my brother won’t admit it perhaps, but I will admit it on his behalf, and I will admit it on my own behalf. We make mistakes. People do make mistakes. After all, there’re dissents in the Supreme Court, somebody’s right, somebody’s wrong. After all, there are appeals, and sometimes, those appellants win. Somebody was right, somebody was wrong. Okay, so you make mistakes. That’s why it’s a complex system. And what’s the difference with the Senate? One day, I get a phone call when I’m the chief counsel, it’s Warren Burger, the Chief Justice of the United States. I think, “Hey, I’m a staff person. Why is he calling me?” And the answer to that question was because nobody else in the Senate would talk to him. Why? Because they’re busy talking to constituents, or other senators, or maybe somebody in the administration.

And Harold Wilson once said, in England, “In politics, a week is a long time.” And he was corrected. Whoever corrected him said, “No, a day is a long time.” That’s not true of the judiciary. There, you measure time in weeks, maybe months, and you’re looking out into the future in many opinions before you write, before you put those words on the paper. The timeframe is so different, and it makes it hard for them to understand each other.

Preet Bharara:

I’ll be right back with Justice Breyer after this. Let’s talk about Reading the Constitution, and also statutes. Your book is about both things. So you talk about textualism, for the non-lawyers in the audience, could you give a brief explanation in a way that’s as generous as you might want to be to that mode of interpretation? Textualism, as I understand it, is simply an adherence to the principle that you look at the language and you decide what the plain meaning of that language is, sometimes, you use a dictionary, sometimes, you don’t need a dictionary. And people in the audience might ask, “That seems reasonable. What’s wrong with that?”

Stephen Breyer:

Sounds good, it makes great promises. Read the text. Justice Scalia and I, who was a good friend, but we used to debate these in college audiences. We loved it, we had a very good time. The students would come away thinking, “Oh, they are good friends. They just don’t agree.” And I would say to him, “To help to answer your question,” you get questions that the founders didn’t know when they wrote these texts. George Washington didn’t know about the internet, and you knew what Scalia would say about that? He’d say, “I knew that.” And then he would say, “It’s more like the two campers.” Do you know the two campers? One’s putting on his running shoes, and the other says, “What are you doing that for?” And he says, “There’s a bear in the camp.” He says, “You can’t outrun a bear.” He says, “Yeah, but I can outrun you.”

And he says he doesn’t think his system’s perfect. He doesn’t think just looking at what the founders thought when they wrote those words or what they would’ve meant to somebody at the time, or what they mean now and the whole story, he says, “I know that isn’t perfect, but your system, Stephen, and you’ve heard a little bit of it, is so complicated you’re the only one who can do it, and you may not be able to,” he means. All right. So I say, “That’s perhaps true, I don’t know, but I do know judges have done it that I’ve admired, Holmes, Brandeis, Cardozo, Hand right here in Central Park. He gave a great speech about it. I said, “But regardless, your system, Nino, will produce a constitution no one would want.” Who’s right? We really don’t know, if we’re honest. Maybe 10 or 15 or 20 years from now, people will decide.

I say, “Why not just read the text?” “Why not?” I say. “Because most cases doesn’t give you an answer.” Here, what’s a case? Take a case. I tried to find them in here. He says, “I want to use examples. I want to use examples because the professors, of whom you now are one, probably know 14 times as much theory about these things as I do. But I have had some experience they haven’t had. And I want to put examples in here.” Examples, so you can see what I’m talking about. The textualists have come along and they’ve said, “Well, it’s easy. And besides, it’ll produce uniform results across the country. And besides, Congress will like it because they know what their drafting will mean. And besides, it will prevent you, Stephen and others, from writing into the law what you think is good as a substitute for the law.”

And I will say, “Those are great promises.” Those are great promises, I just think you can’t carry them out. Example, it’s the case many of you know, that if you unfortunately have a child with a handicap, the school board, public school board, has to give them special education. And if you think they’re not doing a good job, you can bring a lawsuit. And if you win that lawsuit, they have to improve the education, but it also says, and this is the key word, it also says you can recover your costs. Got it? Costs. So the issue in the case in front of us was by costs. Do they mean cost of educational experts? $29,000 for the woman in front of us. Or do they just mean lawyer’s fees? Those can be pretty hefty too. Or do they mean just the court costs, filing fees? What do they mean?

So I say to Nino or the others, “What does it mean?” “It says costs.” “I’m supposed to just look at the word?” “Okay, I’ll look at it.” You know what it says, cost. I say, “Oh, look at it harder.” “Okay, cost. Got it.” “Look at it again and again.” “Cost, cost, cost.” “All right, I got it.” Okay, now, I say, “How does that help?” Let’s go back, and there are many, many cases, I could keep you here all night, but I won’t, don’t worry. Hey, lots of cases like that, lots and lots. If it were so easy, why did the lower court split? And so you’re saying, and I don’t object you’re saying look at the words. Of course, look at the words, but look at other things too, such as purposes, such as what I said, consequence, such as values.

And they all may, in an appropriate case, play a role. And will I just try to substitute what I think is good? No, I’ll do my best. I said, “You can’t jump out of your own skin, and you’ve had 40 or 50 or 60 years of skin.” And so yeah, people do have different views about how difficult cases in law should come out, and different tools.

Preet Bharara:

So in fairness to the textualists, if the language is ambiguous, how can they claim that they’re only looking at the language and not something else? How do you come up with a decision? How did Scalia come up with his opinion and his view in instances like the one you just described, where, to an ordinary ear, the language is ambiguous?

Stephen Breyer:

Well, because I simplified it, because he’ll say, “If you really can’t tell it all,” he says, “you usually can’t tell. Let’s look what most people would’ve thought at the time.” But sometimes, you can’t. And if you can’t, you look to, and this is the word they use, semantic considerations-

Preet Bharara:

Sounds bad.

Stephen Breyer:

Semantic considerations are good because they have to do with language. So they have canons, these things called the canons, and they think canons like when not in law is too many cooks spoil the broth. That’s not actually a legal canon, but that’s the idea. And they think that may sometimes help them. I don’t think it does help too often sometimes. I can’t say never. And they will take, “What’s the context?” But they’re very interested in the linguistic context, and they will try to keep to linguistic context, semantics of, “Are there other words in this statute which are the same as this word, and what do they mean? And what is the history of the use of this word in other statutes,” and things like that.

Preet Bharara:

So we understand the ordinary textualist when they say, “Look at the words and what they mean,” are they referring to the meaning that they believe was intended by the people who wrote the words, or the meaning that is understood by ordinary people who read the words?

Stephen Breyer:

I think, Nino… there are different kinds of textualists because-

Preet Bharara:

Those are different things, right?

Stephen Breyer:

Yeah, those are different things, and some think the one in the other. I think Nino tended to think, “What would the ordinary person have thought these words meant in this context in 1789, or 1870,” or something. And I immediately say though, “Nino, I’ll tell you something you might not have thought of, but I suspect you did, let’s go back to 1789 in our minds.”

Preet Bharara:

Do we have?

Stephen Breyer:

You don’t know, let’s think about that, or even… you know there were a group of people who didn’t really participate in the political process at that time. Let’s think of who they were, I’ll give you a hint, five letters, begins with a W and ends with an N. Okay. And what about the slaves too? So why would we just look to what a small segment of our current population equivalent would’ve been thinking? But that’s… naturally, I love my own arguments, and there are others who-

Preet Bharara:

And another guy does too. Okay. So you focus on, as you call it, pragmatism, which has many things that are components of pragmatism, one of which is to ask the question why? What’s the underlying purpose behind the words, whether they’re deemed to be ambiguous or not. What’s wrong with that? That sounds very reasonable too.

Stephen Breyer:

Yeah, it does sound reasonable. But there, you have to go back and say for one thing… probably in college, I took philosophy, and one of the things we learned at Stanford, or wherever it was, it was called American pragmatism. And it wasn’t quite the same thing. People didn’t just mean what’s good. American pragmatists Peirce and Holmes would go every Saturday to the Saturday clubs, where Peirce was, and he was a pragmatist. Yeah, Justice Holmes was a pragmatist in that sense, and Quine at Harvard wrote a good book about it. But what it comes down to is we live in a world, after the age of two or three, when we’ve learned how to talk, where there’re all kinds of institutions, and what you do over here can affect this one over there.

And you better be careful that you do your best not to cause too much trouble with your decisions. You better be careful that, overall, you do your best to see that law really does point, at least, in the direction… that I learned from two very good philosophers of law, in the direction that it should point in, which is to help those 330 million people, to help those 330 million people live together peacefully and productively. And that, I think, is what accounts for my belief. I can’t prove it, but my belief that we’re… and my goodness, we need it. And that it will help more than just reading those words.

Preet Bharara:

So a lot of critics of the court, and particular justices and particular opinions will say, “You know what? Cynically, a justice chooses a mode of interpretation, whether it’s originalism with respect to the constitution, textualism with respect to statutes, pragmatism, you name it.” The cynical view is that’s just window dressing to reach a preferred outcome. And I wonder if you agree that a test of the integrity of emotive interpretation is perhaps the frequency with which that leads to an outcome that is not necessarily the policy preference of the justice.

And you point out in your introduction, quote, “This is not to say my purpose-oriented approach is merely a matter of choosing which outcome I believe to be the best in any given case. I have, for example, sided with a majority of the court in affirming a death penalty sentence, I believed, undesirable, and in denying the ability of an incarcerated person to bring a claim in federal court.” And you go on to say, “I did not do so because I believe those outcomes best as a matter of policy.” Is that a good test for the integrity of a mode of interpretation or not?

Stephen Breyer:

Hard to say. What you’re doing… that’s a good way of putting it. But normally, I get a question like that, it’s not that question put so carefully. It’s all politics, isn’t it? It’s all just politics. You write this stuff and they write their stuff, but really, it’s just all politics, we want the outcome, you say. And I say to that… and politics is a good word because I can refute it more easily. No, it’s not politics, nor is it how many times you get outcomes you decide with outcomes you don’t like, nobody keeps track of that. I don’t keep track of that. I know since I wrote an opinion about the problems with the death penalty, I feel it’s fair for me to say it. I’ve decided many, many cases where I voted in favor of the death penalty because that was the laws, as it was then, and I want et cetera.

But that is a test. But it’s important, I think, right now to understand that the Supreme Court is not politics. What is it? We say skeptic. What is it? I say disagreements. Look, it’s 100% politics or 98% when there’s a vacancy, and a politically-oriented group tries to get to the president to suggest somebody, but they’re suggesting a person for political reasons, a person who will likely apply a system, a way of looking at legal cases that will lead to outcomes that those political people favor. And you see, that’s a little complicated. But what it basically means is that, yeah, the political people are looking at the politics, but the judges don’t think that they’re deciding via politics.

The judges think that they’re deciding, for example, by using certain theorems of originalism, or textualism, or some other approach. That’s what they think. But look, it’s a little hesitancy in my voice, isn’t there? Why? Well, that is what they think. Well, for a while, after being appointed, I thought… look, I grew up in San Francisco, I lived most of my life up in Cambridge and Boston, “Why do people disagree with me who I’m so reasonable?” And then after a while, I began to think, “This is a big country.” It’s a big country, and people think all kinds of things in this country. My mother used to say that in San Francisco. She said, “There’s no view so crazy that there isn’t somebody in this country who doesn’t hold it,” and she said, “they all live in Los Angeles.” Don’t tell anyone I said that.

But you see the point? And they’ve had different lives, and it’s not so terrible to have people who’ve had different kinds of upbringing, different kinds of background, who’ve had different kinds of experience. Thurgood Marshall said that. And he was right, not so terrible. So you can get them to try to keep that down, and you decide according to the more purely legal… well, you can’t get it down entirely. So you will find people thinking different things, and more than that, more than that. It was best put politics in the court. I think by Paul Freund, he was a great constitutional law professor. He said, “No judge, no judge decides a case based on the temperature of the day.” And you can see that, if you have a criminal case, you don’t want the judge looking over his shoulder.

Preet Bharara:

But the rest of the phrase-

Stephen Breyer:

“Every judge, however,” he said, “is aware of the climate of the season.” And what does that mean? The very fact that you’re not certain, and I’m not certain shows how good it is. You see? If they weren’t, how did we ever get from Lochner, cases that said that you couldn’t have minimum wage laws, that you couldn’t have maximum hour laws, a new deal court that approved a tremendous shift of power to Washington and the agencies. How much? How much? And no one knows. Do you ever read P. G. Wodehouse? Yeah, good. Do it, do it, do it. He put you in a good mood, very funny. But his hero, Bertie, he says “Bertie woke up one morning and he wasn’t disgruntled, but he wasn’t exactly gruntled either.” Okay, there you are. And when I’m teaching a class, as I do, I say, “Well, maybe after a whole semester we’re getting into an idea of this.”

But please, and remember this, a great trial lawyer, F. Lee Bailey, he said, “You want to be a great trial lawyer? You have to believe in your client’s cause. You have to understand where he is coming from and you have to believe in it. When you advocate it, you believe in it, but not too much.” Right? Okay. So you see, I’m painting an area. I’m painting an area. And you must have to do that if you’re designing things, and it isn’t exactly clear, but it isn’t totally not clear. And so there we are, I can’t say more about it, except that the common view that this is all politics, you’re just doing what you want. That’s wrong, that’s not the way to put it. That’s not the 28 years that I’ve been through in that court, or the 12 before. So I’ll leave it to you.

Preet Bharara:

Why is pragmatism necessarily identified with the progressive side and not the conservative side? Or do I have that wrong? Conservatives, often, in the political sphere, talk about common sense, I understand your pragmatism to be a little bit about common sense.

Stephen Breyer:

I do too.

Preet Bharara:

So are there any ideologically conservative judges or justices who embrace pragmatism?

Stephen Breyer:

They could.

Preet Bharara:

So that’s a no?

Stephen Breyer:

No, I think we’re an artifact of history. You see, there are people who didn’t like some of the things that the Warren Court did. Nobody, not Nino, not anybody’s going to complain about Brown versus Board. So they think that’s a good thing. And then they have to work out, and trying to get away from certain other things that they don’t think were appropriate. You see, many, I usually name someone who no one would think was a great legal thinker, but maybe there were great legal thinkers. I don’t know. And there’s some of them, they came up with this textualism business, and the originalism, and so forth. Okay, that’s what they want to do, I’ll say why they’re wrong.

So I don’t have a good answer to your question, but I think what we’ll see over time, and I think we’re seeing it already, is that people who claim to be textualists, or originalists, actually come across cases where they have to admit it doesn’t work. And they do sometimes shift sides, and we’ve seen that. We saw that, I thought, in the case that came out fairly recently that said you can’t have a gun if you’re involved in spousal abuse. And the court upheld that. They upheld it, and they all did it for textualist reasons, and they wrote five different opinions as to how textualism got to this result. So I just say, “Fine, if you have to write five opinions to explain what your theory is, you don’t have one.” So I think there will be-

Preet Bharara:

There’s a coherence problem.

Stephen Breyer:

Yeah, I think there will be. I think there’ll be a movement where some of these things, like purpose…. And Roberts has written that, he’s written that about textualism, he believes, “Yeah, but look to purposes too.” Or maybe he’s done somewhere, you looked at consequences. So I don’t think that this… but I don’t know, I don’t know Yogi Berra. Don’t ask me, I never answered, whatever it is.

Preet Bharara:

So Justice, you’ve made clear that you will not give your opinion or conclusions about cases that are pending. But I did ask you backstage if I could ask a question about how you would approach, under a pragmatic theory that you espouse and develop in the book, how you might think about approaching the question without deciding the question, because I know you’ll say I haven’t read the briefs.

Stephen Breyer:

No, no, no, it’s-

Preet Bharara:

On this question of birthright citizenship, the 14th Amendment Section 1 says, “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.” Again, I’m not asking you to decide the question, how would a pragmatist rather than a textualist approach the question that’s been posed?

Stephen Breyer:

I don’t know if they’d approach it differently or not. What’s interesting about the question, which I think is a good question, to me, is I’ve talked to groups of business people, and maybe architects are the same, when you have a difficult question, you have to decide something not about yourself, as much as that’ about yourself, God only knows, but not about yourself, but it’s difficult and important. What I think happens, what I think happens in most instances, I pick up those briefs, I read the blue brief. No, first I read the question, it puts that question.

Preet Bharara:

If you read the yellow brief.

Stephen Breyer:

I don’t always tell the truth when the thing is funny.

Preet Bharara:

I just want you to know I was paying attention.

Stephen Breyer:

Yeah, the yellow brief has the question in it too. So I read the question. When I read the question, I know the answer, then I read the whole brief. Then when I finish reading it, I think, how right I was. Then I read the red brief. And as I get towards the end of the red brief, I think, “Oh, not so fast. Not so fast.” And then maybe it’s the yellow, or maybe it’s blue, maybe it’s the government, maybe it’s some of the amici, and… Yeah. Being open-minded, in my opinion, is not having a blank mind, it’s being willing to change your mind when you’re confronted with facts, or arguments, or other points of view that you didn’t really think about, or maybe you thought about it but you didn’t get proper weight. And so by the time you’re finished the briefs, you’re beginning to gel a little bit, and it might not be the way you first thought.

And then you have your law clerks who’ve written the memo, looking up the points you didn’t know about or uncertain. And then I talked to them, the four of them, we’d have conversations with everybody present, I wanted everybody there. And then we go into oral argument and you’re gelling, it’s pretty well-made up, but that oral argument, which is really there for the judges… I mean, if you had a good argument, why didn’t you put it in the brief? And it’s there for the judges to ask questions and get clarification on things they weren’t certain about. And a good question is a question you do not know the answer to, you think the lawyer knows more about it, and you think it might matter to your decision. And that oral argument probably will only rarely change your result in the whole court from opposite, but it will often change how the judge looks at the case. And how the judge looks at the case matters for the way it’s written, and the way it’s written has a lot to do with the law.

What is the law really about? And you’re pretty much made up by your mind when you go into the conference, but, but minds sometimes change. Sometimes, they change completely. And sometimes, that conversation will at least get in the forefront, a point that maybe wasn’t in the forefront when people walked into the room. And then the case is assigned to one person to write, everybody writes one, then two, then three, et cetera. But the writing… then my law clerk there will go out and look up everything in sight and come in with a memo, or a draft, or whatever, and I’ll read it, because I was a professor, I can’t resist sitting at the word processor, and I write the first word. And for anyone who’s done teaching, as you know, you write the first word, you write the second word, and pretty soon, you’ve written a lot of words.

And pretty soon, it’s not quite the same, you give it back to my law clerk, she thinks hers was better, but I say, “All right, there we are.” And then you go back and forth, and then you send it around, and I’m waiting for a reply, and all I want… I’ll tell you, I don’t want a reply that says, “This is the most greatest thing since sliced bread.” All I want are two words, “I join.” And once you get those five, now it’s the court’s opinion. Now, many will say, “I’ll join if…” And you try to make those decisions. You can’t always. You can’t always. And that is a big question, “Can I make this change or not?” And that’s a hard question often, often. You try. But the country’s really interested in, it’s not the Constitution according to me, or according to Sandra O’Connor, or according to Nino Scalia, what it’s interested in is what is the Constitution mean according to the Supreme Court.

And you remember that, remember that. Clinton told me this, he said, “You’ll see, you’ll see, the applause will die away, and it dies away a lot faster than you think, so you better like the job.” And that is the privilege of the job. The privilege of the job is that you can sit there day after day and give your best to this case, or that case, because that means something, at least, to a few people, and sometimes, to a lot of people. And to be able to spend a long time in your career doing that, that’s a privilege. That’s close to where you are as US attorney.

Preet Bharara:

Yeah. Final question to set the stage… a lot of people don’t feel good about things, when people ask the question, I’ve had this conversation with many people, maybe it’ll resonate with you, people ask the simple question because it’s custom, “How are you doing?” Sometimes, the answer is like 25 minutes long in the hallway. I don’t know if your Supreme Court gig came with a 401(k)… don’t check that, today or probably Monday and now, are you yet and still optimistic, sir?

Stephen Breyer:

Well, one, don’t ask me about the stock market unless you’re insane, I’m not the one to ask. I’m a little less optimistic than I have been, but I can tell you what makes me optimistic. What makes me optimistic is what I told you about Senator Kennedy, and almost word for word really, I’ve said before, and I like telling that particularly to those seventh graders, or maybe the high school students, the eighth graders. And what makes me optimistic is not that which I just told you, what makes me optimistic is when I say approximately the same thing, suddenly, those high school students, or even seventh, they’re not at the window anymore, they’re actually interested. They’re actually interested. And they’ve heard something about when I was in the fifth grade in grant school and Mrs. [inaudible 00:55:55] said, “I’m going to divide you into groups of four and you’re going to write about the city. And I’ll give one grade to each group of four. Hey, that teaches you cooperation.”

And during COVID, there were groups who went around Cambridge and try to figure out how old people were doing, and did they need some food, or did they need… and that took place in cities across the country, and we’re not too bad at getting together. And that’s what I say, and they’re not at the window, they’re listening. And it’s the look in their eye. It’s the look in their eye. I don’t think I’m making that up. I think that look in their eye says that they found something they can do to help. And maybe it’ll be 10 years, I don’t know how long it’ll be, but those students will grow up, and if they get out there and participate, and I believe they will, and I think that’s important, maybe they’ll remember a little bit, or at least they want to, at least they want to maintain this nation as a nation. But from my point of view, rule of law, but let’s call it law, which is one instrument, one tool, among many, that helps the 330 million people live together peacefully and with a hope of prosperity.

Preet Bharara:

Justice Breyer, thank you for being here. Thank you for your service to the country. Thank you for your wisdom. Thank you for your words and your optimism. And thank you all for coming.

Stephen Breyer:

Thank you. Thank you.

Preet Bharara:

My conversation with Justice Breyer continues for members of the CAFE Insider community. In the bonus for Insiders, we discuss how justices with deep disagreements stay collegial, and what the rest of us might learn from that.

Stephen Breyer:

I said in just half an hour ago, and Rehnquist said, “I know, I know,” half an hour ago, half the court thought the other half was totally out of its mind.

Preet Bharara:

To try out the membership head to cafe.com/insider. Again, that’s cafe.com/insider. Stay tuned. After the break, I’ll answer your questions about Trump’s law firm deals, Big Law ethics, and the prospects for confirmation of the DC US attorney.

Speaker 3:

Now let’s get to your questions.

Preet Bharara:

This question comes in an email from Andrew who writes, “Hi, Preet. Several prominent law firms have struck deals with President Trump after he targeted them with executive orders. What prevents Trump from reneging on those agreements?” Thanks, Andrew. Andrew, you raise a really great question. I want to be careful how I talk about all this. As you know, my own law firm, WilmerHale, was the subject of such an executive order. Our firm and a couple of others has chosen to fight in court against something that I have called an unlawful, unconstitutional, and un-American executive order. So we had our reasons for doing so. We think this is worth a fight. We think it is consistent with the values of our firm. I don’t want to disparage any other firm who decided differently, but your question raises a very interesting point, what prevents Trump from reneging on those agreements with those other law firms?

The short answer to your question is, nothing. There is, to my knowledge, no neutral arbiter, this didn’t take place in the court system, there’s no enforcement mechanism. Trump, for years and years and years, has loved to talk about his dealmaking ability, the deals he has made, the deals he has proposed, the deals that he’s gotten over on other parties with respect to, but he’s famous or notorious for not honoring their terms. We can talk about what prevents Trump or doesn’t prevent Trump from reneging on those agreements, but there are other ways that he can manipulate the deals as well. Not just reneging wholesale, but by changing terms, adding terms, reinterpreting terms, and after all, he’s the sitting President of the United States, and no court that I can think of one can go to when you have such vague terms that are the agreements these law firms agreed to.

I don’t know what recourse you have, I really don’t. That has obviously been a consideration, and will be a consideration, when other firms decide whether they engage in a settlement or not. What’s to stop Trump from changing the terms, reneging on the terms? Very little. And by the way, lest you have any doubt about the ambitions that Trump and the administration have for using these law firms for his own purposes, the ones that have settled, this is in the last day, the White House Press Secretary, Karoline Leavitt, saying in a statement, as follows, quote, “Big Law continues to bend the knee to President Trump because they know they were wrong, and he looks forward to putting their pro bono legal concessions toward implementing his America First Agenda.” That’s quite a statement. Several law firms have agreed to spend up to a $100 million on pro bono efforts that are consistent with what the President wants, and that has now been described by Ms. Leavitt as his America first agenda. Many of which priorities may or may not be anathema to the partnership and the rest of the lawyers at those firms.

None of those things, by the way, has been documented with any kind of particularity that I have seen in the agreements. So separate and apart from the issue of reneging on an agreement, which I think is problematic on its own, there’s a question of whether or not Trump can interpret broadly this mandate to spend 40 million, in the case of one firm, or $100 million, in the case of some other firms, in pro bono services, in the service of Donald Trump’s and his administration’s priorities, whether that’s anti-immigration, pro third term, or anything else. And another interesting thing to think about, as you assess and evaluate these settlements, and I think this is not a controversial thing to say, but in multiple statements now both by President Trump, out of his own mouth, and now out of the mouth of Karoline Leavitt, his press secretary, they love to use the phrase, bend the knee.

That’s not a conciliatory posture. That’s not the kind of thing that US attorney’s offices have said about settlements with companies that I settled with over the course of a number of years when I was in that office or through the Department of Justice, it’s not the kind of language that the Department of Justice uses, it’s not the kind of language that private parties use in talking about settlements. So to the extent your question is about whether or not we can expect good faith or bad faith going forward, I think there’s a reasonable prospect of the latter. We also got a somewhat related question, and a variety of people have asked this.

This version comes in an email from Oscar, who writes, “Hi, Preet. Concerned first-year law student here. As is the case for many, I’d like to start my career in New York Big Law, if I were to be so lucky as to have a choice between firms, do you think I should consider whether the firm has struck a deal with the current administration or is fighting the executive order in court?” So that’s a very good question, Oscar, and one I know that a lot of students have been grappling with, including some of my own students at NYU Law School and around the country. I’ll repeat again, that I have a particular point of view, given who I am and how I feel about things, and a particular perspective, given that I’m at a firm, as I’ve mentioned a million times already, that appropriately and proudly chose to fight this unconstitutional executive order.

And I’ll put it this way, I would’ve been concerned and disappointed if my own firm had decided to strike a deal with the administration for reasons that I’ve expressed before, and for the reasons I expressed in the answer to the first question, about the possibility of a moving target with respect to the agreement, and the possibility, and in fact, even likelihood, that Trump could renege on those agreements. So I’m speaking for myself and my firm about how I viewed their decision, and in the same way, I’m a free thinking individual who’s been practicing law for a while. I think it is not controversial to say that if you are a young aspiring lawyer student in law school and you’re thinking about your career path, you can take into account whether or not a law firm has chosen to take one path or another path. Maybe it doesn’t matter to you, maybe it does matter to you.

Maybe you feel like doing a lot of pro bono work when you go to a law firm, and you might consider what kind of pro bono work that might be, and it might give you pause appropriately to think, “Well, Karoline Leavitt, the White House Press Secretary has said that these law firms will be pressed into the service in implementing Donald Trump’s America First Agenda, whatever that means. So again, I’m not going to preach or virtue signal here, but I think all of those considerations are appropriate and you should think about them, and think about the kind of place where you want to go.

This question comes in an email from Sarah. “Hi. Recently, Adam Schiff placed a block on the nomination for Interim US Attorney for DC, Ed Martin. Given that Martin is the current acting US attorney, can you discuss whether this block actually accomplishes anything? What powers would Martin have as a confirmed US attorney that he doesn’t have now? Even friends that I have in that office are not sure. Thanks. Sarah.” Well, Sarah, you raised an interesting question about the interim US Attorney, Ed Martin, about whom we’ve spoken on this podcast and on the Insider Podcast. He has no prior prosecutorial experience, and that shows, and he’s taken a lot of extreme actions and unusual actions that have turned that office, as I understand it, a little bit upside down. And there has been a lot of opposition to him, including on the part of some Republican senators.

So his prospects for confirmation are far from certain. Whether he has different powers as an interim than he would have as a confirmed US attorney, I don’t think really, in some circumstances, which I’m not sure are relevant here, an acting or interim US attorney may not have the same hiring power as a fully confirmed United States attorney. But I don’t think that’s the important part here, the important part here from Adam Schiff’s perspective, and the other folks who are supportive of the block and the nomination, is to prevent him from becoming the permanent US attorney and to getting him out of that office altogether. Under the applicable law, Ed Martin’s interim status has an expiration date.

He can only be in that status for 120 days, after which, on May 20th, if he’s not confirmed, and that becomes more difficult because of the block that Adam Schiff has insisted upon, if he’s not confirmed by May 20th, then the federal judges in the district in DC have the authority to name a successor, or I guess, presumably they could name him, and that sometimes happens, that doesn’t seem very likely. So the main purpose of the block, from my perspective, from what I can see, is to delay his confirmation until past May 20th, at which time, he’ll be out of there. Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Justice Stephen Breyer, and special thanks to the Cooper Union for putting on this remarkable event.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag #AskPreet. You can also now reach me on Bluesky, or you can call and leave me a message at 833-997-7338. That’s 833-99-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The Deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernandez. And the CAFE team is Matthew Billy, Nat Weiner, and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, Stay Tuned.