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U.S. Supreme Court Associate Justice Stephen Breyer on Making Our Democracy Work

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HH: Special edition of the Hugh Hewitt Show, a chance to talk in studio with Associate Justice of the United States Supreme Court, Stephen Breyer. Mr. Justice Breyer, welcome to the program, it’s great to have you here today.

SB: Very nice to be here, thank you.

HH: I want to talk with you primarily about your book, Making Our Democracy Work: A Judge’s View, which I’ve got linked over at, and about your argument about the need to preserve judicial legitimacy. But at the very beginning, you write in your author’s note, “I believe it is important for those who are not lawyers to understand what the Court does and how it works.” Hooray. Why haven’t more justices done this in years past?

SB: Well, some have written books. I mean, a lot, actually, quite a few have. If you go back to Justice Story, he wrote a treatise on the law. Justice Rehnquist, when he was the chief justice, he wrote several books on the Court and wartime, explaining how the Court works. That was another one. And they were good books. I mean, and people could understand them who weren’t lawyers and judges. I think now, the need is more pressing in a sense, because it becomes pretty controversial. Court’s always been controversial, but there’s a cynicism, I think, in the country, younger people, particularly, and they’re cynical about the government. Now a little bit is justified, but if everybody is cynical about the government, the government won’t work. And it’s their government. It’s our government. And so to understand it, I think, is to help overcome some of the cynicism, and more importantly, to get people to realize they have to participate. It’s their government, it’s a democracy, and they have to participate. So all of those are the reasond I thought I’ll do my bit, and my bit consists of writing this book.

HH: I’m very happy. I mean, I’ve read Justice Scalia’s book on statutory interpretation, but most of those other ones you mentioned are aimed for lawyers and professors and academics. You really are aiming for an educated citizenry here.

SB: Absolutely. That’s right.

HH: And I greatly appreciate that. Why do justices, would you explain to the audience, I know why, at least I know the explanation, that there aren’t many interviews with justices, that justices don’t often come out, if you will, from behind the dais and talk like this to the American people?

SB: Well, because the exciting thing, for most interviewers, and for most of an audience, is to ask about either politics or cases that are going on right at the moment. And two things that we really can’t talk about are politics and cases that are going on at the moment. And therefore, when we get to general subjects like what I’ve written about, it takes quite a lot of time and effort to try to put it in a way that will be, I hope, interesting to people who aren’t lawyers or judges.

HH: And I want people to understand at the beginning of this conversation I’m not going to try and put the Justice on the spot about our disagreements on a case here or there. It would not be appropriate, and you wouldn’t answer. And so we’re not going to spend time on that. I do want to, though, salute especially Chapter 15 in Making Our Democracy Work – Presidential Power, Guantanamo And Accountability. Some of the most controversial decisions, and in one chapter, I’m going to use this for all my Con Law classes now…

SB: Good.

HH: You lay out your view of what those four cases mean. If that happened more often, Mr. Justice Breyer, a lot of these controversies, I think, at least would not be so misunderstood in the public sector.

SB: Well, I want people to understand that there are two sides to the issues that come up to our Court. And I also want them to understand the difficulty. I don’t have any super unusual power. The nine of us are human beings. We’re trained as lawyers and judges. But there are no obvious answers to many of these questions. That Guantanamo case, which I try to link four of them, I contrast with the cases of the Japanese internment in World War II. And really, the great issue there is a question of power, the President’s power and need to preserve the country in times of war or in times of security emergency on the one hand, and the need for the Court and the Constitution to preserve the civil rights of individuals, those basic civil rights, on the other. And when they’re in conflict, it’s very difficult to choose a path that will work. Chief Justice Rehnquist wrote a whole book on this question called The Constitution In Wartime.

HH: At the level of 30,000 feet, and again, realizing that some of these cases may make their way back up to the Supreme Court at some point, ten years into a war, the anniversary of which we just celebrated this past weekend, still, the United States doesn’t have a set of firm rules about what happens to Guantanamo prisoners. Is that a good thing or a bad thing, Justice Breyer?

SB: Frankly, I argue in this book that it’s a good thing. Why? Well, in World War II, 70,000 American citizens of Japanese origin were moved from California against their will to camps in the inter-mountain area. That was in 1942. People were frightened about an invasion. In 1944, when they were no longer frightened, the case made its way to the Supreme Court. And by that time, it had become apparent that the Department of Justice included that there was no evidence that even one of them was either a saboteur or had done anything else. But the Court upheld that confinement, 6-3. And most people, including me, criticized that case very much. Why did they do that? Well, there were great civil libertarians – Black and Douglass and Frankfurter, and they did it. Why? I believe they were thinking someone has to run this war – Roosevelt or us. We can’t, and so we let the President and the military do what they want, even where there’s no evidence, even where there’s 70,000 Japanese citizens, even after the time there’s any threat of invasion. So most people think that’s wrong now. And I think the Guantanamo cases pose the question can we do a bit better? And the lack of clarity, on the one hand, helps preserve the uncertainties of the Constitution for the next time that arises, because you don’t want to interfere severely and hamstring the President. At the same time, the Constitution does protect civil rights. So that balance is sometimes a balance in the cases, and then leave quite a lot open for the future.

HH: Now you wrote in the chapter that this represented the ultimate judicial review power, because the Court went both against Congress and the President, overturning both.

SB: That’s right.

HH: And last week on this program, Lawrence Wright, I don’t know if you’ve read his book, The Looming Tower, the New Yorker political reporter. You haven’t read that?

SB: No.

HH: It’s a tremendous book.

SB: Okay.

HH: I even have an extra copy I’ll give you.

SB: Good.

HH: He said, he argued that Osama bin Laden was killed by the United States because we were just not going to bring him back, that he believed firmly that the administration just went there to kill him. I don’t want to have you comment on that, but do you think that the decisions of the Court, and the ambiguity may induce reactions in how our military operates, which may be injurious to the national security?

SB: There were four cases. In each of them, a detainee, a very unpopular individual, was suing the President of the United States, a very powerful individual. In each instance, the detainee, the unpopular person, won. Now they were asking for things such as the right to go to a court to get review of their case. That’s called the writ of habeas corpus. Congress had said they could not do that, and the Court said they could do it. Lots of the opinion concerns the particular instance of Guantanamo, and why for these purposes, it’s part of the United States. Now I was in the majority in those cases, so I think that they’re correct. And I think at the same time, that to say there is not authority in the courts to protect the civil rights of an individual, I think that’s wrong. That’s what we did, and you see in the Japanese cases. And so we’re criticized. We’re supposed to be. We’re criticized by some people who said we shouldn’t have hampered the President in any way whatsoever. We’re criticized by others who say that the civil liberties rules should have been stricter, and the President’s hands should have been tied more. I don’t know that we reached the right result. I know that we were trying to balance those two interests, and it’s really on to the future that will tell us whether we got the balance right.

HH: You quote two of my favorite things I use in the Con Law class quite a lot – The Justice Jackson dissent in Korematsu, and the Justice Jackson concurrence in Youngstown Sheet & Tube.

SB: Yes.

HH: In the dissent in Korematsu, he says, “This is like a loaded weapon left lying around on a table.” Isn’t every Supreme Court opinion sort of like a loaded weapon, Mr. Justice Breyer, because they can be used and misused in the future?

SB: Yes.

HH: Do you ever get away from this problem?

SB: No. Very rarely, I suppose there are decisions about the tax code, though maybe even there. But I mean, there may be decisions about technical matters. And that’s some of the difficulty. And what I really want people to see in this book is to ask a question – why should nine unelected individuals have the power to affect people’s lives in ways such as you have just mentioned? That’s a great question, and a very important one. And I think Americans have to ask it for themselves. It was first asked by Alexander Hamilton.

HH: Federalist 78.

SB: That’s right.

– – – –

HH: If you’re a regular listener here, and you listen, and when Erwin Chemerinsky and John Eastman come in, and you agree with John, you’ll disagree with some of this book. If you agree with Erwin, you’ll agree with a lot of this book.

SB: (laughing)

HH: But you will both disagree and agree with other parts of it. It’s absolutely surprising in some respects. Justice Breyer, before I go back to Making Our Democracy Work, I asked my Con Law students yesterday, what do you want me to ask the Justice. So I want to run down these quick ones. First question – do you play golf with each other?

SB: Some do. I don’t play golf.

HH: In conference, is there one justice who will remain nameless who dominates conversations?

SB: No, no. The interesting thing about the conference? In the 17 years I’ve been there, I’ve never once heard a voice raised in anger. Never. I have never heard one judge say something rude about another, not even as a joke. Despite the controversy and disagreement, people are professional, they say what their reasons are, they listen to each other, and they try to contribute something that will make a difference to the others.

HH: One of the students asked a very interesting question in that regard. Does the fact you’re going to be there for your lifetime appointment, years and years, and decades, even, with people, does that impact your daily discussions and relationships with each other?

SB: Yes, it does.

HH: How so?

SB: Because it means we had better get along with people. And even as a practical matter, you better listen to what other people say. And one of the, there are two great unwritten rules, and you won’t find them in any book, about that conference. Rule one, nobody speaks twice until everyone has spoken once. That’s a fabulous rule for any small group of people. The people at the end don’t feel they’re being not listened to. Second rule, tomorrow is another day. You and I might have been the greatest allies on case one that’s ever been. And we get case two, and we’re totally at loggerheads. And the fact that you were an ally on case one does not affect the decision on case two. It is not a political logrolling institution. Each case is considered on its merits. Tomorrow is another day.

HH: That’s one of the reasons why I think your argument for judicial legitimacy is strong, because of that tradition. Another question from the law students, these law clerks about which so many people have heard so much, how often do they change your mind? Not influence your thinking, but change your mind?

SB: Well, the law clerks, what they’re supposed to do, and they do, they’re wonderful, I love the law clerks, what they’re supposed to do in a difficult case, what I’ll do is I’ll read the briefs. I mean, the cert petitions are different. We get memos on those. But the briefs, I’ll read them. There are twelve in a session, and I’ll read all of them, look at all of them. I have four clerks. I say you each read three sets, so you’d better know it better than me. Then I talk to them about it. Then, I ask them to write a memorandum on points that I am uncertain about. I will read their memorandum, they can put other points in, too, if they want. I will discuss it with them again. I will then go to oral argument. And all of us are prepared in some way roughly like that, and then we ask questions at oral argument. The next day, usually Thursday of the week, is pretty free. And what I’m doing is I like to have all my law clerks around for the discussion, so we go back and forth. So it’s hard to say. Once it becomes, I don’t want it with any of them that they’re in a contest to try to change my mind. You’re not a good clerk or a bad clerk depending on how many times I adopt your point of view. You’re a good clerk or a bad clerk depending on whether you’ve really gone into this thoroughly, and really help produce in a discussion. And of course, I think then what I do is I go off and listen to the others in the conference, and eventually, I vote.

HH: Obviously, from Making Our Democracy Work, and your extended conversation about some of these most controversial discussions, you’ve had to spend a lot of time on each of these cases, weighing both sides. How often have you reversed yourself towards the end, where you thought you were going to go to A, but you ended up at B, whether it was majority or dissent?

SB: Yeah, I think a significant number. People ask that often about the oral argument, and I’m pretty well prepared by the time I’ve gone in. And I think how often does it change people’s point of view. I usually say if you say less than 5%, you’re too low, if you say more than 10 or 15, you’re too high. But if you ask the question differently, how often does it change the way you look at the case, then the answer is quite a lot. And that matters, because we’re writing an opinion.

HH: One law student asked as a member of the Court who was appointed by a Democrat, do you feel pressure to step down while a Democrat is in office?

SB: Not really. I think that the…thinking of when you’re going to step down is not something, probably, that any human being likes to put in the forefront of his mind. There is a story, do you want me to tell you…

HH: Please.

SB: I think it was Brandeis who went to see, maybe it was, I can’t remember, maybe it was Field or someone, and he said do you know Justice Field, he was sent by the Court, because he was really getting on. Do you remember when the Court sent you to see, maybe it was Gray or someone else, see someone and tell him that maybe the time had come for him to step down. And I think Field looked at him and said yes, he said I do. And a dirtier day’s work I’ve never done.

HH: So now in terms of looking forward to the replacements that you have, though, when the times come to retire, do you think it influences when someone decides they’re going to step down, who is going to make the next appointment?

SB: Truth is, I don’t know. You don’t really know what goes on in the mind of another human being, and I have not yet had to face that decision for myself.

HH: All right, in terms of the regrets, you write in Making Our Democracy Work, very surprising, that one of your greatest regrets is the Pennsylvania Reapportionment case. You wished it had come out the other way.

SB: Yeah, I did.

HH: And they want to know, and we’ll talk about that, because I was surprised by that. I was very surprised by that. What are the other ones?

SB: I know everyone wants to know that, and to be really honest, I just put in three because I didn’t think I should have one.

HH: (laughing) Okay, so what’s number one of the three?

SB: (laughing) And the number one, the reason that I was, it was a question of whether with extreme gerrymandering, extreme gerrymandering of Congressional districts, the Court could get into that and say this is a very unfair system. And I thought it was possible to figure out a workable system there. And the reason I put it high on the list is because, well, you’re involved in this all the time in the media, as everyone is. They’re worried about gerrymandering, because it produced too polarized a political system. And so it’s in the back of my mind, is would some kind of Court review have led more states to produce bipartisan commissions for redistricting purposes, and would that have produced less polarization. That was what was in the back of my mind.

HH: In terms of that, when we look back from the framing, we see that they had two Senators from Rhode Island, and two Senators for Virginia.

SB: Yes.

HH: So they were quite obviously comfortable with gerrymandered federal powers.

SB: Yes, that’s true.

HH: So if you guys had gone into that, wouldn’t you be there forever? I taught Baker V. Carr yesterday, so I always say I’m so glad the Court’s not in this thicket. You’d never get out.

SB: That’s possible, and that’s what the majority thought. And since you don’t really want me to go on all day on this subject, I can refer you to the dissent, which I found convincing, like I find many of my dissents convincing.

HH: (laughing)

SB: But the others did not, so you may well have a good point.

HH: All right, the second Jackson quote…

SB: Yes.

HH: …quickly, before the break, is that you quote from Youngstown Sheet & Tube that, “Just what our forefathers envisioned,” wrote Justice Jackson, “or would have envisioned had they foreseen modern conditions must be divined from materials almost enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” I’ve always loved that. Do you know the number of law students who know what that means is dwindling dramatically?

SB: Yes, yes, yes.

HH: What’s that say about our common cultural legacy, that those sorts of references can’t be made, 30 seconds.

SB: Well, I didn’t really know that particular one until I read the book, read several books on this. But I think it’s a great quotation.

HH: It’s wonderful.

– – – –

HH: As we went to break, Mr. Justice Breyer, we were talking about that Justice Jackson quote about Pharaoh’s dreams being interpreted correctly by Joseph. I always point out to my class, Joseph got it right. He consulted the original materials and he got it right. I think it’s an argument for originalism, actually.

SB: Yes, but Joseph was Divinely inspired, and not all of us are.

HH: Okay. Now to the issue central to Making Our Democracy Work, why do Americans go along with the Court? How did they earn it? That’s what I like the most about it, is the history from Marbury through the Cherokee case, through Brown V. Board. But let me give you a couple of facts for the audience. You know this. Chief Justice Roberts, Harvard Law School. Justice Scalia, Harvard. Justice Kennedy, Harvard. Justice Thomas, Yale. Justice Ginsberg, Harvard. Justice Breyer, yourself, Harvard. Justice Alito, Yale. Justice Sotomayor, Yale. Justice Kagan, Harvard. I mean, there’s not even any Michigan people, no University of Chicago, no University of Virginia. How in the world can an institution so peopled by elites retain…

SB: Oh, I think diversity is helpful. We have more women there, we have…but you have to remember when you ask me questions like that, as well as confirmation questions and so forth, that I was not the appointing person. I was the appointed person. Same with confirmation. I didn’t do the confirming. I was confirmed. So asking me that kind of question, in a sense, is like asking for the recipe for chicken a la king from the point of view of the chicken.

HH: Now I would say but sometimes, the chicken will have a very strong opinion on what that recipe is like. And so here, though, do you worry about the Court’s ability to attract widespread consensus of the sort you defend if it is perceived as, in one instance, much older than the population, and the other instance, much more privileged? Harvard and Yale are not difficult places to come out of. I’m a graduate of Harvard, and I know that it gives you certain perspectives and privileges that the rest of the country don’t have, or perceive that they don’t have.

SB: Yeah, well the acceptability of the Court is something I go into in great length. And ultimately, I think the acceptability depends on two things. One is what we really do. We don’t think too much about those questions, because really our job is to decide these cases. And they give us, that gives us quite a lot to do. And the second thing, I think it depends upon people asking themselves the basic question. What is this Court doing for us? Why is it there, these nine unelected people? And how does that help me? Now that’s a hard question, because when the average man or woman in this country, who is very busy. They’ve been going in the supermarket, they have maybe two jobs, they have children, there are bills piling up, and they’re not going to listen too much to that kind of question. But why should they support an institution that, as you say, it’s more than elite in the way you’re talking about. It is not a democratic institution. And it’s going to decide some things that are very unpopular. That, after all, is why they have this power, because the Constitution gives the same rights to the least popular person in the country as the most. And some of their decisions will be wrong. I mean, I obviously think some are wrong. I dissent some of the time. And then others dissent. So why should an American, and I get this question from Americans, I get the question from judges from Africa, I get the question from judges from Latin America. Why? Why is that support, which is necessary, why do they do it? And the answer cannot be because they’ll decide things politically popular. If the answer is to look at politics for our decisions, why have a Court? Let Congress do it.

HH: I think that’s absolutely correct, but I also think it may miss the crisis of judicial legitimacy that is upon us, which is that time and time again, the Court is finding itself at the center of these terribly controversial decisions, with large majorities opposed to them. You have a very eloquent argument about stare decisis here, but cultural stare decisis seems to be abandoned. And I know you might have marriage cases, so you can’t talk about it, but again and again, large swaths of the American people, I would argue majorities, but I don’t want to say I know that for a fact, say the Court is running wild, not just yours, but California Supreme Court, other supreme court. Do you worry that we’re going to forfeit this hard-won 220 years of legitimacy?

SB: We don’t know about the future. And my way of going about the problem, which I see your problem, is try to explain to people what we do. There are, I mean, for one thing, we’re the border patrol. Now what do I mean by that? I mean that this document, the Constitution, does not tell people what kinds of cities, towns and federal government they want. What it tells people is they decide for themselves, within boundaries. And these, I used to listen to the radio…

HH: I’ll be right back.

SB: All right.

– – – –

HH: As we went to break, Mr. Justice Breyer, you were saying the Court’s job is to ride the boundaries, and to keep the various divisions of government in their boxes. And you discuss in the book, Making Our Democracy Work, that that is, you know, that was hard earned. It was won by John Marshall and his colleagues, and maintained throughout a long period of time. Is there some point at which, though, that people are going to say the boundary police have not brought back their man? We were talking about the Canadian Mounty show of long ago?

SB: Yeah, I was talking about that show, because I used to listen to it as a child. They’re out at the border. The border is cold and difficult. It’s hard to decide whether abortion is on one side, or is it on the other side. Prayer in schools – on one side or on the other side? There’s some very, very difficult cases. But what people cannot forget is that between those boundaries, there is vast, vast space where the democratic process is at work, and we have no business interfering. There are doctrines designed to keep us from interfering too much. One is judicial restraint, which certainly I try to follow, and I think my colleagues do, too. And judicial restraint means it has to be pretty wrong before you’re going to jump in. And actually, I mention that, because I’m pretty good on judicial restraint. And this was the dilemma. What Hamilton thought was if nobody, if there’s no organ of government that has the last word as to what the Constitution refers, well, you can hang that Constitution up in a museum. No one will pay attention. But if it’s the President who will have the last word, he might become a tyrant, deciding everything in his own favor. If it’s Congress that has the last word, how do we protect those who are unpopular? Because elected people, quite properly, are experts in popularity. They know what’s popular and not. But this document gives the least popular person the same rights as the most popular person. And that’s why you turned it over to judges. And it’s taken 200 years. I mean, you were alive. I was certainly alive during the time that Brown versus Board of Education declared that segregated, racial segregation is unconstitutional. It took quite a few years before that was made a reality, a legal reality in the South.

HH: In fact, it’s a great chapter on Brown V. Board, and on the desegregation that followed. And that was appropriately used, almost judicial coercion, in concert with President Eisenhower defending the Arkansas students.

SB: Yes.

HH: But, but, but, we’re in an area where I don’t expect you to comment on the Tea Party, but there’s a great sense of distance from Washington, D.C., and antagonism to Washington, D.C. And it’s because people don’t believe those institutions, I’m not going to single out the Court, but that those institutions have no idea how they live, that there’s a Boston-New York-Washington elite that merges with Hollywood. And I believe your friend and colleague, Justice Scalia, said the majority of nine unelected justices imposing the elite opinion on the rest of America. And it’s fraying.

SB: Right. Of course, you don’t want to impose elite opinions. But the important thing, it’s good that people are interested in the Constitution. The more that people are interested in the Constitution, the better for the country, and I think that the most that people in public life, or the most on the Court, the most we could do is say that’s wonderful. Now I’ll tell you, let me tell you what we do, because the worst thing for me is not people being interested in the Constitution. That’s the best. The worst thing for me is that there isn’t the education in the high schools as much as there was in how does government work. Civics, we used to have high school civics. And unless we can teach our high school students, our grammar school students, unless we can teach them how our institutions are supposed to work, and how they do work, they can’t participate. And it is only through participation by the ordinary American in public life, in their cities, in their towns, and in their national government, too, that we can ever get decisions made that reflect their view. And that’s what it’s supposed to be in a society like ours, a democratic Constitutional society.

HH: In this society, a lot of people run into the government, though. And when I’m not in front of a classroom, I’m in front of the U.S. Fish & Wildlife Service, the Army Corps of Engineers, the Consumer Products Safety Commission. And this massive federal government, which you talk about in your chapter on Massachusetts V. EPA, is indifferent, unresponsive, slow, injurious. Sometimes, it seizes people’s property, like Kelo. And it’s a controversial decision not covered in Making Our Democracy Work. It’s becoming not a question of participation, but of people thinking they don’t matter, Mr. Justice Breyer.

SB: Ah, so I get this question a lot, particularly with the high school students. And I say good. What do you think’s the alternative? I say you don’t like what’s going on. I say to the class, I say good. You don’t like it? Here’s what you do. You learn something about it, you persuade your friends, you get them to persuade others, and then you go and vote. And if you know a better way than that, I don’t, because that is, I see in the courtroom. This is not voting, but I see in the courtroom people of every race, every religion, every point of view, and as you well know, I mean, there are millions of points of view in the United States. We have 300 million people, we have 800 million points of view. All right. They’re in the courtroom working things out under law. They’re at the ballot box voting. They’re in the street or in the newspaper, or on the internet, or however they want to do it, trying to convince others. Now what’s the better way than that? Is it deciding your differences with guns in the street? Of course it isn’t. Of course it isn’t. And I just try to point that out.

HH: I’m trying to give voice to what I think people are saying right now. But they would say Mr. Justice, we voted for marriage in 43 states. We voted for property rights after Kelo in so many states. We voted again and again for restrictions on abortion. We vote again and again, and the Court simply ignores us. So why participate?

SB: Because sometimes, the Court will do things that are unpopular. Anyway, participation, you’re not going to elect, well, forget it, another story. Look, sometimes what the Court does is unpopular, and sometimes it’s wrong, because we’re human. And you could say, we could go back to the basic question, why should there be people with that power? And the answer is Hamilton’s answer. The answer is despite that problem, this document is for the least popular as well as the most popular. It is for everyone. And someone should have the power to hold the government in line to these basic border areas so they don’t go beyond the borders. And it would be a worse idea to let the President or the Congress decide all those things for themselves.

– – – –

HH: I’m so appreciative of you taking the time, Mr. Justice Breyer, to talk to a conservative talk show host. I don’t know that any other justice…I’ve interviewed Justice Thomas about his biography, but not about the work of the Court. And I think it will be of great interest to conservatives that you were willing to do this. I’d like you, if you could, talk a little bit about the two rules that you elaborate on in Making Our Democracy Work, that like cases need to be treated alike, and that stare decisis matters a lot. Can you explain to the average person who’s sitting out there why that matters so much in preserving…

SB: That’s all of law. I mean, that’s really basically what law is about. It is always a war. Like cases should be treated alike. Everyone who commits this crime should go to jail for the same time. That was the sentencing guidelines. But wait. You’ll find an exceptional case. You’ll find something where it really wasn’t this person, was not his fault to the same degree. He should be punished, but maybe not the same way. So that’s always been, since the years since Blackstone, since probably Justinian. Which cases are alike? So we treat them alike. Which cases do you need equity, because somebody’s in a terrible situation, and doesn’t really fall within the rule? It used to be the same. You grade papers?

HH: Oh, yes. Blind.

SB: Fine, fine.

HH: Absolutely blind, yes.

SB: All right, fine. When you grade papers, you’ll want, some people will say let’s have a few categories. You have only a few categories – pass and fail and so forth. Well, what about, with a few categories, what about the people who are on the border? No, we’ll have a thousand categories, so we get grading correct with all the people on the border. Well, that’s totally unworkable. I mean, law is sort of like that. What are the categories? What is alike? When do you want to make an exception? And there is never a definitive answer.

HH: But as the ambit of the Court grows, as the state grows bigger and bigger, you’re making those calls more and more often. Do you see that the Court is going to become almost omnipotent in the United States, and a court of increasingly first resort in political disputes like Bush V. Gore? You write about Bush V. Gore in a fascinating chapter. Is that what we’re doomed to have…

SB: Oh, I was in dissent in Bush verus Gore.

HH: Yes.

SB: And I said I didn’t think we should have taken the case. I don’t think it’s necessarily so. You’d have to get a historian to say are we deciding more controversial things now than the Court ever did. I mean, think of the Brown V. Board. Think of the desegregation decisions. And if the Court had not looked at the words, where equal protection of the law, do you think in 1950 that African-American people in the South, do you think that black people and white people were treated the same? Well, of course they weren’t. All you had to do was open our eyes. No other institution did anything about it. And in 1954, the Court read those words, and it said but of course, we apply them. You know, I don’t think it was diving into something. It’s terribly important that the Court not interfere in the democratic process. That’s proposition A. And proposition B is that their job is to see that the other branches of government do not go beyond these very, very broad limits. And those two propositions are sometimes in conflict, you know? That’s why it’s a difficult job. And in order to see, you know, it’s so, if you say well, conservative, liberal, et cetera…I don’t feel conservative or liberal. I mean, those are characterizations. Those are characterizations made by the press or others. That’s fair. There’s nothing wrong with their characterizing. But it doesn’t look that way from the inside. From the inside, it looks like you have a very difficult case. Of course you have to remember the democratic process. Of course you have to remember that people have to vote their way. At the same time, there are areas of protection. And how do we work with those? That’s, you can only look at the individual cases, and you’ll see how difficult it is, and why we might be wrong some of the time.

HH: Do you love your job?

SB: Yeah, it’s a very, very, very…it’s, look, it’s a job that requires an individual member of the Court to put forth his or her best every minute. I mean, David Souter said this, my colleague. He said you’re never off duty. And that’s, on one hand, it’s straining. On the other hand, as you get older, it’s really a personal benefit to be in a job where you really have to do your best. And so the answer is yeah.

HH: The new cliché is it takes 10,000 hours of anything to get good at it, and so I’ve been doing this for 20 years, and some people play golf for 20 years. How long did it take you to get good at being a justice of the Supreme Court once you show up there, and you can figure out where your office is, and you don’t get lost in the bowels of the building. How many years?

SB: I’d say it’s up to other people to say whether I’ve gotten good at it or not. I’d say the first three years or so, I was frankly, rather frightened to death. I mean, how do I know I can do this? And after four or five, you become, the cases begin, in a certain sense, to repeat. You begin to know areas of the law, because you’ve had to go into them in a way that you didn’t on the court of appeals. But I don’t think you’re secure for several years.

HH: In Making Our Democracy Work, you devote a chapter to Massachusetts V. EPA, a fascinating conversation and decision in which the United States Supreme Court ruled that the EPA not only could but had to regulate greenhouse gas emissions. And that’s now making it’s way back, I don’t want to ask about the specifics, but when you just said you can’t interfere with the democratic process, I thought golly, that’s one of those where people like me say that’s exactly what the Court did. We elected Bush, he appointed the EPA people, the Clean Air Act was decades ago, they had an administrative agency decision, everyone agreed, everyone signed on. And along comes the thunderbolt. Was that, did you get…

SB: That’s a different kind of a question, and actually, that kind of a question accounts, probably, for more than half our work. More than half our work is taking a statute written by Congress, and trying to decide what words in that statute mean. Like there’s a word in there, I don’t remember exactly, but it would be dangerous to health or something like that.

HH: Right, right.

SB: And we had to take those words and decide if they apply to greenhouse gases as well. And what, the secret to that, I think, is exactly what you’re driving at. In my view, probably more than most others, I think the secret to interpreting a statute is to try to look to what Congress wanted, to the purpose of those particular words. And I think it’s only if we do that, that the electorate can hold the member of Congress responsible at the voting place. You see, if we start substituting our interpretation of the words for what Congress really intended as its purpose, then when election time comes, the candidate will say well, it wasn’t me who did it, it was the Court. So we have to do our best in a case like that to make the Congressman responsible, by trying to figure out as best we can, what the purpose of those words was, and then interpret the words accordingly. Now that isn’t always easy to do, and that’s why you could have different views with those words. But the majority there is not trying to substitute its view for anything. The majority is trying to figure out what the people who voted for that statute really wanted.

HH: What’s interesting about that, the dissent, and I’d sent people that Massachusetts V. EPA, and said no, this is a legislative issue, they couldn’t have meant that. That’s a debate. I’m not going to ask you to rehash. You won. But the question of whether or not the public buys into that, given that the greenhouse gas debate didn’t even exist when the Clean Air Act was passed, there was no global warming, doesn’t that have to enter into the public’s appreciation?

SB: That’s one of the great issues of law, as you know. We pass a statute in Congress. It says all endangered species will be protected in a particular way. At the time it’s passed, no one thinks a silver lynx is an endangered specie. I don’t even know what that is. I’m making it up. But…

HH: Use the Delhi Sands Flower loving fly.

SB: Yeah, well 20 years later, it turns out that this animal that nobody had ever heard of is an endangered specie. Well, if it is, you have to apply the rules, even though no one in Congress at the time thought of it. That happens all the time. But that’s a detail. You see what’s the purpose of the statute. The purpose of the statute is to protect an endangered specie. And so if we have an imaginary lynx that is an endangered species, you protect it, even if no one in Congress knew at the time.

HH: But that’s my area of practice, and so let’s say the species isn’t endangered, it’s not a species, there’s scientific controversy, all those different things that get worked out through the administrative process.

SB: Yes.

HH: But all the while, everyone on both sides says, I actually asked President Nixon this, whose library you appeared at yesterday, why he signed that law, because I oversaw the construction of the Nixon Library. And the President said it seemed like a good idea at the time. But nobody believes that in 1973, or even the amendments of ’82, that it was intended to devastate property owners, and range widely into sub-species, and to go into cross-border species. No one saw that coming.

SB: Well, I don’t believe it intended to do all those bad things, either (laughing). I think the question is what’s the particular thing there, and that was a tough one. And you can have the same thing in another area. You could have a statute that says dangerous drugs are unlawful. And somebody finds a new drug, you know, that is a terrible drug, and nobody ever heard of it before. And it’s…

HH: Coming right back with Associate Justice Breyer, Making Our Democracy Work.

– – – –

HH: Again, I just appreciate you having this conversation, Mr. Justice Breyer. Rapanos is a decision you don’t talk about. It’s an Army Corps of Engineers decision. And it concerned what is and what isn’t a wetland. And it went on for a long time, and finally, I think you’re in the dissent in Rapanos, but it comes out 5-4, and Justice Kennedy writes an opinion and says maybe the Corps should go back and do it this way, take a look at that, etc., and sends it back, remands it. Here’s, not to the specifics of that, but every time that happens, thousands, tens of thousands, hundreds of thousands of people are screwed. They just…

SB: Just think of the problems that we consider in the statutory area. We’re probably not going to hear a case unless perfectly good judges in the lower courts have come to different conclusions about what these words mean. So virtually, by definition, there will be good arguments on both sides. And then you have to do your best to figure out, in my opinion, what Congress wanted by these words. And that is not easy. I put in the book, as I like it, it’s not really an example, but it’s funny. And that is you have a schoolteacher in France, this was, and he was taking 20 snails, he’s a biology teacher, 20 live snails in a basket.

HH: It’s a great example.

SB: And he’s moved the class, and the conductor comes in, and says what’s in the basket? They’re snails. You have to buy a ticket for the snails. He says for the snails? Read what it says in the book. It says no animals on the train unless they’re in a basket, and then you have to buy a ticket for the animal, okay? All right. So question – does that include snails? And more importantly, why didn’t he have to buy 20 tickets? I mean, those are the kinds of questions with difficult statutes. Is this word, any law enforcement officer, does it apply to a prison official? There are good arguments for, there are good arguments against.

HH: But Mr. Justice Breyer, that…I couldn’t agree with you…I love that example, by the way. I’m going to be using that forever. But my response, I think it’s annotated, is just tell me what the rule is and I’ll adapt. If you tell me it’s 20, I’ll buy 20 tickets, or I won’t drive the train. If it’s one, I’ll bring them all. But what happened in Rapanos, and it happens again and again, is that the justices don’t decide, and so there’s no rule, and the world goes on confused, expensive, lack of productivity, job growth doesn’t happen, uncertainty…did you happen to read Amity Shlaes’ book…

SB: Oddly enough, no, but I mean oddly enough, if you want certainty in the area of statutes, you can get it. The place to get it is Congress. They are in charge of writing statutes. And when we have a statute that they’ve written unclear, and we make an interpretation, and later they change is, very often, the press writes they overruled our decision. They didn’t overrule it. They made a better statute. And indeed, if that’s their job, the job of a court is to decide the particular case. And beware of having nine unelected judges unnecessarily write very clear rules with tremendous extension over areas they know nothing about. Sometimes, it’s much better to decide an individual case, to decide it as narrowly as possible, to decide it in accordance with how this statute, or words apply to this situation, and let Congress write the general, more generally, far-reaching rules.

HH: Clearly, that’s what they did, for example, in the Religious Freedom Restoration Act, followed when you overturned it to the Religious Land Use and Institutionalized Persons Act.

SB: Yes, yes.

HH: But in Rapanos and others, when you don’t decide, when you say well, that’s ambiguous, go back to the agency, that’s different, because then Congress doesn’t know how to respond to your ambiguity.

SB: Oh, yes, they’re always free to write the statute unless it’s a Constitutional question. But in the ones you’re talking about, they’re always free to rewrite the statute. And you raise another question, which is a fabulously interesting question. For the last hundred years anyway, and at least sixty, Congress has created these agencies, which are staffed by unelected people. And they write broad statutes, and give a lot of power to the agency. And to what extent should they do that? It can’t be zero, because some of these things are so complicated, chemicals, you know, that may pollute the air, or hurt people, or there, it may be airplane safety, or it may be…

HH: Lead in children’s toys.

SB: Correct. It could be all kinds of things. And it could be poisons. It could be heroin or cocaine or something. I mean, there are thousands of subject matters. And they delegate to the agency. And one of the most difficult questions is often how much power did they delegate to the agency? How much? Is this within their ambit, or is it not? And quite often, when the agency has made some mistake, in our opinion, on that, the answer is send it back, because they should do it in a different way. Brandeis said a great thing, which I’ve been looking to put into an opinion if I can.

HH: We’ll look for it. Okay.

SB: (laughing) Anyway, he had an agency, he had an agency decision, which he just couldn’t understand. So he said we have to know, we have to know what the decision says. We have to know what it means before we can say if it’s right or wrong. And they sent it back to the agency.

HH: Well, that’s interesting between the agency and the Court, but of course, whoever the applicant or the supplicant, more increasingly, they are, is just out of luck.

SB: Oh, they may or may not be.

HH: And this, I want to make sure I ask, that the cost of this, is the Court, are you aware how much it costs to tangle with the government, how much it destroys people’s lives, how they can’t fight back, because the justice you’re supposed to guarantee has become administrative hell for people?

SB: Yes, I think I…I mean, I hear a lot of stories, and there certainly is a big problem like that in many, many, many areas. And working with administrators is expensive. And one of the really unfortunate things is a lot of people cannot afford to get into court. And that itself is a huge problem, because they do have rights, and not to let them in is really to take those rights away from them. So there are dozens and dozens and dozens, and probably more of the problems of the sort that you mention. And when…the best I can say is most of those problems are not Constitutional problems. They are problems where the people of the country have to get together and decide how to elect others who will try their best to solve them. And the others don’t always get it perfectly right, either.

HH: It’s interesting, in Making Our Democracy Work, you seem to almost at some times to be talking about public choice theory. And that’s what I think of these agencies. Congress is never going to make them do their jobs, because Congress gets no upside from it. Congress gets reelected, and as a result, the government grows and grows, liberties diminish, and people get screwed. And to a certain extent, individual rights depend upon you people to force these agencies not to be so indifferent.

SB: Beware of thinking…

HH: I go back and forth.

SB: I’d say I would beware of thinking, that I would beware of my thinking that I have the answer to every problem. I don’t. Very, very few. And after a lot of time, and reading a lot of briefs, I will try to come to a conclusion about what these words in the statute mean, or how the precedent, and how the language of the Constitution applies to this new situation. And there was good reason why the role of the courts in the Constitution is pretty limited. Now the people who are supposed to think about that are the legislatures or others, but they are responsive to the will of the people. And if there’s one point here, it is to say to the high school student, it is say please, please, and the teachers, understand how our institutions work. Know something about history. And participate in the government, whether of your city, town, or the United States. That’s the point.

– – – –

HH: Perhaps the most difficult chapter in an otherwise very easy to understand book by my guest, Associate Justice of the United States Supreme Court, Stephen Breyer, great book, Making Our Democracy Work, is the chapter, number 10 – Subsidiarity, Originalism and Foreign Law. Now subsidiarity goes back to Aquinas. There’s medieval theologians who believe the decision ought to be made by the person at what level is closest to the decision, the decentralization. But I thought this chapter was very clever. And as an opponent of the use of international law on domestic lawmaking, I thought you are really opening a door through this to bring in international law. But I know the framers would say no, never, Mr. Justice Breyer. Do you hear them yelling at you in your sleep, not foreign law?

SB: No, I think they’d favor what I do with it. I mean, foreign law is sometimes, or foreign institutions, sometimes you can read something about it and learn something, just as might read, might read a law review article, or I might listen to a radio program. Or I might…there are a lot of different sources that help you learn something. It doesn’t bind us. Of course it doesn’t bind us. But there is an instance, what I put in with the relation of the states to the federal government, that’s a problem that exists in a lot of places in the world. And it’s a very hard problem.

HH: Let me ask you why subsidiarity, I immediately wrote down, because it was right after the Republican presidential debate, that the governors were talking about, Romney and Perry, about immigration and their states’ choice in immigration. I thought to myself, you know, the states might actually be better at controlling their own borders than the federal government. They would be closer to the people. Subsidiarity would say they should do that, in some instances. But of course, the Constitution says screw subsidiarity. It doesn’t say it that way. It says avoid subsidiarity. The national government controls the border. So subsidiarity doesn’t really work in a system of a written Constitution, does it, Mr. Justice?

SB: It’s a very abstract idea, and you’re correct at saying that the abstract idea is you try to put the power in as low a level, as local a level, as you possibly can to get the job done. So if the job happens to be smoke from Ohio going into New York, or going into Massachusetts, if it happens to be something like that, you’re going to have to have a national rule, because it concerns several states. But if it’s the local police or fire department, you’re going to have a local rule. And then the question becomes, where do you draw the line and how? And one of the things I argue there in that chapter is there’s no, courts are not very good at doing that. Congress is the place where it has to be done. And so most of our efforts, because this Constitution, the document, you say it doesn’t refer to it? It’s very strong. It’s called federalism, but it’s very strong on states rights and local rights. The government has certain powers, and the federal government has a major role. But those Senators and members of Congress are elected at state level, and local level, and they’re very responsive to what people in their states or localities think. So I’m arguing here that most of the job, most of the job of trying to keep things local is Congress’ job. And what we can do is we can interpret statutes with the importance of keeping things local in mind. It’s up to Congress, and we have to determine what they thought, but the principle of federalism, that principle which you called subsidiarity, which I think is, I use that word, too, because I think it’s enlightening, that is one of the very major problems for judges.

HH: And the Commerce Clause, going back to Wickard, and then you discuss Lopez and Wickard here, it has, it’s sort of swept that away, hasn’t it, the Commerce Clause?

SB: No, it hasn’t swept it away. That’s why I say, if you go look at the cases in the Court, I think what you’ll find is the Court is saying are we very good at deciding what should be where? Rather, this has to be Congress’ decision, for the most part, and then there might be exceptions to that. Because it’s Congress’ decision doesn’t determine what decision it will be. It’s up to Congress. And as I said, the members of Congress are local and state officials. And if people in that district, or in that state, don’t like what they’re doing, they can vote the other way. Now that’s the point. And that’s the point I want to get across, because that is the point that I think the civics classes should come back into existence, and they should say to those students, look, you participate for the next 40 years in the state level, local level, national level, be on your library commission, go on the school board, you know, teach somebody how to read. There are thousands of ways you can participate. They’re not all federal, by any means. Very few are.

– – – –

HH: Mr. Justice Breyer, when we went to break, you were talking about the need for civic education. I 100%, I go out, and I talk at high schools. I teach my Con Law…

SB: Good.

HH: Everyone should be doing that. But I always teach them as well, realism. And the realism that stands before me today is a Court that just, it is unpredictable, the Constitution is whatever five justices say. Five of them say Citizens United means that Austin should be overturned. Five of them say abortion should be legal in 50 states. Five of them say Bush, four of them say Gore, that it really is, the realist says it’s whatever five justices of the Court say the Constitution is. How do you answer that to the people listening and believe it?

SB: Oh, I’m not a realist. I mean, I don’t think it just is politics. And I spend a lot of time trying to explain why it just can’t be politics. And there are different people who have different views, but the job of a judge there is to try to figure out the answer to this legal question. I mean, some people think the answers are all found in history. Justice Scalia says that’s originalism. And the motive of that is a good motive, because I think that they want to control the subjective influence of the judge. They think that what I do, for example, or by looking more to Congressional purposes, or trying to figure out what the values are underlying, say, the freedom of speech, underlying parts of the Constitution. They think it’s too subjective. I don’t think it’s too subjective. I think I write down my reasons, and I think people are free to criticize them, and you have. There’s nothing wrong with that. We’re used to criticism. And that’s fine. People certainly can criticize and pay attention to it in general. Of course they can criticize. But there are different approaches to these very grand problems, very different. And I think, for example, originalism doesn’t work very well. I think it’s pretty hard. I don’t think George Washington knew about the internet. I think our basic job there is to take the values in the Constitution, which don’t change. They’re virtually the same now as they were in the 18th Century. They’re the values of the enlightenment, and apply them to today’s world which changes every five minutes. I mean, yes, George Washington didn’t know the internet, nor did James Madison know about television, et cetera. And this world keeps changing.

HH: They knew liberty. That’s what they knew. They knew liberty.

SB: Correct.

HH: Let me give you my favorite approach to the Constitution.

SB: All right.

HH: It’s from the Massachusetts ratification convention, January 25th, 1788. Mr. Smith rises up and says Mr. President, I am a plain man, and I get my living by the plow. I’m not used to speaking in public, but I beg your leave to say a few words to my brother plow joggers in this house. And he goes on to say when I saw this Constitution, I found that it was a cure for these disorders. It was just such a thing as wanted. I got a copy of it and read it over and over. I had been a member of the convention to form our own state constitution, and learnt something of the checks and balances of power, and I found them all there, and I did not go to any lawyer to ask his opinion. We have no lawyers in our town, and we do well enough without. I form my own opinion, and I’m pleased with this Constitution. There is the democratic impulse. And I think that the courts are at war with it, not the Supreme Court always and exclusively, but courts across the United States issuing these thunderbolts on marriage, and on all sorts of different social hot button issues, when the people haven’t…they’re ahead of the people, Mr. Justice. Do you understand what the concern is from that point?

SB: I do understand the concern. And the difficulty is that for 80 years in the United States, we had a system of legal racial segregation.

HH: But that was after the 14th Amendment.

SB: So where…ah, yeah, yeah. Where was Mr. Smith at that moment? I mean, if he had read that Constitution, he would say that it forbids this racial segregation. But it wasn’t happening. And the reason that Hamilton and Madison and the others wanted the Court, courts in general, people have arguments, don’t they? And they need to have them decided. As far as the Supreme Court is concerned, they thought it would be important, even though they’re risking error, to have a group of people who are trained as lawyers, at least, and to try to keep the others in bounds. And you say oh, the others will stay in bounds naturally. What about those 80 years of racial segregation? Go look at those pictures of how black children in the South were educated. Look at those shacks. Look at the two drinking fountains. Look at the segregated transport. And it was long, hard effort by a lot of people, not just the courts, but the courts included, to try to bring the country into correspondence with the Constitution. And so it isn’t true, you see, to say they’re just sitting there causing trouble. What they’re doing, in fact, is trying to make those ideals, and the ideals aren’t totally liberty, the ideals are how to create a workable government that as a practical matter will ensure people both their freedom, and the right for them, themselves, through democracy and the ballot box, to decide what kind of country they want. That’s a very complicated effort. And that’s the effort of the Court, to assure that reality corresponds to the ideals that are written in the document. And I do want people to understand the difficulty of the task, to understand that we might be wrong, to understand the need for protection of unpopular people, among other things, and then to say I see. You see, I believe on hope that the more understanding that there is, the more support there will be for our Constitutional institutions, including the courts.

HH: But to earn that, when the 14th Amendment, as a member of the party of Lincoln, the Civil War is fought, and the 14th Amendment is passed, and it addresses racial, the evil of racial discrimination, and it amends the Constitution the way it needs to be amended. That is very different for the Court to then come in with that predicate and say you are not true to what this 600,000 people were killed for in the Civil War. We are going to enforce the decree of the Civil War. Very different when there’s not a Constitutional amendment on something like, for example, whether or not the 14th Amendment extends to sexual orientation, or whether or not the 14th Amendment guarantees this or that. And so I think it kind of sidesteps the point, almost, to say racial, the Court’s greatest moment, Brown V. Board, does not give them a writ to go about and invent for themselves this 14th Amendment rationale.

SB: You know what I think is the worst moment? The worst moment was the Dred Scott decision.

HH: Agreed.

SB: And it’s interesting to read that.

HH: Great, great chapter.

SB: And there, they said, yeah, and you read that the Court, I think very wrongly, at the time, without the 13th, 14th, and 15th Amendment, without those amendments, the Court wrongly held that a descendant of a black slave had no rights at all.

HH: Let me give you the last three minutes, Mr. Justice Breyer, when we come back for a final segment on Making Our Democracy Work.

– – – –

HH: Fascinating conversation, Mr. Justice Breyer, thanks for coming in. I just want to conclude by talking about Dred Scott. Your colleague and friend, Justice Scalia, has often quoted, mentioned Justice Taney’s portrait in Harvard Law School looking glum, having blown the Dred Scott decision. But doesn’t Dred Scott act as a great caution on you?

SB: Yes.

HH: That you guys can get it so wrong?

SB: Yes, and that’s how I use it. I mean, what’s so interesting about that is, I mean, they virtually, the decision said that the slave is protected in the free territories, and you can’t get rid of slavery. I mean, there was an element of that. And they were at great dissent by Benjamin Curtis, who explained how why under the law at the time, that was wrong. And if Taney was trying to stop the Civil War, he started it, or certainly helped. And Abraham Lincoln read the Curtis dissent, and said this is a great dissent, used it in the Cooper Union speech, got to be the head of the party as a result, was strong in the Republican Party, and history went on from there. All right, I do use it the same way you do, that the Court can make its mistakes, and that’s a real killer. That’s a terrible mistake. So we all have our favorites. And I think it’s universal that was a mistake. But as to a lot of others, some think they’re right, some think they’re wrong. And that’s their right, and there’s no answer. And that brings you back to the basic question. Why should there be this unelected institution that will make mistakes, and that will do things that are unpopular? And the answer to that question lies in Hamilton’s view. We want to protect those unpopular people, Madison’s view, and John Marshall, with Marbury V. Madison, and 200 years of American history, that include President Eisenhower’s, flying 1,000 troops from the 101st Airborne into Little Rock so that those 1,000 troops could go and take those nine heroes, the Little Rock nine, black children, into the white school. All that’s part of our history, it has its ups and downs. And my own bet is that when people begin to learn that history, they’ll say I see. I see why we have a room, the courtroom, where people of every race, every religion, every point of view, can try to work out their differences under law, rather than try to work them out on the street with guns or sticks or bats or whatever. And really, this is, I heard Harry Reid say that after Bush V. Gore, that the great thing about that case, it’s hardly ever remarked, that that under law is how we decided even that controversial kind of case. I mean, I thought we shouldn’t have. Remember, I thought it was wrong. Okay, but that’s the system we’ve developed over 200 years, and I want people to understand it.

HH: And Making Our Democracy Work advances that cause. Mr. Justice Breyer, thank you. Great conversation.

End of interview.


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