tv Charlie Rose Bloomberg September 16, 2015 9:00pm-10:01pm EDT
>> this is charlie rose. >> stephen breyer is here. served on bench for more than two decades. the new book, court and the world. explores politically contentious question. role of foreign law in american judicial decisions. argues that global interdependence leaves courts no choice but to consider laws beyond the national border. supreme court concluded historical term june that
legalized same-sex marriage nationally and reaffirmed health care law. make news on case involving oklahoma lethal injection method , questioning legality and constitutionality of death penalty. i am pleased to have justice breyer at this table. welcome. so much to talk about. law andabout foreign relationship to supreme court decisions and considerations of foreign law. you and other members of the court have different opinions on this issue. >> it is not simply foreign law. there are lots of things that happened abroad. cases, more than when i joined the court, require judges to know something about what is going on beyond our borders. >> give me an example. >> paraguay, comes to new york 1970's, sees0's --
a man who tortured her brother to death in paraguay. she found the law passed 200 years before, probably to aid victims of piracy, and using that law got damages. she said i came to the united states only to look a torturer in the eye and came away with so much more. her case has led to many other similar cases. trying to interpret the statute more than 200 years old is difficult. who are today's pirates? court toral district decide what kind of compensation human rights victims should have? suppose south africa says that
we with the truth and reconciliation commission want to decide what to do about victims and perpetrators of apartheid, and we would like american judges to stay out of it. how do we interpret that statute? lotequires us to know a about what other countries are doing in practice in law. i could go on with many other examples. human rights, security versus civil rights, commercial examples, domestic relations. what would you like to talk about? >> members of the court clearly say that you cannot look to foreign law within the supreme court decision making process. they do not want to respect for law, do they not? >> it depends on the case. what they're thinking of our death cases where judges have
, united states and very few countries have the death penalty , and they find that relevant because it for businessman's, cruel -- the cousin forbids punishments -- because it forbids punishments. that is miniscule. that is something that applies in a very small area. if you look at what our dockets defectut, you will see of interdependence, globalization. you hear those words and say, what do they mean? it's perfectly good as a word, but it is a blur. this is a report from the front. i will make that concrete. i will show you that when you
have a student from thailand studying in cornell and he sees his textbook in thailand half-price. he says to mom and dad, send me books. they send them and he sells them. can he do it under copyright law? youre are told that decision will affect $3 trillion worth of commerce. there are copyrights. labelsware, automobiles, -- >> but not honored everywhere. >> that is correct. there is a statute filled with technicalities. when you buy your car in san francisco, you think you can -- butit, and you can the question was, suppose the
car is made in japan. you would have to have the approval of the software copyright holder. there are briefs sent in from lawyers, business people, governments all over the world. , chiefme read to you justice roberts at his confirmation hearing, domestic president can confine and shape the discretion of the judges. findgn law, you can anything you want. if you don't find it in the decisions of france or italy, it is in the decisions of somali or japan or indonesia or whatever. as someone said in another , looking at foreign law for support is like looking out over a crowd and picking out your friends. because hethat wanted to say, be careful, judge. do your job.
leventhal was a great judge. the point he is trying to make him a leventhal, is that if you are a judge. there are all kinds of arguments around. it is your job to figure out the correct arguments, correct interpretation of the statute, and if you want to be a bad --ch and want -- judge >> supreme court decisions have consequences. >> of course they do. pick -- he says, you are a judge. president, -- precident -- play the don't want to game properly, you don't need foreign law to do the thing wrong.
there are many ways you can do the thing wrong. you can read all kinds of things wrong. foreign law is irrelevant there. obviously, where helpful, depends on the case. >> if foreign law is relevant and helpful in the decision you are faced with, then you should incorporate it in your decision? >> of course. if that is all i said, the book would be shorter. what i want to show is where and thatt is relevant in ways affect the lives of many, many, many ordinary americans. you can do that in a lot of different ways to illustrate the fact that we live, truly live, in an interdependent world. just look at the global economy, where we are today. we are all being affected by what is happening in the chinese economy. the entire world was affected by what happened to us in 2008.
clearly, economies and trade are connected. >> yes. >> we know that. >> yes. but for a judge, it is very often a question of how should we interpret the statute governing securities, that statute governing antitrust, that statute governing copyright, and my point here is that today, unlike 20-30 years ago, we are trying to interpret those statutes for the antitrust enforcers, the securities enforcers, of several different countries, so they can work together harmoniously. that is the job of the judge. to do that properly so that it works out properly across the world -- that if youaying have to take into consideration
the ruling that you are about to make, the decision you are about to support or not support, you can in some cases look to what the consequences are of what happened and foreign law in other countries. >> that is true for every case. sometimes the consequences are relevant, and sometimes not. >> you make decisions based on how relevant they are. >> my point is that what is happening, why is it that in the securities case, why do we have briefs filed by authorities of different countries all across the world? why do we have this new information coming in front of us? how do we evaluate? and justice scalia was in the majority, and i agreed. he agrees that you consider what is going on elsewhere. >> he does agree with that?
we must never forget that it is a constitution for the united states of america that we are expanding where there is not first a federal consensus among the people, the views of other nations, however enlightened, they cannot -- >> you better ask him what he is thinking. >> -- cannot be imposed no matter how enlightened. you are sitting next to him. >> let me give you a good example. >> what do you think of that statement? >> it applies in some cases. it is perhaps not exactly the way i would put it. -- i want to stay away from what other people think. >> i want to understand what you think. i have to hold up what other people think to see how you
differ. >> look at guantánamo. we had four cases. they came out in favor of the detained person. they are typical, beginning with abraham lincoln, and wartime, the court is sometimes asked, what you think clearly of this effort by the president to restrict traditional civil liberties in the name of national security? that is not an unknown question. ,ou go back to the civil war and you will discover they are quoting cicero. cicero said, the lost a silent in the time of war. >> that sound like what abraham lincoln believed. >> yes. and the courts stayed out of it. by the time you get to the first world war, similar. , that view ledr
to 70,000 american citizens of ,apanese origin locked up brought from the west coast against their will and locked up in camps throughout the war. case, the court said that was ok. 70,000 americans who had done nothing, and there was no good reason. case, thee seizure court said the president could not seize the steel mills. you see the change? now we are involved. that to thethat to quantum of cases. in that case, the court interfered. -- now go from that to the guantanamo case.
not writetution does the president a blank check. very well. have the doctrine of separation of powers, do we not? >> that is a change from abraham lincoln, and stay out of it. we are saying that we are not staying out of it. if it does not write a blank check, what kind of check does it right? that is the question in front of the court. you tell me how to answer that question. unless -- if you were on the court -- unless you know something about the nature of the security problem, and today that means knowing something about threats that imitate from overseas, about threats that are traditional war, about security problems that other countries have been involved with, about potentially the use of other kinds of solutions to balance the civil liberties problem and the securities problem. if you want an informed decision
decision, you have to know what , but at the same time, the consequences of the judicial action. and that changes at different times. there has been an ongoing question in terms of what is the constitutional act, even today. can a president do this? does the president have these executive powers? this president has been challenged, certainly politically. muchu agree with me so that you seem to, because of course i think that is true. what i have tried to do is show is encompassing a lot beyond our borders. if i am right about that, in areas of security, several rights, then the problem has shrunk away to minor
significance. that is my point. it is that that problem is not so much right or wrong, the one you started with, it is just not very important compared to what in the world is being forced upon us. i would say to those who hold political position that you were quoting, i see why you think that. you'd think that probably because you are afraid that these foreign judges -- afraid of these foreign judges. the ones you quoted. i would say you probably think that, not you personally, but because you are afraid the foreign judges will melt down our basic american values. i think, and i hope you would think it after reading this, that the way to preserve our basic values of democracy, human rights, rod commerce, etc. --
the way to preserve it -- brought a commerce -- broad commerce, etc.. we need to lear we need to record and eight more with what is going on in other countries, not less. is,hat i am trying to say don't think i'm trying to argue constitutionut the . trying to say that all kinds of actions have international consequences. some of them are based on law. you talk to certain companies in silicon valley, google, and they are having some problem being able to get their products sold in a manner they would like to sell them in europe because of laws that are being interpreted .y regulators in europe
it has consequences for them. >> correct. what you might not have seen is how the very problem you are discussing is formulated, thrown up on the doorsteps of the have toand the courts develop doctrine to deal with it. that is making the problem you talked about very concrete in respect to the courts. by the way, how many organizations do you think there are in the world, organizations created by treaty where there are administrators. they are not one country or the other, but the administrators can make rules that bind more than one nation. if you had to guess, what would you guess? make rules that bind more than one nation. >> 15. >> 2000.
and we probably belong to several hundred. each of those people are out there making rules. sometimes it's called international trade organization. will be, what is the status of those rules, to what extent can congress or others say we are going to give those people over there the authorities that make rules to bind you average american. if the answer is zero, we can't -- >> we are ready know this country has real problems in terms of its citizens, and more soldiers, in it's terms of raising questions at certain times about who can give them orders. there are questions raised by the american military that american soldiers cannot be under the command of
non-american generals. they -- that because the united states worries about international law in terms of the world we live in. the united states worries about international law in terms of the hague, who might be brought -- and will they -- if for some reason actions were instituted in the international court of justice in the hague against iraq,ent bush, 43, about as some would like it. i had people that i know wanted to see tony blair be brought to justice as they do find it at the hague. the united states would not recognize that for a second. would they? >> it depends on the treaty.
>> if they brought -- >> in the example you give, the answer is, you are right. the -- could the icj interpret a treaty that was signed in such a way that mexico had to have a new proceeding in respect to a death case involving some messing -- mexican nationals that committed murder in texas. that read to several proceedings in the international court, our court, a complicated case about the status of that foreign decision under our domestic law. it led to a lot of dispute. courtt led to several proceedings in the international court, our court, a complicated case about the status of that
foreign decision under our domestic law. ok, this is what you have said also. >> the important divisions are not geographical, racial or religious. how do you determine who believes in who does not -- who believes and who does not? i was recently in russia, do they believe? we are talking about those in power. help me understand something like the kentucky clark and same-sex marriage -- clerk and same-sex marriage, someone who decided that the rule of law did , because in that case same-sex marriages constitutional, correct? here is a clerk, a government
official, who says that i am not doing it. >> i can't get into -- >> they may ask us to hear it. they?uld >> that would give the answer to the very question i am supposed to decide. >> i know. my curiosity -- you wrote a dissenting bush v gore. has the country accepted the fact that it is history now and george bush was president. ? in a better position to answer that than i am. , is i find most interesting the difference between those except the rule of law. we did except the rule of law there. i think we explained this -- we discussed it. the president with the supreme court of ghana.
trying in my office and to improve the courts and help them maintain democracy, human rights, and so forth. she said, what is the secret. it is the same point that harry reid made. the most remarkable thing about that decision is rarely remarked. what is rarely remarked is that people did accept it, even though it affects their lives. >> it affected history. >> many opposed it. many americans opposed it. if you're not prepared to accept decisions that you don't like -- judges are human. their decisions may be wrong. if or not prepared to accept that, we don't have the rule of law. what i say to students is, i note 20% of you are thinking
that too bad there were not a few riots. to thatou come conclusion, turn on the television set and see what --pens in countries where where they decide the decisions that way. committed to deciding under law. that is a great thing, an asset for this country. it is amazing. >> there is respect for the rule of law. >> it means it is easy to except when you win. >> i'm not talking about that. i'm talking about how important it will all is. the rule of law is. it gives predictability. correct. >> i know a lot of people who would not want to engage in transactions in countries that
did not have a system of law to express their grievances. >> that's right. it is good for prosperity. it is good for human rights. it is good from a point of view of fairness, and the alternative if we turn on television seem to be worse. the question is, how do we keep it and maintain it. is, iint in this book think it is by participating in what is going on in this world legally. problems all kinds of that might come up to the courts, but they will further that rule of law. if we don't participate, the world goes on without us. we won't be part of it. americans?as we did not all dissent from king arthur. descend from
king arthur. or from charlemagne. lincoln is at gettysburg, -- lincoln gives his address a nation conceived in liberty and dedicated to the proposition that all men are created weikel -- equal. declaration ofhe independence and said we are engaged in a great war to see if this nation or any nation so conceived and so dedicated can long endure. you see the thought? we are an experiment. country no other engaged in democracy and the protection of human rights trying to govern themselves.
at the time of the civil war, there still isn't one really, although they are coming along. we are here as an experiment to fact so enduren andincoln's words, indeed we have with plenty of ups and downs, but that experiment is not over. when i look at this, i'm trying to do my bit to describe what the challenges are through -- for lawyers, judges, and americans who are not either. challenges that we might use law and order to keep that experiment going? that is ultimately why i want us to participate. >> you want us to participate? >> it means to begin to think as a judge, a lawyer, of what is going on beyond our shores and
a certain law, and another state has another law. if you have in one state, you laws, which is what we had with same-sex marriage. >> it is a good point. spouseblem with a in missouri, and taking the child to idaho is a problem we have had. we have the same kind of problem, and it involves chile, britain, the united states, and there is a treaty that will have words in it which will be an effort to resolve far more differences than there are in all likelihood between idaho and say wisconsin. it is those people writing the treaty and the federal judges interpreting it who will have a major impact. i'm simply saying be prepared for that.
>> you mentioned the number of institutions, and you said maybe what? that the united states adheres to as a rule-making body. >> in the hundreds somewhere. >> do we need some world court. ? >> there are world courts. there are 16 international -- when the lawside of iran are different than the loss of the united states? problem.s the kind of nuancesan give me the of it because you are thinking about it and write a book about it. greenhouse gas commission. it said the united states could use some of its supply of
greenhouse gases because it was a special need. there is a statute that says you have to have an environmental and peck statement, and does that statute apply? it depends on an interpretation of the word law in the statute. it sounds pretty technical. it sounds as if it might be dealt, but it is terribly important and not so technical. what i want to show is that these kinds of cases are there. it is not something that is going to happen. it is happening. that weree world referring to beyond our borders, not the political debate you begin with. >> the death penalty? , the deathsent penalty is by definition cruel and unusual punishment, for you.
>> i did not say that. i said we should go back and consider the basic issue. say that you you did not say that and asked to reconsider it is because you want it to be based on some specific case that presents itself so that you can decide the constitutional question? >> that's right. that is what judges do. they don't announce the decision before i can say that there is enough in front of us, which is what i did say, enough in terms of the wrong person, in terms of the arbitrary way in which it seems to have been applied, a lot of information on that, in terms of how long it takes, the average time between that moment and the time of execution, 18 years, and the number of states and places that actually engage
in executions has fallen. i compare 46 pages worth of information like that with opinions 40 years ago, where the courts of the death penalty was not unconstitutional. was not. it was ok. >> because it was not cruel and unusual? >> that's what they say. i look at those facts and compare those decisions and say don't you think it is time to reconsider. >> you think there is a majority on the court that believes that? >> we would find out when they have to decide it. i am not being coy. that is how we operate, case-by-case. constitutional law conversational question as far as i'm concerned. solitary confinement? >> that will come up to in some form -- too in some form.
i had a conversation with a friend who's son was caught up in drugs and placed in solitary can find. voice, with pain in his he will never be the same. >> justice kennedy wrote something. up.e issues may well come i think they will. there is an issue in this country, people are concerned about it. it is quite likely to come up in front of the court. i'm not being at all coy, as you know. the way a judge proceeds, and the strength of the institution, it is not to have a blank mind, but have an open mind, which means that you do in fact read what people write on the issue, think about it, and you just don't react as you might at a cocktail party.
it, a serioust decision, discuss it with others, make a decision. civic text2th grade explanation, but the courts work that way. bench withit on that a different metric for making decisions. how the framework of decisions for different justices is different. ? >> it's not the metric. it's an interesting way to describe it. >> for the architecture, whatever you want to say. but whatot ideology, people do have because of their background, where they grew up, high school -- and by the time you are well along in your career, you have philosophical views, if you like, or you called it a metric. that is interesting. how does this country work?
how does the constitution relate to the ordinary person? what are the basic principles of applying the law to the lives of people in this country? people can differ about that. noted to think that everyone agrees with me. i have changed on that. threeof the country, hundred 50 million people, and it is not so terrible to have the supreme court were different judges do in fact have somewhat different attitudes. that's pretty much what it is. >> different attitudes about the law? >> how does the law relate to people. thet better to interpret statute that is ambiguous and a way that produces absolute certainty through a rule? or better to proceed through example? put more weight on consequences that are likely to occur?
or more important to state airtight with respect to state airtight with stayct to language -- airtight with respect to language? current needs, objectives, values, purposes, and different judges have different approaches. >> this is far-fetched, but look at parents who raised children and the moral code and how they define what is right and wrong for their children. it has to do with how they have -- how their own ideas have been formed by that. what they brought from their , asnts, religion, education to what is right and wrong. >> yes, that's true.
>> one family might say, don't do that. it is detrimental to the child, the community. we had a case -- where parents would let their kids walk to a place, and other parents said kids under age cap can't walk.r age >> that is a fairly good description of where there are differences, but you have to keep in mind that half the cases are unanimous. >> half the cases on the supreme court? here's what interesting, half the cases are unanimous, and you have been in the majority 80% of the time. >> the last year. i know the answer, 92%, but who is counting. i read it in a newspaper. i was not counting.
20% -- and it was now his always the same 5-4. in the constitution, liberty, freedom of speech, it does not define itself. there is an openness and basic value, so it is both the way you described it, the parents raising their children, and it is also that immersed in a system of rules, worlds, precedents, history, and all those things are part of it. this is an old argument idea is everudges react behavioral as him part of it? i had a bad day? >> in the federal appeals court,
supreme court, oh, my goodness -- the one thing perhaps is a virtue of the job. as you get older, it is. i have said this before. these cases affect a lot of people, and you must put out your very best every minute. one justice used to say that you are never off-duty. because you are thinking about the issue. you understand you represent the court. you understand this institution with mistakes made, still a great benefit to the country, and this is a serious responsibility. it is a serious job. their job.do they take it very, very seriously. nobody is going to make a bad decision because he has a stomach ache.
that does not happen. >> i don't know that either. i was to his asking. changed in the years that you have been on the bench? >> i've gotten older. >> i know that. what have you learned? could you make a speech on how you have changed in 20 years on the bench? how the bench has changed you? how there has been an assimilation of ideas and arguments and experiences so 2015, ishen breyer, different than stephen breyer 2000, and i can tell you from the neuroscience stuff we have , your brainprogram
at the end of the day is different from the start of the day. it is. everything changes. changed, knowing that there is change, knowing that is not necessarily right or wrong? >> i think that when i was first ,ppointed, like most judges brightens it up. how do i know i will get this right? it is hard. i really do this. i'm worried. i'm worried. i don't want to make a mistake. it affects a lot of people. is the right word to describe it. just as douglas said this, after 4-5 years, you see things begin to repeat. you begin to learn areas.
you begin to gain experience. moreif you disagree perhaps with some of the others, you begin to see where they are coming from. you respect their view more. you understand want they are saying what they are saying. it is easier to listen. it is easier to say something to you are one of the others on the court that will be meaningful to them. better.on on wells got personally. you get along better personally as you understand their points of view. i think i realize that i'm not going to persuade everybody of everything all the time. everyone would like to persuade everyone of everything, but listening, understanding were people are coming from, not trying to just announce what you that improves
over time. the understanding of the institution improves over time. the realization that what you can accomplish is limited, but you keep doing your best. i think people begin to feel that. more and more, as they are there more and more, and that always works in the direction of making it a more meaningful job, and i hope i am doing a good job. most people who sit on the supreme court have other kinds of jobs. justice souter is an exception, isn't he? >> yes. >> i'm fascinated. this is politics. i'm fascinated to watch our president. he is doing things now. there was a time when you listen to him and he sounded like a man by the weighted down
office because of the gridlock, the nature of the debate, absence of debate, and yet now he seems to be almost liberated. engaged by success in his judgment. i don't mean to be an punditry here. >> growth. >> i think it exists. >> i do too. i think that is a pretty good description. it is important to me to be able to understand what someone is thinking and why they are thinking it in times when i disagree with that person. why? where? and you have to know people. you have to have sat there and listened. really listened. not pretend to listen.
everybody knows that everybody can pretend to listen. >> i have probably done as many conversations, certainly with world leaders, and men and women of distinction. from world leaders, and i think this is also true in many women in marriages, they all want to believe -- i have talked to people who lead countries who feel like they are at odds with the united states in significant ways, but they all want to believe that they are listened to, taken seriously, that you cared enough to consider the point of view, and what you have just described is just that. trying to understand which are saying. >> yes. yes. , i workedas a judge in the judiciary committee. part.k i learned that in
towanted me as chief counsel pay attention to what the republicans were saying. we did have groups of republicans and democrats at the staff level working on the same problems together, and a lot of that work didn't always work. , we would have breakfast and try to figure out the day so that we try to minimize disagreement. now that work there. that is not the court. it was an approach that the senators favored at that time. of course, you say, well, is , listening,rt paying attention, really doing it. >> there is a difference between listening and hearing.
>> correct. true notsh it was more only in international relationships, but also domestic politics. you worry that the system has lost that quality, then it would do something that surprises you. have i have said a lot, i not heard a voice raised in anger in that court in that conference room. we disagree, but we disagree civilly, and we can be friends, and we are. it is professional. the disagreements can be serious. insults,oices, and no not even as a joke. that is true for 20 years. student who said that you can make your point better in a civil way. >> if you were making a
lecture,ure, one last one guy who died of cancer said it with great eloquence -- i assumed you would want to say some of the things we talked about in this conversation about listening, understanding point of view, respect for the rule of thosend understanding of forces that are shaping our time, wherever they come from? given my job, if it is all right -- i care about it. of course americans care about it. it is in large part what holds them together. if i come back, i add to that what you said. book, ike it with the
am trying to say this and the way americans basically do accept what you just said. this is something where we have to reach out to the rest of the world. we don't preach to the rest of the world, but we cooperate with the rest of the world, and we tried to take people, even those who disagree with us, to work with us. that is called the rule of law. >> during a recent october hearing, ready to listen to oral arguments in two cases, found ,hat cost of textbooks to high bottom in thailand and result into american students. did he have a legal right to do so? an issue you talked about. thank you for being here.
it's the 17th of september. it's thursday. this is "trending business" with me, rishaad salamat. here's a look at what we're watching. chile evacuating in the wake of an 8.3 magnitude earthquake. authorities issuing a soon on a warning. they expected large aftershocks to continue. the quick would be felt in the capital, santiago. one death has been reported so far. s&p says abenomics isn't enough
to bring japan out of the economic doldrums. they cut the country's credit rating after the boj decided not to add to the stimulus. japanese gdp is below that of china and korea. economists are divided over what the federal reserve is going to do in the closely watched rate decision. fund says hene doesn't care about the fed. nextalio says it is the economic downturn. follow me on twitter. by an 8.3gered magnitude earthquake are coming ashore in chile. authorities are either qa coastal areas, warning of strong aftershocks. let's head over to zeb. he's monitoring the situation. zeb: the aftershocks continue. ey