tv Justice Breyer on the Magna Carta CSPAN January 11, 2015 9:00am-9:42am EST
as crazy as it sounds because from the time of then until now we're more efficient than we were in marconi's time. the thought of being a million times more efficient in the next 20 or 30 years is not as crazy as it sounds. they also discuss the document's influence on american law. the two men spoke at the library of congress where a 13th century copy of the magna carta is on display. king john signed the document under pressure. american revolutionaries looked to the right guaranteed by the magna carta as they rebelled against the english crown. this is 40 minutes.
>> thank you, before we talk about the magna carta i want to talk about a few other things. when you grew up you grew up in california and went to stanford and harvard law school but did you pretend to be a law professor and want to be a judge? how did that come about no to be a judge. >> i wanted to go into law. my father was a lawyer. you may not remember this. you're not old enough. but there was a time when you sort of tended to do what your parents said. completely fine to the entire
audience. such an idea that he was a lawyer. as far as becoming a judge is concerned for any lawyer, a federal judge like me has to strike. it really does. and to be on the supreme court, you have to strike twice in the same place. >> so you and i worked on capitol hill at the same time, i worked briefly for the senator in the judiciary subcommittee on amendments and you worked for senator kennedy. unusual for a harvard law professor to come down and work on capitol hill. why did you decide to do it. and how do you like that experience? >> yep, it's unusual. it's odd. it's still true to the degree. in the academy, there's tremendous respect for the executive branch. if i had left harvard and took a leave as i did, i think to be a deputy assistant secretary of you name the department, oh, well, we understand that. to work on capitol hill, why
to control the senate after carter left. so they could really block anything. how did you get to be confirmed in that lame duck because the republicans felt they could kill you in the next session if they held it up for a while. how did it feel they got confirm in the republican senate. >> part we wanted this committee run. i mean, he walked, did run, so there could be some kind of a record of accomplishment. that meant his favorite thing, if i had to pick the phrase, three words, i heard the most from his lips. work it out. that was our job. work it out. the first day i got there he took me to the members of the committee and particularly i remember going and the republicans like the democrats. he said to alan simpson great senator from wyoming. if you have any problems at the
committee, he's going be the chief council, phone him. i was working for senator kennedy and working for the 17 members of the committee. that's how we ran it. the other thing he said which i kept in my mind is if you want a compromise, you work things out by compromise. but a compromise is not "i'm here you're there, we'll see what we can give up to meet in the middle." that's not compromise. the compromise is we don't agree about something but we're trying to get together. i listen to what you say. listen. and somewhere in this conversation you will say something i think is okay. then i say what a good idea you had. fabulous. i think we can work with that. and then we can work with this idea. and then if it goes through, the other thing is don't worry so much about credit. it's a weapon.
if in fact you pass it and it works, there's plenty of credit to go around. if it goes nowhere, it's the credit. put you in front, not himself. don't worry about it. you will have the credit for your idea which enables us to compromise. that was his view, anyway. i think we worked pretty much with that view for a couple of years and i think perhaps the republicans on the committee were a very good group in my opinion as for the democrats. i think they all got on pretty well. now i'm told it wasn't ideal, it wasn't paradise. it wasn't everybody just throwing rose blossoms around and so forth, but they did get on pretty well. and i think it was that -- what i'd call a kind of collegial attitude that helped and i just had drinks the other night with a group of staff. republicans and democrats from
the senate judiciary committee. don't be judging on the basis of an hour. i would say things would not change that much. they're enjoying it. maybe they've changed to some degree. but you just see, you know, you bring up certain things of what the day is like and what's actually happening in this day, there's more -- there's more give and take and more friendship and so forth than i think sometimes we understand reading the paper. so you got on the first circuit strom thurman, the ranking republican said he's a good man, we can work with him. that's okay. senator kennedy said you support him, we'll support him. you got on the circuit. had a distinguished career. one of the things you're most famous for is designing the new building that the court had. how did you feel you had the expertise to help design -- >> i personally did not design the building. we had an architect called harry cobb who is the partner. we paid cobb and freehed who
designed the building. what i did do, and i was with the district court judge on it what i think anybody can do -- it's called take the time. and take the time meant a day a week, probably, for two years where we would work with gsa, the general services administration and try to figure out how we're going select the architect. we hired -- we have the money to hire a consultant who's on the committee. he's great. and we went around and saw people's buildings and wanted to make ourselves creditable in the architectural room. we had great people hiring. we had to choose among five or six. here's what he did we're off of the subject, but not completely off. what he did was showed us a courthouse in virginia, a
picture, a picture of eight -- 17th century virginia courthouse red brick steeples, the porch. look at that building. it's there. it's in the square. that's a place where the public could meet. the seiple is there because it signifies a public building. that building works. the judge is there with the single courtroom each part of a network of people who were in the government to help that government building to work for the community and people will be part of it because it's part of the community. what is that building. looks to me like a hospital or an office building. i don't know, the challenge is to take what the public building for the public were high
official. a judge, a federal judge, face--to-face with the citizens who have the problem and they engage in a kind of interchange so that rich, poor whoever that citizen is, that will personally resolve his legal problems. that's an institution. you want to express that in the building. it's the building that's home to 18 courtrooms. not one, how do you do it. and how do we get the public to see that this is part of their government that's got some divisions, they and the government. harry did a good job of that. though in boston when they do bring in the school children and they do bring in the public for a variety of uses, and they do begin to edge, to chip away at this enormous problem that we
have that how do we get the 18-year-olds to understand the document that i carry around is not a document for them. and we have a system where the people of america will decide what kind of government they want within this document's framework. and it's one that insists on a rule of law and now we're back to the magna carta. so now we're part of a world that you're part of one where we're trying to convince the high school students. they should understand the history and they should understand how that relates to democracy, human rights, etc., rule of law. because if they don't understand it they won't have it. that's the connection between the courthouse, the judiciary committee, the judiciary itself and the document which i want to talk about. . >> before we get to that, one twor more questions that always
people i assume when you got on the supreme court pointed by president clinton, when you've had your interview with him famously you've been injured in a bicycle accident and you get out of the hospital to go to the interview. was that to go through the interview where you're not in good shape you h bones. >> i don't know, i can't remember. >> got on the court, got on the supreme court. when you're on the court how was the court when you were a justice get to be a clerk. and it was much different being a justice? >> yes. >> than much better, i assume, being a justice than a clerk? >> in some ways, yes, in some ways, no. >> but -- >> but are the most significant cases since you've been on the court, you've been on the court for 20 years, would you say that bush v gore was the most significant in your tenure? >> yes.
do you think it would have been the one that decided the presidential election had the gone the other way. in other words, suppose you hasn't made that decision or taken up the case, do you think the presidential outcome would have been different? >> i don't, actually. you can debate that. but if you read through the statutes and the count votes in florida it would have been the same. it could have the democratic process, we're working in a complicated way, and not necessarily so perfectly. but it was not my job. my job was to decide that particular case. in that case, i was in dissent. i dissented in that case. but the most important thing about that case. the most important -- the person
who said this, the person who said this was harry reid who would have thought my side was right. he said despite the fact than the case was important, and it was, and despite the fact that it was not popular -- and it was not popular with at least half of the country, maybe a few more than half. but nonetheless, it was not popular, particularly. and it was in my opinion wrong. the remarkable thing is there were not people killed, not riots, not paving stones thrown at people in the streets, there were no guns, people accepted it. when i say that to a student audience, i add the following. i know perfectly well that a good with percentage of you when i say that are sitting there and thinking -- and too bad there
weren't a few riots. too bad there weren't a few. and for those people, i would like for you to turn on the television set and i would like for you to see how -- what happens in countries. we had decided to do our major disagreements under a system of law. that is a remarkable thing. that people actually follow that as a long history and that history does begin 800 years ago. with that document, they're trying to say, that document, king john, and wherever it was that's where the game. >> at 12:15, at running knee, the famous magna carta. but why do you think it's so
famous in the sense that it was abdegaited by king john and the pope soon after it was -- why do you think it's part of the history when it never went into effect. >> you know more about the magna carta than do i. you helped preserve the archives preserve the magna carta. 1297 that you had. and you're asking a very good question. because i wouldn't have known the distinction that you would have known between 1297 and 1215. but as you pointed out, and others pointed to the fact that habeas corpus developed afterwards so people could take advantage of that document.
what part of it you want to take advantage of it. the part that's you're not imprisoned fined, seized with your land taken away except for the court of judgment of your peers or rule of law. that's it. they pointed to that as the most basic thing. and that's what the founders would a /* find so important. and it's a symbol of that which it contains. that's why our constitution has no person shall be deprived of life liberty or property without due process of law. twice, once in 1787. that's what it's a simple idea. that's what people all over the world today trying to see if they cannot embody an
institution. but go back for a second to bush v gore. why is it so tough to embody it in an institution? why? because it's mostly a question of free speech. why? everybody is for free speech. the free speech with the people who agree with him. and if they hear somebody they really think they disagree with not that. not that. truly not that. i hate though tell you this, but isn't free speech. so what harry reid is pointing out, that the remarkable thing about the rule of law in the united states is on matters that important, unpopular, and maybe wrong because judges are human beings and can get things wrong, and do.
they'll follow it. they'll follow it. it's so easy to do it when you like it. it's so easy to do it when you think it's not really going to affect you. it's so easy to do it when it's great, wonderful, doesn't make a difference who cares. when you think it's wrong and it'll going affect you, it's hard to do. it's that tradition that's been built up and built up over a long period of time. and the magna daughter is not the document of 1215 or the document you have in the archive of 1297. it's those documents and those words plus the fact that we have 800 years of practice in britain and in the united states and a few other places where for some miracle it's built into a habit
built into a hackett, a custom, a way of handling things that people will do it when they don't like it. and that's rule of law. that's where we're pointing ruth now. >> so when our country was being created, the charters were drafted by people -- they helped the virginia trader. in there, the charters would say the commonwealth would have the rights of englishmen. that's where the sense came in the united states or the colonies that they should have the rights to the magna carta because they have the rights of englishmen and the englishmen the magna carta. do you say, well, let me look it up in the magna carta? not really? we build on the magna carta? have you ever written an opinion where you used the phrase "magna carta". >> i talked about the magna carta and the opinion i think is one of the more important ones
that we wrote. we had four cases involving guantanamo. in each of the cases we had a plaintiff, a prisoner in guantanamo and the respondent of the defendant was the president of the united states tore equivalent. you have a person like bin laden's driver. he was not the most popular person in the united states. against george w. bush, the president of the united states, a very powerful individual. the last case, i think was the most important was boomedian. the question was can congress extend the writ of habeas corpus. it's the writ not from the magna carta but soon there after over the years and it means if you get to a judge, anything -- i had a case there was a rock thrown out of the window of
someone being detained, the husband of a woman from the dominican republic was being detained by a custom's officer in puerto rico. it had a note on the rock, take this to a judge i'm being detained immediately. and habeas corpus, bring me the body. bring me the jailer and let that jailer explain himself whether a person is being held under the law or held arbitrarily. the judge said that jailer is wrong, release him. that writ of habeas corpus, there was a question. did it extend to guantanamo. congress passed a law that says it doesn't. whether or not that writ extended allowing them to come to court to a prisoner in guantanamo where congress says it doesn't. there's a provision in the conversation that says congress
is a writ of habeas corpus. there was no rebellion or interaction. guantanamo is 90 miles away. if you look at the treaty, we control it. we control it. they say sovereignty in cuba but the cubans can't get it back unless we decide not to use it as a culling station anymore or now i think it's being called a naval base. so we said this is america and the writ does extend and in writing that justice kennedy wrote an opinion for the court. wrote an opinion that said let's trace the history of this thing. right there is the whole paragraph that the history begins with the magna carta and paved into a period that it's going to be enforced and the enforce comes through habeas corpus. this is not a minor thing. guarantees democracy basic human rights, separation of
powers and so forth, and it guarantees the rule of law. the document like that, it's a critical part and therefore congress cannot -- it cannot dispense of the writ of habeas corpus. the prisoners in guantanamo have the right to come to court and claim and prove they're being held contrary to law. >> is that a unanimous -- i can't remember. >> no, it was not unanimous. it was a majority that was for it. i was on that side. but i tend to think of it as being unanimous. >> suppose on bush v. gore -- >> i have been in the minority. >> a few times, maybe. >> but if you're in the minority, you go to the justices and say, i need favor here? can you switch your vote? maybe i'll be a majority. do you do trading like that? >> no. >> no. >> we just don't. there are two unwritten rules that i think are important. in the court.
they're not written anywhere. we go around the table in the conference room. and the rule is nobody speaks twice until everyone has spoken once. excellent, fabulous. not written anywhere. we have discussion after that. but that's a good system. the second rule is the cases are independent of each other. they're not necessarily independent insofar as the rule of law. but the suggestion you do this here, i'll do that there zero. it's called tomorrow is another day. you and i were great allies on case one. tremendous allies. we thought we were so right. and now we have case two and we're absolutely at odds. how can somebody who thought so sensibly in the last day have lost his mind. that's the -- that's what it is. that is what it is. >> so you have brought up a case -- if you want me to go on. >> yes.
>> but the -- the way i get your question often in a student audience is they'll say something -- i'll say i know what you're actually thinking. what you're actually thinking is aren't we junior league politicians. that's it. two things people think. we take case ss cases. i never do what i like. it's like being married. i don't just sit there and -- but the third thing i think is we're junior league politicians. i know. they actually did say that. look, 50% of the cases are the
five fours were about 20% -- in fact there were ten five-four cases last year out of 73, 72, something in the 70s. and of those ten, six were what you'd call the press view. the usual suspects. but look, the words even the freedom of speech, they don't quite explain themselves. and we're taking cases really on the criteria pretty much that lower court judges have come to
different conclusions on the same question of law. so they're open questions. they're very hard questions and they're right on the borderline very often. and so look, we're not going to be able to get the answer just by looking up some prior case. we're not computers either. just beating around the bush. no, i'm not. i'm not. i've been there 20 years. i have not seen a decision like that. i could even explain bush v. gore with you decided on the basis of what you and i call politics. politics is are you a democrat or a republican. are you aware of the votes? who's going be popular? no, bush v. gore. i need an ally on that. i can bring you around. i didn't mean politics like that. i meant ideology. am i free enterprise adam smith? am i maoist troublemaker, like that? yeah, more like that. well that's not right either.
but there is something that's right. there's something that's right is this -- that i grew up where i grew up. and you say san francisco? yeah, i grew up in san francisco. i grew up in the 1950s, i went to the public school. i have had a long time in the law. i am the person i am. by the time you're in any profession for a few years and a while and you practice it and have life experience, you'll have views, what kind of views? very basic philosophical views. if you're a lawyer, a student, what's this document about? how does it relate to people? what's the country like? that's who you are in your profession and you cannot jump out of your own skin. and you shouldn't. and therefore on that basis, you will find differences and you will find coalescing around certain basic things. but i don't think it's a terrible thing. it's a big country. we have 300 some on. 20 million, 10 million, 20 million people. and they think a lot of different things. it's not such a terrible thing.
the supreme court of the united states over a long period of time, you have people who think quite different basic views about how this document should be interpreted. it's okay. >> very articulate. you know what you're talking about very well. why not let the american people see the justices when they're hearing cases? why not televise it. >> that's a good question which you may or may not like the answer. i haven't had to actually vote on that. but the -- and there are supreme courts that do let the television in. and there's a good argument for doing it. why should the television be treated differently than the written press. the written press is there in the oral arguments. you're less familiar with the arguments the other way because i think the press is less familiar with them. that's the -- the reason for the
thing that goes the other way are several. one is there are several that are of some weight and one that's in real weight. for some with the weight is every case in the criminal case and the criminal cases the neighbors won't testify right if they think they're in television. that's a significant thing. the oral argument is not the argument. it's 5% of the argument. and they won't understand the process is mostly in writing. or people relate to people. good. when you see a person on television, you relate to that person. not necessarily in the press as much. but our job is not to decide the cases for these two people in the courtroom, it is to conserve, consider and write or explain a rule of law that is for $300 million people who aren't in the courtroom. that will not come across on
television unless they make a real effort and some do but not too many. they want the real reason. >> the chance? >> i have a lot of friends the press who say you think you won't respect it that courtroom. the press there already. you think people will not behave differently? you think you're used to it. you can do exactly what you want to do which i do, by the way, sometimes to my disadvantage. but i do ask whatever they want. you think you will? mm-hmm. you wait and see. you wait and see what happens the first time you look at the television set and you see a total distortion of what you meant, making you like a terrible idiot. some have claimed that the press
for example keeps two pictures of justice. you decide the way they want. you decide the way they don't want. how is he getting through. you've seen enough of television to think maybe, maybe for the true answer of that is i don't know. i don't know. i know in this sense that we are all a very conservative institution. and being a very conservative institution with a small fee, we've taken over an institution that works well in the american public pretty well, not perfectly. but it's worked fairly well for a long time. i'm there as a trustee. and there were people before and people after. and the one thing the nine of us have all been united on whoever they were for the last 20 years, is we do not want to take an action that will hurt that institution. not for us. not for us. as long as there's this big
question mark over what's institutional, people will hesitate. i know they will go others will come. others will be in the world of television and internet and so forth. we will be there. we ask you about that issue during this period of time. i tried to explain it the best i can. >> did a good job of it. let me just say about the magna carta itself just an added note, there are 17 copies of the magna carta in existence. 15 are in british institutions, one is in the australian parliament, one is at the national archives. there are only four copies of the so-called 1215 version a 1217, 1225 and a 1297 version. there are only 17 left. and the reason is 800 years, its's hard to file things away and keep them. and lots of times they were burned and other things, but the
library of congress now has on display one of the four 1215 copies. it's very rarely in the united states. and i encourage everybody to take a look at it and see that they can. even though they didn't go into effect and abdegaited by king john and the pope, some did become the law of england, still on the books of england. without the 1215 we wouldn't have the 1297. so if the magna carta had said that the united states should televise their proceedings we would do it then, right? >> didn't king john say that? >> i thought he did. >> i do agree with you. there will be a lot in the television. not if you've seen the way in which the cases are argued and people respond, i suspect, though it's self-serving but i think it's true that people take it very seriously.
there's much more to be said, usually for the opposite side of the case. you're prepared to think or i am when you go in. you hear it. people are wrestling with the difficult problems and the -- the school children particularly, that's what i'm focusing on across the country could see that, that would be a plus. no doubt it would be a plus. that's why people are divided on this issue. they're uncertain. and i'm saying there's too much uncertainty for a group of conservative people to run a risk at the institution. but go back and one thing where i certainly agree with you is look at the exhibition here at the magna carta. it's fabulous. partly because you see the document. you can see it at the archives, you can see it here. partly because as you go through that exhibition, it will force
you to think of the time that has passed, a few people that have been involved, ups and downs. think of this country. we live in a period in this country with slavery. we had a terrible civil war. we had 80 years of government-backed racial segregation. we had all kinds of things of ups and downs. and it's taken a very long time before those words in the magna carta have come to be accepted in the customs and habits of the people. and it's something they won't be. i tell you in my office, i had two years ago a woman who was president of the supreme court of ghana. she is trying to bring into reality in that country more what she believes is the more democratic system and protection for human rights. she said how do people do what
you say. why do i do what the judges say? there's no answer to that question other than go into a little history and to say, look it's not just judges and not just lawyers even that can get this done. the people who have to believe it is that's harry reid are the people who are not. and believe it, of the 311 million people in this country, 310 million are not judges and they're not lawyers. they're the ones. it's the people in the villages that you have to convince that this is in their interests. lawyers and judges might help you to do that. they can help you talk about it. they should. they're the ones that have to be convinced. go look at that history. go look at the ups and downs. and that's what that exhibition would be able to make you do. and i think it's a really great opportunity to see the documents and to see them exhibited with other things and i'm glad to
have the opportunity to be here and in part to -- >> i can see that. >> the highest calling of man kind i think it's fair to say is public service. i want to thank you on behalf of your fellow citizens, your fellow citizens for the service you've given to our country. thank you very much. applause mrautz [ applause ] >> join american history today for a look at the historical role of the house speaker as the 114th congress gets under way. the opening day remarks of former former speaker newt gingrich and nancy pelosi. we hear about the speaker's constitutional role and offers
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