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tv   Supreme Court Justice Stephen Breyer on The Court and the World  CSPAN  January 26, 2016 8:03pm-9:38pm EST

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we also have an annual lecture series here in his honor and in his name and the next one of those will be during the course of the spring and the subject is always the theme of international law and its importance to the world and of course to the united states. today we are going to hear from him and the two panelists, dalia and ben with us here on a related question, which is the degree to which and the reasons for united states law taking account of the laws of other countries. this is the topic of his new book, "the court and the world", which has been widely and enthusiastically reviewed in
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recent months. so with that, i'm going to turn the proceedings over to the panel and there will be plenty of chance for you to interact with justice breyer and be part of this conversation. so with that, ben, maybe you'll just open it up. >> thanks very much for coming out on this whole day. i will dispense with introductions because we really are dealing with two people who really don't require an introduction to a brookings audience. and we will structure this just as a conversation. dalia and i will ask questions for the first half roughly. and then we will go to questions from the audience.
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please make sure your phones are silenced and as you have questions and want to get in on the conversation, signal me and i will say this again before the time comes, wait for a microphone to actually come around before you start talking. so justice breyer, let's start with just a little bit of an overview of the project that you undertook in this book. why did you want to write a book about the court situated not in american law but in the world as a legal and nonlegal venue, and what is the overarching theme that holds the project together? >> well, i wrote it so i could speak at brookings. the first book by the way you still can get. it's at amazon.
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it's called "regulation of energy by the federal power commission." only costs a penny. pretty good. and if you have one of those free postage things, just a penny. the second book i think it was a better book. a reviewer said, in alice in wonderland, she emerges with the history of england, why are you reading that says alice and the door mouse says because this is the driest thing i know. that was before breyer wrote this book. so in any case, i thought i would try to do better. the theme of this is to show people something. what is it i want to show. i want to show i deal i and
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maybe lots of others and maybe ordinary people who aren't specialists, when they hear words about interdependence and the globe is shrinking, globalization, they are like those wandering around in the battle of waterloo. bullets are flying and he thinks to himself something really important is happening here. i just wish i had any idea at all what it was. and that is sort of what we think about or some of us think about globalization. how does it affect us? so i want to be absolutely concrete and i'd say here i'm giving you a report from the front. i've seen considerable change in this respect in the 20 years i've been on the court and i want you to see that change not
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in terms of generalization, but in terms of specific kinds of problems which i would have said would have risen maybe once in a term and now maybe 15%, 20% of the cases. where you have to know what is going on abroad in order to decide the case. that's not necessarily picking up somebody else's legal opinion and putting it in ours. that is not the -- sometimes, yes. but not generally. it is knowing how other people suffer from and deal with similar kinds of problems. so i picked five or six that i want people to see how our court has changed because of this and that it has nothing to do with individuals. it has to do with change in the nature of the world. and i also like people to see more about how our court decides decisions.
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because there is no way you can read about these decisions without understanding better how we actually go about approaching decisions, why we do what we do. and the last point i think i'd like people to get out of this and i hope some of them do is that we do have a kind of choice in the world. the problems are global. security, environment, health, commerce, and call if cooperative solutions. and if we cannot do this threw law, there will be ways and those other ways are a lot worse and we see them every day on the television. so i think there is an important general message and an important learning experience and i think there is a more specific learning experience if you can get out of it even how the world has changed with respect to our institution. >> dalia, jump in as you have questions. i'll put out two.
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so one is when people read your name in connection with the title, a lot of people will immediately jump to your long-running debate with justice scolia about whether and under what circumstances it is appropriate to use foreign law sources as authorities in american judicial opinion. this book is actually about a much broader subject than that. and i would like you to walk us through the connection between that debate and then talk about the four areas that you have identified as sort of ground zero in this conversation in your report from the front. >> let's take the first. it is true and most of the reviews in the united states have said what you have said,
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that they don't even notice -- well, it's very dangerous to read a review of your book. you read a review and earth it's sort of rude or it's complementary. and if it's rude, you think why did i read it. if it was complimentary, you think do they know how really good it is. so there is no payoff in reading reviews. but it is true. now, there were a couple written in europe, one in a magazine called europe and then one in the online version that did get the point which you just said. this is not about a debate with justice scalia. there is a connection. what is the connection? the connection is that there is a political debate i think more than a legal debate about whether the court should in its
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opinions refer to decisions of foreign courts. i learned that when congressman goodlatte and i were in some kind of seminar and he was going on with how we shouldn't do that and i said i guess that's aimed at me. and he said yes. people in public life are usually pretty good at debating. so don't be quite as self-confident as i was at the moment. i said i'll tell you why i do that. i do that often because there are many, many more courts in the world today in countries that have constitution like ours, they have independent judiciaries, they have problems like ours. so if a person with a job like mine has a problem like mine with a document like mine writes, why don't i read it? i don't have to follow it. doesn't bind me. good argument. he said, yeah, read it.
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just don't refer to it in your opinion. so i said, well, look, i said but there are a lot of countries in eastern europe, they're just trying to establish these courts. they're newly established courts. they help produce protections of democracy, human rights. and sometimes they need a little recognition so they can go to their legislatures or publics, they say we are recognized. we don't hold court in the united states supreme court. they understand what we do. they recognize what we do. that helps them a bit. and he said fine. he said write them a letter. what is driving it? well, this is what i think the connection is. i think the reason, this is just my own view, that it's become so salient an issue is because the issue has arisen primarily in cases involving the death penalty and gay rights.
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and i say those are special, particularly the death penalty, because it says in the constitution when we're considering that, it has a prohibition against cruel and unusual punishment. unusual in the united states, unusual in the world? thomas jefferson and madison and hamilton did not say. so there is an argument about that. you start arguing about the death penalty and you will discover emotions rise. i think this might be a spillover there. but regardless, i think there is something deeper. because many, many, many, many other cases, not justice scalia or not anyone in the court denies you have to look, you should look to foreign opinions when you're trying to interpret a treaty for example. there are many other cases such as cases involving the scope or reach of even mundane subjects, antitrust law, securities law, where of course you have to look to what other people do. nobody denies that.
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but what's moving the congressman and why is this so salient politically? my own opinion, because people are concerned that the more we ÷ consult with courts from abroad or institutions from aboard or look to abroad, it will be the same old group of slightly left wing people consulting with each other or more importantly what will happen is a watering down of our american values. i say, ahh, that's what is worrying you. watering down of our american values. that's a good point. i don't deny that problem. but the reason i write this in part to show you what is going on is that i hope by the time you read it, and i hope you do, you will come to the conclusion to preserve our american values is to know what is going on abroad and participate.
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because the major problems are international in scope. and major solutions have to in part at least be international in scope. and if we do not participate and learn, the world will go on without us and we will have less influence than we would otherwise. so work, out the relationships of law and taking into account what goes on elsewhere is part of an effort to preserve what we've come to cherish, which is our own value. and see if you don't agree with me. maybe you will. but that's a major motive and that's where i see the connection. >> can i follow-up? because i had exactly the same reflexive response to the book reviews, was that they were trying to smash it into the smaller argument about citing foreign law. but i think that the other thing that the book reviews were a little bit misleading about is
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the extent to which this is a normative book. and by that i mean this is not you saying we should be immeshed in a conversation with the world and our court needs to be global and bigger in scope. because it seems this is just a purely descriptive book. what you're saying is this is the status quo and it's not as you say because of the nature of the cases we take, it's the nature of the world we live in that we are deeply, deeply engaged in this. and so the extent that there a normative part of the book, i feel as if you're saying given this is the world we live in, this is how we do it. is that fair? >> that is how i do things. if i think probably it's partly style, partly just -- i think that is position that i'm taking in the court is completely correct.
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sometimes i think it's only partly correct. but regardless, i think it's right. really right. and the others are wrong. i'm not going to say how right i am. nobody will believe that. i think you persuade somebody by saying it's this and this and this and if i'm going to be really mean, my own style is to try to write it the way a child of 2 would have to agree. i'm just telling you the facts. that used to be a program with sergeant joe friday. dragnet. that was it. he would say just the facts, just the facts, ma'am. that is what i have tried to do. for example, protecting civil liberties in time of war is not a new problem. but i would like to show you where we are. and to do that, i have to go back and do some history.
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cisero 2,000 years ago, when the cannons roar, the law falls silent. somebody pointed out the romance didn't have cannons. my point still the same. when in time of war the laws fall silent. that was pretty much how american courts acted for a very long time. abraham lincoln after all his secretary of state had a bell on his desk and he called in the british ambassador. i push this bell, i can have anyone i want in new york state thrown into prison. i push it twice, anyone i want in indiana. he said tell me, does the queen of england have such power? of course you can understand lincoln, he was up against a big problem.
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but the court said -- i'm wrong, the courts did say something after the war was over with a couple of exceptions. after the war was over. tens of thousands in prison who weren't combatants. go to world war i and you'll see woodrow wilson doing about the same thing. free speech. go to world war ii, you will see 70,000 american citizens of japanese origin taken from their homes in california and put into camps. for what reason? no good reason. by the time that case came up to the supreme court in 1944, differently from 1942 where people were genuinely worried about invasions of san francisco, nobody was. nobody was worried about an invasion from japan. and when the justice department lawyers look back into the
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rationale for supporting the removal, j. edgar hoover being one of the leading opponents, for what reasons, what evidence? they looked at this and they said there was no evidence. none. i mean, general dewitt said there are 743 signals that were sent offshore to japanese submarines. 1944 department of justice called in the fcc and said let's look at that. they came back two weeks later with a pile like this and said not one. what were those 743 instances? they were all things like buck privates working machineries they didn't know how to work.
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those two lawyers were not signing the brief. and then they worked out a compromise with a footnote that said we don't believe the defense department. and herbert j. wechsler was the one who worked out a compromise and got them to sign the brief. so you could say, well, the supreme court gets the korematsu case. i met him once. he was very feisty, a friend of our next door neighbor in cambridge whose father had been the aclu lawyer in san francisco. used to play poker with my father. and the aclu wouldn't support him in that case at the beginning. he represents korematsu. but he says i'm going to win. i'm an american. there's no evidence. he lost 6-3. so for a while i thought they didn't understand the footnote. and then i read the transcript.
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what's his name who is -- well-known lawyer here was representing japanese american defense league, he pointed out that footnote and said read it. 6-3. and the six, black, douglas, frankfurter, the people on -- they decided brown versus board. the others were murphy dissented. and jackson. and roberts. very interesting. and why? well, i had thought the reason must be this, it must be because this is generally viewed as one of the worst cases in the u.s. report, it must be that the justices in the majority thought, well, somebody has to run this war. roosevelt? or us? and they said we can't. roosevelt has to. okay. we'll uphold it. i thought i had made that up, you know that it seemed like the
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best inference. and two weeks ago, i met a historian who says he got a hold of black's notes from the conference and that's exactly what black said. and it's not in the book because i didn't know it. but it was a logical inference. and so now what happens. i mean, we have that case on the books. during korean war, we had steel seizure. and jackson says no, the president has gone too far. and that's the majority. the majority say he's gone too far. why? maybe they're reacting against korematsu, maybe they're saying we think roosevelt goes too far and we can take that out against truman. i don't know. but that is what they said. then you look to the guantanamo cases and the guantanamo cases say four cases, four detainees, every one of them wins.
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the president loses. congress passes a law saying those detainees who are enemy combatants, and an enemy combatant can be held an enemy combatant during a time of shooting war when you are in the shooting war. and those were the detainees at that time. but congress passed a law saying they can't get to court. that struck down. and the key since they won each of those cases, and they weren't popular people, i mean, bin laden's chauffeur is not a popular person. sandra o'connor writes even in time of war, the constitution does not write to the president a blank check.
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run over traditional civil liberties. it's easy to sign that. it only becomes hard when you ask the obvious next question. very well, what kind of check does it write? and there we are. and it's a long windup for a very short pitch. that long windup you've heard and that short pitch is simply that's where we are now. what kind of check. you want to say no check? many criticize those guantanamo opinions. some saying we interfered with the president. to those i say what do you want, you want korematsu, is that what you want back? no review of any kind? then the civil liberty side says why didn't you write more explaining what they can and cannot do. why are you so elliptical, why is it so narrow. to this i say why didn't we write more? i know why i didn't. because i don't know the answer. that's why. because i don't know the answer more. and so there we are.
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how do you want to solve the next case coming up and isn't it a good idea that maybe we know something about national security before we start getting out there pronouncing on what the right balance is between the national security and the civil liberties. and maybe it's even a good idea since we're not the only ones to face this problem that we learn how other countries are facing the problem, too. how it works out there. empirical experience may help unless you want to withdraw entirely which therein lies korematsu or you want arbitrary decisions. >> i want to put you on relationship between the first section of the book which deals with the national security and civil liberties balance matters and the subsequent
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sections of the book which deal with respectively treaty interpretation and u.s. statutory interpretation and interaction with the rest of the world. so the broad thesis that we can't avoid as a descriptive matter, that we are engaged with the rest of the legal world, is i think overpowering in the second two sections. that, you know, yeah, when you're interpreting treaties, other countries' practices, interpretations of those treaties really matter. and you make a powerful case that our statutory interpretations are pervasively affected now in certain areas by looking overseas and inevitably so. but i read the first third of the book and i said, wait a minute, i could tell that -- you can tell this story and we conventionally have told this
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story without reference to the broad thesis of this book. we've told it as a separation of powers story. president gets too strong, the court has reined him back, the court has gotten more aggressive about doing so as the imperial presidency has become more imperial. and so my question is, why should we think about this first section as part of this story, it doesn't involve foreign law or legal institutions. it doesn't involve -- it involves a much older struggle. the only foreign document really that we end up talking about in these cases is a 100-year-old lease of a plot of land in cuba. and so my question is, does -- is this first section really an example of the thesis or is it a
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graft of a larger -- of a different debate that is the debate of how powerful the president should be in wartime on to a sort of globalization discussion? >> very good question which my publisher asked the editor when i sent him the manuscript. and my response is what i told him and what i hope is there, the last part i talk about what israel does, i talk about what britain does and what other countries do. but what i'd like to appear -- of course it is an old debate and in a sense unresolved debate. the key to that debate is really jackson who says in the steel seizure case if you want to find out what the founders thought about this presidential power, the scope of it, the limitations
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upon it, and he means i think the president, as well, you will discover there are very few indications. like joseph trying to interpret the dreams. so you won't solve it by starting out with the precedent of what hamilton said or what somebody else said. it's just not going to happen. so i want to show the nature of the problem. and i wanted to go into in some depth the steel seizure case. and the reason i wanted to do that is i wanted people not to view it in those abstract terms. a presidential power versus the court. i wanted them to see what the problem was from the point of view of the president and what the problem was from the point of view from the judges. and you catch a sentence here where in conference somebody says -- or in the oral argument
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to jackson, you were attorney general and you said the president has all these kind of powers. and now you're saying he doesn't. that was then. this is now. i was attorney general then. now i'm on the court. but when you get into that, i think, and i hope people would come away with a sense of the importance of knowing the practicalities of the situation. a sense of knowing what is possible to do and what likely consequences there are which you will never know for certain. you may get a glimmer. and that's why i say knowing something about what the national security problem is and today that problem is international. knowing something about what other countries do and that is because maybe you can see from that some things that we might do or might not do or might modify and do.
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i'm leaving it up to the reader to make that connection. i'll bring him up to speed and then say look, here is today's problem which is an international one. and he will -- he'll have to start thinking. so what do we do about this, how do we get the information, and let's figure out how the court might do it better than worse. once you've read that, it's in a sense easier and in a sense harder. you're ready to plunge into the middle of it. we're looking to what goes on abroad all the time. it's obvious that you have to. a thai student up in cornell discovers his textbook is identical in english. sold in bangkok for a much lower price. so he writes to his parents and says send me a few. they send him a lot more than a few.
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he begins to sell them. publisher got annoyed, brought a lawsuit. can they do it? yes or no? it depends on like six technical words in a very technical copyright statute. nobody knows what they mean. so i find a stack of briefs like this. from all over the place. lawyers in asia, lawyers in europe, governments in different countries. i said in this technical case, why are there all these briefs? and i begin to get an answer because one of them tells us copyright today is not simply a question of books or films or music. buy an automobile. software. copyrighted. go into any store you want, you will see labels on products copyrighted. and it says the answer to this case we think, these are retailers saying this, is going to affect $3.2 trillion worth of
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commerce. and to get that answer right, i think you have to know what is going on elsewhere, i.e. how other countries handle copyright, et cetera. or an antitrust case. you know, where a vitamin distributor in ecuador wants to sue a member of a cartel, manufacturer, holland. brings a lawsuit in new york. why new york? maybe he had no vitamins and he was so weak he couldn't get to holland. possible. the other possibility is damages and attorney's fees. does he have the right to do it under the statute? i don't think that you can answer that question properly without knowing how the european cartel authority works and what interpretations will and what interpretations will not
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interfere with their efforts to attain common objective. and they filed briefs. good. that's today's world, and it's right. and it's a legal term called commony which used to mean don't unnecessarily interfere with others. now i think more and more means tries to get the laws of other nations in similar areas to work harmoniously with ours and ours to work harmoniously with them. and there are a lot of cases. security, antitrust, copyright, others where you have to work that out. treaties? we're three times interpreting treaties having to do with abduction of children. that's a tough, tough job for a family judge who is a state court judge who has one of the toughest, toughest jobs in the system, andy ginsburg who had
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that in cambridge said he would tell the people in front of him fighting solve it ourselves because if you can, you'll do a lot better than what i have to do. tough job. do you know who knows least about it? federal judges. supreme court least of all. so why are we trying to solve a case, words that are obscure and difficult and ambiguous, where on one side are groups of people who are absolutely determined to prevent abduction and on the other side groups of people absolutely determined to fight spousal abuse. which often leads to abduction. why are we in this? because it's in a treaty. and why is it in a treaty? because today marriage is more and more a question that crosses frontiers, crosses boundary lines. and there we are. that's the world.
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and there are ways we might be able to do better or less well, et cetera. is that beginning to answer your question? >> i want to ask you about something that is not in your book. and you can just say it's the next book. then ben will ask a question. but i think that you talk about speech a little bit when you talk toward the end of the book about proportionality, but i've always thought of you as someone who thinks really hard about sort of the intersection of free speech and globalization and terrorism. and i remember in 2010 when you were worried about koran burning and you said to george stephanopoulos, maybe the whole world is starting to look like a crowded theater. a lot of purists said, no, the world can't be a crowded theater. but people die in pakistan when we burn korans here and i think that was your point. and i think your point has been and i think you've been out ahead of some of your colleagues thinking about how are we going
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to reinterpret speech when isis is throwing out instructional videos. everybody can get access to. in some ways we're now having this conversation this month. eric posner, people who are serious thinkers are saying we needed to revisit how we protect speech because there is no longer a crowded theater. it's the whole world. i don't know if that inflicts on how you think about the intersection of the law in the world, i don't know if it's something that you feel you can comment on. but that's the chapter that i feel like you thought very hard about and perhaps have not put into words here. >> i did say some things about it. and i've said more about it in opinions. and the one place that i shouldn't have said anything about it was with george stephanopoulos. it really proves don't try to show how clever you are.
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if does not work. i mean, i thought he did ask that question about the man who was burning the koran at that time and i thought, oh, i have such a good answer, i'm going to say of course people have freedom of speech, can't they? but you can't yell fire in a crowded theater. and i thought that's perfect because nobody knows what that means. and i sort of answered the question, no, no, the blogs picked that up and half of them think he hates free speech and the other half thinks he wants to burn everything up. but it was not a good question to answer publicly. it just wasn't. it's too complicated and it is too close to the hearts of many americans. and it should be. so there are problems that i've raised and the questions -- if i say there is a big difference within the court sometimes, i suppose i'm more on the -- some people are more on the side of what i consider to be turning it into absolute rules. this rule and then the sub rule and the other rule over there.
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i don't think that works. in many cases i'm more with frankfurter on this probably that there is a lot of balancing that has to go on. no matter whether you pretend it's a rule or not, you're actually doing a lot of balancing. that's what i put into this book. if you'd like me to add something, cases like this may well come up. the way the court works best in my own opinion is people in the country have a way of dealing with new problems. like say privacy and the internet and all these difficult kinds of problems of change. the notion of traditional privacy. first thing they do is they start to shout at each other. he calls it the clamor, but he means it's okay.
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maybe it's not always polite and it should be. but they start talking about it from every point of view. you get talk at universities, in the newspapers, in magazines, in trade associations, police associations, civil libertarians have a view, and they start debating and then they might try passing laws that perhaps in the form of administrative rulings, perhaps in hearing in local legislatures or in congress and out of those might come rulings that you change because you see it didn't work very well. and they will start moving around and eventually people will write laws and maybe change them and so forth. but when there has been discussion and when there has been debate and when that has eventuated in to a law and then it comes to the court, for us to say is what you've decided within the boundaries, and they're very often broad boundaries, of the document
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which sets frontiers beyond which you cannot go, i think we do a better job answering the question. when you unleash us at the beginning and we have to decide it on -- you say i think we did a less good job. that's not always true, but i prefer approaching a problem when other people have thought about it first. and then i can see more easily what the sides are and as i say, you don't always have the luxury of doing that. but where you can do it, it is i think likely to lead to a better solution. >> so we will start taking audience questions. as you signal me, i will direct the microphone your way. while we do that, i just want to pose one more question myself. what -- as the audience can see, this is a much larger discussion
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than the narrow should we cite foreign law debate. my question is, which parts of the descriptive thesis that you've outlined are common ground between you and your colleagues and which parts are actually disputed? i'm not looking for who thinks what. how much of what you've laid out in this book would other members of the court say, yeah, that's right, that is the new world we face, we pose different answers to those questions, but, yes, justice breyer has accurately described the problem the court faces in the world and to what extent would they say, no, on this point there is no context in the world, there is just u.s. statutory law, there is just the
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constitution and, you know, he's imagining an interconnective web that doesn't in fact or should not in fact affect the way we did our jobs? >> i suspect i can get the greatest unanimity on treaties. because everyone has written that you have to look to other countries to interpret a treaty. and on the questions that we're discussing about business, securities and antitrust, justice scalia wrote the opinions and he usually takes the other view. and i just joined on to what he was saying and maybe added a few things. there wasn't much disagreement about that. he might disagree as to the overall importance of it. i don't know. i'm not sure. i've never had that discussion with him. where you're likely to get the most disagreement is on the civil liberties versus security on the ground, that, well, we
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won't learn much abroad. and i can't prove that we will. it's not booting the question down the road. i'm trying deliberately to evoke conversation. the way we solve things in the legal profession has been traditionally the judges say something, the professors all say, well that's wrong. and that's their job. they can compare it with other things that have been said in the past and they can say this would work better, this would work better, and the lawyers reading the opinions can take what is useful for the case and we will get back in front of us in different form the thought of quite a few people on this kind of issue. and it's at least that kind of discussion that i think is important here. and since i'm out there in the world that is doing it at the court, i thought perhaps it
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would help to provoke that kind of discussion by writing thise ? book. >> so i will say that, you know, when you flip the mirror around, your point in other countries is utterly uncontroversial. so i was also in a frontline situation with respect to this recently. i was in israel and wrote an article comparing u.s. versus israeli military attitudes towards proportionality in targeting. and i almost immediately after publishing the article got a call from the idf legal staff asking me to come talk about this, this exact disparity, because the question is could you -- what could you learn from, you know, american practice in this area, and there was simply no conversation about whether it was appropriate to look at that question or how valuable -- or how valuable it
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would be. so, i mean, i do think when you're -- when you approach the civil liberties wartime question from the point of view of do other countries think our law is worth looking at, there's no doubt that the answer to that question is yes. >> but wait, because let's take what i think is likely to be -- it's just a guess. if you were to go five, ten years into the future would be one of the most important constitutional questions, and that stems from the fact that the professor had his students go out and look across the world how many international organizations are there, international organizations like little bureaucracies created by treaty or by executive agreement or by something else. they used to all just be treaties, you do this, i do that. that's not what they are now. some of them set up the united nations. others set up some other bureaucracy. and how many do you think there are that set up some bureaucracy
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that can, in fact, make rules that rules in practice bind citizens of more than one nation. that sometimes comes as a surprise. how many think there are more than 100? more than 500? more than 1,000? more than 2,000? all right. there are more than 2,000. okay? and we belong to several hundred. i mean, it isn't just the u.n. it's also -- let's try the international blue fin whale commission or what about the international olive oil council, i like that one. and they're all over the place. all over the place. international civil aviation authority. oh, it doesn't bind us. it doesn't? try flying and violating one of its rules. they're all over the place. and we have been burned. meetings of bankers just set all kinds of rules in the united states to which meetings attend members of the s.e.c. staff.
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now, they can come back and they can say, oh, we're now promulgating this proposed rule for your comment, but wait a minute, they really decided that in bern and who was present in bern? the bankers. the public? no. regulators. no. and there are rules and laws all over the place. who probably makes the rules that affect your daily life the most? the s.e.c. or icon? icon is the organization, headquarters in los angeles, some kind of corporation that makes all the rules for the internet. hmm. hmm. hmm. and what is the status of those rules? and how does the public get input? how do you, in fact -- how do you, in fact, square the delegation of authority that's being given to these entities
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with an article one that says the legislative power of the united states shall be in a congress of the united states, not the blue fin oil commission, whatever. you see? similar problem to what arose at the time of the '30s when we had the creation of international -- of agencies. what were those? were they in the constitution? well, if we can't resolve that problem -- it may come up in many different forms, but if the answer you can't do it, how do we solve the world's problems where cooperation is a necessity. and if the answer is do as much as you want, what happens to article one and the constitutional delegation of authority? i mean, there may be ways of working this out. it may be fine. i just sort of reacted. you were saying that they don't have these problems in europe. they don't? they don't? they just had the problem before the constitutional court of germany about the extent to which the eu treaty signed by germany was valid in light of a
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constitution that has certain reserve powers to the states, the lender. and they've had that same question in italy. and they've had that same question in austria and every court has decided it the same way namely that the government could not give all the powers away to the eu. there's always something they can't give. they always decided in the case in front of them that it was all right to give those powers. but nonetheless, one after the another. france, you say no problem. no problem? france just had a state of urgency where it derogated from the strasbourg convention. ah. let's imagine why they did that. perhaps they did not have the great respect for the laws of other nations that you might expect or not expect. but nonetheless, that's what they did. so, it's -- to what ex -- the problem of how you reconcile --
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and i didn't notice in any of the english decisions anyone mentioning how israel dealt with the problem. the israelis are different because they have someone who said everything in the world is always relevant. but it's not a problem, i don't think, that is unique to us. the problem of how, for example, we're going to reconcile the security needs and civil liberties is something not only a lot of people have, but in respect to which a lot of different nations have not yet worked out the system or systems through which they are going to resolve these tensions and difficulties. >> so, we're going to go to questions from the audience. i have a few things to say in advance, please, again, first wait for the microphone. second, please tell us who you are and what organizations you're from, if that's relevant. and number three, you know, justice breyer is a very, very
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gentlemanly man. i am not. there's always somebody in the audience who thinks they're going to get him to say how, you know, how he's going to vote in the blank case that's big this year. don't try it. you're not -- you're not going to fool anybody and i will cut you off with a shocking lack of due process. so, sir? >> steve lachman, i work and study in the city. thanks a lot, ben. i appreciate it. i actually did think about trying to trip up justice breyer. justice breyer, three quick ones. you were recently in france, can you give us your sense on the greater crackdown on civil liberties to an extent pushed out by that legislature? the first question. the second is, what influence has justice goldberg and senator kennedy had on your work on the court? and the third is bush v. gore is on page 280 for anyone who is interested.
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i covered it as a young news producer. i wonder do you hear the protests on either side of the cases that you're on? and thanks. >> as to first what's going on in france, i don't know more than you if you read the newspapers there. i haven't been there for a while. i know they're having these kinds of problems, but i don't have anything specific to comment about it that i haven't already. in respect to the -- which was the second? it was the -- yeah, i would say justice goldberg is very practical. we love justice goldberg. we had two clerks at that time. he was wonderful. he used to take us to lunch, all the clerks love that when the boss takes you to lunch. but he was happiest i would say at the labor department. he was an activist. he liked to get things done. he was a labor secretary for a few hours before he set up a minimum wage committee and an end the discrimination committee
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and do this committee and do that committee. he couldn't do that at the court. it was fine. it was fine. but this was goldberg, he's sitting in his office -- or at home one night and he sees on television there's a terrible snowstorm and they need medicine somewhere and a hospital which they couldn't get, i know what i'm going to do, i know the general who runs ft. meade and he calls him on the phone i have a great idea for you and that's kennedy, too, for you. why don't you take one of your machines and get the medicine there? you'll be on television, save the people. it will be fabulous. and he did. kennedy sort of liked that in a way. the way you compromise. i wrote on a cup, my law clerks gave it to me, the six things i learned from kennedy. first, of course, is the best is the enemy of the good. absolutely. never try for the best. the good is good enough. and the second thing, which
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is -- which i -- which i thought was the way you compromise? what a good idea you have. you sit there and listen. until you hear that person who is totally against you say something, oh, i can get that one. what a good you have. and then when it comes time because it went through, you push that person out on front of the television cameras so that his constituents see he did a good thing and he'll come back and try to help in the future. great. and i learned from him so many things. i mean, so many things. credit? don't try to get all the credit, please. i mean, he's not adverse to getting credit. no politician could be, but credit don't worry about it. it's a weapon. use it to get your end. now, if the thing succeeds, there will be plenty of credit to go around. if it doesn't succeed, who wants the credit? you see?
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and i loved working there. i loved working for arthur goldberg and ted kennedy. that was another thing that kennedy had and goldberg, too, to a degree, but kennedy really had it, you know, we're out there to help. help who? help him. help yourselves. and help people who need help. and do it with a little bit of lightness of tone. don't take yourself too seriously. when i would come in in the morning i just loved to go in there because it's going to be interesting and fun and we may get something accomplished. >> ma'am? >> sharon dove at voice seven moderate. i know that you've got a lot of cases that you could hear. now, we won't talk about one that could be fast tracked, but when you have to decide what cases, do you sit around and say, we've got to do a gay rights case or a civil rights case? will you make those decisions
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not some that are super speedy that have to be expedited but can you give insight to regular people? >> sure. very good question. >> can i add to that question? how does that relate to -- given that your docket is discretionary, you could choose to have more or fewer cases that situate the court in the world or define these parameters. to what extent is that a legitimate consideration that, you know, hey, we want through the aggregate docket to do more work in this situating the court in the world area or we want to stick our head in the sand and do as little as possible? i mean, is there a connection between -- >> no. >> okay. >> the answer -- you'll see, the answer to your question is very good question. i get asked that a lot. i'll come back to that. but the two questions i get the most, first yours, because people generally who aren't connected with the court and so forth what they think is we sit
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around and we say, oh, what fun it would be to decide. or, you know, they have a perverted sense of what's fun. but i think that's what we're doing. and the other, isn't it all really politics, aren't you a politician, junior varsity? as to the first question which you've asked, taft who was president of the united states and then chief justice of the supreme court gave the best answer. he said we are not here to correct errors. everyone who has his case here, and there are probably 8,000 a year that ask us to hear their case. everyone has already had a trial, an appeal, and maybe two or three appeals. there's no need for a fourth appeal. and why would you get it right with the -- you know, there are just too many. they are good judges, they'll get it right. well, then, why are we here? he said, the reason you're here first and foremost is to create a uniform federal law.
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unlike other federal courts, we don't take state laws. most laws in this country are made in states, 95%. family, business, crime, almost everything. we're about made in congress. congress may get you to think that it's the most important, sometimes it is, sometimes it isn't. but anyway, we're only dealing with them. and suppose the lower court judges have come to different conclusions as to the meaning or application of the same words, whether it's in the federal tax statute or whether it's in the constitution. different interpretations, do they need us? yes. the law isn't uniform. now suppose they've come to all the same conclusion. do they need us? why? they're good judges. no need. so, the primary criteria is just what i've told you.
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and that's why i can go through 150 a week. you see, reading the memos the law clerks have written and i can see what's the issue in this case. is there a division on it? not are they right or wrong. now, that's not 100% of the story because if a lower court judge holds a statute of congress unconstitutional we'll probably take it. and if it's some major thing that the country needs a uniform answer to quickly, we'll probably take it. but what i just told you at the beginning is about 95%. and those criteria are pretty much followed. it isn't sitting there -- i don't sit there and say this would be a good one for that. so you got the idea. it's much more mechanical than people think. after i go through my list, my memos 150 of them whatever they are and everybody else does the same on friday we're in our conference by ourselves, anyone of us can put anyone on for discussion and maybe there will be 10 or 12 and we'll go around the table and we'll say briefly
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it starts with the chief and justice scalia and kennedy and thomas and ginsburg and me and alito and sotomayor and kagan. and people will add their two cents worth and a vote is taken. if there are four votes it's taken. if not, it's not. if no one listed it, denied. and if i hear something, i didn't hear before, i can always say hold it next week. and if i want it held next week, i go back and look it up and write a memo. and if i really feel strongly i write a dissent from the denial of cert and i circulate it and you only see -- if you only see the ones that have failed. because i'm trying to convince my colleagues and sometimes they do. and so i think that system works pretty well. by the way, if we make a mistake and we deny a case we should
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have taken, what will happen? question? what? it will come up again. you see? it will come up again. and if it doesn't come up again, i guess the country didn't need us. you see? does that give you a rough outline and that is pretty much how it works. >> [ inaudible ]. >> well, i don't see it that way because i have enough to worry about. does ben's factors sometimes enter into my mind? well, it's conceivable in some marginal way where it's a close case. that's why i talk in terms of probably and never say never, et cetera. >> can i just ask one quick, quick question because it's bugging me. and that is just there's such an anxiety throughout this book, justice breyer, about the knowledge gap and you talked about getting stacks and stacks
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of amicus briefs from foreign countries. that's where you get your knowledge from, right? >> yes, yes. >> and do all of your colleagues have that same sense that's where we're going to learn this stuff, it's going to come from the briefs or is there a growing sense that we better google this because there's a lot of knowledge -- >> sometimes you can google things. it depends on what they are. there are a lot of public things you can google. i wouldn't try to google some special argument that somebody doesn't have, but i want to know something that's a general fact, i might. one of the best things in a patent case one of the lawyers got the idea of doing a diagram of invention that moved and he put it on -- and he did it with the approval of the other lawyer, but they put it onto google and we called it up and i looked at it, oh! so, there are a lot of ways now you get information in front of the judge, and the best thing in the -- typically, it's long been true, in the area of security, is that the lawyers have a trial or a hearing before the judge
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and they have two great questions they always ask. there's an infringement on traditional civil liberties, the lawyer will ask why. why? why are you doing it? what's the need? and now a big area there is going to be suppose the government says we can't tell you. well, can you tell the judge? well, you have to tell us. well, how do we resolve that? there's a big area you can see. but the question why is a very important question. and the second question they'll ask is why not? in other words, if you had to do it, why couldn't you do it this less restrictive way. and the reason i -- well, anyway. and, again, you run into the same information problems and will that be sufficient or will we need more or -- and in a lot of areas traditionally when the government would file a brief saying this is the impact on foreign affairs that's the end of it. harder to say today. whether that should be the end of it.
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just listen to it, give it weight. to what extent. where. when. why, et cetera. it's filled -- i think it's filled with difficulty. and i think that's what i want to communicate. >> yes. >> hi, jordan engle, natural-born citizen. i was trying to think of what areas of law that we could learn the least of from internationally where we're the most distinct. can you address either whatever answer comes to your answer on that or the second amendment which was one of my guesses. >> you know, my first reaction, of course, probably because of the cases we heard this week the law as it is related to american indians. i'm not sure we have learned too much from other countries. and it's very complicated area of law. maybe we have.
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as i say that i'm not certain. on the questions of sovereignty of the reservations and so forth, but we've had questions in that area about indian reservations. tough one. and if you say, well, how did we learn -- abraham lincoln -- we've always learned things from other countries. where did abraham lincoln learn his law? in the cabin, right? in front of the fireplace, right? what was he reading? >> blackstone. >> blackstone, well done. who did blackstone quote all the time? it gets harder. not cicero. it gets harder. who did he quote all the time? what? lord cook. lord cook who made the commercial law of england and my professor, ben kaplan, said that the reason anglo-american judges enjoy a degree of prestige in
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their countries is really because lord cook figured out how to create a set of commercial rules that made england the richest country in the world for many years. and where did lord cook get his information? at least some of it. the edicts of colbert from france. and i even began to try to find at one point -- i found somebody who knew that colbert took a certain amount of his material from the arab scholars in grenada. i thought that would be pretty good if i could pin that one down. but in any case. >> please. >> hi. my name is anna, naturalized citizen. i was wondering you talked about looking at decisions of other courts, and common law is a tradition that's delineated in this country by a constitution, so does the practice of looking at decisions of other courts kind of erode the principle of a
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nationalized tradition of common law and do you see that eroding in the future and giving way to a different type of law? >> well, that's i think what some people are worried about and i don't think it has to erode. after all, we've had a system for many, many years where people have looked at the laws of many different states when they work out commercial law. and even without the united states supreme court, in areas of state commercial law, they look to each other's laws. and they were able to create a uniform commercial code. partly with the aid of the uniform -- the uniform code commissioners. there are many ways of trying to create a uniform law where that's necessary. and part of it involves looking to each other, and we wouldn't say that the uniform commercial code is some unfortunate development. i think we'd say it's a very fortunate development and to what extent did it change the
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law of utah? i don't really know. but, i mean, many ways of looking to these things. and i'm not suggesting one entirely. and what i want to show, and i stop there, is that i don't think engaging in this activity is going to undermine basic american values. i think by and large it will help preserve them. and most of all, it will be the perhaps one practical way to increase the likelihood that the great problems are improved in their solution through a rule of law itself, which is the fifth amendment, the 14th amendment, that then which there is no more basic part of american law. >> but you go one step further in the book. sometimes subtextually and sometimes quite explicitly, which is that you argue that given a statutory regime that
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could reasonably be interpreted in way "x" or way "y," there is something desirable about choosing a statutory interpretation that makes the international system not work worse or work better, that tends to harmonize american law with other countries' law and tends to respect other countries' sovereignty over matters that, you know, and my i guess that sounds all correct to me. and yet i can imagine the argument in response that says, wait a minute, when did it become a canon of statutory interpretation to make other countries' laws work better. and i'm just -- i'm interested in how you respond to the idea that it really isn't the job of
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the american legal system to improve the global functioning of law elsewhere. >> well, the examples i give -- >> which are really startling examples, by the way. >> i didn't want to give examples that proved the contrary. that is quite true because i think maybe i have given one that does. but you can't just pick your friends. but the anti-trust -- >> right. >> -- securities, copyright -- >> and ats. >> that's the one that's more controversial. the -- you say when did it happen that we instead of just trying, as in timberlane interestingly enough, an old anti-trust case that used to be -- if there are any anti-trust lawyers here, it's a small group. administrative lawyers. i used to belong to that group,
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we used to say we're a small group but we love it. the fact is, we have a very strong anti-trust policy. we certainly always had when i was teaching it before and worked in the department. very important part of american law. and to allow this anti-trust principle of, say, preventing agreements and restraint of trade to develop further in a world of commerce that is international, i don't argue it, i assume it. it's very much in our interests. and similarly, anti-fraud laws in the securities area that take into account the fact that australia has a slightly different system aimed at the same thing to prevent its shareholders to get those to work in common is to me a way of strengthening our own law in an international world and works better.
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so, i think your question when did this all change, ah, i don't know. but not too long ago. because you can find cases where the only meaning attached to the word "comedy" is the meaning o©' don't step on somebody else's toes where it doesn't have the idea of harmonization and it's used far and few between. look what's happened. look what's happened. and i'm saying probably that will work out for the better for us because we work in cooperation in trying to get these policies accomplished through many different enforcement agencies. that's good. that's fine. that's part of what law itself is about. if you see law itself as i do as simply one human mechanism designed to help people who live together in societies function more effectively, productively and fairly.
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that's hart and sachs and i never went further. but that's what it's about. >> talk about ats now. >> ats is more controversial. ats is -- the alien tort statue. >> for those who don't know. >> dolly artiga shows up in the united states in the 1970s from paraguay and some in paraguay tortured her brother to death. and she also finds a statute that had hardly been used for 180 years. the alien tort statute that says that an alien can sue in a federal district court for damages in tort for a violation of the law of nations. what's that about? probably that was in part about pirates. i mean, you found a pirate, you hanged him. didn't matter where he came from. and if when you're hanging him upside down coins fall out, give them to his victims.
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and so how do we apply this statute now? who are today's pirates? and the court said she can bring her suit for torture and she went back even though she didn't collect the money because he was broke, but she still went back and she said to paraguay i came to the united states trying to look that torturer in the eye and i came away with so much more. well, other people began to follow that statute, and there were a lot of them. and now the courts begin to have to answer these questions. who are today's pirates? and what happens if the country involved doesn't want you to get their pirates? for example, south africa. who said we don't want judges in new york to start giving damages against companies doing business here. we have our own method of dealing with apartheid, it's called truth in reconciliation, so stay out of it. and to what extent does the
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judge give weight to that? and how do we have a rule of decision that will, in fact, be a rule that could be used in other countries even if they don't, but maybe the international criminal court's looking for rules. and you don't want a rule that everybody trying it differently is going to get all mixed up, and it will happen as we always think that everybody in other countries is going to go put henry kissinger in jail or something. that's not the way it's supposed to work out and there's no supreme court of the world in order to interpret this so judges in our court or other american courts in applying this are going to have to think about how to universalize the interpretation or principle that they're using. now, here some people think we just shouldn't get into that business. forget it, good-bye, dolly artiga. that isn't what the court said, maybe it came close. and there are other people who think you can work out ways of
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doing this, and there's where there is a disagreement. >> here in the front. no, no, no, sorry. not that far front. i meant the front of the people with their hands raised. >> justice breyer, is there anything that came out of the obama -- i'm a health care consultant. is there anything that came out of the obamacare federal case that would prevent the federal government from taking more responsibilities particularly relative to directing patients to where they should get procedures done? >> the truthful answer is i don't know. >> it's a little beyond the scope of today's discussion. right in back. >> elliott shapiro from the cato institute. justice breyer, i'm wondering what you think the advent of populism of both the left and the right both america and abroad has on the story you're talking about with globalization and the law? is it that it's irrelevant
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because this is a discussion within and between elites at least until president trump or sanders start appointing judges, or is there some infiltration in that regard? >> it's a discussion about judges and law. and so what is the relevance to this discussion about judges and law? well, i thought the best comment for at least last few years until i get shown it was wrong, paul froin years ago in talking -- great expert on the supreme court and really talking about the new deal supreme court and the changes that they made. he said the court does not shift with the wind. it does not shade with the weather. but the climate, the long-run climate, hmm, that may have an impact. i think that's pretty good. because over the long run different judges are named.
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that doesn't mean the judges are all deciding things on the basis of politics, because a judge is going to be named by a president, who really does think that the law is what that president thinks? well, let's not be too specific, because if you think that the president's going to appoint a person who is going to agree with him on everything, that president is in for a big disappointment. teddy roosevelt -- teddy roosevelt appointed oliver wendell holmes. within six months holmes had decided a dissent in the northern securities case an important political case at that time and a roosevelt said i could carve a judge with more backbone out of a banana. but if you're talking about very general things, such as what law's about or what the
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constitution is about or how these principles in the constitution relate to life in america, what the country is about and how these old perhaps long endurable principles apply to the world that's changing. a president may be luckier in getting somebody who has agreement with him on many of those basic jurisprudence points. even there he might be mistaken. but that's the kind of thing. when i came to the court i thought since i had been in federal court in massachusetts, i had had a lot of disagreements. san francisco isn't free of disagreements where i grew up. but i've never seen disagreements like this. my god. and i thought for a while, you know, everybody should agree with me. who is so right. but i soon thought that's not so. it's a big country. there are 320 million people just about and they think a lot
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of different things. and it's not so terrible that you have people of different basic philosophies, i'd say, which show up every so often. not all that often. 20% are 5-4 and about half of those it's the usual suspects. but still, it's not so terrible. in a big country of people with lots of different views to have judges that have somewhat basic different basic jurisprudence approaches. so there we are. it might sometimes have some effect but not except over a long term. >> justice breyer, it's on i guess, my name is charles sullivan and i'm with the organization keer. many years ago we were involved with the u.s. sentencing commission when you were judge wilkins started out and haven't talked to you since then really.
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i chair or direct an international prison reform organization, and i also read your book. and there were three i think plessey versus ferguson, the dred scott decision and the japanese decision that you talked about were the three worst decisions that supreme court has made over the years. and i know you're not open to other nominations, but we're seeing in the prison reform movement the results of kansas versus hendricks, or hendricks versus kansas where we have a civil commitment for people that finished their criminal sentence. we have a situation in minnesota where no one in 20 years has ever been released out of the 700 there civilly committed. >> we need to bring this around to a question please. >> the question i have is i don't think there was any international background to that case.
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it seemed like it was unique, that really no one knew what to do because a person who was convicted of a sex offense said that he would be a danger if he was released. so we've got to come up with something. >> well, there are a lot of different areas. i mean, i'm sure that -- look, in every decision it's split which is at least half of them, about half of them there's somebody who thinks it's totally wrong. i mean, not everybody can be right. and the -- you just have a system where you follow the majority. there are a lot of problems in the criminal justice system. i'm not going to disagree with you about that one. and i've written some things years ago about the sentencing guidelines which overall have made some improvements and i'm afraid perhaps fewer than i'd hoped. and that's a long story. i think we're in the process of maybe seeing changes being made. you would know better than i. >> are there other areas of the
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law -- >> i didn't think it had much to do with international, i agree with him. >> -- where we should be looking to -- you know, one of the questioners' comments is that, you know, court decided that case with no sense of what other countries do with long-term commitments. >> i'm not just -- i'm not arguing here. i'm trying to get examples here. and i think there would be fewer than 20%, maybe fewer than 15% of the cases in a given year where it seems pretty clear that you need -- >> need a sense of -- >> -- need a sense of what's going on elsewhere and there might be many other cases where it would be helpful, i'm not saying it's not. the lawyers will point out where they are and sometimes they will be and sometimes they won't. >> we have time for one more question from the floor and then i'm going to ask dolly to pose the last question. this gentleman way over by the side whom i can't see.
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>> thank you, my name is joseph i'm a student across the street. to get the phrasing right. do you think that the federalism revolution of the rehnquist court era has now entered a phase where liberals should favor blue state federalism as the focus shifts from state sovereign immunity to other aspects of the commerce clause or enhancing state power to experiment with policy innovation serves to advance a progressive agenda in areas such as state labor, environmental and health? >> i'm not sure what that -- >> the only comment i can make is just my own personal reading, i love this years ago because i like irony to a certain degree, and this is irony in respect to liberals liking one constitutional kind of approach or provision and conservatives, the other. i happened to read in the same period of time a book by a man
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called ebel which was very, very interesting, the history of the army mccarthy hearings. and he was a young lawyer attached to fred seton who before he became eisenhower's secretary of the interior was secretary of the army and they moved all the files of the people mccarthy was trying to investigate over to the white house. why? so that mccarthy couldn't subpoena them. and at that time all the liberals thought presidential privilege is the best thing we've ever heard of! and i happened to be reading it at a time where nixon was not going to give things to the committees over the senate on the same kind of grounds. the presidential privilege. and surprise, surprise, the liberals seemed to think presidential privilege was the worst thing they've ever heard of in their life. so, it's always hard to line up exactly with a political philosophy how the legal principle is going to sort out and whether there will be for more of it or less of it and you're suggesting changes that
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may mean some shift in some political directions, and i'm not going to say anything about it. because i really don't know. >> finish us up. >> i want to circle back what i think was undergirding ben's question to you when he was talking about going to israel and having it sort of be a given that what america does is relevant to other courts. because i -- that flies a little bit in the face of what we hear which is that we have this sort of waning influence in the world, that other courts cite us less often than they used to and they are more interested in south africa and the canadian constitution. so, i know it's a part of your thesis that we want to be in this conversation. but is part of what animated the book the feeling that we're sliding out of an international conversation or is that overstating it? in other words, are you -- >> no, it's not part of the book. >> okay. >> israel is special because barack thinks you should support all kind of things that are relevant and that's how they developed there.
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it isn't true necessarily in other countries. whether we're cited more or cited less by some other country is up to them. it's not up to us. that's not my job. my job is not to be popular. the one thing you learn in my job is don't try to be popular. i mean, that's not the point. the satisfaction you're going to get out of it, maybe you will be the only one who has that satisfaction, you try to get the thing decided correctly as best you can. and i think that knowing more in these areas, in certain areas, about what goes on, will help me decide this case better as a matter of american law. and whether that has other things attached to it and people cite us more or cite us less, that's up to them. that's fine. >> outstanding. >> i know it would make me popular to keep this going, but i'm not going to try to be popular, i'm going to fulfill my obligation to end this on time. please join me in thanking both of our guests justice breyer and
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dolly lipowitz. [ applause ] wednesday on c-span our road
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to the white house coverage continues. we begin with the campaign rally with senator ted cruz in des moines, iowa. that's live at 7:00 p.m. eastern. then carli fiorina speaking to voters at a steak house in iowa live at 8:30 p.m. eastern. we have main engine start. four, three, two, one. and liftoff! liftoff of the 25th space shuttle mission and it has cleared the tower. >> every weekend on american history tv we feature programs that tell the american story. some of the highlights for this weekend include saturday morning at 11:15 eastern, author and new york state supreme court judge dianne kiesel discusses the life and accomplishments of dorothy ferraby. at 10:00 eastern on real america, 30 years ago this week the space shuttle "challenger" exploded shortly after liftoff,
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killing all seven crew members. watch president reagan's address to the nation about the explosion and a 1986 nasa video report detailing the accident's causes. >> today is a day for mourning and remembering. nancy and i are -- to the court about the tragedy of the shuttle "challenger." we share this pain with all the people much our country. this is truly a national loss. >> sunday morning at 10:00 on road to the white house rewind, a look at the iowa caucuses including howard dean's 2004 speech featuring the dean scream. and a conference on the history of the iowa caucuses, whose speakers include tim craft, who was the iowa caucus campaign manager for jimmy carter in 1976. also two panels with former campaign managers and political reporters. and at 8:00, journalist paul brandit on his book under the roof, the white house and the presidency. 21 presidents, 21 rooms, 21
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inside stories. he explains how presidents from george washington to barack obama have left their imprint on the executive mansion. >> here's what i find interesting about the theater. if you look at records of what the presidents have watched over the years, their tastes are obviously eclectic and everything and they reflect the tastes of the presidents, they reflect the times in which they lived and everything but there's one movie, this is a quiz section of the evening here, there's one movie that really resonated with more presidents than any other one. can you guess what that might be?
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reverend pinkney, one of the people killed in the june shooting in charleston, south carolina. this is about two hours. hey, where's the love? all right. where's the love. that's a little better. happy king day. happy king day. oh, come on now. remember when we used to have to sneak and have king day? it wasn't really official so you would sneak and not show up the next day you go to work, they say where was you yesterday, knowing we all took the day off for king day. let me hear you say it. happy king day! that's a lot better. that's a lot better. it's my pleasure and privilege to be able to bring up reverend al sharpton, who is the founder of this glorious band but before i do, i would just like to take a note of personal privilege, because we always talk about
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reverend hicks that tomorrow is not promised and for me, it was almost not promised, because i was almost not here today. i had a very serious surgery last year that almost took my life, left me paralyzed on my left side and i had one call to make and i called reverend al sharpton who prayed for me, and i want you to know, reverend, all that paralysis, when they say you might not survive and i couldn't lift my left hand for those two weeks, i want you to know the healing you gave me, they ought to look right now. thank you so much for the prayer that you gave. this man looks out for the least, the lost, the left out, the disinherited, the disenfranchised, the locked up, the let down, the turned out, the shut-in. he's been doing it for years. ladies and gentlemen, let's bring up the head of or wondrous band, the one and only, the reverend al sharpton.
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>> thank you. thank you. thank you very much. thank you, nate miles. i grew up in the church of god in christ. reverend jones and reverend hicks baptized me baptist so we believe in healing. if trump wins i might have to go back in the healing business. let me welcome all of you to the king day breakfast for national action network in washington. this what is we do annually. but this is the 30th anniversary of it being an official holiday. and we must remember that even the holiday was not automatic.

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