tv Charlie Rose Bloomberg August 23, 2017 10:00pm-11:00pm EDT
♪ >> from our studios in new york city, this is "charlie rose." charlie: welcome to the program. it is the end of summer and as we prepare for the next season, we bring you some of our favorite conversations on charlie rose. justice breyer: the most i can do is my best. i think that all of us, since i have been there, every one of us has really tried to do his or her best. you're putting out. and as you get older, it becomes a privilege. more and more. you have a job you can go in everyday and you just have to do your best. and then you say over time, you
begin to think, i've seen these cases before. be careful. you haven't really. they are not quite the same as what you saw before. charlie: stephen breyer for the hour, next. ♪ stephen breyer has served on the supreme court for more than two decades. president bill clinton nominated him in 1994. he was first named to the bench by president jimmy carter in 1980. he served 14 years as a judge, and later as chief judge for the court of appeals for the first circuit in boston. he is known for his love of literature and architecture. his third book was published last year. it explores the role of foreign and international law in american judicial decisions. i spoke with justice breyer in new york city, and here is that conversation. i begin with this book called "the court and the world."
"the economist" says it is a tour de force analysis. we were talking backstage, and somehow this book, which is now in paperback, and you and i have talked about this, it is getting a resurgence. justice breyer: i hope so. charlie: well, you know it is. [laughter] charlie: why is that? speculate about that. is it because of our times? justice breyer: i think it is not just here, but in europe and other places in the world, the are a lot of people who see a turning inwards, not just this country, but in many places, and they are worried about that. they are worried because they see problems that face us never -- that require us to turn outwards. it might help -- it might -- to familiarize people with the kinds of problems that we have in one small institution, an important institution, but a
small part of america. but what are the problems in front of us that require us to look beyond our own shores for a solution? when you see those, you think, oh, we will have to, and i think that is reassuring, because if we will have to, that's like someone said about economics. i am not a great economist. he said in economics, that which has to happen, does happen. charlie: does happen, interesting talking about the globalization and anti-globalization movement we saw in europe, coming from people in the middle east and migration, and some sense of people feeling that somehow there is a tide of history that is against them. justice breyer: i wouldn't think that necessarily so because when i talk to people at stanford in the audience, or berkeley, or
10th-graders or talked to my grandson's school, i will say to them, i would like you to think -- i know fifth-graders go to sleep -- but law is one way of solving problems, trying to. you want the alternative? turn on the television set, and you will see what happens in countries that have other methods. charlie: but there is a wave of populism feeding on this sense of somehow the forces of globalization have affected the way their future, their economic insecurity, and the way they live. we saw it in the brexit vote. we see it in some of the political discussions taking place in america. we see it in political choices being made in europe. steven: -- justice breyer: if they are, at least, and if you are interested enough in the court and will take the time to read a few
pages, you will see a long period of time when the watchword was where you have needs for security, you have security, president, congress, got to keep us secure. they are the ones with the authority under the constitution, but we have the authority with respect to civil rights. what happens when we clash? there were many hundreds of years, perhaps thousands, when the key to what the court should do -- you want one word what they thought the court should do, nothing. cicero said when the cannons roar, the laws fall silent. actually, he did not say that. someone pointed that out to me that the romans did not have cannons. [laughter] justice breyer: that ruined the whole thing, but nonetheless, you get the point. now, go back and look. this is a long wind up in a short pitch.
the windup is adams is our hero, a great man. charlie: john adams? justice breyer: john adams put people in prison for what they say. abraham lincoln put 18,000 people in prison. charlie: he wanted to win a war. justice breyer: correct. but they had no trial, no nothing, and they were not soldiers. you had wilson, woodrow wilson, great man, continuously stopping what people said, and you had in world war ii, 70,000 citizens of japanese origin put in camps. charlie: so what is your point? [laughter] justice breyer: my point is -- why does he want to know the point? such an interesting story. do you always have to have a point? the point is that in guantanamo, the court turned. the court said -- sandra o'connor -- the constitution does not write a blank check to
the president, not even in time of war. four detainees won the four cases, and the president lost. that's the point. the point is what is in your mind right now. what is the question in your mind when i say that? if it does not write a blank check, what kind of check does it write? that will be our job. quite possibly. terrorism is international. countries all over the world are democracies, too -- charlie: so the court ought to be influenced by all information -- justice breyer: not be influenced, but at least have information. charlie: aware of the information around the world. justice scalia differed with you on this. he said so to me. justice breyer: the cases that he was most likely to say that in are cases that involved the death penalty, they involved gay rights. we were on opposite sides.
my wife was a good psychologist, clinical psychologist. she says displacement. you are angry at a, you blame b. he might not have liked the result in those cases. es he blame? international law. what does that have to do with it? that is poor b getting blamed for a. i feel a lot of criticism comes out of that, but that is pop psychology. who wrote the opinions which paid tremendous attention to briefs filed by lawyers all over the world, cases where there is a plaintiff in uruguay, a defendant in holland, and antitrust case? we've got to decide how american law applies, or how does american law apply securities law when you have a plaintiff in australia -- he wrote the opinion, is my point. i joined his opinion. he certainly looked to foreign law. what i am trying to show here is that there are many cases in
many different fields. you can't avoid it. if you are going to decide that case correctly, i am going to give you case after case. you have to look beyond our shores. charlie: i want to come back to justice scalia and i want to come back to your opinion. is the best opinion you ever wrote a dissenting opinion or a majority opinion or a concurring opinion? justice breyer: i don't think that's up for me to say. [laughter] justice breyer: i would say i am not necessarily -- i don't know. i have written some majorities that i was very pleased with. one of them is in this case involving a student from thailand who goes to cornell, and he discovers the same textbooks in bangkok, half the price. says to his parents, send me a few. they sent more than a few.
he began to sell them. publishers got annoyed. can he do it or not? lawsuit in our court. the answer lies in a few obscure words in the statute that no one can really understand very well. we received briefs from all over the world. i ended up writing the opinion. i felt i need to know what goes on in different parts of the world. the student eventually won, but that's not the point. the point is to do a decent job in that case. charlie: you have to know. justice breyer: you have to know what goes on elsewhere. that is a majority. dissent is probably in the affirmative action case. i wrote the affirmative-action case. i believe that affirmative action is constitutional. i was in dissent. i felt strongly about it, and i spent considerable time trying to show the constitution does not prohibit affirmative action, positive discrimination. charlie: let me ask you this. did you ever, ever, did your wife ever, ever think your name would be in the same sentence with kim kardashian?
[laughter] justice breyer: this comes about through teaching. you know, when you are teaching, what you do is you want to get example that the class is going to remember. sometimes when i am asking a question -- not everyone thinks this way, thank goodness -- but it is pretty stream of consciousness. i have a question i want to ask, i am really curious. i want the lawyer to focus on it. i have gotten into the habit of using examples that are perhaps overly done. charlie: please explain what you did. justice breyer: i don't want to discuss an ongoing case. [laughter] justice breyer: i have said a lot worse things than that, and it's because i want an illustrative point. i don't want to watch every two seconds what i am saying, but i want the lawyer to get the point that i am making so i get an answer out of that lawyer.
interestingly enough, and not surprisingly in an oral argument, as in briefs, lawyers are trying to win their cases for their clients. but from our point of view, and it sometimes happens, more often than you would think, the lawyers are there to help us. we are not saying who was the best lawyer. we are not saying who is the best client. the problem is interpreting some words in the constitution or in a statute and having an interpretation that will work well and be consistent with the law. it will be the law for 319 million or 320 million people who are not in that courtroom. sometimes in an oral argument, people sort of get going, and the lawyers say, "what do you know about this bankruptcy case? what is your experience? you are a bankruptcy lawyer. tell me what will happen if you do that." and you will get a conversation going.
and it is, right on the merits, not people taking poses or positions, you can make a lot of progress. and much of what we do is to try to get that situation going. charlie: before an oral argument, you have law clerks and you study the briefs. you think about the questions you have coming out of the briefs. does the oral argument have a significant influence as to where you end up? justice breyer: yes, i think it does. the law clerks think it does not. interestingly enough, you put it exactly the way i would. does it affect the way you think about the case? if you are looking for an absolute switch from x to not x, that happens, but not too often. if you are looking for, how you think about the case, what are the words going to be, what is the main point, and which points do you deal with and which points are not that significant? that makes a huge difference to
you see -- justice breyer: i think that, the first three or four years, david souter said this. charlie: justice souter said this. justice breyer: he said what i'm about to say, which is that you are sort of frightened. you are worried. how do i know? i mean, where can people go if i am wrong. you are worried you are going to make a mistake. i thought i could do this, but how do when you really can't? -- can? after a while, you begin to think, for better or for worse, here i am, and the most i can do is my best. what david also said, which i think is absolutely right, you are always on duty. so be careful. i skirted the line, i think, but be careful, because you are always on duty. then, you think, well, the most
i can do is my best, and i think all of us, since i have been there, every one of us has tried to do his or her best. i mean, you are putting out and as you get older, that becomes a privilege more and more. you have a job where you can go in every day, and you just have to do your best and then you say over time, you begin to think, well, i have seen these cases before. be careful, you have not really. they are not quite the same as what you saw before, and then again, over time, this goes back to the question that you wrote, that you said -- what is the best opinion? what is the worst opinion? it is not a contest. it's not a game. it's not a contest. you do the best you can, and it 's going to be up to other people sometime in the future to know whether the views you took of the constitution or the views
that you took of statutes, or the way you approach the case, whether that was the best way to do it. you talk about justice scalia. indeed, one of the best discussions i had with him took place in front of 2000 students in lubbock, texas. they probably had not seen a supreme court justice. we went on for about an hour, and we tried to describe what we did. we tried to explain we do have different points of view to some degree, not as much as people think, but to some degree. i went away thinking -- and he too at the end, it is not so important whether they agree more with him. he is afraid i would be too subjective, and i would tend to substitute what i think is good for what the law requires. i would think, i try not to do that, but more importantly i would say, you have a method i think is too rigid. i think the way sometimes you
approach -- i don't say it in a rude way, but he knows that's what i think. not workitution will as well for the people who have to live under it now. and we talked about that. whether they agreed with me more or more with him, i think the 2000 students left feeling better about the institution we are in, because they saw we were friends. they saw we proceed on the basis of reason and argument and thought, and try to understand each other's point of view. and try to understand each other's point of view. it's not so terrible in this country that people have different points of view on the supreme court. it's a big country. charlie: do the justices of the supreme court agree much more, and rule 9-0 more often than we imagine? in other words, is there more agreement -- let's say you agree
70% of the time -- justice breyer: 50%. it is 50% we are unanimous. charlie: 50% of the time, the nine justices agree. justice breyer: yes. and probably it is 5-4 is about 20%. and it is not always the same five and same four. so i will say to university audience, law school audience, and they will say -- that is our biggest problem. people think we are junior league politicians. that is what people really think. charlie: do they really? justice breyer: yeah, we are junior league politicians, that's what we think. charlie: amateur politicians. justice breyer: i would say junior league, because -- [laughter] justice breyer: look, you know who tried to be a politician is roger cheney and the dred scott case. he thought that perhaps by reaching a decision saying a black person was not a person -- that is roughly what the hell
-- held, unbelievable -- but he thought he would help prevent the civil war. giving him some credit, trying to. if anything, he helped bring about the civil war, because benjamin curtis wrote a great dissent showing -- i think at that time, his decision was wrong. not using hindsight, but really wrong. abraham lincoln picked it up. he read the decision and said it was a shocker, and used the dissent in his speech at cooper union, which was the speech that propelled him to the head of the republican party and helped get him the nomination, and then all followed. he was really an abolitionist at heart. they knew that in the south. and the civil war followed. cheney'st was justice idea, he was wrong. justices are not politicians. they may have some exposure to politics, but they are not even junior league, and i can explain
that later if you wish. [laughter] charlie: i do. but i just talked last week in the chambers at the supreme court to justice ruth bader ginsburg. she said to me that she would like to see more of a conversation between the court and the congress. justice breyer: it is hard to get a conversation going. charlie: but you understand what she means? justice breyer: absolutely, absolutely because sometimes you can find something in a statute -- say why did you -- she has written -- charlie: or had them think about in a dissent, which she had been -- the complexion of the congress had changed, but the newcomers, i think this was maybe -- i forgot the case. congress then changed the law because of what she pointed out or someone had pointed out in a
dissent because there was a dialogue. justice breyer: i think that is good, but it is not easy to bring about. i think -- i worked in congress for a while on the staff. charlie: the judiciary committee with ted kennedy? justice breyer: yes. i would guess they are on different time frames. see, we take things slowly. the virtue of we are not elected. the virtue of having nine unelected people -- hamilton says this in federalist 78 -- they can take the time to think. they are not particularly powerful. he thought that, and maybe that is basically true, comparatively speaking. but over a period of time, we will think about something, weeks, months. you are a member of congress, you don't have a second. there is a constituent in front of you, on the phone, e-mailing you, or telling you something, and that constituent is very surprised if you can't remember his or her name and every single
thing he or she has is a problem and have not done anything about it yet. after all, you received the e-mail yesterday, why have you not acted now? it is a very hard job. and the time frame is different. the court used to have its offices in congress. what he said when they built this beautiful palace, he said, i don't really want to move. no one will ever hear of us again. that turned out not to be quite so right. but he could talk to members of congress daily over lunch, and he liked that. brandeis said, i don't want to move. it will go to their heads. he was right about that. i mean, so it's something absolutely aspirational. it would work much better if people try different methods of bringing it about.
i am simply pointing out that it is harder to bring about than you think, but a very good idea. a correct idea. charlie: it has been said to me, there may be an opportunity for the republicans or those who run the senate. the republicans will still being thewn -- control after 20th, to vote on judge garland. my question, what is the impact of 4-4? justice breyer: we hear about 75 cases. 70 to 80. you seee in the range, -- 4-4, then it's not heard. charlie: that is my point. it goes back to the court of appeals. you want to know
the impact of the 4-4? there were four cases out of about 72, 73, something like that. i would say two of the cases are the cases that would be written about in the newspaper in bright letters, and two would not have been. charlie: and two might have been decided differently if it were -- justice breyer: then it would not be 4-4. [laughter] charlie: i know, but my point -- knowing those cases, if it had been 5-4, it might have gone against whatever the opinion was in the court of appeals. justice breyer: it might have or it might not have. charlie: but you know. i bet you could predict. justice breyer: what you want me to say, i suspect, is does the personality of a judge make a difference? or his judicial view?
charlie: i believe it does. justice breyer: well, it does to some degree. it depends on the case. most judges, just about when they have -- charlie: suppose i asked this question -- what do you think -- is it a combination of things that have given you what might be considered your essential judicial outlook? was it your education? was it the environment of growing up? was it some combination of this? i mean, how did you end up where you are in your own -- justice breyer: that is a very good question, and i think it is the crucial question, because when you look at the 5-4 cases, you are not going to explain them on the basis of politics. when i worked for's editor kennedy, politics meant are you
a republican or democrat? no. or is it really ideology? are you a marxist, leninist, troublemaker, or adam smith free enterprisor? no. it is, perhaps, liberty and the 14th amendment. the freedom of speech. do i think it makes a difference that i want to level high school in san francisco, that i grew up in the 1950's? that i was at stanford? and of course, that eventually, at a very abstract level, creates views that you have about your profession, about the country, about what america is like. what is law about as it applies? i could not write that down in 500 words. but nonetheless, every person at
a certain age is shaped by his background and experiences, and has these sort of general views about his profession, and i think that explains a lot. when i went down there, i lived in san francisco for many years. i had seen a lot of disagreement, but not quite as much as i had seen in some of the cases. at first, i thought it is not awful. they don't have to agree with me. after a while, i began to think more maturely that it is a big country, there are 320 million people. they think a lot of different things, and it is not such a terrible thing if, on the supreme court, there are people who have somewhat different jurist credential outlooks. scalia probably likes rules more than i do. if i'm using clarity to get a clear rule, i probably have a view that life is a mess.
charlie: i assume you went to see "hamilton." justice breyer: i thought it was great. my wife, we got tickets. that is an amazing admission, because i have to add that we got tickets before was so well known. charlie: at the public theater, or before it when broadway? justice breyer: we saw it here, but it was not quite the price it is at the moment. [laughter] justice breyer: but it was great. charlie: great because it was simply a well-crafted musical, or great because -- justice breyer: on every score. would you believe that i would go to this musical with rap music? it seems a little young for me. and then, i go there, and hamilton is a great biography, but much of the cast is
minority. they are african-american. do you think it will be slightly politically correct? no, it is not. and what you see is not necessarily the constitution at that moment. there were slaves. women did not vote. but the potential was there, as this document would be applied to the country, and hamilton saw that. and probably many of the founders did. it was an experiment. it was an experiment that later had its failures, and it later had successes. to live with that experiment and to realize you are still part of it, as everyone is, and to see where they are coming from, and see where the potential is, and of course, in addition to all of that, it was just terrific entertainment. how can you miss it?
charlie: where would you be on the conflict between jefferson and hamilton? justice breyer: historians at the moment tend to favor hamilton. charlie: of course they do. [laughter] justice breyer: and when jefferson came -- i mean, we are creatures of the historians. it was very funny, the jefferson character. the second funniest was george iii. charlie: that's true. justice breyer: i probably, from what i have read, would be more of the hamilton side. charlie: you have often talked of your admiration for books. justice breyer: i think i talked about it to a french interviewer. charlie: what books have influenced you? justice breyer: if a high school or college student asked me if i could read one book, what would i read? "education." i think it is a terrific book. he lived from 1838 into the 19th century. he lived at a time where maybe people bought the country would be an aristocracy, and there would be elections, and the people would rule, but not too
much. and he lived through a period where he looked at the presidency and congress. and there were cartoons about congress, the big money bags. but they did not bribe people. he lived through a lot. he goes, my goodness. and the south in the civil war, they were a bunch of ruffians. he says they have these slaves. look at his reactions, they are very interesting. finally, he says this is just terrible. i go to the white house, oh my god, my goodness, look at congress. they are just on the payroll, oh my goodness. and then he says "yes, right."
so what do you suggest? he says, "we have democracy, and i will just have to work because there is not an alternative." and then he turns to other people and says we have to make this work. it is not overall philosophy, but i agree with that. it is the description of the year after year after year, and you come away feeling, yes, this is an incredible country, and we are making it work somehow. why not? charlie: frequently in this political debate, people will say in the end, here is the reason that we have to vote a republican or b democrat, because the next president of the united states will be able to have a dramatic influence on
the supreme court, and that is what will have influence over decades. justice breyer: the people i know who are very much in politics, not the politicians, used to say -- i don't know if it is still true -- that it does not really have much influence. that the people who feel strongly about the supreme court know-how they are going to vote. and they would vote that way anyway. charlie: so you carry your constitution? justice breyer: no, that's not the point. the point is, when i get that kind of question, which i do quite often from college and high school students, i say i want to tell you something, and this is what i feel more strongly than what you brought up. but i would say, i can't tell you guys how to lead your life.
i hope you have a job that is satisfying to you, and i also hope that you will participate in public life. that might be on the school board, it might be on a park commission. it can be anything. just go out and vote. persuade somebody else. why? not because i am trying to tell you what to do. i have raised children who do the opposite. this document, i can tell you this -- if you don't do that, this document won't work. it is not the supreme court that tells people what to do. this document sets boundaries. we are in a sense a boundary commission. i used to listen to sergeant preston of the yukon. he was in the boundary. it was cold, it was freezing. sometimes those boundary
questions are very tough. is abortion in or out? will prayer, in or out? don't make the mistake of confusing a tough question that the boundary with the fact of what the documents are like, because the documents leave vast space in between the boundaries for people themselves, through the ballot box, to decide what city, state, or nation they want. that's what this foresees, and if you do not participate, it will not work. it was said at a funeral oration in athens, what do we say in athens of a man who does not participate in public life? we do not say he is a man who
minds his own business. we say he is a man who has no business here. tough, tough. that's what this is talking about. and that's what i want them to do. if you want soapbox, teach the children civics. teach them about the government. [applause] charlie: have you changed your mind after 22 years, where if you had another go you would be wiser?
justice breyer: i can think of a couple. but normally we don't look back. sandra o'connor told me this. sandra said that there are two unwritten rules of the court. first is, at conference nobody speaks twice until everybody has spoken once. that is important for a small group. the second, tomorrow is another day. you and i were the greatest of allies on case one. case three comes along, we are at odds. the fact that you were with me on case one is irrelevant, unless it is legally relevant, but i mean, it's irrelevant to whether we are allies on case three. what that means is we are a court. we decide. that's the job. decide the case. do your best in that case. absolutely. but eventually, you have to decide and then move on. there will be plenty of people around in the next case or the one after that to tell you all
the mistakes you made, and try to do better next time. tony kennedy said it is more like an express train then you think. they come in, you decide, pay attention, read the briefs, listen to the argument. charlie: would you rather be a swing justice or a chief justice? justice breyer: what i rather be the swing justice or the chief justice. i mean, it sounds phony, but it is true. i have enough to do. [laughter] justice breyer: i get the case, do as well as i can, and then on to the next one. charlie: what does the second amendment mean to you? justice breyer: i can say what the court -- ok, i will say the opinion i wrote. but that is what it meant. charlie: what it meant to you. tell me that. justice breyer: i cannot it meant this. a well regulated militia being
necessary for a free state, the right of the people to keep and bear arms should not be infringed. what did i think it meant, when john stevens thought it meant, what ruth bader ginsburg and others thought it meant? in article one of the constitution, it gives the right to call up state militias. there is a lot of concern, if you read the federalist papers, there is a lot of concern and fear that congress might do that and disband them. and replace the state militias after they disbanded them with the federal army. many said vote no on the
constitution, because if they can do that, within the federal government destroys your freedom. well, said madison, and i paraphrase, never fear. we will put in the constitution and amendment says congress can't do that. it can't call up and disband the state militias. why? because a well armed militia is necessary for the security of a free state, i.e. a state militia, and therefore the right to keep and bear arms shall not be infringed. in other words, they are talking about that. that's what i thought they were talking about, which is not the right of an individual to keep a gun next to his bed. ok? [applause] charlie: what will scalia's legacy be?
justice breyer: i think he took the job very seriously, and i think that is a plus. here, you have to remember that you get some words on a piece of paper, what do they mean, how do they apply? all judges use the same basic tools. you read the words. what do they say? it says "carrot," you cannot say it means "fish." and tradition counts. there is a long tradition behind habeas corpus. and precedent counts. someone may have decided something similar before. and purpose counts. someone wrote those words. what do they have in mind? and consequences count, mainly consequences related to the purpose. if you decide this way, are you furthering the purpose or not? where justices really differ, justice scalia and me, is he thinks these 34 things are the whole story or almost, because he does not really think of the
whole. but those are text, history, tradition, precedent. i say, yes, of course they are relevant, but they often don't answer all the questions, so i put more weight on purpose and consequences. related to purpose. it is a matter of degree, and eventually -- i think he has pulled people too far from just using the last two. you cannot say a carrot means a fish for my does not, and don't go near that. i think he is right about that. there are some things you cannot do because the text just doesn't say it, or it says the opposite, and you have to be loyal to that. where i disagreed with him is i
think he put too much weight on that, but he thinks i put too little weight on it. you will say, what will history say of that? we had better ask the historians, particularly those who have not yet been born. charlie: here is a word that is used with you, "pragmatist." justice breyer: people do say that, and it is not pragmatism in the sense that you should do whatever is good. it is not that. william james was a pragmatist in the sense that you are sitting there with -- you don't know it all, just a little bit
-- but the whole body of law, and the decision you make in this case is going to feed into that. and it is not going to be the whole story, because there are vast rules, rules about treating precedent, there approaches, their standards, their law firms, their judges, their citizens. it is a huge kind of structure, and ideally when you make this new interpretation, things as i whole will work a little better, rather than a little worse. at least in this area that you are dealing with. that is a guide, and in that sense, i guess i am recommended, because i want to know how it is going to work, and is it going to further this goal or not? and if the goal of due process of law is fairness, is it going to end up treating people more fairly or less fairly? charlie: do you find yourself occasionally looking at something in which you say, the way the actor, which led to an
issue coming to the supreme court, where it is a resident or someone else, it is in the interest of something good because i know they have good intentions, and wanted to achieve a noble goal? and maybe even a goal that i agree with. however, if we allow this person to do it, someone might come along next time, a different president or person, and use that right in an evil way. and in the supreme court, we got to put boundaries on that kind of thing. justice breyer: of course. that led, under roosevelt, to the administrative procedures act. i am sure he had very good things in mind, and the secretary of the interior had very good things in mind. but the supreme court found they
could not even find a world he was following because nobody had written it down. the result of that was, of course, even if he had one the best thing in the world, you have to write it down or it is not a law. and a statute was passed saying just that. that is one of many important points. if it is not public, it is not a law. there have been many people in history who have had wonderful intentions, but whatever their intentions -- i mean, i don't think kim jong's intentions were so good, but if they were good, he should not have put people in prison. his intentions, whether good or bad, would still be subject to those few words, "according to law." charlie: and mike that apply to what abraham lincoln did during the civil war, in terms of how he used -- justice breyer: that's how we
have changed. abraham lincoln's secretary of state called in the british ambassador. see that bill, he said. i can push that bill and have any person i want to new york to run into prison. if i push it twice, i can have any person i want in indiana thrown into prison. tell me, he said, does the queen of england have such power? and the court that involved after the war was over, after it was over. he said he had gone too far. but look where that leads us. that attitude. black said this to the
conference, according to frankfurter, someone has to run this war, roosevelt or us, and we can't, so it had better be roosevelt. the consequence? several thousand citizens of japanese origin thrown into internment camps for no reason. if you look at the details, you will see there is no reason whatsoever. but the court agreed. agreed for the reason they said. and you see in the seal seizure case. justice jackson and the others said president truman had gone too far. and at the time of the korean war, in seizing the steal mills without congressional support, who are they striking down? in my mind, they are striking down roosevelt.
he's gone too far. it's easier to strike down roosevelt when he's dead. and you have harry truman. charlie: hasn't this court said the president went too far? justice breyer: with executive power? that is exactly my point. in the guantánamo cases, what shifted away from cicero, away from abraham lincoln, they have said, even in time of war, the constitution does not write a blank check to the president. no one likes those cases. why? on one hand they say you shouldn't have interfered. they know about your security. and to them, i point to car a lot to -- caramatsu. is that what you want? others say you did not go far enough. you can't do this or you can't
do that. i replied to them by saying the reason we didn't go further, i did not know the answer to all those questions. i don't know. and because we are in a situation that's evolving. it involves many other countries which are also democracies. we have to have ways of learning about what happens under that term. we have to have ways of learning what others do as well. that's why we don't jump into quickly. but we do jump in. charlie: on behalf of this audience, thank you so much. ♪
>> you are watching "bloomberg technology." let's start with a check of your bloomberg "first word news." the stock market has done well since donald trump was elected, but his wealthiest donors, not so much. fortunes have risen just 0.6% since the election. the s&p 500 is up since then. chancellor angela merkel says she understands the support for the america first attitude, but she believes it will only hurt the country in the end. many see globalization as something that benefits one country at the expense of others. she says her view is that everyone can win.