THE RULE OF LAW ON THE MOVE: CHALLENGES AND DISASTERS. MERYL CHERTOFF Director of Justice and Society Program Aspen Institute

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1 THE ASPEN INSTITUTE ASPEN IDEAS FESTIVAL 2013 THE RULE OF LAW ON THE MOVE: CHALLENGES AND DISASTERS Greenwald Pavilion Aspen, Colorado Tuesday, July 2, 2013 LIST OF PARTICIPANTS MERYL CHERTOFF Director of Justice and Society Program Aspen Institute STEPHEN BREYER Associate Justice Supreme Court of the United States NOAH FELDMAN American author and Bemis Professor of Law at Harvard Law School * * * * * THE RULE OF LAW ON THE MOVE: CHALLENGES AND DISASTERS MS. CHERTOFF: Good morning everybody. Good morning and welcome to the last day of the Aspen Ideas Festival. I know we all want to spend maximum time listening to what our speaker and our moderator have to say here today. My name is Meryl Chertoff and I direct the Justice and Society Program at the Aspen Institute. I'm delighted to welcome you all here this morning for a discussion of the rule of law. What is the rule of law? We'll hear about that in this morning's discussion. It's a critical issue around the world today. The rule of law is challenged and there are even questions about the rule of law even here at home.

2 There are two wonderful people here today with us. First, Justice Stephen Breyer, associate justice of the United States Supreme Court and a frequent visitor to Aspen. I know that all of you are familiar with his resume. Prior to joining the U.S. Supreme Court, he was a judge of the First Circuit Court of Appeals in Boston. He's been a professor at Harvard Law School. He's worked both in the executive branch of the United States government and he's worked for Congress. He is truly someone who embodies the spirit of Aspen. I have to say on a personal note, I've had the privilege to know him for almost 10 years now, probably not nearly not as long as some of you have known him. He embodies the spirit of Aspen with a broad understanding and interest in so many things, law and beyond, the world of literature, travel, history. He truly is a wonderful person and we're very lucky to have him with us today. Noah Feldman is -- (Applause) MS. CHERTOFF: Noah Feldman is Bemis professor of law at Harvard Law School and the author of a best-selling book on history of the Supreme Court during the Roosevelt administration, the "Scorpions," and more recently the modestly named "Cool War: The Future of Global Competition." Noah spoke about the cool war yesterday. I urge you to look for the book. It's a wonderful book and quite a bit of it is about our relationship with China and the future of China. I'm sure that all of you will have questions and Justice will take a few at the end of the conversation. And with that, thanks, let me turn it over to Noah. MR. FELDMAN: Thanks, Meryl. Justice, thank you very much and welcome to Aspen. MR. BREYER: Thank you. MR. FELDMAN: Let me begin with a question that's on everybody's mind which is you had a bike accident in April. How is your

3 shoulder doing? MR. BREYER: Better. Two things, one it takes a long time if you have a new shoulder, and two, it is amazing how many people have new shoulders or torn rotator cuffs. I mean, maybe it's just my friends, I go into any room and 14 people come up and say, oh, that happened to me. Do your PT. Don't forget the PT. And so if I get up and do a few exercises in the middle of this, you'll understand. MR. FELDMAN: On a happier note, you were recently one of just a handful of non-frenchmen inducted into the Académie des Sciences Morales et Politiques, the Academy of Moral and Political Sciences, which is one of the four academies of France. It's about as big an honor as the French have to confer. And you spoke at length and in French about the question of rule of law there. And I thought to introduce our topic of rule of law, I would first ask you about the comparative side and ask you how did you come to cultivate a lifelong interest in French law, culture, and language? MR. BREYER: You've really been doing research. Well, it is a different world and it's the reason actually which I think you learn, all of us, as we go through school, why study literature? Why study another language? And what I usually tell students who are now more and more in college being urged to go and study just economics or -- nothing wrong with studying economics, nothing wrong with studying business, nothing wrong with studying government. But I say, my goodness, you know, when you're an undergraduate, you have one chance, and it's a chance that I would say don't study law to go into law. Do that later. But if you know another language, or if you read another book, or if you read novels, you can find something out. You only have one life to live. You only really know your own and a few others who are close to you possibly. And books and languages can give you an opening, a little window into how other people think. And you can learn a lot of lives. And that's a valuable thing to know. And so for yourself that's what I urge them to do. So I can't urge other people to do it without doing it a little myself. So I pretend I speak French and I read a lot.

4 MR. BREYER: And so I'm always reading some kind of a French book and I do -- I say to them it's -- they say you must love France. I say I don't know. I'm not -- I don't -- it's like France, but I do like -- MR. FELDMAN: You actually say that to them in French? MR. BREYER: Yes, yes, yes, I say, look, I've learned so much about people who think in a very interesting way, who have a very different culture than we do. And to the students, I say, do Chinese, Burmese, I don't mind, but do something. And I think I have learned a lot from reading books and from learning and speaking, trying to speak another language. MR. FELDMAN: And when you read French legal material, if you ever make yourself do that task do you see that the -- of course their system is very different from ours, but do you get the sense that the rule of law is a value that is common to both systems? MR. BREYER: Certainly it is. Certainly it is. MR. FELDMAN: And how -- yeah. MR. BREYER: I mean, people -- I don't know how interesting it is, but I mean, the -- I mean, they have what they call the inquisitorial system. So what I'm saying to them, I say, well, the inquisitorial system everyone in America thinks you've got Torquemada up with the -- there was some kind of torture devices, it isn't that at all. Rather it's a system where the judge has greater power to go into the facts and find out for him or herself what's happening than probably our judge does, where the judge is supposed to be an empty receptacle that the lawyers put information into and try and get the answer out that they want. And it annoys the lawyers if you say you have a mind of your own because you're not supposed to. Yeah. All right. Now, is that useful to us to know that? Yeah, I think

5 it's useful. Why? Well, for example, look at our system of criminal law. In our system of criminal law, we have an adversarial system. You have a lawyer on one side, a lawyer for the government, and you have all kinds of rights at a trial not to answer and you can call witnesses and there's cross-examination and it works pretty well when it works. How often does it work? Three percent of the time; 97 percent of the time the person will be what happens to him, he will be a person who pleads guilty and the person who decides what he pleads guilty to and what happens to him is the prosecutor. Well, I say, hey, you know what our system actually is? Our system is actually the same inquisitorial system they have in France with one exception -- I'm exaggerating but not too much -- with one exception, the person who does that in France is called a procureur, he's a judge, and he goes to judge's school. And he learns in this judge's school that the object of the exercise is to find out what really happened, not to secure a conviction. Now that system doesn't work perfectly, but nor does ours. Well, I said, why don't we take a few prosecutors from the DOJ or from some state systems and send them to that school? You know what, they teach courses in English too. And any way it won't hurt them to learn a little French, but the -- so go there for a few weeks and find out what this other system is because you, Mr. Prosecutor, are actually going to be the decision-maker of what happens to that human being who is accused of a crime. And I'm not exaggerating that one because that is what happens in 95, 96, 97 percent of the cases. Well, I say, it is useful to find out something about their system. MR. FELDMAN: You just said something in the course of that point that I found pretty remarkable, namely that our system in which almost all cases are plea bargains, actually more closely resembles the inquisitorial system than perhaps it resembles the classic common law system. MR. BREYER: I say in that respect of which I spoke, I have to be very careful. MR. FELDMAN: Of course. Of course, I'm not trying to create

6 a headline of Breyer says "American system inquisitorial." MR. BREYER: But you know, if it just said "Breyer prefers French system," and everybody would say, that's right, we knew that was good. MR. FELDMAN: But I want to ask you then about what that means for our court trying to interpret a Constitution that was designed not to imagine that system, but to imagine trials, a system in which the trial by jury was at the very essence of the Founding Fathers' conception of what liberty meant. At least they said that a great deal. And that poses, I think, a core question in interpretation that is very much connected to your own writing about the nature of constitutional interpretation. So what do we do when we have a system designed for one system and we actually have a very different system? MR. BREYER: Well, you can see, I think even our court cases a movement that reflects the very, very few trials there are either on the criminal or the civil side. And if I give an example, the one that comes immediately to mind is a case called Martinez, we've had two similar cases over the last 2 years. And that says that the federal rule is now that a person who pleaded guilty and went to prison can later complain in a federal court that his lawyer was inadequate, not just at the trial, there was no trial, but was inadequate in giving him advice about how to deal with the plea bargaining process. Now, he might not win very often, but sometimes he will, but the notion that that -- and that comes under the Sixth Amendment's right to counsel, he is entitled to a right to counsel and the counsel has to be adequate. You see the difference? He's always had to be adequate when he appears in court, but what about when he is talking to the prosecutor about the plea bargain and talking to his client about how to plea? You see the germ, the beginning of a jurisprudence arising out of that case and when I think of those two cases, I think that is the courts responding with the Constitution to the facts on the ground in the criminal

7 process at the moment. MR. FELDMAN: You were with the majority in that decision. MR. BREYER: Yes. MR. FELDMAN: You were in the dissent in a decision on sentencing this term in which the issue was whether the sentencing provision in the statute that raises the mandatory minimum sentence needed to be submitted -- whether facts proving that mandatory minimum needed to be submitted to the jury or not and there the more originalisticallyminded justices seemed to think that it did have to be submitted. And they made historical argument, they went back to the 18th century -- at least Justice Thomas went back to the 18th century to make that argument. MR. BREYER: When you think about whether in a mandatory minimum sentence you have to prove the facts -- I was in the majority in that. MR. FELDMAN: Were you really? MR. BREYER: Yeah. MR. FELDMAN: Oh, so you -- MR. BREYER: I rarely remember which side I'm on -- MR. BREYER: -- but I do think in that one I was in the majority, the fact come to think of it, I was -- there were only five votes in the majority. majority? MR. FELDMAN: So you were the deciding vote of the MR. BREYER: Each of the five of us was. It is --

8 MR. FELDMAN: Joining Justice Thomas' Originalist opinion? MR. BREYER: Yes. Yes. It's not always, you know, five, four cases, are not always the same five and the same four in which you vote. MR. FELDMAN: Certainly true. So -- MR. BREYER: And I usually think that when I see in the newspaper Justice X, it says -- I mean, perhaps I shouldn't think this way, but I'm in the majority, therefore Justice X decides the case. I say, couldn't they have mentioned me? I was one of the five. MR. FELDMAN: So that -- MR. BREYER: Yes. MR. FELDMAN: My mistake makes the question I think maybe an even more interesting one. Why did you join Justice Thomas' opinion which essentially argued that at the founding the nature of the jury trial required every fact to be submitted to the jury and be decided beyond a reasonable doubt, which was a very old-fashioned, as it were, opinion. MR. BREYER: Yes. No, I didn't actually join his opinion. MR. FELDMAN: You concurred. Right. MR. BREYER: I mean, unfortunately I joined the result and I said the reason that I think -- this is awfully inside baseball, but I mean there is a set of cases that say when you have to submit certain facts to the jury or not, and I tended to disagree with most of the majorities in that, but I said -- I painted myself into a corner such that there should be a uniformity in the law and I thought at this point it was time to say okay, I've dissented enough and I am not going to keep dissenting forever and I think the system will be fairer as a whole if we treat all of these cases alike.

9 That by the way is a very good question because one of the most difficult things for a judge on our court is to decide when I've taken a position on a particular issue and a similar issue comes up and it comes up again and you've made your point in a dissent, at what point do you say, all right, I've made my point, it's time to go now and change because the law did not take in what I said. I don't want to be the minority forever and now it's time to move on to something else. There is nothing in the Constitution that tells you the answer to that question. It is a personal question, but it is a personal question about law and it's often very hard to figure out and this was one of those. MR. FELDMAN: So the value of consistency then was doing a lot of work for you there, yeah. To shift to the question of what the rule of law looks like in other places, I was in Tunisia recently and people were talking excitedly about a presentation that you made, I think from the U.S. remotely, again in French, and I don't mean to make that the theme, about constitutional development there, and again you were speaking about the value of the rule of law. A major topic of debate in places that are developing rule of law is whether there is a distinction between the rule of law and rule by law and I wonder if that distinction is one that you think is a useful one or a valuable one? Tunisia. MR. BREYER: Before -- let me say something about the thing in MR. FELDMAN: Yeah. Yeah, please. MR. BREYER: Because I found it so very, very interesting. I was doing this thing by the -- what do you -- Skype where they have a picture and it's there. And after a while if you're talking to people in an audience even via this, the barrier begins to break down and you begin to get into communication with them really and I got a couple of questions from some women there who were law students. And one of them said, well, do you have -- how do you deal with freedom of religion in the United States? Do you have groups that want to -- and then she said something I didn't quite understand, and then I got a somewhat similar question, and said to myself, oh my goodness, I see what this is about.

10 And I said to her, oh you're asking this question because you're afraid that the government might take from you because you are a woman the right to attend law school or something similar. And she said, absolutely. And then the others began to talk about that and they were genuinely worried. They were actually concerned and they wanted to know how could I help and I said, I can't, I don't know. I do believe this, I do believe that the answer to the problems that some of these countries are having is going to lie in the hands of the women. I said, I believe that, I can't prove it. But I think your attending law school -- and you know, there's no difference in the law students, I could be at Berkeley, I could be at -- there is no difference, you know. I mean, it's a slightly different law, but I mean, there it's -- they're as clued into the rest of the world as most of us are. And I said, keep it up, keep it up, just don't let them take it away from you if you possibly can and get as many people as you can to use that mechanical device where you can get on to the Internet and see how things happen all over the world because when you're mothers, you'll want your children to use that and so will maybe the fathers too. And so, you know, I have no answer. Well, I can see the problem right there in front of me and I don't see any answer except to encourage her to keep going. But that's what's going on and that was -- I came away from that session feeling that very strongly emotionally, very strongly. And to go back to your question -- MR. FELDMAN: If I could just follow-up -- no, actually let me just follow-up on what you said -- MR. BREYER: Yeah. MR. FELDMAN: -- because it suggests that -- so Tunisia is drafting a new constitution. MR. BREYER: Tunisia is way out in the forefront. MR. FELDMAN: Right, and these students were worried among other things that if religion were incorporated in some way in the constitution, this could threaten their rights. Now, as it turned out, they

11 didn't put a reference to sharia in the constitution. Nevertheless the worry exists. It sounds like your answer to her though was that the rule of law won't ultimately offer sufficient protection. MR. BREYER: No. MR. FELDMAN: That it's only the political action of -- MR. BREYER: Well, a very good way of putting the point. The -- you overstate it a little bit, but not much. The question I get -- I mean, I'll show you why I say that. I mean, over and over, when I'm talking to, as I'll do, to foreign judges, I get more and more questions from the African judges, the South American judges, the Asian judges and they will in 2 seconds, and you can see by their eyes lighting up, what do they really want to know. And if I put the question they really want to know, it's this. Why in heaven's name (inaudible) asking me in my office, why do people do what you say? You see? Why? What's the secret, that's what the woman who is the president of the court in Ghana who is really trying to do good things in that -- with the system in Ghana, making it more democratic, protect human rights and so forth, why do they do it? And I got that same question with some of the francophone judges. And what I say, I think I have the Constitution. MR. FELDMAN: Let me just readjust your mic. So the Constitution has interfered with your perfect speaking. SPEAKER: Well, they want to hear it on the Constitution. MR. BREYER: So I say this is a very -- I want them to see the document. I say, well, look, this is a very, very great document. It took the ideas of the enlightenment and really froze them and the values haven't changed very much that are there in the document, democracy, protection of human rights, degree of equality, a rule of law. I'd say, but you know, there are a lot of fine documents. This is part of it. And so if you want to know how has the United States brought this world about, I'll tell you, we had a civil war, we've had 80 years of legal segregation, we had slavery. I mean, if I go back to 1834, there is a famous case, Andrew

12 Jackson, when the Supreme Court said the Cherokees own the land in Georgia. The Georgians are trying to throw them out to get the gold, the land belongs to the Cherokees, Andrew Jackson said, John Marshall made his decision, now let him enforce it. And he sent troops to Northern Georgia, not to enforce the court order, but to kick out the Cherokees which they did and they traveled the Trail of Tears. And that trail by the way passes and you can find a grave of the chief's wife, Chief Ross, who was a great chief, the grave of his wife is exactly one mile from Little Rock High School, Central High School in Little Rock, interesting, because I tell them that story too. I have to tell them a series of stories and I tell them the story of how, you know, Governor Faubus, which some of us remember, said, no, never, we're not going to do it, and they had all the white citizens, counsels, and they were stopping the Little Rock Nine from going in. And President Eisenhower reached a different decision which I think is a great decision, one of his greatest that he decided after taking advice from people who told him not to do it. I mean, Jimmy Burton said, if you send troops to Little Rock what you're going to have to do is you're going to have to reoccupy the South, you're going to have a second reconstruction. And Herbert Brownell told him, his attorney general, no, you've got to send them and he did. He sent a thousand paratroopers and they went to Little Rock and they escorted the children into that high school. And a year later, Governor Faubus closed it, but it was too late and eventually it was reopened. And why? They were the Freedom Riders, that was Martin Luther King, there was -- we remember that, and it wasn't just the judges. So my point to them is the answer to your question. Yes, judges are important, perhaps less than they think, but nonetheless they're important. MR. BREYER: The lawyers are important, but my goodness, we have 308 million people in this country who are not lawyers, who are not

13 judges, and they are the ones who have to want a country where after a wrong decision in my opinion, after a wrong decision, Bush versus Gore -- MR. FELDMAN: Yeah. (Applause) MR. BREYER: All right? MR. FELDMAN: Yeah. MR. BREYER: Fine, fine. People were -- I thought it was wrong and I thought it was important. And what Harry Reid I heard say, which was my reaction too, important, wrong, very unpopular among at least half the country, very unpopular, no guns, no paving stones killing people, no riots of that kind. And I say this at Stanford with a lot of them say -- they sort of go, so I say, I know you're thinking too bad there weren't. But before you think that, go turn on your television set and go look and see how things go in countries that decide their things through riots in the streets. And you see, I'm trying to tell her a story and that story is a story that took us 200 years and it still is ongoing, and it still is something you have to pass on, and you're going to pass it on to your children and your grandchildren, and it's not going to just be passed on by the judges. So I say the judges -- when I told this Russian general this story because that's one of my favorites and I think it's so important, I said -- he was a paratroop general and he was sent to the court because that was the time when they changed the missile directions away from the United States to some other direction and he was the one who did it and the State Department said, we want to be nice to this man. MR. BREYER: And so I told him the story and I said the judges and the paratroopers must be friends. There's a point to that. The point is what Eisenhower did there was major and major importance, and so is what the Freedom Riders did. And if they want that in this country -- in

14 these other countries, you tell them, please don't just talk to the lawyers. Talk to the lawyers, but please go out and talk to people as much as you can who are not lawyers, who are not judges, so they will understand that a rule of law means, well, you supported even though the judges who are human being are pretty benighted and reached the wrong result, that's hard for people to understand the importance of that. So that's why -- that's a long answer, but you see where that -- MR. FELDMAN: Yeah, so it -- no, in that answer, at one moment, the president has to send the army to enforce the judgment, and then at another moment, you know, just under 50 years later, the culture does the work in some way. So do you have thoughts on what causes that transformative process? And I want to ask it specifically because in Egypt, just in the last few days we've seen a public that brought down a dictator now trying to bring down the president whom they elected whom they don't like very much and hasn't done an especially good job, but nevertheless was elected, and they're using the same technique to bring down the dictator -- sorry, to bring down the elected president that they used the last time. And they're looking to the military to do it. MR. BREYER: I obviously don't have the answer to that. Best answer, Jane Harman, she said -- she told the group of legislators who had come, who were on the liberal side, and they told her -- tell me if I get this wrong -- that they're putting all kinds of things in this constitution we don't like, which are pretty reactionary, and so forth. And she told them, from what I read in the papers, "Stay in the room. Don't walk out. Keep going." You see, that's the most -- that's why I say that to that -- to this student in Tunisia. There's no guarantee in this world you get your way. There's no guarantee you get -- so that's why Sandra O'Connor is going around the country trying to develop icivics and trying to make certain that those 12th graders are taught civics just as I was when I was a 12th grader. And she -- so far in icivics she said the other day they had 43 million hits. That's good. That means that people are learning something. And of course that's what a lot of people in public life believe very, very firmly in their hearts that's the most we can do. There are not magic answers. We try to persuade people by telling them what their government is about, by

15 telling the history, by telling them how it works. MR. FELDMAN: And does this system have to be basically a just system, or basically a fair system for people to buy into the use of law to govern them? MR. BREYER: People wouldn't want an unfair system. I don't know the -- that's too complicated. I mean, we want fair systems obviously, obviously. And no system is perfect. Ours isn't perfect. There are all kinds of flaws in it, but most of the constitutional systems that have developed in Eastern Europe, which you know, and you know more about the Middle East, you know how that's going. MR. FELDMAN: And it's a mess. I mean, we're seeing it now, we're seeing what a mess things are turning out to be. I mean Tunisia is an example of constitutional success, and Egypt is a much bigger and probably much more important example of, at this point, constitutional crisis. MR. BREYER: We took us a while. MR. FELDMAN: Yeah. Do you think that the rule of law can ever be a bad thing or that rule by law can be a bad thing, where a system administers things increasingly effectively using lawyers and using judges and allocating property rights, but is continuing to put into place a system that most people consider to be basically unjust? I mean, it's communist China that I have most specifically in mind when I say that, but the question could be put more generally too. MR. BREYER: No, I'm not universally knowledgeable on that. There -- obviously in our system, as in any legal system in the western world that we think of as fair, there has to be a certain way of getting what I call "oil in the joints," and that's why for example prosecutors have discretion as to who they prosecute. It's why juries might sometimes just refuse to convict. It's why judges sometimes have some degree of sentencing flexibility. There are many, many ways that we have built into our system ways of taking care of a special case. There has to be something like that because fairness consists both of treating like cases alike and also treating

16 different cases differently. And you can't get rules that work perfectly for every case. So all systems are rather like that. But you are interested in systems that are basically unfair like China, and there my knowledge is too weak. I mean, I know I did hear at Brookings a very interesting talk by a professor from China who is a professor of law and on the reformist side. And he's somewhat optimistic about changes being made that would make it a fairer system. MR. FELDMAN: Yeah. I want to ask you about how the kind of culture of respect for the judiciary survives in a world where we don't just have Bush v. Gore, but many, many close decisions on very controversial issues. And certainly the last week of the term this year showed close decisions on controversial questions, you know, in successive days, on affirmative action, then on the -- that was less controversial, then on the Voting Rights Act which was highly controversial, and then Defense of Marriage Act, again very, very close. Do you have a general view on how the court should try to retain its legitimacy when it's deciding crucially important issues on which the country is divided, and doing it by a very close margin? MR. BREYER: The difficulty is that -- we have 73 cases. This last year we probably decided a higher percentage than usual, about 60 percent unanimously. We also decided a somewhat higher percentage. We usually decide about 20 to 25 percent five-four, and this year it was about 30 percent five-four, but most are unanimous or maybe one dissent or two. That isn't the impression that the public gets. The reason they don't is because newspapers want to sell newspapers I think, and unanimity is boring. And -- or because people are more interested in the subject matter of the very controversial five-four cases. MR. FELDMAN: And you -- MR. BREYER: My own subjective reaction is that the court is trying hard to pull together among people who have quite different beliefs. And when I say beliefs, I don't mean religious beliefs, I mean beliefs about how law basically works. And it isn't necessarily political. If I ask you how do you really think in these close cases that are very visible, people

17 decide things, you'll say they decide politically. You'll say they're junior league politicians. That's not my experience. It's just not my experience, and it would take me a long time to persuade you of the contrary because that's what most people in the public really believe. That's bad for the court. And the only way to -- we have very little power to overcome that impression. The best -- when I get into that kind of situation -- my father didn't give me too much advice, but one was he told me -- before he died, he said stay on the payroll, which I've always done. MR. BREYER: And the other thing he said, which I think is true is, is do your job. You know, do your job as best you can do it. And I think that is the route that the members of the court try to follow. No one is perfect, nobody does it perfectly. But the cases are difficult, and I can usually understand if I'm in the four where the five are coming from, or vice versa. And it's usually a much closer question than you'd have the impression from just reading the newspapers or looking at it on television. So I think we continue to do what we do. We do our job as best we can do it. And I wish you in a way could be there. Would you be there more if we were on television? I don't know, that's a tough one. Maybe, maybe not. That's the only answer I have. MR. FELDMAN: Yeah. MR. BREYER: And try to explain to people every chance you get, every chance you get. Well, I learned from Sandra so much. Try to explain what we do. Try to explain what the role of the court is. Try to explain that it's not to tell other people how to run their lives, that's what democracy is for. It's to enforce the boundaries that this document puts around what the democratic process can do. And those boundaries are mostly there to help assure a democratic system, to ensure basic human rights, to ensure a degree of equality, to ensure a rule of law. So I do what I can in terms of explaining and that's what Sandra does, and that's what a lot of us do. MR. FELDMAN: One case just decided that might help show the nonpolitical divisions was the Maryland case around the permissibility

18 under the Fourth Amendment of the collection of DNA from people who were arrested for serious crimes. The lineup wasn't a familiar automatic political lineup. Do you think that might be an example to use as a explanatory device for how things don't necessarily follow -- MR. BREYER: Well, it's -- sure, it's a difficult case. The question is can the police take your DNA, which they do with a swab in your -- they take something out of your mouth, your saliva or something, when -- if you're arrested for a crime. Now five of us, including me, thought that yeah, they can. They use -- they take fingerprints, they take mug shots, they take your name. And the difference between DNA and fingerprints is that the DNA is more accurate and less intrusive, all right? So I thought that's the big argument for the DNA. And the argument of the other side was, well, they may use DNA to find out all kinds of things that they couldn't find out about you otherwise and do all kinds of other investigations. Then the reply on our side, Justice Kennedy wrote the opinion, he said, there are laws against that and besides they use fingerprints to find out all kinds of other things too. And so one group is sort of more concerned about getting the booking and getting that information to get the right person better. You got to find the right person, so be sure you don't have -- try to get the -- try to convict the guilty and free the innocent. And the other side is worried about misuses. And what the Fourth Amendment says about this to help us is that they can have reasonable searches and seizures. You can't have unreasonable searches and seizures. So which side is reasonable and which side is unreasonable? And there are a few, those who will read people's best efforts to explain why their side of it is the reasonable or unreasonable side of the issue. Now that's a 41-minute summary of something that we get say 40 or 50 briefs about, which we read, that we think about for a considerable period of time, that we listen to oral arguments and ask questions, that we go into conference and talk to each other. It's not true we just sit there and say our own view. We do say our own views, but we're listening to other people's views too. And then try writing it up in drafts and writing to sense and the law clerks who might think they write the opinions, but they don't --

19 MR. BREYER: -- what they'll do is they'll do research and they'll come in with a 40-page document that will tell me what other people have said about this and why. And if I want to know how often they've used the DNA in the past or misused it and so forth, I probably can find out pretty well. That library of ours is fantastic and it can find out things from all over the world pretty quickly. And what law clerks are really good at doing is finding out a lot of information that's public and getting it and putting it in a usable form. So there we are, I'll have that material, I'll have the different drafts, and I will do my best on the case. Now the best is not always right, it's just doing your best like anybody else in the room. That's how the system works and that's the, you know, 1-minute or 2-minute account in the 12th grade civics text and unlike many institutions, I say that that 12th grade civics text description is pretty accurate. What really goes on behind the scenes? Not much. MR. BREYER: Discussing the things I just said, that's what goes on beyond the scene. Here we are, that's why they don't like -- the private life of a judge, I mean, my goodness, really, that's going to be like number zero on your hit parade. MR. BREYER: And that's -- you do the job. MR. FELDMAN: Do you think -- we're close to a moment when I want to get the audience in for questions, but I just wanted to ask one more question. As you look around the world, travel around the world, look at the rule of law, do you think in the broad sense that there is progress? Do you think we're moving in some positive direction with respect to development of the rule of law and of rights globally or do you think we're kind of in a random walk and right now things might look good and next week they might look less good?

20 MR. BREYER: I tend to be optimistic. I mean, you've started this really -- I mean, look at the difference even on the docket. When I started in my present job really 19 years ago, I had done some traveling, we went around, and I was giving a talk at NYU and I said, it's really interesting to learn how people do things in other parts of the world and it's helpful. So he said, give me one example. I shouldn't have said that before thinking that through. MR. BREYER: No problem with that question now. You go look at our docket and you will see maybe 10 percent, maybe 10 cases, maybe 12 cases out of the 73, maybe 8, a sizeable proportion that suddenly requires us -- requires us and nobody doubts that it does, requires us to know something about how law is working in other parts of the world. A copyright case, you might think, oh no, there we're just looking at American law. No, we're not. That copyright case affects a $1 trillion worth of commerce, foreign commerce, and it is going to be answered properly only if we know what the British government and what the Dutch government and what a lot of other lawyers who think their governments are wrong, from those countries think about those issues. Same thing is true with the question of whether a foreign person can come to this country who's been tortured abroad by a foreign government and get damages here, a big question under a statute that was enacted in 1780 or 1790 to protect us against pirates. Who are today's pirates? If we can find them and maybe torturers are among them, maybe the people can get relief in our court, major. And how are people to protect us in the Unites States against terrorism? Where? That's going to involve the conflict between basic rights, between basic individual rights and the needs of security. Don't we need to know what other countries are doing too and cannot that help us? Of course it will. And when you look around, you see whether it's intellectual property, whether it's protection of individuals who've suffered serious human rights violations such as torture, whether it's this conflict between security and individual rights, you find a certain similarity or at least an exchange of views that's really there, that's really

21 helpful, and that when comparing it to 19 years ago does not consist of my standing up somewhere and saying, oh it was helpful, but which can be reduced to chapter and verse. And that's because their country is all over the place, but want a system of government that's basically democratic, that's basically protective of human rights, that basically has a rule of law, and that will work to protect their citizens and also to allow them functioning well -- to function well as a government. Well, that's what we have in a sense to put on the table. We were talking about that the other night. We have that to offer. We don't have the perfect system, but we do have a system that's worked with its ups and down not too badly. And so when other countries look around, they say, well, America may not have the best violent films, or probably has the best violent films -- MR. BREYER: -- but regardless they do have some experience with something that we want. And that gives us a certain prestige which is now called soft power, but it means that other people in the world want something, want to listen to us as long as we're prepared to listen to them too. And I mean, I just say you started that with this French thing, but my goodness, it's not just that, it's French Francophone Africa. MR. FELDMAN: Yeah. MR. BREYER: It's all over the place and when you see that kind of interest all over the place, you say thank you, maybe we do have something to help with and maybe other people can help us and maybe there is a little progress being made here. So if you want my emotional reaction, yeah, we're making progress, no sure thing we're making progress, so we keep going. MR. FELDMAN: Well, that's an inspirational note on which to turn to the audience. (Applause)

22 MR. FELDMAN: We have microphones; if they would come to the front row that would be great. Congresswoman Harman. MS. HARMAN: Thank you. Justice Breyer, you had a lot of experience working in the United State Senate for Ted Kennedy. Most of your colleagues have not had much legislative experience, I was trying to think about it, Sandra Day O'Connor did, but she was an elected legislator and maybe Clarence Thomas worked a bit for senator -- MR. BREYER: And John Stevens. lineup -- MS. HARMAN: And John -- well, okay, but of the current MR. BREYER: Yeah. MS. HARMAN: -- one of the big things that runs through many of your controversial -- the controversial decisions is how much deference to give to Congress. Do you think that legislative experience is helpful to a judge -- to a justice and the lack of it on the part of so many has unfortunately led them to do things -- I don't want to characterize it, but do you think -- MR. BREYER: Well, the problem with part of that -- MS. HARMAN: -- let's make it positive, do you think legislative experience has helped you as a judge? MR. BREYER: Yes. MR. BREYER: And I'll tell you the reason simply is it's surprising, which I'm sure you know, for most Americans the Congress is a black box. They do not understand how it works, so they suspect the worst, and the worst is a lot worse than the worst really is --

23 MR. BREYER: -- is what they suspect, they don't understand. And that's why that civics course is important for the legislature too. And working there for a while -- I loved working there, you know, I really liked it. Maybe that was the golden age. We all think that was the -- but people are trying to do the right thing. MR. SUSSMAN: Justice Breyer, Steve Sussman (phonetic). This morning the Pew Research released the results of a poll of Americans taken in the last few days. It showed today 43 of Americans approve of the job the Supreme Court is doing, down a third from a decade ago. It used to be over 60 percent. In an unrelated story, there was a comment -- one of your colleagues during the reading of an opinion last week rolled his eyes and nodded, and members of Congress are now calling for a code of conduct for members of the Supreme Court. MR. FELDMAN: No more facial gestures. MR. SUSSMAN: So -- but my question is this, if the court too is a black box, what is your view about letting television cameras come into the court so that the American public can see what you are doing and wouldn't that satisfy keeping your colleagues from rolling their eyes? MR. BREYER: Well, yeah, the -- television is somewhat different. It's a tough question with regard to television. Why? Because what you bring it into is the oral argument. The oral argument is -- there are two things -- the things for it, the obvious thing for, you know, if the public saw the questions in say a case like the -- I found a fabulously interesting very difficult case, whether Arkansas could impose term limits on members of Congress. That is a very tough constitutional issue, and my God, people were struggling with that. If the public had seen the oral argument, they would have said these are nine people trying to do their job and I think that would have been a pretty big plus. Nobody is trying to gesture for the cameras, nobody is trying -- they're doing their job, okay? But what we don't know is what happens once they come in

24 the door. I mean, after all, the oral argument is only 5 percent of what goes on. It's mostly in writing. More importantly, human beings do relate to others who are human beings. And they see two people arguing there, there's going to be the good one and the bad one, there's going to be the good client and the bad client, but our decisions are not made really particularly in our court for those parties because they affect 309 million people who are not in that court. And the decision has to be made taking into account how that rule of law will affect those people the public will never see. But most of all nobody knows what happens with the sound bite problem. That's not necessarily what people say, that could necessarily be how it turns up. I find a tremendous difference in the coverage, between the coverage by what I'd call the professional corps of press people who was normally in the court, they have their offices there, and somebody who comes in who is a reporter that covers the Supreme Court once every 5 months. Boy, the second, it's almost unrecognizable. So we don't know the answer on the television. I feel I don't know it. You have a conservative institution in the small sea sense. None of us who are trustees for an institution that has worked pretty well for the country, none of us wants to be the person who helped make the decision that wrecked it. Believe me, believe me. So I say, you know, we're out in outer-space in this, but I'm trying to explain to you the two sides as I see them, so I don't know the answer. In terms of the Pew poll and so forth, the court is still ahead of the other institutions. MR. BREYER: Yeah. But it's the same problem with all the institutions. God, the people who wrote this, you know, they knew perfectly well that you cannot run a country without a government and you can't run a government which people have no confidence in. So how do we do it? And I wish I had a better answer. And the only answer I have which is the trite one I've given 15 times already which is you go as you do it and you'll talk to your editorial board and you'll talk to the schools. And I say the lawyers go on all day, please, please, and we

25 hope that the information that we're getting out and the learning survives the negative stuff that comes out over that Internet. And in the meantime that oral argument I will talk to Justice Thomas last, I will talk -- sit tentatively more and do my best and I have a very good critic over here, my wife, who tells me you were talking when somebody else was, why did you do it? MR. BREYER: That's the world as it is. MS. PORGES: Good morning. Thank you so much for all your insight and input. Shelly Porges with Ready for Hillary PAC. What do you think the country has learned from the Bush v Gore decision, what has the court learned, what has the country learned, and do you think it would be possible again to end up in a situation like that? MR. BREYER: Is it possible? That's the easiest thing. I tended to think -- though I don't have insight into this, I tended to think that that election in a way turning on Florida and turning on these very small number of votes and so forth, the electoral votes is like flipping a coin, it lands on its side. It can happen, it just doesn't happen very often. Requires an odd concatenation of circumstances. I wrote at the time that I thought the court should stay out of it. I thought they should stay out of it. I thought whatever happens, the thing that I think carries over in terms of my own view is of course there was a similar situation in the Hayes-Tilden election, was it 1878? MR. FELDMAN: Six. MR. BREYER: 1876, yeah, and in '76, Tilden won the most votes and Hayes was, I got the most electoral votes and they were disputed delegations, disputed delegations including a disputed delegation from Florida, and -- Florida, North Carolina, I can't remember the third. And they set up a committee that had a Supreme Court justice on it, Bradley, who was very much respected and the committee that was supposed to chose which were the right delegations voted, including Bradley, who was appointed by a Republican write down eight

26 Republican, seven Democrats and they elected Hayes. So years later a law professor at Yale I think looked into it, Bickel, and he's a very good professor and he said, you know, it was really done on the merits, that Bradley really decided on the merits. It wasn't true he was siding this politically and I wrote that in my opinion and I wrote, but nobody believed it at the time. So I would hope if that arises again, the Supreme Court would find a way this time to stay out of it. SPEAKER: The other night, Noah made the point in conjunction with discussing the situation with all the changes going on with this kid who is now in Russia and all that sort of stuff about how if he had self-published versus going out through the Guardian which is a London newspaper on the left side or whatever, that there might not be a protection of journalists in the way that we're getting quite a bit of talkback about leaks and all that kind of stuff. And I'm just curious, there is so much change in technology, how does a document that's that old be able to take care of really issues that didn't and couldn't really exist in free speech and discussions of free speech or even in discussions of, let's say, insider trading where we're discussing whether a 2-second advantage knowing about Michigan satisfaction surveys gets you the time to put, you know, insider high-speed trades on before everybody else? The technology is moving so fast that it's impossible in some ways to take free speech or the Fourth Amendment and be able to really understand how they have to be rethought in this day and age. MR. FELDMAN: And this will be the last question. MR. BREYER: Okay. Well, I'll give you -- I'll do this. I decided I wasn't going to answer a question anything about Mr. Snowden because as far as I know, he might be a case in front of us and I have to be pretty careful about that. I don't want to end up disqualifying myself in a case. And then I thought a second reason that I better not discuss it is I don't know that much about it. That doesn't usually stop me, but -- MR. BREYER: -- the -- but I did then think of a question I could put to you to think about which I don't have the answer to, but it did strike