BONUS: SCOTUS Justice Stephen Breyer on Ari Melber’s "Summit Series" - The Beat with Ari Melber

Loading summary

Transcript161 lines

[00:00]
Justice Stephen Breyer
There's only one Ozempic.
[00:03]
Ozempic Advertisement Voice
Hello, I'm Ozempic. Because this ad is 30 seconds. I can't get into everything I'm FDA approved to do. So I'm just gonna play my jingle again. But first ask your doctor about which FDA approved uses of me. The Ozempic pen may be right for you. Call 1-833-OZEMPIC or visit ozempic.com to view the medication guide and learn more about Ozempic. Semaglutide injection, 2 milligrams. Only Novo Nordisk makes FDA approved Ozempic. Now here's that jingle again.
[00:27]
Justice Stephen Breyer
There's only one Ozempic.
[00:31]
DSW Advertisement Voice
You know that thing where you get an amazing pair of shoes at a really great price and want to tell everyone about it? Yeah. So do we here at Designer Shoe Warehouse. We'll give you something to brag about, like the latest styles from brands you love or the trends everyone's obsessing over, or shoes that make you feel like, well, you. So go ahead, show off a little. Find shoes that get you at prices that get your budget. Head to your DSW store or dsw.com today. DSW. Let us surprise you.
[01:00]
Ari Melber
Summit Series with Ari Melbourne. We are joined now by a very special guest at the summit of the legal profession. Supreme Court Justice Stephen Breyer was nominated to the Supreme Court by President Clinton and served for 28 years before retiring in 2022, stepping down from the Supreme Court bench. And his new book is Reading the why I Chose Pragmatism, Not Textualism. Out now.
[01:22]
Justice Stephen Breyer
Welcome. Thank you very much.
[01:24]
Ari Melber
I have a question about rules for you. Talk about that big decision overturning Roe Dobbs, where were when you heard that a draft opinion leaked of it?
[01:33]
Justice Stephen Breyer
I don't know where I was. I can't remember where I was.
[01:38]
Ari Melber
What did you think?
[01:39]
Justice Stephen Breyer
But that's what I can remember. Yeah. I thought this was pretty unfortunate. Yeah. Very, very unusual to have something leak. Very, very unusual.
[01:48]
Ari Melber
Is it fair to say that at this moment you, a member of that court, don't know who leaked it?
[01:54]
Justice Stephen Breyer
Yeah, that's correct.
[01:55]
Ari Melber
And the Chief justice took this seriously. They did a process, but as you know, that didn't resolve it. Does it concern you that it was leaked? Do you think there was a goal or a motive from within the court, and should we expect more leaks or not of draft opinions? Because unlike you and I were speaking before we sat down, unlike every other part of government in Washington, what everyone thinks of the court, it generally has not had that problem. And a lot of judges are concerned about that. So I give you the floor on all of that.
[02:24]
Justice Stephen Breyer
I would be concerned, but it's not the first time. Interestingly enough, I read at least one book, if I remember, which said that Dred Scott, which I think would be viewed among a group of students of the subject, is as one of the worst, if not the very worst decision reached by the court. There is some view that that was leaked or that somebody told President Buchanan before it was released. That's possible. That's possible. It doesn't happen often when it's happened, it hasn't been desirable. And the court is pretty good. Not perfect, obviously, but pretty good at not releasing things privately and not leaking things. Obviously not perfect. Yeah.
[03:12]
Ari Melber
But there's a concern or a view out there that maybe it came from within the Court to distort the process or to lock in a vote. Do you have any view of that?
[03:21]
Justice Stephen Breyer
Well, I can't because I don't know. Yeah, you see, I really don't know. And I hesitate to speculate on something
[03:29]
Ari Melber
as serious as that and whether it'll continue to happen.
[03:33]
Justice Stephen Breyer
We have no idea. We think not. I mean, we, you and I, you've worked at the Court. You've seen it's a pretty closed. Because people might change their minds, you know, until the very last minute. People can change their minds charges.
[03:48]
Ari Melber
My last question on that. Do you recall any justices discussing it with you? Was it something you guys talk about around the water cooler, so to speak?
[03:55]
Justice Stephen Breyer
Not around the water cooler. But I think people I spoke to more or less shared the attitude. I had this very serious matter. Yeah.
[04:04]
Ari Melber
You have said with regard to how we run the Court that if there were some kind of time limit for justices without going into them having to worry about their next job, that could be a workable solution to some of the other concerns people have.
[04:22]
Justice Stephen Breyer
It might. I mean, tell me about that. No, I don't know whether Twitter would not be a solution to other problems. When I've discussed this in the past, people have talked about changing the system at the Court. And we have a system where the Constitution says appointed in good behavior, which is taken to mean life. To change that, maybe you'd need a constitutional amendment. I don't know. I haven't looked into it that much. But you made said about it.
[04:49]
Ari Melber
But you made a choice to figure out how you wanted to serve.
[04:51]
Justice Stephen Breyer
Yes.
[04:52]
Ari Melber
When we spoke, this was now almost a decade ago. Here's what you told me. You've been on the court over 20 years.
[05:00]
Justice Stephen Breyer
Yes.
[05:01]
Ari Melber
How do you know In A job where only you decide. How do you know when it's time to retire?
[05:07]
Justice Stephen Breyer
That's a good question. And I, I feel I will know. I feel so far I seem to be able to do the job and there will perhaps be some indication or I'll think about it, but I haven't thought it through enough yet to be able to give you much guidance on when I'll retire.
[05:29]
Ari Melber
And that's what you did. You chose to retire other people. And I say this not just in the court, but in Congress, where some people have very long terms because they kind of benefit from incumbency. On the Court, where it's really only up to the justice, pretty much, people put that decision off so long, shall we say, with all due respect, that they die on the job. And here we are in a modern society with a lot of challenges and there's a lot of people who say that's not the best solution. So you found a way to serve a good long term and then bow out, give up power. If you want to put it in the Washingtonian tradition, would it be better to have a System that at 18 or 20 or 22 years has some cap on Supreme Court justices?
[06:15]
Justice Stephen Breyer
We made the decision earlier because even though I was about 83 years old, sounds old, but, you know, it's a hard decision, it's a personal decision. You think of a lot of different things. And that's why I said, you know, it might be better, but it has to be a long term because you don't want the person looking for another
[06:34]
Ari Melber
job because that could be corruptive in its own way.
[06:37]
Justice Stephen Breyer
Right. You don't want that. But you maybe. I mean, I think the committee that the president set up looked into that and I want to read that again and so forth. But there are personal decisions and there's an old joke which I don't know if it's true or not. Supposedly when Holmes was 90, he was thinking of retiring and who did they send in to see him? They sent in someone to see him. Maybe it was Brandeis, I don't know, one of the judges. And to tell him the other judges thought maybe it was about. And Holmes had said the same thing too. Was it. Who was the California judge? I think anyway, Judge whoever it was Brandeis, whoever would have said to Holmes, do you remember the day that the court sent you in to say justice so and so to tell him that really it might be about time for him to step down. And Holmes or whoever replied supposedly, yes, I do remember. And a dirtier Day's work I've never done.
[07:42]
Ari Melber
Right, right.
[07:43]
Justice Stephen Breyer
That was a complicated decision.
[07:45]
Ari Melber
Complicated and a big question for society here, especially because as we all know, it's great. You said, you said 83 sounds old. That was your words, right?
[07:53]
Justice Stephen Breyer
It does sound old. But you does, as I understand, it's now the new. It's the new 20 or the new 70.
[08:00]
Ari Melber
But whatever it is, with health and medical technology, people are living longer than ever. And we expect that to continue. But it creates an imbalance. We talked about pragmatism from how people originally started. So that's why it was interesting to get your views on it. You know, usually we listen as you all ask questions. We rarely get to ask you questions. So that's why it's fascinating.
[08:20]
Justice Stephen Breyer
But it's a little bit more than a personal decision in this sense. People ask me a lot. If you just go to the view of people maybe who aren't lawyers, maybe a lot who are lawyers, they think these decisions, which you're quite right, I wrote or participated in writing rather strong dissents. I didn't like those decisions, but they think they're all political. I don't. I don't think it's political. Something sort of like political, but it takes too long to explain unless they read it in the book.
[08:52]
Ari Melber
Yeah, all right.
[08:53]
Justice Stephen Breyer
But the. Well, it's so. But what? Paul Freund, who is a great. A great law professor at Harvard, he said politics in the court. No judge. No judge decides a case on the basis of the temperature of the day. But every judge is affected by the climate of the season.
[09:22]
Ari Melber
That's well put. I mean, that's very interesting because it leads to something else I want to ask you about that's serious. You have a former president who's also running for office, who is going through our justice system. And as we know, he's legally presumed innocent. And the process plays out. But unlike almost all defendants, he is repeatedly attacking judges, almost daring the system to see what it might do. For example, attacking the judge overseeing the New York trial as totally compromised. He should be removed. Attacking his daughter. He published online lies about his daughter that are false. I'm not going to repeat them here by one count from Reuters, the number of threats and hostile communications made towards judges and their court staff has more than tripled since 2015. You are a judge, and as a. As a Supreme Court justice retired, you still go on and can judge federal appeals, which we were discussing, is that kind of attack protected free speech, or is it wrong? And what do we do about increasing documented threats against judges in our country.
[10:33]
Justice Stephen Breyer
You have several parts to that. And the part that you really want me to answer, I can't answer because I am in the habit and a part of a system.
[10:42]
Ari Melber
I thought you said you don't read minds. How do you know that we want
[10:45]
Justice Stephen Breyer
your answer on that?
[10:46]
Ari Melber
I'm guessing be right.
[10:48]
Justice Stephen Breyer
Yeah. I can't. I can't. I can't answer the political parts of anything.
[10:52]
Ari Melber
You're careful to avoid anything regarding the defendant. Understood.
[10:57]
Justice Stephen Breyer
You can say not with regard to. But regard to anyone. Regard to anyone. They're very. To physically threaten someone, to physically threaten a judge, to physically threaten a civil servant, to physically threaten someone who works in the government, to physically threaten someone who doesn't work in the government is wrong. I mean, that isn't exactly a brilliant insight, But I think 99.999% of all Americans would say, do not physically threaten other people. And it's not just that physical harm caused a person is not right. But we in this country. And that's why this document is so relevant and why what Freund said and Hart and Sachs about law is so relevant. Every race, every religion, every point of view. My mother used to say that. She used to say, there's no point of view. So crazy there isn't somebody here who doesn't hold it. And she said they all look.
[11:57]
Ari Melber
Yeah, look online.
[11:58]
Justice Stephen Breyer
No, she said no. She said look in Los Angeles. That's because you're also sure you could have known a movie, but we've learned to live together.
[12:06]
Ari Melber
Yeah.
[12:06]
Justice Stephen Breyer
And what Senator Kennedy said, when I work for him, you find people who disagree with you and you talk to them. And don't just talk to them about why you're right and they're wrong. Listen to them. And if you listen long enough, you will discover something that you agree with.
[12:24]
Ari Melber
I like that you are writing about and discussing for the public how to interpret the Constitution. Why does that matter to a regular citizen who's not a lawyer? And how do you do it?
[12:38]
Justice Stephen Breyer
I want regular citizens who are not lawyers. By the way, 320 million people in this country, 319 million, are not lawyers. Yeah, that comes as a surprise. But nonetheless, I want them to know, how does the Supreme Court work? How do courts work? How do federal courts work? It's an important part of the government and the law that governs them. And I want them to see it. It's through my eyes. I've been a judge totally 40 years, so I've had some experience there. And I don't guarantee that I have the only way to do it or I even have the best way to do it. Secretly, I think I do. But I want them to know, and particularly now, because there's sort of competing ways of doing it. There's what I think of as a traditional way. Chief Justice John Marshall, Oliver Wendell Holmes, Brandeis, Cardoza, learned at hand. And what's that? Well, you read the words and the word says cos, and you say, does that include the cost of an educational expert? Well, read it again. It says cost three times cost.
[13:45]
Ari Melber
Cost.
[13:46]
Justice Stephen Breyer
Cost doesn't tell you. So most of the words in cases in the Constitution or statutes in the Supreme Court are tough. If it says fish, that doesn't mean carrot. But what does it mean? So traditionally, I think very good judges whom I admire and learned in law school to admire what they've done is they, look, who wrote this. Why? There's a purpose. What's the purpose? It might help you. And what are the consequences if you read it one way or the other? And how do the values, if you read it one way or the other, stack up with the Constitution of the United States and the values that are
[14:30]
Ari Melber
contained, which you still pack? So we talk about, what does bear arms mean? You still bear the Constitution. You carry that with you every day.
[14:37]
Justice Stephen Breyer
And it's less of a problem than
[14:39]
Ari Melber
bearing on, I would imagine. And so when we see these words that take significance, bear arms, due process, free speech. When you say pragmatism, how does that enlighten or reveal what those words should mean? Today?
[14:59]
Justice Stephen Breyer
I think the word pragmatism is simply a shorthand to say what Chief Justice John Marshall said years ago. When you get a difficult set of words, you use the materials that you can find that will help. And in particular purposes, the values here, democracy, human rights and so forth, equality, they'll help in many cases, not all. But pragmatism is a shorthand way of saying try to, with the Constitution, maintain those values. John Marshall said, this is going to last for a long time. It will deal with problems and situations that we now. He's saying in 1788 or 1800 that we now can see only dimly, if at all. And that's what they wrote this for, and statutes, too. Work it out. Was the educational expert's cos included in the word cos or not? Yeah, I think you have to read a lot to get an answer to that.
[16:05]
Ari Melber
And in the book we mentioned bear arms, which brings me to one of your dissents in that somewhat controversial case. About what does the right to bear arms mean? Certainly, the United States has historically had weapons, but we've now been told by this, by the court, it's actually a greater right than originally thought. You dissented. You wrote that guns today pose a, quote, unique threat to American society if not properly regulated. Explain to us, in plain English, if you can, how you drew that conclusion with the approach you take.
[16:42]
Justice Stephen Breyer
I first. Can I give you another example and then go to there?
[16:45]
Ari Melber
Sure.
[16:45]
Justice Stephen Breyer
Look, this is what I tell the seventh graders. They're not so easy to entertain, the seventh graders. Right. So I say, here's what we do. They want to know, perhaps, what does a judge do in an appeals court? Court. Supreme Court. I read an article. It said a biology teacher going from Nantes to Paris, a French biology teacher, had 20 live snails in a basket. Conductor comes up, looks at the basket. Have you paid a fare for the snails? What are you crazy? Says the biology teacher. Snails? Read what it says. It says, no animals on the train except in a basket and pay half fare. But these are snails. They're like, you know,
[17:34]
Ari Melber
bugs.
[17:34]
Justice Stephen Breyer
Yeah, right, exactly. They don't mean that. They mean dogs or cats are, says the conductor. Is a snail an animal? Yes. So I asked that in the class. I don't have to say another word. They're fighting like man. Yeah. A snail's an animal. Well, what about a mosquito? I mean, really ridiculous. And I can just sneak out, you see? But that's what we do. Now, we don't do it with snails. But you pointed at one thing we did it with. Right to keep and bear arms.
[18:06]
Ari Melber
Right.
[18:07]
Justice Stephen Breyer
Okay, how do we do it? How do we do it? I say, of course, look to the words. Now, I was a very strong dissenter on that because. And we received a brief from some linguists, and they said they looked up bear arms, and there were 120,000 examples between 1760 or 1720 and 1760. And they all had to do with the militia. But the majority didn't agree with that. Okay.
[18:35]
Ari Melber
And how. And how much does it matter that guns are so dangerous and such a big problem?
[18:39]
Justice Stephen Breyer
That was the main point. That was the main point. I said, well, look, this had a purpose, and it wasn't to subject everybody to the fact that in the United states there are 400 million guns and we're number one in the world, and Yemen is number two. And there are a lot of deaths and there are a lot of injuries. And just look at them. They range from policemen killed on duty to spouses killed during an argument. And Even at football games, it can happen. You know, people get too excited. And so, of course, that's a very strong reason in trying to keep this country together that we do something about guns. And of course, they wouldn't have written a phrase in here which said, you can't. And anyway, how do you know, Mr. Majority, you know, I can go on for about an hour on this, but I said, we looked at history. That's what Nino said. Nino Scalia, we've debated this. We were good friends, but we didn't agree on these things. And I said, look, you mean I'm supposed to look back to see what people thought Hunt centuries ago was a weapon equivalent to a gun? I said, I looked that up in Wikipedia just because I knew I was going to discuss this with you. Nino, this was outside of court. I said, but they talk about a skill ladder and a haldibard and an Asian fire. He threw it over the ramparts, I think, to burn everybody up. Did you know what those were? I certainly didn't. You think I'm supposed to do things via history? I'm not an historian. I'll do my best if I have to, but I'm not an historian. And you tell me I can't go and look at the fact that there are a certain number of people walking down the street, children in schools, spouses at home, policemen trying to keep law and order, innocent people caught by accident. There are all kinds of things that happen when you have too many guns. So regulation of guns must have been part of the idea behind this Second Amendment, though you couldn't forbid them entirely.
[20:47]
Ari Melber
Yeah. Which is striking. And you write about this and someone hears this and thinks, okay, what would this have to do with Roe and issues around pregnancy and abortion? And yet you write about how you need some realistic or factual bearing for the words and the understanding at the time. And so I want to read again from you discussing originalism, this idea of. Oh, you just start there and you refer to some of those complexities. You say if you use just this original approach, it would limit rights protected under the 14th amendment, to quote those contemplated by men who existed at a time when women were not considered to have a legal identity separate from their husbands, end quote. And that strong dissent to the decision over ruling Roe. Roe is a term more famous than Dobbs, but that was the name of this case, as many of our viewers probably do know. You and the dissenters write that that decision overturning Roe discards a known, workable, predictable standard in favor of something novel and probably far more complicated. Explain. Explain to us how that connects, because you're looking at how you interpret that based on history and what seems to be an arguable contradiction for the majority. They say they're doing something so original, and yet you're arguing that it's actually novel, complicated, new. It's a new problem they've created.
[22:16]
Justice Stephen Breyer
And this is a rather deep question because.
[22:22]
Ari Melber
But
[22:24]
Justice Stephen Breyer
the principal. In Roe, there are many, many principles. Many, many, many arguments on our side, I think, were the better arguments on the dissenters. But Roe is overturning a case. Dobbs is overturning Roe.
[22:41]
Ari Melber
Yep.
[22:42]
Justice Stephen Breyer
And they are overturning Casey. And those are cases that have been around for 50 years, 30 years. They've been around a long time. And some people think they work badly, but other people think they work well. And giving a woman a choice. There's a principle in law called stare decisis. They put them in Latin in order to show that they're the only ones that understand it. But nonetheless, stare decisis simply means don't overturn cases. If they've been decided, they're decided. Even if they're wrong? Never overturn a case. No. Sometimes you can, and sometimes it's a very good thing to ooverturn1. Plessy vs Ferguson was overturned by Brown vs Board of Education. Saying goodbye to Jim Crow. A very good idea. But be careful how often you do it, because if you do it too often, you will create of law a mess. People will not know what to follow. Everybody who has a lawyer will tell that lawyer, let's overrule such and such. So the principle that you're trying to follow there is a workable principle. It's a principle that says keep to the law, but under certain circumstances, rare, perhaps, but you can overrule a case. Now, why do I bring that up in there? Because the people who like to say, hey, all you do is read the words I read cos. Yeah, read cos. Will that tell me the answer? Well, they seem to think it will, but I don't know how. All right, but they say, read the words. And if you follow our system, you will read the words. It will be fair, it will be easy, it will be simple, and it will. It will stop judges from substituting what they personally think is good or bad for the law. See? Keep the judges under control. So I say you've made four promises. I don't think you can keep any. I don't think you can keep the simple part or the clear part. I mean, I can give you 50 examples of text cost, maybe even one is simple that just isn't clear. So if you think you can be simple and clear, or more simple and clear than Marshall and Holmes and all those people, you know, right down there, I'm sorry that you changed the background because I think it was New York.
[25:09]
Ari Melber
And I have behind you, we still have a little bit of New York.
[25:11]
Justice Stephen Breyer
Do you?
[25:12]
Ozempic Advertisement Voice
Well, I have.
[25:13]
Justice Stephen Breyer
If you think, if you think that right there, you know, you can create a simple, clear system with those words that are in our cases. Yeah, Well, I have a bridge to sell you. It's just on the other side of that big tower there and. No, but more than that, more than that, you're going to overrule cases, Mr. Textualist or Mr. Originalist, you're going to overrule them. Which ones? Which ones are you going to overrule? Every case that wasn't decided by a textualist or originalist method. You know what? That's all of them or almost all or all before. Hey, we'll end up with no law. Oh, you're not going to do that. Of course you're not going to do that. Do that. You're going to overrule the ones you think are really wrong. Stop. The ones you think are really wrong. The ones you, the judge think are really wrong. Gee, doesn't that sound like what you just accused me of? Right.
[26:19]
Ari Melber
Well, let me jump in because on that point, that's what many people felt was wrong with the decision overturning Roe, which you dissented against, and among other points, the majority said, this is simple, they'll overturn it. It'll go back to the states. It'll be, as you say, as you say, they say, a simple process from there. That's not what's happened. The dissent warned about that. You said no one should be, quote, confident the majority is done with its work. The right that Roe and Casey recognized doesn't stand alone. And you talk about the other rights linked to it. You also wrote, quote, women lacking financial resources will suffer more from today's decision. An economist who spoke with NPR said in the first year since that Roe decision was struck down, 100,000 lower income women would now be restricted from getting an abortion, whereas people who are wealthier might be able to evade the restriction through travel and other means. So is it fair to have something that seems to discriminate among other reasons on wealth? So you'll pardon my confirmation or potential flattery, but you and the dissenters were prescient. You were right. What do we take from that now that this isn't resolved. We've seen and our audience is well aware of the fights that are going on. In some places criminalizing abortion, in some places criminalizing or preventing ivf, fertility and other measures. How do you feel being right? What should we take from this?
[27:52]
Justice Stephen Breyer
I don't feel good about being right because I don't like the result. And why I wrote this book was not just to explain the result in that case, but to say really more than people think. More than people think. It's not a question of politics, it's not a question of the judges being politicians. I would put higher on the list, higher on the list of reasons they got there. You know, I can't read another person's mind, sure. But cases that I think are pretty unfortunate, of which there are several here, I think it's a method. It's a method that they are adopting. It is a way of thinking about law. It is an approach to the interpretation of law. And the best way for me to try to change that approach, since I am a lawyer, since I am a judge, since it is what I've learned is to explain. Explain to people who aren't on the court or explain to people who are on the court. Don't you see where you're going? So far it hasn't been so great and maybe it'll even be worse. It's time to stop and it's time to go back to the more traditional methods of looking at consequences, of looking at purposes, looking at values. Where will we be if we do not keep the values that are here underlying this document? And they're pretty general. Democracy, human rights, equality, rule of law, separation of power. That seven year old, when he stops fighting about the snails in the basket, can try learning.
[29:48]
Ari Melber
Yeah. I want to ask you a little bit about your career's arc and then do, if you will, what we call a lightning round. We have a few little questions at the end, but I ask about your arc because whether someone wants to be an actual lawyer or they're interested in justice, or they're just planning out their life. You've lived a very rich and interesting one here. Obviously you've served, I believe, in all three branches, which is rare. Many people go into one branch of work their way up. You've served at the summit of the judicial branch, obviously, as a Supreme Court justice. If we go back to your training as a lawyer, is there anything looking back now in this decade of your life in your 80s, that you think was really important that trained or seasoned you in ways that you might not have fully appreciated at the time. And for people watching, thinking, I might like to try to go up Breyer's summit, I don't know if I'll make it on the court, but I might like to do important things or be in the room where it happens, as Hamilton says. And specifically, I'm curious if, now that you're on the court, whether it mattered that you were a prosecutor, that you were in the Watergate office, that you were in the Senate doing legal work, share with us anything that, looking back on it, with the wisdom now that prepared you or seasoned you.
[31:03]
Justice Stephen Breyer
Then I tell the students who are thinking of law, law's not perfect as a career, but it has two things to offer. It requires you to have a heart, and it requires you to have a head. And maybe one of those is missing in some people, not usually the heart, but you can do it, and you're there to help somebody else, not just yourself. Okay? And they like that. And that is a virtue, not the only virtue. And there are plenty of vices, but that is a good one. They like that.
[31:33]
Ari Melber
But being in the other branches, did that help you? Of course.
[31:36]
Justice Stephen Breyer
It gave you some knowledge. It gave you some. I was very lucky in who I worked for, Very lucky. And I'd worked for Arthur Goldberg when he was on the Supreme Court. I was his law clerk. I worked for Don Turner when he ran the Antitrust Trust division of the Justice Department. And I learned a lot which helped me in teaching. Certainly, I worked for Archie Cox when he was running the Watergate. I was an assistant, a lowly assistant, too. But I saw in action an honest man. I mean, Archie Cox is, in my mind, always the honest man.
[32:11]
Ari Melber
No politics with how he investigated President.
[32:13]
Justice Stephen Breyer
He said on television. He said that. He said, I didn't come here to upset a presidential appointment. I came here to find out what had happened in the Watergate. That's what I was appointed to do, and that's what I've tried to do. And I work for Ted Kennedy, who is great fun, great fun. I heard him once up at Hyannis talking to the staff. And he said, my father told him, he says he's here to help, hire people who will help. Who will they help? They'll help each other. They'll help me, says Kennedy, and they'll help people in the country who need some help. And that's what we're trying to do. I thought that was pretty good. And my father gave me one piece of relevant advice he said, whatever you do, whatever you choose. Look, do your best at that job. Do your best. Take into account what other people think and do your best, and maybe somebody will notice and you'll get a better job. Or maybe they won't. And if they don't, you will have the satisfaction of having done a good job. No, lose.
[33:21]
Ari Melber
Do the work well. Don't worry about advertising it and networking it.
[33:26]
Justice Stephen Breyer
Yeah. I mean. Correct. Let other people see. Pay attention to other people. See what they think. Now, don't just do it because they think it's, but pay attention and see how this job can do better. Given the fact that we're in a country that. And my father. Look, somebody might notice that and say, hey, he's not a bad guy or woman or whatever you want to be. Be. But do the job and do it as well as you can.
[33:59]
Ari Melber
Yeah. All right. This is what we call a lightning round. It's in a word or a sentence or finish this sentence. Now, you are a man of letters and wisdom, so maybe you'll go longer than a sentence. But we've done this with Eric Holder, Bill Gates. People try to do it in a sentence because that's kind of the fun part.
[34:18]
Justice Stephen Breyer
Okay.
[34:19]
Ari Melber
The topics will be familiar to you. The best thing about being a Supreme Court justice is doing the job.
[34:28]
Justice Stephen Breyer
President told me the applause disappears very fast and you're left with the job.
[34:37]
Ari Melber
Doing the job, not the celebration of you joining. I like that. The worst thing about being a justice is.
[34:43]
Justice Stephen Breyer
The worst thing is you don't see too many people too often. The worst thing is it is a little isolating.
[34:50]
Ari Melber
When they start saying you're great, that's when you have to run. I don't know how you'll answer this, but I knew I might end up on the Supreme Court. When.
[35:07]
Justice Stephen Breyer
When the President appointed me by telephone and said, I want to appoint you to the Supreme Court.
[35:13]
Ari Melber
Well, what about that was. That was President Clinton's second appointment.
[35:16]
Justice Stephen Breyer
That's correct.
[35:17]
Ari Melber
What about the first appointment he had where he met with you in person and didn't pick you? Were you thinking, I might. I might get this?
[35:23]
Justice Stephen Breyer
No.
[35:23]
Ari Melber
Why not?
[35:24]
Justice Stephen Breyer
I didn't think. Well, look, if you are honest.
[35:27]
Ari Melber
Yes.
[35:28]
Justice Stephen Breyer
With yourself, at least you should be. You know, when you see the people, they're considering that actually, I think I'm pretty good, but I have to admit that they're pretty good, too. And then among that gamut.
[35:43]
Ari Melber
Love that.
[35:44]
Justice Stephen Breyer
My decision.
[35:44]
Ari Melber
Love that. We could learn from that. I thought it was over when.
[35:48]
Justice Stephen Breyer
When I was appointed, you mean I
[35:50]
Ari Melber
thought it was over. However you interpret that some people.
[35:53]
Justice Stephen Breyer
Oh, I thought, Oh, I thought it was over when the president called me the first time and said thank you for coming but I decided to appoint. He was very nice.
[36:01]
Ari Melber
So he does. I didn't know. He does make a call.
[36:03]
Justice Stephen Breyer
Yeah, he did.
[36:03]
Ari Melber
You were under consideration. I'm not picking.
[36:05]
Justice Stephen Breyer
Yeah, yeah, yeah. But he was very nice.
[36:06]
Ari Melber
Short. Short call or you talk about things.
[36:10]
Justice Stephen Breyer
Medium.
[36:10]
Ari Melber
Medium. Best advice you've gotten.
[36:13]
Justice Stephen Breyer
Best advice you've gotten. Well, I didn't tell you what my father gave as his first advice. I told you his second.
[36:20]
Ari Melber
Okay.
[36:20]
Justice Stephen Breyer
First, stay on the payroll.
[36:24]
Ari Melber
Pragmatic. The book or art I turn to
[36:30]
Justice Stephen Breyer
for inspiration is the person I think all the students. And now I'm talking to them. But they should read about this country.
[36:38]
Ari Melber
Yeah.
[36:38]
Justice Stephen Breyer
Education of Henry Adams.
[36:40]
Ari Melber
Okay. In a word or a sentence. The Constitution.
[36:46]
Justice Stephen Breyer
Long lasting ideals of Americans that we've been able in help to help give to the world.
[36:53]
Ari Melber
Textualism.
[36:54]
Justice Stephen Breyer
Textualism is a nice thought, but it won't work.
[36:59]
Ari Melber
Pragmatism.
[37:00]
Justice Stephen Breyer
Pragmatism is a simple. It's a. What's the word? It's the things underneath it that are important. Looking to purposes, looking to consequences, looking to values.
[37:14]
Ari Melber
Originalism.
[37:16]
Justice Stephen Breyer
Originalism is a cousin of textualism that may. Will not work. And were it to be tried too much, it would hurt. This document.
[37:27]
Ari Melber
I have three legal names. Archie Cox.
[37:31]
Justice Stephen Breyer
Archie Cox. Honesty.
[37:32]
Ari Melber
Chief Justice Roberts.
[37:34]
Justice Stephen Breyer
Chief Justice Roberts. Trying his best and a decent person.
[37:38]
Ari Melber
And Ketanji Brown Jackson.
[37:39]
Justice Stephen Breyer
Ketanji Brown Jackson is my successor. And she's a hard working and intelligent woman who we will see and she
[37:47]
Ari Melber
will see the final three. Failure to you means failure to me.
[37:55]
Justice Stephen Breyer
To me means you can't fail if you try as hard as you can. You try your best, you do your best. Nobody can do better than that. And you don't let up on the Supreme Court any more than when you're a doctor. No doctor says, oh, I've seen this disease 50 times. I'm not really going to treat this patient as much as no one says such a thing. And when you're a judge, it's the same. You can have a case, you've seen it 50 times. Wait. To these two people here, it means a lot. And you give your best and that's what they do.
[38:27]
Ari Melber
Excellent answer.
[38:28]
Justice Stephen Breyer
Not just ones who agree with me either.
[38:30]
Ari Melber
That's excellent answer. I, I sometimes think about that when we're covering something terrible, when we're covering a shooting and however much you feel part of you doesn't even want to do it. The people watching, trying to get information. It could be their community. So you have that same stakes, right? Success to you means.
[38:52]
Justice Stephen Breyer
Means you did your best.
[38:53]
Ari Melber
Okay?
[38:54]
Justice Stephen Breyer
That's what Thurgood Marshall I read wanted on his tombstone. I did my best.
[38:59]
Ari Melber
Well, he did pretty good.
[39:01]
Justice Stephen Breyer
Yeah.
[39:02]
Ari Melber
And finally, justice. The final one. Reaching the summit means.
[39:07]
Justice Stephen Breyer
Reaching the summit means you've convinced enough people that you're actually going to get your. What you fought through on the particular case.
[39:16]
Ari Melber
Justice Breyer, thanks for joining me.
[39:18]
Justice Stephen Breyer
Thank you. There's only one Ozempic.
[39:25]
Ozempic Advertisement Voice
Hello, I'm Ozempic and I'm other GLP1s.
[39:28]
Ari Melber
Kind of like him. Ozempic. You redid your jingle.
[39:30]
Ozempic Advertisement Voice
Ah, thanks for noticing. Catchy, right?
[39:32]
Justice Stephen Breyer
No.
[39:32]
Ozempic Advertisement Voice
Okay, then. Well, ask your doctor about which FDA approved uses of me. The Ozempic pen may be right for you. Call 1-833-OZEMPIC or visit ozempic.com to view the medication guide and learn more about Ozempic. Semaglutide injection, 2 milligrams. Only Novo Nordisk makes FDA approved Ozempic.
[39:49]
Ari Melber
There's only one Ozempic.
[39:51]
Ozempic Advertisement Voice
I told you it was catchy.

Summary6 min read

Podcast Summary

Podcast: The Beat with Ari Melber
Episode: BONUS: SCOTUS Justice Stephen Breyer on Ari Melber’s "Summit Series"
Host: Ari Melber
Guest: Justice Stephen Breyer
Release Date: June 29, 2026

Main Theme

This episode features retired Supreme Court Justice Stephen Breyer discussing his judicial philosophy, reflections on landmark Supreme Court decisions, court culture and tradition, contemporary legal controversies, and lessons from his career. Breyer shares insights from his tenure, motivations behind his new book ("Reading the Why: I Chose Pragmatism, Not Textualism"), and thoughts on the current direction and perception of the U.S. Supreme Court. The conversation dives into topics like the Dobbs decision overturning Roe v. Wade, approaches to constitutional interpretation, judicial ethics, and the broader impact of the Court’s rulings on society.

Key Discussion Points and Insights

On the Dobbs Leak and Court Confidentiality

Leak of Dobbs Draft (Roe v. Wade Overturning)
- Breyer emphasizes the rare and serious nature of leaks at the Supreme Court.
  - "Very, very unusual to have something leak. Very, very unusual." – Justice Breyer (01:38)
- Confirms he, like other justices, does not know who leaked the draft.
  - "Yeah, that's correct." – Justice Breyer on not knowing the leaker (01:53)
- Observes that while leaks have happened before in U.S. history (cites Dred Scott), they are undesirable and rare.
  - "It doesn't happen often. When it's happened, it hasn't been desirable." – Justice Breyer (02:24)
- He’s reluctant to speculate on motives or whether it will happen again, emphasizing the close nature of the Supreme Court’s deliberations.
  - "I hesitate to speculate on something as serious as that." – Justice Breyer (03:20)
  - "People might change their minds, you know, until the very last minute." (03:33)

On Judicial Tenure and Retirement

Term Limits for Justices
- Open to considering long but fixed term limits for justices (18-22 years), but notes such a change may require a constitutional amendment.
  - "It might be better, but it has to be a long term because you don't want the person looking for another job because that could be corruptive in its own way." – Justice Breyer (06:14-06:37)
- Describes retirement as a deeply personal decision, sharing the perspective that many stay too long due to the unique power structure for justices.
  - Recounts a story illustrating the awkwardness and complexity of suggesting retirement to another justice (06:37)

On Judicial Philosophy: Pragmatism vs. Textualism

Misunderstandings About the Court
- Pushes back on the perception that Supreme Court decisions are purely political.
  - "They think these decisions...are all political. I don't. I don't think it's political. Something sort of like political, but it takes too long to explain unless they read it in the book." (08:19)
- Cites Paul Freund: "No judge decides a case on the basis of the temperature of the day. But every judge is affected by the climate of the season." (09:22)
Pragmatism Explained
- Breyer explains his approach as holistic, considering context, purpose, values, and consequences, not just textual meaning.
  - "Traditionally...very good judges...look, who wrote this. Why?...What's the purpose?...And how do the values...stack up with the Constitution...?" (13:45)
- Defines pragmatism as pragmatic maintenance of democratic values.
Critique of Textualism/Originalism
- Argues textualism/originalism cannot offer the clarity or simple objectivity its advocates claim.
  - "If you think you can be simple and clear...I'm sorry." (25:09)
  - "You're going to overrule the ones you think are really wrong. Gee, doesn't that sound like what you just accused me of?" (25:11)
- Warns widespread application would unravel much established law.

Reflections on Landmark Cases and Social Impact

Second Amendment & Gun Regulation
- Shares his dissent in recent gun rights cases, emphasizing practical consequences of gun proliferation as central to constitutional interpretation.
  - "This had a purpose, and it wasn’t to subject everybody to...the fact that in the United States there are 400 million guns...So regulation of guns must have been part of the idea behind this Second Amendment." (18:39)
- Uses the "snails on a train" anecdote to explain complexity in interpreting statutory language, even for seemingly straightforward words. (16:45-18:06)
Abortion, Roe, Dobbs, and Stare Decisis
- Describes the overturning of Roe as discarding a "known, workable, predictable standard" for something "novel and probably far more complicated." (20:46)
- Stresses seriousness of overruling longstanding precedent and the chaos it can bring.
  - "If you do it too often, you will create of law a mess. People will not know what to follow." (22:15)
- Warns that post-Roe, poorer women face increased discrimination, citing real-world consequences.
  - "I don't feel good about being right because I don't like the result." (27:52)
  - "Women lacking financial resources will suffer more from today's decision..." (26:18)
- Asserts that changes in interpretation reflect methodological shifts, not simply politics.

Threats to Judicial Safety and Court Legitimacy

Increase in Threats to Judges
- Breyer avoids discussing pending cases directly but forcefully condemns physical threats against judges.
  - "To physically threaten someone...is wrong. I think 99.999% of all Americans would say, do not physically threaten other people." (10:56)
- Recounts how pluralism and dialogue are vital—both for democracy and for functioning courts.
  - "When I work for [Senator Kennedy], you find people who disagree with you and you talk to them...Listen to them." (12:06-12:24)

The Court’s Role for Everyday People

Outreach to Non-lawyers
- Breyer’s motivation: to demystify how the Court works for non-lawyers, emphasizing its role and the importance of method.
  - "I want regular citizens who are not lawyers...to know, how does the Supreme Court work? How do courts work?...I want them to see it. It's through my eyes." (12:37)

Career Advice and Reflections

Preparation and Character
- Advises students that law requires both heart and head, and success is about helping others.
  - "Law's not perfect as a career, but it has two things to offer. It requires you to have a heart, and it requires you to have a head." (31:03)
- Pays tribute to mentors like Archie Cox and Ted Kennedy, emphasizing honesty and public service.
- Shares his father’s two key pieces of advice:
  - "Stay on the payroll." (36:19)
  - "Do your best at that job...pay attention to other people." (33:25, 36:24)

Notable Quotes and Memorable Moments

On Judicial Method:
- "Textualism is a nice thought, but it won't work." – Justice Breyer (36:54)
- "Originalism is a cousin of textualism that may. Will not work. And were it to be tried too much, it would hurt. This document." (37:15)
On Success and Failure:
- "You can't fail if you try as hard as you can. You try your best, you do your best. Nobody can do better than that." (37:54)
On Pragmatism:
- "Pragmatism is a simple...Looking to purposes, looking to consequences, looking to values." (36:59)
On the Role of Judges:
- "No judge decides a case on the basis of the temperature of the day. But every judge is affected by the climate of the season." – Paul Freund, quoted by Breyer (09:22)
On the Summit:
- "Reaching the summit means you've convinced enough people that you're actually going to get your...what you fought through on the particular case." (39:07)

Important Timestamps

Dobbs draft leak and confidentiality: 01:24–04:04
On term limits for justices: 04:04–06:37
Retirement stories & personal decisions: 05:07–07:52
Pragmatism vs. Textualism/Originalism: 08:19–16:04, 25:09–26:18, 36:54–37:26
Second Amendment & interpretation example: 16:41–20:46
Roe v. Wade, Dobbs, Stare decisis: 20:46–27:52
Threats to the judiciary: 09:22–12:24
Supreme Court outreach to citizens: 12:37–14:29
Preparing for a legal career: 31:03–33:59
Lightning round (quick-fire questions): 34:17–39:07

Tone and Style

The conversation is thoughtful, nuanced, and occasionally humorous. Justice Breyer’s tone is warm, clear, and accessible; Ari Melber’s questioning is incisive yet respectful. The discussion balances serious constitutional analysis with career wisdom and personal anecdotes—making complex legal ideas approachable and relevant.

For Further Listening

For those interested in the philosophy and mechanics of the Supreme Court, the ramifications of major rulings, or the inner lives of justices, this episode delves deep and offers rare philosophical candor. Breyer’s warnings about the limitations of strict textualism/originalism and his arguments for a more pragmatic, context-sensitive constitutionalism are especially relevant for ongoing debates about the Court’s direction and legitimacy.

Loading summary

Transcript161 lines

[00:00]
Justice Stephen Breyer
There's only one Ozempic.
[00:03]
Ozempic Advertisement Voice
Hello, I'm Ozempic. Because this ad is 30 seconds. I can't get into everything I'm FDA approved to do. So I'm just gonna play my jingle again. But first ask your doctor about which FDA approved uses of me. The Ozempic pen may be right for you. Call 1-833-OZEMPIC or visit ozempic.com to view the medication guide and learn more about Ozempic. Semaglutide injection, 2 milligrams. Only Novo Nordisk makes FDA approved Ozempic. Now here's that jingle again.
[00:27]
Justice Stephen Breyer
There's only one Ozempic.
[00:31]
DSW Advertisement Voice
You know that thing where you get an amazing pair of shoes at a really great price and want to tell everyone about it? Yeah. So do we here at Designer Shoe Warehouse. We'll give you something to brag about, like the latest styles from brands you love or the trends everyone's obsessing over, or shoes that make you feel like, well, you. So go ahead, show off a little. Find shoes that get you at prices that get your budget. Head to your DSW store or dsw.com today. DSW. Let us surprise you.
[01:00]
Ari Melber
Summit Series with Ari Melbourne. We are joined now by a very special guest at the summit of the legal profession. Supreme Court Justice Stephen Breyer was nominated to the Supreme Court by President Clinton and served for 28 years before retiring in 2022, stepping down from the Supreme Court bench. And his new book is Reading the why I Chose Pragmatism, Not Textualism. Out now.
[01:22]
Justice Stephen Breyer
Welcome. Thank you very much.
[01:24]
Ari Melber
I have a question about rules for you. Talk about that big decision overturning Roe Dobbs, where were when you heard that a draft opinion leaked of it?
[01:33]
Justice Stephen Breyer
I don't know where I was. I can't remember where I was.
[01:38]
Ari Melber
What did you think?
[01:39]
Justice Stephen Breyer
But that's what I can remember. Yeah. I thought this was pretty unfortunate. Yeah. Very, very unusual to have something leak. Very, very unusual.
[01:48]
Ari Melber
Is it fair to say that at this moment you, a member of that court, don't know who leaked it?
[01:54]
Justice Stephen Breyer
Yeah, that's correct.
[01:55]
Ari Melber
And the Chief justice took this seriously. They did a process, but as you know, that didn't resolve it. Does it concern you that it was leaked? Do you think there was a goal or a motive from within the court, and should we expect more leaks or not of draft opinions? Because unlike you and I were speaking before we sat down, unlike every other part of government in Washington, what everyone thinks of the court, it generally has not had that problem. And a lot of judges are concerned about that. So I give you the floor on all of that.
[02:24]
Justice Stephen Breyer
I would be concerned, but it's not the first time. Interestingly enough, I read at least one book, if I remember, which said that Dred Scott, which I think would be viewed among a group of students of the subject, is as one of the worst, if not the very worst decision reached by the court. There is some view that that was leaked or that somebody told President Buchanan before it was released. That's possible. That's possible. It doesn't happen often when it's happened, it hasn't been desirable. And the court is pretty good. Not perfect, obviously, but pretty good at not releasing things privately and not leaking things. Obviously not perfect. Yeah.
[03:12]
Ari Melber
But there's a concern or a view out there that maybe it came from within the Court to distort the process or to lock in a vote. Do you have any view of that?
[03:21]
Justice Stephen Breyer
Well, I can't because I don't know. Yeah, you see, I really don't know. And I hesitate to speculate on something
[03:29]
Ari Melber
as serious as that and whether it'll continue to happen.
[03:33]
Justice Stephen Breyer
We have no idea. We think not. I mean, we, you and I, you've worked at the Court. You've seen it's a pretty closed. Because people might change their minds, you know, until the very last minute. People can change their minds charges.
[03:48]
Ari Melber
My last question on that. Do you recall any justices discussing it with you? Was it something you guys talk about around the water cooler, so to speak?
[03:55]
Justice Stephen Breyer
Not around the water cooler. But I think people I spoke to more or less shared the attitude. I had this very serious matter. Yeah.
[04:04]
Ari Melber
You have said with regard to how we run the Court that if there were some kind of time limit for justices without going into them having to worry about their next job, that could be a workable solution to some of the other concerns people have.
[04:22]
Justice Stephen Breyer
It might. I mean, tell me about that. No, I don't know whether Twitter would not be a solution to other problems. When I've discussed this in the past, people have talked about changing the system at the Court. And we have a system where the Constitution says appointed in good behavior, which is taken to mean life. To change that, maybe you'd need a constitutional amendment. I don't know. I haven't looked into it that much. But you made said about it.
[04:49]
Ari Melber
But you made a choice to figure out how you wanted to serve.
[04:51]
Justice Stephen Breyer
Yes.
[04:52]
Ari Melber
When we spoke, this was now almost a decade ago. Here's what you told me. You've been on the court over 20 years.
[05:00]
Justice Stephen Breyer
Yes.
[05:01]
Ari Melber
How do you know In A job where only you decide. How do you know when it's time to retire?
[05:07]
Justice Stephen Breyer
That's a good question. And I, I feel I will know. I feel so far I seem to be able to do the job and there will perhaps be some indication or I'll think about it, but I haven't thought it through enough yet to be able to give you much guidance on when I'll retire.
[05:29]
Ari Melber
And that's what you did. You chose to retire other people. And I say this not just in the court, but in Congress, where some people have very long terms because they kind of benefit from incumbency. On the Court, where it's really only up to the justice, pretty much, people put that decision off so long, shall we say, with all due respect, that they die on the job. And here we are in a modern society with a lot of challenges and there's a lot of people who say that's not the best solution. So you found a way to serve a good long term and then bow out, give up power. If you want to put it in the Washingtonian tradition, would it be better to have a System that at 18 or 20 or 22 years has some cap on Supreme Court justices?
[06:15]
Justice Stephen Breyer
We made the decision earlier because even though I was about 83 years old, sounds old, but, you know, it's a hard decision, it's a personal decision. You think of a lot of different things. And that's why I said, you know, it might be better, but it has to be a long term because you don't want the person looking for another
[06:34]
Ari Melber
job because that could be corruptive in its own way.
[06:37]
Justice Stephen Breyer
Right. You don't want that. But you maybe. I mean, I think the committee that the president set up looked into that and I want to read that again and so forth. But there are personal decisions and there's an old joke which I don't know if it's true or not. Supposedly when Holmes was 90, he was thinking of retiring and who did they send in to see him? They sent in someone to see him. Maybe it was Brandeis, I don't know, one of the judges. And to tell him the other judges thought maybe it was about. And Holmes had said the same thing too. Was it. Who was the California judge? I think anyway, Judge whoever it was Brandeis, whoever would have said to Holmes, do you remember the day that the court sent you in to say justice so and so to tell him that really it might be about time for him to step down. And Holmes or whoever replied supposedly, yes, I do remember. And a dirtier Day's work I've never done.
[07:42]
Ari Melber
Right, right.
[07:43]
Justice Stephen Breyer
That was a complicated decision.
[07:45]
Ari Melber
Complicated and a big question for society here, especially because as we all know, it's great. You said, you said 83 sounds old. That was your words, right?
[07:53]
Justice Stephen Breyer
It does sound old. But you does, as I understand, it's now the new. It's the new 20 or the new 70.
[08:00]
Ari Melber
But whatever it is, with health and medical technology, people are living longer than ever. And we expect that to continue. But it creates an imbalance. We talked about pragmatism from how people originally started. So that's why it was interesting to get your views on it. You know, usually we listen as you all ask questions. We rarely get to ask you questions. So that's why it's fascinating.
[08:20]
Justice Stephen Breyer
But it's a little bit more than a personal decision in this sense. People ask me a lot. If you just go to the view of people maybe who aren't lawyers, maybe a lot who are lawyers, they think these decisions, which you're quite right, I wrote or participated in writing rather strong dissents. I didn't like those decisions, but they think they're all political. I don't. I don't think it's political. Something sort of like political, but it takes too long to explain unless they read it in the book.
[08:52]
Ari Melber
Yeah, all right.
[08:53]
Justice Stephen Breyer
But the. Well, it's so. But what? Paul Freund, who is a great. A great law professor at Harvard, he said politics in the court. No judge. No judge decides a case on the basis of the temperature of the day. But every judge is affected by the climate of the season.
[09:22]
Ari Melber
That's well put. I mean, that's very interesting because it leads to something else I want to ask you about that's serious. You have a former president who's also running for office, who is going through our justice system. And as we know, he's legally presumed innocent. And the process plays out. But unlike almost all defendants, he is repeatedly attacking judges, almost daring the system to see what it might do. For example, attacking the judge overseeing the New York trial as totally compromised. He should be removed. Attacking his daughter. He published online lies about his daughter that are false. I'm not going to repeat them here by one count from Reuters, the number of threats and hostile communications made towards judges and their court staff has more than tripled since 2015. You are a judge, and as a. As a Supreme Court justice retired, you still go on and can judge federal appeals, which we were discussing, is that kind of attack protected free speech, or is it wrong? And what do we do about increasing documented threats against judges in our country.
[10:33]
Justice Stephen Breyer
You have several parts to that. And the part that you really want me to answer, I can't answer because I am in the habit and a part of a system.
[10:42]
Ari Melber
I thought you said you don't read minds. How do you know that we want
[10:45]
Justice Stephen Breyer
your answer on that?
[10:46]
Ari Melber
I'm guessing be right.
[10:48]
Justice Stephen Breyer
Yeah. I can't. I can't. I can't answer the political parts of anything.
[10:52]
Ari Melber
You're careful to avoid anything regarding the defendant. Understood.
[10:57]
Justice Stephen Breyer
You can say not with regard to. But regard to anyone. Regard to anyone. They're very. To physically threaten someone, to physically threaten a judge, to physically threaten a civil servant, to physically threaten someone who works in the government, to physically threaten someone who doesn't work in the government is wrong. I mean, that isn't exactly a brilliant insight, But I think 99.999% of all Americans would say, do not physically threaten other people. And it's not just that physical harm caused a person is not right. But we in this country. And that's why this document is so relevant and why what Freund said and Hart and Sachs about law is so relevant. Every race, every religion, every point of view. My mother used to say that. She used to say, there's no point of view. So crazy there isn't somebody here who doesn't hold it. And she said they all look.
[11:57]
Ari Melber
Yeah, look online.
[11:58]
Justice Stephen Breyer
No, she said no. She said look in Los Angeles. That's because you're also sure you could have known a movie, but we've learned to live together.
[12:06]
Ari Melber
Yeah.
[12:06]
Justice Stephen Breyer
And what Senator Kennedy said, when I work for him, you find people who disagree with you and you talk to them. And don't just talk to them about why you're right and they're wrong. Listen to them. And if you listen long enough, you will discover something that you agree with.
[12:24]
Ari Melber
I like that you are writing about and discussing for the public how to interpret the Constitution. Why does that matter to a regular citizen who's not a lawyer? And how do you do it?
[12:38]
Justice Stephen Breyer
I want regular citizens who are not lawyers. By the way, 320 million people in this country, 319 million, are not lawyers. Yeah, that comes as a surprise. But nonetheless, I want them to know, how does the Supreme Court work? How do courts work? How do federal courts work? It's an important part of the government and the law that governs them. And I want them to see it. It's through my eyes. I've been a judge totally 40 years, so I've had some experience there. And I don't guarantee that I have the only way to do it or I even have the best way to do it. Secretly, I think I do. But I want them to know, and particularly now, because there's sort of competing ways of doing it. There's what I think of as a traditional way. Chief Justice John Marshall, Oliver Wendell Holmes, Brandeis, Cardoza, learned at hand. And what's that? Well, you read the words and the word says cos, and you say, does that include the cost of an educational expert? Well, read it again. It says cost three times cost.
[13:45]
Ari Melber
Cost.
[13:46]
Justice Stephen Breyer
Cost doesn't tell you. So most of the words in cases in the Constitution or statutes in the Supreme Court are tough. If it says fish, that doesn't mean carrot. But what does it mean? So traditionally, I think very good judges whom I admire and learned in law school to admire what they've done is they, look, who wrote this. Why? There's a purpose. What's the purpose? It might help you. And what are the consequences if you read it one way or the other? And how do the values, if you read it one way or the other, stack up with the Constitution of the United States and the values that are
[14:30]
Ari Melber
contained, which you still pack? So we talk about, what does bear arms mean? You still bear the Constitution. You carry that with you every day.
[14:37]
Justice Stephen Breyer
And it's less of a problem than
[14:39]
Ari Melber
bearing on, I would imagine. And so when we see these words that take significance, bear arms, due process, free speech. When you say pragmatism, how does that enlighten or reveal what those words should mean? Today?
[14:59]
Justice Stephen Breyer
I think the word pragmatism is simply a shorthand to say what Chief Justice John Marshall said years ago. When you get a difficult set of words, you use the materials that you can find that will help. And in particular purposes, the values here, democracy, human rights and so forth, equality, they'll help in many cases, not all. But pragmatism is a shorthand way of saying try to, with the Constitution, maintain those values. John Marshall said, this is going to last for a long time. It will deal with problems and situations that we now. He's saying in 1788 or 1800 that we now can see only dimly, if at all. And that's what they wrote this for, and statutes, too. Work it out. Was the educational expert's cos included in the word cos or not? Yeah, I think you have to read a lot to get an answer to that.
[16:05]
Ari Melber
And in the book we mentioned bear arms, which brings me to one of your dissents in that somewhat controversial case. About what does the right to bear arms mean? Certainly, the United States has historically had weapons, but we've now been told by this, by the court, it's actually a greater right than originally thought. You dissented. You wrote that guns today pose a, quote, unique threat to American society if not properly regulated. Explain to us, in plain English, if you can, how you drew that conclusion with the approach you take.
[16:42]
Justice Stephen Breyer
I first. Can I give you another example and then go to there?
[16:45]
Ari Melber
Sure.
[16:45]
Justice Stephen Breyer
Look, this is what I tell the seventh graders. They're not so easy to entertain, the seventh graders. Right. So I say, here's what we do. They want to know, perhaps, what does a judge do in an appeals court? Court. Supreme Court. I read an article. It said a biology teacher going from Nantes to Paris, a French biology teacher, had 20 live snails in a basket. Conductor comes up, looks at the basket. Have you paid a fare for the snails? What are you crazy? Says the biology teacher. Snails? Read what it says. It says, no animals on the train except in a basket and pay half fare. But these are snails. They're like, you know,
[17:34]
Ari Melber
bugs.
[17:34]
Justice Stephen Breyer
Yeah, right, exactly. They don't mean that. They mean dogs or cats are, says the conductor. Is a snail an animal? Yes. So I asked that in the class. I don't have to say another word. They're fighting like man. Yeah. A snail's an animal. Well, what about a mosquito? I mean, really ridiculous. And I can just sneak out, you see? But that's what we do. Now, we don't do it with snails. But you pointed at one thing we did it with. Right to keep and bear arms.
[18:06]
Ari Melber
Right.
[18:07]
Justice Stephen Breyer
Okay, how do we do it? How do we do it? I say, of course, look to the words. Now, I was a very strong dissenter on that because. And we received a brief from some linguists, and they said they looked up bear arms, and there were 120,000 examples between 1760 or 1720 and 1760. And they all had to do with the militia. But the majority didn't agree with that. Okay.
[18:35]
Ari Melber
And how. And how much does it matter that guns are so dangerous and such a big problem?
[18:39]
Justice Stephen Breyer
That was the main point. That was the main point. I said, well, look, this had a purpose, and it wasn't to subject everybody to the fact that in the United states there are 400 million guns and we're number one in the world, and Yemen is number two. And there are a lot of deaths and there are a lot of injuries. And just look at them. They range from policemen killed on duty to spouses killed during an argument. And Even at football games, it can happen. You know, people get too excited. And so, of course, that's a very strong reason in trying to keep this country together that we do something about guns. And of course, they wouldn't have written a phrase in here which said, you can't. And anyway, how do you know, Mr. Majority, you know, I can go on for about an hour on this, but I said, we looked at history. That's what Nino said. Nino Scalia, we've debated this. We were good friends, but we didn't agree on these things. And I said, look, you mean I'm supposed to look back to see what people thought Hunt centuries ago was a weapon equivalent to a gun? I said, I looked that up in Wikipedia just because I knew I was going to discuss this with you. Nino, this was outside of court. I said, but they talk about a skill ladder and a haldibard and an Asian fire. He threw it over the ramparts, I think, to burn everybody up. Did you know what those were? I certainly didn't. You think I'm supposed to do things via history? I'm not an historian. I'll do my best if I have to, but I'm not an historian. And you tell me I can't go and look at the fact that there are a certain number of people walking down the street, children in schools, spouses at home, policemen trying to keep law and order, innocent people caught by accident. There are all kinds of things that happen when you have too many guns. So regulation of guns must have been part of the idea behind this Second Amendment, though you couldn't forbid them entirely.
[20:47]
Ari Melber
Yeah. Which is striking. And you write about this and someone hears this and thinks, okay, what would this have to do with Roe and issues around pregnancy and abortion? And yet you write about how you need some realistic or factual bearing for the words and the understanding at the time. And so I want to read again from you discussing originalism, this idea of. Oh, you just start there and you refer to some of those complexities. You say if you use just this original approach, it would limit rights protected under the 14th amendment, to quote those contemplated by men who existed at a time when women were not considered to have a legal identity separate from their husbands, end quote. And that strong dissent to the decision over ruling Roe. Roe is a term more famous than Dobbs, but that was the name of this case, as many of our viewers probably do know. You and the dissenters write that that decision overturning Roe discards a known, workable, predictable standard in favor of something novel and probably far more complicated. Explain. Explain to us how that connects, because you're looking at how you interpret that based on history and what seems to be an arguable contradiction for the majority. They say they're doing something so original, and yet you're arguing that it's actually novel, complicated, new. It's a new problem they've created.
[22:16]
Justice Stephen Breyer
And this is a rather deep question because.
[22:22]
Ari Melber
But
[22:24]
Justice Stephen Breyer
the principal. In Roe, there are many, many principles. Many, many, many arguments on our side, I think, were the better arguments on the dissenters. But Roe is overturning a case. Dobbs is overturning Roe.
[22:41]
Ari Melber
Yep.
[22:42]
Justice Stephen Breyer
And they are overturning Casey. And those are cases that have been around for 50 years, 30 years. They've been around a long time. And some people think they work badly, but other people think they work well. And giving a woman a choice. There's a principle in law called stare decisis. They put them in Latin in order to show that they're the only ones that understand it. But nonetheless, stare decisis simply means don't overturn cases. If they've been decided, they're decided. Even if they're wrong? Never overturn a case. No. Sometimes you can, and sometimes it's a very good thing to ooverturn1. Plessy vs Ferguson was overturned by Brown vs Board of Education. Saying goodbye to Jim Crow. A very good idea. But be careful how often you do it, because if you do it too often, you will create of law a mess. People will not know what to follow. Everybody who has a lawyer will tell that lawyer, let's overrule such and such. So the principle that you're trying to follow there is a workable principle. It's a principle that says keep to the law, but under certain circumstances, rare, perhaps, but you can overrule a case. Now, why do I bring that up in there? Because the people who like to say, hey, all you do is read the words I read cos. Yeah, read cos. Will that tell me the answer? Well, they seem to think it will, but I don't know how. All right, but they say, read the words. And if you follow our system, you will read the words. It will be fair, it will be easy, it will be simple, and it will. It will stop judges from substituting what they personally think is good or bad for the law. See? Keep the judges under control. So I say you've made four promises. I don't think you can keep any. I don't think you can keep the simple part or the clear part. I mean, I can give you 50 examples of text cost, maybe even one is simple that just isn't clear. So if you think you can be simple and clear, or more simple and clear than Marshall and Holmes and all those people, you know, right down there, I'm sorry that you changed the background because I think it was New York.
[25:09]
Ari Melber
And I have behind you, we still have a little bit of New York.
[25:11]
Justice Stephen Breyer
Do you?
[25:12]
Ozempic Advertisement Voice
Well, I have.
[25:13]
Justice Stephen Breyer
If you think, if you think that right there, you know, you can create a simple, clear system with those words that are in our cases. Yeah, Well, I have a bridge to sell you. It's just on the other side of that big tower there and. No, but more than that, more than that, you're going to overrule cases, Mr. Textualist or Mr. Originalist, you're going to overrule them. Which ones? Which ones are you going to overrule? Every case that wasn't decided by a textualist or originalist method. You know what? That's all of them or almost all or all before. Hey, we'll end up with no law. Oh, you're not going to do that. Of course you're not going to do that. Do that. You're going to overrule the ones you think are really wrong. Stop. The ones you think are really wrong. The ones you, the judge think are really wrong. Gee, doesn't that sound like what you just accused me of? Right.
[26:19]
Ari Melber
Well, let me jump in because on that point, that's what many people felt was wrong with the decision overturning Roe, which you dissented against, and among other points, the majority said, this is simple, they'll overturn it. It'll go back to the states. It'll be, as you say, as you say, they say, a simple process from there. That's not what's happened. The dissent warned about that. You said no one should be, quote, confident the majority is done with its work. The right that Roe and Casey recognized doesn't stand alone. And you talk about the other rights linked to it. You also wrote, quote, women lacking financial resources will suffer more from today's decision. An economist who spoke with NPR said in the first year since that Roe decision was struck down, 100,000 lower income women would now be restricted from getting an abortion, whereas people who are wealthier might be able to evade the restriction through travel and other means. So is it fair to have something that seems to discriminate among other reasons on wealth? So you'll pardon my confirmation or potential flattery, but you and the dissenters were prescient. You were right. What do we take from that now that this isn't resolved. We've seen and our audience is well aware of the fights that are going on. In some places criminalizing abortion, in some places criminalizing or preventing ivf, fertility and other measures. How do you feel being right? What should we take from this?
[27:52]
Justice Stephen Breyer
I don't feel good about being right because I don't like the result. And why I wrote this book was not just to explain the result in that case, but to say really more than people think. More than people think. It's not a question of politics, it's not a question of the judges being politicians. I would put higher on the list, higher on the list of reasons they got there. You know, I can't read another person's mind, sure. But cases that I think are pretty unfortunate, of which there are several here, I think it's a method. It's a method that they are adopting. It is a way of thinking about law. It is an approach to the interpretation of law. And the best way for me to try to change that approach, since I am a lawyer, since I am a judge, since it is what I've learned is to explain. Explain to people who aren't on the court or explain to people who are on the court. Don't you see where you're going? So far it hasn't been so great and maybe it'll even be worse. It's time to stop and it's time to go back to the more traditional methods of looking at consequences, of looking at purposes, looking at values. Where will we be if we do not keep the values that are here underlying this document? And they're pretty general. Democracy, human rights, equality, rule of law, separation of power. That seven year old, when he stops fighting about the snails in the basket, can try learning.
[29:48]
Ari Melber
Yeah. I want to ask you a little bit about your career's arc and then do, if you will, what we call a lightning round. We have a few little questions at the end, but I ask about your arc because whether someone wants to be an actual lawyer or they're interested in justice, or they're just planning out their life. You've lived a very rich and interesting one here. Obviously you've served, I believe, in all three branches, which is rare. Many people go into one branch of work their way up. You've served at the summit of the judicial branch, obviously, as a Supreme Court justice. If we go back to your training as a lawyer, is there anything looking back now in this decade of your life in your 80s, that you think was really important that trained or seasoned you in ways that you might not have fully appreciated at the time. And for people watching, thinking, I might like to try to go up Breyer's summit, I don't know if I'll make it on the court, but I might like to do important things or be in the room where it happens, as Hamilton says. And specifically, I'm curious if, now that you're on the court, whether it mattered that you were a prosecutor, that you were in the Watergate office, that you were in the Senate doing legal work, share with us anything that, looking back on it, with the wisdom now that prepared you or seasoned you.
[31:03]
Justice Stephen Breyer
Then I tell the students who are thinking of law, law's not perfect as a career, but it has two things to offer. It requires you to have a heart, and it requires you to have a head. And maybe one of those is missing in some people, not usually the heart, but you can do it, and you're there to help somebody else, not just yourself. Okay? And they like that. And that is a virtue, not the only virtue. And there are plenty of vices, but that is a good one. They like that.
[31:33]
Ari Melber
But being in the other branches, did that help you? Of course.
[31:36]
Justice Stephen Breyer
It gave you some knowledge. It gave you some. I was very lucky in who I worked for, Very lucky. And I'd worked for Arthur Goldberg when he was on the Supreme Court. I was his law clerk. I worked for Don Turner when he ran the Antitrust Trust division of the Justice Department. And I learned a lot which helped me in teaching. Certainly, I worked for Archie Cox when he was running the Watergate. I was an assistant, a lowly assistant, too. But I saw in action an honest man. I mean, Archie Cox is, in my mind, always the honest man.
[32:11]
Ari Melber
No politics with how he investigated President.
[32:13]
Justice Stephen Breyer
He said on television. He said that. He said, I didn't come here to upset a presidential appointment. I came here to find out what had happened in the Watergate. That's what I was appointed to do, and that's what I've tried to do. And I work for Ted Kennedy, who is great fun, great fun. I heard him once up at Hyannis talking to the staff. And he said, my father told him, he says he's here to help, hire people who will help. Who will they help? They'll help each other. They'll help me, says Kennedy, and they'll help people in the country who need some help. And that's what we're trying to do. I thought that was pretty good. And my father gave me one piece of relevant advice he said, whatever you do, whatever you choose. Look, do your best at that job. Do your best. Take into account what other people think and do your best, and maybe somebody will notice and you'll get a better job. Or maybe they won't. And if they don't, you will have the satisfaction of having done a good job. No, lose.
[33:21]
Ari Melber
Do the work well. Don't worry about advertising it and networking it.
[33:26]
Justice Stephen Breyer
Yeah. I mean. Correct. Let other people see. Pay attention to other people. See what they think. Now, don't just do it because they think it's, but pay attention and see how this job can do better. Given the fact that we're in a country that. And my father. Look, somebody might notice that and say, hey, he's not a bad guy or woman or whatever you want to be. Be. But do the job and do it as well as you can.
[33:59]
Ari Melber
Yeah. All right. This is what we call a lightning round. It's in a word or a sentence or finish this sentence. Now, you are a man of letters and wisdom, so maybe you'll go longer than a sentence. But we've done this with Eric Holder, Bill Gates. People try to do it in a sentence because that's kind of the fun part.
[34:18]
Justice Stephen Breyer
Okay.
[34:19]
Ari Melber
The topics will be familiar to you. The best thing about being a Supreme Court justice is doing the job.
[34:28]
Justice Stephen Breyer
President told me the applause disappears very fast and you're left with the job.
[34:37]
Ari Melber
Doing the job, not the celebration of you joining. I like that. The worst thing about being a justice is.
[34:43]
Justice Stephen Breyer
The worst thing is you don't see too many people too often. The worst thing is it is a little isolating.
[34:50]
Ari Melber
When they start saying you're great, that's when you have to run. I don't know how you'll answer this, but I knew I might end up on the Supreme Court. When.
[35:07]
Justice Stephen Breyer
When the President appointed me by telephone and said, I want to appoint you to the Supreme Court.
[35:13]
Ari Melber
Well, what about that was. That was President Clinton's second appointment.
[35:16]
Justice Stephen Breyer
That's correct.
[35:17]
Ari Melber
What about the first appointment he had where he met with you in person and didn't pick you? Were you thinking, I might. I might get this?
[35:23]
Justice Stephen Breyer
No.
[35:23]
Ari Melber
Why not?
[35:24]
Justice Stephen Breyer
I didn't think. Well, look, if you are honest.
[35:27]
Ari Melber
Yes.
[35:28]
Justice Stephen Breyer
With yourself, at least you should be. You know, when you see the people, they're considering that actually, I think I'm pretty good, but I have to admit that they're pretty good, too. And then among that gamut.
[35:43]
Ari Melber
Love that.
[35:44]
Justice Stephen Breyer
My decision.
[35:44]
Ari Melber
Love that. We could learn from that. I thought it was over when.
[35:48]
Justice Stephen Breyer
When I was appointed, you mean I
[35:50]
Ari Melber
thought it was over. However you interpret that some people.
[35:53]
Justice Stephen Breyer
Oh, I thought, Oh, I thought it was over when the president called me the first time and said thank you for coming but I decided to appoint. He was very nice.
[36:01]
Ari Melber
So he does. I didn't know. He does make a call.
[36:03]
Justice Stephen Breyer
Yeah, he did.
[36:03]
Ari Melber
You were under consideration. I'm not picking.
[36:05]
Justice Stephen Breyer
Yeah, yeah, yeah. But he was very nice.
[36:06]
Ari Melber
Short. Short call or you talk about things.
[36:10]
Justice Stephen Breyer
Medium.
[36:10]
Ari Melber
Medium. Best advice you've gotten.
[36:13]
Justice Stephen Breyer
Best advice you've gotten. Well, I didn't tell you what my father gave as his first advice. I told you his second.
[36:20]
Ari Melber
Okay.
[36:20]
Justice Stephen Breyer
First, stay on the payroll.
[36:24]
Ari Melber
Pragmatic. The book or art I turn to
[36:30]
Justice Stephen Breyer
for inspiration is the person I think all the students. And now I'm talking to them. But they should read about this country.
[36:38]
Ari Melber
Yeah.
[36:38]
Justice Stephen Breyer
Education of Henry Adams.
[36:40]
Ari Melber
Okay. In a word or a sentence. The Constitution.
[36:46]
Justice Stephen Breyer
Long lasting ideals of Americans that we've been able in help to help give to the world.
[36:53]
Ari Melber
Textualism.
[36:54]
Justice Stephen Breyer
Textualism is a nice thought, but it won't work.
[36:59]
Ari Melber
Pragmatism.
[37:00]
Justice Stephen Breyer
Pragmatism is a simple. It's a. What's the word? It's the things underneath it that are important. Looking to purposes, looking to consequences, looking to values.
[37:14]
Ari Melber
Originalism.
[37:16]
Justice Stephen Breyer
Originalism is a cousin of textualism that may. Will not work. And were it to be tried too much, it would hurt. This document.
[37:27]
Ari Melber
I have three legal names. Archie Cox.
[37:31]
Justice Stephen Breyer
Archie Cox. Honesty.
[37:32]
Ari Melber
Chief Justice Roberts.
[37:34]
Justice Stephen Breyer
Chief Justice Roberts. Trying his best and a decent person.
[37:38]
Ari Melber
And Ketanji Brown Jackson.
[37:39]
Justice Stephen Breyer
Ketanji Brown Jackson is my successor. And she's a hard working and intelligent woman who we will see and she
[37:47]
Ari Melber
will see the final three. Failure to you means failure to me.
[37:55]
Justice Stephen Breyer
To me means you can't fail if you try as hard as you can. You try your best, you do your best. Nobody can do better than that. And you don't let up on the Supreme Court any more than when you're a doctor. No doctor says, oh, I've seen this disease 50 times. I'm not really going to treat this patient as much as no one says such a thing. And when you're a judge, it's the same. You can have a case, you've seen it 50 times. Wait. To these two people here, it means a lot. And you give your best and that's what they do.
[38:27]
Ari Melber
Excellent answer.
[38:28]
Justice Stephen Breyer
Not just ones who agree with me either.
[38:30]
Ari Melber
That's excellent answer. I, I sometimes think about that when we're covering something terrible, when we're covering a shooting and however much you feel part of you doesn't even want to do it. The people watching, trying to get information. It could be their community. So you have that same stakes, right? Success to you means.
[38:52]
Justice Stephen Breyer
Means you did your best.
[38:53]
Ari Melber
Okay?
[38:54]
Justice Stephen Breyer
That's what Thurgood Marshall I read wanted on his tombstone. I did my best.
[38:59]
Ari Melber
Well, he did pretty good.
[39:01]
Justice Stephen Breyer
Yeah.
[39:02]
Ari Melber
And finally, justice. The final one. Reaching the summit means.
[39:07]
Justice Stephen Breyer
Reaching the summit means you've convinced enough people that you're actually going to get your. What you fought through on the particular case.
[39:16]
Ari Melber
Justice Breyer, thanks for joining me.
[39:18]
Justice Stephen Breyer
Thank you. There's only one Ozempic.
[39:25]
Ozempic Advertisement Voice
Hello, I'm Ozempic and I'm other GLP1s.
[39:28]
Ari Melber
Kind of like him. Ozempic. You redid your jingle.
[39:30]
Ozempic Advertisement Voice
Ah, thanks for noticing. Catchy, right?
[39:32]
Justice Stephen Breyer
No.
[39:32]
Ozempic Advertisement Voice
Okay, then. Well, ask your doctor about which FDA approved uses of me. The Ozempic pen may be right for you. Call 1-833-OZEMPIC or visit ozempic.com to view the medication guide and learn more about Ozempic. Semaglutide injection, 2 milligrams. Only Novo Nordisk makes FDA approved Ozempic.
[39:49]
Ari Melber
There's only one Ozempic.
[39:51]
Ozempic Advertisement Voice
I told you it was catchy.