Charlie Rose Talks to Stephen Breyer

The Clinton appointee weighs in on his fellow Supreme Court justices and his stand against the death penalty.
Photographer: Pete Marovich/Bloomberg

Your book, The Court and the World, explores foreign law’s impact on the U.S. legal system. Give me an example.
We’ve had three cases involving a treaty about domestic affairs, about abduction of children. They’re tough cases. We have groups who were trying to fight child abduction on one side and groups who are against spousal abuse on the other. Why are we suddenly deciding these matters? Because the world today is filled with marriages that cross boundaries. The problem is, how do we adjust our institutions to sensibly create rules in a world where so many of these issues cross borders? It’s not a problem that’s been solved.
 
I know lots of people who want to see the rule of law reach across borders before they’ll do business with or live in another country.
The point in this book is that by participating in what’s going on in this world legally, we’ll further the rule of law. And if we don’t participate, what will happen is the world will go on without us. Who are we? We’re people Jefferson and the founders said are engaging in an experiment. Lincoln said, “We are engaged in a great war to see if this nation or any nation so conceived and so dedicated can long endure.” And that’s why I want us to think about what’s going on beyond our shores and the relevance of what you’re arguing here to what’s going on over there. And there are plenty of places where it’s relevant. Plenty.
 
You wrote a dissent in Bush v. Gore. Talk about what you learned from that experience.
What I find most interesting in that case is that we did accept the rule of law. Many Americans opposed it, probably half. And it may be wrong. After all, judges are human, and their decisions may be wrong. And if we’re not prepared to accept that, we don’t have rule of law. What I say to students on that is, “I know 20 percent of you are thinking, ‘Too bad there weren’t a few riots.’ Before you come to that conclusion, turn on the TV set and see what happens in countries where they make their decisions that way.” I see in front of me people who are committed to deciding under law. That’s a great thing. It’s a great asset for this country. It’s amazing, actually.

Explain your dissent questioning the constitutionality of the death penalty.
I said we should go back and consider the basic issue. That’s what judges do. And they don’t announce the decision before they read the briefs. But I can say there’s enough right in front of us, which is what I did say. There’s enough in terms of the wrong person [being executed] sometimes, in terms of the arbitrary way in which it seems to have been applied, in terms of how long it takes—the average time a person is sentenced to death, between that moment and the time of execution, is 18 years. And I said, “Don’t you think it’s time to reconsider the matter?”
 
What’s the dynamic among you and your eight longtime co-workers?
I have not heard a voice raised in anger in that court. We disagree, but we disagree civilly. And we can be friends. And we are. It’s professional. The disagreements can be serious, but no loud voices and no insults, not even as a joke. And that’s true for 20 years. I tell law students, “You can make your point. And you’ll make it better if you make it in a civil way.”
 
What do you think will be on the court’s agenda, and how do you prepare?
If there’s an issue in this country that people are concerned about, it’s quite likely to come up in front of the court. The way a judge proceeds and the strength of the institution is not to have a blank mind but to have an open mind. It means you do, in fact, read what people write on the issue. You think about it, and you don’t just react as you might at a cocktail party. You discuss it with others and you make a decision. That’s a kind of 12th grade civics text explanation, but the courts do work that way.
 
Your fellow justices come to their decisions in very different ways, don’t they?
I used to think, “Isn’t it too bad that not everyone agrees with me?” And I’ve sort of changed on that because it’s a big country. There are 315 million people, and it isn’t so terrible to have a Supreme Court where different judges do, in fact, have somewhat different attitudes some of the time.
 
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