Purposes and consequences: A conversation with Justice Stephen Breyer

ASK THE AUTHOR

With the publication of his latest book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism, retired Justice Stephen Breyer talks with Ibrain Hernández about the moments that have marked his career, as well as his perspective on the role of judges in a constitutional democracy and his focus on purpose and consequences when interpreting the law. Their conversation has been edited for length and clarity.

Ibrain Hernández is a law student at Center for Economic Research and Teaching, a public university in Mexico City. He is also the host of Upstanders, a podcast dedicated to analyzing the judiciary in constitutional democracies.

Who were your role models when you were studying law, and did any of them inspire you to become a justice?

Becoming a justice is just a matter of luck. One can prepare to be the most qualified lawyer for the position, but the truth is that you depend on being nominated by someone else and I believe that each and every member of the Supreme Court understands that.

Now, in terms of people who had an influence on my life and that I admire, I would mention Arthur Golberg, who was also a U.S. Supreme Court justice. I clerked for him in 1964 and I consider him to be a very enthusiastic person, he would tell us not to worry if we lost a case and stayed on the minority side because in the next case we wouldn’t be in the minority. Justice Golberg’s favorite quote was from Shakespeare and it said that “The time is short; to spend that shortness basely were too long.” In other words, life is too short and you have to do something productive.

Another person I admire is Archie Cox, with whom I worked in the Watergate Prosecution Office. I was very young at the time, but I remember Cox was a very honest person and beyond elevating his career, he wanted to investigate President Nixon and find out what had really happened. I mean, I was able to learn about the importance of being a lawyer who acts honestly.

I also admire Senator Ted Kennedy, with whom I worked on the Senate Judiciary Committee. He taught me that the best way to get something done to improve the world is by listening and talking to people who disagree with you. I like to advise students not to complain and to reach out to people with whom they disagree to listen to their perspectives because, eventually, they can find common ground and from that they can begin to dialogue and reach agreements.

Your answer reflects the trajectory you have had over the years. What has been your favorite job?

Early in my career, I was interested in administrative law and antitrust. But my favorite job was being counsel to the Judiciary Committee under Senator Kennedy because it was so much fun and interesting at the same time. Senator Kennedy taught me the importance of having a team of people with different skills and backgrounds working collectively to help others. I love jurisdictional work, but I think the legislative branch and the judicial branch work under different time periods.

You have mentioned that becoming a Supreme Court justice is like being struck by lightning twice.

We are talking about a nomination by the presidency and a confirmation by the Senate. Unfortunately, today more than ever, the nomination process has become a political issue; although that ends once you become a justice.

For a long time, you were the junior Supreme Court justice. What challenges did that entail?

Let us remember that we are nine justices and each one represents only one vote. We met privately and had unwritten rules, for example, no one could speak twice unless we had all spoken at least once. I think that was fair because it allowed the junior justice to express his opinion and be heard. Another advantage was that the meetings were private, and we could say what we really thought. Also, we had time to reflect and listen to what others thought. I think it was easier to make decisions because we listened to each other and identified where we could contribute collectively.

One thing I admire about you is your ability to engage in cordial conversations with people who have opposing views. Why is it important to have this perspective and what do you seek to convey by having these kinds of discussions?

The job of justice means to serve our nation through arguments and everything operates better when we are respectful of others. We all maintained a cordial relationship, I never heard anyone yelling angrily or anyone making fun of anyone else. It was a professional, friendly relationship that worked that way most of the time. There have been periods in the history of the Supreme Court when the justices did not get along and expressed it in public, but I think that is not a good idea because everything works better when you try to reach an agreement and listen to each other’s ideas.

You have written about the legitimacy of the judiciary and have reflected on the importance of having a system that allows for the nomination and confirmation of judges. Currently, in Mexico we are debating the possibility of electing judges.

Alexander Hamilton believed that we should give judges the final word on the meaning of the Constitution because, on the one hand, the president would say that everything he does is constitutional. On the other hand, members of the legislature are experts on popularity. That is, if they did not know about popularity, they would not have been elected and so they would decide what is constitutional based on what the majority wants. The point is that the Constitution protects both the most popular person and the least popular person. We are all equal before the law.

Hamilton said that judges should have the final say because they do not depend on money and cannot be bribed, and they do not have an army. Going back to ancient Rome, when a leader did not have the money or the army, the only way they could persuade people to do something was through a good system. No institution is perfect, but for example, there are states in my country where local judges are elected democratically and there are questions about how they should campaign and receive contributions. What if they have to decide a case in which the people involved are their supporters? How can we guarantee impartiality? There are other systems in which bar associations nominate candidates and there are many other models, but I think it is not a good idea to have a system in which judges are elected.

Going back to the issue of legitimacy, you have written about the reasons why citizens obey Supreme Court rulings, even when they disagree with them. Why should judges be interested in this? Isn’t it difficult for judges to know what citizens think when they are so far removed from most of the public?

To a large extent it is difficult, but we can read the newspapers, watch the news, and be informed about the history of the court.

A few years ago, the chief justice of the Supreme Court of Ghana sought me out because she was trying to implement civil rights in her country and asked me why people in the United States obey court rulings. I explained to her that it is a matter of habit and has developed over many years.

The rule of law means that people will obey the laws, even when they disagree with them. They may be right or wrong, but there is a process to change and improve them. We can watch the news and see perfectly well what happens when there is no rule of law. If we want to convince people to follow the rule of law and court rulings, we must explain to them how the system works. The job of lawyers is to explain to citizens the importance of having the rule of law and that the best thing to do is to obey the law, even when there are rulings with which they disagree.

Why write another book when you are already retired?

I believe that it is not enough to stick to originalism, that is, to read the text and know the meaning of the words at the time the Constitution was enacted. I believe in pragmatism, which consists of analyzing the purposes, the consequences, the history, and other aspects. I wanted to write this book because many professors have written books on theory and one can read a lot of theory, but one thing they don’t have is the experience I have as a judge. What I try to do in this book is to give examples about laws, about parts of the constitution, and explain cases in which different judges voted in different ways and the reasons why we voted that way. From that, readers will be able to take a position and I hope they will agree with me, but that will depend on their judgment. I want to make very clear what I have learned over 40 years of experience making decisions as a judge.

One of the major themes of the book is your analysis of pragmatism. Why should judges take into account the purposes and consequences of the laws they interpret?

Let us remember that the Supreme Court justices interpret laws in very complicated cases in which lower courts have different conclusions on the same question. If judges reach different conclusions, it is because we are dealing with very ambiguous laws. The first thing judges should do is to read the text and if it is not clear, they should look for clues in the law and in the discussions that the legislators had at the time of enacting the law. Then, they must take into account the consequences of interpreting the law in a certain way in the real world.

It is very important to take these aspects into account and try to have an outcome that furthers the purposes that the legislators had in enacting the laws. At the end of the day, they were democratically elected and are trying to do what is best for the country. The job of judges is to find answers when the laws are ambiguous.

What would be your advice to students who have not yet found their vocation?

After working at the Department of Justice and clerking at the Supreme Court, I thought about going into academia and met with Bayless Manning, the Dean of Stanford Law School, and he told me that it is important to make decisions about our career path, but the reality is that we never know more than 5% or 10% of what we need to know to make the best decision. Manning advised me not to try to walk a tightrope and to make a decision that would make me happy, because only then would my life fall into place properly. Some days will be terrible and some days will be amazing, but that’s part of life and the best we can do is strive to move forward. 

My recommendation for law students is to prepare themselves, do their best and learn the virtues of working in the private and public sectors. You don’t have to work forever in one sector and each experience will enrich you and prepare you for the next step on your journey.