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CNN LARRY KING LIVE

Supreme Court Justice Stephen Breyer Interview

Aired November 23, 2005 - 21:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


LARRY KING, CNN HOST: Tonight, Supreme Court Justice Stephen Breyer, a rare in-depth one-on-one with a sitting member of America's highest court, Supreme Court Justice Stephen Breyer for the hour next on LARRY KING LIVE.
It's a honor to welcome to LARRY KING LIVE here in Washington Justice Stephen Breyer, Associate Justice, United States Supreme Court, the author of "Active Liberty: Interpreting our Democratic Constitution." There you see its cover. He was appointed to the court by President Clinton in 1994. Why write a book?

JUSTICE STEPHEN G. BREYER, U.S. SUPREME COURT: Well, I wrote this book really for two reasons, Larry. One, I wanted to try to explain to people by using cases, by using cases and describing the merits of the argument what it's like to decide a case. I want them to see a little bit of how one Supreme Court justice and maybe more than one approach the difficult constitutional problems.

But there's another reason and I think this is the immediate impulse. Justice O'Connor, Justice Kennedy and I were at a meeting where people were talking about how do we teach high school students about the Constitution and there was a long list from lawyers and others what's the most important part of the Constitution?

Some said the First Amendment, free speech. Others said privacy. Others said well perhaps it's equality. We had the same reaction the three of us. All of us said, wait a minute, those things are important but they're not really what the Constitution is about at its heart.

At the heart of the Constitution is an effort to create a form of government called democracy. That's the heart of it. The others are important but they express a kind of democracy that we want. The democracy is the heart of it and I wanted to explain that to people because I think it's an important thing.

KING: You mean the Constitution is an effort? You used the word effort.

BREYER: Yes, of course it's an effort. That's a good word. What a good word because, in fact, that's what I've called this "Active Liberty." It's only an effort because I think the people who wrote this document, and I see it every day in my job, they wrote institutions but those institutions will work, our democracy will work only if people participate.

KING: Were they geniuses the Founding Fathers? Were they far reaching? Were they superior intellects?

BREYER: Quite a few of them were actually. I think probably, you know, Madison and Hamilton and Jefferson and Washington, I mean they were superior intellects. They came along at a good time in history and they had tremendous optimism. And that optimism showed itself in an effort to write this document. Everything's an effort. All life is an effort.

(CROSSTALK)

KING: Would it be worth very little without the Bill of Rights?

BREYER: It would be worth something but the Bill of Rights is critical. I mean that's what the Bill of Rights -- see it tells us what kind of a democracy. I can say when I read the document that happens in my job. Eleven years, eleven years of working every day with the Constitution you begin to see the document as a whole.

So, when I say democracy you immediately say what kind of a democracy? And I'll tell you it's a democracy as I see it, as I read the document that protects basic liberty, that assures a certain degree of equality, that divides power into a lot of pockets, states, federal government, executive, legislative, judicial, so that nobody becomes too powerful and that insists upon a rule of law. Now, those qualifications set boundaries and in between those boundaries there's democratic space.

KING: And in that space we can have you with an opinion and him with an opinion and her with -- so, two doctors can look at an x-ray and read it differently, right?

BREYER: Yes.

KING: Two justices can look at the same law and interpret it differently.

BREYER: Ah, but I'm going to say that I don't like to disagree with you.

KING: Please.

BREYER: But I disagree with one phrase you said and that's the phrase within the democratic space. When we decide a constitutional case, we're not within the democratic space.

KING: Where are you?

BREYER: We're at the boundaries and what we're asked to do is really to decide whether this law passed by Congress or passed by a state legislature does it fall outside those boundaries?

Now what are the boundaries? What I said, fundamental rights, equality, separation of powers, rule of law. Now, when you're at the boundaries people disagree, often but not always and that's what we're doing and I emphasize that for a very simple reason that people very often think that what we're doing is deciding what's good for people. We don't do that. At least I hope we don't. Rather, I want to emphasize that in this huge democratic space it's not up to us what kind of society people have. It's up to them.

KING: Ah, but wouldn't a German judge in 1934 have said this is what they wanted, they wanted Adolf Hitler? I'm just interpreting what he said.

BREYER: That's why one of these things right at the boundary and I think it's terribly important is the Bill of Rights because if, in fact, we were in ever such a terrible situation, I hope we never would be, but were we then the court would be responsible for saying that this law that hurts these people goes too far. Majorities, majorities can tyrannize too.

KING: Sure.

BREYER: And that was a genius recognition by the founders and they -- they were right. It wasn't really until after the French Revolution that other people began to understand it. Majorities also can make mistakes and therefore those boundaries, the Bill of Rights, the equality, the separation of powers, the rule of law, those boundaries are very important.

KING: Why is it hard to explain to people that majority rules is not all out, is not everything because the majority can rule Jews can't go into public buildings?

BREYER: Yes, yes, yes that could happen. That did happen. We saw it happen. We saw it happen in other countries.

KING: And you're there to protect that one person to go into that building.

BREYER: Well, it's hard sometimes to understand that. I think it's hard. Usually when things are difficult it's because there's something good in the difficulty and the thing that I find good in that difficulty is I think for Americans particularly, you know, we have a basic belief that we're -- everybody knows people differ in a lot of ways but as a human being that person is as good as me. My father used to tell me that.

You know I'd go down Market Street in San Francisco, we'd walk down Market Street and he'd look at somebody, sometimes a rather disreputable looking person. He says just don't forget that person has a vote too.

And so you don't want -- you want to say that remember I have a vote. You have a vote, one vote that's it. And so it's not directly democratic to be controlling those boundaries but it's necessary. It's necessary.

KING: Our guest is Stephen Breyer, Associate Justice, United States Supreme Court. The book is "Active Liberty: Interpreting our Democratic Constitution," now available everywhere on this Thanksgiving Eve. We'll be back with more. (BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: That I will well and faithfully discharge...

BREYER: And that I will well and faithfully discharge...

UNIDENTIFIED MALE: ...the duties of the office on which I am about to enter...

BREYER: ...the duties of the office on which I am about to enter...

UNIDENTIFIED MALE: ...so help me God.

BREYER: ...so help me God.

UNIDENTIFIED MALE: Congratulations Justice Breyer.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: We're back with Justice Stephen Breyer. The book is "Active Liberty." Why in an open society can't we watch the court?

BREYER: Ah-ha.

KING: Why can't a camera be -- what is so sacrosanct?

BREYER: Nothing. Why can't you? You can go over and watch.

KING: But maybe you're in Delaware?

BREYER: Yes, yes, that you raise and I'm being facetious, a little flip and I won't be, so you want to know why don't we let cameras into the courtroom? And there's a lot to be said to letting them in.

Sometimes I think we have a case, one that always comes into my mind in this respect is a case about term limits. Could the state of Arkansas impose term limits on their members of Congress under the Constitution?

My goodness that was a close case, you know, if you looked at the language it doesn't really tell you. If you look at the history, you saw Madison on one side, Jefferson on the other side, John Marshall on one side, Storey on another side, my goodness it was hard and everything seems very evenly balanced and if people could have seen the oral argument in that case, they would have thought, well, here are nine people who really don't purport to have the answer. They're simply struggling to find it.

KING: What's wrong with that?

BREYER: Nothing. That's good, so why not? Well, here are the things that we worry about. If there were television in the courtroom, would it be in every criminal trial in the United States?

And, could you have a trial with witnesses, with jurors who might be worrying about what their neighbors would think and so forth and so on. There are a lot of people who think television poses a special problem in criminal cases.

KING: What in your court, what problems?

BREYER: We're afraid not. It wouldn't pose that problem but for one fact. We are a symbol and if we're a symbol and we have it, will it be possible to resist? It's very powerful television, very powerful.

There's another thing too that bothers me. One is -- it's this that people understandably and wonderfully relate to other people. They will relate to the people in front of them. They will say, "I like that lawyer, don't like this one, like this judge, don't like that one." And what about the story of the person they're representing? What happened to that client and what happens to the other?

Well, in the Supreme Court we have to be aware not just of the people before us, we have to be aware of 200 or 300 million people who will be affected by the rule of decision and they're not there, so I worry about that because I don't want people to get a misimpression. The oral argument itself is like five percent of the whole thing.

Most of what we do is in this enormous stack of briefs. Most of what we do is in memos, briefs, reading. I say when people say what is the job like you know what I say? I say what is it like every day? I said I told Michael, my son, I said, "You know, Michael, if you do your homework really well, you'll get a job and you can do homework the whole rest of your life." So, I said now will people understand that?

KING: Nothing surprises you though because you clerked for Arthur Goldberg.

BREYER: I did. I did. Oh, I did. I loved it.

KING: So you knew the ways and means of the court.

BREYER: Yes, I knew. Yes, I loved Arthur Goldberg. We got on very well and...

KING: How are you doing with the new chief justice?

BREYER: Fine, fine.

KING: Like him?

BREYER: Yes.

KING: Do you fellows and ladies argue a lot?

BREYER: Yes but in that conference room where I have been going now for eleven years, eleven years, I have never once in those eleven years heard a voice raised in anger. I have never once heard any member of our court say something slighting or denigrating of another justice, not even as a joke. In that room we are professional. We state our views. We listen to the others.

And the key to that conference is people are saying what they really think. They're not trying to create an impression. And everybody writes down what everybody else says and there is some discussion and it works because we all respect each other as individuals even -- and we like each other as individuals no matter how much we disagree and we do disagree on many very important issues.

KING: There were no arguments, expletives, even when deciding the election?

BREYER: No. Personal, no, it's professional and it's polite because what good would it do? I mean, you know, being practical suppose I got angry and I said, you know, "This is really important!" Well as you can see...

KING: You're wrong.

BREYER: Yes, you would say, "Well I think it's important too," you know and I think my position is right. That gets us nowhere. What gets people somewhere is listening to what the other person says, seeing where he or she is coming from, trying to reply in terms that the person who said whatever he said or she said will appreciate the response in terms of where they are not where I am and we all understand that and we have a constructive conversation.

KING: When you watch things like Harriet Miers and now Judge Alito, Miers, I'm sorry now Judge Alito, you read the papers obviously.

BREYER: I do read them.

KING: Do you think back to your own confirmation?

BREYER: Yes, I do and I think...

(CROSSTALK)

BREYER: Well, I think, you know, people say -- often I get a question what about the appointments process? And I usually say from my point of view I was the appointed person. I was not the appointing person. So, asking me usually is like asking for the recipe for chicken ala king from the point of view of the chicken. See, I'm there. I'm in front of 17 Senators and people sometimes ask me were you nervous? Yes, I was nervous. Were you stressed? Yes, of course, and people are listening.

It's true it's a kind of way of injecting a democratic element into a process where once I'm selected or anyone is you're at this court for a long time and the public has very little control, as it should be. You wouldn't want a judge, I don't think, who is going to be subject to public control if you were an unpopular defendant. You want the judge to be independent.

KING: By calling the book "Active Liberty" does that means there's inactive liberty?

BREYER: I'm contrasting it with something, something that's also very good but different. I want to contrast when I say active liberty I'm going back to a very old notion. There was a French writer who made this distinction, Benjamin Constot (ph).

He said if you look back to Greece or to Rome, the ancient republic of Rome, as the founders did, they did look back, what you see is their idea of liberty was the sharing by citizens. Now there were a lot of people who weren't citizens. Black people were not citizens. Lots of minorities, even at the time, you know, women were not full citizens.

But take the citizens and they saw liberty in terms of a sharing of power. That's like democracy and I want to say democracy and I want to say active democracy because it expresses the notion that people should participate.

Now there's another later development which you expressed when you said the Bill of Rights. We have to protect people as well from government. That's also very important.

But I want to say in this book, without forgetting how important that second things is, the Bill of Rights, fundamental liberty, let's go back and not forget the first thing. The first thing is participation in a democratic process, so people can choose themselves the kind of community that they want to live in.

KING: We'll be right back with Justice Stephen Breyer of the United States Supreme Court. The book is "Active Liberty." Don't go away.

(COMMERCIAL BREAK)

KING: We're back with Justice Stephen Breyer. The book is "Active Liberty." We'll cover a plethora of things. When you sit down and you're hearing a case have you made any pre-opinion?

BREYER: Yes.

KING: That's based on the readings, the briefs and everything right?

BREYER: Yes. Now, I'll put this question to you because many people in many different professions have the same attitude. You have a difficult decision to make. As soon as you begin to think about it don't you favor one side rather than another?

KING: Sure.

BREYER: But your mind is open. You might change. So, I read that first brief. I read the first brief. I look at the question. Already I have an opinion and I think, my goodness that sounds right. It's like the old joke, you know, I read the petitioner's brief. I think well that's right. I read the respondent's brief. I think well that's right. Somebody says they can't both be right. I think that's right.

I mean that is exactly what happens. I think this then I'm shifting. I'm thinking that. So, it's -- and when I'm in the oral argument I go into the oral argument and I have a view.

KING: Can you be swayed?

BREYER: Absolutely.

KING: Absolutely.

BREYER: Absolutely. That is the key. I'm holding myself open to being persuaded and if I come out of that oral argument and I change my mind, as I do on occasion sometimes, more often than people think, I don't think, oh how stupid I was. I think how great. You see I'm holding myself open. I want to be persuaded, so persuade me. And then we go into the conference. You see it's becoming narrower and narrower.

By the time that conference is finished, I say it's tentative but it isn't really so tentative. And by the time people write drafts of opinions and circulate them we change sometimes, once a year, twice a year you see it's getting -- and after the thing is over and out do I think, wow that was such a difficult case, I guess maybe I was wrong?

I do not. I think that was a difficult case but I'm glad I got the right side. Then a month later it wasn't so difficult, how obvious. You see that's human nature. That's psychology protecting myself.

KING: When politicians say "I want a justice who will interpret the Constitution as it was written," don't we all interpret it as we see it?

BREYER: Well, I think we do.

KING: So, as written, Justice Hugo Black read the First Amendment to the Constitution and said there can be no libel suits because it says "Congress shall make no law." That's definitive, no law.

BREYER: Oh, yes.

KING: You could interpret that different and say, well, libel is allowed right?

BREYER: It says, "No law respecting the freedom of speech," ah- ha, the freedom of speech. That doesn't quite define itself. What is the freedom of speech? And, as soon as you understand, as I think I -- I mean I think, you know, as soon as you see that the freedom of speech is not a self-defining expression, then you have to look beyond the words themselves. And what do you look to? I think you look to the text. We've got the words, the freedom of speech. They restrict us but they're not completely defining. So, we look to other things.

KING: What?

BREYER: What did the founders think, the history? What's the tradition? What are the precedents? And, what is the value, the object, the purpose of having those words in the Constitution?

And, once I begin to understand that better, well if I decide in this case this way or that way what will the consequences be consequences not in terms of is it good or bad but consequences judged in terms of the values or purposes of that phrase, the freedom of speech.

KING: Therefore, isn't it hard to interpret it literally?

BREYER: I think so and I say usually that nobody -- if you want to say what are the big defining sort of definitional differences among judges, I tend to think they're not as great as some people think. I say every judge in my opinion, maybe you'll get some other judges who don't agree, it's a risk to say every, but they use the six elements that I've just listed, even if it's a statutory problem or a constitutional problem.

Judge, look to one the text; two, the history of those words, how did they get where they are? Three, the tradition; four, the precedents, the precedents that have interpreted them; now five, the value or the purpose underlying that phrase, what's it there for? What's the purpose that it's serving? And, six, the consequences of deciding one way or another judged in terms of that purpose or value.

Now those first four, text or language, the history, the tradition, the precedent, some judges emphasize those and say that's almost the whole story but they will not deny that sometimes the last two are important. And other judges, and I put myself in that category, emphasize the last two, consequences, purposes, values and say the first four are there and they're important but they're not the whole story.

KING: Back with Justice Stephen Breyer. The book is "Active Liberty." We are not surprised why he is on the court. Don't go away.

(BEGIN VIDEO CLIP)

BREYER: The rule of law is the crown jewel of our democracy and I pledge and promise that the oath that I've taken to preserve, to protect and to defend it to the best of my ability, so thank you very, very much.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: We're back with Justice Stephen Breyer, associate justice of the United States Supreme Court and author of "Active Liberty."

I know you cannot discuss current cases before you. Are there cases coming that you dread? Well, dread may be a bad word. "We're going to have to decide that one."

BREYER: I know some are going to be rather difficult. They're all difficult, but when you see a major, visible matter, you have civil liberties, security. When you have some of the times the social issues come up in legal forum, I think this will be difficult.

KING: And we're going to have cases, obviously, of the presidential power to hold someone without charging him, right? We're going to have to deal with that. I'm not asking what you think of it, but you'll have to deal with it.

BREYER: Yes, yes, that's quite possible. We did have -- that's true. We have granted one case involving Guantanamo. It's not quite that issue, but...

KING: All right. How do you choose what case you take?

BREYER: We get about -- we have about 8,000 requests. And it's more mechanical than you think, much more.

If I say, "Where is law made in the United States?" I like to ask students, you know, 10th-grade students, those that are from California, I say, "What city is the law made that affects you? What city, the law that's most important to you?" They figured out after a while, it's Sacramento. It's Sacramento, California, not Washington, D.C.

Most law in the United States is state law. Family law is state law.

KING: They're not your business?

BREYER: Right. We decide federal law. That's the Constitution, Congress...

KING: So of the 8,000...

BREYER: Yes, now, 8,000 come to us on federal law, because there are millions of cases. They go through the trial court. They go to the appeals court. Then they come to us; 8,000, we take 80. Eighty out of the 8,000, out of maybe eight million in the whole country.

How do we choose those 80? Now, President Taft, who later became chief justice of the United States, explained this very well. He said: We are not here primarily -- we are not here to say whether the lower courts are wrong. Everybody has had one trial, one appeal, maybe two appeals, maybe three, before they get to us. And for us to try to consider these thousands of appeals and so forth, we couldn't do it. So why are we there?

He says we are here for one reason, one reason: to create or interpret a uniform rule of federal law -- that could be the Constitution, it could be Congress -- a uniform rule of federal law, in a case that requires it.

Well, where does it require it? Now, if all the judges below us have come out the same way, does it require it? Probably not. You know, they're -- Jackson used to say this. He said something nobody understands. He says: We're not final because we're infallible; we're infallible because we're final.

(LAUGHTER)

Now, nobody knows what that means (INAUDIBLE) because we're not -- we don't have the last word because we are so brilliant. We are, of course, brilliant...

(LAUGHTER)

... he says, but only in one respect: the respect that somebody has to have the last word. See, we don't have to take the case if they're all on the same side.

KING: How many of you decide what cases?

BREYER: Four.

KING: It doesn't need a majority?

BREYER: No, four.

KING: If four say, "We want to handle it," we're going to handle it?

BREYER: That's correct.

KING: We were shocked a lot, because normally you stay out of divorce and state matters, but you're hearing Anna Nicole Smith's case, with regard to her late husband. So, without asking how you're going to -- I'm not asking how you're going to rule -- how did that involve the Constitution?

BREYER: I will not comment on a case, but I will say one thing about the case: It's a bankruptcy case. Bankruptcy law is federal law.

KING: Ah, OK. There's a story now out of Texas. There is a pretty good possibility an innocent person was put to death. If that turned out to be the truth, would that give you pause on any case you're handling, with regard to the supreme penalty?

BREYER: Yes. Yes, I think that would be a terrible thing.

KING: Might it affect how you would rule?

BREYER: You mean, if you had a case and you're convinced the person is innocent? What's the truth of the matter? The truth of the matter is, if I come to a conclusion -- you know, usually we're deciding a matter of law.

KING: Right.

BREYER: You say, is it ever affected by the underlying merits of whether somebody you think is innocent could be executed? Yes, I think sometimes you look very carefully, you look very carefully.

KING: The public opinion polls say we're changing, with regard to capital punishment. Will public opinion polls affect the court?

BREYER: Public opinion polls do not affect the court, in this respect. No. Public opinion polls don't. I mean, we're appointed there -- we're there to decide the law. And we're there to decide it independently.

And I think, oddly enough -- I say "oddly" because people find it hard to accept -- but I think, oddly enough, when you're in that job -- you know, it's not a job -- I'm in a court -- or I look there every day -- I'm sitting in a seat where, as I look over that court, I think, "This is the room where they decided Brown vs. Board of Education."

You know, Earl Warren, end of legal segregation. He was not a popular man, in large parts of the United States. He was not popular, nor were his colleagues. You remember those signs, "Impeach Earl Warren"?

Well, this is the nature of the job. They made the reputation of this institution. I'm a trustee. I'm a guardian of that. And first and foremost in being a guardian of that reputation is independent thinking. You're an independent judge; that's why you're entrusted with this. Opinion polls are not to the point.

KING: We'll be right back with Justice Stephen Breyer. His new book is "Active Liberty: Interpreting our Democratic Constitution." Don't go away.

(COMMERCIAL BREAK)

KING: This has happened to Judge Alito so it's fair to ask. He's asked constantly about Roe versus Wade. What would you do with precedent when you may disagree with what the precedent was and he has said there's a mixed bag here, so forget about Alito for a minute. Brown versus board, right?

BREYER: Uh-huh.

KING: What if you disagreed with that decision?

BREYER: I don't disagree.

KING: What was the reason, if you did, would you overturn?

BREYER: Precedent has tremendous weight. Everybody knows on the court, everybody knows law is a conservative institution with a small seat. Conservative.

And the reason it's deliberately conservative is people have to plan their lives, businesses have to plan their business, labor unions have to know how they can organize, homeowners have to have security in their houses.

Every one of us needs a degree of legal security. And, therefore, when law changes it changes slowly. And over long period of times so that people who have built their lives relying upon law can do so with some concern but not too much concern that things may change.

KING: So you have to weigh it?

BREYER: You follow precedent. You can't say, always, look at Brown vs. Board. Brown vs. Board overruled a precedent.

KING: Correct.

BREYER: It overruled Plessy vs. Ferguson. That had been the law, that had been the law for 80 years. Well, but my god, what a mess it had made. I mean, the constitution says no state shall deprive any person of equal protection of the law.

Were they depriving people of equal protection of the law? You go down and look at the South, you go down and look at the south and you see those shacks that they had for the black children, and fairly modern schools for the white children.

You saw whole system of segregation set up. And it was started out of balance. It got worse and worse and worse. And worse and worse in terms of departing from both the letter and the spirit of the constitution.

So after a while the court had to say, and, of course, it was right to say, enough is enough. But, do you think that court by itself could have enforced the new law?

I put in my mind, usually I have as a marker that I think was terribly important in the life of the court and the life of the nation, was when President Eisenhower decided to send paratroopers, paratroopers to Little Rock. I bet you remember that, as do I.

He stood in the door. He stood in the door and he says I'm not letting those black children in this white school, and they sent paratroopers. And paratroopers took those children by the hand and why they've walked right into that white school.

You could have had all nine justices of the Supreme Court, all nine justices, all of them sign an opinion saying you have to let those children in or you could have had 900 judges, you could have had 9,000, you know?

It required the paratroopers. But I consider that so important because it was an instant when the nation as a whole through the President decided we will follow the law, whether we like it or whether we don't like it.

KING: We almost always do, don't we, with the Supreme Court we follow the rule. Some we don't like, others, but we --

BREYER: That's what's fabulous. I try to explain this sometimes. I have a chance, I have a chance sometimes to go to, say, India and look at that legal system. Justice O'Connor and I were there. Or a lot of countries. We get to see some of what's happening in other countries.

It's so important, I think, to them, for us to be able to say, you know it took us 200 years in the United States. This is not something that happens overnight.

Andrew Jackson threw all the Cherokee Indians out of Georgia. They had to walk to Oklahoma. Most of them died, contrary to a Supreme Court decision. He said, John Marshall's made his decision, let him enforce it. But we have Eisenhower sending in the troops.

Now what's the most important thing about the recent cases? What you want? Any controversial issue, school prayer, abortion, you know, Bush vs. Gore.

I say and I like to say this to the students, I like to say to the students the most important thing about those cases is what you never read about, that people disagree like mad but they'll follow it and that's what keeps the 300 billion people here together. It's called the rule of law. It's a fabulous thing.

KING: Lucky, too.

BREYER: Well, when you go -- I was in France two years ago. My goodness, so interesting. A woman gets up at the end of this huge thing and she says, well, Mr. President, call everybody president, she says, Mr. President, what I want to know is how are we going to transmit these values in this code, the French code or whatever, how do we transmit them to our children?

And I thought, you know, that's my problem, too, that's our problem right here. It's a universal problem.

KING: Back with more of Justice Breyer. The book is "Active Liberty." Don't go away.

(COMMERCIAL BREAK)

KING: Justice Breyer is our guest. Are you at all apprehensive about what is certainly going to be coming to you, gays and marriage?

BREYER: We take the cases as they come. You know, I say we take those cases where there's a need for a uniform rule of federal law and they can be the most explosive case in the world or the least.

We took a case involving whether a comma after a certain number, say, 36842 section of the internal revenue code, means that the next word which is a four should be interpreted as a which or a that.

I said, I like that case, to my colleagues. It's technical. But there was a division among the lower courts. We had to decide it. So we're not taking cases because they're very important in the press or because they're not.

We're taking the cases because there's a need for a uniform rule of federal law, whatever they are, we'll do our best.

KING: Why is there never a leak? Why do we never hear what a decision will be the day before it is announced?

BREYER: I think most people when they're in an environment of an institution that's important to others and they take it seriously --

KING: I don't think we've ever had a leak.

BREYER: I hope not.

KING: How good a Chief Justice was Rehnquist.

BREYER: He was good. He came into an environment, I gather -- I wasn't there -- that was somewhat difficult. He was very fair-minded. He'd go around the room in the conference. He would not try to impose his own way.

He had a rule, which we followed -- I'm junior, you see, still. I'm the junior, so we speak in order. And I'm last, so -- nobody can speak twice until everyone speaks once. That's a good rule for a small group. I benefited from it, of course.

KING: You're still last?

BREYER: Yes, I'm last. I'm the junior.

KING: Well, yes, the chief justice is...

(CROSSTALK)

BREYER: I'm the oldest junior, you know. No, but he's the chief, so he has the seniority. And so I'm the most senior junior, or whatever you want to call it.

KING: You're very close to Justice O'Connor?

BREYER: Yes, that's true.

KING: Did that develop quickly?

BREYER: Oh, I mean, we get on well. And I've learned an enormous amount. I mean, everyone on the court gets on well. But, I mean, I've learned a lot from her.

I mean, I've learned -- I think one of the best things is that she's able and understands the possibility of using this label that we carry around, Supreme Court justice, that can be used sometimes to help advance public good of certain kinds.

You can't be controversial. It can't be something that's political. But, for example, in India, they're very interested in making their justice system more accessible. They have long delays, and they're trying to improve it. And being there, maybe, as a Supreme Court justice, you can help.

Or we go to the Navajo reservations here, which we've done, and look and see how their justice systems work. And there are things to learn, from the way some of the Indian tribes run their system.

She's very -- she's public-spirited. And I like that. I like that, public-spirited.

KING: She wanted a woman, another woman appointed. Did you have a thought on that?

BREYER: I have a thought that we have a lot of diversity, a lot of diversity. You know, I can't comment on people to appoint or not appoint.

KING: People lump a lot Scalia and Thomas. How do you get along with them?

BREYER: Fine. I hope fine. I hope fine.

KING: Is Justice Thomas easy to get along with -- because we never hear much, you know, from him or about him?

BREYER: No, we get on well. Everybody does get along pretty well. You know, it's not back-slapping. It's more formal than when I was in a court of appeals. But...

KING: Do you socialize?

BREYER: Some. Some. I play bridge. I used to play bridge occasionally with former Chief Rehnquist and Justice O'Connor. I mean, some people play bridge.

KING: Do you discuss cases when you're at lunch?

BREYER: Occasionally. It's worked best in discussing cases when it's in a formal context. Why? Because what you say matters, and you want to be organized.

And I noticed, you know, in the court of appeals sometimes we'd be talking -- if we're talking about a case too informally, two judges, you and me, can start talking about a case and halfway through we'll realize we're talking about different cases.

(LAUGHTER)

That can happen. That can happen. So it's important to be organized. It's important to have your thoughts in order. The formality of the setting helps.

KING: We'll be back with our remaining moments with Justice Breyer, we hope the first of many visits. Don't go away.

(COMMERCIAL BREAK)

KING: We're back with Justice Breyer. We only have a few minutes left. One of our crew wanted to know if you watch shows like "Law and Order."

BREYER: I don't know if I've watched "Law and Order." I probably have in my life.

KING: Do you watch legal programs? Do you watch television a lot?

BREYER: I don't particularly make an effort. I don't particularly make a -- I watch television some, yes, some. Yes, I have seen this program, Larry.

(LAUGHTER)

(CROSSTALK)

KING: I wasn't asking this program.

BREYER: No, I know.

KING: In fact, I even had a friend say, "I don't know why they call Judge Breyer like a liberal, because he's a great friend of business." Have you had that said to you, that the business community likes Judge Breyer on the court?

BREYER: I'm fine. It's fine with me. I mean, I try to decide each case as it comes up and do my best.

KING: What don't you like about the job?

BREYER: You're at a distance. It is an ivory tower. There does tend to develop a kind of wall from people.

When I'm here -- that's why I like to keep -- we've kept our house up in Cambridge, Massachusetts. My wife is a clinical psychologist. She works at Dana-Farber. She's kept her job half- time.

I like being up there in many ways, because I'm not "The Judge." Down here, you know, in Washington, it's more formal. You have to, in going into that job, use your imagination, I mean, in a good sense...

(CROSSTALK)

... to try to remember...

KING: You don't like the removal?

BREYER: The removal, you are removed. It is isolating.

KING: Why don't more do what you're doing tonight?

(CROSSTALK)

BREYER: I think it's -- I'm limited in the kinds of things I can talk about. I'm pretty limited.

KING: By your own limitations, though.

BREYER: I don't want to -- yes, yes. But...

KING: You're the court. You can -- what you say...

BREYER: That's true. But it would be really a mistake to be led into saying things that really have an implication for a future case, a strong implication for a case that isn't yet decided.

Because when you have to decide a case, and you read through the briefs, and you listen to the argument, very often it's different than you thought it would be when you were talking at a cocktail party or maybe said something when you were being interviewed.

So it's important that you don't want to be led to a wrong decision by something, a comment, or some public statement or other, that you said in the past. And no one wants that to happen.

If you were a litigant in our court, you would not want that to happen. So you have to be careful.

KING: Do you have to be careful when you're hanging around with friends?

BREYER: Yes, because...

(CROSSTALK)

BREYER: ... David Souter said that. He said, "You know, with this job," he said, "you're always on duty." And there is something to that.

KING: You've been a wonderful guest.

BREYER: Well, thank you.

KING: It's an honor having you.

BREYER: Thank you very much.

KING: Justice Stephen Breyer, associate justice, United States Supreme Court, the junior member of the court.

You're anxious for the next appointment, I know that. He becomes next up.

The book is "Active Liberty: Interpreting our Democratic Constitution." And I know the justice joins me in wishing all of you a very, very happy Thanksgiving holiday.

"ANDERSON COOPER 360" is next. Good night.

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