♪ announcer: from our studios in new york city, this is "charlie rose." charlie: the supreme court began its new term this monday. the focus is less on the docket and more on the court's future, which hangs on the outcome of the presidential election. the seat held by antonin scalia remains vacant as senate republicans have refused to consider the nomination of merrick garland. stephen breyer has served in the supreme court for more than two decades. he was first named to the bench by president jimmy carter in 1980.

he served 14 years as a judge, and later as chief judge, for the art of appeals in boston. he is known for his love of literature and architecture. his third book was published last year. it explores the work of foreign and international law in american legal decisions. i spoke with justice breyer in y here in newt york city, and here is that conversation. i begin with this book called "the court and the world." we were talking backstage, and somehow this book, which is now in paperback, and you and i have talked about this, it is getting a resurgence. justice breyer: i hope so. charlie: you know it is. [laughter] charlie: why is that? is it because of our times? justice breyer: i think it is not just here, but in europe and other places of the world, there are a lot of people who see a

turning inwards, not just this country, but in many places, and they are worried about that. they are worried because they see problems that face us never turnat require us to outwards. it might,ht help us, to familiarize people with the kinds of problems that we have in one small, important institution, but what are the problems in front of us that require us to look beyond our own shores for a solution? when you see those, you think, oh, we will have to, and i think that is reassuring, because to, that's like someone said about economics. i am not a great economist. in economics, that which has to

happen, does happen. charlie: talking about the globalization and anti-globalization movement we saw in europe, coming from the middle east and migration, and some sense of people feeling that somehow there is a tide of history that is against them. justice breyer: i wouldn't think that necessarily, because when i talk to people at stanford in the audience, or berkeley, or tenth-graders, or i talked to my grandson's fifth here in th grade, i know fifth-graders go to sleep -- but law is one way of solving problems, trying to. you want the alternative? turn on the television set, and you will see what happens in countries that have other methods. charlie: but there is a wave of populism feeding on this sense of somehow the forces of

globalization have affected their future, their economic and insecurity, and the way they live. we saw it in the brexit vote. we see it in some of the political discussions in america. we see it in political choices being made in europe. justice breyer: it's here of course, and if you are interested enough in the court and will take the time to read a few pages, you will see a long period of time when the watchword was where you have needs for security, you have security, president, congress, got to keep us secure. they are the ones with the authority under the constitution, but we have the authority with respect to civil rights. what happens when we clash? there were hundreds of years, perhaps thousands, when the key to what the court should do --

you want one word? nothing. cicero said when the cannons roar, the laws fall silent. actually, he did not say that. someone pointed out to me that the romans did not have cannons. [laughter] justice breyer: that ruined the whole thing, but nonetheless, you get the point. now, go back and look. this is a long wind up in a short pitch. the windup is adam is our hero, a great man. charlie: john adams? justice breyer: john adams put people in prison for what they say. abraham lincoln put 18,000 people in prison. he had a problem. win a war. wanted to

justice breyer: correct. but they were not soldiers. you had wilson, woodrow wilson, great man, continuously stopping what people said, and you had world war ii, 70,000 citizens of japanese origin put in camps. charlie: so what is your point? [laughter] justice breyer: my point is --why does he want to know the point? such an interesting story. the point is that in guantanamo, the court turned. the court said -- sandra o'connor -- the constitution does not write a blank check to the president, not even in time of war. four detainees won the four cases, and the president lost. that's the point. the point is what is in your mind right now. what is the question in your mind when i say that? if it does not write a blank check, what does it write? that will be our job.

terrorism is international. countries all over the world are democracies too -- charlie: so we are to be influenced by all information -- justice breyer: not be influenced, but at least have information. appreciate -- charlie: justice scalia differed with you on this. he said so to me. justice breyer: the cases that he was most likely to say that were cases that involved the death penalty, gay rights. we were on opposite sides. my wife was a good clinical psychologist. she says displacement, you are angry at a, you blame b. you might not have liked the result in those cases. who do you blame? international law. what does that have to do with it? that is b getting blamed for a. i feel a lot of criticism comes out of that, but that is pop psychology. who wrote the opinions which paid tremendous attention to briefs filed by lawyers all over

the world, cases where there is a plaintiff in uruguay, a defendant in holland, and antitrust case? we've got to decide how american law applies, or how does american law apply securities law when you have a plaintiff in australia -- he wrote the opinion, is my point. i joined his opinion. he certainly looked to our law. what i am trying to show here is that there are many cases in many different fields. you can't avoid it. if you are going to decide that case correctly, i am going to give you case-by-case. you have to look beyond our shores. charlie: i want to come back to your opinion. is the best opinion you ever wrote a dissenting opinion or a majority opinion or a concurring

opinion? justice breyer: i don't think that's up for me to say. i would say i am not necessarily -- i don't know. i have written some majorities that i was very pleased with. one was a case involving a student from thailand who goes to cornell, and he discovers the same textbooks in bangkok half the price. says to his parents, send me a few. they sent more than a few. he began to sell them. the publishers got into it. annoyed. can he do it or not? lawsuit in our court. they answer lies in a few obscure words in the statute that no one can really understand. we received briefs from all over the world. i ended up writing the opinion. i felt i need to know what goes on in different parts of the world. the student won, but that's not the point. the point is to do a decent job in that case. charlie: you have to know. justice breyer: you have to know what goes on elsewhere.

majority. the dissent is probably in the affirmative action case. i wrote the affirmative-action case. i believe that affirmative action is constitutional. i was in dissent. i felt strongly about it, and i spent considerable time trying to show the constitution does not prohibit affirmative action, positive discrimination. charlie: let me ask you this. did you ever, ever, did your wife ever, ever think your name would be in the same sentence with kim kardashian? [laughter] justice breyer: this comes about through teaching. when you are teaching, what you do is you want to get an example that the class is going to remember. sometimes when i am asking a question -- not everyone thinks this way, thank goodness --

but it's pretty stream of consciousness. i have a question i want to ask, i am really curious. i want a lawyer to focus on it. i have gotten into the habit of using examples that are perhaps overly done. charlie: please explain what you did. justice breyer: i don't want to discuss an ongoing case. [laughter] justice breyer: i have said a lot worse things than that, and it's because i want an illustrative point. and i don't want to watch every two seconds what i am saying, but i want a lawyer to guess the -- get the point that i am making so i get an answer out of that lawyer. interestingly enough, and unsurprisingly, in an oral argument, lawyers are trying to win their cases for their clients. but from our point of view, and it sometimes happens, more often than you would think, the lawyers are there to help us.

and we are not saying who is the best lawyer. we are not saying who is the best client. the problem is interpreting some words in the constitution or in a statute and having an interpretation that will work well and be consistent with the law. it will be the law for 319 million or 320 million people who are not in that courtroom. sometimes in an oral argument, people sort of get going, and the lawyers say, "what do you know about this bankruptcy case? tell me what will happen if you do that." and you will get a conversation going. when you get a conversation going in a courtroom, you can make a lot of progress. and much of what we do is to try to get that situation going. ♪

♪ charlie: before an oral argument, you study the briefs. you think about the questions you have coming out of the briefs. does an oral argument have significance in where you end up? justice breyer: yes, i think it does. it doesn't.ks think

he put it the way i would put it -- does it affect the way you think about the case? if you are looking for an absolute switch from x to not x, that happens too often. if you are looking at how you think about the case, what are the words going to be, what is the main point, and which points to you deal with and which points are not that significant? that makes a huge difference to the law. the oral argument affects that quite a lot. charlie: after 22 years, how have you changed in terms of how you see your role and how you see the constitution, and how you see -- justice breyer: the first three or four years, david souter said this. said what i'm about to say, which is that you are sort of frightened. you are worried. how do i know? where can people go if i am wrong.

you are worried you are going to make a mistake. i thought i could do this, but how do i know i can? after a while, you think, for better or for worse, here i am, and the most i can do is my best. what david also said, which i think is absolutely right, you are always on duty. so be careful. that ied the line with think, but be careful, because you are always on duty. you think, the most i can do is my best, and i think all of us, every one of us has tried to do his or her best. i mean, you are putting out. and as you get older, that becomes a privilege more and more. you have a job where you can go in every day, and you just have to do your best. and then you say over time, well, i have seen these cases before.

be careful, you have not really. they are not quite the same as what you saw before. again, over time, this goes back to the question that you wrote, that you said -- what is the best opinion? what is the worst opinion? it is not a contest. it's not a game. it is not a contest. you do the best you can, and it is going to be up to other people sometime in the future to know whether the views you took of the constitution or the views that you took of statutes, or the way you approached a case, whether that was the best way to do it. you talk about justice scalia. indeed, one of the best

discussions i had with him took place in front of 2000 students in lubbock, texas. they probably had not seen a supreme court justice. we went on for about an hour, and we tried to describe what we did. we tried to explain we do have different points of view to some degree, not as much as people think, but to some degree. i went away thinking -- and he did too -- it is not so important whether they agree more with him. he is afraid i would be too subjective, and i would tend to substitute what i think is good for what the law requires. i would think, i try not to do that, but more importantly i would say, you have a method i think is too rigid. youhink the way sometimes ou -- i don't say it in a rude way, but he knows that's what i mean. the constitution will work as well for the people who have to live under it now. and we talked about that. whether they agreed with me more than him, i think the 2000 students left feeling better about the institution. they saw we were friends.

they saw we proceed on the basis of reason and argument and thought, and try to understand each other's point of view. and try to understand each other's point of view. it's not so terrible in this country that people have different points of view on the supreme court. it's a big country. charlie: do the justices of the supreme court agree much more, ruling 9-0 more often than we imagine? let's say you agree 70% of the time -- justice breyer: 50% we are unanimous. charlie: 50% of the time, the nine justices agree. justice breyer: yes. and 5-4 is about 20%. and it is not always the same five and same four.

i'll say that, law school audience, legal school, that is our biggest problem. people think we are junior league politicians. we are junior league politicians, that's what we think. charlie: amateur politicians. justice breyer: i would say junior league, because -- [laughter] justice breyer: look, you know who tried to be a politician is roger cheney. he thought that perhaps by reaching a decision saying a black person was not a person -- held --oughly what he unbelievable -- but he thought he would help prevent the civil war. if anything, he helped bring about the civil war, because benjamin curtis wrote a great dissent showing -- i think at that time, his decision was wrong.

abraham lincoln picked it up. he read the decision and said it was a shocker, and used the dissent in his speech at cooper union, which was the speech that propelled him to the head of the republican party, and help get him the nomination. he was really an abolitionist at heart. and the civil war followed. so if that was justice cheney's idea, he was wrong. justices are not politicians. they are not even junior league, and i can explain that later if you wish. [laughter] charlie: i do. but i just talked last week in the chambers at the supreme court to justice ruth bader ginsburg. she said to me that she would like to see more of a conversation between the court and the congress. justice breyer: it is hard to get a conversation going. charlie: but you understand what

she means? justice breyer: absolutely, absolutely, because sometimes you can find something in a statute -- -- say, why did you charlie: or had them think about in a dissent, which she had been -- the complexion of the congress had changed, but the law had changed because of what she pointed out in a dissent because there was a dialogue. justice breyer: yes, i think that is good, but it is not easy to bring about. i worked in congress for a while. charlie: the judiciary committee with ted kennedy? justice breyer: yes. i would guess they are on different time frames. we take things slowly.

the virtue of we are not elected. the virtue of having nine unelected people -- hamilton says this in federalist 78 -- they can take the time to think. they are not particularly powerful. he thought that, and maybe that is basically true, comparatively speaking. but over a period of time, we will think about something -- weeks, months. you are a member of congress, you don't have a second. there is a constituent in front of you, on the phone, e-mailing you, or telling you something, and that constituent is very surprised if you can't remember his or her name and every single thing he or she has is a problem and have not done anything about. after all, you received the e-mail yesterday, why have you not acted now? and it is a very hard job. and the time frame is different. because theaid

court used to have its offices in congress. but when they built this beautiful palace, he said, i don't really want to move. us or will ever hear of have heard of us again. that turned out not to be quite so right. but he could talk to members of congress daily over lunch, and he liked that. brandeis said, i don't want to move. it will go to their heads. he was right about that. it's something absolutely aspirational. it would work much better if people try different methods of bringing it about. i am simply pointing out that it is harder to bring about than you think, but a very good idea. a correct idea. charlie: are there any experiences or skills that you wish you had as a justice of the supreme court?

justice breyer: number one, you'd like to be able to know all the relevant things that have tremendous experience and different things that you don't have so you can understand. that's like thurgood marshall saying that. he said that he had, which was correct, experience that the others did not have. and it was valuable having been that on the court. it is valuable having a wide range of experience. of course it is. and i would like to be able to write better than i can. i did not want to discourage people. there was a book review in the "l.a. times" of a book that i wrote on economic regulation. i am surprised you all are not very familiar. [laughter] justice breyer: but the reviewer, i don't know how it got into his hands. he said in "alice in

wonderland," alice comes out of the pool of tears and the dormouse begins to read from the history of england. why are you reading that, says alice. because the dormouse says, we are wet, and this was the driest thing i know. [laughter] charlie: but you also said about justice scalia, you said he suffered from a good writer's disease. justice breyer: i have said that. you have to be careful of that. the job of a judge in an appellate court is, in an opinion, to explain the reasons why he or she reached this opinion. now, i don't think that calls for or requires what you might be able to do in terms of great phrasing. but if you can do that, it can be an advantage. meant, when nino and

i -- and i miss nino, i do -- we would appear together, and someone would say, "why do you insult all your colleagues?" and i would say, oh -- you mean him. i said, i'll tell you why. he suffers from good writer's disease. a good writer is like a good comedian. if a comedian has a good joke, he will not give it up. you find the felicitous phrase, and you are going to use it. and he is going to use it because of the way it sounds, and we all know that. and if it is aimed at us, we don't take it personally. charlie: it's been said to me, there may be an opportunity for the senate republicans, if they will still be in control after january 20, to vote on judge garland. my question, what is the impact

of 4-4? not 5-4, but 4-4. justice breyer: we hear 75 to 80 cases. 4-4, if it is 4-4, that just means the case was never heard. charlie: exactly, that's my point. it goes back to the court of appeals, and in the majority opinion prevails. justice breyer: you want to know the impact. there were four cases. and that was out of about 72, 73, something like that. i would say two of the cases are the cases that would be written about in the newspaper in bright letters, and two would not have been. charlie: and two might have been decided differently if it were 5-4? justice breyer: then it would not be 4-4. [laughter] charlie: but my point is,

knowing those cases, if it had been 5-4, it might have gone against whatever the opinion was in the court of appeals. justice breyer: it might have or it might not have. [laughter] charlie: but you know. i bet you could predict. justice breyer: what you want me to say, i suspect, is does the personality of a judge make a difference. i think it does to some degree. it depends on the case. most judges, just about when they have -- ♪

♪ charlie: suppose i asked this question -- what do you think -- is it a combination of things that have given you what might be considered your essential judicial outlook? was it your education? was it the environment of growing up? was it some combination of this?

i mean, how did you end up where you are? justice breyer: that is a very good question, and i think it is the crucial question, because when you look at the 5-4 cases, you are not going to explain them on the basis of politics. when i woed for senator meant, are you a republican, democrat? no. or is it really ideology? are you a marxist, leninist, troublemaker, or adam smith free enterprise or? no. it is, perhaps, liberty and the 14th amendment. the freedom of speech. you know, words that don't explain themselves in difficult cases. do i think it makes a difference that i want to level high school in san francisco, that i grew up in the 1950's? that i was at stanford? and led the life i've led,

so have you. and of course, that eventually, at a very abstract level, creates views that you have about your profession, about the country, about what america is like. what is law about as it applies? i could not write that down in 500 words. but nonetheless, every person at a certain age is shaped by his background and experiences, and has these sort of general views about his profession, and i think that explains a lot. when i went down there, i lived in san francisco for many years. i lived for many years in boston. i had seen a lot of disagreement, but not quite as much as i had seen in some of the cases. at first, i thought it is not awful. to all agree with

me. after a while, i began to think more maturely that it is a big country, there are 320 million people. they think a lot of different things, and it is not such a terrible thing if, on the supreme court, there are people who have somewhat different jurist credential outlooks. you know, scalia probably likes rules more than i do. if i'm using clarity to get a clear rule, i probably have a view that life is a mess. you will probably find a lot of differences between us, just as you said -- how far do we go? how broad a rule do you want? i am just giving you examples of how basic outlooks about the constitution apply today to people who might live under it. those are the differences. it is not politics.

charlie: i assume you went to see "hamilton." justice breyer: i thought it was great. my wife, we got tickets. that is an amazing admission, because i have to add that we got tickets before was so well known. charlie: at the public theater, or before it when broadway? justice breyer: we saw it here, but it was not quite the price it is at the moment. [laughter] justice breyer: but it was great. charlie: great because it was simply a well-crafted musical, or great because -- justice breyer: on every score. would you believe that i would go to this musical with rap music? it seems a little young for me. and then, i go there, and hamilton is a great biography, but much of the cast is a minority. they are african-american. so you think well, what?

do you think it will be slightly politically correct? no, it is not. and what you see is not necessarily the constitution at that moment. there were slaves. women did not vote. but the potential was there, as this document would be applied to the country, and hamilton saw that. and probably many of the founders did. it was an experiment. it was an experiment that later had its failures, and it later had successes. to live with that experiment and to realize you are still part of it, as everyone is, and to see where they are coming from, and see where the potential is, and of course, in addition to all of that, it was just terrific entertainment. how can you miss it?

charlie: indeed. where would you be on the conflict between jefferson and hamilton? justice breyer: historians at the moment tend to favor hamilton. charlie: of course they do. [laughter] justice breyer: and when jefferson came -- i mean, we are creatures of the historians. it was very funny, the jefferson character. the second funniest was george iii. charlie: that's true. [laughter] justice breyer: i probably, from what i have read, would be more of the hamilton side. charlie: you have often talked of your admiration for proust. justice breyer: i think i talked about it to a french interviewer. charlie: what books have influenced you? justice breyer: if a high school or college student asked me if i could read one book, what would i read? "education of henry adams." i think it is a terrific book. he lived from 1838 into the 19th century. he lived at a time where maybe people bought the country would

be an aristocracy, and there would be elections, and the people would rule, but not too much. and he lived through a period where he looked at the presidency and congress. and there were cartoons about congress, the big money bags. railroad trusts. really bribed people. and he lived through a lot. he goes, my goodness. and the south in the civil war, they were a bunch of ruffians. he says they have these slaves. look at his reactions, they are very interesting. finally, he says this is just terrible. i go to the white house, oh my god, my goodness, look at congress. goodness, they are just on the payroll, oh my goodness. and then he says "yes, right." so what do you suggest?

he says, "we have democracy, and that is just going to have to because there is not an alternative." and then he turns to other people and says we have to make this work. it is not overall philosophy, but i agree with that. it is the description of the year after year after year, and you come away feeling, yes, this is an incredible country, and we are making it work somehow. and why not? charlie: how do you feel about this argument -- frequently in this political debate, people will say in the end, here is the reason that we have to vote a republican or b democrat, because the next president of the united states will be able to have a dramatic influence on the supreme court, and that is what will have influence over decades. justice breyer: the people i know who are very much in

politics, not the politicians, used to say -- i don't know if it is still true -- that it does not really have much influence. that the people who feel strongly about the supreme court know how they are going to vote. and they would vote that way anyway. charlie: so you carry your constitution? justice breyer: no, that's not the point. the point is, when i get that kind of question, which i do quite often from college and high school students, i say i want to tell you something, and this is what i feel more strongly than what you brought up. but i would say, i can't tell you guys how to lead your life. i hope you find someone to love.

i hope you have a job that is satisfying to you, and i also hope that you will participate in public life. that might be on the school board, it might be on a park commission. it can be anything. just go out and vote. persuade somebody else. why? not because i am trying to tell you what to do. i have raised children who do the opposite. this document, i can tell you this -- if you don't do that, if you don't do that, this document won't work. it is not the supreme court that tells people what to do. this document sets boundaries. we are in a sense a boundary commission. i used to listen to sergeant preston of the yukon. [laughter] breyer: he was in

the boundary. it was cold, it was freezing. sometimes those boundary questions are very tough. is abortion in or out? will prayer, in or out? don't make the mistake of confusing a tough question that the boundary with the fact of what the documents are like, because the documents leave vast space in between the boundaries for people themselves, through the ballot box, to decide what city, state, or nation they want. that's what this foresees, and if you do not participate, it will not work. quotation onugh that? pericles. at a funeral oration in athens, he says, what do we say in athens of a man who does not participate in public life? we do not say he is a man who minds his own business. we say he is a man who has no

business here. tough, tough. that's what this is talking about. and that's what i want them to do. so, if you want soapbox, teach the children civics. teach them about the government. [applause] charlie: now do you think hamilton did? -- have you changed your mind after 22 years, where if you had another go you would be wiser? justice breyer: i can think of a couple. but normally we don't look back. sandra o'connor told me this. sandra said that there are two unwritten rules of the court. first is, at conference nobody speaks twice until everybody has spoken once. that is important for a small

group. the second, tomorrow is another day. you and i were the greatest of allies on case one. case three comes along, we are at odds. the fact that you were with me on case one is irrelevant, unless it is legally relevant, but i mean, it's irrelevant to whether we are allies on case three. what that means is we are a court. we decide. that's the job. decide the case. do your best in that case. absolutely. but eventually, you have to decide and then move on. there will be plenty of people around in the next case or the one after that to tell you all the mistakes you made, and try to do better next time. see, it's on, on, on.

tony kennedy said it is more like an express train then you think. they come in, you decide, pay attention, read the briefs, listen to the argument. charlie: would you rather be a swing justice or a chief justice? justice breyer: would i rather be the swing justice or the chief justice. i mean, it sounds phony, but it is true. i have enough to do. [laughter] justice breyer: i get the case, do as well as i can, and then on to the next one. charlie: what does the second amendment mean to you? justice breyer: i can say what the court -- ok, i will say the opinion i wrote. but that is what it meant. apparently. charlie: what it meant to you. tell me that. justice breyer: i cannot it meant this. a well regulated militia being necessary for a free state, the right of the people to keep and bear arms should not be infringed. ok?

what did i think it meant, when john stevens thought it meant, what ruth bader ginsburg and others thought it meant? in article one of the constitution, it gives the right to call up state militias. gives to the congress. there was a lot of concern, if you read the federalist papers, there is a lot of concern and fear that congress might do that and disband them. and replace the state militias after they disbanded them with the federal army. many said vote no on the constitution, because if they federalhat, then the yournment can destroy

freedom. well, said madison, and i paraphrase, never fear. we will put in the constitution and amendment says congress can't do that. it can't call up and disband the state militias. why? because a well armed militia is necessary for the security of a free state, i.e. a state militia, and therefore the right to keep and bear arms shall not be infringed. in other words, they are talking about that. that's what i thought they were talking about, which is not the right of an individual to keep a gun next to his bed. ok? [applause] charlie: what will scalia's legacy be? justice breyer: i think he took the job very seriously, and i think that is a plus. here, you have to remember that sayes do, it's boring to

this, but it's true. you get some words on a piece of paper, what do they mean, how do they apply? all judges use the same basic tools. you read the words. what do they say? it says "carrot," you cannot say it means "fish." all right? the words count. and history counts. and tradition counts. there is a long tradition behind habeas corpus. and precedent counts. someone may have decided something similar before. and purpose counts. someone wrote those words. what did they have in mind? and consequences count, mainly consequences related to the purpose. if you decide this way, are you furthering the purpose or not? where justices really differ, justice scalia and me, is he

thingsthose first four are the whole story or almost, because he does not really think of the whole. but those are text, history, tradition, precedent. i say, yes, of course they are relevant, but they often don't answer all the questions, so i put more weight on purpose and consequences. related to purpose. it is a matter of degree, and eventually -- i think he has pulled people too far from just using the last two. you cannot say a carrot means a fish. it doesn't. and don't go near that.

i think he is right about that. there are some things you cannot do because the text just doesn't say it, or it says the opposite, and you have to be loyal to that. where i disagreed with him is i think he put too much weight on that, but he thinks i put too little weight on it. you will say, what will history say of that? we had better ask the historians, particularly those who have not yet been born. [laughter] justice breyer: and we do. charlie: here is a word that is used with you, "pragmatist." justice breyer: people do say that, and it is not pragmatism in the sense that you should do whatever is good. it is not that. william james was a pragmatist in the sense that you are sitting there with -- you don't know it all, just a little bit -- but the whole body of law, and the decision you make in this case is going to feed into that. and it is not going to be the whole story, because there are vast rules, rules about treating precedent, there approaches,

their standards, their law firms, their judges, their citizens. it is a huge kind of structure, and ideally when you make this new interpretation, things as i hopee thing as a whole we ter rathera litle beter than a little worse. at least in this area that you are dealing with. that is a guide, and in that sense, i guess i am recommended, because i want to know how it is going to work, and is it going to further this goal or not? and if the goal of due process of law is fairness, is it going to end up treating people more fairly or less fairly? charlie: do you find yourself occasionally looking at something in which you say, the way the actor, which led to an issue coming to the supreme court, where it is a resident or -- whether it is a president or

else, it is in the interest of something good because i know they have good intentions, and wanted to achieve a noble goal? and maybe even a goal that i agree with. however, if we allow this person to do it, someone might come along next time, a different president or person, and use that right in an evil way. and in the supreme court, we got to put boundaries on that kind of thing. justice breyer: of course. that led, under roosevelt, to the administrative procedures act. i am sure he had very good things in mind, and the secretary of the interior had mind when itngs in came to do with oil

but the supreme court found they could not even find a world he was following because nobody had written it down. the result of that was, of course, even if he had one the best thing in the world, you have to write it down or it is not a law. and a statute was passed saying just that. that is one of many important points. down, if it written is not public, it is not a law. there have been many people in history who have had wonderful intentions, but whatever their intentions -- i mean, i don't think king john's intentions were so good, but if they were good, he should not have put people in prison. his intentions, whether good or bad, would still be subject to those few words, "according to law." charlie: and might that apply to

what abraham lincoln did during the civil war, in terms of how he used -- justice breyer: that's how we have changed. abraham lincoln's secretary of state called in the british ambassador. see that bell, he said. i can push that bell and have any person i want to new york to run into prison. if i push it twice, i can have any person i want in indiana thrown into prison. tell me, he said, does the queen of england have such power? and the court got involved after the war was over, after it was over. and said he had gone too far. but look where that leads us. that attitude. black said this to the conference, according to frankfurter, someone has to run this war, roosevelt or us, and we can't, so it had better be roosevelt. the consequence?

seventy thousand citizens of japanese origin thrown into internment camps for no reason. if you look at the details, you will see there is no reason whatsoever. ♪

♪ carol: welcome to "bloomberg businessweek." i am carol massar. david: and i am david gura. we are coming to you from the bloomberg headquarters in new york. carol: genetically modified mosquitoes on kamikaze missions to eliminate their own species and the zika virus along the way. some in the florida keys say, not so fast. david: and how patagonia, the clothing company, plans to fight climate change with beer. carol: we also take a look at if google is the new apple, taking a look at the company's first real threat against the iphone. david: all that ahead on "bloomberg businessweek." ♪ carol: we are here with the