and we all have our ways of going about that. so it's understanding that i'm looking for it, and it's the antithesis of, oh, it's just politics. >> people who follow the court even casually, i think, are aware that there's this debate over originalism, is originalism the way to go. and you have a set of answers to that, and i'd like to give you a chance to elaborate on why you are not an originalist. ..

>> and i don't think my clerk does. we don't really know with this 19th century judge thought about an 18th century writers of the description of the 17th century

trial in as far as it applies to that particular case. [laughter] >> over look it if you want to. i have a few minutes. go call up heller. i believe what you will have see is an excellent historically written-based opinion where he comes to one conclusion, and john stephens had written an historically written decision. there i believe stephens was right. that's what i said. but nonetheless -- nonetheless over and over, put historians on the court if that's what you want. i think many of the cases the nine historians will disagree. so that's one reason. another is this, it's almost unanswerable question to me. over and over you find instances where people who right a law or a provision of a constitution

are not just interested in the details, they are interested in something more basic than that, and then they want that to be done even where it conflicts with their review of the details. ronnie used a good example in one the philosophical articles. he says, imagine that you have a legislature. and that legislature passes the law protecting environmentally endangerrered species, and every one of those legislators for some reason and they write it all down, thinks that the syrian green chinchilla is not an endangered species. five years later it turned out it was. they wanted to protect the endangered species. that's a comical example. he tempt it up. i degree i tempt it up.

try brown versus board of education, for a long time people argued against brown on the basis that the people who enacted the 14th amendment which says no racially segregated, so they wouldn't have meant to abolish racial segregation in schools. to which i say that is the same. there we have the chinchilla question. what were they trying to do basically? they were trying to create a united states of america where those who had previously been slaves or were the descendents of slaves who would be treated like those who weren't, who would be welcomed and have equal

respect in our community. by 1954, whatever you might think, people thought 80 years earlier. if you wanted to see what was happening in this country with respect to their basic desire to bring people in and have them treated equally. if you have any doubt about what racial segregation was doing to destroy that worthy objective, all you had to do was open your eyes and look. if you didn't open your eyes and look, you must be really blind. it wasn't hard to see what segregation had done where it was practiced in america. and so i say it's the same kind of problem. you see? what is it that these people who wrote this document intended? that's what john marshall said. they intended, he said, this is a constitution i'm expounding. people say that's a who that sounds terrific. it means he wanted it to last. it means there were values in here that would stay. but the way they apply would change.

and you go when there's an internet. and when there are newspapers, or when there are automobiles, or when there are television, or dozens of other things and you can apply the word commerce in the commerce clause, and speech in the free speech clause, and you can apply these basic words to the circumstances that have changed. all right. and so i say don't look to the exact details. if they thought at the time that flogging in the navy was not crucial and unusual. that's up to them. they passed a law that said crucial and unusual penalties is forbidden, flogging is crucial and unusual. there we are. all right. another thing. i'm going down the list here. you are getting to see why i don't think it's so terrific. suppose it even did work, which i think it doesn't, would we really want a constitution? that tied us to the details of what people thought was this or

that 200 years ago? i mean would that constitution last? and my goodness, you just read these cases about the cherokee indians, about what happened after they decided dred scott, it's called the civil war. dred scott contributed to that. about the uncertainty about people accepting the court or constitution. that becomes a pretty meaningful question. indeed, if you say they intended this document to last, and i would ask you to think hard about whether it can last, if you, in fact, tie it to every detail of 200 years ago. so those are a few of the five or 6,000 reasons why i think originally -- [laughter] >> it might be useful for this d.c. audience to talk a little bit more about the heller case, the second amendment gun case. as you said, justice scalia had

a very elaborate, historical inquiry that pointed in one direction, justice stevens had an equally elaborate, and you had your own approach in your separate dissenting opinion in this case that is very illuminating of your approach to constitutional interpretation. and for people that may not have focused on your particular opinion in that case, i want to give you a chance to elaborate on it. >> what was i was using it for here, i'm trying to illustrate an approach. it's the same approach if you have -- we had a case recently where the question was a national security matter about giving -- forbid giving aid to a material resources, material aid to terrorists groups. and the question which was not an easy question was whether or not the former administrative law judge in a humanitarian

society wanted to teach the kurdish group. they were on the list of organization. they wanted to teach them how to petition the united nations for political assistance. now did that count as aid in the stat constitute? -- statute. i thought not. i thought there's a big constitutional question. you can interpret the statute to avoid it by saying it doesn't cover this. i'm trying to show the approach that we use. approach in other countries, they call it proportionality. we sometimes call it strict scrutiny, or really tiny scrutiny or something. you look and you see to what extent is the right that's at issue. the interest that that might protects like speech injured by this interpretation of the statute. and you look to see what's being advanced by this interpretation

of the statute. like saving a person's life. and you look to see where there other less restrictive ways of doing it. it's sort of the lawyers favorite sign -- favorite kinds of question. a law seeing put someone in prison, say guantanamo, or some other place unlawful. the government is justifying it, the first thing you say is why. if it's a security need, you say, government let's see it. if you can't show it to me because it's top secret, at least show it to the judge. at least show it to the judge. then if there are some good reasons there, the lawyer will say and why not? why not do it in the less restrictive way. they would look to see where there less restrictive ways to achieve the objective. to squeeze or harm the constitutional protected interest that much. that's not just a formula. it's an approach. and i think it's useful in the

gun case, it was useful in the district of columbia, and it was tough to apply it there in my opinion. it came out that the district of columbia's law was okay even under the majority's test. of course, the majority didn't think that. and the -- and again in this case, involving the holder involving the administrative law judge who wanted to teach them how to use the u.n., i thought that the free speech right, if you stopped it, was being hurt a lot. and very little was being gained. and there are other ways of going about gaining whatever you are going to gain. so that's how the kind of analysis works. it's more complicated a little bit than i've just said. i've summarizing. you see what i'm trying to do. i'm trying to show forms of analysis, forms of approaching in different areas of law. which together are pretty, i

think, they fit together. they are coherent, and they are one way of looking at that big fourth of july word, workable or practical, or trying to make the constitution and the laws work for people today. that's a slogan, but the details are in the -- are where it counts. and that's why i'm trying to read. >> you mention that guantanamo cases a couple of times. you are in the majority in the series of guantanamo cases starting in 2003, going up to the last one, which was in 2008. each one of those that series of cases, i think, fairly said sort of ratcheted up the scrutiny because the executive branch and congress didn't seem to be hearing what the court was saying. didn't seem to be responding, perhaps, in the way the majority expected them to respond to the signals first rather subtle, and

later not so subtle. that the court was sending. was that a successful series of interfrench interactions in your opinion? do you have any reflections on the success of that enterprise? >> what i did with the guantanamo cases, is there fairly recent, and they remain fairly controversial. i put in this precisely what they held. and i tried as fairly as i could to summarize the majority and dissent. my point there, which will disappoint you in light of your question, was simply to say what i think the majority the trying to do is maintain presidential accountability because of the decision in those cases. they were over and over for the persian in detention. i mean in one of them, an important case, it was the driver of bin laden against the president of the united states.

and bin laden's driver, who was probably not the most popular person in the united states won. and the president lost. and i think what's happening in those cases, and i did say this, and i could point to things in the opinion whereas i said i'm repeating myself we're trying to find ways of holding the president accountable to that constitution, but without interfering significantly with the president's ability to protect the country. and i say on something like that, you -- that's why it's not such an easy job. i mean i'm not feeling sorry for myself, i promise you. but i would like to bring you into a little bit of this. it's not always so clear one way or the other. and it's rarely clear. and that's the court has to decide though, if you don't decide the way we did, you are going to end up deciding, i thought, the way the court decided in coramatsu.

which i think was a pretty good disaster, legally speaking, for the country. there we are. you are the theory about. i understand your theories about why we did and so forth. i'm not going to go into that. so i've avoided that question. >> you have one intriguing passage in the book. you say if you had three wishes to make case that you've been involved with come out differently, you mention only one case. the case you mention is the beef against jubilar, the gerrymander, in which the majority held over your dissent that court shouldn't get into claims to gerrymandering. the point that you make about the case, if you could change the outcome with a wave of magic wand, you would, you think the gerrymandering has it an effect on the behavior of the house of representatives. that's one case. what were the other take.

>> take your choice. i mean there are different ones in my mind at different times. you know, i dissented to some things, been more strong on others. i didn't want to go in and rehearse the dissents where i was pretty strongly dissenting in the case involving the power of a local school district. i thought rather cautiously. two, use race as a positive criteria to prevent, for example, white flight to the suburb. >> that was the -- >> i was involved. i thought it was fairly clear that the school district did have that power. and so did three of my colleagues. but there we are. and so i was -- i felt fairly strongly about that one. and there are others. there are others. but what i was thinking of in that particular instance, i was thinking of the general theme which is the general theme is

that the institutions created by our countries constitution, are institutions that foresee people participating in a democratic process. so that democratic process above all has to work. it has to work in a fairer way. it has to work so people are treated with equal respect and equal chance to expect to have their vote and so forth. all right, you see it was that theme that occurred to me at the time that i wrote those melodramatic words, and at a different occasion, it might have been another case. but i was feeling fairly strongly at that time about that case. >> all right. mr. judicial modesty with the expect to expertise of other level of government to decide what you thought was the best way to in that case. >> the reason they didn't go

into the case, they couldn't figure out a way to say how you can catch gerrymandering. i thought i had put out the ways in catching the extreme examples and maybe if the states were worried about extreme examples and wouldn't do it, they'd set us commissions that would try not to gerrymander. but this is now beyond my area of expertise. >> right. right. maybe we should turn to the audience and see if anybody has an actual question. i think there are microphones. okay. >> do you think that televising the oral arguments of the court help in your objective of getting people to understand and support the role of the court in our democracy? >> i think some would. if people could have been there in that -- i've always thought really tough case was the term

limits case. where a state constitutional limit the term of a congressional representative say to three or four terms. that's been an argument since the republic was founded. you can see jefferson, on one side. they would have seen nine judges trying to figure it out. i think that could be helpful. on the other hand, there's always another hand. on this one, i'm afraid, we brought that into oral argument, would people actually understand that oral argument is only this much of the case? we do most things in writing? and people relate to people when the people just think it's these two people, the good one and the bad one? or would they understand that most of what we do are going to affect 300 million people who are not there? or would they just do snippets. some members would think they'd just do snippets, taking

everything out of the context. in canada, they don't just do snippets. but, you know, somebody thinks they have a good newspaper picture and bad newspaper picture of each judge. when the judge says something they like -- [laughter] >> right. there and would it become the symbol? and then be in every criminal case that are witnesses at a criminal case might be frightened their pictures would be on television and they better not tell the truth or they will be dead. there's a lot to be said on the two sides. where are we? where am i? we are all here in that we are trustees. be careful, when you are a trustee, you get were conservative about your institution. a major change like this, for me, i'd like to see some evidence. you can get the evidence, you know, because there are places with it and places without it. and i know this is easily ridiculed word, but the word that i would use is the words that will immediately be ridiculed, but i don't think

they should be are called sociological studies. oh my god, that sounds like real jargon. but there are people that can do it. places like pugh and so forth that makes a specialty. you can see how it affects the court and reputation and so forth. so i would not like to decide this one. just on the bases of either gut feeling or someone told me last. i'd like actually to see some evidence. i've said that before. at which time whoever is questioning me say he's just looking for a cop out. maybe that's true. i don't know. but that's how i feel about that. >> why don't we take one from the other side of the room. [inaudible question] >> that's up to the senator. that is really up to the senator. when you ask me about confirmation, that is not a cop out. you have to remember that i was not a nominating or confirming person, i was a nominated and luckily for me a confirmed

person. so i always use this joke. i say to ask me about who should be nominated and how they should confirm is like asking for the recipe for chicken al la king from the point of view from the chicken. [laughter] >> this might have been when you are a chicken. >> yeah. >> in my adult lifetime, i don't think there's anything been more damaging to the representation of the court than the nonpolitical body than bush versus gore. it undermined my person and many people that i know's view of the court. in a way that i would my question is do you think that damage has lasted? do you think it was to place first of all? and what can ever repair it? my whole expectations of the courts as a democratic institution has been lowered. and i wonder if that's one the three cases. >> actually, he talked about that in the book. >> what did i say?

[laughter] >> take it away. >> you know, i was on the dissenting side. when you look at the polls for a while, sometimes they look at that. they have a lot of trust in the court, and how much trust and 5 point scale. usually the court is up there with the policeman, not that high. but the nurses, policeman, fireman, they are at the top there. you can understand that. we're fairly high up usually. and it did take a dive. but it came back. it came back. and over time institutions do come back. that's why i don't say too much about bush v. gore other than what i said. i do say what harry reid pointed

out. he said one the things that is least remarked is one of the most remarkable, there were not guns in the street. you heard out there, i'm not putting you on the spot. [inaudible] [laughter] >> i yeah, yeah. i understand how you might have felt. this is -- it is. it is a plus for this institution really for the country that we can accept things. and i do. you do after a while. you accept it. why? because it just isn't, start thinking about the alternatives. there's not much else that i can say. i think institutions are pretty strong in america. they can over come some rough times. >> let's take one over here. >> for obvious reasons lately, i've been talking with some. my question is this if i had told someone from iran were in the united states when he issued

to kill someone, under either the free speech or free clause, would that have been a protected speech? >> well, the -- why do i -- i sort of smile. because i had a friend, john mansfield, who was teaching at harvard, welcome, he taught evidence. a friend of his came up and say you are a law professor. you'll know that my uncle died and my aunt and my cousin are fighting over the body. who's entitled to it? he said i don't know. i said you are a law professor. you ought to know. you have a pretty complicated hypothetical. and it is a hypothetical. it didn't really happen. so i can tell you a couple of things. you can't go around ordered people's murders, even if that's speech. most crimes, many, many, many crimes are committed through speech. if you plan, solicit, conspire a

crime through speech, you are in prison. if you want to see the most famous from holmes when he said you cannot despite the first amendment yell fire in a crowded theater because people's lives are at risk. there are things, committing a crime like murder is on the other side. you also put in your hypothetical questions of jurisdictions. you will soon get to the point where i better go look at the law books. i'm just giving you a general principal. >> sir. >> last year in school we read the book "the case of the splunctoin explorers." >> oh yeah, i went through that in law school. >> it talks about the different judges when studying law. one was originalist, one was

looking at the consequences, one the judges approached that really struck me was one that spoke about that judges need to take into account democracy and what the public opinion of the people is. and what came to mind was the recent campaign finance ruin. i read an article way back that it's one the first ones that americans are grossly against that the court made. and i want to know your thoughts on just that whole idea that the court should be influenced by public opinion. because that's what the people of the country. >> look at the public opinion part. that's an interesting question. very interesting. which goes in the wait of the heart of what i'm trying to say. because the answer to the question is should you decide a case one way or the other because one side will be more popular than the other. the answer is no. zero.

no influence whatsoever. hamilton gave this power of judicial review to the court and in the federalist '56, he said exactly why. he says someone should have the power to interpret and enforce that institution. in most instances. he said if we give that power to the president, he'll become a tyrant. if we give that power to congress, how will we protect the institution and those it's meant to protect when it's unpopular. because congress just passed a law that's very popular. do you think they are going to say now it's uninstitutional? he said that's why we are going to turn this power over to the court. which are a group of bureaucrats, he didn't say that, but he implies it. who have very little power, not the power of the pen, not the power of purse. they do have the power of pen. not the purse or sword. he thinks by and large he will

do a better job than the alternatives. my goodness, they have to remain independent. because the whole point of giving in the power, they will decide independently without reference to public opinion. it's the same time. and this is the great dilemma. if the public doesn't support instance of an constitution which will independent decide things which means sometimes they will get decision that is are very unpopular, that they may think are totally wrong. then you are not going to have an institution that will, in fact, be able to enforce rights under the institution when it's unpopular to do so. even my statement of this view sounds complicated. and the more you think about it, the more complicated it is. but it's true. but it's true. and it's that kind of support that i think is necessary for

the institution which in turn is necessary so you have some kind of a ball work. not a great one. not an always successful one. but some kind of a ball work against a majoritity rannizing a minority. now that's a more elaborate explanation of what you are getting at. that's what it is. >> if i can add one layer of complexity that you discuss in the book, it's the need for the judge to be aware of consequences. right? >> yes, but consequences of a certain kind. if you are talking about the first amendment, you are talking about consequences related to free speech or free religion. if you are talking about the fourth amendment, you are talking about consequences related to unreasonable searches and seizures. you are not talking about whether somebody writes a horrible editorial in the newspaper about me. that kind of consequence has no

bearing. it should have zero and to the best of my ability i will make it as close to zero as i can. maybe there are others who can do it better. >> thank you for the opportunity, sir. a lot has been made in the recent past about the constitutionality of the individual mandate in the health care bill. and i'm wondering what role will the general welfare clause play. does it make any sense to use it in defense of the mandate. >> there's a question for a whole lot of different reasons that you ought to address to members of the administration, and if you want to know some of the reasons that i can't answer the question, one, i don't know. i haven't studied the law. that's always a good reason for not making an. i grant you that sometimes it doesn't stop me. [laughter] >> but another reason is some of

those questions could come in front of us as -- and the reason that we -- that i and other members and judges in general tend -- try not to express opinions on something that comes in front of them isn't just some odd moral code of ethics. though it is a code of ethics. it's because you will find, and i have found, that very often when you really have to think something through, and when you have good briefing, and really good arguments on all sides, and maybe even as we had in that right to die case, 80 briefs, or in the affirmative action, 100 briefs. and we'll read those briefs. when you are finished, your opinion is not always the same as when you are started. be aware of giving answers that you might give at a cocktail party. because you don't want to be held to that. there are good reasons for not expressing my opinion in this case in something that i don't

know much about. that's all right. it was a good question. i can explain it. >> as your counterpart on the house judiciary, when you and ken and i would work in the middle of the night writing legislative history and having of your colleagues, who shall remain -- justice scalia. [laughter] >> he never looked at that crap. i'd like to know how important it is to court as a whole, justice scalia, notwithstanding, the stuff that we wrote. >> people have different views on that. my view is i will look and read it and really self-pitying remark i'm about to make. i too have a vote. and so it's different people have different views. some say no. we shouldn't read that because we are just interested in what the text says that the representative has voted on.

and he says the question of that vote on a text and don't go beyond that because there's too much risk of distortion and so forth. and others like myself say i want to read whatever i can read to get enlightment about what those obvious sure words and believe me they are obscure. because if they are not obscure, what's are they doing in the court? i suspect you, like me, when we wrote it, would have tried to write something that was not going to be viewed as wrong by the congressman or senator for whom we worked. >> is there a difference between a committee report and debate on the floor where individuals members get up and opine? >> well, when there's a committee report, i know perfectly well that i think in virtually every case it was sent around to the members staff of the committee. they all had a chance to go over

it. they could object, and the staff, the congressman -- maybe he or she won't object. but the staff person will. because he knows what he's supposed to be doing there. but with the floor statement, people can say anything. and do. but sometimes it's -- i'm not thinking of, you know, things that are great political moment. sometimes they are of little political moment. they might be some obscure division of bankruptcy code. and suddenly somebody wakes up because a lawyer told him that my god, look at those words. no, but he's going to know what they mean. what shall they do? here, give this floor statement. if you do your work as well as the staff, you then go to that lawyer's worst enny and say what do you think? and sometimes it turns out that everybody thinks, oh, please, introduce it. it'll help. and so you introduce it. and that kind of statement, i can remember one in section 13

of umpta. i can't remember, mass transit with unions, it was very, very obscure, they had a couple of senators there saying the way it works it doesn't mean us. then the introducers says yes, that's what it means. somebody else says absolutely. we are sure it means that. when you see everybody say that's what it means, they wanted it to serve that purpose. that's helpful. and sometimes it doesn't mean that. doesn't mean that at all. that's somewhat less helpful. >> with respect to the presidential war power, in may of 1941, franklin roosevelt received a message from the british prime minister winston churchill that the german battleship bismarck had broken out and was a menace and mortal

threat to en land. having asked his advisors if he would be impeached if he ordered the americans to sink, he authored a p.p.y. control plane partly piloted by an american troop when the british lost the chase and the p.p.y. found the ship. this is six and a half months before pearl hear bob. they have assisted in the sinking of germany's because capital ship. if justice breyer was ruling on that, is that a lawful size of the president's war power? >> there are many questions involving the war power and the past that luckily have never come before me. [laughter] >> nobody would have stamping to bring that case. >> i don't know. >> but you are actually inform sort of suggesting that something was interesting. it was person in the coramatsu's

said. jackson said in his dissent, here's what we should do. 1944, we no there was no risk. of invasion in the california. there isn't today. and probably there wasn't in 1942. but in january of '42 in california, people thought there was. and as long as they think there are, they will act, they will act to protect the country. regardless of what we say. so let them do it. and in 1944, we'll say they were wrong. but don't say they were right. because if we say they were right, that president lies there, he said, this is jackson, like a loaded gun, ready to be misused in the next time. now that's dramatic, and it makes a lot of sense. but actually, i have to say when

you really think about it, i don't think that's right. i preferred murphy, who said it was wrong then and it's wrong now. and the reason that i don't like it is because if you try to have rule that is are so unrealistic, that the president feels he has to violate the law to save the country, sometimes he won't, because he just can't, and the country won't be safe. and sometimes he'll violate the law too often. so it's better if you can do it than you make the law consistent with those necessities that will arise to save the country and that's much easier said than done. and that's why there aren't really good, definite, clear, overarching answers to this question. you've received bit by bit. don't hold too much too fast. [applause]

[applause] >> how do you feel the court adapts with new justices being appointed every so many years, and then again how do you feel that the greater public of the united states of america interprets the judges as the attitude, as judges are put in and as they retire, how do you feel that the american public interpreted their different opinions of them? >> well, the justice byron white said on many occasions the answer as far as i know it to your question and what he said with each new appointment, it becomes a new court. how right he is. i mean one person changes the dynamic. you get to know people in the court very well. you get used to working together, you know pretty well what they think and how they will react to different situations. and it's a good working relationship. it's a healthy working

relationship. i've not heard as i said people shout at each other. no words raised in anger, no people being rude to each other. we're perfectly good friends on a personal basis. that was true, and it is true. and a new person will change that working dynamic. he will not or she will not lead to raised voices. she will not lead to people being rude. but she is in this case, until the last two, will, in fact, make a difference because they will come with different experience, they will come with different approaches, and they will change the arguments about many things in different ways. so it remains to be seen. >> do you feel the american public views you differently every time there's a new justice? >> that's every time do they? i don't don't -- the public by d large gets it's views through the press and television. so a lot depends on what is said there. it's only in a very long run,

maybe never, you know, that people will understand fully. linda has gone back and written a good book on harry blackmon, and who was the abortion decisions at that time. she had to go through dozens of papers. that paper will have an influence within but that's the job of an historian. >> thank you. >> good evening, justice, i've lived the past 21 years of my life in the state of new york. i remember every second of 9/11. a girl down the street lost her father. it was very hard time for people of my state, especially around my area. my question is this, one day at work, i open up the paper. in the paper it says mayor bloomberg is advocating the constitutional right to have a mosque near the ground zero. my question to you is do you

believe it's a constitutional right or do the people of new york have a reason to deny a mosque being put 13 high for cosmetic reasons that it outshining any memorial that we have to these people who died in the world trade center accident? >> yeah, i know that you are talking about something that is very emotional, and a very great intense emotional interest to a lot of people. and in that -- moreover, i can't say too much about it. who knows who will happen legally. i would say this, that i have an impression that when we as a country do sometimes get into these very emotional arguments, there is also a countervailing tendency before deciding anything, and before really making up your mind to go back to try to find out what the facts actually are. and that's a legal instinct that a lot of people share it. and then once you find out what the facts really are, then you

try to figure out what really would make sense, given a lot of desires that sometimes conflict. i think what i would suggest to people that are interested in this is that there are people who have web sited on this, including the group that wants to put up, i think, from what i know of it, it's a community center. it will have a mosque in the place of worship inside from what i read in the paper, for muslims, jews, christians, and others. i would suggest that you look up the fact and find out what you think is the case and what isn't the case, and make up your mind. that's the answer you'd expect from me. i'm the judge. >> okay. i think we have sometime for the three people in line. probably that'll be it. >> so it seems to me that your pragmatist approach would require you to have some sort of knowledge or understanding of the general will of the people or the value system, the current values of the people as a whole.

justice holmes thought about the prudent man of average experience and establish laws on that as a aggregate of different experiences in our country. my question first of all, does it require some sort of understanding of public opinion, does it require some sort of understanding of the value systems that we as a country have right now? and secondly, how do you find that aggregate experience? is it just through opinion polls like you've talked about, or alternative methods to understand? >> no, by my reaction when i hear the question, it's to say no, question. it's more complex thing. i'm not taking into account some poll of how people are feeling about a particular case when i decide it. that's out. it has no bearing. what i do think, and pragmatism isn't necessarily the right thing either. i've called it a practical approach, i've called it not a set three -- theory, but the

series of approaches and the areas differ. and it's -- what, what can i say? there isn't a good way of knowing what everybody is thinking, no. it doesn't have too much bearing on how i'm going to decide cases. i'm tempted to contradict what i just said. by saying, of course, i do have some concerns that people don't understand well enough how the court works. and i think it might help a little bit. a little bit. it's really just sort of trying to do my part. to right something that will help explain how i see it. even if my approach isn't the right approach. there are many different ways of going about this. >> it's kind of what i was getting at. as i spoke earlier -- >> i think we need to get on to the next question. >> okay. >> hi, good evening.

i've enjoyed the colloquy so much. i'm recalling an incident which seems rather rare to me. i have recollection of it only happening once in my adult life. i wonder if you could comment on this as to whether it was a way for the court to make democracy work. and that was where the court invited -- i don't remember if it was a party or a judge -- there was an issue that was not presented by the parties that were arguing before the court, and the court itself reached out and i believe it was to mr. coleman, to come in and argue on behalf of another interest. i think it was a civil rights case. >> bob jones case. >> and i don't remember when it was or if you were on the court at the time. >> early 1980s. >> it seemed such an unusual thing -- [laughter] >> -- for the court to do.

i wonder if you might comment on whether that really was appreciate and would it advance your concept of making the court more -- >> well, mr. coleman is here. and linda members that instance. i will plead bias because mr. coleman was a friend of mine. i will say i'm sure it was a good idea. [laughter] >> i just five seconds of context on that. that was the instance where the reagan administration was new and had refused to defend the position taken by the internal revenue service under many previous administrations and so the question was who was going to argue the case? and so bill coleman, advocate, was invited by the court to take the position that the new administration had abandoned there was not at all

inappropriate about it. it was the court's way of making sure that the argument got heard. >> and that happens sometimes. it's not totally rare. it might have been rare in the circumstances because the whole thing was ready. sometimes usually we'll spot an advance when the two sides, for example, don't want to argue something, and even before the case is being argued fully we'll appoint a lawyer to argue this part isn't being argued. >> you are the honor, sir, of the last question. >> my name is coleman, too, by the way. i suspect i could probably get in trouble if i were to offer a donation to a policeman who stopped me in traffic. and yet, i could probably not get in trouble for offering a few billion to a congressman to effect a change that would be personally beneficial to me. as someone who's lived in that area for a long time, i sort of feel pity for the nigh -- naive

ty, for the people in the government and certainly in the city, i'm wondering are you talking about things that you could undo. if you could undo something where people would say we have the best government that money can buy -- >> question. question. >> is there a legal way to undo the bribery and the first amendment right? >> you are thinking of the case that came up with the citizens united. and i joined john stevens dissent in that. every instinct that i have about being cautious suggests i should go no further than that in trying to answer your question. [applause] [applause] >> thank you. >> i think we've had a good time. and we are grateful to you for joining us.

[applause] [applause] >> thank you. [applause] [applause] >> thank you very much. [applause] [applause] >> stephen breyer is an appropriate -- associate justice of the supreme court. to find out more visit supremecourt.gov. >> you are at the national press club talking to eugene robinson about "disintegration: the splintering of black america." can you explain this? >> it seemed to work out that way. for an arbitrary number, it was clear this was -- one group was the mainstream of the middle class back america. it was clear that one group was

the abandoned nonmiddle class black america. and the other groups were, you know, i did think that the existence of a small but very powerful elite was something new. and so i called that the transcending group. then i needed a category to deal with the other groups that didn't fit the category. immigrants from the caribbean and africa. also by racial americans. and i thought they would fit into the umbrella group called the emerging. that's how i got up to four. >> i noticed that you put new immigrants and biracial people together. you were comfortable grouping them under the same umbrella? >> well, i was mostly comfortable with that. it was not precise. it didn't make for as clean of a category as the other

categories. however, i thought that similarities were the concept of emerging grouping that were becoming more prominent that kind of hadn't been around in larger numbers or at least acknowledged in the numbers before and that i thought were going to be more important in the future. so i was comfortable with that aspect of it. i kind of wish it had worked out exactly four. but i didn't think they kind of stood alone either as separate groups. >> can you tell me which of the four groups do you think has expanded the most in recent years? >> has what? >> expanded the most in recent years? >> well, in strict numerical terms, i would say the mainstream. because the numbers are so great that relative to really any of

the others that i would say it has expanded. depending on what you consider recent years. in the middle of this recession. >> let's say the last decade. >> in the last decade, i'd say the mainstream group has expanded the most in real terms. and the emerging group, especially the immigrants, has probably expand the most in percentage terms. >> what are some of the more surprising findings that you came upon in writing the book? >> there were tons of them. amazing figure from a few recent center study that showed that 37% of african-americans didn't believe black americans can be still be thought of as a single race. i thought this was really a striking figure. after a certain page, there's a -- only -- there's something like a 40% chance that a black

woman, that i believe, in her early 20s would never marry as opposed to a 20% chance for a white woman. i thought that was an interesting figure. so there are lots of these things that i kind of stumbled across. >> where there any stark comparisons to white americans in similar groups? >> well, the, yes, there are some. one is even if you have middle class to middle class, there's a stark difference in wealth as opposed to income. middle class to middle class income is fairly close. wealth is a huge gap. that's something that some people have been talking and thinking a lot about, including bob johnson, the billionaire who now has a project on that. >> do you tap into any solutions for kind of stopping the splintering or? >> you know, i think it maybe a process that kind of happens. a lot of it is organic. what i do hope i identified some

possibly solutions for the plight of this abandoned group, which i think is really the group that is -- needs kind of our urgent attention right now. and so if it kind of calls attention to that, then i think it's been a success. >> thank you very much for your time.

>> we're at the national press club talking to andrew young and kabir sehgal about "walk in my shoes." can you tell us how you thought about the idea of this book? >> he came to interview me when i was mayor. he was in second grade. we started a friendship. i was impressed with him as a second grader. he's been through dartmouth, london school economics, now he's a banker with jpmorgan. we are 50 years apart, it's an

intergenerational dialogue. we don't agree on anything. we say things and do things to provoke each other intellectually. but what that does is it makes for a lively, kind of, salty ideas. >> what are some of these debates that you two have. >> we have debates on most things. i think one the biggest debates is on the economy and where that's -- unemployment right now. how we should solve that, civil rights, he was a big leader in the civil rights movement. the jobs and economic front of the impartial. we argue about should we take the free man approach, cainsian approach. he believes in arranged marriages. i don't. my tradition in the india, you know, kabir, we need to find someone for you. i'll go find someone.

we argue about love, life, religion, and politics. >> is there a sequel in the works? >> i don't know. you never can tell. because this is -- we've finished about a year ago. and we still talk probably every other week and we still find something to disagree about. but the thing is the world is a complex place. and he's traveling around now, i've traveled around more than 100 countries in my lifetime, and so we're always comparing notes. but our real objective it to try to understand and help him have enough vision to create the future. >> and what are you helping him do? >> i think we're trying to get this book on the kindle and get him going on technology. but more importantly, i'm trying to help him understand as best as pos