clicking share by selecting the format. booktv streams live online for 8 hours $48 hours every weekend. booktv.org. >> up next, supreme court this program's about an hour, 20 minutes. [applause] >> objection, i guess we're -- okay, i guess we're on. pour a little water here. let me start out, you've heard those introductions which i didn't quite hear, but -- >> we know them by heart. >> right. [laughter] so making making our democracy a

fascinating book, is really the application of justice breyer's earlier book, "active liberty." so who here has read "active liberty"? a few. okay, i recommend that too. >> these are sort of embarrassing questions. [laughter] >> so i'll start out by mentioning that you frame your argument, you frame the book with, actually, one of my favorite quotes from shakespeare from henry iv. you quote glendower's boast, i can call spirits from the vasty deep, and the reply, so can i, so can any man, but will they come when you call for them? [laughter] you use that quote a couple times in the book to address the

question, a couple of questions; why does the supreme court get the support it gets from the public even when the public disagrees with it, and what does the court have to do -- and can i guess this is the really important question -- to maintain that level of public trust and respect? and i think i understand your answer. you say the key lies in the court's ability to apply the constitution's enduring values to changing circumstances. unwavering values applied toeve. so what does that mean? you're a judge, you're a pragmatic judge. you talk about pragmatism. what does pragmatism mean when it comes to a judge interpreting the constitution or a statute? what is pragmatism? >> this is the point of the difficulty of the book and why i'm writing that half of the book.

the trouble is that when you say, well, the supreme court really there are two bits of this, the public has to accept the court and that's been a long story which we can go into some about later. but also the court has to act in a certain way, and people say, no, no, really, and i believe this really. a public acceptance is a question by is and large of history and teaching and education, and the court can't do too much about that. >> we're kind of hard-wired. >> but the court can do its bit, and that's the question, what's its bit? well, as soon as i say, well, you take these -- if it's a constitutional area and you take the values that are written into this constitution and you say, how do they apply today, people think you've given a fourth of july speech. and they all applaud because it's a nice sounding sentiment. and then you sit down and go home. but i want to say that there isn't just a fourth of july

speech, and someone what has a certain set of values and recognizes that in the constitution can develop approaches for different kinds of cases that the supreme court handles. so the framework that i use is to recognize that this document, the constitution, is not just about the court. i mean, there are states, there's a federal government, there's congress, there's the executive branch. we've divided power vertically and horizontally, and the court is just really patrolling the borders, and hamilton was right when he said it's the weakest branch, it has no purse, and it has no sword. all that's true. but the key in my mind is to recognize that it's several parts of the government, and what the court can do is to develop workable relationships, sensible relationships, productive relationships with

other branches of the government. so, no, and it's going to be a little hard to get through some m of these chapters because i want to say what is the relation with congress? the relation with congress and the court is about 60% of of the court's work. what the court does is it interprets statutes. now, as soon as you start writing about that in newspaper, normally people get pretty bored. [laughter] you don't how often we do, but we do a lot. and you probably, only a few people know that 40 % of the time we're even unanimous, and we're 5-4 maybe only 20 or 25%. and the real 5-4s are sometimes mixed up more than you think. i mean people are not always on the same side of this or that or the other thing. so it's complicated. when we're interpreting statute, there's a key, and the key to me in difficult cases is purpose, what did congress intend? that's a little not quite fourth of july. and the reason that's not quite

fourth of july is there's really a difference of opinion. everyone thinks when you judge/interpret a statute, you've got some words here. and these words -- i use a good example i found in a french newspaper as somebody who was trying to transport some snails. >> oh, go into that because it's a great example. >> a schoolteacher is bringing some snails. i didn't know they brought snails around on trains in paste, but apparently they -- paris but apparently pay do. the conductor came up and said, well, you have to pay a fare for the basket there. there are life animals in there. and he said, what? that's ridiculous. they said, no, no, it says right here in the tariff, no one can bring live animals onto the train unless they're in a basket. and if they are in a basket, you have to pay a fare. full fare. he said, snails? well, that's what it says. [laughter]

now, question for the class. [laughter] of this isn't really statutory, but it's the kind of thing we do. should he have paid or not paid? if he should have paid, why didn't he pay 20 fares? the after all, there were 20 snails. [laughter] so that's not such an easy question. and when, in fact, judges go after questions of that kind, what they do is they look at the text. and they look at the history of those words. and they look at the traditions that surround the word. now i have to admit if it's damages or fee or cost, there's more of a tradition of legal interpretation than if word is snails. i have to admit that. but the fact is you look attrition, you look at history, you look at text, you look at precedents, there weren't too many snail precedents. nonetheless, you look at precedents, you look at purposes. what were they after in writing this? why did they do it? and you look at consequences,

not any old consequence in the world, but the consequence in light of the purposes. now, everybody looks at those six things. but some people say let's tone down this purpose and consequence business. that'll give the judge too much power to introduce his subjective views. let's never do it if we can. well, some people do think that in very good faith, and they have reasons. but that is not me. i think, you know, let's look at purposes. let's look at consequence. so what i'm trying to do there is explain how you to that and why. all right? now, there are five other parts to this, but i don't want to keep you here all night. >> well, i'm going to back up a minute. >> yeah. >> with i'll back up just in case people don't have kind of the full structure of the court's docket in mind. so sometimes the court decides constitutional cases which require the court to interpret different clauses of the constitution, sometimes the court decides statutory cases

which require the court to figure out what congress meant. often congress doesn't speak clearly, congress speaks quite ambiguously, and there are more of these statutory cases than people are generally aware of. i think about half the docket, if not more, is statutory cases. >> and sometimes it's the question of an administrative law ruling and can the administrators interpret it this way or that way. >> and sometimes it's a question of interpreting a statute so that it avoids confronting a constitutional question. you have some very interesting thoughts about that. in the book. so just to kind of put that in context, let me provide another bit of context. there's a big debate within the court over, as justice breyer alluded to, over the legitimacy of interpreting statute by a technique that enables the judge to go beyond the plain text. that's the snail example.

it says you have to pay for animals, the snail's an animal, so you have to pay. that's the text. and another justice on the current court has written a book some years ago explaining his means of interpretation. so what's, what's different about this emphasis on purpose and emphasis on consequences and emphasis on trying to make the system work is what's really interesting, i think, about your approach to statutory interpretation. so just to bring that out a little more, now, you come to the court, i guess, uniquely among the current justices. you worked on the hill. >> that's right. >> you were chief counsel to the senate judicial committee under senator kennedy in a very important period when congress was dealing with deregulation, with criminal sentencing. you really were this nitty-gritty of of how congress

works and how congressional staff behaves, and there are probably people in this audience who have something to do with the hill. so you bring a kind of a real-world sensibility to this idea that when legislative history is written, it's not simply the criticism that one hears about legislative issues as well. the staff is just off on their own and, who knows, maybe the members of congress didn't even read the bill, or they have different views about the bill, the bill doesn't necessarily -- the final product doesn't necessarily reknecht a consensus. -- reflect a consensus. what do you say to that kind of criticism? >> i try to explain why, in my view, when you do look at what the staff -- i was on the staff. >> right. >> maybe i'm pretty biased about that. but when i worked for senator kennedy, my job on the staff was to make certain that those reports and those floor statements and the words in the bill pretty much reflected what

he thought or was prepared to accept. and i suspect if they had ended up having things that he wasn't prepared to accept and i hadn't told him about that or tried to do something about that, i think i would, perhaps, be looking for another job and not in massachusetts either. i think i'd have to go, perhaps, to mexico or some place. [laughter] but the job of the person -- and some of my former colleagues here, tammy, we were there -- we know that the senator doesn't read every word of a bill. no, that's true. nor is it true that the president of general motors gets down with a wrench and puts every bolt in every car. but we also know that it is an enterprise that people pull together togetherring in -- together in, and you're there to represent that point of view, and it's a very, very interesting enterprise and very complex. and it doesn't always work perfectly. but the object is not so hard to

figure out, and compromise and trying to get those reports to say the right thing are something -- at least when we worked there -- it would be unheard of that you wouldn't show a report that's coming out in that committee to the representatives on the staff of every single senator on that committee. so they knew what was in the report, and if they wanted to write a dissent, they could. if they wanted to ask to have it modified, they could. so it isn't something that there's some staff over there trying to run everything the way they want with, at least not when that system works well. so it is a complicated system, and the court, in my opinion, in that area has to be part of a rather complex system with the object in mind of trying to help congress from the point of view that if you make the statute do what, essentially, they want, the public knows who's responsible for what occurs eventually. and if you have a public that wants an environmental law

that's pretty strong and they write these words and that's what they're trying to get and the courts interpret it that way, well, the public knows who to hold responsible if they like nth fact, the courts are out there with some other system of interpretation that may or may not reflect what the member of congress wants and then things go wrong, well, who's to blame? no one knows. all right? too complicated. betterfusing. when you have a system of courts that will try to work out the objective of these words in the bill and interpret accordingly. that isn't always an easy thing to do, and sometimes you just can't do it. but i think that that is a basic objective, and that's why i put that particular one or two of the six possibilities that are all used up up high. >> you know, i really, i commend you all to the chapter on

statutory interpretation because what comes through is your view that the court should be working in partnership with congress, not as an adversary to congress and not as a hand maiden to congress, but a partnership to achieve the objective of the title of your book, "making our democracy work." to the extent that the court, accords congress the respect not to hold it to the stupiddist, inadvertent language that might have come out in a statute but to the purpose for which the statute was intended, it motivates congress to a transparency and the ability to really reflect what was going on in the congressional debates. you don't hear that very often. it's something that's a quite novel about this book, i think. >> you can't have anything novel in law. you're only a good lawyer if

you've never done anything for the first time. [laughter] that's the point of precedent. so novelty isn't necessarily what i'm after, but that's a fair -- that's a complement, and i appreciate it. but then you go to a different area. administrative law. and there i have a kind of, i think, an approach that i would follow is one that looks to the comparative ec per tease as judges -- expertise as judges and, say, the nasa administrator who knows more about space than most judges. but you look at the statute and see what's at issue and judge comparative expertise in acourse dance with that. or when -- accordance with that. or when you're talking about states. it's not just brandeis' idea of the states being laboratories of experiment, but that's part of it. it's several ideas. and actually the europeans thought of what they call subsidiarity, itself captures a lot of thosein your mind

helps when you reach difficult questions in that area, or when you're dealing with lower court trial decisions recognizing that these lower courts and higher courts -- the right word is not hierarchy, in my opinion, the right word is specialization. they have different jobs. the trial judge's job is different from that of the appellate court judge, and to understand that is to help decide a whole set of cases. and when you're talking about the constitution and civil liberties, i think that normally what we do is -- and what we do do many cases whether we say it or not is you look for the general value that's up this. in a hard case where it was hard to find the general value where we really disagreed was the gun control case. people disagreed. and then you apply those values to today's circumstances through complicated ways, but they're

not impossible. looking at how much the values infringe and for what reasons and whether there are alternatives. and then when you're dealing with the president in his most august capacity and an important nonadministrative capacities which is that security of the nation, the difficulty there -- and you can see it in the past, you can see it in the core mat sue case where 70,000 american citizens of japanese origin in 1942 were taken from san francisco in california and other places and moved into camps. and history by 1944, two years later, showed there was no justification for that whatsoever. and the supreme court upheld it. and there were good civil libertarians on the court who voted to uphold it, black and frankfurter. and there were three in dissent, jackson, murphy, roberts. and why? why did they do that? and to ask that question is to put a very big problem.

because the court is responsible for seeing that the president, too, is held accountable to those the standards of civil liberties and liberty that's there in the court -- in the constitution. but the constitution's not a suicide pact. so what i thought, for example, is the court just couldn't figure out how to do it. they said, well, president roosevelt has to run the war, or we do. and we know we can't. and, there have, whatever he says has to go. and contrast that with the guantanamo cases where the courts tried the majorities in those cases. we're always part of it, so i'm somewhat biased in that. but they're trying, i think, we're trying to find a way to achieve a degree of accountability without, at the same time, undoing the power of the president and the congress to protect the security of the united states. did the court succeed?

i'll never know. we won't know for years. when history looks back and says, that proved okay and at least we certainly hope not terrible, and that's true of lot of cases. but what is it, why am i doing this? it's easy to think i'm doing it because i look back personally, was interested personally in my cases, trying to see if those cases fit together in some way, and i have to admit that's part of it, but there's a different reason. because whether i am right or wrong about these approaches, i think by illustrating these approaches, by illustrating what i'm doing, what i think i'm trying to do i can, true that part -- through that part, try to show people who aren't judges and who aren't lawyers, i can try to show people what the supreme court looks like through the ideas of one judge when the court is trying to make some of it most difficult decisions. be and i want people -- and i want people to know that.

and i want them to know that just as i want them to know about the cherokee indian case where the court said the land belongs to the cherokees, and the president of the united states, andrew jackson, said, i'll send in troops, but not help the cherokees, to evict them and send them to oklahoma. john hard shall's made his -- marshall's made his decision, let him enforce it. and i want them to understand the little rock case where eisenhower was told if you try to integrate those schools in the little rock, you're going to have to have of a second reconstruction and occupy the south. that's what jimmy burns told him. the best that'll happen is they'll close the schools. and eisenhower decided to send the 101st airborne which, people at that time knew just what that was. they were heros of the battle of the bulge, they were heros of normandy. they had been caught on those steeples and shot down the day of d-day, and that's the troops

that eisenhower said i'm putting a thousand of them on airplanes, and they're going to little rock, and they're going to take those black children by the hand, and they're going in. and, you see, that was a great day for the law because nine judges couldn't do that. 9,000 judges couldn't do it. >> and, of course, arkansas then did close the schools. >> they did close the schools, but this was a step. but it was an important step. it was right. he fought it out, and a lot of other people did too. it's not just the judges, and it's not just the president. it's a lot of people, and what i want to see, i want to see if i can explain p to people who aren't lawyers or judges, you know, it's you too? you know, this court was put there for you too? and it can't decide everything, and there are hardly everything it's always right about, and that doesn't matter that much because it's there as a kind of protection. it's there to do sometimes very

unpopular things, and sometimes they're even wrong in your opinion and maybe in mine, but overall over the course of 200 years or so we have had a lot of bad things in our history. but overall we've got to a point with this institution where people will follow it. you see, that's what i'm trying to express. i'm trying to express what i feel when i see people of every race, every religion, every point of view who really disagree, and it's a big country, and there are plenty of points of view, and there's plenty of disagreement. and i see them come in, and they've decided to resolve their differences under law and not with guns in the streets. and that's the great virtue and treasure that i see every day. and how can i explain that? how can i -- i don't want to give a fourth of july speech, which identify just given -- i've just given. [laughter] you see why i go into the details. >> so let me ask you, what's the biggest obstacle to the public coming to the kind of understanding you'd like them to

have? after all, one way in which the court is unique is that justices explain themselves, right? you didn't agree with the majority in heller, the second amendment d.c. gun case. you explained what you thought was wrong. justice stevens, in his dissent, explained. the court really -- members of the court take accountability for their minnesotas, and they -- opinions, and they explain them. why does it take a book like this? >> oh, by the way, the book will be a drop in the bucket. and what i think is the biggest obstacle is this, and it's right there in your mind. as soon as i say it, you're going to say, well, maybe that's true. and i think the biggest obstacle is more and more people think that what the court does is political and that this is nine junior varsity politicians. that's what they think. and everything tells them that. and the decisions they don't agree with, the articles that are written, the tremendous desire to politicize things and.

i want to say -- and the trouble is you can't just say no, you can't say no 100%, so i want to say, look, it's complicated. and basically the answer is, really, no. in the sense i understand politics, are you democracy/republican, popular/unpopular? and that isn't what goes on. i don't always approve of everything that goes on because i'm in dissent some of the time. but still i don't think that's a helpful characterization. then people say, well, if it isn't politics, it's these nine judges doing up there whatever thing they think happens to be good. i say it isn't that either. it isn't that either. it's far more complex. it isn't really. judges do have -- well, is it just values? values, that's part of it. i mean, i grew up in the san francisco, i went to public high school, i've lived a long time and had a lot of experience in law and people do, in fact, form

views about what the country's like, how law relates to people and so forth. that's certainly true. and it can be different with different people, that's certainly true. and presidents may fail to appoint judges who always decide their way. we all know that. you know how teddy roosevelt appointed oliver wendell holmes, and in three month holmes had decided northern security was on the wrong side, and roosevelt said i could carve a judge with more back would be out of -- backbone out of a banana. [laughter] it's hardly surprising that people have different general philosophies or ways of looking at law and life and america and o forth. and that isn't a bad thing. the t a big country. there are 300 million people. but i want to give a sense of -- and the best way i can do this is through my own eyes because we all know ourselves the best. that's both a good thing and a bad thing about human nature. but i can, i can put forth, i

can express best how i'm seeing this and whether people agree or disagree, they'll begin to think that others on the court as well have, perhaps, somewhat different visions. but this is the nature of the institution. these are the kinds of thoughts and arguments that go into deciding cases. these are the different kinds of cases they have, and this is where the court's been in the public mind over 200 years so that when this happened a year ago, the chief justice of ghana was in my office. and she said she's trying to do a good job in ghana of trying to develop these democratic institutions. and she said, what's the secret? hmm? good question. i have to say i don't know. there isn't a secret. and what i'm tempted to do is to tell you a little bit of the history. and the history i want to tell is the history of some good things and some bad things.

there's the cherokee case, there's the dred scott case, but on the other hand, there's also little rock. and there also is much to be pleased about. and by the time you get through that, i hope you have some kind of -- i hope somebody will have, you know, a reader who isn't even a judge. fine, if they're lawyers. but if they're not lawyers, they'll have an idea of where the court's been in american life and why, and they may have an idea, too, of how in these really complicated and difficult areas it's not a fourth of july speech. but that fourth of july speech can be spun out and can be given legs or given content. and we all have our ways of going about that. so it's understanding that i'm looking for, and it's the antithesis of, oh, it's just politics. >> people who follow the court even casually, i think, are aware 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. >> oh, i can see why people like the idea. i think that they, that some people anyway, are hoping to find certainty in that. they're hoping to get away from subjectivism. they're hoping to get away from are the judge's personal view, and they think if only we can go back into history and find out specifically what this is, what those people at the time wrote this document would have intended in detail, in detail, we can get that certainty. and that'll be a better process because it will be more objective. so why do i not think that's right? i think it's not right for one reason, because i've had some experience with it, and i can't find that certainty very often in the questions really in front of us. we had a case involving ex post

facto clause where the historical thing seemed to be a question of what a judge in the late part of the 18th, early part of the 19th century thought about a trial of what blackstone had said about walter raleigh. i dutifully sent my clerks up to the library, and i know i wrote with something, but if i have to tell the truth, we don't know what this 19th century judge thought about a 17th century trial. [laughter] look if you want to, go call up those heller and mcdonald, the gun cases. and i believe what you'll see is justice scalia having written a really excellent historically-based opinion where he comes to one conclusion. and john stephens having written

an excellent p historically-based opinion where he comes to an opposite conclusion. now there i believe stephens was right, and that's what i say. [laughter] but nonetheless, nonetheless, over and over -- put nine historians on the the court if that's what you want, and i think in many cases the nine historians will disagree. so that's one reason. another is this, and it's an almost unanswerable question to me. over and over you find instances where people who write a law or a provision of a constitution are not just interested in the details, they're interested in something more basic than that, and then they want that to be done even where it conflicts with their view of the details. now, ronnie -- [inaudible] is a good example in one of these philosophical articles where he says imagine you have a

legislature, and that legislature passes a law protecting environmentally endangered species. legislators, for some reason -- and they write it all down -- thinks syrian green chinchilla is not an endangered species. and suppose five years later it turns out that it was? [laughter] of what they wanted was to protect the endangered species. and you say, oh, that's a comical example he's dreamt up. now, i agree it's an example i dreamt up. i don't know how comical it is, but try brown v. board of education where for a long time whole argued against brown on enacted the 14th amendment which says no state sh allwhat were they trying to do, basically? what were they trying to do? they were trying to create a united states of america with

those who had previously been slaves or were the descendants of slaves would be treated just like those who weren't. we would be welcome as equal citizens, due equal respect in our community. and by 1954 whatever you might think, people thought 80 years earlier about schools. if you wanted to see what was happening in this country in respect to their basic desire to bring people in inclusively and have them treated equally, if you had any doubt about what racial segregation was doing to destroy that worthy objective, all you had to do was open your eyes and look. and if you didn't open your eyes and look, you must be really blind because it wasn't hard to see what segregation had done before it was practiced in america. so i say it's that 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 the constitution i'm expounding which people say that's a word that sounds terrific, what does it mean? it means they wanted it to last. it means there were values in here that would stay, but the way they were applied would change, and you go when there's an internet or when there are newspars when there are television or when there is dozens of other things, and you can apply the word commerce in the commerce clause, and you can apply the word 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 cruel and unusual, that's up to them. but they passed a law w penaltie forbidden, and flogging is cruel and unusual. there we are. d then another thing -- oh, i'm going down a list here.

[laughter] but you're getting to see i don't think it's so terrific. because suppose it even did work, which i think itti that te details of what people thought was this or that 200 years ago? this i mean, would that constitution last? and, my these cases about the cherokee indians, about what happened after they decided dred scott's civil war, and dred scott contributed to that. about the uncertainty of people accepting the court or the constitution, and that becomes a pretty meaningful question. and, indeed, if you say that they intended this document to k 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 --

[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 because, as you said, justice and scalia had a very elaborate historical inquiry that pointed elaborate inquiry that pointed in another direction, and you had your own approach in your separate dissenting opinion in that case, and i think it's very illuminating of your approach to constitutional interpretation. for people that may not quite ve particular opinion in that case, i want to give you a chance to elaborate on it. >> what i was using it for here, i'm trying to illustrate an approach. and it's the same approach if you have -- we had a national st forbid giving aid to a material resource, material aid to terrorist groups. and the question, which was not an easy question, was whether or not a former administrative law judge and a humanitarian society

wanted to teach some kurdish group. and this kurdish group was on the list of terrorist organizations. they wanted to teach them how to petition the united nations forn the statute? i thought not. i thought there's a big constitutional question here, and you can interpret the statute to avoid it by saying it doesn't cover this. but what i'm trying to show with that is an approach that we use. what approach, in other countries they call it proportionality, and we sometimes call it strict scrutiny or medium scrutiny or really tiny scrutiny or something. [laughter] it's you look and you see to what extent is the right that's at issue, the interest that that right 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 lawyer's favorie kind of question. a lawyer when he sees somebody being put in prison say at guantanamo or some other place he thinks is unlawful and the government's justifying it, the first thing you say is, why? why? and if it's a security need, you say, government, let's see it. if you can't show it to me because it's really top secret, at least show it to the judge. at least show it to the judge. and then if the there are some pretty good reasons there, the lawyer will say, and why not? why not do it in this less restrictive way? are there less restrictive ways you can achieve this security objective? you really have to squeeze or diminish or harm the constitutionally-protected interest that much. well, 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. but, of course, the majority didn't think that. and, again, this case involving holder and involving the administrative law judge who wanted to teach them how to use the u.n., i thought that the free speech right be 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're going to gain. so that's how the kind of analysis works. it's more complicated, a little bit, than i just said. i'm summarizing it. but you see what i am trying to do. i'm trying to show forms of analysis, forms of approaches in different areas of law. which together are pretty, i think they fit together.

they're coherent, and they're 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, are where it counts. and that's what i'm trying -- >> you mentioned the guantanamo cases a couple of times, and you were in the majority in a 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 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 at first rather subtle and then later not so subtle. that the court wass of

interbranch interactions in your reflections on the success of that enterprise? >> what i did with the guantanamo cases they're fairly recent, and they remain fairly controversial. is i put in this precisely whaty as i could to summarize what the majority was saying and what the dissent was saying. and my point there which will disappoint you in light of your question was simply to presidential accountability. because the decision in those cases was over and over for and bin laden's driver, who is probably not the most popular person in the united states, 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 toind 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 ease is si job. i mean, i'm not feeling sorry for myself, i promise you. [laughter] but i would like to bring you in to a little of this because it's not always o clear one way or the other. rarely clear. and the court has to decide, though, and if you don't decide the way we did, you're going to end up deciding, i way the court decides in koramatsu which i think was a disaster, legally speaking, for the country. so there we are. you'll have a theory about -- it why we did and ratchet and so forth, but i'm not going to go into that, so identify avoided that question. [laughter] >> you have one intriguing passage late in the book. you say if you had three w

differently, and you mention only one case. the case you mention is the gerrymandering case in which the majority held over your dissent that the court shouldn't get into claims of gerrymandering. and the point you make about that case is if you could change you think that gerrymanderinga has had a deleterious effect on the behavior of the house of representatives. that's one case. what were the othce. [laughter] i mean, different ones in my mind at different times, you know? the identify dissent -- i've dissented in some things, and i've been more strong on some than others, and i didn't really just want to go and rehearse the dissents. i was pretty strongly dissenting in the case involving the power of a local school district -- i

thought rather cautiously -- to use race as a positive criterias involved, and i thought it was fairly clear that the school district did have that power. and so did three of my and so i felt fairly strongly about ha one. and there are others. there are others. but the one i was thinking of in that particular instance was i was thinking of the general theme which is the general theme that is that the institutions created by our country's constitution are institutions that foresee people participating in the democratic process. so that democratic process above all has to work. it has to work in a fair way. it has o work so people are treated with equal respect and equal chance to have their vote and o forth.

and so forth. it was that theme that occurred to me at the time 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 particular case. >> right, right. judicial modesty with respect to the expertise of some other of of government to decide what it thought was the best way in that case. >> >> well, i thought the reason they didn't go into the case was they couldn't figure out a way to say how you could catch gerrymandering. i thought that i had put out in the opinion ways of catching at about extreme examples and wouldn't do it, they'd set up commissions that would try not to gerrymander. but this is now beyond my areai. 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 would 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, in the -- i've always thought the really tough case was the term limits case a state can't limit constitutional the term of a representative to three or four terms. that's been in argument since the public was foundedded. and you can see if people could have seen the oral argument in that case, they would have seen nine judges trying pretty hard to figure this one out where there was a lot to be said on both sides. so i think that could be helpful. on the other on the other hand s

always an underhand on thiso or argument, would people understand we do most thingsto . 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 is going to effect 300 million people who are not there? or would they? just do snippets. some members of our court think they just do snippets, taking everything out of context. but in canada picture and a bad newspaper picture of each judge, and when the judge says something they like -- [laughter] and it would become frightened r pictures might be put in the newspaper and they better not tell the truth, or the b or whe? we all are here in that we're trustees. and be careful. when you're a trustee, you get very conservative about your institution. and say a major change like

this, for me i'd like to see some evidence. and you can get the evidence, you know? because there are places with it, and there are places without it. and i know this is an word -- ridiculed word, but 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 pew and so forth that make a specialty of it. and you can see how this kind of thing does affect a court and the reputation of it and is so forth. so i would not like to decide this one just on the basis of either gut feeling or what someone told me last or a set of arguments. i'd like, actually, to see some evidence. so i've said that before at which time whoever's questioning me says, he's just looking for a copout. maybe that's true, i don't know, but that's how i feel about it. >> why don't we take one from the other side of the room. >> what is an appropriate --

[inaudible] >> oh, that's up to the senator. that is really up to the senator. when you ask me about confirmation, and this is not a copout, you have to remember that i was not a nominating or confirming person, i was a nominated and, luckily for me, a confirmed person. [laughter] so i always use this joke, i say to ask me about who should be nominated and how and how they should confirm and how is like asking for the recipe for chicken a la king from the point of view of the chicken. [laughter] [applause] >> sure. >> this might have been when you were a chicken. in my adult lifetime, i don't think there's anything ever been more damaging to the reputation of the court as a nonpolitical body than bush v. gore. it totally undermined my personal and many people i know of of's view of the court in a way that i guess my question is do you think that damage has lasted?

do you think it took place, first of all, and what can ever repair it? because my whole expectation of the courts as a institution has been lowered. and i wonder if that's one of those three cases -- >> actually, he talks about that in the book. >> what'd i say? [laughter] >> take it away. >> you know, i was on the dissenting side. but when you look at the polls for a while, it did. they ask, pew does ask a lot, and sometimes i've looked at that. and it says do you have a lot of trust in the court and how much trust, a real lot or on a five-point scale, four and five is pretty good. usually the court's up there with the police and the fire -- not that high. nurses, policemen, firemen, you know, they're at the top there. you can understand that. and we're fairly high up usually. and it did take a dive. but it came back. it came back. and over time

come back. and that's why i don't say too much about bush v. gore or other than what i've said. i was on the dissenting side, but i say that thing that harry reid pointed out because i think that's important when he said one of the things that is least remark is one of the most remarkable, that there were not guns in the streets. and i'm not putting you on the spot, but i'm saying it's a great thing -- >> [inaudible] [laughter] >> i underst felt, but this is,, it is a plus for this institution, really for the country that we can lately. i've been talking with some other lawyers, and my question is this: if ayatollah khomeini from iran were in the united states when he issued the order to kill salman rushdie, under either the free speech or free exercise clause would that have been protected speech?

>> well, the -- [laughter] why do can i, i sort of smile because i had a friend, john mansfield, who was teaching at harvard, and a friend of his came up and said, oh, your a law -- you're 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 he said, well, you're a law professor, you ought to know that. you've got a pretty complicated hypothetical er in prison. and that stems if yspe the firso yell fire in a crowded theater because people's lives put at risk. so there are things that go to the ore side, and -- other side, and committing a crime like murder is certainly on the other side. now, you also put in your hypothetical questions of jurisdiction and so forth, so you'll soon get to the point where i better go look at those law books, but i'm just giving you a general principle. >> sure.

>> last year in school we read the book, "the case of the -- [inaudible] >> oh, yeah, i remember that case from law school. >> yeah, yeah. and one of the big things i remember is that they just talked about the different judges' approaches when studying the law, and one was an originalist, and one was looking at the consequences, and one of thejudges' approach ha really struck me was -- 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 the is. and what came to mind was the recent campaign finance ruling. i readay back that it's one of the first rulings 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 -- >> the public opinion part. that's an interesting question, very interesting which goes, in this a way, to the heart of what i'm trying to say. because the answer to the question is should you decide me popular than the other? the answer is, no, zero, no influence whatsoever. hamilton gave this power of judicial review to the court in the federalist 56. he says exactly why. he says, someone should have the power to interpret and enforce that constitution in most instances. he said, but if we give that power to the president, he'll become a tyrant. and if we give that power to congress, how will we protect the constitution and those it's meant to protect when it's unpopular to do so? because congress just passed a law that's very popular, and you really think they're going to say now it's not the power of the pen, not

the power of the purse. they do have the power of the pen. shot the power of the purse or the sword, all right? now, he thinks by and large they'll do a better job than the alternatives. that's what he's thinking. but, my goodness, they have to remain independent because the whole point of giving them the par -- power is that they will t the existence of an institution which will independently decide things which means sometimes they will get decisions that are very unpopular that they may think are totally wrong, then you're not going to have an institution that will, in fact, be able to enforce rights under the constitution when it's, when it's unpopular to do so. even my statement of this view sound complicated. [laughter] and the more you think about it, the more complicated ite. but it's true. and it's that kind of support

that i think is necessary for right? >> yes, but i consequences of a certain kind. >> right. >> if re unreasonable searches and seizures. you're not talking about the consequence of whether somebody writes some horrible editorial about me in some newspaper. that's out. that kind of consequence has no bearing. it should have zero bearing, and to the best of my ability, i