>> rose: welcome to the program. tonight, justice stephen breyer of the united states supreme court talks about his new book, "the court and the world: american law and the new global realities." also, the life of a justice and the learning process therein. >> i think, by participating in what's going on in this world legally and in all kinds of problems that might come up to the court rather concretely, that that will further that rule of law. and if we don't participate, what will happen is the world will go on without us. we'll see what happens but we won't be part of it. and we have a great asset. who are we as americans? we didn't rule this in from king arthur and we're not all descendents of charla main.

we are people who thomas jefferson and the founders said are engaging in an experiment. >> >> rose: funding for "charlie rose" has been provided by: american express. >> rose: additional funding provided by: >> and by bloomberg, a provider of multimedia news and information services worldwide. captioning sponsored by rose communications from our studios in new york city, this is charlie rose. rose: stephen breyer for the hour next. >> rose: supreme court justice stephen breyer is here. he has served on the bench for more than two decades. his new book is called "the

court and the world: american law and the new global realities." it explores a politically contention question -- what is the proper role of foreign law in american judicial decisions? he argues global interdependence leaves courts no choice but to consider laws beyond the national borders. the supreme court concluded last june to reaffirm the healthcare law, questioned the legality and the constitutionality of the death penalty. i am pleased to have justice breyer back at this table. welcome. so much to talk about just in that introduction e. tell me about foreign law and its relationship to supreme court decisions and the consideration of foreign law, because you and other members of the court have different opinions on this as many things.

>> and it's not simply foreign law. >> yes. there are lots of things that happen abroad. >> yes. and what i show in this book is more and more cases, certainly more than when i joined the court, require judges to know something about what's going on beyond our borders. >> rose: give me an example. artiga from paraguay comes to new york city in the '70s and there she sees the man from paraguay who tortured her brother to death in paraguay. she found a law passed almost 200 years before, probablyo aid victims of piracy, and using that law, she got damages. she said, i came to the united states wanting to look at torture in the eye and i came away with so much more. well, her case has led to many other similar cases, and trying to interpret that statute more

than 200 years old is difficult. i mean, who are today's pirates? i mean, is a federal district court to decide what kind of compensation human rights victims should have? suppose south africa says "we, with the truth and reconciliation commission, want to decide what to do about victims and perpetrators of apartheid and we would like american judges to stay out of it," how to interpret that statute requires us to know a lot about what other countries are doing both in practice and law. now, i could go on with many other examples -- human rights, security versus civil rights, commercial examples, domestic relations. what would you like to talk

about? >> rose: other members of the court clearly say that you cannot look to foreign law within the supreme court decision-making process. they do not want to respect foreign law, do they not? >> it depends on the case. the political issue is people put it very much as you say, and what they're thinking of are death cases, for example, where, in some opinions, judges have said, look, outside the united states, very few countries have the death penalty and they find that relevant because the constitutional provision forbids punishments, cruel and unusual. does unusual mean in the world or just the united states. that's the kind of thing we're focused on. this book is saying that's minnie mouse, minuscule, that's something that applies in a very small area, and if you look at what our dockets are about, you will see the effect of abstract

word, interdependence, globalization. you can hear those words and say what do they mean? i heard someone actually in france -- >> rose: interdependence was in the introduction. >> you did. it's a good word but tends to be a blur. the report from the front says i will make that concrete. i will show you when you have a student from thailand studying in cornell and he sees his textbooks in thailand, the price. he says to momma and papa, send he books, and they do and he sells them. can we do that under copyright law? you're told your decision will affect $3 trillion worth of commerce. not that many books, but

software, automobiles, labels, everywhere. >> rose: not honored everywhere. >> no, that's correct, and there is a statute filled with technicality. when you go and buy your car in san francisco, you think you can resell it, and you can -- at least you can now after the case, but the question was suppose that car is made in japan, you have to have the approval of the software copy right owner. that was a tough question but affects $3 trillion worth of commerce, that's the point, and there are briefs sent in from lawyers and business people and governments all over the world. >> rose: you sound convincing but let me read to you your brethren. chief justice roberts had confirmation hearing, can confine and shape the discretion of the judges, foreign law, you can find anything you want, if you don't find it in the decisions of france or italy, it is in somalia, japan, indonesia,

whatever. as somebody said in another context looking for foreign law for support is like looking out over a crowd and picking out your friends. >> judge levinthal said that in the context of using legislative history. he was a great judge in the d.c. circuit in administrative law. he said that because he wanted to be is a be careful judge, do your jobs. >> rose: he was quoting eleven that will. >> and he was a great judge. the point eleven that will was trying to make is if you're a judge, act like a judge. there are all kinds of arguments around. it's your job to figure out what are the correct arguments, the correct interpretation of the statute. if you want to be a bad judge and you want not to try to figure out the case correctly -- >> rose: yes, but supreme court decisions have consequences. >> of course. of course, they do. and that's why you want to be a good judge. >> rose: but if judges pick what they -- you know, he says,

you are a judge, that's what judges do, but they look to precedent and the fact that they're trying to create -- >> yes, my point simply is if you don't want to play the game properly, you don't need foreign law. there are many, many ways. you don't need foreign law to do the thing wrong. there many ways you can do the thing wrong. you can read all kinds of things wrong. foreign law is an irrelevancy there. obviously where it's helpful, depends on the case. >> rose: so you're basically saying if foreign law is relevant and helpful in the decision that you are faced with, then you should incorporate it in your decision. >> of course. >> rose: and by the way, if -- and, by the way, if that was all i said, you could have a much shorter book. what i want to show is where and how it's relevant in ways that affect the lives of many, many,

many ordinary americans. >> rose: but you can do that in a lot of different ways, to el strait the fact that we live -- we truly live in an interdependent world. if you don't believe that, just look at the global economy. look at where we are right today. we are all being affected by what's happening in the chinese economy. the entire world was affected by what happened to us in 2008. >> yes. >> rose: so clearly, economies and trade is connected. >> yes. >> rose: the absence of trade affects your economy, right? >> yes. >> rose: so we know that. yes. but for a judge, when these cases arise, it's very often a question of how shall we interpret this statute governing securities, that statute governing antitrust, that statute governing copyright, and my point here is, today, unlike probably 20 or 30 years ago, we're trying to interpret those statutes so the anti-trust

enforcers and the securities enforcers of several different countries can work together harmoniously, that's the judge's job. to do that job properly so that it works out properly across the world -- >> rose: but are you simply saying, yes, in fact, if you have to take into consideration the ruling that you are about to make or the decision that you are about to support or not support, you can, in some cases, look to the consequences of what happened or what the law is in foreign countries and other cases you can't? >> that's always true. that's true for every case. sometimes the consequences are highly relevant and sometimes they're not. >> rose: okay. and you make decisions based on how relevant -- that's your point. >> and my point is what's actually happening is why is it that we have, let's say in the securities case, why do we have

briefs filed by authorities of different countries all across the world, lawyers all across the world? why do we have this new information coming in front of us? how do we evaluate it? and justice scalia whom you quoted was in the majority and i agree. and he agrees in a case like that of course you can consider what's going on elsewhere. >> rose: he does? yes. >> rose: we must never forget it's the constitution of the united states of america we're ex pounding where there is not a consensus among other people the views of other nations however enlightened the justices of this court may think them to be cannot. >> you better ask h him what he's thinking. i would say be imposed. >> rose: cannot be imposed no matter how enlightened. >> i would say ask him what he's thinking. >> reporter: you sit next to him. >> let me give you a good

example -- >> rose: what do you think of that statement? >> i think it implies, perhaps, in some cases, and it's perhaps not exactly the way i would put it the -- i'm being -- i want to stay away from what other people think and want to focus on what you think. >> rose: to understand what you think i sometimes have to hold up what other people think to see how you differ. >> look at guantanamo. >> rose: right. we had four cases. they came out in favor of the detained person. the guantanamo cases are typical beginning with abraham lincoln. in wartime the court is sometimes asked what do you think, legally, of this effort by the president to restrict traditional civil liberties in the name of national security? that's not an unknown question.

you go back to the civil war, you will discover they're quoting cicero. cicero said, in time of war, the laws stay silent. >> rose: that sounds like what abraham lincoln believed, too, yes? >> yes. and the court stayed out of it. and by the time you get to the first world war, similar. second world war, that view led to 70,000 american citizens of japanese origin locked up, brought from the west ghost against their will and locked up in camps throughout the war for no reason. in the cora matsu case, the court said that was okay, 70,000 americans who had done nothing and there was no good reason. in the steel seizure case, the

court said the president during the war could not seize the steel wars. now let's go to the ga gan tan w cases. in those cases the court interfered with the president decision and set it aside. justice o'connor wrote, and i joined it, constitution does not write the president a blank check. very well. >> rose: i believe that paration of powers. doctrine of >> that's a change from lincoln, and cora matsu and a change from stay out of it. we're not staying out of it. but the question is if it does not write a blank check, what kind of check does it write? that's the kind of question that's in front of the court. you tell me how to answer that question unless we -- if you're on the court, unless you know

something about the nature of the security problem, and today that means knowing something about threats that emanate from overseas, about threats that aren't traditional war, about security problems that other countries have been involved with, about potentially the use of other kinds of solutions to balance the civil liberties problem with the securities problem. if you want an informed and sound decision, those who make that decision have to know more in the security area than just simply reciting some precedent, and that's why i say, even there, of course you have to know something from abroad. that's the nature of the world. >> rose: and the difficulty i'm having is to say to you, it seems to me that in every decision you have to know what informs, a, the law, but, at the same time, the consequences of the judicial action. >> yes. >> rose: and that changes at

different times. >> glee >> rose: i mean, there e been an ongoing question of what is the constitutional act. even today, can a president do this? does a president have these executive powers? this president has been challenged, certainly politically. >> you agree with me so much that -- you seem to -- because, of course, i think that's what's true. and because area after area encompassed in what you have to know is quite a lot about what happens beyond our borders and, if i'm right about that, in areas of security, civil rights, liberties, commerce, et cetera, then the problem you started with has shrunk away to very minor significance, and that's my point. it's that that problem isn't so much right or wrong, the one you started with and the one you quoted justice scalia and the chief, it's just that it isn't

very important compared to what the world is forcing on us, and i would say to those who hold the political position that you were quoting, i see why you think that. you think that probably because you were afraid that these foreign judges -- >> rose: i think that number -- >> no, no, the ones you quoted. >> rose: right. and i see you probably think that because you are afraid the foreign judges will somehow melt down or dilute our basic american values. but i think and i hope you would think this after reading it, at least, that the way to preserve our basic values of democracy, human rights, broad commerce, et cetera, the way to preserve it is to understand these problems that the world is throwing up to our doorstep and to deal with them, in other words to learn more about what

happens abroad, not less, and to try to coordinate more what's going on in other countries not less, and to abandon some kind of general statement -- >> rose: what i'm trying to say is -- >> what? >> rose: for god's sakes, don't think i'm trying to argue with you about the constitution. i'm just simply trying to say, in the world that we live in, all kinds of actions have international consequences. >> yes. >> rose: some of them are based on law. >> yes. >> rose: you talk to certain companies in silicon valley -- google, for example -- and they're having some problem being able to get their products sold in the manner they'd like to sell them in europe because of laws that are being interpreted by regulators in europe, there is consequences and markets for them. >> correct. and what you might not have seen is the how the very problem you're discussing is formulated,

thrown up on the door steps of the courts, and the courts will have to develop thoughts to deal with this. and that is making the problem you talked about very concrete in respect to the courts. by the way, how many organizations do you think there are in the world? let's call them organizations created by treaty where there are administrators. now, they're not one country or the other, but these administrators can make rules that, in practice, bind more than one nation. if you had to guess, what would you guess? >> rose: how many international organizations? >> that can make laws, or not laws but rules that bind more than one nation. >> rose: 15. how many do you say? >> 2,000. probably we belong to several hundred. >> rose: right. and each of those people are out there busy making rules, and sometimes it's called international trade organization, sometimes it's called --

> and the question will be what is the status of those rules, to what extent can congress or the president say we're going to give those people over there the authority to make rules that bind you the average american. if the answer is zero, we can't contribute. >> rose: we already know this country has real problems, certainly in terms of its citizens and more specifically in terms of its soldiers in terms of raising questions at certain times about who can give them orders. there are questions raised by the american military that american soldiers cannot be under the command of non-american generals. >> right. >> rose: and they say that because they look at -- a that the united states worries about the international law in terms of the world that we live in. i'm just saying, help me through

this, the united states worries about international law in terms of the hague, in terms of who might be brought. >> yes. >> rose: and will they -- and if for some reasons actions were instituted in the international court of justice in the hague against president bush, say, 43, about iraq, as some would like it -- i mean, i had people i know wanted to see tony blair be brought to justice, as they defined it, at the hague. the united states wouldn't recognize that for a second, would they? >> well, it depends on the treaty and it depends on what they do. >> rose: does it? yeah, because, actually, we have -- >> rose: if they brought -- in. >> the example you give, the answer is you're right. there are other examples that might come close.

could the i.c.j., one of the cases here, could the i.c.j. interpret a treaty that we had signed in a way such that mexico had to have a new proceeding in respect to a death case involving some mexican nationals who had committed a murder in texas. that led to several proceedings before the international court, our court, it was a difficult and complicated case about the status of that foreign decision under our domestic law. >> rose: right. it led to a lot of dispute. now, there are more and more cases like that. i would like people to understand what they're about. i would like people to understand that we are -- i would like them to understand where we are in this complicated world that you're describing and where we are concretely the supreme court. >> rose: okay. this is what you said, also. an important division of the world are not geographical,

racial or religious, but those who believe in the rule of law and those who do not. >> yes. >> rose: how do you determine who believes and who does not? for example, i was recently in russia. do they believe in the rule of law? >> probably some do and some do not. >> rose: we're talking about those in power. >> we'll find out when you interview, which you're going to do. (laughter) >> rose: well, i don't know whether i will or not. help me understand something like the kentucky clerk on same-sex marriage, someone who obviously decided the rule of law did not apply in that case because same-sex marriage is constitutional, correct? >> we did hold that. >> rose: yes, indeed. and here's a clerk, a governmental official in kentucky says i'm not doing this. >> now you've gotten into the area i can't get into. >> rose: it may come up before you. >> yes, they may ask us to hear it. we don't know.

>> rose: should you? should we hear it? >> rose: yes. that would be giving the answer to the very question i'm supposed to decide after reading about it. >> rose: i know. i'm sorry. my curiosity. you wrote a dissent in bush vs. gore. >> yes. >> rose: has the country decided it's history now and george bush was president? >> what i find interesting is talking about general things and that's what i mean by those accepting the rule of law and those who don't. we did accept the rule of law there. i've explained this to -- we discussed it, the president of the supreme court of ghana. >> rose: what did he say? she. >> rose: she. she's in my office and she's trying to improve the courts and try to help them maintain a democracy and human rights and she says what's the secret? it's the same point that harry

reid made. he said, the most remarkable thing about that decision is rarely remarked. he said, what's rarely remarked is people did accept it even though it affects their lives, bush v gore quite possibly -- >> rose: affected history. many of them opposed it, and it may be wrong. >> rose: and you're saying but... >> but, if you're not prepared to accept decisions that you don't like and, after all, judges are human and their decisions may be wrong -- >> rose: right. -- and if we're not prepared to accept that, we don't have a rule of law. and what i say to the students on that is i say i know 20% of you when i told you what i just told you are thinking too bad there weren't a few riots. before you come to that conclusion, turn on the television set and see what happens in countries where -- >> rose: there is no respect for the rule of law. >> -- where they decide

decisions that way. i see in front of me people who are committed deciding under law. that's a great asset for this country. it's amazing. it's amazing, actually. >> rose: there is a respect for the rule of law. >> well, the rule of law means it's easy to accept the rule of law when you win. >> rose: but i'm not talking about that. i'm talking about how important the rule of law is, not only because of maybe you don't like it, but also it keeps predictability. >> correct. >> rose: i mean, i know lots of people that wouldn't want to live and certainly would not want to engage in transactions in another country that didn't respect the rule of law and did not have a system of law to express their grievances. >> yes, that's right. and you say it's good for prosperity, it's good for human

rights, it's good from a point of view of fairness, and the alternatives if we turn on television seem to be quite a lot worse, and the question is how do we keep it and how do we maintain it. and the point in this book is, of course, i think by participating in what's going on in this world legally and in all kinds of problems that might come up to the courts rather concretely that that will further that rule of law, and if we don't participate, what will happen with the world will go on without us, and we will see what happens, but we won't be part of it. and we have a great asset! i mean, who are we, as americans? i mean, you know, we didn't roll this in from king arthur and we're not all descendents of charlemagne. who are we? we are people who in part and thomas jefferson and the founders said are engaging in an

experiment, and when lincoln is at gettysburg and lincoln says four score and seven years ago our forefather brought forth on this continent a nation conceived in liberty and dedicated to the proposition that all men are created equal -- >> rose: all men are created equal. >> that's what he said and point back to the declaration of independence and said we are engaged in great war to see if this nation or any nation so conceived and so dedicated can long endure. you see the thought? we are an experiment at the time of the founding -- we are an experiment. at the time of the founding there is no other country engaged in democracy and the human rights trying to govern themselves. at the time to have the civil war, there still isn't one really, though they're coming along, and we are here as an experiment to see if we can, in fact, so endure in lincoln's

words and, indeed we have, so far, with plenty of ups and downs, but that experiment is not over. and when i look at this, i think, well, i'm trying to do my best to describe what the challenges are for lawyers, for judges and for americans who aren't either. what are these challenges that we might use law in order to keep that experiment going? and that's ultimately why i want us to participate. i want to put that -- >> rose: you want us to participate? >> yes, participate means begin to think as a judge and as a lawyer of what's going on beyond our shores and the relevance, if there is one, of what you're arguing here to what's going on over there, and there are plenty of places where it's relevant, plenty. >> rose: well, clearly, the relevance is there. >> clearly, the relevance is

there, but you would be surprised, quite possibly, at people -- maybe they're overstating it -- saying, no, no, just pay attention, this is what the law says here, but this is what it's been in virginia, california and don't pay too much attention to the rest of it -- i think that's wrong. i think that's wrong and you've told you my reason. let me give you a simplistic example. >> rose: okay. we had in the last years three cases involving a treaty about domestic affairs. >> rose: right. about abduction of children. they're tough judges in the system. the people who know about domestic relations and marriages

and children are the domestic relations judges and they're in the states. that's one of the toughest jobs in the legal system. so why are we suddenly deciding these matters? well, because they're in a treaty. why are they in a treaty? because the world today is filled with marriages across boundaries. so it has to be in a treaty. and now we have a problem, don't we? the problem is how do we adjust our institutions so that we can sensibly create rules about child abduction, about spousal abuse in a world where so many of these problems cross borders. that's not a problem that's within solved, and -- been solved, and that's a problem that will require judges and others to work on it. >> rose: do we need -- so if there's a body of law that comes under the general category of conflict law, you know, and once state has a certain law and another state has another law and if you live in one state,

you have to adhere to these laws, and if you live in another state you adhere to these laws, and that's what we had with same-sex marriage. >> the problem was with a spouse in missouri and another spouse taking a child to idaho is a problem that have arisen for years. there are various ways of resolving it under the state and federal government laws, but now we have the same kind of problem involving chile, britain, the united states, and there is a treaty that will have words in it which will be an effort to resolve far more differences than there are in all likelihood between idaho and, say, wisconsin, and it's those people writing the treaty and the federal judges interpreting it that are going to have a major impact and i'm simply saying be prepared for that. >> rose: you mentioned the number of institutions, when you said maybe -- i think you said,

what, that the united states add heres to -- adheres to as a rulemaking body. >> about 100, somewhere. >> rose: do we need a world court? >> well there are world courts. there are 16 -- >> rose: how do you decide between some of these issues in which the laws of iran are different than the laws of the united states? >> do i have a direct answer to that? >> rose: i don't know. that's the kind of problem you're talking to. yeah, yeah... >> rose: you can give me the nuances because you're thinking about it and write a book about it in part. >> it's something called the greenhouse gas commission. >> rose: yeah. as i said, the united states could use some of its supply to hav --supply of the greenhouse s

because it was a special need, but there are stoochts that say you have to have an environmental impact statement and does that statute apply and it depends on the interpretation of the word "law" in the statute about whether a meeting of the commission constitutes law. it sounds technical, dull and terribly important and it isn't so technical when you get into it. what i want to show is these kinds of cases are there. it's not going to be something that's going to happen, it's something that's happening and that's the world referring to what's happening beyond our borders, not this political debate that you began with. >> rose: the death penalty. in your dissent, the death penalty is by definition -- for you -- cruel and unusual punishment. >> i didn't say that. i said we should go back and

consider the basic issue. >> rose: and the reason you are saying you didn't say that and you asked simply to reconsider it is because you wanted it to be based on some specific case that presents itself so that you can decide the constitutional question? >> that's right because that's what judges do, and they don't announce the decision before they've read the briefs, but i can say there is enough right in front of us, which is what i did say, there is enough in terms of the wrong person sometimes, in terms of the arbitrary way in which it seems to have been applied, and there is lots of information on that. >> rose: more and more so, by the way. >> yeah. in terms of how long it takes, the average time a person is sentenced to death, between that moment and the time of execution, 18 years, and the number of states and places that actually engage in executions has fallen, so i compare 46

pages worth of information like that with opinions 40 years ago where the court said the death penalty was not unconstitutional. >> rose: because it's not cruel and unusual? >> that's what they said. cts and compare that withhese those decisions. don't you think it's time to reconsider the matter? >> rose: and you think there is a majority on the court that believes that? >> we'll find out when they have to decide it. i'm not being coy because that is how we operate. we operate case by case, it comes up -- >> rose: no, no, this is a constitutional law conversational lesson, as far as i'm concerned. solitaire confinement. >> that will come up, too, in some form. >> rose: it will? i was struck by a conversation i had with a friend whose son had been caught up in drugs and was

placed in constitutional -- in solitaire confinement, and he said to me with pain in his voice, he'll never be the same. >> justice kennedy wrote something in one of his opinions -- >> rose: enough. yeah, and these issues may well come up. they'll come up. i think they will. that's what was said that there is an issue in this country that people are concerned about. it's quite likely to come up in front of the court. but the court are not at all being coy. the way a judge proceeds and the strength of the institution is not to have a blank mind but an open mind which means you read what people write on the issue, you think about it and don't just react as you might at a cocktail party. you think about it. it's a serious decision. you discuss it with others and make a decision.

that's the kind of 12th grade civics explanation, but the courts do work that way. >> rose: but people who are appointed to the court sit on that bench with a different metric for making decisions. how the framework of decisions for different justices is different. >> it's not exactly the metric. there is an interesting way to describe it. >> rose: architecture, whatever you want to say. >> i would put it in terms of it's not the politics, it's not ideology -- >> rose: right. -- but people have because of their background, because of how they grew up, and by the time you're well along in your career, you have sort of philosophical views or you call ate metric. >> rose: call it architecture, however you want. >> how does this country work? how does the constitution relate to the ordinary person? what are these basic principles

of applying the law to the lives of people in this country? now, the people can differ about that, and i used to think, isn't it too bad that not everyone agrees with me? and i've sort of changed on that because it's a big country. there are 315 million people and it isn't so terrible to have a supreme court where different judges do, in fact, somewhat dferent attitudes some of the time. that's pretty much what it is. >> rose: different attitudes about the law? >> how does the law relate to people? is it better to interpret a statute that's ambiguous in a way that produces absolute certainty through a rule, or is it better to proceed through example? is it better to put more weight on the consequences that are likely to occur in a decision, or more weight on the precedent, or is it more important to stay absolutely airtight in respect

to language, or is it better to look at that language and see if there isn't a heatle leeway -- little leeway in the language that allows the application of the statute or the provision to take into account current circumstances, current needs and objectives, values and purposes, those kinds of things are matters of degree and different judges have different approaches. >> rose: i think this is freelancing it on my part and maybe farfetched, but look at parents who raised children and the moral code that they -- and how they define what is right and wrong for their children. right or wrong has to do with how they have been -- their own ideas have been formed by that. what they brought from their parents, what they brought from their religion, what they brought from their education as to what's right and wrong. >> that's true. >> rose: what one family might say is don't do that, it's

detrimental to the child, it's detrimental to the community. another family -- we had this in a case, didn't we? not a big supreme court case, but where parents would let their kids walk to a place, and another parent said kids underage can't walk. >> mostly differences you will work out in different communities, but that's a fairly good description of where there are differences. but you have to keep in mind half the cases are unanimous. >> rose: half the cases on the supreme court. >> yes. >> rose: here's what's interesting. half the cases are unanimous. and you have been in the majority 80% of the time? >> this last year. i know the answer to that, but 92%, but who's counting? i read that in the newspaper. maybe about 20% of these are

5-4s, and it's not always the same 5 and the same 4. so the word in the constitution liberty, the freedom of speech, it doesn't define itself. there is an openness and basic value. so it's both the way you described it, the parents raising the children and different things, and it also is that immersed in the system of rules and words and precedents and history and all those things are part of a decision. >> rose: you think judges -- this is an old argument, idea -- how judges react is ever and how a judge responds, is ever behaviorallism a part of it? i had a bad day? >> my goodness, in a federal court or supreme court -- oh, my

goodness. the the one thing, perhaps, is the virtue of the job, as you get older it is, and i've said this before, but these cases, everyone knows, affect a lot of people and you must, you must put out your very best every minute. justice souter used to say, you're never off duty. >> rose: because? because you're thinking about the issue, you understand you represent the court, you understand this inn institution, mistakes have been made, but still a great benefit to the country, but this is a serious responsibility, a serious job and people do their job. they take it very, very, very seriously. nobody is going to make a bad decision because he has a stomach ache. that just doesn't happen. >> rose: i'm just raising that because behaviorallism --

>> that was popular in law school in the '30s. >> rose: i wasn't there. i wasn't either. >> rose: how have you changed in the years that you have been on the bench? >> how have i changed? i've gotten older. >> rose: no, i know you have. but how have you changed? what have you learned? could you make a speech on how you have changed in 20 years, thousand bench has changed to you, how the experience has changed you, how, year by year, there has been an assimilation of ideas and arguments and experiences so that stephen breyer, 2015, is different than stephen breyer 2000, and i can tell you, from the neuroscience stuff we've done on this program, and these are smart people, your brain at the end of the day is different from your brain at the start of the day.

>> i i believe it. >> rose: it is. everything changes. but have you changed, knowing that there is change, knowing it's not necessarily right or wrong? >> i think when i was first appointed like most of the judges first appointed three years to five years ago, fright snoond frightened? >> yes, how do i know i'll get this right. can i really do this? it's hard, and i'm worried that i don't want to make a mistake, it affects a lot of people. so i'm frightened is the way to describe it. gradually, after four or five years, you see things begin to repeat. they don't quite repeat but you begin to learn areas and gain experience. i think in a way, even if you

disagree more, perhaps, with some of the others, you begin to see where they're coming from. you respect their view more. you understand why they're saying what they're saying. it's easier to listen. and it's easier to say something to you or one of the others on the court that will be meaningful to them. so i think you get on better. we always got on well personally, but you get on better as you begin to understand others' points of view. also, you have -- i think i realize, you know, i'm not going to persuade everybody of everything all the time. >> rose: true. and everyone would like to persuade everybody of everything, but listening, understanding where people are coming from, not trying to just announce what you think, i think

that that improves over time, and the understanding of the institution improves over time, and the realization that what you can accomplish is limited, but you keep doing your best, and i think people begin to feel that more and more, as they're there more and more, and it always works in the direction of making it a more meaningful job, and i hope doing a better job. >> rose: most people sit on the supreme court longer than they do other kinds of jobs, obviously, because it's life and not many people retire. i'm fascinated this is a place you don't want to go because it's politics, i'm fascinated to watch our president, and he's doing things now -- there was a time which, to listen to him, he sounded like a man weighted down by the weight of the office baud of the gridlock, because of the nature of the debate or absence of debate and, yet, now, he

seems to be almost liberated and engaged by success, in his judgment -- i don't mean to be a pundit here, but i'm just interested in growth. >> yes. >> rose: i think it exists. yes, i do, too. i think in our job that is -- i think that is a pretty good description. it's important to me to be able to understand what someone is thinking and why they're thinking it in times when i disagree with that person. why? where? where does it come from? and you have to know people. you have to have sat there and listened and -- >> rose: really listened. eally listened, not pretend to listen because everybody knows everybody can pretend to listen. >> rose: i probably have done

as many conversations, certainly with world leaders and of men and women of distinction, from world leaders -- and i think this is also true in men and women, in marriages, they all want to believe -- i've talked to people who lead countries who feel like they are at odds with the united states in significant ways, but they all want to believe that they're listened to, that they're taken seriously, that you cared enough to consider their point of view, and what you've just described is just that. i'm trying to understand what you're saying because -- >> yes, yes. and, you know, before i was a judge, i worked for senator kennedy on the judiciary committee. i think i learned that, in part, from him. he did listen. he wanted me, as chief counsel,

to pay attention to what the republicans were saying. we did have groups of republicans and democrats on the staff level working on the same problems together, and a lot of that work it didn't always work. every morning, senator feinberg was the number one or two person and we would have breakfast and try to figure out the day so that we would try to minimize disagreements. now, that worked there. that's not the court, but it was an approach the senators favored at that time and, of course, you say, well, is that the court? well, that listening, paying attention and really doing it, not necessarily saying you're doing it -- >> rose: there is a difference between listening and hearing. >> i agree. >> rose: but you wish it was more true in not just

international relationships but also domestic politics. >> yeah. >> rose: and you were worried the political system has lost that quality and then it will do something that surprises you. >> as i've said a lot, you know, i have not heard a voice raised in anger in that court, in that conference room. we disagree but we disagree civilly and we can be friends and we are. it's professional. the disagreements can be serious, but no loud voices and no insults, not even as a joke. and that's true for 20 years. i tell the law students that, you know, you can make your points and you will make it better if you make it in a civil way. >> rose: if you were making a last lecture, a term that's a term of art now, would you want to say that sums up what you have learned, if you could give

one last lecture as a guide, i would assume you would want to say some of the same things we've said in this conversation, listening, understand ago point of view, respect to have the rule of law, and understanding of those forces that are shaping our time wherever they come from. >> yes, and, of course, given my job, you know, if it's all right, you know, it's a document and i care about it. of course, americans do care about it, because this, in large part, holds them together. so if i come back, i add to that absolutely what you said, and if we make it topical with the book, i'm trying to say this, and the way americans basically do accept what you've just said,

you see, this is something where we have to reach out to the rest of the world. we don't preach to the rest of the world, but we cooperate with the rest of the world, and we try to take people, even those who disagree with us, perhaps, and work with it. that's called the rule of law. >> rose: during a recent october hearing, i took my seat on the supreme court ready to listen to oral arguments in two cases, the first we found the cost of textbooks too high so a student bought them in thailand, shipped them to the states and resold them to american students. did he have a legal right to do so? an issue you talked about. >> yeah. >> rose: thank you for coming. thank you. >> rose: good to have you here as always. >> well, it was very ni e for me. >> rose: the book is called "the court and the world: american law and the new global realities."

justice stephen breyer, an honor. thank you for joining us. see you next tibe. >> rose: for more about this program and earlier episodes, visit us online at pbs.org and charlierose.com. captioning sponsored by rose communications captioned by media access group at wgbh access.wgbh.org

>> rose: funding for "charlie rose" has been provided by: american express. >> and by bloomberg, a provider of multimedia news and information services worldwide.

report" with tyler mathisen and sue herara. >> towering higher, the dow rises triple digitsig as invests bought stocks ahead of the start of the federal reserve's crucial meeting. wall of worry. the big issues keeping chief executives and wall street up at night. and study hall. what one startup is doing to try and change education in america. all that and more tonight on fight "nightly business report" for tuesday, september 15th. >> good evening, everyone. i'm sharon epperson. >> and welcome from me, as well. i'm tyler mathisen. there was optimism on the street today. not many expected a rally, let alone a big one. but they got it, despite all the general uneasiness. today a day before the start of theed