. >> rose: welcome to the program. tonight a conversation about the law and the supreme court with associate justice stephen breyer. >> the most can i do is my best. and i think all of us since i have been there, every one of us has really tried to do his or her best. i mean you are putting out. and as you get older, that becomes a privilege. more and more. you have a job where you can go in every day and you just have to do your best. and then you say over time, you begin to think well ivy seen these cases before, be careful, you haven't really. they're not quite the same as what you saw before. >> rose: stephen breyer for the hour. next. funding for charlie rose is provided by the following:

>> 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: the supreme court began its new term this monday, the focus has been less on the dock et and more on the court's future which hangs on the outcome of the presidential election. the seat held by the late justice anthony scalia remains vacant as senate republicans have refused to consider the nomination of judge merrick gar land. steven breyer has served for more than two decade, president clinton nominated him in 1994. he was first named to the bench by president carter in 1980. he served 14 years as a judge and laters achieve judge of the court of appeals for the first circuit in boston. he is known for his practicing

mattism, love of literature and love of architecture. his third book, the court and the world was published last year. it explores the role of foreign and international law in american judicial decisions. i spoke with justice breyer at the 92nd street y here in new york city, and here is that conversation. >> i begin with this book which he has written called the court and the world, american law and -- the economies are a tour deforce analysis of the supreme court vees a vee the rest of the world. we were talking backstage and show this book which is now in paper back and you and i talked about this, is getting a resurgence. >> i hope so. >> well, you know it is. why is that, do you think? speculate about that. is it because of our times? is it. >> i think it's not just here. but in europe, in other places in the world. there are a lot of people who are-- see a turning inwards, not just this country. but in many places, and

we're-- they're worried about that. they're worried because they see problems that face us that require us to turn outwards. and so it might help, it might. to familiarize people with the kinds of problems that we have in one small institution and important institution but a small part of america. but what are the problems in front of us that require us to look beyond our own shores for a solution. and when you see those, you think oh, we'll have to. and i think that's reassuring. because if we'll have to, that's like someone said about economics. i'm not a great economist. he said in economics, that which has to happen does happen. >> rose: does happen. i mean what's interesting talking about globalization and anti-globalization move we saw in europe coming from the

upheaval of the middle east and migration and some sense of people being-- a feeling that show that there is a-- in history that is against them. >> i wouldn't think that necessarily so because when i talk to people at stanford in the audience or berkeley or tenth graders or i talk to my grandson's school here in the fifth grade, you know, i'll say to them, i just would like you to think, i know law. immediately go to sleep, you are talking to a fifth grader, what? i mean but law is one way of solving problems. trying to. now you wanted the alternative, turn on the television set. and you'll see what happens in countries that have other method. >> rose: but there is a weight of pop lism that is feeding on the sense of show the forces of globalization have affected the way their future, their economic

insecurity, and the way they live. we saw it in the brexit vote. we see it in some of the political discussions taking place in america. we see it in political choices being made in europe. >> if here at least and if you are interested enough in the court and will take the time to read a few pages, you will see a long period of time when the watchword was, where you have needs for security, you have security, the president, the congress, got to keep us secure, they're the ones who have the authority under the institution but we have the authority and respect of civil rights. and what happens when they clash. ars, perhaps thousands where the key to what the court should do, you want one word, what they thought the court should do. >> rose: yes.

>> nothing. cicero. cicero said when the canons roar, the laws fall sigh lent. now actually he didn't say that. someone pointed that out to me. that the romans didn't have canons. but-- i mean that ruined my-- that ruined the whole thing. but none the less, you get the point. now go back and look. this has a rather long wind up and a short pitch. the wind up is, look, adam's our hero, great man. but people-- . >> rose: john adams. >> john adams, abraham lincoln put 18,000 people in prison. he had a problem. >> rose: he wanted to win a war. >> correct. but they had no trial, no nothing and they weren't soldiers. you had wilson, woodrow wilson, great man and continuously stopping what people said. and you had world war ii 70,000 citizens of japanese origin put

in camp. >> rose: so what is your point? >> my point is, why does he want to know the point. such an interesting story. you always have to have a point? the point is that in guantanamo, in seal seizure case, the court turned. and the court said sandra o'connor, the constitution does not write a check blank. no blank check to the president. not even in time of war. and the four detainees won the four cases. and the president lost. that's the point. the point is what is in your mind right now. what's the question in your mind when i say that. if it doesn't write a blank check, what kind of check does it write? and that's going to be our job. quite possibly. and terrorism is international. countries all over the world are democracies too. >> rose: the court ought to be influenced by all information. >> if not influenced, at least have the information.

>> rose: aware of appreciate information around the world. >> right wz wherever it comes. justice scalia differed from you on this. >> i don't know how much on that. >> rose: well, he said so to me. kely to say that in are cases where they involved the death penalty, they involved gay rights, and we were on opposite sides. and my wife was a good psychologist, clinical psychologist. she says displacement. you're angry at a, you blame b. all right, you might not have liked the results in those cases. so who does he blame, international law. what does that have to do with it, that's poor b, getting blamed for a. an i think a lot of the criticism comes out of that. but that is just sort of pot psychology. who wrote the opinions which paid tremendous attention to briefs filed by lawyers from all over the world, cases where

there is a plaintiff in you are ug way, a defendant in holland, an antitrust case. and we've got to decide how american law applies or how does american law apply securities law when you have a plaintiff, australian, he wrote the opinion, is my point. i joined his opinion. he certainly looked to foreign law. and what i am trying to show here is there are many, many cases in many different fields, you can't avoid it. if you are going to decide that case correctly, i can give you case after case. you have to look beyond our shores. i want. >> rose: i want to come back to jus cities-- justice scalia and your opinion. is the best opinion you have ever written, you ever wrote desenting opinion or a majority opinion or a concurring opinion. >> i don't think that's up to me to say. i would say i'm not necessarily

a good-- well, maybe the best i ever wrote, i don't know, i have written some majorities that i was very pleased with. one of them is in this case involving a student who thailand who goes to cornel, and-- cornell and he discovers the same text books in bank cot, half the price. says to his parents, send me a few. they sent more than a few. he began to sell nem. >> rose: right. >> publishers got annoyed. can he do it or not. lawsuit in our court. the answer lies in a few obscure words in a statute that no one can really understand very well. and we received briefs from all over the world. i ended up writing the opinion. i felt i had to know what goes on in different parts of the world. the student eventually won. but that's not the point. the point is to do a decent job in that case. >> rose: you had to know. >> you have to know what goes on elsewhere. that is the majority. des ent is probably in the

affirmative action case, i wrote an affirmative action case. i believe that affirmative action was constitutional. i was in d serks dissent. i felt strongly about it and sent considerable time trying to show that the constitution does not prohint affirmative action, positive discrimination. >> rose: let me ask you this. did you ever, ever, ever, ever, did your wife, ever, ever, ever think that your name would be in the same sentence with kim kardashian? (laughter) >> this comes about through teaching. you know, when you are teaching, what you do is you want to give an example that the class is going to remember. so then sometimes when i'm asking a question, in the way, not everyone thinks this way, thank goodness. but it's pretty stream of consciousness. i have a question i want asked. i'm really curious. i want the lawyer to focus on

it. and i have gotten into the habit of using examples that are perhaps overly done. >> rose: but he'll get the point. >> please explain what you did. >> i don't want to discuss an ongoing case. i mean i've said a lot worse things than that. and it's because i want an illustrative point. and i don't want to watch every two seconds what i am saying. but i want the lawyer to get the point that i'm making so i will get an answer out of that lawyer. interestingly enough, and not surprisingly, in an oral argument as in briefs, lawyers are trying to win their case for their client. but from our point of view, and it's sometimes happens, more often than you would think, the lawyers are there to help us. and we're not saying who is the best lawyer. we're not saying who is the best client. what we are saying is interpreting some words in a constitution or in a statute. and having an interpretation

that will work well and be consistent with the law, it will be the law for 319 or 20 million people who aren't in that court room. and so sometimes in an oral argument, people sort of get going and the lawyering say what do you foa about this bankruptcy case. what is in your experience. you are a bankruptcy lawyer. tell me what will happen if you will do that. and you will begin to get a conversation going. and when you get a conversation going in a court room, and it is, you know, right on the merits, it isn't people taking poses or positions. you can make a lot of progress. and much of what we do is to try to get that situation going. >> rose: before oral argument, i mean you have law clerks and you study the briefs. you think about the questions you have coming out of the briefs. does the oral argument have a significant influence as to how you end up? >> yes. i think it does. the law clerks think it doesn't. interestingly enough, it

depends, you put it just exactly the way i would put it. does it affect the way you think about the case. if you are looking for an absolute switch from x to not x, that happens but not too often. if you are looking for how do i think about the case, what are the words in that opinion going to be, what is the sort of main point. and which points do you deal with and which points are not really that significant. that makes a huge difference to the law. and the oral argument affects that quite a lot. >> rose: after 22 years, how do you-- how have you changed in terms of how you see your role. and how you see the constitution. and how you see. >> i think the first three or four years david seulter said

this,-- justice suiter said this. >> he said what i am about to say, which is that you are sort of frightened. you are worried. how do i know, i mean where can people go if i'm wrong. and you are worried you are going to make a mistake. i thought i could do this but how do i know i really can. and that after a while, you begin to think well, for better or for worse, here i am. and the most i can do is my best. and what david also said which i think is absolutely right, i mean you're always on duty. you say, be careful. i skirted the line i think with that. but be careful. you are always on duty. and then you think well, the most i can do is my best. and i think that all of us, since i have been there, every one of us has really tried to do his or her best. i mean you're putting out. and as you get older, that becomes a privilege, more and more.

you have a job where you can go in every day and you just have to do your best. and then you say over time, you begin to think well i've seen these cases before. be careful, you haven't really. they're not quite the same as what you saw before. and then again over time you see, you're not-- it goes back to the question that you wrote. that you said. what is the best opinion. what is the worst opinion. it's not a contest. it's not a game. it's not a contest. you do the best you can. and it's going to be up to other people, sometime in the future, to know whether the views you took of the constitution or the views that you took of statutes or the way you approached a case, whether that was the best way to do it. you talk about justice scalia, indeed, one of the best discussions i had with him took

place in front of 2,000 students in lu bbock, texas. and they probably hadn't seen a supreme court justice. and we went on for about an hour. we tried to describe what we did. we tried to explain we do have different points of view, to some degree. not as much as people think but to some degree. and i went away thinking. and he did too at the end, it is not so important whether they agree more with him. you see he's afraid i would be too subjective. and i would tend to substitute what i think is good for what the law requires. and i would think well, i try not to do that. but more importantly, i would say but you have a method that is, i think, too rigid. i think that the way sometimes you approach, it's not i don't see it in a rude way but he knows that's what i think. that the constitution won't work as well for the people who have to live under it now and we

talked about that. whether they agreed more with me or more with him. i think the 2,000 students left feeling a little bit better about the institution we're in. because they saw we're friends. they saw that we proceed on the basis of reason and argument and thought and try to understand each other's point of view. and try to understand each other's point of view, is not so terrible in this country. people have different points of view on the spleem-- supreme court. it's a big country. >> rose: do the justices on the supreme court agree much more and rule nonzero or more often than we imagine? in other words, is there more agreement that's let's say agree 70% of the time. >> 50%. >> rose: it's 50. >> 50 percent we're unanimous. >> rose: 50% of the time the nine justices agree. >> yes. and probably it's 5-4 about 20%.

and it's not always the same five and the same four. and so i will say that, you know, a university audience, law school audience, and they will say, because that's our biggest problem. people think we're junior league politicians. >> rose:s that do they really. >> yeah, we're junior league politicians, that's what they think. >> rose: amateur politicians. >> i would say junior league because-- (laughter) look, you know who tried to be a politician, in my opinion, was roger tainy. and he thought that perhaps, he thought, that by reaching a decision saying a black person was not a person, that's roughly what he held, unbelievable, but he thought he would help prevent the civil war. giving him, you know, some credit. if anything, he helped bring about the civil war.

because benjamin curtis wrote a great dissent showing i think at the time his decision was wrong. it's not using hindsight but really wrong. abraham lincoln picked it up. read tainey decision and said this is a shocker. then used the dissent in his speech at cooper union which was the speech that propelled him to the head of the republican party. and helped get him the nomination. and then all followed. he was really an abolitionist at heart. they knew that in the south. and then the civil war followed. so if that was tainey's idea, he was wrong. judges are not good politicians. they may have some exposure to politics, but that's what i mean when i say junior league. but they're not even junior league and can i explain that later, if you wish. >> rose: i do. but i just talked last week in the chambers of the supreme court to justice ruth bader

ginszburg. and she said to me that in 14e would like to see more of a conversation between the kowrd and the congress. >> it's hard to get a conversation done. >> rose: but you understand what she means. >> absolutely. absolutely. because sometimes you can find something in a statute, say why did you-- she has written that-- . >> rose: or have them think about in a dissents because she had them, the come plex shun of congress had changed and the new congress, i think this was-- i have forgotten the case but the congress then changed the law. >> yes. >> rose: because of what she had pointed out or someone had pointed out in dissent because there was a dialogue. >> yes, yes. i think that is good. but it is not easy to bring about. i think that-- i worked in congress for awhile, on staff. >> rose: judiciary committee

with ted kennedy, wasn't it? >> yes. and i would guess they're on different time frame. you see, we take things slowly. the virtue of we're not elected. the virtue of having nine unelected people, hamilton said this in federalist 78. i mean they can take the time and think. they're not particularly powerful. he thought that. and maybe that's basically true comparatively speaking. but other than a periods of time we'll think about something, weeks, months. you are a member of congress, you don't have a second. there is a con stitd went you in front of you, or on the phone or emailing you and telling you something and that constituent is very surprised if you can't remember his or her name. >> rose: yes. >> and every single thing that he has or she has st a problem. and haven't done about it yet because after all you received the email yesterday, why haven't you acted now. and it is a very hard job.

and the time frame is different. now-- the court used to have its offices in congress. what he said when they built this beautiful palace, he said i don't really want to move. no one will ever hear of us, have heard of us again. that turned out to be not quite so right but he could talk to members of congress daily over lunch there. he liked that. bran december said i don't want to move t will go to their heads. he was right about that. >> louis bran dees. >> yeah, yeah, so it's something absolutely, that is as operational. it would work much better in people that have tried different 34edette mertds of bringing it about. i'm simply pointing out it's harder to bring about than you think, but a very good idea, correct idea. >> rose: are there any-- you

are a man of letters, all the stuff i said earlier. are there any experiences or skills, that you wish you had as a justice of the supreme court? ness of course what you would like-- you would like number one to be able to know all the relevant things and have tremendous experience and different things that you don't have so you can understand. that is like thur good marshal saying that. he said that he had, which was correct. experience that the others didn't have. >> rose: right. >> and it was valuable having that only a court. it's valuable having a wide range of experiences. of course it is. and i would like to be able to write better than i can. i don't want to discourage people from that but there was a book review in the "l.a. times." >> rose: yes. >> of a book i wrote on economic regulation. i'm sur pliesed you all aren't

very familiar with it. (laughter) but the reviewer, i don't know how it got into his hands. he said alice in wonderland, alice comes out of the 3508 of tears with the door mowrs and the door pows begins to read from humanities history of-- hu mes history of england. why are you reading that, says alice, because says the door mowses we're wet and this is the dryer thing i know and that was before breyer wrote this book, he said. i have improved. >> rose: but you also said about justicscalia, you said he suffered from a good writer's disease. >> i have said that. i have said that. you have to be care of-- 68-- careful of that, of course. the job of a judge in an appellate court is in an opinion to explain the reason why he or she reached this opinion. now i don't think that that calls for or requires what you

might be able to do in terms of great phrasing. but if you can do that, it can be an advantage 6789 what i meant, because people, when nino and i-- i miss nino, i do. and we would appear together. somebody would say why do it you insult all your colleagues. and then i would then say oh, you mean him. and i would say i will tell you why. let me answer it. he suffers from good writer's disease. i would say a good writer, like a good comedian, a good comedian, if he has a good joke, he's not going to give it up. the world could come to an end and so could he but will not give it up and that same is true with a phrase, you find the felicitou s phrase and you're going to use it. and he's going to use it because of the way it sounds. we all know that. and if it's aimed at us, we don't take it personally. >> rose: it's been said to me, you know, there may be an opportunity for the republicans

whoever controls the senate, until after january 20th, to vote on judge garland. my question, what is the impact of 4-4. >> 4-4, last year we hear about-- 75 cases, 70 to 80, somewhere this that range. 72, or we decided 4-4, see if it is 4-4, then that just as if the case was never heard. >> rose: that's my point. it goes back it the court of appeals and the majority opinion. >> whatever it was, whatever it was. so you wanted to know the impact on the court of that. there were four cases. >> rose: right. >> and that was out of out of about 72, 73 something like that. and i would say two of the cases are the cases that would be written about in the newspaper in bright letters. and two wouldn't have been.

>> rose: yeah. and two might have been decided differently if there had been 5-4. >> if it was 5-4, they would not have been 4-4 so-- . >> rose: i know. but my point, but knowing those cases, do you think, on particular cases you said there were four, if there had been-- if there had been 5-4, it might have gone against whatever the opinion was in the court of appeals. >> it mietd have, for it might not have. >> rose: i bet you can predict. >> what you want me to say, i suspect, is does the personality of the judge going to make a difference or his judicial view. >> rose: i believe it does. >> well, it does to some degree. i mean it depends on the case. and the, you will find anyoneo and i, i mean most judges, all judges just about when they

have. >> rose: sphoas i ask there question. what do you think, is it a combination of things that has given you what might be considered your essential judicial outlook, was it your education? was it the viementd of growing up? was it some combination of this? how did you end where you are in your own. >> that's a very good question. and i think it's the crucial question. because i think if you look at say the 5-4 cases, you are not going to explain on the basis of politics. when i worked with senator kennedy, politics meant where are the votes, are you a republican, democrat, no, nor is it really ideology. are you a maxist, leninist, trouble make or saddam smith free enterpriser. no, that's just not. it is, perhaps, with these very

broad words, liberty in the 14th amendment. the freedom of speech, words that don't explain themselves in the difficult cases. do i think it does make a difference that i went to lowell high school in san francisco, that i grew up in the 50s, that i was at stanford, that i have lead the life i've lead. and so have you. >> rose: right. >> and of course that eventually at a very abstract level creates views that you have about your profession, about the country, about what america is like and its law. what is law about. is it applies. i couldn't write that down in 500 words. but none the less, every person at a certain age is shaped by his background and experiences and has these sort of general views about his profession. and i think that explains a lot.

when i went down theringing a i said, i lived in san francisco. i lived for many years in boston. i had seen a lot of disagreement but not quite as much as i had seen in some of the cases down there. and at first i thought isn't that awful. they all ought to agree with me. and then after a while i began to think perhaps a little more maturely that it's a big country. there are 320 million people. they think a lot of different things. i mean it is not such a terrible thing if one of the supreme court there are people who have different, some what different injureiswere you dengs outlooks. nino scalia probably likes rules more than i do. he tends to find clarity and used to tend to have found clarity in trying to get a clear rule. i have probably more of a view that life is a mess. >> rose: yeah. >> but my point is, you will find a lot of differences between us, just what you have

said. how far do we go how broad a rule do you want. those are a lot of decisions, interesting for judges which are not written down anywhere what you should do. i'm just giving you examples of how basic outlook about the constitution, how it applies today. to people who live under it. those are the differences come up. it's not politics. >> do, i assume you went to see hamilton. >> i thought it was great. by way, my wife, we dot tickets, that is an amazing admission because i have to add that we got tickets before it was so well-known, and before-- . >> rose: at the public theater or before it was. >> no, we saw it here but still it wasn't quite the price it is at the moment. but it was great. >> rose: great because it

simply was a well crafted musical or great because. >> on every score. could you have believed joanna wouldn't have believed that i would go to this musical all in rap music, it seems a little young for me. and then i go there and hamilton, i mean, the great biography but much of the cast is minority. they're african-american, so you think well, what. and i thought this is going to be just sort of slightly politically correct. no. it is not. and what you see, or at least i see in there is not necessarily the constitution at that moment. there were slave, women didn't vote. but the potential. the potential was there as this documented would be applied to the country. and hamilton saw that. and probably many of the founders did. it was an experiment. it was an experiment that later had its failures. and that later had its

successes. and to live with that experiment, and to realize you're still part of it, because everyone is, and see where they're coming from, and see where the potential is, and of course in addition to all of that, it was just terrible entertainment. >> rose: indeed. >> how can you miss it rrs but where would you be on the conflict between jefferson and hamilton. >> oh, well, the historians at the moment tends to favor hamilton. >> rose: yes, of course they do. >> so when jefer in-- jefferson came in, we're creatures of the historians. come in and he was very funny, the jefferson character. the second funniest, the funniest was george 3. so i would probably be, probably from what i are have read be more on the ham i-- hamilton side. >> rose: you have often talked about your admiration for prou st. >> i did talk about it once to

someone who then wrote an article about it. >> rose: you talked about it with a french interviewer i think. >> yes. >> rose: what other books have influenced you. >> oh, well, if we come back to this continent, as a high-school student or college student asked me, can i read one book, what would i read. >> rose: well, that's a good question. what would it be. >> education of henry adams. >> rose: would it? >> why. >> rose: because i think it's a terrible book about, he lived 1838, you know, into the 19th century. he lived at a time where people thought maybe the country would be a kind of aristocracy. and there would be elections and the people radio rule but not too much. and he lived through then a period where he looked at the presidency and congress, and congress, remember, was the cartoons about congress, the big money bags, railroad trust, but they really bribe people. and you know t wasn't just campaign, well, it was-- and he lived through all of that. and he said my goodness, and you

see that he goes to the south, before the civil war. a bunch of roughians, he said they have these slaves, terrible. and just look at his reactions, they're so interesting. and he says, finally, this is just terrible. i go to the white house. the thing is, oh my god, i can't believe they're deciding this. my goodness, look at congress. oh my goodness, they have these, they're just on the payroll. oh my goodness. and then he says yes. right. so what do you suggest. and he says we have democracy. and that is going to just have to work. because there isn't an alternative. and then he turns to other people and says we've got to make this work. well, it's not just that overall philosophy. but i agree with that. and but it is the description of year after year after year. and you come away feeling yea, this is a very, this is an incredible country. >> rose: how do you feel. >> we're making it work show.

and why not. >> rose: how do you feel about this argue. frequently now in this political debate. >> yes. >> rose: people will say in the end, here is the reason that we have to vote a, republican or b democrat. because the next president of the united states will be able to have a dramatic influence on the supreme court. and that is what will have influence over decades. >> the people i know who are very much in politics, not the politicians, used to say, i don't know if it's still true, that it doesn't really have much influence. that the people who feel strongly about the supreme court. >> right. >> know how they're going to vote. and they would vote that way anyway. >> rose: ah. >> so paragraph sew you carry a constitution. >> no, no, that's not the point. the point is when i gret that kind of question which i do

quite often from the college, or high school, i then, i do have the document. and i say i want to tell you something. and there is what i praption feel more strongly than what you brought up. but i would say that i can't tell you, i want to say to the college students, or high-school students. i can't tell you how to lead your life. i hope you find someone to love. i hope that you have a jobs that that satisfies you. and i also hope that you will participate in public life. now that might be on a school board. it might be on a park commission. it can be anything. just go out and vote, or persuade somebody else. now why. why. not because i'm trying to tell you what to do. i have raised children. i do the opposite. but the, it's because i do have-- this document, i can tell you this, if you don't do that,

if you don't do that, this document won't work. it is not the supreme court that tells people what to do. this document sets boundaries. we are in a sense the boundary commission. i used to listen, if you go back to the 50st to sergeant preson of the u con. he was up there in the boundary. it was cold, pie god. it was freezing and sometimes those boundary questions are very tough, is abortion in or out, school prayer in or out. but don't make the mistake of confusing a fuf question at the boundary with the fact about what the documents like because the document leaves vast space in between the boundaries, for people themselves through the ballot box to decide what cities, towns, states, what kind of a nation they want. that's what this fore sees. and if you do not participate, it won't work. you want a tough cotaition on

that. >> rose: yes. >> pericles, someone told me he said this, i read it in derek bk's book. i pick tupped, i assumed he couldn't be wrong. and he said that well, periclese innateens says what do we say innateens. of a man who does not participate in public life. we do not say he is a man who minds his own business. we say he is a man who has no business here. tough. tough. but that's what this is talking about. and that's what i want them to do. so if you want soap box, teach the children civics. teach them about the government. >> rose: now do you think hamilton-- (applause).

>> rose: have you changed your mind on any particular, i mean after 22 years where you, if you had another go, you are wiser? >> i can think of a couple, yeah. but normally we don't look back. that is sandra o'connor told me this. sandra said there are two unwritten rules of the court. first is at conference, nobody speaks twice until everybody has spoken once. that's a very good rule for a small group. the second, tomorrow is another day. and you and i were the greatest of allies on case one. >> rose: right. >> case three comes along, we're at odds. the fact that you were with me on case one is irrelevant are, unless it's legally relevant but i mean is irrelevant to whether we are allies on case three, you see. and what that means is we're a

court. we decide. that's the job. decide the case. do your best in that case. absolutely. but eventually you have to decide. and then move on. there will be plebtdee of people around flt next case or after that to tell you all the mistakes you made and try to do better than next time. but you see, it's on, on, on. tony kennedy said that. he said it's more like an express train than you think. they come in. decide them. pay attention. read the briefs, listen to the argument. >> rose: would you rather be a swing justice or the chief justice? >> would i rather be the chief justice or the swing justice. it sounds phoney but it's true. i have enough to do. i get the case, do as well as i can and on to the next one. >> rose: yeah. what does the second amendment mean to you?

>> well, of course i can say what the court-- why don't i start the other way. say the opinion i wrote. >> rose: okay. >> that isn't what it meant, apparently. >> rose: what it meant to you. >> what i thought it meant. >> rose: okay, tell me that. >> what i thought it meant is this. it says a well regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed, okay. what did i think it meant. and john stevens thought it meant and ruth beginsburg, several, what we thought it mentd in article one of the constitution, it gives to the congress z the power to call up and regulate state militias. okay. there was a lot of concern, if you read the federalist papers will you just get a feeling for it. >> rose: right. >> there was a lot of concern and fear that congress might do

that and disband them. and replace the state militias after they had disbanded them with a federal army. and that, many people said, vote no on the constitution because if they can do that, then they can-- this federal government, destroy your freedom. well, said madison in a sense, as i parraphrase him. never fear, we will put in the constitution an eamentd which says congress can't do that. it cannot call up and disband the state militias. why? because a well armed militia is neses for the security of a free state. ie a state militia. and therefore the right to keep and bear arms shall not be infling-- infringed. in other words, they're talking about that. that is what i thought they were talking about. which is not the right of an individual to keep a gun flex to

his bed. okay. (applause) what. >> rose: what will scalia's legacy be? >> i think he took the job very seriously. and i think thases' a plus. and i think, you see, here you have to remember that judges do, it's a little boring to say this sentence but it's true. you get some words on a piece of paper. what do they mean? how do they apply? all judges use the same basic tools. you read the words. what do they say? if it says carrot, you cannot say that that means fish, all right? the words count. and history counts. and tradition counters. there is a long tradition behind

habious cor pus. and precedent counts. courts have decided to think something like this before, maybe not too close but something and purpose counteds. someone wrote those words. what did they have in mind. and consequences count, namely those consequences that are related to the purpose. if you decide this way, are you furthering the purpose or not. now we're judges really differ, say justice scalia and me, is he thinks those first four things really are the whole story or almost. almost because he doesn't really think they're the whole. but those are text, history, tradition, press dent. and i tend to think yes, i see that of course they're relevant but they often don't answer the question. so i put more weight on purpose, and consequences. related to purpose. it's a matter of degree and

eventually i think one thing he's done is pull people back a little bit. i hope not necessarily too far, from just using those last two. you cannot say a carrot means a fish. it doesn't. and don't go near that. i think he's right about that. there's some things you just can't do because the text just doesn't say it. or it says the opposite or whatever. and you've got to be loyal to that text. now i think, i don't know and where i disagreed with him is of course i think he put too much weight on that. but then he thinks i put too little weight on it. so you say what will history say of that? we better ask those historians. particularly those who have not yet been born. then we'll know. >> rose: here's a word that is used with you. practicing mattist. >> uh-huh. people do say that. and it is not practicing mattism

in the sense that you want to do whatever is good. it's not that. it was homes and william james, they were practicing mattists in the sense that you are sitting there, with, you don't know it all. you just know a little bit of it but the wol body of law. and the decision that you make in this case is going to fit into that. and it's not going to be the whole story because there are vast rules. you know there are rules about treating precedent, there are rules about their approaches, their standards, their law firms, their judges, their citizens who live under it. it is a huge, huge kind of structures of all kinds and rules and so forth. and ideally when you make this new interpretation, the thing as a whole, we hope will work a little better. rather than a little worse. and at least in this area that you are dealing with. and that is a guide, that is a guide and in that sense, i guess

i'm pragmatic because i want to know how is it going to work. and is it go to-- going to further this goal or is it not. and if the goal of due process of law is fairness, is this going to end up treating people more fairly or less fairly. do you find yourself occasionally looking at something in which you say the way the actor which lead to an issue coming before the supreme court, whether it's a president or someone else, acted, i know that it was in the interest of something good, because i know that they had good intentions. and wanted to achieve a nobel goal. and maybe even a goal that i would agree with. however, if we allow this person to do it, someone might come along next time, a different president or different person, and use that right in an evil way and interpreting, quote

we've got to put boundaries on that kind of thing. >> of course, of course. that lead sandra roosevelt to administer the procedures act. he was, i'm sure, had very good things in mind. and his secretary of the interior had very good things in mind when they had something to do with oil. but the supreme court found that they couldn't even find the rule that he was following because nobody had written it down. the result of that was, of course, even if what he wanted was the best thing in the world, now you have to write it down or it's not a law. and then a statute was passed saying just that. and that's one of many porntd points. if it isn't written down, if it's not public, it's not a law. and there have been many people in history who have had wonderful intentions. but whatever their intentions, i mean i don't think king john's intentions were so good. but if they had been good, he

still should not have put people in prison. except according to law. that's the magazine that carta. his intentions whether good or bad, would still and should still be subject to those few words according to law. and might that apply to what abraham lincoln did during the civil war in terms of how he used the. >> that's how we changed. and we have changed there. abraham lincoln's secretary of state called in the british ambassador. see that bell, he said? i can push that bell and have any person i want in new york turned into prison. if i push it twice, i can have any president, any person i want in indiana thrown into prison. tell me. he said. does the queen of england have such power? well, you can say, and the court got involved after the war was

over. after it was over. they said he had gone too far, after the war was over. >> after the war was over. but look where that leads us. where that did lead us. that attitude. the say this according to frank furtherer, somebody has to run this war. roosevelt or us. and we can't, so it better be roosevelt. >> yeah. >> the consequence, 70,000 american citizens, japanese origin thrown into internment camps without any reason. and you would have to get the details. and i think if you do, you will see there was no reason whatever so ever. if you do not want. >> but the court. >> hmmmm? >> but the court. >> agreed. >> agreed for the reason that black just said. somebody has to run this war. but then you see, in the seal

seize you are case, justice jack on-- jackson and the others said president tru man had gone too far, in korea, at the time of the korean war, in seizing the steel mill was congressional support. and who were they striking down, in my mind, they are triking-- striking down roosevelt. he's gone too far. now it's easier to strike down roosevelt when he's did and you have harry truman,. >> rose: hasn't this court said that the president went too far. >> yes, that's my point. >> rose: in executive power. >> that's exactly my point. my point is that in the four guantanamo cases, what shifted away from cicero, away from abraham bin con in the 18,000 people, et cetera, they have said even in time of war, the constitution does not write a blank check to the president. no one likes those cases.

why? on the one hand, they say, you shouldn't have interfered. they know in congress and the president about your security. you judges know nothing. and to them, i point to karamatsu and say is that what you want? ness others say you didn't go far enough. you should have said the details of exactly what you can do, you should have said you can't do this, you can't do that. i replied the reason we didn't go farther, why i didn't, i don't know the answer to all those questions. i don't know. and because we're in a situation which is he volt offing, which involves terrorism throughout the world, which involves many other countries which are also democracies, what we need, i think, is what sandra o'connor says, but we have to have ways of learning. about what happens under that term security, terrorism, et

cetera. and we have to have ways of learning what others do as well. so we can get that balancing question close to right. and that's why we don't jump in too quickly. and it's also why we do jump in. >> rose: on that, on behalf of this audience, thank you so much. (applause) for more about this program and earlier episodes visit us online at pbs.org and charlie rose.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: >> and by bloomberg, a provider of multimedia news and information services worldwide. >> on tomorrow's pbs newshour the fight for iraq series concludes with the report from the front lines of fallujah. plus a look at thissier's winner of the nobel peace prize.

>> announc this is "nightly with tyler ma and sue her if you're watching and living in an evacuation zone, you need to leave now. if you're in an evacuation zone, get out. >> hurricane matth barrels towards florida. it could be one of the most expensiv storms in u.s. history. and inflict billions of dollars of damage to coastal holes. we'll have the latest. major shift. walmart reined in its profit market as it spends a lot more to look like an e-commerce company and less like it does today. >> getting ahead. why millennials may have a reason to whine in the workplace, tonight on "nightly for thursday,