>> rose: welcome to the program. it is the end of summer and as we prepare for the next season, we bring you some of our favorite conversations here on charlie rose. tonight, justice stephen breyer discusses the law and the supreme court. >> the most i can 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'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. >> rose: stephen breyer for the hour, next. >> rose: funding for "charlie rose" has been 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 docket and more on the court's future which hangs on the outcome of the presidential election. the seat held by late justice antonin scalia remains vacant as republicans refused to consider the nomination of judge merrick garland. stephen breyer has served on the court more than two decades, president bill clinton nominate.

first named to the bench by jimmy carter in 1980. served 14 years as a judge and later chief judge for fourth court of appeals in boston. known for pragmatism, love for literature and arc deckture. his third book the court and the world was accomplished last year, exploring the world of foreign and interpretational law in american judicial decisions. i spoke with justice breyer at the 92nd street y here in new york city and here's that conversation. i begin with this book he's written "the court and the world: american law and the new global realities." it is an analysis of the role of the supreme court vis-a-vis the rest of the world, and we were talking backstage and, somehow, this book now in paperback, and you and i talked about this, is getting a resurgence. >> i hope so. ( laughter ) >> rose: well, you know it is. speculate about that. is it because of our times? >> i think it's not just here

but in europe and other places in the world, there are a lot of people who are turning inwards not just in this country but in many places and they're worried about that. they're worried because they see problems that face us that require us to turn outwards. so it might help, it might, to familiarize people with the kinds of problems that we have in one small institution, an 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. >> rose: yeah. because if we'll have to, that's like someone said about economics, i'm not a great economist, but he said, in economics, that which has to

happen does happen. >> rose: does happen. i mean, what's interesting talking about globalization and the anti-globalization movement that we saw in europe coming from, you know, the upheaval in the middle east and migration and some sense of people being -- feeling that somehow there's a tide of history that's against them. >> i wouldn't think it 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 if you're talking to a fifth grader, but law is one way of solving problems, trying to. now, you want the alternative? turn on the television set, and you will see what happens in countries that have other methods. >> rose: but there is a wave

of populism that's feeding on the sense of somehow the forces of globalization have affected the way their future, their economic insecurity and the way they live. >> yeah. >> rose: 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 you're here, at least, and if you're 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 watch word 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 constitution, but we have the authority in respect to civil rights and what happens when

they clash. >> rose: right. there were many hundreds of years, perhaps thousands, when 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 cannons roar, the law falls silent. he didn't say that actually because the romans didn't have cannons. ( laughter ) that ruined the whole thing but you get the point. ( laughter ) look -- this has a long windup and a short pitch. >> rose: yeah. ( laughter ) >> the windup is adams, great man, put people in prison for what they say. abraham lincoln put 18,000 people in prison. >> 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 in world war ii 70,000 citizens of japanese origin put in camps. >> rose: so what's your point? ( laughter ) >> my point is -- why does he want to know the point? ( laughter ) it's such an interesting story. you always have to have a point? ( laughter ) the point is, in guantanamo, 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's 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 right? 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 -- >> not influenced. at least have the information because we can't -- >> rose: okay. aware of, appreciate information around the world? >> right. >> rose: wherever it comes from. >> right? justice scalia differed from you on this. >> i don't know how much on that. >> rose: well, he said so to me. >> the cases he was most likely to say that in were 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. >> rose: yeah. she says there's a displacement. you're angry at a, you blame b. all right, you might not have liked the result in those >ases. who does he blame? international law. what does that have to do with it? that's poor b getting blamed for a. i think a lot of criticism comes

out of that but that's sort of pop psychology. who wrote the opinions which paid tremendous attention to briefs filed by lawyers from all over the world, case where is there's a plaintiff in uruguay, a defendant in holland, an anti-trust case, and we've got to decide how american law applies or how does american law apply to securities law when you have a plaintiff, australian, who -- he wrote the opinion, is my point. i joined his opinion. he certainly looked to foreign law and what i'm trying to show here is there are many, many cases in many different fields. you can't avoid it. if you're going to decide that case correctly, i'm going to give you case after case, you have to look beyond our shores. >> rose: i want to come back to justice scalia and your opinion. is the best opinion you ever

wrote a dissenting opinion, majority opinion or a concurring opinion? >> i don't think that's up to me to say. ( laughter ) i'd say i'm not necessarily a good -- well, maybe the best i ever wrote -- i don't know. i've written some majorities i was very pleased with. one of them was in this case involving a student from thailand who goes to cornell, and he december -- he discovers the same textbooks in bangkok, half the price. he says to his parents, send me a few. they sent more than a few. he began to sell them. publishers got annoyed. can he do it or not? lawsuit in our court. the answer lies in a few observe secure word in a statute no one can understand very well, and we received briefs from all over the world. i ended up writing the opinion. i felt like 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 have to know. you have to know what else goes on elsewhere. that's the majority. the assent is probably in the affirmative action case. i wrote an affirmative action case. i believe that affirmative action was constitutional. i was in dissent, i felt considerably stronger about it and spent a consider amount of time trying to show the constitution does not prohibit affirmative action, positive discrimination. >> rose: did your wife ever ever ever think your name would be in the same sentence with kim kardashian? ( laughter ) >> this comes about through teaching. you know, when you're teaching, what you do is you want to give an example that the class the s going to remember, and sometimes when i'm asking a question --

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: please explain. but he'll get the point. >> rose: 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'm saying, but i want the lawyer to get the point that i'm making, so i'll 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 sometimes happens more often than you would think -- the lawyers are there to help us, and we're not saying who's

the best lawyer. we're not saying who's the best client. the problem is interpreting some words in the constitution or in a statute, and having an interpretation that will work well and be consistent with the law, it will be the law for 319 million or 320 million people who aren't in that courtroom. >> rose: hmm. so sometimes in an oral argument people sort of get going and the lawyers say, what do you know about this bankruptcy case. what's in your experience? you're a bankruptcy lawyer. tell me what will happen if you do that. and you begin to get a conversation going. and when you get a conversation going in a courtroom, it's on the merits, not having people taking poses or positions, you can make a lot of progress. much of what we try to do is get that situation going. >> rose: before oral argument. you obviously have law clerks and you study the briefs. >> yes. >> rose: 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'd put it, does it affect the way you think about the case. if you're looking for an absolute switch from x to not x, that happens but not too often. if you're looking for how do i think about the case, what are the words in that opinion going to be, what's the sort of main point, and which points do you deal with and which points are really not that significant? that makes a huge difference to the law, and the oral argument affects that quite a lot. >> rose: after 22 years, how have you changed in terms of how you see your role and how you see the constitution and how you

see -- >> i think the first three or four years, david souter said what i'm about to say, which is you're sort of frightened. you're worried. how do i know -- i mean, where can people go if i'm wrong? you're worried you're going to make a mistake. i thought i could do this, but how do i know i really can? and then after a while, you begin to think, well, for better or 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're always on duty. and then you think, well, the most i can 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're putting out and, asyou 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. 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 -- goes back to the question that you wrote, that you said -- what's the best opinion? what's the worst opinion? it's mot not a contest or a gam. it's not a contest. you do the best you can, and it's going to be up to other people some time 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 lubbock, texas, and they probably hadn't seen a supreme court justice. and we went on for about an hour, and we tried to describe what we did. we tried to explain, we do have different points of view to some degree, not as much as people think, but to some degree. 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, he says i think you have a method that's

too rigid. i don't say 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. we talk 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. it's not so terrible in this country that people have different points of view on the supreme court. it's a big country. >> rose: do the justices of the supreme court agree much more and rule 9-0 more often than we imagine? in other words, is there more agreement that -- let's say you agree 70% of the time.

>> no, 50%. >> rose: it's 50? it's 50% 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. so i will say that to a university audience, law school audience, and they will say -- because that's our biggest problem, people think we're junior league politicians. that's what they really think? >> rose: do they really? yes, they think we're junior league politicians. >> rose: amateur politicians. i would say junior league. ( laughter ) who i think tried to be a junior politician was roger in the case where he held a black person was not really a penn --

unbelievable -- but he thought he would help prevent the civil war, giving him 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 his decision, 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 taney'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 i can explain that later, if you wish. >> rose: i do. ( laughter ) but i just talked last week in the chambers of the supreme court to justice ruth bader ginsberg, and she said to me that, you know, she would like to see more of a conversation between the court and the congress. >> it's hard to fee get a conversation going. >> rose: but you understand what she means? >> absolutely. absolutely, because sometimes you can find something in a statute and say why did you -- she's written that -- >> rose: or have them think about in a dissent -- because the complexion of the congress changed and the new congress -- i think this was -- i've forgotten the case, but the congress then changed the law -- >> yes. >> rose: -- because of what she or someone had pointed out in aties sent because there was a dilog.

>> yes. i think that is good but it is not easy to bring about. i think -- i worked in congress for a while on the staff. >> rose: the judiciary committee with ted kennedy? >> yes. and i would guess they were on different time frames. see, we take things slowly, the virtue of we're not elected. the virtue of having nine non-elected people. hamilton said this in '79, but at the time they can think they're not plaferl powerful, and he thought that, that's basically true comparatively speaking, but over a period of time, we'll think about something weeks, months. you're a member of congress, you don't have a second. there's a constituent in front of you, on the phone, e-mailing you or telling you something and that constituent is very surprised if you can't remember his or her name, and every single thing that he has or she

has is a problem and having done about it yet, because after all you received the email yesterday, why haven't you acted now? and it's a very hard job and the time frame is different. now, vandervandersaid because the court used to have its offices in congress, it's what he said when they built this beautiful palace. >> rose: right. he said, i don't really want to move, no one will have heard of us again. ( laughter ) that turned out to be not quite so right, but he could talk to members of congress daily over lunch there, and he liked that. brandeis said, i don't want to move, it will go to their heads. he was right about that. >> rose: louis brandeis said that -- >> yes. it is something absolutely aspirational. it would work much better and people tried different methods

of bringing it about. i'm saying it's harder to bring about than you think but a very good idea, a correct idea. >> rose: are there any experiences or skills that you wish you had as a justice of the supreme court? >> of course, you would like -- number one, you would like 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's like thurgood marshall saying that. he said that he had, which is correct, experience that the others didn't have, and it was valuable having that on a court. it's valuable having a wide range of experience. of course it is. and i would like to be able to write better than i can. i don't want to discourage people from that.

you know, there was a book review in the "l.a. times" of a book i wrote on economic regulation. i'm surprised 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 pool of tears with the door mouse and the mouse begins to read from hummes history of england. why are you reading that says alice? because, says the door mouse, we're wet and this is the dryest thing i know, and that was before breyer wrote this book, he said. ( laughter ) but i've improved. >> rose: and you said about justice scalia, you said he suffered from a good writer's disease. >> i have said that. you have to be careful of that, of course. the job of a judge in an appellate court is, in an opinion, to explain the reasons why he or she reached this

opinion. now, i don't think that calls for or rears what you might be able to do in terms of great phrasing, but if you can do that, it can be an advantage. but what i meant -- nino and i -- and i miss nino -- we would appear together and somebody would say why do you i summit your colleagues? and i said, you mean him. ( laughter ) and i would say, 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 giving it up, the world will come to an end and so will he but he will not give it up, you find the felicituos

phrase, you're going to use it and it may be aimed as us but we don't take it personally. >> rose: it's said there may be an opportunity for the republicans and whoever controls thesenate -- the republicans will be in control until after january 20th to vote on judge garland. my question, what's the impact of 4-4? >> oh, 4-4, last year -- >> rose: not 5-4, but 4-4. we hear about 75 cases, 70 or 80, somewhere in that range. if it's 4-4, that's just as if the case was never heard. >> rose: that's my point. it goes back to the court of appeals and the majority opinion -- >> whatever it was. but you wanted to know the impact of the 4-4. there were four cases and that

was 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: and two might have been decided differently if it had been 5-4? >> if it had been 5-4, they probably wouldn't have been 4-4, and -- >> rose: i know. ( laughter ) but my point -- but knowing those cases, do you think -- or the 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 might have or it might not have. it might have affirmed or it might have -- >> rose: but you know. you could predict. >> what you wasn't 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 you will find -- nino and i -- all judges, just about all judges, when they have -- >> rose: okay, let me ask this question. >> all right. >> rose: what do you think about 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 environment of growing up? was it some combination of this? how did you end up 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're not going to explain them on the basis of politics. when i work for senator kennedy, politics meant where are the votes, are you a republican, democrat, no. nor is it really ideology.

are you a marxist. leninest troublemaker or adam smith. it is very broad words of liberty in the 14th amendment. the freedom of speech. words that don't explain themselves in difficult cases. do i think it makes a difference that i went to lowell high school in san francisco, that i grew up in the '50s and '60s, that i was at stanford, i've led the life i led and so have you. >> rose: right. that at a very abstract levels creates views you have about your profession, about the country, about what america is like and if it's law, what is law about as it applies? i couldn't write that down in 500 words but, nonetheless,

every person at a certain age is shaped by his background and experiences and has these sort of general views about his profession, and i think that explains a lot. when i went down there, as i said, i'd lived in san francisco, i lived for many years in boston, i'd seen a lot of disagreement but not quite as much as i've seen in some of the cases down there. at first, i thought, isn't that awful? they all ought to agree with me. ( laughter ) then after a while i began to think a little more maturely that it's a big country, there are 320 million people, they think a lot of different things, and it is not such a terrible thing if, on the supreme court, there are people who have different -- somewhat different jurisprudential outlooks. do you know scalia probably likes rules more than i do. he tends to find 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 difference tweens us, just what you've said. however 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, a basic outlook of the constitution, how it applies today to people who must live under it. those are where the differences come up. it's not politics. >> rose: i assume you went to see "hamilton." >> i thought it was great. my wife, we got tickets, that's an amazing admission because i have to add that we got tickets before it was so well known. >> rose: you mean at the

public theater? >> no, we saw it here but it still wasn't quite the price it is at the moment. ( laughter ) >> rose: but it's great, great civilly because it was a well-crafted musical or -- >> on every score. >> rose: on every score. joanna wouldn't have believed i would go to this musical, all in rap music, it seems a little young for me. ( laughter ) then i go there and "hamilton," a great biography, but much of the cast is minority -- they're african-american, they're -- so you think, well, what -- and i first thought, is this going to be slightly politically correct? no, it's not! and what you see, or at least i see in there, is not necessarily the constitution at that moment. there were slaves. women didn't vote. but the potential -- the potential was there as this document would be applied to the

country, and "hamilton" saw that and probably many of the founders did. it was an experiment, it was an experiment that later had its failures and 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 that, it was just terrific entertainment. >> rose: indeed. how can you miss it? >> rose: where would you be on the conflict between jefferson and "hamilton"? >> well, the historians at the moment tend to favor "hamilton." >> rose: of course they do. when jefferson came in, i mean, we're preachers of the historians. and it was very funny, the jeffers b character -- the funniest was george iii. >> rose: that's true. ( laughter ) >> so i probably would be --

probably, from what i've read, be more on the hamilton side. >> rose: you often talked about your admiration for prust. >> i talked about it and wrote an article about it. >> rose: you talked about it with a french interviewer. >> yeah. >> rose: what are the looks that have influenced you? a college student asked me ifo i could read one book, what would i read? what would it be? >> "education of henry adams." >> rose: would bit? yeah. >> rose: why? because i think it's a terrific book. he lived 1838 into the 19t 19th century. he lived at a time when people thought the country would be an aristocracy and there would be elections and the people would rule but not too much and he lived through a period where he saw the presidency in congress.

remember the cartoons about congress, the big money bags, railroad truss, but they really bribed people. it wasn't just campaign. he lived through a lot and he said, my goodness! he goes to the south before the civil war. a bunch of ruffians. he says, they have these slaves, terrible. just look at his reactions, they're so interesting. and he said, 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! my goodness, they're just on the payroll. oh, my goodness! and he says, yes, right. so what do you suggest? he says, we have democracy, and that's going to just have to work because there isn't an alternative. then he turns to other people and say we've got to make this work. it's not just that overall philosophy, but i agree with that, but it is the description of year after year after year,

and you come away feeling, yes, this is -- it's a very -- it's an incredible country. we're making it work somehow, and why not? >> rose: frequently in this political debate, people will say, in the end, here is the reason that we have to vote, a, republican or, b, democrat because the next president of the united states will be able to have a dramatic influence on the supreme court and that is what will have influence over decades. >> 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 -- >> rose: right. -- know how they're going to

vote, and they'd vote that way, anyway. >> rose: ah... so you carry your constitution. >> no, i have a point. ( laughter ) >> rose: what. the point is when i get that kind of question, which i often do in college or high school, i do have this document, and i say, i want to tell you something, and this is about what, perhaps, i feel more strongly than what you brought up, but i would say 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 job that's satisfying to you, and i also hope that you will participate in public life. now, that might be on the 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've raised children that do the opposite. ( laughter ) but it's because i -- this document, i can tell you this, that 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 '50s, to sergeant preston of the yukon. ( laughter ) he was up there, and the boundary was cold! my god, it was freezing. and sometimes those boundary questions are very tough. abortion in or out? school prayer in or out? but don't make the mistake of confusing a tough question at the boundary with the fact about what the document is 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 foresees, and if you do not participate, it won't work. you want a tough quotation on that? >> rose: yes. paraclese. >> rose, paraclese in hisfamouss says, what do we say in athens of a man who does not participate in public life? we do not say he is a man who minds his own business. we say he is a man who has no business here. tough. tough. but that's what this is talking about, and that's what i want them to do. so if you want soapbox, teach

the children civics. teach them about the government. >> rose: now -- ( applause ) have you changed your mind on any particular -- i mean, after 22 years, where you -- if you had another go, you're wiser? >> i can think of a couple, yeah, but, normally, we don't look back. sandra o'connor told me this. sandra said there are two unwritten rules of the court. the first is, at conference, nobody speaks twice till everybody's spoken once. that's a very good rule for a small group. the second, tomorrow is another day. you and i who are the greatest of allies on case one. >> rose: right. case three comes along, we're

add -- at odds. the fact you were with me on case one is irrelevant, unless it's legally relevant, but is really irreel want to whether we're allies on case three. 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 plenty of people around in the next case or the one after that to tell you all the mistakes you made and try to do better then next time. but 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, you see the idea? >> rose: would you rather be the swing justice or the chief justice? >> would i rather be the swing justice or the chief justice? i mean, it sounds phony but it's

true -- i have enough to do. ( laughter ) i get the case, do as well as i can and on to the next one. >> rose: what does the second amendment mean to you? ( laughter ) >> well, the court -- i can see what the court -- why don't i start the other way is this. >> rose: yeah. i'll say the opinion i wrote. >> rose: okay. that is what i thought it meant. >> rose: okay, tell me that. what i thought it meant is 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 stephens and ruth bader ginsberg and several we thought of what it meant. in article one of the constitution, it gives to the congress the power to call up and regulate state militias.

this was a lot of concern, if you read the federalist papers you will just get a feeling or 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 the federal government can destroy your freedom. well, said madison, in a sense -- if i paraphrase him -- never fear. we will put in the constitution an amendment which says congress can't do that. it cannot call up and disband the state militiat. why? because a well-armed militia is necessary for the security of a free state, i.e. a state

militia, therefore the right to keep and bear arms will not be infringed. in other words, that's what i thought they were talking about, which is not the right of an individual to keep a gun next to his bed. okay? ( applause ) >> rose: what will scalia's legacy be? >> i think he took the job very seriously, and i think that's a plus. and i think -- 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? >> rose: yes.

the words count. and history counts. and tradition counts. there's a long tradition behind habeas corpus. and precedent counts. courts have decided something like this before. maybe not too close but something. and purpose counts. 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, are judges really different? say justice scalia and me. if he thinks those first four things are the real story or almost? almost because he doesn't really think they're the whole. but those are text, history, tradition, precedent. 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. all right. it's a matter of degree. 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 are 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 but where i disagreed with him of course is i think he put too much weight on that, but then he thinks i put too little weight on it. you say what will history say of

that? we better ask those historians, particularly those who have not yet been born, and then we'll know. >> rose: here's a word used with you, pragmatist. >> mm-hmm, people do say that. and it is not pragmatism in the sense that you want to do whatever's good. it's not that. it was home holmes and purse and william james, they were pragmatists. the whole 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. there are viewls about creating precedent, their approaches, their standards, their law firms, their judges, their citizens who live under it, it's a huge kind of structures of all kinds of rules and so forth and, lilledly, when you -- ideally,

when you make the 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 you're dealing with. and that is a guide. in that sense, i guess i'm pragmatic because i want to know how is it going to work and is it 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? >> rose: do you find yourself occasionally looking at something in which you say the way the actor which led 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 noble goal, and maybe even a goal i would agree with. however, if we allow this person to do it, someone may come along

next time, a different president or a different person, and use that right in an evil way and interpret the supreme court, we've got to put boundaries on that kind of thing? >> of course. of course. that led under roosevelt the administrative procedures act. >> rose: yeah. he was, i'm sure, had very good things in mind, and his secretary of the interior had very good things in mind when it was something to do with oil. but the supreme court found he couldn't find the rule he was following because nobody had written it down. the result of that is, of course, even if what he wanted was the best thing in the world, you have to write it down or it's not a law. then a statute was passed saying just that. that was one of major points, if

it's not written down, it's not public, then it's not a law. people have had wonderful 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 magna carta. his intentions, whether good or bad, would still and should still be subject to those few words, according to law. >> rose: and might that apply to what abraham lincoln did during the civil war in terms of values -- >> that's how we've 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 thrown into prison. if i push it twice, i can have any person i want in indiana

thrown into prison. pemtell me, he said, does the qn 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'd gone too far. >> rose: after the war was over. >> after the war was over. but look where that leads us, where that did lead us, that attitude, because black said, according to frankfurter, somebody has to run this war, roosevelt or us, and we can't, so it better be roosevelt. the consequence, 70,000 american citizens of 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 whatsoever. but the court agreed.

>> rose: agreed. for the reason that black just said, somebody has to run this war. but then, you see, in the steel easier case, justice jackson and others said president truman had gone too far. even koreans at the time of the korean war seized steel mills without congressional support. who are they striking down? roosevelt, he's gone too far. it's easy to strike down roosevelt when he's dead and you have harry truman who was more popular. >> rose: hasn't the president said the court went too far in executive power? >> that's exactly my point. my point is, in the four guantanamo cases, what shifted away from cicero, away from

abraham lincoln, and the 18,000 people, et cetera, they 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? others say, you didn't go far enough. you should have said the details of what you can exactly do, or they would have said you can't have hearsay and what you can do. but i replied to them, the reason they didn't go farther, i don't know the answer to those questions. and because we're in a situation which is evolving, which involves terrorism thrhroughout the world, which involves many other countries which are also

democracies, what we need is what i think sandra o'connor said, 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 for being here. ( applause ) >> rose: for more about this program and earlier episodes, visit us online at pbs.org and charlierose.com.

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