>> rose: welcome to the program, it is summer and we bring you some great moments from our archive, tonight conversations with supreme court justices past and present. we speak with justices anthony scalia, sonia sotomayor, sandra day o'connor, john paul stevens and stephen breyer, also former chief justice the late william rehnquist. >> look, i don't have to prove the textualism is perfect, i just have to prove it is better than anything else. there is a lot of suggestion that i really changed my views on the death penalty, and i am not really sure that is accurate. >> i like to play bridge, i like to play poker, i like to play charades. >> you like to bet on basketball games. >> which we have done.

>> which we have just done, yes. >> i am honored to have been the first woman on the court, i mean, how could i ever imagine doing anything like that? >> i think anything helps you understand human beings will help you ultimately understand the law, that is what law is about. >> the dang search that you think of judges as computers, which we are not, the danger is, we are human beings. >> which strengths and weaknesses. >> rose: the supremes, next. funding for charlie rose was provided by the following.

>> rose: additional funding provided by these funders. >> and by bloomberg, a provider of multimedia news and information services worldwide. >> from our studios in new york city, this is charlie rose. >> rose: in the landmark case of marger versus madison chief justice marshal wrote it is emphatically the duty of the judicial department to say what the law is, and so since 1803 the supreme court has been the ultimate arbiter of constitutional questions, and its most recent term the justices issued major decisions on three fundamental

institutions of our society, they consider the meaning of legally, legal equality in the terms of education, marriage and voting, i have had a series of conversations with the justices over the years, and we take a look at what they have said on a variety of subjects, including their views on the court, the constitution, the art of judging, as well as their formative experiences. >> if i said you to you the constitution is what the supreme court says it is -- right. >> what would you think of that? >> i would say that is the usul rule for political accommodation in our society. i wouldn't say it is the invariable rule. my authority to interpret the constitution is no different from the authority of the president or of the members of congress. we all -- >> rose: all three branches of government. >> we all take the oath to uphold and defend the constitution. now in normal times, we are better, because it is a lawyer's

document, the job is interpreting the text, lawyers are good as interpreting texts that is what lawyers do so in normal times the supreme court will be deferred to. but, you know, i don't think it is unthinkable that a president would say, well that is what the supreme court says, but i don't think the constitution means that, and i am not going to accept it which indeed lincoln did. lincoln was a good lawyer, and he simply ignored some opinions of the supreme court. >> rose: because of the stress of wartime? >> that was part of it, yes. nothing in the document says that the supreme court will be the last word on what it means, at least in normal times. the reason we have become the last word is set forth in marbury versus madison. >> rose: right. >> marshall says, look, this is

a legal text. judges always have to treat the situation where legal texts contradict one another, where the contradiction is between two statutes, says john marshall, the more recent statute prevails, it has implicitly repealed the older one, but where the conflict is between a statute and a super statute, the constitution, the constitution must prevail. so that is our approach to the constitution is the same as our approach to statutes. you start with the text, it is lawyer's work. it is not politician's work. it is not sociologist's work. it is not economist's work. it is the work of interpreting, giving the fairest reading to a text. without which democracy doesn't work. , you know, the only way you can

have democracy in an extensive nation is through its laws, and if you don't give those written laws the meaning that they were understood to have by the people who adopted them and, more importantly, by the people to whom they were promulgated, democracy doesn't work. >> rose: it is a dead document to you? >> i like to say an enduring document. >> rose: but you don't say it is a living document? >> it is not living. it is not living. >> rose: but how could they know and understand how complex the world would become? >> well, they could not understand how, but they could certainly understand that. it would change, and that is why, you know, in the bank of the united states case, marshall

says since this is a constitution and has to provide for unimaginable events in the future, we should give its words an expansive construction. now, you wouldn't need an expansive construction if you could change your mind. if the court gave it a narrow construction then some future supreme court would say well that was okay in 1812, but, you know, in 2012, no, we have to construe it differently. marshall did not believe that. he said you have to interpret it to give a lot of room for future development, because that interpretation you give it today it will bear prefer. that is what everybody thought. >> rose: ideas, what writer, what justice, what -- >> as far as my approach to what this book discusses, is concerned, i am not sure it is any particular individual, it is

just -- it is just what one does with language. now, i had a lot of background in language. i had two years of french and german. >> rose: your father taught romance languages. >> he taught romance languages and used to correct my opinions grammatically, he really, really did. >> rose: i bet you loved that. >> oh. the court of appeals opinions always used to end for the for going reason it is hereby ordered that the judgment below is affirmed, and he used to mark them up. iyou don't order it is affirmed you order that it be affirmed. i was the only judge on the court that, who had that ending so, yes, i have an apologies with my father. so i have that background. i had eight years of latin, i guess seven years of greek, so i have dealt with text a lot. >> rose: when you look at the justices on this court, who do you admire the most? >> i will tell you -- >> that i like a lot. i like one of the bread

essors in my seat on the court, robert jackson. >> rose: in you go. >> who was fdr -- >> rose: a prosecutor nuremberg. >> that's right. and also former attorney general. >> rose: what did you like about him? >> i liked about him that he was usually on the right side of the case, which meant he was usually adhering to the text, and secondly that he was a magnificent stylist. he was the best writer on this court a and in the 20th century, if not forever, he wrote beautifully. >> rose: does the court that you know read the paper? >> does it understand the political dynamic of the moment? >> i don't know. i would have to ask each -- i think so. >> rose: does it affect you? >> i hope not. >> rose: but is it possible that you -- >> no, i wouldn't be as

unpopular a person as i am if i let it affect me. >> rose: you think you are unpopular because of protests here and there? >> well, you know, when you want to designate a -- on the supreme court. >> rose: you are there for them, aren't you? >> yes. >> rose: why do you think that is? >> you have great charm and personality. you are a pretty nice fellow. i mean, you have friends across all aisles you and ruth vader ginsburg are great friends and people say nice things about you .. but you are. you are the guy they look and say -- he wants to stand in the way. >> that's right. the forward march of history. >> that's right. >> rose: and justice. and -- >> i think -- >> rose: that's the way they see you. >> i think it is simply because of the consistency of my --

>> rose: do you take some pride in that, though? i bet you do. >> a man who has made no enemies is probably not a very good man. >> rose: wasn't it franklin roosevelt who said i am proud of every enemy i have or something like that in a speech he made? >> my favorite line was lyndon johnson's who said every time he appoints a judge he makes one ingrate and three enemies. >> rose: that's right. >> rose: what has been the impact of justice is justice s? >> he had a very significant impact on the court. some very fine impact. he has written a number of very fine opinions, and he is a very brilliant person and a very nice guy. he has had a very significant impact on the court. >> rose: when you look at this argument about originalism or

strict interpretation and the philosophy you have, how would you define the difference? >> between originalism and my philosophy? >> as articulated by justice is ally affect well originalism actually is described in different ways in different times, and some people think it refers to the original intent of the people who drafted either a statute or a constitutional provision. but i think more and more in recent years, those who described themselves as originalists and focused on the intents of the draftsmen but rather on the intent of the reader or the community in which the law is enacted or distributed, so the sum difference of approach to originalism. >> how would you define where justice scalia is in your judge judgment. >> i think he is in the latter contact, i think he is more looking at the intellectual universe in which the law was

adopted and received. he looks at the readers' view, i think somewhat more than the authors' view. >> rose: and you? >> well, i think -- they are both relevant, they are both relevant, but i think i tend to look more closely, if i can, at what the person who was responsible for the draftsmanship of the particular statute or for the constitutional provision intended. >> rose: you talk about the constitutional issue but you also talk about your experience and how your experience had led you to believe that the death penalty -- you tell me. >> well, there is a lot of suggestion that i really changed my views on the death penalty, and i am not really sure that is accurate, because what happened is that at the time of the decisions back in 1976, my first year on the court, where the constitutionality of the death

penalty was a major issue decided at the time, and we upheld an opinion joined by potter stewart, lewis paul and myself, was the controlling opinion in holding that the death penalty as enforced in some states, not those that had a mandatory death penalty, like louisiana and i think north carolina, was constitutionaling if it was narrowly confined to avoid the risk of being as random as being struck by lightning, the quote from what father had written in an earlier case, and wha what happened ovee years as personnel on the court changed, particularly a change after both of them resigned, after they had retired, the court expanded the category of cases in which the death penalty was permissible, and it also expanded the procedures -- one example is the victim impact evidence, which would presumably might be admissible in

noncapital cases, but evidence that has nothing to do with the blameworthiness or the actual guilt of the defendant became permissible on the theory well it is okay in other cases. i thought, and justice powell thought the original opinion it was totally improper in a capital case to allow a category of evidence in that has just an emotional appeal, and is entirely on the side of increasing the likelihood that the jury would return capital -- return a death verdict. and there were other changes in the jurisprudence, the rules regarding the qualification of jurors were loosened and so the juries now are actually maybe more conviction prone than in other criminal cases, and those changes made me feel that the court had changed -- had departed from a basic premise

that underlay our original holding back in 1976. but the other change is that in administering the death bent, the law developed to the point where the court, in fact, was insisting that it be painless for the defendant, which i think is correct, by the way. but by doing that, they had really removed the principle appeal and justification for the capital punishment as it had been administered over the years in the past, they, retribution, many people feel the reason we need a death penalty is to make the defendant suffer the way the defendant made his victim suffer. well he can't suffer the way the victim suffered. he is just going to be put to sleep as though he were getting ready for an operation in a hospital. >> rose: you reject the argument you became more liberal over the years. >> well, i never have particularly liked the term. >> rose: i know you don't. >> liberal. and there is no doubt about the

fact industry learned a great deal during my period on the bench. every judge learns about different things. >> rose: you get new facts and new experiences you see things differently, programs? >> some things do, that is certainly true. >> rose: but how would you characterize, then, this evolution in the way you look at the law and look at big issues? >> well, i don't really feel like there has been an evolution in my view. i test it this way. i try to think back about cases i would have voted differently since i have been here and i have been able to identify one that i do acknowledge that i would have voted, and that is the texas capital case. >> rose: right. >> i talked about that. but all the other cases i have looked at, i felt pretty proud about what i said in the early cases. >> rose: what is the best preparation for a supreme court justice? i mean, need you have judicial experience? >> i don't think that is essential by any means. i think it is an asset and makes your work easier when you come here, if you have been -- if you

have served as a federal judge before but many of our great justices did not have judicial -- follows is an example, he had been a the lawyer when he came on the court, byron white had no judicial experience. there are many. i think the court really benefits from some sort of diversity within the group, and although i think all of the members of the present court are imminently well qualified i wouldn't change any one of them, i do think that, i kind of like the situation before when there was a little diversity in both geographic, different law schools and different professions. >> rose: would you liked to have been a, quote, swing justice as justice o'connor was and justice kennedy clearly is? >> well, i think i may have been on a fair number of cases too. >> rose: the swing justice? >> yes. like i mentioned in the book, i

know there were cases when i first came on the court and told rehnquist statistic on by right and brennan statistic on the left and they all voted four to four and i would like to say i agree with bill. >> the most important power of the chief justice is what? >> the authority to assign the opinion. the chief justice goes first at conference to discuss, but i am not sure that makes a great deal of difference. >> rose: why not? >> well, you know, i will say something -- state my views of conference, and other people have different views. some people who free with -- i am not at all sure that the fact that i said something, even though to say they agree with me, agree with me because i said it. they may have reached that conclusion just on their own. >> rose: justice black man,

harry blak man his papers have garnered first page coverage. >> yes. >> rose: what do you think of that? what did you learn from that somehow interesting did you find it? >> well, you know, thurgood marshal's papers were released a number of years ago and that gave people an insight into the workings of the court, that they probably hadn't had before, and to me it shows an institution of working just the way that you would hope it would, exchanges of ideas, that sort of thing, justice black man's papers covered several years after justice marshal returned to the time justice blackmon retired, and also some of his observations, and i have the feeling still that it shows an institutions working just as one would hope it would, and i think the kind of the minutia that came out in the blackmon papers really was probably a fairly narrow group of people.

>> did this behavioral aspect of the study of the court interest you? >> well, certainly it interests me. i don't know that i would ever call it a study. you are thrown in with eight different people who have generally quite different backgrounds than you have, and you obviously you work with them, you get to know them, and i think our present court has very cordial relations among everybody. which hasn't always been true of the court. but, you know, after we finish a session of argument in the morning, we will frequently go up and have lunch and maybe seven or eight of us will be there and we talk about all sorts of things. so it is a friendly group. now, when you talk about outside socializing, you know, that doesn't carry over necessarily and i think typically in organizations where you work with people during the day, you don't necessarily socialize with them, and it just varies from

person to person. >> rose: you like games? >> i do. >> rose: there always has been to me a kind of connection between highly intelligent people and the love of games. do you think there is something to that? >> i never thought of it that way. but maybe there is. i just have never thought much about it. >> rose: why do you any you like games so much? >> because i just do. >> rose: you don't know why? >> i am not given to self-analysis. >> rose: i am trying to help you. >> i am not interested in getting into it. >> rose: but what brings you the greatest pleasure in life other than the court and the workings of the court? >> very much so, family, my children, my eight grandchildren, seeing them develop, and i do enjoy playing games. >> rose: has the rehnquist quote been in part about changing the warren court, the principal decisions of the warren court?

>> >> i think on criminal, constitutional, criminal procedure, many of those decisions have not been expanded, and programs some of them have been restricted. >> rose: restricted. >> yes. >> rose: that is one signal achievement of the rehnquist court? >> well a lot of people don't consider it an achievement. >> i know i don't. i can tell you who some of them are. they have known it all. now the other thing they might cite as a signal achievement of the rehnquist court is your own tenets of federalism. >> yes, certainly some of our decisions, i would say, in the last ten years, probably, have recognized that there are limits on what congress can do. iits authority under the commere power is now totally unlimited although it is very broad, and its ability to haul states into

court or allow private individuals to haul states into court is somewhat limited, though the government itself can always haul a state into court. >> rose: if you were thinking about your legacy, what would you want to be said? >> i like to think that the court over which i have presided has been a relatively smoothly functioning court, where people, the messages of the court have been treated fairly by me and where my views have preveiled a fair amount of the time although certainly not all the time .. and that i will turn over to my successor the most important institution in the third branch of the government, which is the supreme court of the united states. >> rose: you have done that. what else? >> well the. >> rose: you have done that. >> i haven't turned over -- >> rose: but so far, it ended tomorrow you could say. >> right. >> rose: this is what i would -- >> yes. >> what else?

>> well i think that is enough. >> rose: no, it is not, it is not enough. >> i mean that is just saying i had a smoothly functioning court without rancor, you know. >> but that isn't the easier thing in the world to do. i mean you are dealing with, you know, some personalities who are, you know, they have their own ideas about how things should be run and to accommodate all of that and try to get everybody working harmoniously together is not a small feat. >> what skill does it call on on your part. >> a relatively passive nature. >> rose: are you serious? >> yes. >> rose: in order to be a great supreme court chief justice you have to have a passive nature? >> you have to a have a certain amount of -- you need to have a very high boiling point. >> rose: zero so in other words it really has to get hot before you boil. >> yes. and you have to be able to listen to other people's views and see what you can see in them and see if there is some way to compromise the differences and

that sort of thing. and you cannot set out with the idea, i am going to have my own view prevail, if you are the president, programs you can do that, programs you can do that or some other position you can do that. >> rose: chairman of the senate -- >> of chief justice, there is simply no guarantee that your view will prevail and so you have got to work out something. sometimes you will simply be defeated and it will be up to others, but other times, if you can kind of give a little yourself and perhaps others will give a little, you come up with a solution that is satisfactory to a majority. >> rose: what has influenced your philosophy of the law more than anything else, do you think? is it the study of the law? is it something else? >> that is not an easy question for me to answer, i am sure of it was formed by my law school professors. >> because you came here as a conservative. >> yes. >> you remained a conservative. >> yes.

>> rose: you probably were a conservative before you went to stanford law school. >> i imagine so. >> because, you know, why, i really can't tell you. >> >> rose: you don't know? parents? >> i am sure your parents had something to do with it, the environment in which you are brought up with has something to do with it. >> rose: what is it about the law that you think is your niche? >> it is the analytical process, the cross fertilization of ideas, the -- you know, it is a contest, you know, in the court it is a contest between the plaintiff and the defendant, one of them wins, one of them loses, there is a decision that comes out, and it is the same -- the same is true in our court. one party loses, one party wins, and frequently the court is split, and you kind of do your best to see that your view prevails if it doesn't prevail you try to express why it should have. so it is the element of controversy that makes it interesting. you know, if -- i

think in some civil law countries, the law is much more cut and dried, and i am not sure that a judicial position in those countries would be as interesting as it is in our country. >> rose: what makes the american constitution so great? >> >> it is short. it is short, and divides the power, divides the powers of government three ways, which means you have checks and balances, you have got an executive who is now responsible to the legislative branch which was was a considerable invasion innovation compared to the -- you have a bicameral legislature where the population is represented in one branch, the states are represented in the other branch. it is a system of checks and balances which is operated to prevent the government in its entirety from being too powerful. >> rose: and it is admired around the world.

>> it is, particularly the fact we have an independent judiciary. with the power to declare an act of congress unconstitutional is one of -- the really remarkable accomplishment of the framers, and people in eastern europe who are just now forming constitutions our judges are going over there to help them put together something like we have. >> rose: and what is remarkable, wherever the court has erred and you get in huge battles about that you think of the nixon papers, for example. the court has always had, the law is supreme, and that is no man is above the law. >> yes. that is certainly what the constitution has assured. >> rose: what is meant by the rule of law? what does that mean to you? >> well, i think it is carved on

the lion dale hall at harvard, [latin] which means not under man but under god and law, and it just means that every man is subject to the law, basically. >> rose: of all the justices you have seen while sitting on the court, who exhibited the most piercing analytical interrogation? >> of the ones i saw? >> rose: yes. who? >> i am not sure, i think bill rehnquist wasn't too bad. he was a sharp guy, he really was, he was in law school too. >> rose: i know you both went to stanford. same class? >> same class. >> rose: why did you retire? >> well, because john connor, my beloved husband had alzheimer's disease and that gets worse as

time passes and he was reaching the point where he was going to have to go in a care facility, and i really thought he should be in arizona where our children were. >> rose: right. >> and i wasn't there and it seemed to me, at that point, i better get down from the court and be available for john. >> rose: you are comfortable with your role in history? >> oh, i am honored to have been the first woman on the court. i mean, how could i ever imagine doing anything like that? i certainly didn't when i was admitted to law school, it was not anything to which i aspired. it was inconceivable. >> rose: and when ronald reagan called you up to say i want you to -- >> he got on the phone and i was at my office in my chambers on the court of appeals in arizona, a and he said, sandra, i would like to announce your nomination tomorrow for the supreme court. is that all right with you? and i just -- i knew that they had

been looking. >> rose: yes. >> but what do you say to something like that? >> rose:. >> yes. thank you very much. >> i fold the president i would be honored. >> rose: yes. >> and it was an amazing turn of events, yes. >> rose: what did you love about being on the court? >> well, having, challenging, interesting questions to answer. that was my job, and imagine being lucky enough to have that be your job, and that is what a law dreams of is to be able to address challenging legal issues and answer them and what could be better than that? >> is there a perfect experience for sitting on the court? i mean, do you need to come from the court of appeals? a district court level? >> well that wouldn't hurt. i served just on state courts. >> rose: right. >> but you need a little experience in deciding appellate issues, i think, and you certainly need to have

demonstrated a little skill in your academic life. >> rose: yes. >> -- for deciding issues of the court. >> rose: once you sitting as a justice and you know you are going to have two advocates coming before you to argue -- >> yes. >> rose: -- and this has to be for them a terrifying moment. >> it has o to be challenging. >> rose: exactly. how do you prepare? do you have a list of questions that are unanswered for you? >> yes, you do have occasionally some, i would jot some down at types so that i wouldn't forget it because when i was preparing for the case, i would read everything and i would have some thoughts, and then i would put it aside until the day of oral argument so i didn't want to forget, and i would jot down some of them, if there was a question that i thought was very important to ask. >> once you get to the court and you are sitting on the court, and you get to play the role of a swing justice -- >> now, i don't like that term. >> rose: oh, stop it, you do. >> i do not! >> rose: come on. >> that sounds like you don't

care what it is, you are just swinging away. >> rose: it is not like that at all. it sounds like the person who, therefore, sometimes rules with the conservatives and sometimes rules with the liberals, and whatever decision she makes will be the determining factor in the decision of the court on that very important case. it gives you immense power and you knew you had it and -- >> sometimes. >> rose: and you exercised it. >> sometimes that is correct. the court was decided -- divided in such a way that a single vote would turn it from an affirm to a reverse and i found myself in that situation. >> why? just because you saw both side of many cases? >> i don't know. i mean, any other justice could say the same as i, they could say i could change my vote -- >> rose: but they have voted in a certain way and you would go from left to right. >> no, i don't think that is quite fair. >> rose: why isn't that fair? >> because i didn't just around going from left to right, goll, that just isn't.

: i can't believe don't want to accept -- it made you powerful. >> well, i wasn't looking for power. >> rose: in history -- >> i had enough power with my single vote. i didn't have to swing around to gain power. >> rose: but i believe you liked it, you liked the fact -- >> i liked being on the court. >> rose: of course you did but you liked the fact that you could decide. >> i had to decide in every case -- >> rose: it became a vote that would decide -- >> some of the cases a few of the cases. >> and you liked that? >> i didn't object. it wasn't something to which i aspired. >> rose: yes. >> i didn't want to be in that situation. that wasn't what i wanted to do. i thought everybody should agree with me. it a ought to be 9-0 my way. >> rose: when you got out of law school and had all the grades of anybody, you had great grades. >> yes. >> rose: you were a wonderful person -- >> i don't know about that anyway -- >> rose: oh, really? >> i 32 toyed get a job. >> rose: i know. what did they say to you?

>> i couldn't get an interview. >> rose: not even an interview? >> no, and there were at least 40 names on the bulletin board at stanford saying stanford law grads call us we want to talk to you about employment. i called every single number. >> sandra would call. >> i called every single number and not one of them would talk to me. >> rose: did they return your phone call and say -- >> well, when i got ahold of somebody they would say well we don't hire women. >> really? >> and it was unbelievable to me. >> rose: crazy? were you -- >> i was shocked, i was shocked because i had a good record and i felt sure i could do a decent job and i couldn't believe that i was not going to get a job interview and i didn't, and i then learned that the county attorney in california had a woman on the staff so i wrote him and made an appointment to see him. >> rose: yes. >> and he was very nice, you know, they are glad handers, so he was. and he said oh you would be fine. you know, but right now i am not punned to hire another

deputy. i am not funded. >> i spent my money on, the that the supervisors gave me. i said well i really want to work for you so i will tell you what i will do, i will work for you for nothing if you will appoint me, for nothing. >> rose: right. >> and i said i know you don't have an empty office to put another deputy, but i am, i met your secretary and there is room in her office for another desk, if she didn't object. and that was my first job out of law school. no pay, and i put my desk in with the secretary. >> rose: how long before they started paying you and your own office. >> it was a while, it took a number of months. >> rose: would you rather have been a supreme court justice rather than a senator or -- >> oh, yes, clearly. i mean, that was an amazing experience to be on the supreme court. >> rose: i know. >> to have those very challenging issues that you are part of deciding and to be able to help craft opinions, that was a great, great privilege, it really was. >>

>> rose: i love what you said, the great thing about being a supreme court justice is you get to do homework every day. >> i fold my son that about being a judge, i said my job because it describes the job of being a judge on an appeals court, including the supreme court, you read and you write, that is the job, i have my word processor behind me and i have briefs and endless reading in front of me and i did say that. i said if you do if your homework really good, you can -- >> rose: and do you believe a man for your own intellectual curiosity and intellect, this is the perfect job? >> i am very, very lucky to have this job, it is a perfect job, and if you say curiosity and intellect you mean you read or are interested in what other people are doing and you could find out through literature and you could find out by talking and you can find out by using your imagination and for an appellate judge, that is

important, because when you are in that room as you are, and writing and reading what you are willing to write is going to affect other people. so it is very important to have the imagination to try to understand how your opinions and your decisions will affect the lives of others. >> why are things that you read like literature important to a judge? >> i told a group of undergraduates here in new york a few weeks when i was asked that question and i said, it is like knowing a foreign language or reading a novel, we only have unone life and we only really know our own, but by reading novels and by reading what other people have written about life and about different ways of living you can leave more lives than your own and understand how people could have lived quite a different life and that is a wonderful privilege to be able to do that as well as i think, by necessity for someone who is

going to affect the lives of other people. >> rose: does it help you understand the law? >> help you understand the law, programs sometimes. i think anything that helps you understand human beings will help you ultimately understand the law, that is what law is about. >> any experience that you wish you had had that you did not have when you came to the court? >> oh, it would have been helpful if i had been on a trial court. my brother is on a trial court. he is a trial judge in san francisco. and he loves being a trial judge. and that practice in the courtroom, if you could do everything, i would have liked to have had that experience. but i didn't. >> rose: you got appointed to the court of appeals. >> that's right. i had other experience. >> rose: take us inside the mind of a justice. >> that is a good question, that i think on -- i am, on a very general level i am trying to say in the constitution that things have permanent central and apply

them to the world that continuously changes, but that sounds like a 4th of july speech. so suppose, i want to be more specific here. when i am considering statutes i want to consider the relationship between the court and other brarchts of the government of the united states. >> rose: that's a principle that that is an important part of your framework. >> correct. because in document is meant to work as a whole, it is not meant to this works over here but doesn't work over here it is meant to work as a whole so there is a cooperative arrangement. court and congress, where do we have court and congress? statutes. courts relation to congress? interpreting statutes. >> rose: right. have you changed in how you see the law in the 16 years you served on the court? >> what have been the defining moments for you? >> or ideas? >> i think generally i would say

it is a gradual process before you can take this general idea of the constitution and try to reduce it to something that is fairly specific in practice, and that happens to people. they get more and more experience and, therefore, they begin to learn this area, that area, the other area, and sandra o'connor said, this you start with footprints going in a certain direction and then you tend to fill them in and it is very hard to retrace your steps, and that happens overtime, so i would say that the case i was most unhappy about probably was the affirmative action case where i thought the affirmative action in the schools was permissible, and i thought that the majority was wrong in saying it wasn't, and so by that time i had the ability, i had the experience, i had enough experience to be able to write down i thought as cogent as i could and very firmly what my

reasons were, and ten years earlier i couldn't have done that, i don't think as well. >> rose: you have an interest in architecture which where did that come from? >> when i was achieve judge in boston. >> rose: that's right. >> in the first circuit we built a courthouse, new courthouse and the a judge on the district court and i were in charge of that and got harry cobb a great architect and we held meetings in my office every single week and we got a courthouse built and it was the kind of courthouse, i hope and i think, that would bring the community into it and they like it. and they do like it. >> rose: there are some great photographic books people have around the country of photographing courthouses. your interest in things french. >> my wife is english. >> rose: i know. but you know, the french have honored you, you read french literature, in the original

french as we say. >> that's true. but part of it is related and part of it isn't. one part that is related is if you look at this constitution -- >> rose: ah. >> it is the thought of the french enlightenment and the scottish enlightenment. >> scottish? >> ya, ya, scottish enlightenment, hume and locke and all of these people in scotland in the 18th century and this is the luminare it was universal not just french, but it was french and scottish and if you look at our document and those ideals are there and captured in that document, and so the tuckville, you go and reread tuckville i bet you had to read it in school and you reread it and you will see my goodness this is pe perceptive about our society. so part of it is that. part of it is, someone told me a long time ago, an old woman, marie von garde, she said, stephen if you can really learn

a foreign language you will be a different person and she didn't mean it -- she meant it is better to see things, so i have tried that. >> rose: so books that have made a difference for you, tell me those that have really -- beyond the documents of a the founding of the country, that have made a difference for you. in operation -- in terms of giving you a sense -- >> well, some are obviously legal, and i will skip those. >> rose:. >> skip for the moment, but some are historical, gordon wood i think has great history and that is related to the founding of this country, but when i talked about tuckville it is because a it makes a difference and the same is true, which i hope people read, still is the education of henry adams. henry adams was a shrewd political observer, he was the pundit by a factor of ten and he explains democracy and carries through his life and opens your

eyes. >> i stand on the shoulders of so many people who have helped push me up, who have supported me, opened doors for me, helped me to learn, you know, i talk to people now sometimes on the i look at them and i think about thathat statement, and you know, you may not have had parents who could have helped you, but i suspect you had someone in your life who has given you more meaning in an important way, whether it was a teacher, a grandmother, a relative, a friend, whether it is a spouse there are always people who come to aid you in your life. >> there is something that hangs a sign in your office that says what about women. >> well behaved until they make history. >> rose: do you believe that. >> yes.

>> rose: what does well behaved mean? >> if you are not willing to take a chance, to do the right thing, even if others perceive it as a risk, as not being within the form of expectations, you are not going to make history. you are not going to be an eleanor roosevelt unless a woman of her generation was willing to step out of the normal first lady role, take a more public position on issues that were important to her, whether i agreed with her issues or not, you won't succeed. >> rose: this has to do with the life you have lived. this great question of what shapes a judge's decision. clearly, the law shapes a judge's decision. but there is other things. in your consideration of the wowrt empathy came up because the president said i want

someone with empathy. give me your fake on all of that because it became an issue in the confirmation. >> i can't speak for the president, and that's what i said during my confirmation hearing. i don't understand why he used that word. i wouldn't have used that word to describe myself, and still don't, but what i say is that you want judges with a very, varied life experience, so that when they are listening to people's arguments, they don't miss what those arguments mean to those individuals. that doesn't mean that you are going to rule in favor of that party merely because you might be familiar with what they are experiencing. you know, i talk about the fact that all judges have life experiences, and if you are going to recuse every judge from a case merely because he or she had experienced

something similar, we wouldn't get any judges to rule on cases. i talk about a simple example. you know, judges get sick. they don't all have chronic diseases the way i do, but we let judges with all kinds of backgrounds, whether their own or that of a relative, decide cases involving handicap claims. why do we do that? because we havhave confidence in our systef government that what is important is not the judge's individual experience but the belief that a wide variety of experiences will let the conversation occur in conference in which all the best arguments on both sides of the case are discussed. >> rose: yes. >> the worst thing in the world is to have a vote where people haven't understood the argument. do you think that the justices who wrote mess city versus

ferguson and decided separate but equal .. really understood there could never be anything like separate but equal facilities? >> rose: in the words of the opinion, separate but equal is inequality. >> and there wasn't anyone on the court exempt justice harlan but even he didn't get the point. >> rose: what is it you said in the san diego speech. >> it was berkeley, not san diego, but that i would hope that a wise latina judge would make a better decision than a wise nonlatina man. >> latino man. >> rose: did you -- >> no. >> rose: why -- >> because in context, anyone who read the speech in know that what i was saying was the rest of the article was talking about inspiring young people who didn't feel like they were a part of the greater american system, to understand that they

were equal to others, and that their experiences were valuable. i talked very directly in that speech about the fact that it was nine white men who decided brown versus board of education, and i also talked about the fact that it is not race or gender that give you a certain viewpoint, i said this directly in the article, not every woman thinks alike, not every black or latino person thinks alike. or will rule in the same way on every issue. but what you hope for is that a more diverse presence in our society will give us more viewpoints to be discussed and considered. and i also talked about the fact that you have t to know your own biases. >> rose: that's the crucial thing, isn't it? >> you really have to understand when you are being motivated by your own feelings, rather than

by the law. i can't tell you how many times when i was a lawyer and sometimes even now you read an opinion below and you say, what is motivating this? and and t the law or personal feeling? >> rose: what is the danger here? >> the danger is that you think of judges as computers, which we are not, we are human beings with strengths and weaknesses with limitations in our life experiences, you want us to be aware of both of those things, the good and the bad, the biases and the prejudices, so that we actually work consciously at not letting them influence our

outlooksable, that we don't assume that we are right about our biases, that we don't assume that we are not human beings unaffected by our emotions. and that we work hard. that's my whole speech. anybody who reads the whole speech, everything i have just said is in that article. and the line i have admitted publicly that i gave was a rhetorical flourish that fell flat and i pointed out that when justice o'connor said that a wise woman judge would make the same decision as a wise male judge, she couldn't have meant that either, because we dissent on our court all the time, a and i would be hard pressed that she would ever say that her dissenting colleagues are just not wise men. >> rose: have you evolved since you have been on the court? have you learned new things? have you changed your

mind about things? has it been a learning experience? >> every year that i am on the bench from the first day i was a district court judge. >> rose: right. >> to the supreme court, i have evolved, become better as judge, more understanding about what the legal issues are and what they mean, and i point to one moment in which like justice stevens court, at the end of his very lengthy career. >> rose: -- >> -- and say this was a pivotal change. now, some changes of mine, the public will never see. you know, i can tell you but you can't press me further on in which cases that i have been assigned to opinions, perhaps not on the court, i can't say that without pinpointing something, where i have been given the assignment of writing a majority opinion and after writing it, figuring out it doesn't write, and changed my mind and wrote it a different

way. if i had the majority opinion's drafted i would share it with my colleagues and say, this is what i wrote, but i stopped believing it for reasons i explain in this different majority opinion. sometimes i have kept my majority, occasionally i haven't and i ended up joining whoever was going to be the dissent, but it happens. and it happens on the court, not just to me. you study what you are doing on a case very carefully, you listen to oral argument, you listen to your colleagues, but as one of my colleagues once said to me, there are cases that won't write. there are decisions that once you start you see the holes so clearly and you can't write around them in a way that your conscience says you have to change your mind.

>> funding for charlie rose has been provided by the coca-cola company, supporting this program since 2002. and american express. additional funding provided by these funders. and by bloomberg, a provider of multimedia news and information services worldwide.

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08/27/13 08/27/13 [captioning made possible by democracy now!] >> from pacifica, this is democracy now! dream that one day this nation will rise up and live out the true meaning of its creed. we hold these truths to be self- evident that all men are created equal. >> 50 years ago this week, martin luther king, john lewis, a. philip randolph