An hour with Supreme Court Justice Stephen Breyer

all eyes are on the us supreme court this week as they wrestle with health care reform and the future of the affordable care act i'm kate mcintyre and today and kbr presents us supreme court justice stephen bryer justice brier was appointed to the supreme court by president bill clinton in nineteen ninety four he's written several books about the legal system his latest is making our democracy and more of a judge's view of pryor's vote of a kansas city public library on december eighth two thousand eleven this event with co sponsored by the truman presidential library and museum gathered that involve others earlier books it in a very academic using paper was pretty active on one of those book about regulation the hands of a popular route you're under nine the la times and for some reason he wrote a review of it in the la times and he says he starts often he says in alice in wonderland all the door mouse and alice emerge from the booth here's the dormouse starts

reading from news history of england oh why are you doing that says alice wells says the dormouse a world where adam loses the driest thing i know that i may be reformed opened in these more reason i'm sorry i got here so my agent six and i have hours of water from oregon to use it it's been modeled on you know what you do actor advertising firm uses united express it says express has a certain name work for laurent hope and i guess i did get here and is the truman library which is a very sad thing for me i wanted to check on stories but i've heard anyone really want to check up on was after president truman adair apparently apocryphal you protect perhaps all steel seizure guess we didn't expect to lose any losses big loss for him he still went over too well one of the judges of dinner parties and the

justices do well use of the present on legacy aren't surprised you can use it use it was given what we've written said well i don't like your decisions he ever but i love you whiskey and i could expect up for that and end up one and i don't i mean that's another person told another member of another one of these apocryphal stories and for this was a law they said that an archaeologist friend of his had a tablet for merck ten thousand years ago and it said when they've translated everything is going to rack and ruin the buses don't run on time children don't obey their parents and every man is writing a book and said so why why why did i write this book that the reason nadal is a more seriously is i wrote a book about the court that interaction this is the reason one is really designed to transmit it

to people who aren't judges and more lawyers and contrary to popular belief there are three hundred and eight million americans who are not lawyers alexander to transmit to them what it is we do know was why do that because i think we're in an era where people are pretty cynical about the government and there isn't caused perhaps that if people become too cynical will then they will have a bill and they won't understand that they are the government and they won't do it and who knows what'll happen but i can do my and it seems to be my biggest try to explain to people that is i could just i do my job i mean i have a little extra curricular here and the extracurricular can be trying to explain to people what we do and that's of course not as easy as it sounds want a people and this ain't it and the person i want to explain it to his a man or the woman who is going into

the supermarket and that woman i mean if you can because she has three children and barrett allman dinner has to be prepared there to jobs and the bills are up in here and they don't have time and i come along and try to make too big a speech thank you very much it really nice of you but i do have other things to do but suppose i could get her attention just were fairly short time maybe even a couple hours number a lot how do i get across the essence of what those all in my inspiration supreme court which is also europe's history and that's what the probability is and what i've done is i've taken to parts of that in my sort of take the easier part first is it's more interesting and that it's sort of like a spoonful of cure helps the medicine go down and then the second part is a little bit

more technical but in that i posed to questions that i think people might have about the court appointed first question all summer is a first for a little bit and i'll play with the second part i mean the first car really response to a question to see the question you have to ask the more fundamental question and that is this why should nine an elected people use nine jun why should they have the power to set aside a lot of congress people who are elected after all why the voters the past was how did we ever get the power to say that such a law or a law passed by the legislature in his state are in congress is unconstitutional now that is a question that really bothered by alexander hamilton in the founding i mean many people think of john marshall made this power up in a case called

barbara vs madison but he didn't he didn't i mean it was a well run a consensus of the framers thought that the court would have the power to strike down a wall of congress or in concord the constitution and in one of the federalist papers that was seventy eight a hamilton explains why he thinks it's a good idea in his explanation which all paraphrase imperative but his explanation is simply this he says with years of documents he says i worked on this document and madison on a few others have written a sling it's beautiful it's fabulous and he's absolutely right and it is that it is no question about that ms battle i know people will follow it if there's no one no group of people who'd been tried it the government of the country on the rails and that's what's in here to rails it's the borders it's the boundaries if there is no one can say when they go beyond the boundary when they get off the rails what then let's take his beautiful document and they're worried that it will

it will have any effect we'll hang it up in a museum it's beautiful lineup of the national gallery like he did not say that as there was no national gallery at that time but that you see the point he said it wouldn't be effective because somebody ought to have the authority to keep his government on rails the constitutional revolution that made what if he said that's the president and the president has the authority to say when anybody does anything cost issue unconstitutional then overcome the daughter because of the able to ratify his own actions old timey as too much power anyway not the present what what about congress congress after all it is why should they have about it is that that is a good question but the reason i think they shouldn't have that power is the following this is congress he says this because this document is designed to give the same

rights to the least popular people in the united states as it gives to the most popular people right say out here i didn't know congress well congress is an expert on popularity and if they did they wouldn't be where they are well on their convoy was what they lose popular but can we really expect they'll hold something unconstitutional when doing so is very unpopular protected their own wallets that after that was popular this is maybe sometime by how about those left ways is here we have over here these judges who are these judges he says i don't know that it was nobody's ever know this is not only the sort of gray bureaucrats

nobody's ever heard of them but they don't have the power of the purse and they don't have the powerless or one of their week and the job of interpreting the constitution is after all something of a legal job which i supposed to know something about so we'll give them a power unknown person's know perth no sword and sort of lawyers and the mayor's job well that's that was a good party and that means he didn't ask the next question is this next question about one asked i mean it is a voice so we know personally so that nobody's ever heard of them and if they're out there to do things that at least sometimes are very unpopular well when they do these

very unpopular things while anybody do what they say i mean that's the question its coffers question and rita poor you know in india the fourth inning comes after an all england our oh england hours a wolfman in shakespeare or wealth than our mistakes so the first thing that happens is oh england our says i can summon the spirits from the vast ed wells as oscar so good on the practical englishman so can i so can any man but will they come when you do go for them and that's the question now that is the question i get all the time i mean i do it today and i get it from judges in africa who've come from asia who come from latin america who come visit wanna see the court and one of the questions i'm bound to get it why do people want to sell because that's

the problem we're having i say i like to say it's because of the document and it is in part it is in part because it really is written in general terms with their specific enough to affect control and they can adapt over time in their values written into this document that we have today just as they have in the eighteenth century such a wonderfully written document but that's not the whole story but i can't answer your question without telling two stories because it's for the history that answers the question not a theory and not some words in the topic and emma thompson served on until about when the first the first after all first instance where the court a certain about certain about declare a law congress on constitution was in as i just said harvard versus madison which is what you know and john marshall that was a brilliant case because he was the houdini of the genitals us why the houdini of the judicial system or the case is

a little technical but it really involve whether a president united states thomas jefferson i had to give a commission to be a judge to a man called barbary who'd been appointed actually earlier by adams and jefferson didn't want to do it and not only did jefferson up not one to do it the jefferson didn't like john marshall all that much and he didn't want to do anything john marshall told him to do was a federalist and he was a republican or a democrat and he didn't really believe very much in the power of the supreme court so margaret rings his case to court and john marshall field's there and jefferson setting up the white house's thinking i haven't now because either he asked to decide for me in which case everything else that right or decide against name in which case i want to reset and i was absolutely his point he did not intend to do so and that would weaken the power of the core

series and strengthen the power of the presidency and john marshall knows so what'd houdini right he wrote an opinion that says jefferson is completely war memory is right generous unless given the commission that actually we don't have the power to tell tourists and to do that because there's a statute here that gives us power to do that that statute is contrary to the constitution of the united states and we have to follow the constitution and overturn the statute you figured out why i think that you know when you get through that that that was all that i know you will see that he has done a brilliant that he has said we have all the power in the world we can in fact acquire laws of congress on constitutional journalism was totally wrong but jefferson because of the first thing you'd have the power we can say the second which is so we can say that was just like your introduction with jefferson what can you

do about it you won the base of the tribe and he's furious and read some of things he wrote later his models or wrong in that case and sort of sputtering it rides that the sum of his allies and that he's furious is the power is asserted there and but you see what morra my point really is that the john marshall was working and he's worried about whether the country will follow the court and doesn't have to worry about and that gets and he had plenty to work i like to tell my students on and i like to tell audiences students about another case that came up in eighteen thirty four that was a case in which a lot of her that was a case in which the cherokee indians had been given by treaty by about two or three treaties land in northern georgia it was there is that was not a close question it belonged to them and the cherokee tribe given up hunting and fishing they become farmers

they have an alphabet nevada constitution and they had a great chichi ross and everything was fine except they had one more thing which work to their disadvantage in that as they can go because as soon as they found no the georgians said why don't see why they should have their unions were georgians will take it and that's just what they do in a couple of other charities been a civilized people did what any civilized group of people would do they hired a lawyer and they hire one of the best sellers of the day willard were and he brought the case and after a lot of complication they got to the supreme court and when he finally got a court to decide it well the court said what the water was which is this land belongs to the charities it does not belong the georgians and then the president of the united states andrew jackson made a comment which is supposedly made a comment about which may trigger an element in your mind and that is he supposedly said john marshall has made his decision now let him enforce

and andrew jackson sent federal troops to georgia but now who enforce a ruling at the supreme court he sent troops to leave at the end and they were attacked and they traveled the trail of figures so called because so many died along the way oklahoma where their descendants with that is that this is not a happy day in the supreme court lawyer and it looks as if the skeptics may win out well we can go forward i mean a lot happens in a country and a lot happens in court but i like to tell the story of a case that took place about a hundred and forty years later and i think this is an important things are improving but it's fucking go in these very unpopular not i will know about brown vs board of education in nineteen fifty four where the court looks at the fourteenth amendment and it says the fourteenth amendment says there will be equal protection law and all you have to do was look around and andy reuters for a while

and that he got was there for the nineteen hundred but everyone's of fifty years two thousand and four the fiftieth anniversary i mean that's really started that case went there and robert ford education of topeka and the court said these words mean what they say that legal segregation is not equal and parsley and use open your eyes at that time when you understood that and they said there will be any more legal segregation in schooling in education in the united states i think they said in nineteen fifty four and what happened in nineteen fifty five the bureau of them i mean next to nothing very very little and what happened in nineteen fifty six i mean nothing i mean next to nothing very little but then in nineteen fifty seven early in nineteen fifty seven a federal judge in little rock and

some of you will remember this is is is i can't set at central high school or white will integrate and the ones who went there had been picked by the end the blaze tv either the little rock nine and those are very brave children said yes we'll go and the judge ordered that they go there in the september nineteen fifty seven and at that point governor thousand some of those open spoken remember would been elected as a moderate began to say well i'm not so sure i'm going to permit and he said well you know i have stage cruz and that the judge has forty years he's a job that i have a militia and indeed during that summer the governor of georgia and come in and so i don't see why the citizens of arkansas actually integrate when my citizens don't have to integrate into and thank you very much for that helpful mark and there were a lot of white citizens council members would come to the

school and there were crowds surrounding the school and the governor faubus gave you order the black children in the school and on a day that integration was to take place they came out there and they were turned away and one of those first few days of elizabeth eckford turned around to try to get in cheek turnaround underway out photographers photographers there from all of the world of the job or snap a picture of her looking very good for the behind her was a white woman oh face contorted with rage and that picture went around the world and that was not a happy story of what the united states was an of america was about and what it was like at that time well things vault as if they were not working out and then doug rubs hayes who was the congressman from mo little rock fall president eisenhower was at newport and he agreed to me

but with governor governor from there eisenhower who came out he said that what we did was use that eisenhower today president eisenhower addressed me down like that like a general dressed as tom sergeant and he told eisenhower that he would let immigration go forward to be doled out to multiple press the office i was a criminal and the question was a what you need it which you did and he got conflicting advice jere burns who had been a member of the supreme court had resigned in world war two runs more mobilization effort he was a great friend of president truman he was a moderate on race and it was that at that point governor of south carolina and he came to see eisenhower and he said ought to eisenhower mr president if you wanna send troops to arkansas all you said you better be

prepared to reoccupy the entire summer he said you'll have to have a second reconstruction are you ready for that he said the best that the law is that it you will find they close the schools and know what he would educate at the same time however kerber brownell who was a very close counselor was attorney general very close to president eisenhower and eisenhower had been done a good job of implementing president truman's order integrating the armed forces he was not against it i believe my religion is that he was not against immigration i think he was for that judgment the confused or eisenhower told him to legalize now rhino you happens it happens as eisenhower at that moment the songs and he went on the radio and he said that he had decided to send troops and in particular he would send a hundred and first airborne every

american ally that time just about new hundred first airborne was hundred first airborne really heroes of normandy that parachuted into normandy a lot of them have gotten hung up on the steeples are they just been shot down by the germans with the machine guns and again they were the heroes of the battle of the bulge and he knew what he was doing eisenhower he picked them deliberately and he put out for that reason i put a thousand marchers characters on the airplanes and flew them into little rock and they got off the airplane and the next day this sort of those black children into that white school but that was a great that was a great day for the rule of law it was a great day for the cause of the quality of it was a great day for the united states of america as those pictures went around the world but like in the story that doesn't i mean what happened next is that the eu they can stay forever if they left after wall hundred

first terrible things are not so nice about school for those black students really were and i was a segregationist school board is a lot that's good relations board asked the court to change its order and let them do in the next year or the year after we don't know when and i mean and that case went back up to the supreme court and that's the case of google vs air and we came in over the summer of nineteen fifty eight the court decided they would deal with this immediately and they had a special here and they decided to write an opinion and that opinion said now no you do not stop denigrating you will go forward with that integration right now continue and people are going to do this and that's the end of it and we all agree that brown's right and that's the end of it and we sign this all nine which is very unusual that nine members the court will sign an

opinion usually one does and they want to do that to show how they all agree which is a very good thing i think it's a great case however there are still non jobs and you could have had nine egypt or nine hundred or maybe nine thousand jobs because the day after the supreme court decided that case of cooper vs air and in the way i just told you governor faubus closed schools and so the law school was closed for the rest of the you know i was educated and to read the future of those children in the school it was a good article in sports illustrated about it not too long ago and their books about it and david margolick just wrote a book about elizabeth eckford not white woman who was named hazel bryan and that story is in a very interesting story i mean she was showing off sorry to ever get back together can never can connect with possible that the debt's another story very impressed and what happened to the

children in those schools white as well as black was very tough during that year but you see i'm an optimist but i'm also a judge so i like to think those paratroopers that negative and i see what happens there that by the end of that year is the community said no we're not putting up with his close letting more and they brought in another school board in an ad school board was a moderate school boards and they said were reopening the school and at the same time in that nineteen fifty a period you began to see martin luther king you saw the freedom riders you saw the sit ins and having a little bit of a fact and it was all communities huge we all know what happened well that judge's order matter then president eisenhower is sending those troops in matter i think some of course on prejudice but of course i think that that was a major step in a certain

removal look at how complicated but thank goodness the country when people will say i love that story in parkas wool the ambiguities of the uncertainties and you don't know exactly what caused was that it ended up all right not i like to tell that story there was a you know a parachute a parachute general from mo rocca who came to work or it didn't work or because the state department called up and said we have this russian character general would be in charge of point missiles and used a point in the united states now they change direction and we should be nice to this man good point and says so he asked me what was my wife some of my favorite cases and i told them about this when just as i told you and i know and i said you know that shows that the judges and the paratroopers most different crops is some point there's some cool j one more guess you take your favorite thing i think are these things that is an example you

want your least favorite from fairly recent years what you want abortion prayer in schools what about what your that's a very odd that i was a and the decision that well well i've heard and that five four days discussing about harry reid i suspect as someone whom perhaps like me thinks that was a very important and as all things it was unpopular and it wasn't proper word at least half the country and derek i think it was hollow which is what were the store but he said despite that the most remarkable feature of that case is something that is very rarely remote and that is despite the fact it's important on popular and ran the country went along there were no riots in the streets there were no machine guns there were no people killing each other there were no stones and six and so forth

wrong and that's a tragedy like oh let's hear it depends on the audience the percentage but i know that a certain percentage of you perhaps are some audiences of what they're thinking when i say that i say there were riots and so forth they're saying add to that there were a few so i say ok i understand that i understand that but before you reach that conclusion definitely i like you just turn on a television set and take a look at what happens in countries that decided they're really serious differences in on the streets with guns violence instead of in the courtroom and then migrated around understanding why i see what i see sitting in my court i marvel out at the day exactly as i did when i was first appointed seventeen years ago how would i see in front of me a mac or revised to people that

race every religion every point of view and there they are there points of you know my mother used to say that she didn't you tell actions interesting she said that to her for a cousin says hell's burger king kansas city or when you should come out to san francisco from all the discussions and she'd say you know there is no viewpoint so crazy there isn't someone in this country there's an old adage and then since more intensive as you say although the most answers but none that nonetheless you see the body it's true and with three hundred and nine million people in a hundred million opinions i mean it's not so easy to get people to live together and resolve their differences through interpretations of this document through the document and we're of course judges being human beings

wasn't it wrong in those unpopular decisions that matter or to people and so that's what i'm doing for sports when there is a big commercial it's a commercial it's a commercial for teachers it's a commercial for high schools it's a commercial that says please justice sandra o'connor has been set will view with the same obligation on the hell teach something about the government of the united states to those next generations who threaten to grow up a little too cynical market as if they don't know how the government works that they don't know what these documents about if they don't know what we do in the court and those other institutions up there really do and what's the point of electing people to another document you know make a few decisions as the boundaries but leaving almost all decisions up to people to decide their

elected representatives if they don't know let women won't happen that's like a license and i said i can't tell you what the lead you wouldn't any intention of our product but i can i mean i think their hope you know that some of the malaysian i hope you have a good job i hope you participate in your communities life and i can't wait until i can hear sneaking center i can't say that my work of this doctor convinces me that the people who wrote think that if you do not participate in your life is the world and i do think the jungle on endlessly on this commercial because i believe very strongly and it's one of four people who lived for oscar for for people who are living in a community where they have school boards that we have a curriculum were trying to raise the next one or not

my dream job and you see the various all but that's the point ninety one to another question which understand about seven because movie people though i want them to see this fall and the need to hal education brought up as corny with your grandchildren do you have grandchildren you're you know that i i mean i can go and make statements about my grandchildren to see them on cloud nine years old thompson singing the star spangled banner to accept that and i find that very interesting you find your grandchildren or you see the point but there's a second question and the second question is to buy aspirin quite honest and i'll tell you that the supreme court of the united states the nine of us were not as divided as you think were probably unanimous and forty percent of our decisions we're probably five four on maybe twenty

twenty five percent it isn't always the same five and the same four annual say ah but those fights or we sort of break down and somewhat predictable way so as respected that they're awfully important ones and why'd you break down this wet and the question is really what's worse the back of people's mind what is this job more so we know it gets its politics what you really are doing is deciding things on the basis of pop which you really are are sort of nine junior varsity politicians i mean let's face it i know you're thinking there some are closed and then i say no that isn't true that is untrue that is introducing actions as a venue for a similar politics noting politics i didn't work as it is as you heard i worked for senator kennedy for a few years in my teaching

career i was in for that senate staff and politics in america called real politicians wasn't me i mean that's who is popular and who isn't popular and whereabouts and are you a republican or democrat i don't find that the court zero zero usual what about which he got it in our body weight is that the world would be an exception but the biggest but regardless i don't want politics in that sense in the court and you say oh no i don't really mean politics in that sense i mean media at all and that's the ideology this free enterprise type the maoists trouble making those if i can that i'm reaching a decision because i think it sort of generally go in that sense of them consistent with that at all and

you like adam smith of the officer whenever i'm gone wrong there that isn't there are well well then why are you can't say i'm totally wrong that you took i know i can't sell so this there is this something close it's not ideology he grew up in san francisco i did your lawyers will probably cause you i did go to stanford did not have a light in the fifties and of course negative in different of a grownup and some other generation but all of us by the time we reached middle age or later whatever will really begin to formulate views about our discipline are perfect in our career and it was our own experience and those views we've been called a philosophy but that it's pretty hard it's pretty abstract but it's pretty hard to change because in in my particular professions you begin to develop views of what was about and what the

country's about and how law including the pardon the constitution relates to ordinary people you have to live under the law and has it affected by my own background probably probably as well and yet we didn't know i don't think you can jump out of your own skin and i don't think his show at that level of that struck at that level now and so what my goodness people have different than the sort of i mean these are approaches very varied in general and so forth i say oh that's true so i so you know i've had differences with people in a town different points of view in san francisco have a lot of life in massachusetts i found there were differences but i didn't know a difference was joy in to washington was a part of the supreme court my first reaction was it's true that everybody does something quite late and then my second more mature reaction was just what we've been talking about it's a

big country they're three hundred nine million people are people of different points of view and it is not a practical way if among nine people on the supreme court they sort of come from different places and they will go into overtime as long as different presidents appoint different people and the president by the way appointed judge and they think he's argument always going to decide in favor of the president's point of view they're making a big mistake i mean that teddy roosevelt appointed and oliver wendell holmes and within three months holmes had come out of the senate began to trust case that roosevelt was very interested in and roosevelt said i could appoint a judge with more backbone carved out of a banana it was really annoyed and so on all of that if you're thinking of presidents trying to appoint a person who isn't somehow a weak general well oh thanks very consistently with our highly general was a warlock nine hundred percent luck god they get big surprise but they'll have more luck and that means that over long periods of time since we have life

tenure that was jefferson's complain about the supreme court was like ten years and the problem the supreme court is they never retire and they very rarely done as well is that so easy you'll get the sort of a nixon that isn't such a terrible thing but i want to do more than that i want to explain in this second part what this or general approach is i don't want to call it was the approach as sort of better and i want to say one word can do you can't possibly the politics was one in hamilton remember when us this power of clothes nine people so they would do things that were unpopular if they're supposed to do with political bang give the power to congress there are these real politicians and anything one of the worst things the judge is acting as politicians are terrible politicians they don't know what to do politically and what evidence of aca look at the great scott decision the best thing you could ever be said ferjani which isn't much is that he was trying to buy the dred scott decision to stop a civil war

and that's what he sort of start i mean he had just the opposite effect has been apple's lincoln picked up the scent in that case and that they spoke about the cooper union speech and that helped make him head of the republican party and that helped lead to the abolishing slavery but german politicians singer regina was it originals i don't know i mean among my colleagues he knows philly is very strong advocate of that we get on very well the court gets on very well personally don't like each other personally and that we do i've never heard a voice raised in anger in a conference room in the years i've been there never i've never heard one member of the court say something insulting about another not even as a joke really not i made for his wife not publicly not in night in the courtyard in the competition but there are but they're so we get

on with their differences and so to look at this is the original isn't a good candidate for an approach what we debate that we did make that publicly and his point of view which is not a foolish pointed is that that that you needed to look back to the framers in the song that in detail because by doing that will answer a lot of constitutional questions with our referring to what he fears is the judge is subjective judgment duets what he's afraid of the judges will start substituting what each of them thinks is good for what the losses and when i say to him as we get as we discuss this i say you know that foot remark all say i'm sorry that's a wonderful idea of you know george washington didn't actually know about the internet now and does so he says oh that's really clever i didn't and he says that isn't the point the point is that you said that that of course you can't always find it and then he tells a joke which is a big jugs of repeated ed tells

a joke about two campers who were out there and was putting on his running shoes knows is why putting on your running shoes and this is because as a bear coming out recently you can't outrun a berry says yes you are so so so is boy it is you see the boy is in trying to come up with something that our cats would you have and at what is white is some reform well our job that constitutional or is to take the values that dont change that underlie these different provisions in on free speech or free expression get an idea what that is that doesn't change much but rejecting values that are here in the document and you're trying to pluck them two world it changes every five minutes and in in airplanes television internet computers

twitter facebook and then we go on from there things out no idea what the names but but but nonetheless that's the jaw so one idea that i so i found a very good very good statement and gordon wood's book about america in the eighteenth century and during the revolutionary period and one of the things you forgive or even historic vote in that book is a connecticut judge says the americans says the american system of constitute of bell as he describes it with four words he says its prudence pragmatism reasonableness and utility last ally they would sew for are still of the bumper sticker can we get beyond that we get a little more deeply honestly authentically plan i think you can say that those four words is your appointment is at one thing here is that it's an approach that takes values will values well the documents show them that's really get them nice and you try to get those values then you try to apply that it's an approach that purpose in its purpose

that is when i have a statute the first thing i look for is as someone in congress who wrote these words what did that person have in mind what are they trying to do that when i can figure that out and sometimes you can sometimes you can do your best and you try to use that in order to get the right interpretation on values in the constitution try to use the drug users purpose oh it's an approach that sees the different branches of government and the states and federal government not as each other's throats old now it is trying to work together oddly enough so that you will facilitate the working of other parts of the government so that the constitution as a whole does work and it is an approach that is pragmatic in the following sense that many of our cases the most difficult war are not about right versus role they are about right versus right you have on the one side

an answer that will further values of free expression protected by the first amendment and maybe they're competing with personal privacy that was always an issue with this terribly difficult case in the last year are involving us some demonstrators who are out demonstrating at the funeral of a way a veteran of akron and that was a tough one sen there there there is room there for political pragmatic balancing all the values of our nation when the gates you say still were not much beyond the bumper sticker or to get beyond that and yet i have to give examples and i can't get into now because to take to encourage you to read it do i have time for long three minutes are not yet spoken here here's a really felt when i put them in forms of the court for working with citicorp working with congress that's statutory interpretation

the court working with the bureaucracies in the federal government that so called administrative law which iowa with three other people like because we don't a bevy of working with the states that's called suburbs of working with passports at gold star to science news and updates and one of them is one of the most interesting most of his court work with the president when the president is acting with the full authority of the constitution in an area that the constitution makes the court had very little to do with what's called national security is the president in congress about the national security pact and they're the ones we know about but the exercise of that power tends to cut off a traditional civil liberty which after all as written in this document is an area where the corps

has tremendous responsibility now and those things can collect where do you go now none of the things i say have clear answers i mean they're just approaches but i'd say we learn something from a couple of examples one rifle i've learned something happened in world war two and that was where rub my mother to like remember driving me down camper and by transfer and racetrack in san francisco and probably the late forties and she said that's where they all the japanese in world war two and the voice of approval was not there in that voice i mean the book they didn't want to do it was that in general the weight was the governor of the presidio in san francisco and his ex army is the head of the sec's army and he said and president roosevelt a great the spring of nineteen forty two seven hundred thousand seventy thousand citizens of

japanese origin and eight percent to camps for two or three years in eastern california and in the interim our region against their will citizens of the united states owen covered with said is a san francisco on the west coast to california were frightened to be an invasion and indeed they were i can remember the black culture that they were from and he said well we can sort out who's who there's been signaling to submarines those seven hundred and ninety three instances of something and there's been instances its advertising only safe thing to do is to get them all it was against that absolutely very surprising j edgar hoover not a noticeable look prettier but he said no you don't have to do this it is a big mistake i don't do it and the person for governor warned carol more aggressively later said it was one or sleazy ever get ahead and there were pros and cons but they get it

not the case gates of the court in nineteen forty kids who most for the japanese families were mussa don't rock the boat and we just do it in one and in a light bulb over there were concerns but one of them fred cora matson says no one can approach us is i mean i never read for much about five years ago three total he happens to be at the house of my neighbor next door in cambridge the neighbors there was the daughter of a man called as a burning desert used to play poker with my father and it was the head of the aclu chapter in northern california now he defended he defended corey watson and by the way the head of the aclu wouldn't i didn't help a year later when the supreme court initially they wouldn't get them corum much as i'm not doing every year that really doesn't represent cities and korey bring reform of this is great these stories in which he says is no basis for that you get is that sending thousands of law about the

case comes up to the supreme court in nineteen forty four long after any danger is past and all oracle's six to three certainly a decision that has been much described that nobody thinks is good law but the people who wrote that otherwise law supported by frank shorter the same moral majority and brown why did they do this is they really didn't know that was it reading in the justice department for that case came up there are two lawyers to lawyers burling in anniston they got suspicious of this whole thing and they simply mean seven hundred ninety three instances of signaling in separate let's call him the fcc the federal communications commission they say look it up and you look it up and so does the fbi and they come back two weeks later and the fcc has a bunch of papers like that they said it wasn't one instance of saying now says

all the private now out of work he says what will it just so quickly we didn't do it quickly they said this was done in nineteen forty two and do we knew it back with them same will sell savings now they say we're not signing the brief them the big negotiation that the justice department eventually herbert wechsler who is assistant attorney general for war writes a compromise footnote which is so obscure were nobody can understand it must read it with a microscope so they signed onto the brief a brief goes to the supreme court but the supreme court new about that footnote as charley horse was representing the japanese american defense league sestak or lead that what no we knew we got to put out what it means is there is no word of truth in the things that would have been set and reddit but still six different

opinions in my own beliefs a bible when murphy wrote a dissent i think that was working abuse elder abuse a very good judge in this case something that he just went through chapter and verse bit by bit by bit by bit and so there's no reason for doing this is an outrage and so it's very very very calm but very definite rights reserved why my own belief which i can't prove is what they're sitting there thinking is maybe their rightness that maybe the japanese are up but somebody has to run this war that's either us or to roseville and weekend soldiers who see i call an avocation we can understand if we can understand why they did it but it is a challenge if we're not going to abdicate how do we not get at what is it not to advocate that responsibility at a time of real national security emergency various republican

congress is i bring in the four guantanamo cases and the four guantanamo cases each were cases brought by a person who was a detainee and these were not the most popular people in the united states i mean one has been one show for i don't think he's going to win a popularity bras and in each instance the court decided for the detainees and against the defendant in those cases it was the president bush's most power probably the most powerful person on the court decided in favor of the detainee habeas corpus on on what kind of hearing they have to happen for you can detain them on a number of different things that would you read those opinions i've tried write enough to get an idea what they're like they're not satisfactory the civil libertarians criticize them because they say we didn't go very far you just said well guantanamo as part of the united states but what about a base in europe and have a base in europe

what about a base over in afghanistan and what about american base somewhere else you get say anything about that we talk about guantanamo what's the principle here that you talk about a fair hearing just a tap of an impartial decision maker and you have to have approved an argument presented what about ten years a rule what about this other thing he didn't say anything about that on the other hand the others are criticizing if you've really cut the president off inability to protect america but nobody likes i wonder why because i think immediately shows something for president purposes but what the court is trying to do is maintain some kind of check on the president when he acts in the area that is most his responsibility and when people says jackson said this constitution is not a suicide pact is right at the same time justice o'connor wrote a good opinion is one of those four she says that doesn't mean you have a blank check mr president

you have to watch what you're doing in terms of the civil liberties so we have a kind of messy compromise here between two different approaches two different sets of constitutional responsibility that coming into conflict and of course the reason i'll write about that is i want you to see what can happen to a way wonder what went up and what you can sometimes get a decision that may not be totally satisfactory but nonetheless represents an effort to create a governing principles anyway i give you an idea of how i'm going about trying to answer a couple of difficult questions but overall what i wanna do is i'd love if people look at this or hear about that you hear about a sometimes idle audiences sometimes have even been on television you say you're trying to sell your book on television i say no i wrote the book so i can be on television and again the reason is the zone to get this point across iowa to get

the point across that how strongly i believe it and i'm from people in different branches anyone in public life but also anyone who participates in community understands the importance of getting across to those next generation's what would you say you say that you have to understand your garden you have to know a little bit of our history and you have to be willing to participate in our community life you've just heard stephen bryer for associates justice of the us supreme court's prior spoke at the kansas city public library on december eighth two thousand eleven this event was co sponsored by the truman presidential library and museum and recorded by kansas public radio's state house bureau chief stephen koranda i'm kate mcintyre if you have comments or questions about this k pr present drop me a line my address is kate mcintyre at k u that edu that's k m c i n t y r e at k u that edu

or leave your comments on k pr is facebook page kbr present is a production of kansas public radio at the university of kansas