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Former Justice Stephen Breyer weighs in on SCOTUS term limits

Mar 30, 2024
Partisanship sometimes matters, there are also shared principles that help maintain this extraordinary democracy and make us one people under the rule of law. It's kind of a miracle when you sit there and see all those people in front of you, people who are so different in what they do. they think and yet they have decided to help resolve their major differences under the law and when students get too cynical I tell them to go see what happens in countries that don't do that and that's what I can't stand. The people at my work have come to accept this Constitution and have come to accept the importance of the rule of law.
former justice stephen breyer weighs in on scotus term limits
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United States Supreme Court Justice Steven Brier said about the importance of the rule of law. Judge Brier, who was nominated to the court by the president. In 1994, Clinton held office for 28 years before resigning in 2022. She is now out with a new book titled Reading the Constitution Why I Chose Pragmatism Over Textualism and


U.S. Supreme Court Justice Steph Brier , joins us right now here on Morning Joe. Good to have you, Mr. Justice Brier, thank you very much for being here. Tell us why this book is so important. At this moment in the history of the United States.
former justice stephen breyer weighs in on scotus term limits

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former justice stephen breyer weighs in on scotus term limits...

I think it's important because a lot of Americans are arguing about the court. Some approve and many do not. They approve of what he's been doing recently and then they have reasons as to why they think he's doing what they don't like, one of them is that they think it's political and I don't think it is. I think it plays a very minor role in politics, at least politics is normally understood, others think they just like to do it this way or that way, and that's not a very good explanation now that I've been in it for 40 years. bench and I have had 28 on the Supreme Court.
former justice stephen breyer weighs in on scotus term limits
I've become more or less accustomed to the basic work of taking words in a statute or in the Constitution, words typically that are not self-explanatory, and deciding how they apply in the case or what they mean now. I think what's changed the last decade in the last few years is a method of deciding that's become very popular and it's called textualism and it's so attractive that it says all you do is read the words, just read the words and do what they say and this will be simple and clear. and will prevent judges from deciding what they think is good instead of the law.
former justice stephen breyer weighs in on scotus term limits
Very well, many believe that I don't, and there is another more traditional way of looking at those words and that is that someone wrote them, what their purpose was, what their consequences are. How do they fit within the values ​​underlying this document? I still have it in the United States Constitution and will these interpretations last to the point of improving the lives of people in the United States? That is what I call pragmatism, but it is much more complex than that and that is why I want to explain to people what I have seen, not as a professor, not as a theory, those professors do know those theories, but I have had some experience that they have not had and that is the experience I want. from where I want to write to you about this case, that case, the other case and why it fits into a pattern and why I think that instead of just blaming politics, lawyers and non-lawyers in the United States and others should wake up in my opinion. to what is happening with what sounds tremendously academic and is not because it de


ines how those cases will come to light and affect men and women in the United States.
You know it's an extraordinarily important book right now, especially as you said, for people, for Americans. that look at the Court's decisions says well, it's just political, yeah, you can look at the makeup of any Court you can look at, you know, I'm not surprised by two so Clarence Thomas so Kavanaugh so Justice Kavanaugh, what have been saying for most of their lives and I think it raises an important point if we are going to have this debate and understand what really drives it. Yes, sometimes politics enters hearts and minds. of men and they try, but this is the battle that must be won, isn't it?, it is the intellectual battle that must be won, it is a battle that must be won and I believe that, uh, it is not the judges that you appoint or others judges are just sitting there thinking, well, I have a different point of view if we're interested in my opinion of running, not risking certain dangers to the Republic that the founders established, we don't want to run. those risks and therefore I believe that the path that not many people outside the Judiciary will see but I see it and I want to explain it the path called textualism is something that should be avoided simple simple I will tell you something that I just read an opinion I just read an opinion that was 63 pages sent 30 pages on each side and you know what it was about, what word and what it meant, yes, and there are others like that and if you think they are simple, if you think about the cases in the Supreme Court in the language are simple, so you can just read them and see what they mean.
I have a bridge in New York to sell you


. You are defending pragmatism in the law and in the reading of the law and in In court he was surrounded by many judges who were very originalists. How did you balance your beliefs and theirs, and what is the right balance between textualism and pragmatism? It's a very good question because it's a question that Justice Nino Scalia, who was a good friend of mine, and I debated and debated, usually before students who went to LC Texas. I think there were about a thousand students there. I was surprised that they should have thought it was a basketball game, but the uh uh and We talked about it and, because he is very textualist, it is written that we are to follow the words basically and nothing more, and um, I would tell him that You know that life changes and the values ​​that are in the Constitution must be adopted.
So I said, "You know, he's a very smart guy and very funny and funny. So I said George Washington didn't know anything about the Internet and he said I knew what he said, but the problem between your system is like the two campers I said. , What are they". the two campers and he said uh one sees the other putting on some running shoes why is there a bear in the camp a bear in the camp you can't run faster than a bear yes, he says, but I can run faster than you and that is what Scalia says, Stephen says, you have a system and you draw a system because this system has been around since John Marshall since the founders.
I didn't invent it, but he says, it's too complicated, you're the only one who can work it and I say. Nino, I don't think that's the case, but if it were, you would have a system that will produce a constitution and a set of laws that no one will want, as Brier as you know, this country is on the verge of something historic happening on the court and a lot of people You don't pay attention to the court every day, but a lot of influential people certainly do and there's an element called pace of play and I would use that phrase to describe what might be happening here on the court.
In court we had Nixon and the Watergate documents, uh, we had Bush Gore, those decisions came out of the court pretty quickly in


s of the Court's usual pace, but now the court seems to be slowing things down, slowing things down. and slowing things down. There is some rational explanation for the amount of time it takes to make these decisions. Well, I don't have the experience that you describe, I mean, at 28 years old, he's much more mechanical in the sense of taking cases or not than you are. I just described my experience: when a case is ready, it gets there.
Why do we take a case? We take a case because typically different judges, Lower Court judges in different places have reached different conclusions on the same issue of federal law. I can give you an example of a federal question that might be do you want an example yes, okay, this is not it. I won't give you an American example. I'll give you a French example because I read it in a French newspaper. Okay and I'm teaching the fifth. grade and I say, look at this example, where a biology teacher travels from, not to Paris, to meet his class with a basket and in that basket there are 20 live snails, the driver shows up, what's in the basket, he shows him , do you have a ticket for? the snails he says I need a ticket for the snails that's ridiculous you read the book it just says that there are no animals on the train except in a basket and if that's true it's half fair that it applies to cats which are dogs maybe a rabbit certainly not a snail, do you think? a mosquito, well, how ridiculous, he says, it's a snail, an animal, aha, mhm, and I told the fifth grade class that they think they have to pay for the fair or they don't have to pay for the fair, and before you know it, they're fighting with each other like crazy what happens with a scorpion?
What about what an animal is like? Well, now I say that you understand the work of appealing to the judge. It may not be a snail, it may be bare arms, but that's the job and the question is how. you carry it out and when mechanically the rules of procedure when that case is before us and we decide to take it four votes will take it, then they start writing reports about who the parties are, the government, the father of this party, the friends of that party and they are all called writings, they are small documents, do you know why they are called writings?
Because they're not, yeah, exactly, that's the shortest thing I've ever seen, we read them and then we have an oral argument. then we go to the conference, we discuss it, no one else is there and people say what they think and don't say, as you have already learned, haha. I have a better argument than you that will get you nowhere. Listen, that's what Senator Kennedy told me. The other staff members when I work there in the Senate listen to what people who disagree with you say and when they listen and discuss sometimes they find an agreement, some agreement that we can work with and we will work with that and try to get closer him. an agreement or commitment and then we go out, the bosses assign and we write an opinion and we circulate it when it is ready and people can add if they want to concurr is demotions and finally everyone is exhausted or written and they finished and the opinion comes out that's it and no there is nonsense with dates very little very little can never be said about anything but very very little is done in such a mechanical way

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