Justice Stephen Breyer, in His Own Words

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S1: This ad free podcast is part of your Slate plus membership.

S2: Hi, and welcome to this special bonus episode of Amicus. This is for our Slate plus members only. I’m Dahlia Lithwick. This past week, I got a chance to talk to you, Justice Stephen Breyer of the United States Supreme Court, as a part of Slate’s Big 80 over 80 package. You can take a look at that whole feature at Slate Dotcom, 80 over 80. So this conversation with Justice Breyer was not about doctrine or current events or what’s happening at the Supreme Court. It was instead a deeply fun and funny, wide ranging conversation with the eldest justice currently sitting at the court about life, his life during covid lessons he’s learned aging, the value of lists, good TV and witnessing shifts in the court over decades.

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S3: Enjoy. I know I did so.

S1: So I think one of the reasons we’re doing this 80 over 80 is just because of the youth obsessed 30 under 30s and 17 under Seventeen’s.

S4: And good idea. Good idea.

S1: Exactly. So we’re trending in the other direction. But I wonder if just before we start, if you have any thoughts on the ways in which may be covered, has illuminated or surfaced some of the strangeness we have in our country, in our culture about people over the age of 70?

S5: Well, actually, it’s helped. It’s helped here because we have staying with us in Cambridge where we are, we have three grandchildren, my daughter and a very nice au pair. And so we’ve been together for since last March. And what he does is maybe the grandchildren learn a little bit more about their grandparents. And I hate to say it, but the grandparents begin to learn even the grandchildren aren’t perfect. You know, they all get along. They all get along. And sometimes we learn something from each other. And if they start talking about some modern rap singer, I will bring back Frank Sinatra and Cole Porter and they listen to it. Oh, really? That’s interesting and real. And so there is something of both generations.

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S1: I love that. So you’re saying in some ways we’re almost living the way we used to, you know, centuries ago when families were more piled up on each other and more proximate to each other?

S5: Yes. Yes. And there are pluses and minuses. I mean, you can get cabin fever and at the same time you begin to have to appreciate each other. And so you do go back where I say something or I say actually during the Middle Ages, when I grew up, you know, and sometimes they’ll listen, sometimes not.

S1: Are you using covered the way my parents, I think, are exactly your age and they are using it for this renaissance of zooming into lectures and, you know, concerts like they are really having a kind of weird lock down renaissance science of going all sorts of places they might not have gone. Is that your experience or are you just too busy somewhere?

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S5: But the thing that makes that difficult is that we’re doing our normal court work. In fact, covid cases come along and there are a few more of them that we have to decide quickly. And so we’re all communicating. We have a telephone that’s secure and we do our oral arguments and we listen to them and people have to listen harder and more direct in their questioning and listen to each other. That’s all good. But that takes time. All of that takes time. And we have to write opinions. And so I have some time to watch television, which I would otherwise do. We’re into the second season of MASH here.

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S4: You realize it’s very good. It’s very good how it holds up over time.

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S5: Yes, it does. Oh, job. I mean, that’s what I think the world is.

S1: I mean, I wonder if you would talk a little bit about I am noticing Justice Breyer and I am fifty two. I am noticing that I have to write things down like I’m getting old. And yesterday in the middle of a radio interview, I forgot a word and I was wondering if and I think covered, by the way, is a big part of that. I think there’s something that happens to your brain when you’re alone for or just with your noisy teenagers. Do does the way you are working now. I know you’re remote, but the actual day to day way you’re working now, has it changed?

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S5: Both over the years and particularly in covid, of course, Kopitar no Kofu, if I am going to be involved in the cooking process for a week, I write the menus down on the perpetrator and I put them up with a piece of Scotch tape and then I sort of try to stick to them because I think it’s a good combination. And if I’m going to write something else I was just doing, I will you a piece of paper here. I’ll I’ll write down my outline and I’ll I’ll go back and I hate to tell you, but this. But this is is the number of things I’m going to do today where we are going to call Amazon to worry about Christmas presents. I’m going to buy some Wine Stoppers for my wife’s stocking and I’m better off writing those down. And she said she doesn’t like writing them down.

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S4: But have you always been a writer, Downer? I mean, this is. Oh, but my mother was so. Yeah.

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S1: No other other ways that your. Work has changed, I know technology inflects on that, but do you use books still do you still look things up in books or you’re online whizzing away?

S5: I do, but I might you know, I might look them up. Now, that has it has moved me more to the Internet. I just wanted to copy something from that particular statue to see exactly what it said. So I just went to Google and put in the statute and there I have it and I can read it. And so I don’t know that’s helpful. If I want to know what somebody said in a particular case, I can go look it up at. Cornell has a great website and I can get the actual words of the sounds and so forth. Jordie and I do that more. That’s true.

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S1: But that’s not your memory. That’s just technology, right? That that spring, you know, that is technology.

S5: But I remember those years ago I worked for Senator Kennedy and the Judiciary Committee and he would say on something not because of that was just you stop, oh, get the Rove. And everybody said, what’s he talking about? I’ve discovered that I sympathize more and more with that approach. I’ll say to my law clerks, I know there is a case there on such and such. Please go and find it. Or I know so-and-so has written something, whether it was an article or a book, and I can’t tell you exactly what it is, but it’s generally and then libraries great. I find it.

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S1: So it’s not that you’re wrong. You’re right. It’s there. They just have to try.

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S5: I quickly forget the times I’m wrong.

S1: It just is fair. I’m going to ask you my only slightly politically balanced question, if I may, which is I’m always super interested in the studies that show, by and large, judges and justices over time, over decades in their career drift to the political left. There’s much less, I think at least the political scientists say, much less of a drift to the right. And I’m thinking a little bit also of the sort of machinery of death, you know, that I’ve done too many of these and I can’t do them any more. Do you have a theory of the case or is this just too political for you to answer? Or is there something about being a judge for decades and decades that I don’t want to use the word mellows people because I don’t think it’s a mellowness question, but tends to to change. Yes. Does age change the way you look at the world as a judge? That’s my question.

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S5: Yeah. Yeah. I mean, I think you you tend to look at things more generally or you tend to look from thirty thousand feet so more often than you did. On the other hand, this great wisdom you’re supposed to require over time does quite often express itself in something that sounds as if it came out of a fortune. So there are pluses and minuses, whether it’s always to the left, I don’t know, it’s it’s it’s very hard to say. I mean, if you remember what we’ve lived through, uncertainty me is a period if you go back to the nineteen thirties and forties, really just before our time, just before what you saw was a tremendous revolution in the political foundation of the country. It was the New Deal. It was the shift of power to state legislatures who could do more to regulate and certainly from states to the federal government. And that was viewed as the left because that was Franklin Roosevelt and Franklin Roosevelt and Harry Truman eventually appointed every member of the court. And so when I grew up, I just thought, well, members of the Supreme Court are all Democrats who was appointed by Democrats. Well, that was the world then. And then soon after that came the civil rights revolution. Well, the civil rights revolution, after the court wrote Brown vs. Board of Education and said that segregation, legal segregation is unconstitutional and we must have integration. It said that, you know, nothing happens for a year or two. Nothing happened. And it wasn’t until really Little Rock and the efforts of Eisenhower to send paratroopers to Little Rock to bring those nine brave black children into that white school in nineteen fifty seven, it wasn’t really until then things began to have. Judges are only a few thousand at most, and we’re only nine at most. So why do people do it? Force of habit. Over time there began to seep into the country. This is a very bad thing. Segregation. And we had Martin Luther King, we had the bus boycott. We had all kinds of things and the Freedom Riders and then across the country gradually. It began to get worked out legally anyway, and that was a major effort of the court, Major, and so it isn’t surprising that people began to drift in that direction.

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S6: And we’ve had the Great Society. The New Deal. Integration, a number of things. So if you find that and I think it’s a big if. If you find that I don’t think we know that it’s you need direction.

S1: I mean, hard to say, so you’re describing I love what you’re saying, you’re saying these things get ascribed to individual jurists who move left over a career. And what you’re saying is they’re pinging off each other. They’re pinging off history. They’re pinging off big trend. OK, OK.

S5: Because the chord changes very, very, very slowly over long periods of time. That’s that’s that’s what I think, because it’s the legal view and the sort of jurisprudential view of what’s the country like, what’s this constitution about, what is our what is the court and what is its proper role? Those questions will never be answered. People will have approaches to that. And somehow, over time, the historians will tell us over one hundred years what happened.

S3: Are there things that you would tell your 30 year old self to do differently if you could go back or chill or just tell your grandchildren what I say to them?

S5: What I say to them is what I think one of the one of the one or two best things that I learned from Senator Kennedy. And I really follow what I try to I try to. And he certainly is. First of all, the the best is the enemy of the good. He didn’t make that up. But if you if you have a choice.

S6: Between achieving 20 or 30 percent of what you would like on the one hand or being the hero of all your friends, on the other hand, choose the first. We’re not here just to see to make speeches, all right. And the second thing, which I think is really of great practical value is don’t worry about credit. Credit is a weapon. You give the other person the credit when you disagree with someone, we talk and talk politely and you go on and eventually and it happens almost always, they’ll say something you agree with. And then you would say or you can say, let’s work with that.

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S5: And you work with it and not always by any means, but sometimes you make some progress here and if it’s positive and you get to say, OK, we all can sign on to that, and then in the Senate, you announce this bill or that bill or we got this passed and the press is there.

S6: And hey.

S5: It’s the other person you push forward, how often I’ve seen him say something like, hey, you know, Senator Hatch was so helpful on the.

S6: And he had a very good idea, and then we were able to come around to that and then and then we said that builds confidence and makes agreement easier the next time. So don’t worry about it. If you succeed, there’ll be plenty of credit to go around. And if you don’t, who wants the credit?

S1: And would you speculate that that’s something we get better at as we get older? That that that maybe when you’re younger, you want to gobble up credit and the limelight and make your speeches and die on the mountaintop and that as you get older, maybe this sort of repeat repeat performance sometimes.

S4: Yes. But also as you get older, you get more irritable. Not you, though. No, no. You say I get in here for generation telling you where the last time. Just just. Why have you been ignoring you get word of.

S1: Oh, I’m all that. You’re just doing me every day right now so God knows where this is headed. I, I should have started with this but. I’m sorry for the loss of Justice Ginsburg, I know that must have been brutal for you and I can’t imagine how much harder in covid, but I did want to say to you and your family that I’m sorry. I wonder if you would talk for a little for a minute about mistakes you’ve made. If you have some that you can look back on from your vantage and say, I wouldn’t have done that again, doesn’t have to be grand professional.

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S6: What I think of mistakes, I probably make two mistakes that I think one. Yes, I’m terrible at investing, I’d say I’ve made a lot of mistakes, but worse than that, the mistake that I continue to make, which is worse than that.

S4: Is worrying about it, right? Whatever happened, happened, and we move on from there.

S5: And it’s a continuous mistake to and I know it is, and it’s hard to stop yourself from doing it, but still, I think this is the only slightly political question I want to ask you.

S1: But I know you’ve talked a little bit about term limits and being willing to at least entertain the idea that we should term limit justices. And I know you’ve also thrown out the number 18, but you’re not that’s not a magic number for you. It’s just a number you threw out. And I’m wondering if a little bit of what’s animating your willingness to at least consider it is one, it’s a way to break the gridlock, like it’s a way to to depoliticize this or if it’s if it’s this notion that justices are just sitting around too long and they’re too old to do their jobs. And I ask that with all due respect.

S5: Well, I can’t I’m not going to answer this question because it is too close to something that is that is politically controversial and.

S6: You know, I think that and you can look up whatever I’ve said in the past and and and.

S5: I mean, eventually I’ll retire, sure I will. And it’s hard to know exactly when and you know, there’s a famous story. I can’t remember who the justices were. You have to look that up. I think it was. Maybe it was Stephen Field, I don’t know, or. Holmes was sent off to tell him court, well, maybe it’s time here, maybe it’s time and. Then I think Brandos or somebody went to see Holmes, I don’t have the name is quite right, but but he said, you remember Mr. Holmes, when you were sent off to see justice fields. They are great. And to tell him that maybe the time had come to say yes to Holmes and a dirtier day’s work.

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S1: I’ve never done this is this is, I think, my last question for you, which is just are you still biking or are you still able to exercise and be in the world?

S5: No, I because, you know, I really wrecked my arm. I have an artificial finger and the doctor told me he fixed it up all right. So that I could bike. But he said if you do go biking and you fall off your bicycle again, I’m not fixing you up.

S1: Just find a different doctor.

S5: And so I maybe but in any case, I have my exercise machine in the basement and I jog and I go pretty slowly when I’m jogging. But, you know, it’s all right. People pass. You’re walking. But what about somebody walking on crutches and they look a little. So I can’t say I was speeding, though.

S1: Is there a thing that you are doing every day to to sort of stay in shape?

S5: Yeah, I stretch in the morning. I do my half an hour of stretching and probably four or five times a week I do my bicycle.

S1: But inside where you can’t offend your doctor. OK, this is really, truly the last question. What’s something that you would tell our very youthful Slate readers that they are misunderstanding about life after eighty? Well, what are we getting wrong?

S5: I don’t know. I’m not sure what they think about it or if they think about it.

S1: Yeah.

S4: I mean, they think they’re never going to be eighty.

S5: Well, they will. And so it’s not perfect, but it’s OK. And you find the most the best thing about being I mean, you find something things in your life that interest you. You find someone you love, you try to get involved in public service. You’re part of a community. All those things continue. They all contribute. And you simply go on. There we are. If you’re lucky, you’ll be in good health. We hope you are not there. We are.

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S2: Justice Breyer, thank you so, so much for your time. I really, really appreciate it. So that was Justice Stephen Breyer talking to me this past week as part of Slate’s Big Eighty over 80 package. You can see the other octogenarians at Slate dotcom slash eighty over eighty. One more thing. Justice Breyer instructed me to look this up, and so I did. Indeed, it is true. In 1869, Associate Justice Stephen Field persuaded Mr Justice Robert C. Greer that he was simply too ill to continue to serve. Some years later, when Justice Field himself fell ill, Associate Justice Harlan called on him and asked whether he remembered having persuaded Justice Greer to leave the bench. Yes, he replied, quote, Any a dirtier day’s work I never did in my life. That’s a wrap for this episode of Amicus. We wish you and your families the happiest of holidays under the circumstances. We thank you so much for your support. You are Slate members are so vital to the work we do, and we appreciate it now more than ever. Please take care where your masks. Hold on tight. We’ll get there. Thank you so much for listening. You can keep in touch always at Amoco’s, at Slate Dotcom or find us at Facebook dot com slash amicus podcast. Today’s show was produced by Sara Burning Him. Gabriel Roth is our editorial director. Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate podcasts. Special thanks. Go out to Katie Raeford today for her help in making this particular special episode. And we’ll be back with another episode of Amicus in the New Year. See you on the other side.