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We are delighted to be joined by our next guest Supreme Court justice Stephen Breyer it was just threaten not controversial new book about the role of the court in American life.
Called making our democracy work and Justice Breyer.
Welcome back to FOX News Sunday.
Thank you in your book you explain your judicial philosophy and I think it's fair to say it's gonna make some conservatives break out in high just because you say.
This is of Supreme Court should take a pragmatic approach to interpreting the law and you write that us.
The -- should regard to the constitution as containing unwavering values.
That must be applied flexibly to ever changing circumstances.
Whatever happened it just applying the law as written.
The law is written that is what is applying the law as written.
Look this you read this document the constitution -- -- -- -- to shell -- this show has I mean turned to any page it uses words like liberty.
It uses words like interstate commerce it uses words like love freedom of speech.
They stand for values.
They don't tell you how to apply those words to the world of the Internet.
The founders didn't know the commerce included airplanes.
They didn't know about the Internet or even television.
And so the difficult job.
In open cases where there is no clear answer is to take those values in this document which all Americans know.
Which do not change.
And to apply them to a world that is ever changing okay.
But I'm got to take an example would you mention in your book.
Which would seem to a lot of people not to be an open case of an unforced -- possibility but to speak directly to the words in that booklet.
But gun control -- Let's put up -- Second Amendment of the constitution which says this.
A well regulated militia being necessary to the security of a free state.
The right of the people to keep and bear arms the right of the people to keep and bear arms shall not be infringed.
Just as I understand why a as a matter of policy and a world with a lot of urban violence in big cities.
That some people would say we need gun control typically in a in a big city like Washington has they had here in Chicago.
You ruled in both of those cases and in both cases the court voted twice over your dissent.
That the founders meant what they -- people have a right to bear arms.
Yes yes that's a wonderful example.
Because of course I it's not a matter of policy.
Is a matter of what those framers intended.
And you saw that first phrase.
A well regulated militia being necessary to the security of a free state.
The right of the people to keep and bear arms shall not be infringed what does that mean the militia.
The historians told us and the senators thought they were right.
That what that meant.
Was that James Madison.
I've got to get this document ratify it was worried about opponents.
Who would think congress would call up state militias and nationalize them.
That can't happen said Madison.
And therefore he wrote the Second Amendment to prove it.
Now if that was his motive historically.
The dissenters were right and I think more of the historians were with us but.
But -- the -- more than -- -- -- may have been what do you guess if not most of the justices off but if you're interested in history.
And in this when history was important.
Then I think you do have to pay attention -- -- -- in the constitution and what it says the right.
Got from election is has the right of the people to keep and bear arms.
When you start talking as you do when your book about changing circumstances.
And the real world consequences.
Aren't you acting.
As a politician.
Or policy maker and not as a judge you know we're acting as judges.
If we're going to decide everything on the basis of history by the way.
What -- is the scope of the right to keep and bear arms.
Torpedoes well in the case and -- it -- -- I'm just pointing out I I don't uniter I understand but that it certainly didn't -- provides for a ban at least that's what the court's decision was your courts.
They didn't provide for a ban on all handguns as they had here in Washington.
Do you like to shoot pistols -- targets.
Well get on the subway and go to Maryland.
There is no problems I don't think for anyone who really wants to have -- out policy issue that's not a constitution.
The love freedom of speech.
How do those words apply.
How do they apply to the Internet.
How do they apply to this program if you were to decide to put on the program -- document that showed how to make a bomb.
How do they apply to the Internet in recent cases that we have seen being discussed.
What a difficult question and I'll tell you we can find the answer to this question in large part by looking at the values.
And the others wrote in this document and it's very hard to find the answer to those questioned by looking at the word has the word is liberty.
And it's very hard to find the answer to this question by just thinking I'm going to see what Madison thought about the Internet now.
I'm gonna I'm -- right now he did honestly he did not think about the you know I'm and I suspect we would agree on that I'm gonna ask you question I wanted it because I know you're gonna -- you're gonna break out in -- here.
A federal judge in Virginia is expected to rule tomorrow on whether the individual mandate.
To the -- it healthcare reform is constitutional I'm not asking you because this will almost certainly come up before the court.
What's your opinion -- but in your book you talk about the court needing to maintain public confidence -- my question is.
How is that possible.
To maintain what we're doing a good question well good -- how was a possible.
When the country.
There's so sharply divided has been debating an issue for a year all of the politicians.
And -- at some point over the next few years.
The nine -- you when your robes are gonna come from behind that red curtain and you're gonna declare it's the individual mandate is legal is constitutional or not constitutional.
How do you maintain public confidence there.
-- the main point is I can tell you -- not to do it.
The way not to do it hold your finger up to the political winds that's not the job of the judge.
The judges are not politicians.
They're not junior league politicians and not senior -- politician.
And what I want to get across here is how difficult.
It is to maintain public confidence over a long period of time.
Did you know Andrew Jackson.
After the court said.
The Cherokee Indians are entitled to northern Georgia that he sent troops.
To drive them out of northern Georgia.
And so when you want a positive answer I'll tell you what we do -- we look to the text.
The values that underlie the particular constitutional phrase and consequences.
If you decide this way does it further the values.
Or does it undermine the value.
And it is there a right.
Or wrong answer -- -- -- to whether or not the individual I'm not asking what you're you're -- risk is there a right answer.
To whether or not the individual mandate is constitutional many many years ago.
Rabbi told me that people differ.
On what is right and wrong but that there is a right and that there is a wrong they cannot differ and so the judges of course may differ because the questions -- difficult.
But in the mind of each judge he -- decided the way that the constitution requires that decision to go.
And to help others who are not judges we write opinions.
And those opinions are truthful.
Those opinions are truthful in that they expressed the true reasons of the judge.
And to get to those opinions we sit around a table like this and I have never heard a voice raised in anger around that table never never.
And I have always sort.
And effort among people who are professionals and who like each other personally well.
To bridge differences.
And decide according to reason and these values now I write this book in part because we are at a time.
When people do in fact have problems of trust in institutions.
And I want to show how my institution.
Has gradually earned the trust of America I -- I want to ask you about that because you were -- last year's State of the Union Address where President Obama went after the justices would view -- Beneath his podium.
Four of the ruling that they had made in a case of citizens united which was basically the private corporations can contribute money in candidate elections.
And let's watch that moment.
Last week the Supreme Court reversed a century of law.
That I believe will open the floodgates.
For special interests including foreign corporation.
You were on mr.
Obama side in that case but do you see anything wrong.
What the president calling out the justices and having members of his party stand up.
Surrounding them and -- My job Chris sister right opinions the job of 307.
Million Americans is to criticize those opinions.
And what they say is up to them.
And the words are -- -- are carrying out my job.
Under the law as best I -- -- do you -- through my -- but do you have any problems.
Participating and it and an event -- going to the state of the union I'll go next year I've gone every year I think it's very very very important.
Very important for us to show up at that state of the union because people today as you know.
Are more and more visual.
I'd like them to read but they are visual and what they see in front of them -- that state of the union is the federal government every part.
The president the congress the cabinet.
And I would like them to see the judges too because federal judges are also part of that government but I wanna be there respectfully assert chief Justice Roberts.
Disagrees with you about out of -- let's listen to what he had -- -- The.
Image of having the members of one branch of government.
That's standing up literally surrounding the Supreme Court.
Cheering and hollering.
While the quarter according to the requirements of protocol.
Has to sit there expressionless.
I think is very problem.
Is chief Justice Roberts wrong -- and he that's his opinion and he says what he thinks and I say what I think.
And and -- I think is what I've said I'll be there next -- -- let me just present.
Sort of as a law school hypothetical love the fact that I following a freedom of speech -- and I understand I understand that but.
But let's say this was 1954.
And they -- the court had just decided brown versus board of education and you had a segregationist president.
Was very much opposed to it and he's calling out the justices there it is feet.
For having decided that you can desegregate -- a -- must desegregate schools.
And -- segregationist congress' jeering them.
Not good for democracy.
You want to know the best thing about my job which is a direct response the best thing about -- emotionally.
Is I sit in my chair every day.
And I see people of every race.
Every religion and every point of view and my mother used to say there is no point if you so -- there isn't somebody -- doesn't hold it in this country.
And all those people 307.
Million who have so many different points of view.
Who are so many different backgrounds.
They come into their.
Backcourt they come into the courts to decide differences -- the law.
Differences in other countries might drive them into the streets and kill each other.
I'll tell you it is a privilege to sit there and see that happen so I'm used to people thinking different things it doesn't bother me and part of me says good.
And it you'll be at this next state of the union -- if you're the only one there absolute.
Justice Breyer and it's an honor to talk to you again serve some very -- -- book.
And and and as you -- me just quickly give -- a little plug here it and there are a lot of good stories.
About the charities and Dred Scott and and the Little Rock school desegregation.
Well worth rating doesn't Brian thank you for so much for coming in today very much appreciate it stick -- stay -- -- -- with.
Coming up parts.
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