Supreme Court Lessons: Justice Stephen Breyer on American Democracy

Tuesday, September 20, 2011

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, Stephen Breyer, Supreme Court Justice and author of Making Our Democracy Work: A Judge's View, offered his view of interpreting the Constitution.

It's rare for a Supreme Court Justice to give media interviews, and even more rare for them to take phone calls from listeners on a live radio program. As such, The Brian Lehrer Show devoted 35 minutes to Justice Stephen Breyer this morning, during which he gave history lessons on the enforcement of Supreme Court decisions, reflected on those decisions in which he dissented, and stressed the importance of teaching the Constitution. We did the Bites a little differently this time, and this by no means covers everything Justice Breyer and Brian Lehrer discussed. We at It's a Free Country highly recommend listening to the complete interview.

On why we obey the Supreme Court's rulings

[The Supreme Court has no constitutional authority to enforce its decisions, so why do we listen to it? President Andrew Jackson, upon learning that the Court had decided against the state of Georgia and in favor of the Cherokee tribe in Worcester v. Georgia, famously said, "John Marshall has made his decision; now let him enforce it!"]

When [North Carolina and some other states] looked and saw that Georgia wasn't following the Court and [Andrew Jackson] was saying that was all fine, they said, 'Well hey, we have a good idea. If Georgia doesn't follow the Court, why should we? Why should we pay taxes? Why should we pay customs?' And at that point Jackson realized the union was threatened, and he changed his mind.

On a silver lining to Bush v. Gore

[Senate Majority Leader Harry Reid] said the most remarkable part of that decision is very rarely remarked: Despite its unpopularity, despite all that, [the people] did follow it. They did not throw sticks or rocks in the street, they did not shoot themselves, they did not have riots where people died. And that is a treasure for this country.

On politics in the Court

[In response to a caller's question about having liberal and conservative Justices, and how much personal politics affected Court decisions.]

It is legal in nature, interpreting this document. The law is not a computer, it doesn't spew out answers like a computer. Humanity and human beings are involved, both as consequences and as judges. It's hard, and it often requires the use of values, and human values. So we sometimes come to different answers, but 'political' is the wrong word to describe it.

On why he wrote this book

We're living in a period where people are pretty cynical about the government...If too much cynicism goes on, this democracy won't work and the rights that are in that document won't be guaranteed....Please, teach civics in the high schools. Try to explain to the students what kind of Constitution they have: What it says, how it's enforced, how they can participate in their government. That's what this is about.


Justice Stephen Breyer


More in:

Comments [48]

gene from NYC

[hearing the rebroadcast today]

It stands to reason that SC Justices should hold unrealistically tight to the idea they are perceived as free from bias, concerned above all with the law itself.

But they are sadly biased in this, as elswhere--especially in the last 10 years.

I remember seeing Justice Thomas defending SCOTUS to a relatively innocent inquiry from a high school student about the possibility of bias in their decisions.

Thomas got himself up into the highest dudgeon, coming down on the poor kid in a shaking, weirdly quiet voice,

"You must _never_ think that."

But we do think it, in fact we know it. When Thomas in particular and his wife are so active in a political movement, when his decisions are foregone conclusions, eminently predictable according to his far-right screed, and unmitigated by his actually asking questions in court--what else can we think?

And a question for the so-called "strict constructionists": by your Kool-Aid, how could anyone conclude that slavery is anything but totally Constitutional?

Re: corporations as people:

How really accountable are they? Can they go to jail? No? So they get all the privileges and none of the liabilities of real people? And how much inborn loyalty do they have to the US, really?

And doesn't this give the people in corporations 2 votes, at least?

Nov. 24 2011 01:39 PM
Robert Bienenfeld from Long Island, NY

If what this Supreme Court Judge said on the Program (Stephen Breyer), then from my 10-31-1989 case, the Federal Government owes me plenty of money, from the illegal arrest/indictment/conviction of me, in Chief Judges Jewish Capo Edward Kormans court in Eastern District Court, Brooklyn, NY with Federal Prosecutor Andrew Luger, who they acted in concert/collateral/cahoots plus withholding/suppressing/tayloring/doctoring evidence plus besmirching/slandering me in the News press, Channel 7, Newsday, Channel 12.

If what this Judge (Supreme Court) is saying then my whole 10-31-1989 bogus case was illegal, and the Feds owe me much much money, for the illegality of both what the Judge and Prosecutor did to me, on many aspects, on the 10-31-1989 case in Eastern District Court, Brooklyn, NY

Sep. 28 2011 11:16 AM
Phi496 from NJ

I was inspired by the interview, and then I became depressed by many of the comments.

Sadly, there is a lot of anger out there that speaks directly to the concerns Justice Breyer expressed in the interview. Clearly many of the commenters either didn't take (or else slept through) a course in Civics.

Those that suggest an "uprising" might be a "practical" (rather than "theoretical") alternative to the judicial system should be careful what they wish for. They might do well to order Ken Burns' Civil War series from PBS and watch it carefully.

Or, for a more current lesson in "Civics", these commenters might want to visit Tripoli, the Ivory Coast, and Kabul for some firsthand education.

Much of the so-called "ideological" commentary and government-bashing posted by individuals these days seems to boil down to "I'm dissatisfied with my current lot in life. Others are to blame for this, not me."

America has certainly come a long way; from self-reliance to entitlement in less than 3 centuries...

Sep. 20 2011 06:40 PM
nyginko from ny10025

re: civic participation
A civic sense ought to begin to develop early on.
Is there any ongoing civic education for students nowadays? (beginning in the primary grades!)

Sep. 20 2011 05:50 PM
Nick Lento from NJ

Great questions pressed him well on the question of how much crap people will take before they rise up. Sadly for him it was merely a "theoretical" question. Keep in mind that everything the Third Reich did was "legal" under their perverse/maleficent jurisprudence.

.Breyer is delusional if he truly believes that his colleagues are making decisions based on pure legal logic and a pure intellectually honest motivation to interpret the constitution.

The hard reality is that these people are appointed by politicians with political/ideological agendas.

To the extent that Obama (or any Democrat) is a "moderate" middle of the road rationalist...and only appoints that kind of person, he will always be offset by Republicans who will consistently appoint the most hard right radical totally corporatist they can possibly get past the Senate.

Further, Democratic Senators have to start voting down the hard core extremists at ALL federal levels, not just the SCOTUS.

The hard right/corporatists are winning in the courts what they can't win at the ballot box....and it is NOT sustainable!

At some point our civil order will break can't destroy America's democracy indefinitiely without also at some point bringing about violence. There are limits to how much unjust (albeit "legal") oppression, death and suffering people will stand for.

Sep. 20 2011 01:35 PM
Nick from UWS

Dark Symbolist could not have said it better, in his second post. Bravo.

Sep. 20 2011 12:06 PM
Karen from NYC


I wasn't asking Justice Breyer to account for his dissent, but rather hoping that he would elaborate upon it. He was right; the majority was wrong.

Sep. 20 2011 12:05 PM
nyginko from ny10025

re: civic clubs referred to by Justice Breyer.
Another excellent interview! Thank you, Brian and Justice Breyer!
In the early 1950s my sixth grade teacher Hannah Tobias (I speak in her honor) created a civics club/class in our school, P.S. 193, Bklyn, N.Y. It was in addition to student government/student council. We advocated to community groups for projects that we were involved in such as the use and maintenance of the school yard/play ground. I was elected President, but Hannah Tobias was the real heroine there!

Sep. 20 2011 11:55 AM
Calls'em from McLean, VA

Brian, this was a good segment because unlike Kagan or Sotomayor, this guy is brilliant. From reading some of the comments on this board, your audience is not the same as it used to be. I guess ideological programming breeds ignorance and doesn't really give that great context that you used to give. You guys should stop the false advertisement about giving "context." These days when it comes to politics you give one side of the story 95% of the time.

Sep. 20 2011 11:54 AM
kurt from new york

Great segment, the one huge contradiction that got glossed over was Guantanamo Bay decision in 2008. The Judge said Bush agreed to honor the decision, but in action nothing was done, much like the Governor of Arkansas ignored the rule of law in regards to segregation, yet under Bush, now under Obama the detention camp is still open. So, it still seems like The Trail of Tears issues all over again. Would the judge consider this another sad day for America and how would he consider the real power of the court in light of this

Sep. 20 2011 11:52 AM

I'm puzzled by comments below demanding that Justice Breyer account for the Court's decision in Citizens United. Breyer dissented in that case. He has nothing to do with the majority opinion.

Sep. 20 2011 11:49 AM
nyginko from ny10025

Thank you so much Brian and Justice Breyer for this fine exposure to an important discussion!
Pertaining to Justice Breyer's suggestion that civic clubs/classes be established in the city schools: Sixty years ago (about 1950) I was a student in the civic classes established by my sixth grade teacher Hannah Tobias at P.S. 193 in Brooklyn. It happened that I was elected President As students we were able to petition for better use of the school yard and other issues that we helped define. Hannah Tobias was one in a million - or maybe not. Perhaps there were others?

Sep. 20 2011 11:42 AM

DarkSymbolist from NYC...

Well said!

Sep. 20 2011 11:41 AM
Calls'em from McLean, VA

PS - You were very funny on "Wait, Wait, Don't Tell Me" a couple of years ago.

Sep. 20 2011 11:41 AM
Calls'em from McLean, VA

On that line, when the Supreme Court rules against 0bamaCare (and it will) and the regime refuses to stop it's then unlawful implementation, what will the Supreme Court do and do you feel, that any sworn LE officer or even an Officer of the Court could then legally arrest the President or the Sec. of HHS?

Sep. 20 2011 11:40 AM

How do we stay "civil" when Korporate™ interest has undermined every corner of democratic our institutions???

Sep. 20 2011 11:37 AM

Can you please ask Justice Breyer is view on Defund ACORN Act as an bill of attainder?

Sep. 20 2011 11:37 AM
Yosif from Manhattan

Only the unelected branh could have given away our democracy and overturned over 100 years of precedent. This is George Bush's other legacy. Marbury v Madison gave them this right correct?

Sep. 20 2011 11:36 AM
Calls'em from McLean, VA

Mr. Justice, how will the Court enforce it's decision in Heller since the government in Washington, DC is clearly in violation of the Court's decision? Can you order Federal Marshall's to arrest the mayor? If the President or Holder block the deployment of the Marshalls, what sanction can you bring against the regime?

Sep. 20 2011 11:35 AM
DarkSymbolist from NYC!

Yes, yes we don't solve things through violence in this country...

we just accept all kinds of injustice and corruption with apathy

I fear that something Michael Moore said in "Sicko" may be true...that in Europe, specifically places like France, they have things like universal healthcare because the government is afraid of the mob (due to mass strikes, protests, etc)

So great let's pat ourselves on the back about how we solve things in such a "civilized" way as we go on with impotent apathy as the rich make themselves richer, elections are overturned by a corrupt court that is weighted with activists, and our rights are taken away slowly and subtlely.

Yay.Hurray for us.

Sep. 20 2011 11:34 AM
JP from NY, NY

Quick Question: Will the judge call for an investigation into Justice Thomas given all of the allegations of malfeasance? If NOT, why?

Sep. 20 2011 11:33 AM
Max from NJ Suburbs

What is the Constitutional basis for the establishment of and powers granted to the "Federal Reserve Bank" (which is privately owned, with no reserves, and is not a bank).

Sep. 20 2011 11:32 AM

Nick from UWS...

You're on to something!!

Sep. 20 2011 11:31 AM
Bill Larsen from Hempstead, NY

Dear Justice,
The US system IS a success and IS a trusted institutiuon because it is a self regulating system, I wish the regulatory/oversight/balance of power for each branch of government was better understood, by myself, if no one else....How has/will the Supreme court regulate itself???

Sep. 20 2011 11:31 AM
Calls'em... from McLean, VA

Thank God for those old time Republicans who stood up to a 100 years of Democrat Party Racism. The Dems are still racist, keeping liberty and capitalism from generations of minority folks on the government dole.

Sep. 20 2011 11:30 AM
jeremy eagle

maybe citizens did not riot in the street after the Bush/Gore decision but it did lead to violence: an unjust war in Iraq for one with 10's of thousands of innocents killed!

Sep. 20 2011 11:29 AM
Max from NJ Suburbs

How is it possible that, given the well defined constraints on central government prescribed by the Constitution, the Supreme Court has allowed the central government to be come so powerful and so pervasive?

Perhaps I am missing something, but when I read the Constitution, I can't find justification for much of what the government in Washington does.

Sep. 20 2011 11:29 AM
DarkSymbolist from NYC!

@ RL from the bowery

I too would like to hear his explanation on how corporations are people in the eyes of the court and how they came to such an intensely stupid decision, considering the fact that there is no rational way anyone could see individual people and corporations as the same.

Yeah, and Bush v Gore was just a bloodless coup and showed this court to be completely illegitimate. This current court is a disgrace due to a couple of it's right-wing ACTIVIST extremist members

Sep. 20 2011 11:27 AM
sheep from underfoot

bullsh*t. how can bush v. gore be taken seriously when the decision says "this is not a precendent."? sounds like the third world to me.

Sep. 20 2011 11:27 AM
Pat Newkirk from Manhattan

The recent Court decision to allow "person" status to corporations seems to obliterate the value of one man or woman's vote. What does Judge Breyer think of this decision?

Sep. 20 2011 11:27 AM
K. Shaw from N.J.

What thoughts do you have regarding the contemporary Senate Confirmation Hearing process? Does the process add to the legitimacy of the Court?

Sep. 20 2011 11:26 AM

Great episode! Thanks!!

Oh, however, there is plenty of illegitimacy, right now!!

Civics are not currently working, unfortunately!!

We are living in uncivilized times!!

Sep. 20 2011 11:26 AM
Nick from UWS

Yes, teach "civics" in the high schools to distract the populace from the intensely corrupt and "un-civic" things happening behind closed doors throughout the US Government.

Sep. 20 2011 11:26 AM
Neil from Brooklyn

If Pennsylvania or other states change their allocation of electoral votes to effectively extend the effects of gerrymandering---do your forsee any avenues for legal action to contest them? Perhaps for disenfranchising voters in districts with under-represented minorities?

Also--Aren't schools today are more segregated than ever? If so, what was the impact of Brown vs the Board? What can the Court do today to take more effective action toward integration? --Particularly for non-english-speaking students in areas in areas of the country pushing for English-only curricula.

Sep. 20 2011 11:24 AM
john from office

Steve the world Court is another forum for America Bashing, like the UN. Sorry I dont want world government. Remember Lybia was about to lead the UN's human right commission. We would be ruled by the third world.

Sep. 20 2011 11:22 AM
Ryan B from Jersey City

Can Justice Breyer please talk about the citizens United case, the idea that a corporation is entitled to the same rights as an citizen, and where this precedent comes from?

Sep. 20 2011 11:20 AM
Bill Herman from Brooklyn

Justice Breyer, I really valued your dissent in Eldred v. Ashcroft. In your opinion, is there any chance that copyright will come to be reviewed under First Amendment standards?

Sep. 20 2011 11:20 AM
Steve from Rockville Centre, NY

1. Desegregation was delayed because the Supreme Court used the words "all deliberate speed"; i.e., take your time. Wimps.
2. Yes, this nation respects the Court, but it doesn't respect the World Court. Case in point: the Court decided that we had indeed mined Nicaraguan harbors and should pay reparations. To this day, Congress has never approved this payment.

Sep. 20 2011 11:20 AM
Marc from Brooklyn

What does his honor take away from Justice Souter's recent comments vis a vis Plessy v Furguson?

Sep. 20 2011 11:20 AM
RL from the bowery

In the real world it is just clearly obvious that corporations are NOT people. They just aren't. Please ask this man how the court is not able to see that. And maybe he can explain how the Citizen's United ruling is a good and right decision. NOT!

Sep. 20 2011 11:18 AM

Question for the Justice. As humans we have a very difficult time separating our emotions in the decision making process. How does emotions and personal views affect the court's justices and the decision making processes?

Sep. 20 2011 11:16 AM
Karen from Westchester

would he like to speak to Georgia' love of the death penalty and the horrifying story of Troy Davis due to be executed tomorrow?

Sep. 20 2011 11:16 AM
Eric from B'klyn

The assertion that the 911 attacks were an act of war is dubious legally in that Al Qaeda is an organization, closer to an international drug cartel, than a nation state. Constitutionally, if 911 had not been seen as an act of war, would the Executive’s constitutional war power been triggered?

Sep. 20 2011 11:14 AM
Karen from NYC

Question about "Citizen's Union" and original intent: a priority of the framers, set out by Madison in Federalist #10, is the prevention of government by "faction". Madison argued that a large Republic would be less likely to fall prey to faction, because it would be governed by representatives, not everyone -- the mob -- and would be large enough to defuse the accumulation of power by one faction or interest group. They also feared the power of monied propertied interests and, like good Enlightenment philosophers, believed that the best representatives were "disinterested"; i.e., not financially invested in the outcome of legislation.

How is this consistent with the finding that corporations have the limited right to fund campaigns and candidates? Wouldn't a justice who defends "original intent" believe that the frames wished to defuse, not encourage, the power of interest groups who could use unlimited wealth to influence the political process?

Sep. 20 2011 11:12 AM
Nick from UWS

Who says Americans unquestioningly comply with and support Supreme Court decisions?

Sep. 20 2011 11:10 AM
Steve from Rockville Centre, NY

My two questions for Justice Breyer, which certainly wouldn't be answered:
Are Scalia and Thomas as incompenent as they seem to the public?
Does Justice Breyer believe that we need to change the appointment process and eliminate life-long terms?

Sep. 20 2011 11:09 AM
Nick from UWS

If no one asks this guy how much the Supreme Court was paid by corporate special interests to reverse the campaign donation laws and remove limitations on corporate campaign donations, then this segment is really not worth listening to.

Sep. 20 2011 10:19 AM
Nick Lento from NJ

Please ask Justice Breyer if it isn't obviously and painfully true that the *reality* is that the SCOTUS is primarily a political instrument in that the ideology of the president determines the ideology of the court....and that ideology determines the "decisions".

Let's face it any intelligent/competent lawyer (or talented ambitious clerk) can come up with all maker of legalistically correct (and even brilliant) rationales for ANY kind of "decision"...the rationales are all jet fig leaves for the REALITY that the dominant factor is the imposition of the political/ideological will of the judge. There is virtually nothing objective or fair about it....and the folks out of the majority will always accuse the majority of making law and of ignoring he constitution as THEY see it.

Bottom line: If we get one more hard right wing radical on the court....America will tilt toward becoming a nation in which the progressive legislation/reforms twentieth century become either repealed all together...or watered down to the point of emasculation.

Directly electing the SCOTUS is not the answer........but perhaps limiting their terms to, say, 15 years might be helpful?

Meanwhile, the ideologues rule....under cover of "the Constitution". The ultimate solution is a *truly* informed electorate that votes in large numbers......and the imposition of billions of corporate dollars into the electoral process makes THAT result less and less likely as the status quo is maintained by keeping people disgusted, disillusioned, passive, disenfranchised, dis-couragedand massively divided.

We must do better if we are to preserve what's left of our democracy.

Sep. 20 2011 10:16 AM

Leave a Comment

Email addresses are required but never displayed.

Get the WNYC Morning Brief in your inbox.
We'll send you our top 5 stories every day, plus breaking news and weather.


About It's A Free Country ®

Archive of It's A Free Country articles and posts. Visit the It's A Free Country Home Page for lots more.

Supported by

WNYC is supported by the Charles H. Revson Foundation: Because a great city needs an informed and engaged public.  Learn more at


Supported by