When I was a young staffer on Capitol Hill, I met a man named Stephen Bryer who was a law professor at Harvard. I thought, very smart, he'll probably be an academic the rest of his life. But actually he became a Justice of the Supreme Court and has been in that role for twenty seven years. I recently had a conversation with him about his future and about the future of the Supreme Court. I have to start with the questions on everybody's mind. Obviously, why is this book
that you've just written so small? It's a very small book, and I'm used a bigger books. So why is this book so small? I mean, why didn't you get a bigger book? Um, this is the Constitution and it's smaller. Okay, all right? A lot of Justices of the Supreme Court carry around the Constitution all the time. Is that because you're gonna forget what's in it? Or are you? It's just like their mind. People are just read it over and over again. You never never know when somebody's going
to ask you a question. You see, somebody says, what does the Article three, Section nineteen? Say? Okay, and they expect you to know okay. So you have to have it here. It is so your book. This book is a interesting book in the sense that it came from a series of lectures you gave. Um named after somebody who was an ideological, let's say, opponent of some of your views, and that was Justice Scalia. So Um, were you a friend of his even though you had ideological differences? Yes,
I think so. We would we would uh debate those differences and we'd go. I thought we had a terrific debate in Lubbock, Texas. There were several thousand students would come. They've never seen the Supreme Court justice, and we talked about our differences. You know, I say, hey, if I had your theory, my goodness, don't you think that. Do you think George Washington knew about the internet for free speech? You're thinking? And Scalia would say I knew that. Well,
good point. Then he would say, I'm not saying my theory is perfect. He would say, you know, the two hunters they're hunting bears and one's putting on his tennis shoes. Where are you going? And he says, I'm bears coming. You can't outrun a bear, he s yeah, but I can outrun you. Say that was his view of my way of deciding cases, and we of course I never in and I still twenty eight years now, I've never heard a voice raised in anger in that conference room.
I've never heard one just to say anything mean or table or anything like that. Good would that do? I try to explain that to the students. You know, you get all excited, and all that happens is people disagree with you. Think, well, you know, he's all excited, he must be wrong, and that's that's so true. So we get on well personally, and we're friends personally, and we disagree on some things, not as many as you think,
but some It's not always been the case. There wasn't a Supreme Court justice who refused to talk to or be in the presence of justice grandise because he was Jewish. McReynolds, right, So it hasn't always been that friendly. But you're saying right now, since you've been on the court twenty eight years, people don't yell and scream at each other, and they don't insult each other, and they're not rude to each other.
And it's a professional job, and you go in and do your best professionally, and if you want people to listen to you the most. The best you can do is to think through this problem, listen to where the other person is coming from, and see what you can contribute to that thought. But sometimes that a censor a little bit tough on the person who wrote the majority opinion.
That's nobody takes that personally. I get that question a lot, and I used to get it more with Ninas Scalia was on the court and the two of us would be there, and somebody to ask that question, and I'd tried to answer it because I didn't want him to and I'd say, I'd say, look, I know you're not aiming that question at me. You're aiming it at Nino. Okay, I get it. But what you don't understand is that some people suffer from a disease. It's called good writer's disease.
And if a good writer finds a felicitous phrase, he won't give it up. Let the word, let him destroy himself, let the world come to an end. It's like a good comedian, you can't give up that joke. Now that's Nino. He is a very good writer. He has a felicitous phrase, and we all know that and we don't take it personally. Do you have a lot of unanimous decisions in these
days or they don't get that much attention? And do you really have a lot of five four decisions and they get all the attention it seems, But is that where the court really has its arguments with each other the five to four decisions and no, not necessarily what you read about are the ones that the press thinks the public will be interested in, which usually has a political or a social content, and they'll say that's the
most important. I don't know that. One of the most important decisions I wrote this last year was called Google versus Oracle, right, and and it was it took a year for me to write that. It was about copyright and something called programs, uh interface programs, And I was told that that was very very important. Well for me, it was like learning Latvian. I mean, I don't know how I did that, but but you see it, it's it's it's it's I'm not saying all the I see
what they're saying. I see what they're saying. And it's true that a lot of the sort of exciting cases are more close. But the justice is I suppose you have a decision. It's five to four, and well, I'm one justice kind of go to other justices chambers and say, you know, your argument isn't so good and maybe you should do something different? Or is everything just done by memos and writing? You don't have people going down the hall and saying, let's have lunch together and maybe I
can persuade you my position is better than yours. That does that ever happen? Most of it is memo, but quite a lot can be business two chambers. But if I'm going into your chambers, I'm not going to say no, your argument isn't so good. This would not be a helpful way to start the conversation. And if you go into somebody else's chambers, you better be prepared to listen to them as well as hoping that they will listen to you. And then you try to see and that's
what I learned in the Senate. That's what you try to see is where is there some common ground? And is there common ground enough that you can work with it. Let's go back to your earlier life. Um, I work on Capitol Hill and you work Premium Capital. Who you were a Harvard law professor and I'm just curious when you go to Harvard Law School and you're at the top of your class. When you start Harvard Law School, there's always kind of an intimidation factor. You have six
hundred people. You have to figure out, you know, where you're going to be good or not. When did you realize you were really good at at law school kind of things taking exams? Did you know right away you're gonna be a great law school student and therefore become a potential law school professor or were you nervous the
first year or so? I think God's pretty nervous. I mean I remember talking to a friend of mine I've been an undergraduate with and he was there too, pulled dotic actually, and we both said, well, this is the end of our great careers after our first year. And we both did pretty well in law school. Are you were on the Harvard Law Review. And when you're on the Harvard Law Review, sometimes you get the clerk on the Supreme Court for another justice and you clerk for r.
Through Goldberg And what was that like? It was terrific. He was great, He was an enthusiast, He had loads of energy. Jack Kennedy said that he was the smartest man he ever met. So you clerked for him, and then you went to teach at Harvard Law School. And when you went to Harvard Law School, did you say, this is gonna be my life. I'm gonna be a professor, nothing terrible about that. You can teach great law school
students and so forth. Or did you say, maybe someday I'll be on the Supreme Court, maybe I'll be a judge. It was that in the back of your mind. I didn't think maybe someday. Anybody who thinks maybe someday I'll be on the Supreme Court. I mean, I don't want to say there's something wrong with him, but there is something. Right after teaching at Harvard Law School, you got a very good reputation. Senator Kennedy invited you to come down
and work on his staff. I think, to work on regulatory reform and um, and that's where I first encountered you. And I was working Capitol Hill and and so forth. You've got a very good reputation, and then something happened that was a surprise to people. Uh. President Carter nominated you to be a judge on the First Circuit. And that's not a surprise, given your your reputation and so forth. But it required a Republican to sign off on it.
Strom Thurman one of the most conservative Republicans. Why did you think strom Thurman said he would let a presumably some somewhat liberal Harvard Laft professor get on the first circuit. I mean those are days. It was a different day. You remember that people did try to work together. And every single morning Ken Feinberger was like I was chief counsel and he was a general counselor of the Judiciary Committee.
And we would have breakfast with Emery Snedden, who was a former JAG general, and it was Strong Thurman's chief person on Judiciary, and we would plan the day. We planned out the day. We wanted no secrets. We wanted to try to accomplish something, and we'd figure out how do we color it red for this party and how do we color it blue for the other party. But the important thing is if it's desirable, let's try to
get it through. That happened a lot. I can't say there was no conniving, but Ken and I and ever used to call what we did open conniving. Openly arrived at okay, so you went on the first Circuit and you had a very good reputation there, and then um, you were being considered to be on the Supreme Court, and so you came down for an interview with President Clinton. But you had a bike accident and you had a lot of injured bones. If I recall so that you can think that was a bad karma that you had
this accident before you had the interview. And did that affect your ability to do the interview well or it didn't make a difference. I have no idea. I mean, that's the truth of the matter. And later, later I thought about it, and of course the newspaper people wanted to say, weren't you terribly disappointed? Da da, da, da da?
And I said, I'll tell you what I said. Well, you know, it's not such a terrible thing in your life to be seriously considered to be on the Supreme Court, even if you're not appointed, and that's about the best you can do. And I was thinking, partly I said that because it's true, and partly I said it because I did have children. Hey, my friend, you don't always win everything you want, and my goodness, what you want
those children to learn? And you want them to learn. Fine, sometimes you'll get everything you heart desires, not very often, and sometimes you won't. And you better be a good sport about when you don't as well as when you do well. Mick Jagger has a song about that. You can't always get what you want, and so you didn't get us. After my generation, Justice Skinsburg was appointed first, but then you were appointed next by President Clinton. So when you've got on the court, how had it changed
from when you were a clerk? Was it much different? Were you surprised by the changes? Yes, I thought it was different in this respect. When I clerked, I felt it was a court with a mission. What mission? In nineteen fifty four, the Court had decided that plus c v. Ferguson rightly was down the drain and legal segregation is contrary to this document equal protection of the law. They said it in nineteen fifty four, And we both know what happened in nineteen fifty five, nothing next to nothing.
Nineteen fifty six, yeah, double nothing. Nineteen fifty seven, a rather brave judge in Little Rock said, those Little Rock nine, those nine brave black students are going into that white school, Central High School. But the governor. Governor Fables said, maybe those students have a court order, but I have the state militia and they're not. And Eisenhar, I'd like to see that at the monument that they're building for him.
He called in a thousand troops from from Fort Bragg, the hundred and first Airborne, and they took those nine black children and walked into that white school. No. I'd like to say that's the end of the story, but it wasn't. What happened was after a few months, the troops had to withdraw. And when that happened, the school
board said, we're not going to integrate anymore. And when that happened, a very famous case went to the Supreme Court, Cooper versus Erin, And when that happened, all nine justices signed the opinion saying, integrate, now do it right now in Little Rock. Hey, but they're nine people. Maybe there could have been nine, maybe nine thousand. U uh huh. Foulbus closed the school. That's what happened for those of
us who remember and those of us who don't. But they couldn't keep it closed because that was the era of Martin Luther King, the Freedom Writers, and suddenly the North woke up and others woke up and said, this is an intolerable situation. And eventually, through a lot of work and a lot of work, and a lot of moral effort, and a lot of physical effort, and a lot of organizing effort and so forth, eventually legal segregation
was brought to a conclusion. And the reason that I find that story important and I told that story to a woman from Ghana who is the Chief Justice who is trying to improve the constitutional system there and asked me, why do people do what you say? And my response was, ma'am, three million people in this country and three hundred million
are not lawyers. That comes as a surprise. And those are the people you have to convince, convince what convinced that they should try to follow the court to the rule of law when they don't like it, when they think it's wrong. And that's why I wrote this book. In a sentence, that is why I want people to see in some detail. It's not moralizing, it's my experience and I want them to see what the court can do. But when you say the court can do, it doesn't
mean nine people. It means the country as it's come to develop, a long time, two hundred years, and then maybe maybe we have a country that can use this weapon called the rule of law in order to prevent some pretty terrible things. Let's talk about what's called the shadow docket for the people who are not lawyers. What is the shadow docket and why hasn't becoming such a big thing. What it is is that in between hearing the cases on which we have decided to hear, someone
will make an emergency motion. Now that's what it is, an emergency motion. The country is divided. I'm in charge of the first circuit for example. That everybody is in charge of some circuit. So if there is a litigant in the circuit who believes that he needs immediate attention to issue an injunction or to stop an injunction, well then he'll file it with me and I'll look at it. And if most of them there isn't much too, and
so it's easy to deny it. But some there is something too, and then you, I use, you will refer it to the whole conference. And if I should have and didn't, he can go to any other judge and it will be referred to the whole conference. Most of these that are the subject of the whole conference has our death cases and at the very last minute because
of COVID. I think there have been some recent cases which did not just involve the death penalty or something that wasn't too difficult, and there I I thought I was in the descent in those cases. Well, the most recent abortion case, I was in decent. I thought it was wrong and I thought we should have heard the whole thing. It was a procedural matter. They didn't decide
the substance of the status. There will be a case presumably working its way up to the court, but it might take a year or so for a well where we're having there is a case in November where that's the sighting matter. You've been on the court now twenty eight years. What are you most proud of having done? And what's the pleasure of being on that Supreme Court. It's a great privilege to be on the court. I mean,
there's no no doubt. And from a personal point of view, I'd say it requires you in middle age when you get there, uh, to give your best to this every minute. And you say, is that a big virtue? Yeah? Yeah. And the older you get, the more you see it as an enormous virtue. Einstein famously said, if you try something over and over again and expect a different result,
that's the definition of insanity. So if somebody asked you the same question and over and over again expecting a different answer, I guess that's the definition of an insane interviewer. But let me ask the question you've already been asked many, many, many times. I know you're not going to give it differ an answer, but I have to ask you the question, what are your thinking about all of the issues relating
to your retirement? Okay? Einstein was right? Einstein was right. Okay, So you have said that you don't want to die on the court, and presumably nobody would want you to die on the court. So what do you It's Einstein is coming back. So what is it that you would like to do when you were alive after you're off the court? In other words, would you like to go teach again, if you like to write, would you like to just take life easy? What would you like to do?
It's hard to take life easy, but I do. We'll see. Okay, so you haven't thought about what you might want to do? Or yeah, go through my mind. President Biden has put together a commission that's going to look at the court. Um, and you have already articulated your view that you don't think expanding the size of the court is a wonderful idea. I think you've said that. What I've said is that they better be pretty careful about it, because two can
play at that game. And of course, what's worrying me, and I say that I try to explain to people in the book the extent to which politics is relevant or not relevant, or president or not president, and in what form uh in in in the work of our court. And what worries me is that people will think we're junior league politicians. And if they think that, the first second thought should be why I don't have a senior league politician. And once you begin to think along those lines,
two can play at that game. As I said, you could have Republicans appointing and the Democrats appointing and vice versa. But I see the overall tendency of that is, given the history, given the way we work, given the country, et cetera, as weakening the confidence of the average person in the decisions of the Court. And you can say what's wrong with that? And I say, well, that's sort of a step towards or away from a rule of law. What would you like most people to know about the
Supreme Court? If you could say to the average citizen, here's what you should know in a paragraph about the Supreme Court. I assume you know it would be something along the lines that it's not as political as some people think. But what would it be? You would say a judge, once he puts on that black robe, I'm not going to say it's a midnight transformation, but look a judge, and I have to think this about myself there too. I have to a judge is there for
all Americans. He's not there just for Democrats. He's not there just for Republicans. He's not there just for the president of the party that a pointed him. And even if half the country thinks he's a real idiot and they can't stand what he writes in his own mind and the way he approaches the job, he has to remember, he said, for everybody, all three hundred and thirty one million.
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