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'Active Liberty' from Justice Stephen Breyer

Supreme Court Justice Stephen Breyer has written about his interpretation of the constitution in the new book Active Liberty.

43:04

Other segments from the episode on October 20, 2005

Fresh Air with Terry Gross, October 20, 2005: Interview with Stephen Breyer; Review of a collection of Alfred Hitchcock films “Alfred Hitchcock: the masterpiece collection.”

Transcript

DATE October 20, 2005 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Justice Stephen Breyer discusses his new book, "Active
Liberty"
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

My guest is Supreme Court Justice Stephen Breyer. He was appointed by
President Clinton in 1994 to the seat vacated by Justice Harry Blackmun. The
new chief justice, John Roberts, is the first new justice since Breyer's
appointment. Earlier in Justice Breyer's career, he served as counsel to the
Senate Judiciary Committee, spent 14 years on the federal appeals court and
was a professor of law at Harvard. The occasion for our interview is Justice
Breyer's new book, "Active Liberty: Interpreting Our Democratic
Constitution."

(Technical difficulties)

GROSS: ...thinks that Supreme Court justices are not supposed to talk about.
So just kind of delineate for us, before we go any further, what are some of
the things that you feel would be inappropriate for you to talk about in this
conversation?

Justice STEPHEN BREYER (US Supreme Court; Author, "Active Liberty:
Interpreting Our Democratic Constitution"): Cases that might come up; cases
that were controversial in the recent past, other than the ones I went into in
the book; anything to do with nominations, and probably there are others. I
did ...(unintelligible) most interesting things to you I can't talk about.

GROSS: OK. Now I was almost surprised that you had written a book 'cause I
think it's kind of unusual for a sitting Supreme Court justice to write a
book; maybe I'm wrong about that. But why did you decide to write this book?

Justice BREYER: Some others have, but there were really two reasons. When I
joined the court and since I've been, I've learned from former Chief Justice
Rehnquist, Justice O'Connor and Justice Blackmun, our predecessor, and
others--told me, and it's true, that there's a tremendous desire, I think,
among many Americans to know more about the court. And that includes the
heart of what we do, which is to decide very difficult cases. And I wanted to
explain to people, as best I can, how I and maybe some others go about
deciding those difficult cases. They'll then learn. It's not the CIA, the
Supreme Court. It's a public institution. People should know about it.

The second reason is I think there's a--tends to be a kind of misapprehension
that people have. The misapprehension is that the Supreme Court decides
what's good for people in the view of the justices. That isn't what we do.
What we do is we take a Constitution that doesn't tell people what to
do--rather, it sets out very broad boundaries. And within the space of those
very broad boundaries, citizens, Americans, make up their own mind about how
they want to live in society. And our job is, really, to police those very
broad boundaries. We police the boundaries. We don't decide what people
ought to do. I--those are really the reasons, to explain that, that I wanted
to write something.

GROSS: Now what you're writing about in your new book is some of the
principles that guide you in interpreting the Constitution, and you feel that
the Constitution requires interpreting. And I think your approach is
different from the, quote, "originalist" approach of Justice Scalia. And I
think it's fair to say that he describes the Constitution should be
interpreted literally and as close to the Founders' interpretation as
possible. And he has said, `The Constitution is not a living organism, for
Pete's sake. It's a legal document. And like all legal documents, it says
some things, and it doesn't say others.' Can you describe what you see the
difference to be between that originalist view and yours when it comes to
interpreting the Constitution?

Justice BREYER: Well, I'd preface what I'd say with--emphasizing that I'm not
writing this to reply to Justice Scalia, though he's written a book about the
Supreme Court as well. And I'd want to add on that when I talk about the
Constitution as created democratic institutions, it's a special kind of
democracy. It's the kind of democracy that protects basic human liberty; it
assures a degree of equality; that breaks power down into pockets, so that no
group of people becomes too powerful: state, federal, executive, legislative,
judicial; that creates a rule of law. That's the special kind of basic
democracy that our Constitution sets up.

Now since that is, I think, what the Constitution says and what I think the
framers intended, in carrying out those basic underlying desires and purposes
of the Constitution, I think others and those who think like me are carrying
out the basic original ideas of the framers. If by `originalism' people mean
specific ways in which those basic principles and word in the Constitution
apply today in detail, I don't think the framers thought about the Internet.
I think they drove to Philadelphia in horses and carriages, not automobiles.
And, thus, I don't say when I mean `living Constitution'--that doesn't refer
to departing from what they wanted. It refers to applying the basic principle
that they wanted to apply to the circumstances, which are often very different
circumstances, that exist today.

GROSS: And let me just add something you say in the book. You say, `Why
would the framers, who disagreed about the necessity of including a Bill of
Rights in the Constitution, who disagreed about the content of that Bill of
Rights, nonetheless have agreed about what school of interpretive thought
should prove dominant in interpreting that Bill of Rights in the centuries to
come?' So you think that since the framers didn't even agree on whether there
should be a Bill of Rights, they could hardly have figured out how we should
be interpreting that Bill of Rights hundreds of years later.

Justice BREYER: I think they didn't really express much of a view about that.
But, also, I think that the differences in approach can be overblown. Most
judges, probably all judges, who get into the business of interpreting the
Constitution--and we do that more than most other courts; that's our job as
the Supreme Court of the United States--that virtually all judges approach
every difficult matter of interpretation--interpreting a text, and that is
what we do, and they are difficult--with the same basic tool.

What tool? A judge looks at the language. Of course the language is relevant
and sometimes determinative, but usually it's open: the language, the history
of the provision, the tradition as to how it's been applied over time, the
precedent, the basic purpose underlying that particular provision. Why is the
word `freedom of speech' there? What does it mean? What does it refer to?
What are the values and the consequences of an interpretation one way or the
other viewed in terms of the basic underlying purpose? Now, as I say, I think
everyone--or almost everyone--uses those six tools.

Now where you get differences is that some judges want to emphasize more
history, language, tradition, and others will emphasize more the basic values
of purposes of the provision and look at the consequences in light of those
values. I'd put myself in the latter category. I emphasize those things, and
I think some others put themselves more in the former category.

GROSS: My guest is Supreme Court Justice Stephen Breyer. He's written a new
book called "Active Liberty: Interpreting Our Democratic Constitution."

Let me ask you about the establishment clause. And the establishment clause
says, `Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.' Now many people have pointed out that
there's nothing in the establishment clause that says anything with the words
`separation of church and state' in it. So how do you figure that notion of
separation of church and state? Where does that fit, I mean, since it's not
mentioned in the Constitution? Do you use that phrase as a guiding phrase?

Justice BREYER: It's sometimes helpful. When--we had two really--as I said,
they're all difficult, the cases that come to us. And surprisingly, perhaps
to some, there's a lot to be said on both sides of these issues. And that's a
very good example, the establishment clause. Same thing is true with the word
`freedom of speech.' The same thing is true with the word `liberty' in the
constitutional phrase, `Nobody should be deprived of liberty without due
process of law.' Those words do not explain themselves. Where the matter is
difficult, you have to go back to look at what would have been the underlying
value or purpose or principle that those words represented.

In the case of the establishment clause, my own view, which I wrote a few
pages about in the case involving the constitutionality of school vouchers,
vouchers the government would have provided that you could have used in part
for teaching at parochial or religious schools--in that case, I went into the
history of it. And it seemed, to me anyway, that the basic value in part in
that clause went back to the religious wars, the Protestants vs. the
Catholics, in Europe in the 17th century, where they killed each other,
murdered each other, had terrible, terrible wars, until finally they came to a
truce.

And the basic idea behind that truce was, `I will be free to teach my
religion, practice my religion, to have my children practice my religion. And
you will be free to do the same with yours.' Now that compromise suggests in
the religious clauses of the First Amendment an object to minimize, to try to
diminish, the terrible social dissention that can arise due to religious
dissention.

Today we're a country not of one or two or three religions but, really, of 50
or 60 different religious groups. And people feel very strongly about their
own religion. Given that tremendous increase in the size of the country, the
number of religious groups, the differences, it's particularly important to
try to diminish the dissention that can arise out of those religious
differences. So that, I thought, was one relevant, basic purpose underlying
the religious clauses, including the establishment clause.

GROSS: You recently weighed in on two decisions regarding the Ten
Commandments. One was pertaining to the Ten Commandments in courthouses in
Kentucky, and the other was pertaining to the display of the Ten Commandments
in the Texas Capitol. And you thought one was constitutional, the display in
the Texas Capital, and one was not, the display in--the courthouse display.
And you were the only justice to agree with the majority decision in both of
those cases. Can you talk a little bit about how you arrived at your decision
that one of these Ten Commandments displays was constitutional and the other
unconstitutional?

Justice BREYER: Yes. From the tone of your voice, you may think how could I
have been so inconsistent to come out one way in one case with the Ten
Commandments monument and the other way in the other case. It may help if I
refer--show you why--explain what I think is the underlying value, the need to
minimize, diminish social dissention based on religion. Keep that in mind. I
did keep it in mind, and then I looked at the two examples.

On the one hand, in the Kentucky case, it was a question of a monument that,
given all the facts and circumstances, I thought one could conclude was being
put into the courthouse primarily for religious purposes. And in doing that,
I thought there is a risk of the very kind of dissention based on religion,
religious purposes in the public place, that the establishment clause is there
to prevent.

In the other case, it was a Ten Commandments monument that had been on the
Texas state Capitol grounds for 40 years. No one had objected. It was there
for--with about 17 or 18 other monuments that had purely secular purposes. It
was there to illustrate the ideals of the people of Texas. There was so
little that showed a basic religious function, a basic primary religious
purpose, that I thought that one is probably all right, particularly since to
strike it down could have led to an effort to chisel Ten Commandment displays
off of public buildings throughout the country.

So to have, on the one hand, people try to put up religious monuments directly
and deliberate to encourage a particular religion and, on the other hand, to
go around and start chiseling off of public buildings monuments that did
depict the Ten Commandments--both of those things, in my view, could have
promoted the very kinds of dissention that the establishment clause is there
to stop, namely social dissention based on religion.

And, therefore, it seemed to me that neither does it require chiseling the
monuments off of the buildings, nor does it allow, deliberately for primarily
religious reasons, erecting a religious monument in a public building. And
that's why I said the Kentucky display, which was an example of an effort to
promote religion through a new monument, was forbidden and, in my opinion,
leaving the display on the Texas ground, which had been there for 40 years,
was permissible.

GROSS: My guest is Supreme Court Justice Stephen Breyer. He's written a new
book called "Active Liberty: Interpreting Our Democratic Constitution."
We'll talk more after a break. This is FRESH AIR.

(Fund-raising announcement)

(Soundbite of music)

GROSS: My guest is Supreme Court Justice Stephen Breyer. He's written a new
book called "Active Liberty: Interpreting Our Democratic Constitution."

Now let me ask you about another question pertaining to religion and public
life. And this gets to Article 4 of the Constitution; that, `No religious
test shall ever be required as a qualification to any office.' Do you feel
that there are times in public life today when that is being breached, when
there are religious litmus tests people are using?

Justice BREYER: You want to know--you see, this is why it's so depressing and
it'll be very difficult an interview for you because you really want to
know--is: What do I, as a Supreme Court justice, think about an instance that
you have, which is a very interesting kind of instance that's in your mind,
that you think might violate the Constitution? Well, one of the reasons I'm
under an ethical constraint not to talk about that kind of thing is that
whatever the rules of ethics are, they wisely warn me that it is very risky to
start talking about legal matters that I haven't thought. And I haven't
thought through that one, and I don't really know, and I can't discuss it
anyway for very good reasons.

GROSS: Now while we're on the subject of what you can and can't talk
about--and I don't know if you can talk about this--but when you were going
through your confirmation hearings for Supreme Court justice, how did you draw
the line between the questions that you felt you could respond to and those
that you felt would be inappropriate for you to respond to?

Justice BREYER: Probably pretty much the way I'm doing it now. I thought
that--I said in people--I explained and I think most people have explained,
because many people watch those confirmation hearings who aren't lawyers, who
don't--aren't intimately familiar with the codes of ethics--and I think I said
that there are a couple of reasons why you shouldn't talk about future matters
that can come before you. One reason is because if you were a litigant, you
wouldn't like to have a case before a judge who, in a legislative forum or
outside of the courtroom, had taken a view in a matter that he had not yet
decided as a judge. You'd be worried that instead of paying attention to the
legal argument, he would want--or she would want--to just validate what he
said before.

But the other most--the primary reason is how often I've learned, as a judge,
that my views expressed at a cocktail party or among friends is one thing. And
then after I read the briefs, think about it, hear the oral argument, talk to
my colleagues, it can be quite a difference then. The decision there is for
real. It's not just something you happen to think of at the top of your head.
It really matters. And that, I've learned over time, can be a very different
view than what I thought I thought at the cocktail party. Maybe I now think
something different after I've been educated.

GROSS: Now you were interviewed for the justice position by President
Clinton. This was for the position that Ruth Bader Ginsburg got in 1993, but
she ended up getting that position. And then in '94, when another seat opened
up, you were nominated by President Clinton for that. What was the vetting
and confirmation process like from your point of view? Here, it's a time when
you are so out there, you know. And everybody, you know--the judiciary
members, the press--everybody's looking for everything they can find on the
nominee. Was that a difficult time? I mean, were there--is it a very
uncomfortable process to go through?

Justice BREYER: It's not. I'd say this: that--and I've used this metaphor
before, too. It just draws the--asking about the confirmation process, the
appointment process--asking me that is like asking, you know, the recipe for
chicken a la King from the point of view of the chicken. I didn't do the
appointing, and I didn't do the confirming. I was the--asked a lot of
questions, and it was stressful. Of course it's stressful: 17 senators at
that time on one side of the table and me on the other side. And people are
watching on television. I think, luckily, I was sort of boring, and they
began to turn it off. That didn't bother me.

(Soundbite of laughter)

Justice BREYER: But, sure, certainly, it's stressful.

GROSS: Supreme Court Justice Stephen Breyer has written a new book called
"Active Liberty: Interpreting Our Democratic Constitution." He'll be back in
the second half of the show. I'm Terry Gross, and this is FRESH AIR.

(Soundbite of music)

GROSS: Coming up, hearing the arguments and forming an opinion for one of the
more important Supreme Court cases in recent history. Supreme Court Justice
Stephen Breyer tells us about the affirmative action case. And he'll talk
with us about being a junior member of the Supreme Court. He's written a new
book called "Active Liberty."

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross back with Supreme Court Justice
Stephen Breyer. He's served since 1994 when he was appointed by President
Clinton. The occasion for our interview is Justice Breyer's new book "Active
Liberty: Interpreting Our Democratic Constitution."

Justice Breyer, you've been the junior member of the court since 1994 when you
were appointed. And although Chief Justice Roberts is the newest member of
the court, I think, as chief justice he's kind of pre-empted from being
considered the junior member, so are you still the junior member?

Justice BREYER: Yes, but I get one vote just like everybody else.

GROSS: What are some of...

Justice BREYER: I say that with a smile too because being junior justice what
does it involve?

GROSS: Yes.

Justice BREYER: What it involves is when we're in conference by ourselves--we
almost every week or most weeks we're in conference and we discuss the cases
by ourselves in the conference room. We sit around a long--pretty long table
and the discussion goes around in order and there's no one else in the room.
And if someone knocks on the door, I open it. That's what being junior
justice involves. And they might have papers. They--occasionally somebody
knocks. I had--which was rather funny--we get on very well in the conference,
by the way, but someone knocked a couple of months ago and this was unusual.
They had some coffee for Justice Scalia. So I brought him a cup of coffee and
he said, `Well, you've been doing this for some time, haven't you?' He thought
that was funny. And I said, `Yes, and I've gotten very good at it.' And he
said, `No, no, you haven't. No you haven't.' So, I mean, it's fine. It's
fine. It's not a problem. I enjoy it, and that's what it involves. I also
report to the clerk's office the result of the votes on the petition for
certiorari and other matters.

GROSS: So, you know, in most...

Justice BREYER: And I'm last in the line. If there's a line for the
cafeteria, or whatever, I'm last. That's all right. I don't mind.

GROSS: This is the only part of the Supreme Court that sounds a little bit
like high school.

Justice BREYER: High school wasn't so bad.

GROSS: You know, in a lot of places it would be the intern who gets the
coffee, but I guess there aren't, you know, interns or anybody else allowed in
at the conference of the Supreme Court.

Justice BREYER: That's true, that's true. The conferences are efficient and
we discuss the matters that came up, the cases, what cases we're going to
grant, what petitions we're going to grant, a few other matters. And the
discussion is very orderly. It usually proceeds first with the chief justice
and then in order of the seniority: Justice Stevens, O'Connor, Scalia,
Kennedy, Souter, Thomas, Ginsberg and me. And then after everybody's had a
chance to speak once, people might speak twice and they might go back and
forth somewhat. The rule that nobody speaks twice till everybody speaks once
is a very good rule, I think, for every group. I'm last, you know, so it
benefits me. But it really promotes good feeling within the group. The key
to that conference, I've always thought, is that people are not arguing with
each other. They're stating their true reasons as to why they reached the
conclusion they do. And as long as people are talking about their true
reasons and not making an argument--I have a better argument than you, ha, ha,
ha--as long as it doesn't proceed like that, that you're stating the true
reasons you can have a fruitful discussion because then someone else can say
something that's directed to a point that's meaningful to the first person who
first spoke. The disc--I've never heard a word in that conference--I've never
heard a voice raised in anger despite the strong feelings on many, many issues
on both sides.

GROSS: How often would you say opinions actually get changed at that
conference?

Justice BREYER: Oh, opinions are often shaped--the shape of the opinion
eventually emerges. The discussion leads--everyone's taking notes about what
everyone else says and the discussion will shape the opinion that eventually
emerges. And as to whether--how often people go in thinking A and they come
out thinking B--the right answer to that is sometimes, not too often, but
sometimes. The pro--I can--I mean, if you'd like--I mean, over time I think I
have an idea of how I make up my own mind and how people make up their minds
about things. Do you want me to go into that?

GROSS: Sure.

Justice BREYER: You see what you think. When you have a tough decision or
any of the listeners, I think when we have a tough decision and you're trying
to organize it formally it isn't that you have no view as to the outcome. I
find from the moment I open the brief and see the question I have a view. But
I'll read the brief on one side--it's like the old joke, you read the first
brief, you say, well, he's right. Then you read the second brief, you say,
but he's right. Then somebody says they can't both be right. And you say,
yes, that's right. Your view shifts. You--it's a continuous work in
progress. You're keeping yourself held open. You're purposely--I am and
others are--purposely trying not to make a final decision until all the
information is in. And then occasionally after--because after the conference
opinion drafts are written. They're circulated. They're are dissents
circulated. And sometimes the court shifts. We call it the court flips
sometimes. Not too often, but sometimes. Then the decision comes down.
After it comes down what do most people think in a really hard, close case? I
don't think `It was so close I'm probably wrong.' I think, `It was so close
I'm glad I got the right side.' And then over time I might think, `Well, it's
not quite as close as I thought.' And over time you begin to think `My
goodness, how right I was.' Now I know that isn't always true, but that's
psychology. That's human psychology. That's human nature. And that means as
a practical matter in our court once we finish one difficult case we're onto
the next. We're very future looking. We don't go back and think `Oh, dear,
oh, how awful,' and mull around. Normally we just think, `Well, I think
probably I made the right decision. Anyway, I did my best and onto the next
one.'

GROSS: I don't know if you can talk about this but has there been
particular--any decision that particularly weighed on you, that you had a very
difficult time figuring out how you--where you stood on it?

Justice BREYER: They don't classify or break down in my mind by that highly
personal thing because many of them are quite difficult. I do tend to think
in terms of importance. I think, for example, a very important decision I
participated in is the affirmative action case, which was a difficult case.
It came out 5 to 4 to say some affirmative action is permitted under the
Constitution. The Constitution does permit some. I think that was a very
important case. I mean, there are others. There are others that stand out
for their importance.

GROSS: But with affirmative action if you felt like it was difficult to
figure out what your opinion was going to be, was there a kind of key bit of
information or a key part of your thinking that your decision finally turned
on?

Justice BREYER: Well, I think, that in that case--I write about that case in
this book. I write about it because I think it illustrates something. I--to
go back to the basic thesis is that we're--the Constitution creates a certain
kind of democracy with the parts about democracy. It's a democratic
institutions of a certain kind protected fundamental lib--protecting
fundamental liberty, a degree of equality, separation, division of powers,
rule of law. I want to say that that isn't just a Fourth of July speech, that
those things--and particularly I emphasize it's by far the--it's not the only
thing in the Constitution by any means, but I emphasize the democratic part,
the part of creating an inclusive democratic society.

Now in the affirmative action case, the particular constitutional phrase at
issue was the 14th Amendment phrase that `no state shall deprive any person of
equal protection of the law.' What do those words mean, equal protection of
the law? One group of people think that they mean the Constitution and the
laws--the laws, including laws affecting universities, must be absolutely
color blind, nothing negative on the basis of minority status, nothing
positive. Absolutely color blind.

There are others who think, no, if we go back to the purposes of that 14th
Amendment equal protection clause, we'll see that it was designed to take
people who had previously been in slavery and try to help bring them into the
mainstream of American society. That was its basic function. And that means
that laws that treat the minority group negatively are worse than laws that
treat them affirmatively because the affirmative laws are trying to further
that basic purpose. That doesn't mean they're all constitutional, but it
means there is a difference.

Now I promise you that there are good arguments for both those positions, the
color blind position, the purposive position. And one of the difficult tasks
of the court in that case was to choose which interpretation. Now, throw into
that mix a basic constitutional purpose to create participation by Americans
in a democratic society and ask yourself which of those two interpretations is
more likely to further that democratic purpose, one that seeks to include
minority groups or others that would--as businesses told us, the military told
us, unions, universities all told us in briefs--that if you have a color blind
interpretation, if we cannot make some small effort on the affirmative action
side, if that first theory prevailed we cannot run our institution very well.
Too many people will feel excluded. Well, I think that helped. It helped me
and it helped the court because that's what they wrote in the decision.
That's what Justice O'Connor based, in large part, her decision upon. The
fact that the Constitution is inclusive, that its basic purpose is to bring
people into a democratic political process and that helped show that that
purposive interpretation is, I think, the one that is constitutionally
correct.

Now, you see, I'm trying to show you how the basic democratic goal of the
Constitution can help, not dictate, but can help a judge reach a
constitutional decision even in a different area in a difficult case.

GROSS: My guest is Supreme Court Justice Stephen Breyer. He's written a new
book called "Active Liberty: Interpreting Our Democratic Constitution."

We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: If you're just joining us, my guest is Supreme Court Justice Stephen
Breyer. His new book is called "Active Liberty: Interpreting Our Democratic
Constitution."

You're a Supreme Court justice during a time when the expression activist
judge has been used a lot and I wonder what that expression means to you and
how you--what the impact of people using that expression is on justices like
you?

Justice BREYER: Well, people mean different things by it. It's never a
compliment. I think it's normally sort of insulting. Interestingly enough, I
think the phrase originated in an article that Arthur Schlesinger wrote about
the court that Truman and Roosevelt had appointed, those presidents--President
Truman, President Roosevelt--in 1947. And there were some people that were
criticized as having just substituted their views of social justice for the
law and then there were others like Frankfurter and Jackson who said it's very
important not to do that. Our job is to interpret what Congress wanted, not
to substitute our own views. Both sides were reacting against the pre-New
Deal court that had been criticized a lot for striking down New Deal efforts.

Now today I think it's fairly universal. The judges would say, `Of course,
what we're trying to do is we are trying with a statute what Congress wanted,
not our own views.' And so in terms of intent you could say, well, we're all
non-activists now in that respect.

Sometimes the word activist has been used to talk about remedial programs such
as went on after a segregation decision--desegregation, Brown, where there
were schools, mental hospitals, sometimes prisons that came under judicial
decree. I think there that isn't the current problem because Congress has
remedied many of those situations and they needed remedying and it's not at
all surprising that there had to be strong remedies after Brown vs. Board of
Education because had there not been an effort to make strong remedies nothing
would have happened, there wouldn't have been desegregation.

And then sometimes people use it to refer to how--the extent to which a judge
defers to Congress, is reluctant to strike down a statute of Congress. Are we
reluctant to strike down a statute as unconstitutional. Do we defer to the
will of Congress? Do we try to make that statute constitutional? Do we try
to avoid striking it down as unconstitutional? And if that's the meaning,
well, the statisticians who looked into it seem to say the ones who are--defer
the most to Congress are Justice Ginsberg, Justice Stevens and me. So it's
pretty hard to say now what this activism means except that we're against it.
We think judges--everyone thinks that judges have to--they have to follow the
will of Congress--that's the object. And the word's still used, but you'd
have to ask the people who use it what they mean.

GROSS: My guest is Supreme Court Justice Stephen Breyer. He's written a new
book called "Active Liberty: Interpreting Our Democratic Constitution."

We're living in a very politically divided country now. Do you feel the
impact of that division within the court? It always seems from the outside
looking in that the court is pretty divided, too. But, you know, do you feel
like those divisions in the court--or what's been called the culture wars--do
you feel that in the court or do you feel insulated from that?

Justice BREYER: It is something of an ivory tower and we do get on well
personally and people do have different views. As I said, I grew up at a time
when Franklin Roosevelt and--Presidents Roosevelt and Truman had appointed
every member of the court and when I was in high school it probably seemed
natural that democratic presidents would appoint every member of the court.
But that's not the system. What the Constitution creates is a system where
through life tenure. Different presidents probably from different political
parties will appoint different members and if those presidents think that
their appointee is always going to vote the way they think would be right
they're in for a surprise because justices don't. Teddy Roosevelt appointed
Oliver Wendell Holmes. He decides the first antitrust case in a different way
and Roosevelt says, `I could appoint a judge with more backbone carved out of
a banana.' He was pretty annoyed. Well, still presidents may try to appoint
judges who have--share a kind of basic philosophical outlook about the role of
law in American life, how it relates to people and there they may be more
successful. So inevitably there will be people of different points of view
and that's good. That's not bad. We're a big country. There are close to
300 million people. I'm sure you do have an idea of how many different groups
there are, races, religion, points of view. My mother used to say, `You know,
there's no point of view so odd that there isn't somebody doesn't hold it in
America.' Anyway, you understand the point. With a country like this, it's
really wonderful--not--not--it's wonderful that all these people have learned
how to get along. I see that in the courtroom every day. I see that every
day that they've learned how to resolve their differences under law and not in
the streets with sticks and stones or worse.

GROSS: Justice Breyer, thank you very much for talking with us.

Justice BREYER: Thank you.

GROSS: Supreme Court Justice Stephen Breyer has written a new book called
"Active Liberty: Interpreting Our Democratic Constitution." This is FRESH
AIR.

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* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Profile: Alfred Hitchcock's "Masterpiece" set on DVD
TERRY GROSS, host:

On Monday the cable channel Turner Classic Movies begins a week-long Alfred
Hitchcock festival and a new boxed set of digitally remastered versions of
Hitchcock films is now available on DVD. Called "Alfred Hitchcock: The
Masterpiece Collection" it features 14 of the English director's films
including "Shadow of a Doubt," "Rear Window," "Vertigo," "Psycho" and "The
Birds." Checking out the set our critic at large John Powers started thinking
about Hitchcock's enduring appeal and why his popularity continues when so
many other big Hollywood names have lost their luster.

JOHN POWERS reporting:

Alfred Hitchcock was the first movie director I ever knew was a movie director
and I knew it because me made me. Long before self-help experts wrote books
about the brand of me Hitchcock was busy marketing himself. He walked into
his well-known silhouette on TV's "Alfred Hitchcock Presents" and he turned
his movie cameos, which he began in 1927, into a ritualized delight. I
remember watching "The Birds" and my mom happily saying, `There he is' as the
manatee-shaped Sir Alfred left a pet shop with two white terriers.

Hitchcock's iconic status has only grown in the intervening years. A quarter
of a century after his death, he's the lone filmmaker famous before 1950 who
still looms large in the popular imagination. Even young people who shun old
movies put Hitchcock in the DVD player because they know that his movies are
going to be fun, Hitchcockian.

No intellectual, Hitchcock never had much interest in the outside world. He
had little to say about society, history or politics as a ...(unintelligible)
spy movie like "Torn Curtain" made abundantly clear. But Hitchcock did
something better than pontificate about politics. He filled his work with
indelible images and vivid conceits. All his good movies contain something
unforgettable: the crop duster sequence in "North by Northwest;" the gulls
slowly accumulating outside the schoolhouse in "The Birds;" the glowing glass
of milk in "Suspicion;" the tennis match in "Strangers on a Train" when every
spectator's head moves but Robert Walker's; and the idyllic small town that
harbors evil in "Shadow of a Doubt," Hitchcock's personal favorite among his
own films and an obvious precursor of things like David Lynch's "Blue Velvet"
and "Twin Peaks."

Not all his movies were hits, of course, but even at his worst he was a
masterful stylist, almost Flaubertian in his precision. In fact, his sense
of composition and rhythm were so immaculate that he barely needed dialogue.
Some of his greatest sequences are hypnotically silent, like Jimmy Stewart
raptly following Kim Novak around San Francisco in "Vertigo."

Nobody has ever been so good at creating a pervasive mood of suspense at once
unsettling and seductive, in part, because the menace is shot through with a
droll sense of comedy. Here, for instance, Anthony Perkins' Norman Bates is
having dinner with his future shower stall victim played by Janet Leigh right
after an argument with mother.

(Soundbite of "Psycho")

Mr. ANTHONY PERKINS (As Norman Bates): You eat like a bird.

Ms. JANET LEIGH (As Marion Crane): You would know, of course.

Mr. PERKINS: (As Norman Bates) No, not really. Anyway, I hear the
expression `eats like a bird' is really a fal--false--falsity because birds
really eat a tremendous lot. But I don't really know anything about birds.
My hobby is stuffing things, you know, taxidermy, and I guess I'd just rather
stuff birds because I hate the look of beasts when they're stuffed, you know,
foxes and chimps. Some people even stuff dogs and cats but I can't do that.
I think only birds look well stuffed because, well, because they're kind of
passive to begin with.

POWERS: Good stuff, yet it's worth noting that "Psycho" was the father of
today's slasher movie. With its dazzling cutting in both senses of the word,
the shower scene brought a new level of violence to the screen and this was
not accidental. Because his own psyche was haunted by fears and repressed
desire, he was notoriously hot for and cruel to his blond leading ladies. He
passed that emotional violence on to the audience. Where great Hollywood
directors like Ernst Lubitsch, Howard Hawks or George Cukor appealed to our
sense of freedom, playfulness and emotional generosity, Hitchcock was all
about manipulation. He liked to work audiences over and at this he was
peerless. His thrillers are thrilling, in part, because they're sheer
torture. Is there any more disturbing film music that this phrase from
Bernard Herrmann's famous score for "Psycho"?

(Soundbite of music from "Psycho")

POWERS: Hearing that again, you can understand why Hitchcock still feels so
current. His best work captures the paranoid assaultiveness and psychological
instability of modern life. In fact, Hitchcock revels in such things as other
great filmmakers never do. Part of his enduring power is that his brilliance
so often appeals to what's cheapest in our sensibility, our love of sensation
and fascination with violence. What keeps this from being abhorrent is that
Hitchcock seemed to know it. More than any other Hollywood filmmaker, he was
attuned to the psychological dimensions of watching, especially while sitting
in a movie theater. Even as "Rear Window" and "Vertigo" are brilliant
explorations of the internal process of filmgoing with its voyeurism and crazy
psychological projection, "North by Northwest" is a majestical confection
that's at least partly a post-modern riff on the audience's whole idea of Cary
Grant, who cruises through the movie like a yacht.

Some people make slices of life Hitchcock famously claimed. I make slices of
cake. This is certainly true, and I, for one, will keep devouring them on
DVD. Still, one should never forget that Hitchcock's cakes are laced with
strychnine and frosted with blood and that the taste for such tidbits is not
altogether good for you.

GROSS: John Powers is film critic for Vogue and the author of "Sore Winners."
The Alfred Hitchcock DVD collection was released by Universal Studios Home
Entertainment.

(Credits)

GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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