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Justice Breyer: The Court, The Cases And Conflicts

In Making Our Democracy Work: A Judge's View, Supreme Court Justice Stephen Breyer outlines his ideas about the Constitution and about the way the United States legal system works. Breyer explains how the justices debate each case on their docket, why he interprets the Constitution as a living document, and details what he thinks is the worst decision the high court has ever made.

38:03

Other segments from the episode on September 14, 2010

Fresh Air with Terry Gross, September 14, 2010: Interview with Stephen Breyer; Review of Ricky Skaggs' album "Mosaic"; Review of the film "Last Train Home."

Transcript

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Stephen Breyer: The Court, The Cases And The Conflicts

TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

It's not often that you get to ask a Supreme Court justice about how he arrives
at his opinions. So I'm very pleased to have as my guest, Justice Stephen
Breyer. He's written a new book called "Making Our Democracy Work: A Judge's
View."

He says he wrote the book to increase the public's understanding of what the
Supreme Court does. He explains how the court first decided it had the power to
hold federal law unconstitutional; how the court managed to gain and hold the
public's trust, even when its decisions have been highly unpopular; and how, in
Justice Breyer's view, the court should help make the Constitution work well
for contemporary America.

Justice Breyer was appointed by President Clinton in 1994. He's a former
Harvard Law School professor.

Justice Breyer, welcome back to FRESH AIR. It's great to read about the court
from the point of view of a Supreme Court justice. So thank you for writing the
book.

And let's start with your constitutional philosophy, that the Constitution
should be a living Constitution, that it needs to work for contemporary
Americans; whereas Justice Scalia, in the court, thinks that the Constitution
should be read more literally, and justices should keep in mind basically what
the framers had in mind and only that. Would you describe what you see as the
fundamental difference between the two points of view?

Justice STEPHEN BREYER (United States Supreme Court; Author, "Making Our
Democracy Work: A Judge's View"): I can say what I think. I think that we're
following an intention by people who wrote this document: Madison, Adams,
Washington.

I mean, the framers – Hamilton - they had an idea that they were writing a
Constitution. In that Constitution, they would create certain institutions. The
institutions were designed to create, basically, democratic systems of
government of a certain sort; protecting basic liberty, as it turns out;
ensuring a degree of equality; separating powers, so state, federal and three
branches so that no one has too much power; and assuring adherence to a rule of
law.

Now, those are very general statements, and much in the Constitution is written
in a very general way. Words like freedom of speech do not define themselves,
nor does the word liberty. And what they intended, I believe, with these very
basic values, in a document, would last for hundreds of years.

So they had values that changed, but little, while the application of those
values changes as circumstances change. They didn't foresee the Internet. They
didn't foresee automobiles, or television or radio. And yet they wrote words
that can apply to those changing circumstances.

GROSS: If we interpreted the Constitution only literally in the way that the
framers had in mind, would we still have slavery?

Justice BREYER: No, not necessarily. We fought a war against that, and the
Constitution didn't say you had to keep slavery. Rather, the framers tried to
postpone the issue. They thought it would go away. They were wrong. It
certainly didn't go away. It didn't go away...

GROSS: What do you mean they thought it would go away?

Justice BREYER: They thought eventually, or many of them thought, that
eventually, perhaps in 50, 60, 70 years, the South would come to the
realization that slavery didn't work and was an evil institution and would
abolish it.

And instead of that coming about, it seems, from what I read, that things got
worse, and we ended up in a civil war. And there is a lesson in this for the
court.

GROSS: Which is?

Justice BREYER: The worst case ever decided, the Dred Scott case; where the
Supreme Court said the descendant of a slave was not a citizen or a person who
could sue in the United States, even if he became free. That was a terrible
decision.

And the only justification I've ever heard for it, was that Roger Taney, the
chief justice, and the majority thought that by deciding that, they would avoid
the Civil War. It happened the opposite way. They fed the flames of the Civil
War. .

Abraham Lincoln said he couldn't believe that decision. He called it an
astonisher, a legal astonisher. And the lesson, in part, is that judges are not
very good politicians. And if you want people to decide politically, you better
let Congress decide, not the judges.

We're in an institution that is not really to decide, politically, and is to be
there in order to protect people who might be very unpopular.

GROSS: Let's look at an example where you tried to interpret the Constitution
as a living Constitution, trying to figure out the values of the framers, as
opposed to a literal interpretation. And you ended up being in the minority
decision on this one.

And I'm thinking of the Second Amendment case in Washington, D.C., about a law,
a local law prohibiting handgun possession and whether that violated the Second
Amendment or not.

So what was your thinking in deciding that this law prohibiting handgun
possession did not violate the Second Amendment? And let me just read the
phrase here, that we're considering. That 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.

Justice BREYER: Yes, that's what it says. And parts of that – I use this as an
illustration how, I would say, I very often and some others do approach
difficult constitutional questions.

And the first thing I think we want to know, is what are the values, what's the
basic objective of the Second Amendment? And their history is relevant.

And some people thought, the majority thought, that a well-regulated militia,
being necessary for the security of a free state, that that isn't the heart of
the thing.

The heart of the thing is the right of the people to keep and bear arms, and
that means to protect themselves from attack, even by burglars. The minority,
of which I was one, looked back over the same history, and they say: No. This
was put here for a particular reason.

What happened was that Madison and the others who wanted the Constitution faced
opposition from states, and the states were afraid that Congress would call up
state militias as part of the federal army and then disband them, and the
states would not be protected.

Don't worry, says Madison and Hamilton - we will write these words into the
Constitution, and they will protect the states' right to have a militia.

Now the minority thought that was the basic value underlying these words. So
there was a disagreement. If, in fact, you accept the minority view - look back
at the words, look back at the language, look back with the history - this does
not have much to do with keeping a pistol on a table to protect yourself from a
burglar.

Now the second half is assume the majority is right, which I did not assume
they were right, I don't believe they were right, but I'll assume it for
arguments sake.

Still, on the assumption that they're right, and this has something to do with
keeping pistols next to your bedside, the question is, what does it have to do
with it?

The District of Columbia had passed a law which said that you cannot have
pistols in the District of Columbia. And the question would be: Is that law
prohibited by the Second Amendment as the majority interprets it?

And I thought, and the others in dissent thought, the answer is the District of
Columbia can pass such a law, because it serves a very important objective:
saving lives from burglars, from accidents, from suicide.

And it is overwhelmingly important. But you see, what we're trying to do there,
is to work out: Is this kind of prohibition that the District of Columbia has
proportionate? Is it fair? Is it reasonable in light of the ends, the
objectives, the values in the Constitution?

GROSS: When you were having - when the justices were having a spirited debate
about this handgun decision, did you ever think that you would actually change
anybody's mind except perhaps a swing voter like Justice Kennedy? Did you ever
think there was any chance, on the face of the Earth, that you would change
Justice Scalia's mind on this?

Justice BREYER: I might. What you're doing, you see what you're – I see how
you're thinking. And this is probably because this is your job, and the press's
job is to take those decisions that are, that usually have very great
visibility because they're political. So they're in the newspaper.

But you should remember, first of all, that probably 40 - 30 to 40 percent of
our decisions are unanimous; that the five-fours account for maybe 20, 25
percent; and it isn't always the same five and the same four. And so we
discuss, and it isn't always a sure thing.

GROSS: In terms of your ability to change other justices' minds, particularly
the mind of Justice Scalia when it comes to a decision like handguns, I think a
lot of Americans, a lot of court watchers, court reporters, see this court as a
court with a bloc of activist conservative judges who are very strongly
conservative and are very consciously trying to move the court and the country
in a more conservative direction.

And I'm wondering, from your seat on the bench, if you would agree with that
perception?

Justice BREYER: I'd say this about the perception. Put it in context. Put the
perception in a context where you're probably talking about a very small number
of cases, maybe 10 cases out of 80 or 90 during a year.

Then put it in a context where people, in trying to change other people's
minds, all know that the other people want to change their minds. And the way
to change somebody's mind is to make certain your own mind is open and that you
have a genuine discussion.

Not in every case can you possibly have such a conversation, because there
might be - you're too distant. There might not be a point.

And then remember to put in context when you use the word political. Of course
it's understandable that the press, in writing about the court and the
political scientists in describing the court, want to describe this in ordinary
political terms.

But one of the reasons I wanted to write this book is I wanted people to put
that phrase in context. In the sense of pure politics, I don't - politics, I
worked in the staff of the Senate, I've been – I know some pretty good
politicians, and that isn't what a judge is. And that isn't what we do.

Now, you say well, what about ideology? I'll say ideology, pure ideology, are
you an Adam Smith free enterpriser? A Mao-Marxist troublemaker or something?
That kind of thing doesn't influence it much.

But a person's basic values, over time, of course people develop approaches as
to how legal questions could be solved better.

GROSS: I think that the...

Justice BREYER: Yeah...

GROSS: I think the perception is that presidents, particularly some presidents,
appoint judges because of their politics, because they're conservative or
because they're liberal.

Justice BREYER: Teddy Roosevelt appointed Oliver Wendell Holmes, and within
three months, I think, Oliver Wendell Holmes had decided away a very important
case, antitrust case, contrary to the way Roosevelt thought. He was in dissent
in the Northern Securities case.

And Teddy Roosevelt said: I could carve a judge with more backbone out of a
banana. He was pretty annoyed. So if presidents think they're going to get the
decisions that favor them out of judges, sometimes they're right, and sometimes
they're wrong.

But if what the president is trying to do, is trying to appoint someone who, in
law, has a general view of the country and how law relates to people and what
it's about that is closer to his own, a president will be more successful,
perhaps, not completely successful always.

Now, that means that judges over time will, there will be a diversity of ideas
on those very basic jurisprudential or philosophical points on the court.

This country is a country of 300 million people or more. And people think very
different things, and it isn't a bad thing that quite different, basic
approaches are represented on that court. And I keep that in mind in those
instances where I'm so certainly certain I'm right.

GROSS: My guest is Supreme Court Justice Stephen Breyer. His new book is called
"Making Our Democracy Work: A Judge's View." More after a break. This is FRESH
AIR.

(Soundbite of music)

GROSS: My guest is Stephen Breyer, Justice Stephen Breyer, and he's written a
new book called "Making Our Democracy Work: A Judge's View."

One of the things you write about in the book is the question of when the
Supreme Court was established, would people follow the court's decisions?

And, you know, you write about a decision with Andrew Jackson as president,
where he didn't follow the court's decision; and then you write about President
Eisenhower, who sent in troops to uphold the court's decision in Brown versus
Board of Education, when the South wasn't desegregating schools as they were
told to by the Supreme Court.

In the Bush v. Gore decision, which you write about, and you were in the
minority on that, you thought that the court shouldn't have heard the case, and
if they did hear the case, they should have decided differently. You point out
that Al Gore went along with the decision.

Did you ever think, after Bush v. Gore, that Al Gore wouldn't go along with the
decision or that the decision would be so unpopular that there would be massive
demonstrations or rioting in the streets?

Justice BREYER: No, I didn't think that, and I don't think many people did. And
what I show in this first part, that that is not just a given, but it reflects
a lot of history, and it's a positive direction.

That wasn't true, as you pointed out, in the Cherokee Indian case. It required
the 101st Airborne in the case involving segregation in Little Rock. And it was
more or less taken for granted.

I've heard people say, including Senator Reid - one of the most remarkable
things about the case is something that isn't often remarked, and it's just
what you said. It's that people did not turn to guns or battles in the street.
They more or less accepted decisions they thought were wrong, and I agree with
them, it was wrong. But I think it's a treasure that we do accept the decisions
of the institution.

GROSS: When you accept a decision like that, that you really think is wrong and
that, you know, had a profound effect on the country, can you just kind of like
let it go and move on to the next decision, or does it eat at you and upset
you?

Justice BREYER: It upsets me. It upsets me, but I know that tomorrow is another
day, and we'll have other decisions.

GROSS: So, let me ask you about another decision. One of the things you write
about in your book is how the court tries to uphold previous courts' decision,
but sometimes a court decision really needs to be overturned - an example being
Plessy versus Ferguson, which said separate but equal is okay. And then it took
Brown versus Board of Education to say no, separate but equal isn't okay, and
schools had to be desegregated.

So you were recently weighing in on a Supreme Court decision that kind of
overturned previous court decisions, and I'm thinking about the Citizens United
case, which gave corporations the right to give unlimited funding to
candidates, because to restrict the funding would violate the corporations'
right to free speech.

And a lot of critics of this decision said, well, you're basically giving a
corporation the right of a human being to free speech, and a corporation isn't
a human being. So what decisions do you think that decision overturned?

Justice BREYER: Well, there were number. They're listed. John Stevens wrote a
long dissent, and the four dissenters agreed with that dissent. And he found
instances going back many decades, where he thought that the power of the state
to regulate the contribution of a corporation or a labor union was pretty well-
established.

GROSS: So what was the argument within the court, if you could give it, between
overturning these decisions and not? Because one of the paradoxes that I think
a lot of court-watchers saw in this decision, was that judges who oppose,
quote, "judicial activism" ended up overturning precedence.

Justice BREYER: The people who were for it, thought that the deviation from
prior precedent was not great and that the Constitution, the heart of it, did
permit the corporations to give the money to further speech, political speech.

The persons against it, thought the contrary. I can't easily summarize the
opinion, and I'm reluctant to, because what's written is what's there, and what
is – it's best to let other people do the summaries, and it's best to encourage
people to read what they want to read there.

The power of the opinion is important. That's where we put down our reasons.
That's where we support our reasons. That's where we can be criticized. I think
most judges will go into a job like mine, and they'll think some decisions
should be overruled.

As you said, Plessy versus Ferguson had produced a country that was divided and
segregated by race, contrary to what the 14th Amendment assures. And that had
become apparent by the time of Brown, that it was contrary - it did not produce
an equal protection of the law.

So the decision was overruled, and I think most of us would say, correctly so.
But that doesn't mean you can overrule every decision with great ease, because
that way lies chaos.

So one of the more difficult things for judges to decide is when you overrule
decisions, and there are helps in the standards that have been laid down for
that. But ultimately, you have a need for stability and not overruling that
must be respected, and sometimes you think it's necessary in order to get to a
truer meaning of the Constitution, to overrule the past.

GROSS: Have you ever decided to overrule a decision?

Justice BREYER: I'm sure that I have, and...

GROSS: If you could think of an example.

Justice BREYER: Yes, I can.

GROSS: Great, because I'd love to hear how you weighed it, yeah.

Justice BREYER: The one that I was on the decide – the side, was the Bowers v.
Hardwick, which talked about the right of the state to forbid homosexual
conduct. And that was later overruled by the court, and I joined the decision,
overruling that earlier decision.

And there were a set of reasons there, which included the fact that this law
was rarely enforced, that it allowed the police to enter the bedroom, that
there was no specific harm being done and that the court, the first time,
deciding the case, decided not too much previously, had made in the majority's
view a number of serious errors that meant less protection for a group of
people who were going to have this law enforced, perhaps arbitrarily, against
them.

GROSS: My guest, Justice Stephen Breyer, will be back in the second half of the
show. His new book is called "Making Our Democracy Work: A Judge's View." I'm
Terry Gross, and this is FRESH AIR.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross, back with Supreme Court Justice
Stephen Breyer. He's written a new book called "Making Our Democracy Work: A
Judge's View." He served on the court since 1994, when he was appointed by
President Clinton.

The Florida preacher who threatened to burn the Quran, some people said well,
that's his free speech right and then, but what about the rights of Muslims who
would be offended to the core, outraged by that act? As a Supreme Court
justice, I wonder how you looked at - if you're willing to talk about it - how
you looked at that event and if there's the possibility that burning a sacred
text of any religion would be considered a hate crime. Like, how do you balance
all of the rights and positions involved in a situation like that?

Justice BREYER: Well, I don't look at those things that - issues and so forth -
that might come up in the future, because if they do come up in the future,
I'll have the issue in front of me and it will be very, very well briefed.
They'll be lots written about it and I'll be able to form a more intelligent
opinion. I would say that where you're talking about the freedom of speech and
something like this preacher or anything like that, I would keep two cases in
mind.

One is years ago, Justice Holmes said you cannot shout fire in a crowded
theater because that could kill people. Very well. That sets limits to the
freedom of speech. But the court also said where an American flag is being
burned in protest, that the Constitution protects that because it is a purely
symbolic action which is being done, despite how much people hate it, to
express a point of view. So, we probably, were we to have such a case, we'd
have to have a law in front of us, see what it says, see what the actions are.
But I've given you an outline, which sort of sets boundaries.

GROSS: You've been in the Supreme Court since 1994. What are some of the ways
you've seen the court change since then?

Justice BREYER: Well, it's gotten a little harder for me in some respects.
First few years I - pretty nervous about whether I could do this job. Then you
adjust to it. And I think that over time, I work pretty well with some of the
members there and I was...

(Soundbite of clearing throat)

Justice BREYER: ...quite often in the majority and then Justice White said
years ago, that with every new member it's a new court and we've had a number
of new members and the court's changed and people learn to work with each other
again and there we are. I'm more in the dissent now, if you want a more precise
statement, that's it.

GROSS: And what's the difference between being in the dissent and being in the
majority when you come to work every day? Like...

Justice BREYER: I prefer to be in the majority.

GROSS: Mm-hmm. Okay.

Justice BREYER: It's not quite as nice to be in the dissent. For one thing,
people pay less attention and you have the law going the way that you think is
wrong.

GROSS: How would you compare the Roberts court versus the Rehnquist court?

Justice BREYER: Well, from the personal point of view you said it. The Roberts
court is one where so far I've found myself more in dissent. You want a
characterization in terms of conservative and liberal, but that's not my job.
That's your job. That's the job of the press and the public to characterize. My
job is to decide the cases, write the decisions as best I can.

GROSS: I guess I was wondering if you think Chief Justice Roberts is different
as a chief justice than Chief Justice Rehnquist was.

Justice BREYER: Every new appointment is different. Every new person who comes
on makes it a different court. So the difference is not just the individual,
it's the reactions of the others to that person. White said that some time ago
and I have found truer words were never spoken.

GROSS: But do they run the court differently to the extent that the chief
justice runs the court?

Justice BREYER: No. No. The chief justice in charge of administration. But each
of us has a vote and each of us votes on everything. And the one power that the
more senior members have, and the senior justice is the most senior, the chief
justice, is that in those cases where there is a - if the chief justice is in
the majority, he will say who writes the opinion in the case. But there are
constraints. We all write the same number, approximately, of cases over the
year. And quite often, the assigning, who is going to assign the case, it sort
of answers itself, that question. It's fairly obvious from what people say in
the conference. So there is some additional authority there but not additional
voting authority.

GROSS: You know, when I interviewed Jeffrey Toobin, the legal correspondent for
CNN and The New Yorker, and this interview was not too long ago, shortly before
Justice Stevens retired, Toobin said something that really just astonished me,
which is that sometimes in courting a swing voter, they will be told that they
can write the opinion if they're in the majority and that's a kind of a little
carrot that can be presented to the swing voter as incentive to vote with the
team that wants to be the majority.

Justice BREYER: I wouldn't - that's true but I don't put it in that way. Look,
put yourself in the courtroom in our conference. There is an issue. It's either
A or B. The first four people say A. The second four people say B. And there I
am, the most junior member. I say I don't know. Who will you assign that
opinion to? You have to assign it to me.

GROSS: Why?

Justice BREYER: Because your job as chief, if you're the - your job is to get a
majority for a position. The job of the court is to decide. You have to assign
it to me because I'm uncertain. And however I go, so will go the court. So I'm
the only one that will produce a majority. Since the others are certain and I
am not certain and it's four to four, the canics(ph) of the court require it to
be assigned to me.

GROSS: But is that political?

Justice BREYER: You tell me how...

GROSS: Is that political, getting you to do it as an incentive?

Justice BREYER: No it's not - no. No.

GROSS: No?

Justice BREYER: No. It's nothing to do with an incentive. It is to do with what
the court is supposed to do, which is the court is supposed to decide cases.
That's our job and we decide one case after another. Now, how can you get a
decision of a court in that circumstance without assigning the case to me?
Because I will be the one who determines whether it's A or whether it's B. Now
that circumstance does not arise often but sometimes it does.

GROSS: Were...

Justice BREYER: And so I learned from that that if I don't want to write the
decision in such a case, I better say I'm pretty sure.

(Soundbite of laughter)

GROSS: Were you in that position of being uncertain...

Justice BREYER: Sure. I have been.

GROSS: ...and then you (unintelligible) to write the opinion?

Justice BREYER: I have been. That has been the situation in some instances.
Occasionally that's happened. That happens with everyone. And that's why I say
sometimes the assignment decision, it decides itself.

GROSS: So how, I don't know if you could give us an example of this, but in a
situation where you were uncertain, how did you make up your mind?

Justice BREYER: I've been uncertain in that sense fairly - it's not totally
rare. I mean, I just had a case where I really thought that I was going to join
this particular person's opinion. I really thought that was the better opinion.
But I thought before I make my mind up definitely - and it wasn't one I was
writing in - before I make up my mind definitely, I want to sit down and review
them.

And I went down, sat down, reviewed the opinions and then thought about it for
a while and said I can't join that other one. Not that it's wrong, but it's
more consistent with what I've generally been thinking and really have thought
generally to join the other opinion. So I joined the other opinion, having
thought that first I wouldn't.

And that's what Sandra O'Connor means when she says that when you're there for
a while you create footsteps. That is, you take approaches and there's a need
to be consistent with what you've said before. You don't want judges who feel
they're jumping from one thing to another in terms of their general philosophy
or outlook. So what you do is sit down, think about it, and then you reach a
decision.

I'll tell you something interesting about that too, if you want - human nature.

GROSS: Sure. Yeah.

Justice BREYER: I've found it interesting. I bet it's true whether you're in
business, whether you're in law, whatever field of life you're in, you have a
tough decision to make, really tough, and you think, my goodness, this is
evenly balanced. Oh my goodness, what will I do? But I'm sorry, time is
passing. You better make up your mind. And so you do and you think this side
has a slight edge. Now time passes. Do you think you think I might have been
wrong? No. As time passes you begin to think, I think I was probably right.
More time. Yeah, I was right. More time. I sure was right. More time. How did I
think the opposite? That is called the self-protective psychology of human
nature.

(Soundbite of laughter)

GROSS: That's been your experience on the court?

Justice BREYER: By and large.

GROSS: No regrets?

Justice BREYER: Well...

GROSS: But have there been decisions where you really lost sleep in trying to
figure out which side you were on?

Justice BREYER: Yes, I would say. It's an uncomfortable feeling. It's a kind of
void before you begin to make up your mind and before you were - and it happens
a lot. You read - it's not that you don't have a point of view. You know, you
read the first brief and there is the question, say I bet I know how that comes
out. But then you read the next brief and you think, oh my God, no, it comes
out the other way. And then you go back to some of the reply briefs and say,
oh. And then in the oral argument you can go back and forth. That doesn't mean
you don't have a point of view. And it doesn't mean that you're not open-
minded.

Open-minded is you may well have a point of view but you're open to changing
it. And I've discovered that - that quite a lot. It isn't really a void. It's
that you are not quite easy so far with your decision. It's like that old joke
about the judge. The judge says to the, he hears the well, the plaintiff and
says, you're right. You're absolutely right. The defendant says judge, you
haven't heard me. Says okay, what do you have to say? Listens, says, you're
right. You're absolutely right. And the plaintiff says hey, judge, I mean you
said I was right, now you say he was right. We can't both be right. And the
judge says you're right. You're absolutely right.

(Soundbite of laughter)

Justice BREYER: More like that than you think.

GROSS: So, the outsider perspective is that all arguments now in the court are
pitched to Justice Kennedy because he's perceived as the swing vote.

Justice BREYER: You're probably thinking of some cases, which is going to be a
minority out of the 80. And you're probably thinking that you can read what
he's thinking. I've learned over time I can't necessarily read what the others
are thinking. I find out best when I'm talking to them in the conference, then
I'll know.

GROSS: You were the junior member of the Supreme Court for many years and now
there are - you are not.

(Soundbite of laughter)

Justice BREYER: That's true.

GROSS: And there's two very new members now, Elena Kagan and Justice Sotomayor.
So does that change your experience a lot, not being the junior member?

Justice BREYER: No. The junior member opens the door in the conference when
somebody knocks and they usually have some papers that somebody forgot. So the
junior member hands them the papers. Sometimes you might hand somebody a cup of
coffee. I handed Justice Scalia a cup of coffee. He said you've been doing this
for a long time. I did. I did it for 11 years. I said yes, and I've gotten very
good at it. And he said. No you haven't.

(Soundbite of laughter)

Justice BREYER: (Unintelligible) and there we are. That's - the junior member
is not a significant matter.

GROSS: And in terms of how...

Justice BREYER: (Unintelligible).

GROSS: ...of how you think and your position as a leader in arguments?

Justice BREYER: The argument isn't just simply the argument and discussion. It
may be sometimes an advantage to go first, earlier in the discussion, because
then people listen to you and their minds are less made up. But it also can be
an advantage to go last because then you've heard what other people say and
what you say can be affected by what they said. So sometimes it works out one
way, sometimes it works out the other.

GROSS: Well, Justice Breyer, thank you so much for talking with us. I really
appreciate it.

Justice BREYER: Thank you.

GROSS: Justice Stephen Breyer has written a new book called "Making Our
Democracy Work: A Judge's View." You can read an excerpt on our website,
freshair.npr.org.

Coming up, Ken Tucker reviews Ricky Skaggs' new album of pop, gospel...

(Soundbite of laughter)

GROSS: ...pop, gospel, bluegrass music. This is FRESH AIR.
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Ricky Skaggs: A 'Mosaic' Of Modesty, Openness

TERRY GROSS, host:

Ricky Skaggs has been playing the mandolin professionally since the age of six,
when he performed on stage with Bill Monroe. He became a mainstream country
music star in the 1980's. In recent years, Skaggs has been performing in a more
traditional bluegrass style, sometimes with a gospel influence. The latest
result of this is "Mosaic," a pop, gospel, bluegrass collection.

Rock critic Ken Tucker has a review.

(Soundbite of song, "Mosaic")

Mr. RICKY SKAGGS (Musician): (Singing) Carve my name upon a tree. And I've been
to the bar trying to make a mark so they'd remember me. Wanting to matter to
someone, maybe be a reason why, be the apple of an eye before my life is done.

And all I'm saying, I'm in a place where, all I'm praying, I see my face in one
mosaic. And I am a piece in the deal, and it is real.

KEN TUCKER: From the opening verses of "Mosaic," it's clear that Ricky Skaggs
is fine-tuning his music, shifting his sound slightly. Skaggs is singing about
his Christian faith in strong yet delicate tones. But the tunes aren't the
rigorous bluegrass ones we've come to expect. Instead, he's trying out
variations on pop melodies, and he frequently sets his mandolin aside so that
his plaintive declarations can be heard with greater starkness. On "My Cup
Runneth Over," it's Peter Frampton who provides the guitar hook.

(Soundbite of song, "My Cup Runneth Over")

Mr. SKAGGS: (Singing) You ask is it half empty? You ask is it half full? You've
seen that on a T-shirt and you heard that line in stores. Well, it's really
very clever. Let's don't play by no rules. If I give a different answer would
you think of me a fool?

None of the above...

TUCKER: Skaggs has spent most of his career either writing his own material or
covering traditional bluegrass, country and gospel music. On "Mosaic" however,
Skaggs has a new source of material, one that provides a different sensibility
for this project: Every song was written or co-written by Gordon Kennedy, who's
also written songs for Eric Clapton, Garth Brooks, Bonnie Raitt and many
others. Working with Kennedy's material, Skaggs is singing with a new alacrity.
The material risks melodrama, but at its best, singer and song achieve the
power of forthright modesty.

(Soundbite of song, "Instead")

Mr. SKAGGS: (Singing) When I was brought to judgment twas nothing I could say.
And guilty was the verdict, still I am walking free today. And I am the
keeper's sinner. Should have been left for dead. My penalty, death on a tree,
Jesus paid instead.

TUCKER: Something in the chemistry that occurs in mixing Gordon Kennedy's
melodies, the Christian imagery of the lyrics and the surging vocals results in
music that is both vivid and thoughtful. Skaggs has said in a couple of
interviews that he hears Kennedy's songs and their mutual arrangements of them
as having a Beatles feel. That may be an ideal in his own mind, but it suggests
what a break with his past he considers this material. To my ears, the songs
frequently capture the artistic paradox of good gospel music: expressing humble
piety through bold, passionate performances. On this song, "I'm Awake Now,"
Skaggs is joined by his daughter, Molly Skaggs, for a lovely, irresistible
collaboration. You don't have to have a shred of religious belief to be charmed
by the combination of Molly's voice and her father's mandolin.

(Soundbite of song, "I'm Awake Now")

Ms. MOLLY SKAGGS (Singer): (Singing) I'm awake now, no mistake now. I'm awake.
It's okay, now. I'm safe now. I'm awake, I'm awake. I'm awake now.

For those of you who think I'm sleeping as you stand beside the bed. For those
of you, who may be weeping, don't look for me among the dead.

I'm awake now, no mistake now....

TUCKER: If the Gordon Kennedy songs that fill out "Mosaic" have given Ricky
Skaggs a fresh sound, Gordon Kennedy's tunes certainly benefit from being
performed by Skaggs. The singing frequently redeems a treacly turn of phrase or
a maudlin melody. The pieces don't just fit together on "Mosaic," they lock
into place with a firmness, an inevitability, that sounds as though chance or
faith or fate have little to do with it. I prefer another, even simpler term:
art.

GROSS: Ken Tucker is editor-at-large for Entertainment Weekly. He reviewed
Ricky Skaggs' new album, "Mosaic." You can hear three tracks on our website,
freshair.npr.org.

Coming up, John Powers reviews the new documentary about some of the
consequences of modernization in China on family life. This is FRESH AIR.
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Taking 'Last Train Home' Shows Changes In China

TERRY GROSS, host:

Over the last 30 years, China has undergone the hugest modernization in
history, going from essentially a third world country with a billion people, to
having the second largest economy in the world. The statistics about China's
growth are so staggering that it's easy to ignore how such a transformation has
changed the lives of hundreds of millions of people. That change is the subject
of a prize-winning new documentary "Last Train Home," which has begun rolling
out in theaters across the U.S.

Our critic-at-large John Powers says that it is a superb portrait of
individuals trying to figure out their place in a nation that's changing at
lightening speed.

JOHN POWERS: Back in the 1980s, the culture critic Marshall Berman wrote a
brilliant book called "All That Is Solid Melts Into Air." He argued that the
great drama of modernity is the way that people go from being passive objects
of modernization - mere tools of history - to subjects who struggle to define
their own relationship to a world in which everything is changing.

Never has such change happened on a greater scale than in modern China. The
different ways individuals deal with this is the subject of "Last Train Home,"
a gorgeous new documentary by Lixin Fan, a Chinese filmmaker based in Montreal.
Shot over three years, "Last Train Home" deals with an amazing social fact,
every single Chinese New Year 130 million migrant workers leave the cities and
return home to their rural villages. The movie puts a human face on this
migration by showing its affects on a single family.

Suqin and her husband Chunghua, originally come from a remote village in
Sichuan province, but for the last 17 years they've been living in the mega-
city of Guangzhou where they sleep in barracks, slave away in a garment
factory, and give their savings to their family back home. When we first meet
them, they're about to make the two-day trip home to their village to see their
two children, their sullen 17-year-old daughter, Qin, and her younger brother
Yang, who by law aren't allowed to live with them in the city. Suqin and
Chunghua are stoked, and we anticipate a happy reunion.

But when they arrive, dispensing toys and cell phones, we discover that things
are not as we expected. Suqin and Chunghua see themselves as doing what it
takes to brighten their kids' future, and they're upset that Yang's class rank
has dropped from number three to number five. In contrast, their children view
them as bossy absentees who care more about making money than looking after
them, and things only go downhill from there.

Not that "Last Train Home" is grim or doleful. Fan shot the movie himself, and
his images are absolutely ravishing. And he's put the story together with the
help of Mary Stephen, an editor best known for her work with Eric Rohmer, who
has a novelistic eye for detail. Together they've achieved that rarest of
beasts - a documentary that's lively as well as deep, that's heartbreaking yet
doesn't wallow in depression.

Structured around three annual journeys home, the movie tells a story at once
epic and intimate. The epic side comes out in the second year, when Suqin and
Chunghua spend days caught in a train station queue so vast and devouring that
you almost long for the calm of a soccer mob. These crowds remind us that the
family we're watching is only one of tens of millions like it. You see,
modernity is roaring along like a runaway train in China. In fact, things are
happening so fast that, from one generation to next, people have wildly
different ways of being modern.

Eager to escape the millennial drudgery of subsistence farming, Suqin and
Chunghua embrace the new economic freedoms. They move to the city to give
themselves, and their family, a better life, and they feel that they have. But
because they were raised in the austere values of a Maoist peasantry, they do
all this in the spirit of stoic self-sacrifice. It's impossible not to be
touched by both their self-denial and by their sadness that their children
don't seem be honoring their part of the bargain.

But their kids were born into a later, hyper-capitalist China, and we don't
really blame them for having their own ideas of how to be modern. They don't
want to be A students like their parents expect, don't want to spend their
lives sacrificing themselves in the name of the future. Qin in particular,
can't wait to abandon school, get out of the boondocks and move to the city
where, surrounded by high-rises and neon and the intoxicating whir of the now,
a girl can have some fun.

Although we fear that Qin will be a lamb to the slaughter, "Last Train Home" is
no morality tale. Fan realizes that he's chronicling a transformation so vast
that there are no easy conclusions about how people should live. He knows that
once the genie of modernity has been let out of the bottle, individuals are
left to ride the whirlwind of history. They have to make it all up as they go
along.

GROSS: John Powers is film critic for Vogue and vogue.com. He reviewed "Last
Train Home." You can see clips from it on our website, freshair.npr.org.

I'm Terry Gross.
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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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