"FOX NEWS SUNDAY" HOST CHRIS WALLACE: It's highly unusual for a member of the U.S. Supreme Court to come on a Sunday morning talk show. In fact, it's never happened in the 10-year history of this program. That is until this week, when I spoke with the author of the book "Active Liberty."

(BEGIN VIDEOTAPE)

WALLACE: Joining us now in studio, Justice Stephen Breyer of the U.S. Supreme Court.

And, Mr. Justice, welcome to "FOX News Sunday."

SUPREME COURT JUSTICE STEPHEN BREYER: Thank you.

WALLACE: Let's start with the title of your book, "Active Liberty." I'm sure that there are some conservatives out there who break out in hives when they hear a judge talking about activism. They get the idea you think it's OK to read all sorts of things into the Constitution so you get the results you want.

BREYER: I think the best description in one sentence of that title, "Active Liberty," is that the point of the book is we don't need activist judges; we do need activist citizens. And it's about not how judges should be activists. To the contrary, it's about how every citizen should participate in government.

WALLACE: But let's talk about that. Because in your book, you say that judges have various tools when they decide a case. And more important even than the language of the law, you say, are the purpose of the provision and the consequences of deciding it one way or another.

I want to put up a quote from your book and take a look at it, if you will. Here it is: "Since law is connected to life, judges, in applying a text in light of its purpose, should look to consequences including contemporary conditions, social, industrial and political, of the community to be affected."

Justice Breyer, when a judge takes it upon himself to interpret what purpose the founders, the framers meant when they put something in the Constitution, doesn't that allow them, a judge, to do almost anything?

BREYER: No, I think it's the contrary.

You see, it takes place in a context. I think whether you are a judge on my court or whether you are a judge on a court of appeals or any court, and lawyers too — and if you're interested in law yourself, you'll be in the same situation — you have a text that isn't clear.

If the text is clear, you follow the text. If the text isn't clear, you have to work out what it means. And that requires context.

The freedom of speech. Do you know what it means? Basically. But you don't know its entire content, and it doesn't tell you itself. Those words, "the freedom of speech," "Congress shall pass no law abridging the freedom of speech." Neither they, the founders, nor those words tell you how to apply it to the Internet.

So what can you use in a tough case to figure out how the First Amendment applies to cable television and requirements that cable carry over-the-air stations? How do you do it?

WALLACE: Well, let me give you another example, a very specific example. You voted in 2003 to uphold the McCain-Feingold campaign finance reform law.

Now, you acknowledge that by setting spending limits on advertising that you were, as you put it, interfering with free speech. But you said that there is a higher purpose here.

Higher than the First Amendment?

BREYER: That isn't quite what I said. I think what I said was, when you get a case like that, you start to look to slogans to decide the case. It won't work.

The First Amendment itself, "the freedom of speech," doesn't tell you the answer. Nor does a slogan.

If you want to use the slogan, "Money is at stake, not speech," that seems to work. That means they can regulate anything. But if you think about it for two minutes, you realize that money is very important to speech, because no one can run for office and have his message heard without money. So the First Amendment is involved.

Then if you think the opposite, "Well, wait a minute, these campaign finance limits, what they're doing is they are telling the person who wants to give $20 million that he can't finance all the speech he wants. Doesn't that violate the First Amendment?" I'd say that's a slogan. Why? Because think about that First Amendment. It was done, enacted, passed, to help our country of now 300 million citizens run fair and free elections.

The very point of speech in an election is to get a message across. And that may mean, in part, that you don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money.

If you accept that at all, you've suddenly bought in to the proposition that there are First Amendment interests on both sides of this equation.

And once you're there, you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely.

You see what I've done? I've showed you how to go back to that quote.

WALLACE: Right.

BREYER: I used that word, "purpose," to help me in a case where the language isn't clear, where the history isn't clear, where the tradition isn't clear, where the precedents aren't clear, that we have to decide how in that realm of ambiguity to apply the value that's permanent and always there, free speech, to a modern, difficult situation.

WALLACE: You talk a lot in the book about the fact that the Constitution promotes active liberty and, as you put it in the answer to my first question, encouraging democratic participation, encouraging democratic conversation.

From that point of view, isn't one of the reasons that abortion has remained such a hot-button issue in this country because the Supreme Court took it out of the political process, took it away from the legislatures when it was being decided as part of that democratic conversation in 1973?

BREYER: Well, I purposely chose my examples in this book to illustrate a theme. And I didn't choose abortion as one of them. Because more important to me in writing a book — I mean, I'll decide abortion cases when they come up, but I know perfectly well that anything I say on that subject is enormously volatile. And so, I don't want to talk about that subject, particularly in a public forum that isn't the court.

WALLACE: Even the question as to whether or not...

BREYER: No, not any question to do with abortion. I go back to book.

WALLACE: All right. Let me ask you another question, because this is something I know you have talked about.

BREYER: Yes?

WALLACE: Precedent.

BREYER: Of course.

WALLACE: You say that — well, pro-choice supporters say that Roe v. Wade is precedent, is settled law, and it has been since 1973. On the other hand, Plessy v. Ferguson was settled law, was precedent for 60 years. That was the Supreme Court decision that established separate but unequal in education. That was overturned by Brown v. Board of Education in 1954, which I think we would all agree ended segregation of schools.

How do you, as a justice, decide what's good precedent and what's bad precedent?

BREYER: There are principles that help you decide, because you're quite right in saying no precedent is 100 percent secure, but the more the precedent has been around and the more people rely on it, the more secure it has to be. And...

WALLACE: Well, Ferguson was around a long time.

BREYER: Yes, that's right. There are a number different factors. And it's going to take more than 12 minutes if I go into them here. But I can tell you, you can read some of them in Casey v. Polino, in the decision that Justice Souter, Justice O'Connor and Justice Kennedy wrote.

But precedent is important in this way. My message in this book and the reason that I wrote it in respect to the law is to try to show people what we do. And there we use precedent, we use text, we use tradition, we use history, we use purpose of the provision, and we use consequences, not any old consequence, but the consequences that are relevant to the provision at issue. Fourth Amendment: privacy. First Amendment: speech. And I try to show how that's done.

Now, the purpose behind the purpose — and we're getting close to the real purpose. The purpose behind the purpose is that I want to say, having read that document, the Constitution, that when those framers sat down, their primary objective was not to have judges decide how people should live. Their primary objective was to create a democratic system so that people themselves could decide in their own community what kind of rules that wanted.

Well, what do we do? What I, in the book, call us is I say we're the boundary patrol. There are limits. It's a constitution that protects a democratic system, basic liberties, a rule of law, a degree of equality, a division of powers, state, federal, so that no one gets too powerful.

Well, those are the limits. And within those limits, there is a vast area for people to decide for themselves. And we're there to patrol the limits.

Now, life at the boundary is sometimes very hard. And you bring up abortion. And I understand how difficult that is, how difficult it is for people to decide to whether it's on one side of the limit or the other. Many cases are like that.

But the moral, the purpose behind the purpose behind the purpose, is I don't want to forget that big area where their participation is necessary to decide whether and how our democratic system will create rules. Because if they forget that and they forget to participate and they forget that the decision-making power is theirs ultimately, then our Constitution won't work.

WALLACE: You have voted at least twice to limit the power of the president to fight terrorists.

You talk about consequences. How do you satisfy yourself, as a justice in that white marble building up there, that when you vote to strike down a tool that the president, as commander in chief, is using in the war on terror, that you're not endangering the country?

BREYER: I don't think it was argued in — well, perhaps — but the case, for example, that we had, which was several years ago, probably the main one, was whether a person who is held as a prisoner in part of the United States, even if he was an alien at Guantanamo, had a right to come to court. And we held that he did have a right to come to court.

And there are...

WALLACE: But there's also the interrogation of prisoners, there have been other issues.

BREYER: We haven't gone into the — there have been a lot of issues, but, I mean, you're asking what we, in particular, have taken...

WALLACE: What I guess I'm asking...

BREYER: But your basic question is, how does the judge know? And the answer is that the judge has to look at the record and the testimony and what's being elicited, just as he does in all difficult cases.

Ultimately we have a Constitution that guarantees a democratic system and that guarantees certain individual rights. I show that in this book. I discuss some of them. The rights are important.

Of course, as Justice Goldberg said, as Justice Jackson said, the Constitution is not a suicide pact. Everyone understands that. And that's why that Constitution in the Fourth Amendment uses words like "reasonable." There is flexibility in it.

The court has made terrible mistakes sometimes in its history, now recognized. Eighty thousand Americans, Japanese Americans, citizens of the United States, were brought during the early parts of World War II to camps, camps where they were held against their will, even though J. Edgar Hoover said there's no need to do that and even though every historian says there was no need to do that.

But it happened, and the court ratified it over three votes — Jackson, Murphy, Roberts — who said, "Don't do this."

So what you've done, Chris, which is correct, is that you've shown how difficult that problem is. We can't ignore the civil liberties aspect. You can't ignore — you can't ignore the security aspect.

And what judges try to do in that situation is to listen to what they're told by the lawyers, the witnesses and the others, and then they do their best not to make a mistake.

Not as mistake as to their personal opinion, by the way, but a mistake as to how those words that guarantee freedom in the Constitution apply to this situation.

WALLACE: Justice Stephen Breyer, the name of the book, "Active Liberty." Thank you for joining us, sir.

http://www.foxnews.com/story/0,2933,234068,00.html

It's funny how he doesn't think World War II was a compelling enough reason to discriminate against the Japanese, but thinks that diversity is a compelling enough reason to discriminate against whites and Asians.

LOl, thats true. Diversity is the religion of the left. As christians will do anything regardless of its ramifications for Christ, even kill, so to will liberals do whatever it takes to advance the cause of diversity, even if it means discriminating against a group to obtain it

So Freedom of Speech is important unless there's a compelling reason to abridge it and precedent is important unless there are "principles" that are more important.
In other words, the non-originalists can wing it as they go along to make it fit into their world view.
Like Justice Ruth consulting "international law" to help her decide the Georgia sodomy case.

So Freedom of Speech is important unless there's a compelling reason to abridge it and precedent is important unless there are "principles" that are more important.
In other words, the non-originalists can wing it as they go along to make it fit into their world view.
Like Justice Ruth consulting "international law" to help her decide the Georgia sodomy case.

With all due respect to the Supreme Court, that's pretty much correct Brooks. Overall, I think it's a good thing for the Supreme Court to have flexability in interpreting the Constitution and the rulings from the Supreme Court deserve tremendous respect IMO. Unfortunately, there's the periodic case where that flexability seems misapplied, because, despite their talents, the judges are human in the end.

If you ask me, the worst Supreme Court decision ever was Brown vs. Board of Education, but for some reason, people (even lawyers) regard it as one of the greatest cases ever. It was in that case when the court made a judgment about the law based on how the law was enforced, rather than on whether the law itself was constitutional. In other words, "Separate but Equal" was a discriminatory policy because the blacks' facilities were not equal to whites' facilities, not because separation by itself resulted in discrimination against blacks. The solution to the discrimination at the time of Brown v. Board should not have been a constituional solution. It should have been a "we're going to sue the pants off of every school with inequal facilities" solution.

...not equal to whites' facilities, not because separation by itself resulted in discrimination against blacks.That's a really great point.
I also feel that no matter how you feel about abortion, Roe vs. Wade was written as legislation instead of constitutional law.
Brennan found trimester decisions in the constitution?

So Freedom of Speech is important unless there's a compelling reason to abridge it and precedent is important unless there are "principles" that are more important.I thought he gave a good explanation that there are free speech issues on both sides of McCain-Feingold. And sometimes 'settled law' needs to be overturned -- isn't that what the anti-choice movement seeks?In other words, the non-originalists can wing it as they go along to make it fit into their world view.Or perhaps interpret the Constitution to fit a changing world.Like Justice Ruth consulting "international law" to help her decide the Georgia sodomy case.Or Justice Rehnquist in Washington vs. Glucksberg (http://www.law.cornell.edu/supct/html/96-110.ZO.html)? Was he a 'non-originalist' too? Honestly, what is so terrible about looking at how other country's judiciaries have ruled on difficult issues?

Honestly, what is so terrible about looking at how other country's judiciaries have ruled on difficult issues?If they can't find a reason in the constitution to overrule the lower court decision, then that decision is supposed to stand.
When they dig "deeper" (and by that I mean leave our borders) they obviously have an agenda.

When Breyer said that McCain / Feingold represented principles more important than free speech, that is purely his personal opinion. That shouldn't enter into it.

If they can't find a reason in the constitution to overrule the lower court decision, then that decision is supposed to stand.If every Justice in a majority decision had to find their reasons outside the Constitution you might have a point. But one Justice here or there citing a case outside the US (as Chief Justice Rehnquist did in Washington vs. Glucksberg) is really more of a right-wing bugaboo than any big deal. Remember when Tom Delay castigated Justice Kennedy for doing research on (gasp!) teh internets (http://www.msnbc.msn.com/id/7550959/)? What a whackjob that guy was.When they dig "deeper" (and by that I mean leave our borders) they obviously have an agenda.If their 'agenda' is to overturn a ridiculous sodomy law I have no problem with that at all.When Breyer said that McCain / Feingold represented principles more important than free speech, that is purely his personal opinion. That shouldn't enter into it.He did not say that McCain-Feingold 'represented principles more important than free speech'. He said that there are First Amendment interests on both sides of this equation. Feel free to disagree but please try to not change what he said.

Honestly, what is so terrible about looking at how other country's judiciaries have ruled on difficult issues?

Nothing on its face, but it shouldn't actually used as some sort of justification for a decision because how some other country ruled couldn't be more irrelevant since those other countries don't have our constitution. There have been a fair number of state court decisions looking at how English and Canadian courts have resolved issues in torts, estates, and other bits of common law established long before this country, but such things are not in the realm of the Supreme Court.

Nothing on its face, but it shouldn't actually used as some sort of justification for a decision because how some other country ruled couldn't be more irrelevant since those other countries don't have our constitution. There have been a fair number of state court decisions looking at how English and Canadian courts have resolved issues in torts, estates, and other bits of common law established long before this country, but such things are not in the realm of the Supreme Court.
But what Justice Breyer was saying is that everything has context. It's true that other countries have different laws, but if the rest of Western society has grown beyond a certain law, it's certainly worth considering. Obviously this would apply only to a very small set of cases, but ultimately, the Supreme Court is a branch of the government. And the government's stated purpose is "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity". Some European countries' laws obviously aren't sufficient to change the laws here, but there's no reason why it can't be a factor along with a sound Constitutional argument as well.

1. If their 'agenda' is to overturn a ridiculous sodomy law I have no problem with that at all.
2. He did not say that McCain-Feingold 'represented principles more important than free speech'. He said that [I]there are First Amendment interests on both sides of this equation.
3. If every Justice in a majority decision had to find their reasons outside the Constitution you might have a point. But one Justice here or there citing a case outside the US is really more of a right-wing bugaboo than any big deal.1. The anti-sodomy law may have been wrong, but that is up to people to elect better legislators.
What is closer to democracy, 5 million people electing responsible legislators or 1 tiebeaking justice on the Supreme Court deciding for the whole country?
Think of this in terms of how our nation should operate and not just based on this one sodomy case.

2. This is what he said as it relates to the principle of free speech vs. the principle of whatever the heck it is McCain/Feingold represents: "It was done, enacted, passed, to help our country of now 300 million citizens run fair and free elections."

3. Just one "here or there" would be alright? How about three? How about nine? If it's not alright for all nine to do it then it's not alright for one.
You make it sound like some la-de-da harmless fun, but it's something the justices are not supposed to do.

....but there's no reason why it can't be a factor along with a sound Constitutional argument as well.This sentence should have been your entire paragraph. If there's a sound Constitutional argument then there's no problem here. In fact, if there's a sound constitutional argument, there's no reason to go overseas.

But if a sound constitutional argument can't be made to overrule that lower court, then that court cannot be overruled. Period.

I think the problem here is that people believe that the Supreme Court writes laws. They don't. They look at the constitution and determine if the lower court acted within its scope. As long as that court hasn't gone extra-constitutional, the decision will stand.

So how is it right that the Supreme Court may go extra-constitutional to overrule them?

This sentence should have been your entire paragraph. If there's a sound Constitutional argument then there's no problem here. In fact, if there's a sound constitutional argument, there's no reason to go overseas.

But if a sound constitutional argument can't be made to overrule that lower court, then that court cannot be overruled. Period.

I think the problem here is that people believe that the Supreme Court writes laws. They don't. They look at the constitution and determine if the lower court acted within its scope. As long as that court hasn't gone extra-constitutional, the decision will stand.

So how is it right that the Supreme Court may go extra-constitutional to overrule them?
The Supreme Court isn't going extra-constitutional. The Constitution is very, very vague as to what purpose the Supreme Court actually serves. Most of the court's power derives from Marbury v. Madison and its subsequent, derived rulings.

What is closer to democracy, 5 million people electing responsible legislators or 1 tiebeaking justice on the Supreme Court deciding for the whole country?Electing responsible (or not) legislators would of course be closer to democracy. But we don't live in a democracy. We live in a Republic that protects the rights of the minority. Sorry to hear you favor the tyranny of the majority.Think of this in terms of how our nation should operate and not just based on this one sodomy case.I do. We have three branches of government for a reason.This is what he said as it relates to the principle of free speech vs. the principle of whatever the heck it is McCain/Feingold represents: "It was done, enacted, passed, to help our country of now 300 million citizens run fair and free elections."The way I read it he was referring to the First Amendment, not McCain-Feingold. If you read it the same way I have no idea what you're getting at here. If you read it differently try reading it again. BTW, I edited the original post to put in bold font what he really said about McCain-Feingold.Just one "here or there" would be alright? How about three? How about nine? If it's not alright for all nine to do it then it's not alright for one.
You make it sound like some la-de-da harmless fun, but it's something the justices are not supposed to do.Fair enough. If any Justice based their ruling solely on what a foreign court had decided I would have a problem with that. But otherwise, as Borg so ably explained, it really isn't a problem.

1. Electing responsible (or not) legislators would of course be closer to democracy. But we don't live in a democracy. We live in a Republic that protects the rights of the minority.
2. Sorry to hear you favor the tyranny of the majority.
3. If any Justice based their ruling solely on what a foreign court had decided I would have a problem with that.1. Okay then. Which is closer to a republic, 5 million people electing responsible legislators or 1 tiebeaking nominated-for-life justice on the Supreme Court deciding for the whole country?

2. I think a single tie-breaking-nominated-for-life justice deciding for the nation is far closer to a tyranny than millions of voters electing representatives to make these decisions.
If you think the elective process can in any way be construed as a tyranny I just don't see it.

3. Justice Ruth went outside the constitution because she couldn't find enough guidance within it in this case. Why can they improvise when their purpose is to make sure the lower courts didn't?

1. Okay then. Which is closer to a republic, 5 million people electing responsible legislators or 1 tiebeaking nominated-for-life justice on the Supreme Court deciding for the whole country?A majority decision by the highest court in the land is a pretty good a way to check the excesses of a legislature. That's how our republic works, anyway. And why do you keep saying 'responsible legislators'? There's no guarantee of that. In fact, that's why we have a republic instead of a democracy. This is so fundamental, Brooks. Sometimes I don't get you at all.I think a single tie-breaking-nominated-for-life justice deciding for the nation is far closer to a tyranny than millions of voters electing representatives to make these decisions.I don't. First of all it isn't one justice. It takes a majority of them to make a ruling. They are appointed by the Executive and approved by the Senate. They can be impeached by an act of Congress. If the People decide that a life term is undesirable they can amend the Constitution. All of these safeguards are in place precisely to prevent a tyranny.If you think the elective process can in any way be construed as a tyranny I just don't see it.Our elective process is not a tyranny because we have courts that keep our lawmakers in check. Without the courts we would have a tyranny of the majority.Justice Ruth went outside the constitution because she couldn't find enough guidance within it in this case. Why can they improvise when their purpose is to make sure the lower courts didn't?I haven't read the decision but I would be interested to know if that was the only basis for her vote or if she was merely supplementing her argument. Apparently four other justices had no problem finding sufficient domestic law on which to base theirs. Again it seems to me you're getting all bothered by something that is pretty inconsequential.

Some European countries' laws obviously aren't sufficient to change the laws here, but there's no reason why it can't be a factor along with a sound Constitutional argument as well.

I could see using the decision of a foreign court as a factor in how to interpret a treaty or any other law that is common with that of a foreign country. Beyond that limited use, I really can't see any reason for it to be a factor at all. Which isn't to say that I think we're faced with some huge judicial crisis of monumental proportions or anything.

1. Okay then. Which is closer to a republic, 5 million people electing responsible legislators or 1 tiebeaking nominated-for-life justice on the Supreme Court deciding for the whole country?Our founding fathers bent over backwards to protect the interests of minorities, anf this is another example of why the system works. Because a legislator is elected by 5 million people doesn't make him "responsible." Just as getting elected by the majority of voters doesn't necessarily make someone President.