Transcript: Justice Stephen Breyer Sits Down With 'FOX News Sunday'

The following is a partial transcript of the Dec. 3, 2006, edition of "FOX News Sunday With Chris Wallace":

"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."


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

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


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.


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.


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.