“Three amazing giants of American legal history” were welcomed to the stage of Lisner Auditorium by Dayna Bowen Matthew, dean of GW Law, to kick off the third installment in a series of five conversations at the George Washington University tracing the career of retired U.S. Supreme Court Justice Stephen Breyer.
The first of the giants to whom she referred is Alan B. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law, a longtime friend of Justice Breyer and of the discussion’s moderator, Kenneth R. Feinberg.
“This amazing series would not have been possible without the vision and tireless effort of Dean Alan Morrison,” Matthew said before highlighting some of Morrison’s career milestones, including a recently bestowed honor. “Earlier this month, Morrison was selected to receive the National Law Journal’s 2023 Lifetime Achievement Award in recognition of his top litigation and appellate work.”
Introducing his friends, Morrison noted that Justice Breyer, who served as a judge of the U.S. Court of Appeals for 14 years and on the bench of the U.S. Supreme Court for 28 years, “is now in what he calls retirement. But, of course, he's not sitting around relaxing, as he was entitled to do.” Instead, the justice is teaching at Harvard Law School, giving talks around the world and writing a new book planned for publication next year.
Feinberg, recognized as a master in alternative dispute resolution, worked alongside Justice Breyer as special counsel to the Senate Judiciary Committee and eventually served as chief of staff to Senator Edward Kennedy.
The main focus of this third installment in the series of discussions was the justice’s time working on the Senate Judiciary Committee with Kennedy. He spoke movingly of the glittering Kennedy era and its optimistic dedication to improving life for Americans. The main lessons he learned from Kennedy, Justice Breyer said, were the value of listening, of humility and of the willingness to compromise—which he said were the secrets of Kennedy’s legislative success.
“The first thing you do when you're trying to get somewhere and people in a different party—or maybe sometimes in the same party—are blocking you,” Justice Breyer said, “is go and talk. … You just say what you think and get them to talk as much as they will. If they talk enough, you will find that sooner or later, they'll say something you really agree with. As soon as they say something you actually agree with, you say, ‘That's pretty good. Let's see if we can work with that.’ And you work with them and maybe you get 20 or 30 percent of what you want.” In sum, Justice Breyer said, “The perfect is the enemy of the good. It’s better to get something than nothing.”
Another lesson from Kennedy, the justice said, is to share credit with adversaries.
“Credit is a weapon—use it,” Justice Breyer said. “He used to tell us, ‘Look, if you get something you believe is actually helpful, there'll be plenty of credit to go around. Don't worry.’ We heard him say that a lot.” Summing up, the justice noted, “Whether in public life or in private life, that is a fairly good way to proceed.”
When he was first appointed chief counsel of the Judiciary Committee, Justice Breyer said, Kennedy took him for introductory visits with the Republican members of the committee and set a cooperative tone.
“As I'm standing there, he says, ‘Steve is going to be chief counsel of judiciary. If you have any problems with judiciary, call him. He’ll try to help.’ I got that message.”
Feinberg drew a contrast with the way Congress functions today. “Times have changed. Imagine real collegiality and collaboration!”
In response, Justice Breyer said that Kennedy attributed increased polarization in Congress to the jet plane, with senators spending half their week in Washington and the other half in their home state. The advantage is that they maintain closer ties with constituents, with the disadvantage of growing more distant from each other.
Several more topics were addressed, such as Justice Breyer’s work on airline deregulation; his experiences getting judicial nominees through confirmation hearings (“not a cheerful situation,” the justice said, with 17 senators on one side of the table and the nominee on the other—not to mention a live TV audience); and Kennedy’s belief that Americans move back and forth politically as a matter of course. Later, in a question-and-answer session, Justice Breyer noted that legislative checks and balances are mostly positive, but they do mean that the government functions with suboptimal efficiency.
The conversation took a historical turn when Justice Breyer pointed to the wisdom of the American founders, who embarked on an experiment to shape a government according to Enlightenment principles. Like George Washington, and like Abraham Lincoln, Justice Breyer said, he is optimistic about their experiment’s chance of continued success.
“We’re still in that experiment,” Justice Breyer said, “and now I tell younger people, it’s mostly up to you. You’re going to have to figure it out. We’ve had our ups and downs, but we can succeed.”
The discussion closed with several questions for Justice Breyer submitted in advance by members of the audience. One person wondered what books have been particularly influential in Justice Breyer’s thinking. “The Education of Henry Adams” is a work he recommends to everyone, he said, in which the author describes democracy as a troublesome system of government, but the best choice among all the alternatives.
More than one question focused on Justice Breyer’s career path and advice for younger professionals—why did he work in the public sector instead of the more lucrative private sector? He said he didn’t really think about making a huge salary and that there are “lots of very satisfactory lives,” but “If you put money first, go into business.”
The last question was about today’s high degree of political polarization, of which Justice Breyer said there is “too much,” adding, “I have no brilliant insight,” but that he feels lucky to have lived in the post-World War II era.
“We had certain ideals as a country,” he said, “and I think we still have.” After World War II, he said, there was a largely shared goal to have basic human rights protection, equality and rule of law. “And we’re lucky to have done that. And there’s no reason why young people can’t still do it.”
Topics of future conversations in the series, with dates to be announced, include Justice Breyer’s time as a judge on the First Circuit and on the U.S. Supreme Court.
