ACUS Plenary 2011-06-16: The Honorable Justice Breyer

Justice Breyer: [0:28] It's so nice to be back here. I mean, I see so many old friends. Pat Wald and Peter Strauss, I saw. I just see everybody. It's wonderful. And some new friends, too. [indecipherable 00:11] special group of senior administrative conference of freaks or whatever. But we love the administrative conference. And we've always liked it. I looked is the phoenix, isn't it? I mean, it's come back. It's the phoenix. [1:02] And so I...I looked up on the can do that now. I said what's a phoenix. We'll see if it fits. I've got the definition. It says the phoenix is a mythical bird...well, all right. With a colorful plumage...well, sort of. And a tail of golden scarlet or purple, blue, and green, OK. According to some legends, it has a 500 to 1000 year life cycle. Well, so far...near the end of which it builds itself a nest of twigs and then ignites. That seems to have happened. Who was that immigration judge who...
Chairman Verkuil: [1:04] Yeah, that's right.
Justice Breyer: [1:31] What was his name? It was...he did it. And then it ignites. It nest and bird burn fiercely. And they...we're looking for agency to eliminate over there, so they burned us. And reduced to ashes, from which a new young phoenix, or a phoenix egg...well...arises born and new to live again. The new phoenix is destined to live as long as its old self. That's very good. We want even longer. [1:58] In some stories, the new phoenix embalms the ashes of its old self in an egg made of mirror and deposits it in the Egyptian city of Heliopolis. I don't know about that one. It is said that the bird's cry is that of a beautiful song, and anyone who has read the reports of this...its ability to be born from its own ashes implies it is immortal. Indeed. Though in some stories, the new phoenix is merely the offspring of the older one, OK?

[2:13] In very few stories they are able to change into people. And that's what's happened. Piers, this is true. He's going to write this up. Anyways, it is the phoenix. We love administrative law. Everyone in this room. Now, the question is, why? [laughter]

Justice Breyer: [2:44] There are many, many, many reasons if you think about it. For one thing, it gives the academics among us something really, really esoteric to talk about. I mean, we'd love to talk about why is there a special exception for rate making in the separation of functions provisions of the APA dealing with [indecipherable 02:39] . Nobody knows the academics. You go into that, and we will discover it. [3:17] It's wonderful for the agencies because they have someone ready to go to things that are happening in the agency that they might not even know about. Paul MacAvoy and I wrote a book years and years ago about regulation of energy by the Federal Power Commission, and one of the great moments was when we spent quite a lot of time, no one had thought of leaving the ivory tower perhaps in this area before, but we went to the Federal Power Commission. In those days wasn't it Joe Swidler and Lee White? And it was this building, kind of greenish cement.

[3:43] We wanted to know how did they actually set a rate. How? I mean, how do you set the rate for the transmission line? And we kept getting referred to other people. And finally down in the bowels of the basement, we found the person. A very nice woman called Georgia Ledakis. And we said, "Apparently you're the one who does it." "Yes," she said, "I do it. No one else." [laughter]

Justice Breyer: [4:24] We said how do you do it? She said well, what we do is we, you know, we look at comparable industries. Oh, trucks, she said, supermarkets, cereals or whatever and then we sort can't get it exact, but we sort of figured out and then that was the basis for a whole science of cost of service rate-making, which later became more refined. It's wonderful for the agencies, and of course, for the lawyers we understand there were, for the lawyers, several decades...not all of you may know, but where at least 45 percent of the bar of the Washington DC area made a living from peanut butter. [4:40] Now, it's the FDA's famous rule. They were trying to decide how chewy should be peanut butter be, and if you added lard, it was not peanut butter. And if you didn't add lard, you couldn't open your mouth. So this was...this... [laughter]
Justice Breyer: [4:56] This is absolutely true. So and...what is best, actually, is the company, and it always has been. I mean, we love to get together and stuff. Allen Morrison entertained us for years by telling us that Jay Plager, whom some of you know...
Chairman Verkuil: [4:57] He's here.
Justice Breyer: [5:02] Oh, great. Jay is here. Well, then, you can tell me if this is true. I've told this story for a long time. [laughter]
Justice Breyer: [5:32] Yes, yes. You stopped once in the airport in Denver, and you were...wanted to buy a book, and you went into a book store. And it was something to got into a conversation with a foreign-looking gentleman who was selling books. And after a while, you were waiting for the plane, you were talking. He said what do you do? And he said I teach administrative law. He said what, said this salesman. He said you teach administrative law? I am Chadha. [laughter]
Judge Plager: [5:38] That's the truth.
Justice Breyer: [5:39] It's all true.
Chairman Verkuil: [5:40] Is that a true story?
Justice Breyer: [6:04] Yes, it is true! And he bought a book from him. Yes, that's right, see? It is absolutely true. And we used to go to meetings where we would discuss all these things. And Tommy Sussman was always in charge of getting his client, who happened to be the wine association of France, to come to the meeting and to help, which he did from time to time. [6:25] So it's wonderful. We've had a very good time over the years, and it's very nice to have you back. There also are serious things that we do. If you think about it, what I used to tell my classes is the true basic question that we all have to answer or help...we help answer is quis ipsos custodiet. I say that to my class in order to appear to be very knowledgeable, erudite. Who will regulate the regulators?

[6:39] That is a problem that has existed forever, forever. And we, in the United States, have answers to that. We say well, the president will try. The president, he will.

[7:06] I mean, I used to tell my class the story about...what was his name, that became...Phil Hyman became, at a very young age, became assistant secretary of state for something or other, and the reason was because his predecessor, Abbot Schwartz, had suddenly gotten appointed and was...because she was a protégé of Eleanor Roosevelt. This is many years ago. And he discovered that he was the boss of a woman called Francis Knight.

[7:30] That name means little to you, but she was known as the dragon lady equivalent of J. Edgar Hoover over in the state department, and she would not give visas to anyone she didn't like. And this was a bete noire of people like Abbot Schwartz, who being a protégé of Eleanor Roosevelt, was a good liberal. So he thought she works for me. Great. I'll fire her, or at least transfer her to Idaho.

[7:56] And I say the smallest time limit ever measured by the human brain or any scientist was the period of...that passed between the instant that he fired her and the instant that she fired him. So I say, usually, but didn't the president intervene? What do you mean, the president intervene? Of course not. He has a lot to do, and unfortunately, a lot of...or fortunately, perhaps, these questions don't necessarily go to his agenda.

[8:30] Well, Congress. I mean, Congress. Well, in a sense, the Congress has delegated the power to make the decisions you make to you. And if they had time to make them all, why'd they delegate it? And they don't. And they don't have the expertise, et cetera. Well, the judges, the judges love to think that they're the ones who are controlling what goes on in the agencies. And they do, to a degree, but it's a very big envelope that they can't get beyond because they just have to say is it arbitrary, capricious, abuse of discretion, if we're talking about policy?

[8:59] And they have other things that they apply, but still, it leaves this vast area, this vast area where it's just up to the agency. And so we called in another tier of groups on the substantive side it's all IREP, which has gone under many, many different phases, many different names. But it's been there since President Nixon, and it sort of polices a lot of the substance of what goes on. And then we have...when Americans complain, that's Walter Gelhorn, our ombudsman. And who is our ombudsman? Our ombudsman, really, are the caseworkers in Congress.

[9:41] Because when somebody gets into trouble, they call the member of Congress, and then the member of Congress sends from his machine somebody...something to the agency, and then who is it that tries to see that this thing is really working smoothly, that one agency can learn from another, that they follow fair procedures, and occasionally, we delve into the substance of it so we can control, through advice, sound advice, substance, procedure, learning one from the other, agency to agency, bar to academy to agency, our heroes, the administrative conference of the United States. So there are. And that is an important job.

Chairman Verkuil: [9:42] Just what we were saying when you...
Justice Breyer: [10:35] Yeah. Now, I would like to point out that just by chance, two days ago, somebody sent to me a very, very interesting article that was printed in China, and he said that the magazine in...the...let me see if I have it here. I don't know if I have the name. I didn't put it on here. But it's a very distinguished journal in China and is not either rebel or establishment. And people read it, and they listen to it, and they do it. And they were talking about rule of law in China. [10:53] And they said we really mean a rule of law, not a rule by law that two or three people make up, a rule of law. And they listed a number of areas where they thought it was important to actually focus on this, and one was the legislature, and another were the courts. They wanted an independent judiciary. And another, at the same time, two major problems in administration must be tackled. One is lack of transparency.

[11:08] Government officials often operate in a chaotic way, without proper procedures. And many local governments make up rules while bypassing existing laws. Second, the exercise of administrative power lacks clear limits. Government officials, and then they go on and complain. So I thought who are they asking? What questions? And I thought well, we're being asked here, because sometimes when I talk to foreign groups, I say I know it's important to have a constitution, and it is.

[11:19] And I know it's important to protect human liberty, and it certainly is. And you can list a lot of provisions. But I'd say I'd like to have in that list of things that you're going to put in just one that you'll not think of.

[11:56] And that is a rule called...what's a rule? And a rule or a law is public. And if it isn't public, it's not a law. I said that's a principle of administrative law. That is a principle that our government follows. There is no such thing as a secret law, and therefore to we are transparent. Good advice, wouldn't it...who'd give them that advice? We would, in this room. And when we think how are we going to control the uncontrollable, how are going to control their...we have two or three more courses of administrative law to teach, and we also have the experience of the people in this room to draw upon.

[12:13] So what we're doing has national and international implications, and of course, I, being very biased, think it's for the better. So I am delighted that, phoenix-like, you have arisen from the ashes, and we have a new and an old group as well. Thank you. [applause]

Chairman Verkuil: [12:20] So, do you want take a quick question?
Justice Breyer: [12:27] Sure.
Chairman Verkuil: [12:34] The justice will receive questions from the assembled experts on fields even beyond administrative law, I expect.
Justice Breyer: [12:41] Whatever you want.
Chairman Verkuil: [12:45] Oh, this is planned, huh?
Jonathan R. Siegel: [12:52] Hi. I'm Jon Siegel. I'm the research and policy director for the conference. Mr. Justice, what projects would you recommend that the conference take up?
Justice Breyer: [13:33] You're better at that than I. I mean, I haven't thought about this in too long a time to know. But there are lots. I mean, just find out what is annoying people the most about each other. And out of that, undoubtedly things will emerge. I mean, there is a lot. There is so, so, so much. Is there anything that's come up in...we've only...we've only gotten...we don't get that many...we get some administrative law cases. I don't have good advice on that. I haven't thought it through. If I think it through, I'll let him know.
Chairman Verkuil: [13:35] All right.
Justice Breyer: [13:36] Yes.
Carl Malamud: [13:47] Mr. Justice, you said if it's not public, it's not a law. Would that include things like building codes and statutes with copyrights that are only available with a credit card. Are those laws?
Justice Breyer: [13:49] Is that a law? Copyright?
Carl Malamud: [13:50] Well, a lot of...
Justice Breyer: [13:55] Are there building codes that aren't...there building codes that they keep secret? All right. There's your project. Great.
Carl Malamud: [13:57] No, but they do cost $100.
Justice Breyer: [13:59] Oh, they what?
Carl Malamud: [14:00] They cost $100.
Justice Breyer: [14:01] I mean, you can get them, but you have to pay $100.
Carl Malamud: [14:02] Yeah. Is that public?
Justice Breyer: [14:04] Well, that's a...I don't know. I'm not expressing a legal opinion. [laughter]
Carl Malamud: [14:07] Thank you.
Justice Breyer: [14:11] That's a problem of the...wealth problem. That's...we have a lot of...
Carl Malamud: [14:17] That's Carl Malamud back there, whose project, as we all know, is, and he is...
Carl Malamud: [14:21]
Chairman Verkuil: [14:23] I'm sorry. Are you
Justice Breyer: [14:25] Oh, I see. You want to put them online, so that people...
Chariman Verkuil: [14:30] But he wants to get rid of secret law, because you shouldn't have to pay for it, and he's got a very good point.
Justice Breyer: [14:34] Yeah, that's a good comment. That's fine. Well, so far, I've given terrific answers to your first two questions. [laughter]
Chairman Verkuil: [15:11] So...well, I've got tell one story as long as I don't see any hands up. And that has to do with your earlier point about who's in charge and who can fire who, and I just saw on the...the civil rights commission has a website, and there is this judge...only Louisiana, there is this justice of the peace on Louisiana who refuses to perform interracial marriages. And he's been doing...refusing to perform all these years, and so the civil rights commission wrote him and said, you know, Loving v. Virginia was decided in 1967. [15:31] And so then, he didn't do anything. And then they went...apparently he has to report to somebody. And so they finally went after him, and after all these years, he resigned. But that shows you sometimes how long it takes to get the word out. I mean, that is only amazing.
Justice Breyer: [15:48] You might look at reinventing government. Do you remember that study? And it seemed to me they went into all kinds of things, and I don't know if all that's been implemented or if it's...I don't know whatever happened to it. That might be a source. Actually, I do have my favorites to look into that I'm going to tell him privately. Yes.
Woman 1: [16:01] Mr. Justice, we've gone off of the administrative law page. Could you speculate or discuss what you would consider the most important Supreme Court decision and why?
Justice Breyer: [16:41] Oh, well, I mean, everybody's...I think people would come down to two. They'd probably say Brown would certainly be one because it created a single country. And the other would be Marbury, you know, because you couldn't quite get that off the list. So I don't have anything really unusual on that. I think probably nine people out of ten...well, I talk about this some, and I had...when I do, I usually say, I hope there's one I hope you won't forget. It's not the [indecipherable 16:35] I think Brown is, perhaps, the most important, maybe, but I'd like to talk and I wrote about it. [17:22] Cooper v. Aaron, and the reason I talk about that, I say the following, that after Brown, which many of you know, it was decided in 1954. And the next thing that happened over the next year, what happened? Exactly what you're saying. Nothing. Well, let's not exaggerate. Next to nothing. Virtually nothing. And then 1956, and what happened? Right. And same thing happened again. And then in early '57 in Little Rock, the district judge ordered the Little Rock board to integrate. That's where the Little Rock nine came in.

[17:57] And the Little Rock nine were going to enter the central high school in September 1957. And during that summer, as most of you know, Governor Faubus decided that he would sort of move to the side of the white citizen's council. And on that early September morning when they were supposed to come there, under the order of the judge, after he'd exhausted about every legal maneuver, the white citizen's councils were know, they were...they were surrounding the school, and the militia is in...under the orders of Governor Faubus.

[18:58] And they were there, but they weren't there to let anybody in. They were there to keep them out. And one girl, Elizabeth Eckford, very dignified. You know, there were these nine. They were pretty brave, and they were pretty...they were careful what they did. But she didn't the get the message that she wasn't supposed to be where she was, and she started walking towards the school, and someone snapped a picture of the white woman's face behind her, enraged. And she's looking very dignified as she walked in. And that picture went around the world.

[19:08] And there were news people, all kinds of noise, and they couldn't get in the school. So Brooks Hayes, who was the congressman from Little Rock, called President Eisenhower and arranged for a meeting between Eisenhower and Faubus. And he went to the new...he went up to Newport where they...for the summer White House, and he met with Eisenhower, and he said that afterward it was like a general dressing down a sergeant. And he told Eisenhower he would integrate, and he didn't. He told the news people he wouldn't.

[19:19] That pretty much annoyed Eisenhower. What was interesting to me about what he was then going to do is he called in advice, and he got advice from Jimmy Burns. Jimmy Burns had been a member of our court, and he'd resigned in World War II to help run the domestic mobilization effort. And then he was governor of South Carolina. He was not a bigot.

[19:47] He was a great adviser to Harry Truman, but he met with Eisenhower, and he said I know the south, and if you send troops into Little Rock, you're going to have to have a second reconstruction. You will have to reoccupy the entire south. And the best thing that will happen will be they'll close the schools, and nobody will be educated. So you better not do it. And Brownell, his attorney general, said you have to. You've got to do this.

[20:22] And Eisenhower, which was a...yes, in retrospect, obvious. Not obvious at the time. He said I'm doing this. And he called up the 101st Airborne. The 101st Airborne, as we know, at that time, was...everyone in the United States knew who they were. They were the heroes of Normandy. They had parachuted in. Their parachutes had hung up on the steeples where a lot of them were shot down. They were heroes of the Battle of the Bulge. Everyone, every American knew who they were. And he purposely called that division.

[20:58] And he put 1000 of them on airplanes, and he flew them into Little Rock. And the next day, they got those children, and they walked with those children right into that school. And they took all the pictures, and those went around the world. And that was a much happier story. It's very interesting, that story. But I want to tell that story, and I like the case because most people think that flowed from Cooper Vierin. No it didn't. It was afterwards, when they had to withdraw, because they can't stay there forever. A new board is elected, a white citizen's Council board.

[21:16] They say, "We're not going to do this anymore. Bring a case. Tell them we can't do much violence.", duh, duh, duh, duh, duh. It gets up to the Supreme Court by the end of the next summer. The Supreme Court then says, "You have to do it. You do it. Of course you have to." They all signed it, all nine, all nine. They all signed it.

[21:45] That is because they wanted to show that you really have to do it. But they are nine people. Nine people, called judges. They could have been 9,000. They didn't have troops. The paratroopers had gone home. The day after they wrote that decision, the day after they reached their decision, saying, "Of course you have to continue to do this." Governor Faubus closed the schools.

[22:10] Little Rock High School, Central High School was closed. It was closed for the rest of the year. It was closed. Nobody got any education. You go read an article in Sports Illustrated where they found many, many years later. Many of that class that was there in 1957, '58 and so forth, a lot of their lives were really hurt, really hurt.

[22:29] Well, you say, it didn't have a happy ending. Ah, yes. I think it did of course. I think it did. Because, like it or not, they couldn't keep that up. Finally the people in Little Rock said, "No. No. No. We can't have this Board." They elected another board and they opened the schools and they came back and so forth. That was the beginning of something.

[22:45] But I like to tell that story about Cooper and Aaron, because of course, it was the right decision. I told it to a Russian paratroop general who came over. He had been in charge. The state department called us and said you see...I had all these missiles pointing toward the United States. He's shifted the direction so we should be nice to this man. [laughter]

Justice Breyer: [22:56] So we brought him over, and he said just what you said. What's the case? And I said I just don't want you to forget that case, and I told him that story. And I said you see, it shows the paratroopers, and the judges must be friends. [laughter]
Justice Breyer: [23:28] But what it really shows with all that...what it really shows with all that is both the need, the optimism, the difficulty of the simple thing of getting people to follow a law, OK? And we sort of have it. We think knock on wood. But I mean, we can remember that period. My goodness, touch and go. And so I think that case was the beginning. And I love that case for that reason. And I love the fact that he sent the paratroopers. [23:57] And I love the fact of what happened, but it also did all work out. And that's what we're part of in the law. I mean, we're part of something that goes well beyond the one million people who are lawyers. There are actually 308 million people in the United States who are not lawyers. It's hard to believe, but you do. I mean, they're the ones. They're the ones who have to understand what we do, and they're the ones that have to understand the importance of it.

[24:09] And they're the ones that understand that sometimes we, judges, are wrong. And they're the ones that have to understand what we do is quite often, blah, blah, blah, et cetera, it's a speech. But nonetheless, you see the point. You wanted to know why I think that's important or what's...that, I think that's very important.

Chairman Verkuil: [24:13] Well, thank you. [applause]


Unofficial Transcript Provided by Public.Resource.Org