George Stephanopoulos: Should Threat of Koran Burning Make Us Rethink First Amendment?

GEORGE STEPHANOPOULOS: The national and international debate over that Florida pastor who threatened to burn the Koran hit a boiling point last week. And for now, the issue is being batted around the court of public opinion. But it could end up in a court of law. Perhaps, even, the Supreme Court. That's one of the topics I discussed with Supreme Court Justice Stephen Breyer, when he stopped by to discuss his new book, Making our Democracy Work. I love the title of this new book, Making Our Democracy Work. And that's not only the title of the book, but it's also your mission. And you believe for that to happen, people have to understand our institutions and be engaged with them.

SUPREME COURT JUSTICE STEPHEN BREYER: Yes.

STEPHANOPOULOS: How do they do it?

BREYER: Well, the first step is to know what it is that we do, know how your legislature works, how your governor works, how your mayors work, how your courts work.

STEPHANOPOULOS: You also in this book plumb, I guess what you call something of a mystery, because it didn't have to turn out that way, that we built up in our tradition, the norm that when the Supreme Court decides something, the public tends to follow.

BREYER: There's a history in this country, of bad events and marvelous events. And over time, it's led to a general acceptance of the court, of having the last word on most constitutional issues, even when they are wrong.

STEPHANOPOULOS: That was really tested that idea, when you were sitting on Bush V. Gore, the 2000 election, you wrote at the time, you were against it.

BREYER: Yes, I was.

STEPHANOPOULOS: You said it was a self-inflicted wound that hurt the court.

BREYER: Yes.

STEPHANOPOULOS: But, you also point out, and you're write about this in your book, that one of the most remarkable things about this divisive case that decided, in many ways, a presidential election, was that the people accepted that.

BREYER: I heard Senator Reid say that.

STEPHANOPOULOS: The Democratic leader in the Senate.

BREYER: Yes. He said one of the most remarkable about that case is one of the things least remarked. Nobody remarks it because it's so natural. Here is a case that's very unpopular, that in my opinion, as a dissenter, was wrong. And yet, the public did not start shooting each other.

STEPHANOPOULOS: How do you explain that?

BREYER: I explain that. That's a really good question. You have to learn about history in the United States. We had a Civil War. We've had 80 years of legal segregation. We've had many ups and downs. But over time, the public has come to accept the need to have an institution that will protect minority rights.

STEPHANOPOULOS: One of the tangible symbols that expresses this idea that the institutions have to work together, is the idea that every year, you all, members of the court, go to the President's State of the Union address. It became a remarkable moment, when President Obama criticized the Citizens United case, where you were actually on the same side as President Obama. You were in the minority. But, he criticized the case. And Justice Alito got visibly upset. It provoked this reaction from chief Justice Roberts. I want to show you this.

SUPREME COURT JUSTICE JOHN ROBERTS: The image of having the members of one branch of government, standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless, I find troubling.

STEPHANOPOULOS: Did you find it troubling?

BREYER: I've been there for a while. [Laughs] As you have in your job, people say all kinds of things about someone in public life. Sometimes they agree. Sometimes they disagree. My job is not to say things that criticize me or others on our court. My job is to do it as best I can.

STEPHANOPOULOS: But, he's walked away from that saying, perhaps he won't go in the future. Justice O'Connor when I talked to her about it in the future says she would rethink her attendance. Does it make you rethink your tradition of going?

BREYER: No, no.

STEPHANOPOULOS: Why not?

BREYER: Because I think the reason that I want to go, and I think that the reason we should be there, is because, particularly today, where for better or for worse, people get lots of their information visually. It shows in that room, this is your federal government. The President is there. The cabinet is there. The, the Congress is there. The Joint Chiefs are there. And I'd like some of the judges to be there, too, because the judges have a role in this government.

STEPHANOPOULOS: Even if you're the only one there.

BREYER: Even if I'm the only one, I'll be the only one. But, I'll do that because I believe very, very strongly in this.

STEPHANOPOULOS: You know, when we spoke several years ago, you talked about how the process of globalization was changing our understanding of the law. When you think about the internet and when you think about the possibility that, you know, a pastor in Florida with a flock of 30, can threaten to burn the Koran and that leads to riots and killings in Afghanistan, does that pose a challenge to the First Amendment, to how you interpret it? Does it change the nature of what we can allow and protect?

BREYER: Well, in a sense, yes. In a sense, no. People can express their views in debate. No matter how awful those views are. In debate. A conversation. People exchanging ideas. That's the model. So that, in fact, we are better informed when we cast that ballot. Those core values remain. How they apply can-

STEPHANOPOULOS: The conversation is now global.

BREYER: Indeed. And you can say, with the internet, you can say this. Holmes said, it doesn't mean you can shout fire in a crowded theater. Well, what is it? Why? Well people will be trampled to death. What is the crowded theater today? What is-

STEPHANOPOULOS: That's exactly my question.

BREYER: Yes. Well, perhaps that will be answered by- if it's answered, by our court. It will be answered over time, in a series of cases, which force people to think carefully. That's the virtue of cases.

STEPHANOPOULOS: When we last spoke, when you wrote your last book, you had been on the court for about ten years. Yet, you were still the junior justice.

BREYER: I was.

STEPHANOPOULOS: That's no longer true. You now have Justice Sotomayor. Soon, Justice Kagan is going to be joining you as well. You talked about how before your first session of court, you were nervous. I was just wondering if you have advice for Justice Kagan as she prepares for that.

BREYER: She will be nervous. But, don't worry about it. There's no way not to be nervous. For quite a while, the cases- now, they will be final. There's no one to appeal to. And there is an instinct of everyone to be a little uncertain. To be a little unsure about whether my views, in my case, will I be able to answer these decently? Will I make some terrible mistake? I surely hope not. And that lasts for a while. It takes a while to adjust.

STEPHANOPOULOS: Justice Breyer, thanks very much.