University of Pennsylvania Law School
Commencement Remarks

Stephen Breyer
Associate Justice
Supreme Court of the United States

Academy of Music
Philadelphia, Pennsylvania
May 19, 2003

Congratulations. And congratulations to your parents as well. I know that behind every law graduate there stands a supportive family, perhaps near bankruptcy. And that family deserves our gratitude.

I know, too, that some of you are wondering, "what next?" or, "where after that?" Career choices, like all personal choices, are difficult. The best advice I received about a career choice was from a former law school dean, Bayless Manning. He pointed out that, when we make an important personal decision, we rarely know more than ten percent of all we would like to know. Sometimes agonizing does not help; sometimes we must simply choose. And our lives then shape themselves around the choices that we make. Those choices help shape the story that each life tells. Each person's story is different but each has its moments of joy and happiness, tragedy or sorrow.

The external circumstances, the material circumstances, of that story are often beyond our control, but they may matter less than we think. The most important parts of the story are personal. Your own story will include family and friends, not just career. And it will include your choices and your reasons for making them. What we do and how we explain it tells us who we are. We cannot escape the negative meaning that a failure of integrity - a failure to live up to our standards of right and wrong - will give to the stories we ourselves shape. I agree with the philosopher who said that money can vanish overnight, power disappear, reputation can evaporate, but character - personal integrity - is a rock that stays secure.

In the next few minutes I shall speak about what I hope will be one part of your story, a part related to character and called "public service." I will not take long. Remember the student who wrote on his exam paper, "Professor, if I had only an hour to live, I'd like to spend it in your class." This seems flattering but the student scrawled on the other side "That's because only you can make an hour seem an eternity."

My point this afternoon is a simple one. I want you to remember, not now, but five or ten years hence, that law (as Roscoe Pound said) is a profession characterized by a "spirit of public service" - a spirit that requires a lawyer's devotion of time, effort, and talent to help the community.

That devotion can take many forms. A lawyer can participate in traditional pro bono legal work, providing legal services to those who cannot afford them. An acquaintance of mine, for example, a former Supreme Court justice in Southeast Asia, persuaded a local bar group to lend him an airplane, which he flew to distant villages, mediating disputes among people who had never seen a lawyer. You need not go that far. Nonetheless the need is great. Several years ago the American Bar Association reported that between 70% and 80% of those with low incomes who need a lawyer in a civil case could not find one. We in America spend through government about $2 per citizen on legal aid, compared to about $5 in France and about $15 in Britain.

Law reform, too, is a form of "public service." One of my law school colleagues told me years ago: "Go to meetings - bar association meetings." Learn to love those bar associations with their 400,000 members and 600,000 committees. Why? Because so often law is made in those committees - through discussion, resolution, action. Learned Hand said that it "is the bar that makes" or changes "the statutes."

And why not spend part of your career working directly for the government? You will not begin at the top - but you can keep in mind as models some of those who have divided their professional lives between private practice and government - the Dean Acheson's, Wild Bill Donovan's, Lloyd Cutler's, and the many other lawyers who have made such a difference.

Since we agree that "public service" is highly desirable, why mention it? What is the problem? The problem lies in the dilemmas many of you will face. Where does pro bono work fit if you must produce 2000 or 2100 billable hours each year, say 65 or 70 hours in the office each week, working at a pace, which according to one lawyer, is like "drinking water from a fire hose?" Not surprisingly. recent studies of the largest law firms show a drop on average in the number of hours a typical lawyer devotes to pro bono work - even as typical profits rise. How many young lawyers will search for a government job - when the comparative public/private salary gap has widened and young lawyers must repay school loans of $100,000 or more? Also not surprisingly, one top law school recently found the percentage of recent graduates beginning their careers in the public or non-profit sector fell from about 12% in the l970's to under 4% in 1998.

How enthusiastically will a lawyer, in mid-career, seek a temporary government job - given the increasing cynicism (unjustified in my view) with which the public tends to view that government service? Will the complex rules, regulations, and other government-service requirements act as a practical barrier to recruitment?

These problems may seem minor compared to problems such as racial or gender inequality or global warming, problems that American lawyers have helped, or are helping, to overcome. But they threaten our profession.

Can you help the bar to resolve them, recognizing competing needs - participation in public life and, for that matter, raising families? Can you help bring about action based on that recognition? During World War I, Will Rogers said that he could stop the German U-boats. How? "Just drain the North Atlantic." How? "That's a problem for the engineers." But I'm not asking you to drain the North Atlantic. I'm asking you to help change a certain law firm culture. You can help here and you will benefit.

Speaking personally, a job I found hugely rewarding was working for the government in 1974 as a staff member of a somewhat obscure Senate Subcommittee - the Subcommittee on Administrative Practices and Procedures - charged with organizing hearings on airline deregulation. The work was fascinating; the experience invaluable; and the opportunity to participate in the making of public policy, inspiring. At one point, a woman from East Boston interrupted a hearing to ask the Chairman, Senator Kennedy, "Senator, why are you holding hearings on airlines? I've never been able to afford to fly." "That," said the Senator, "is why I am holding the hearings." The hearings did help bring about deregulation and average airfares have dropped considerably, bringing about more flights - and greater congestion I concede. But my object is not to defend airline deregulation. It is to say how enormously rewarding a personal experience that was.

More broadly, if the democratic process is to work, lawyers must participate. American law is not decreed from the top, but rather "bubbles up." The Constitution provides for a rule of law; protects basic liberty; guarantees certain forms of equality; divides power to prevent too much power falling into the hands of too few individuals; and, above all, creates a framework for democratic government. As you, but not all Americans understand, the Constitution does not tell people what to do; it provides a method for them to make community decisions democratically. And it foresees the public's participation in that decision-making process. The Founders' ideas in this respect were not so very different from those of ancient Athens - where Pericles at his famous funeral oration, asked "what do we [Athenians] say of the man who does not participate in politics [i.e., public service]? We do not say he is a man who minds his own business. We say he is a man who has no business here."

Public questions demand public participation. Consider the maze of complex social problems currently spawned by technological change. How, for example, are we to reconcile rights of free expression with technology that can invade privacy, registering virtually any conversation or physical movement? Contrary to what you may believe, the Supreme Court will not find a definitive answer. Court intervention tends to occur after the other branches of government have acted. That is how it should be, for those other branches are better able than are courts to determine proper policy.

Policy grows out of a kind of national conversation about what kinds of new rules, regulations, or statutes technological change requires. That conversation engages technicians, lawyers, scientists, engineers, businessmen and women, the media, as well as legislators, judges and many ordinary citizens. It takes place during endless meetings, symposia, discussions, in journal articles, media reports, during legislative hearings, and sometimes in judicial decisions. Afterwards - after the statutes have been passed - the courts determine whether legislators acted within their constitutional authority.

Lawyers often lead that national discussion. They define the issues, explore the ramifications, look for consensus, and explain the matter in plain English, for in principle lawyers remain generalists in an age of specialists. This process is a democratic process. In my view, it works well. And the participation of lawyers is essential to preserve the democratic government that the Constitution foresees.

Every day in my job I see how this Nation over time has gradually made real the Constitution's promise of a rule of law. Let me illustrate. In 1832 the Cherokee Indian tribe lived on land guaranteed them by treaty. They found gold on that land. Georgia tried to seize the land. The Cherokees sued. And eventually the Supreme Court, in Worcester v. Georgia, held in favor of the Cherokees. Georgia then refused to obey the Court. President Andrew Jackson reportedly said, "John Marshall has made his decision; now let him enforce it." And Jackson sent troops to evict the Cherokees, who traveled the Trail of Tears to Oklahoma, thousands dying along the way.

More than a century later the Court decided Cooper v. Aaron. Nine Justices signed an order making clear that the Southern States had to follow Brown v. Board of Education and desegregate their schools. But neither nine judges nor nine thousand judges could have, by themselves, brought an end to racial segregation, imposed by law, in the South. Instead, the President, President Eisenhower, sent troops to enforce the Court's order, not to defy it. And the Governor of Arkansas backed down, opening the doors of the segregated white school to the black children who wished to enter.

In the last few years our Court has decided a host of controversial decisions, ranging from abortion, to religion, to Bush v. Gore. Those cases produced a vast amount of commentary -- positive and negative, including much that is heated. But these cases have produced less public comment about their most remarkable characteristic -- the fact that losers as well as winners will abide by the result, and so will the public.

How did we get there -- from Point A, "John Marshall made his decision, now let him enforce it," to Point B, widespread acceptance of the final decision even where we might whole-heartedly believe the decision is wrong? The answer lies in 200 years of a national history that has included a Civil War and many years of racial segregation. It lies as well in a legal profession that, over the years, has reached out to others, taught by example, instilled respect for the rule of law. As lawyers we fully understand that a system that protects our constitutional liberties must consist, not simply of fine words on paper, but also of habits, customs, expectations, settled modes of behavior engaged in by judges, by lawyers, by the general public. And the miracle of today's reality is driven home to me every day in my job where, from my seat at the far side of the bench, I see before us men and women of every race, every religion, every ethnic origin, representing groups of every conceivable point of view, who are before us because they will decide their differences through law, not on the streets with fists or rocks or guns.

The rule of law that this system reflects has served us well in protecting our liberty. It is a national treasure. But as John Marshall said, the "people made the Constitution and the people can unmake it." Its continued existence depends upon our willingness, and our ability, to make certain that the next generation of Americans participates in our democratic, governing process and understands the Constitutional importance of doing so. Your contribution to the transmission of those values, through teaching, through example, through participation in public life, is also a form of public service.

These are the reasons why, speaking from my own professional experience, I believe your professional lives must include some form of "public service. Do not take my word for it. Look to Jefferson: "There is a debt of service," he said, "due from every man to his country proportioned to the bounties which nature & fortune have measured to him." Those are the words that I hope you will remember.

I thank you for the opportunity to speak to you, congratulate you once again, and wish you a long and happy career in the law.