Justice Stephen Breyer on Donald Trump, Civil Liberties and Retirement

Supreme Court Justice Stephen Breyer is interviewed on "This Week."
5:07 | 12/27/15

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Transcript for Justice Stephen Breyer on Donald Trump, Civil Liberties and Retirement
for the supreme court with landmark decisions upholding same-sex marriage and president Obama's health care law, I had a chance to visit the supreme court for a rare interview with Stephen Breyer. You could say he's the court's true swing vote in the court's most recent term, he voted with the majority 92% of the time. More than any other justice. He told me, while the justices may have their differences, they're not nearly as partisan as people think. P P pththinink a loof different things of the country, what is so terrible that nine judges of this court do disagree about a certain number of things? What's good about it, they'll resolve their differences under law despite disagreements. That's the strength of the country. That's called the rule of law. Doesn't it erode confidence when you see these high-profile cases breaking down 5-4? Along -- There are 50% are unanimous. Yes, but I'm talking about -- I know that you only want to talk about the ones, 20%, that are 5-4. More likely reflect differences of philosophical outlook if you'd like rather than differences of politics. Politics to me is who's got the vote? Are you republican? Are you democrat? Popular or unpopular? I don't find that here. Reporter: He's an author of a new book, the court should look beyond our borders as it shapes American law. Take his death penalty dissent this year. Arguing capital punishment may be flat-out unconstitutional. You pointed out in those 40 pages that there are only 22 countries that carry out executions in 2013. And only eight countries that did more than ten. One of them is the united States. Why is that relevant what other countries are doing? Remember the words of the eighth amendment -- it forbids a cruel or unusual punishment. Does that word "Unusual" mean unusual in the world or in the United States? Some people think it means the world, and therefore, it's highly relevant, and others think it's more limited to the United States. Reporter: Among the toughest issues Breyer and the court have wrestle with is finding a balance between national security and civil liberties. Cicero, 2,000 years ago, in time of war, the laws fall silent. No, that was the court's attitude for a long time and that led in world war ii to 70,000 American citizens of Japanese origin being removed from their homes and put in camps and this court in 1944 upholding that without any evidence whatsoever. They upheld it, because they're thinking, well, we can't run the war, Roosevelt has to. This is a case you have written about extensively. D you think this can happen again in the United States? I doubt it. Why? This country has developed a stronger traditions of civil liberties? What do you think when you hear Donald Trump come out and say that, you know, proposed a ban on one religious group coming into the United States? What do I think when I hear that? I think everyone in the united States has a right to express an opinion. A judge has to do his best not to have an opinion on a political matter like that one is highly political, and if I have an opinion I might talk to my wife about it but I'm not going to talk about it -- I'm not even going to answer the question if I talk to my wife about it. Because there's not answer. One more on this, it's interesting, trump in making the case for his ban on muslims coming into the country cites fdr's interment of the Japanese? That's his affair. Reporter: Appointed by bill Clinton in 1994, three justices will be over 80. Factor, who's the person nominating my replacement? The question you're asking, if this person is president would you not retired if that person you would retire. Reporter: Donald Trump, if he's president of the united States, Ted Cruz president of the United States, you wouldn't decide, you know what, I was thinking about retiring but I'll stick around. It's a highly personal decision, but you have to be able to do the job. I think it's my self-interest to think it. Experience does help. But I'm asking you -- I know you are. I know you're asking you a direct question. I know you're asking you a direct question. I'm giving you an indirect answer. You can see more of my

This transcript has been automatically generated and may not be 100% accurate.

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