“What`s happening at the beginning of the decision-making process is, although I have a view, tentative. Tentative means not that I might change it, but I`m deliberately holding myself out to be changed. If you come along in the oral argument and you produce something I didn`t think of or cast it in a different light and I begin to listen, I think, ah, OK, that`s right. And you see, I`m shifting. I`m shifting. I`m tentative here. I`m tentative there. I`m open to being changed. As we get into conference after the oral argument, and as our discussion becomes more definite, I`m still open, but I`m less open.
And then once the writings circulate and I`ve made a choice, I`m not really open. Before I`ve made a choice, I`m a little open.
You see, it`s like a sliding scale. You become more and more and more definite over time. You become less and less open to change. And then eventually, it`s decided and out. And after that, don`t look back, look forward.”
Justice Breyer’s Active Liberty : Interpreting Our Democratic Constitution was published last month by Knopf.