in a few moments, a form on individual constitutional rights with supreme court justice stephen breyer. mccain and lindsey graham talk about syria. now a discussion on individual constitutional rights with stephen breyer and margaret marshall. she wrote a decision-making massachusetts the first state to legalize same-sex marriage. this is about an hour. i would like to thank all of you for being here, with a

special thanks to alan and stephen for your generous today. this has already become a signature event. we thank you. ourchertoff has expanded programs and brought it wonderful new directions. today we have two luminaries of american law here. the fact that we have justice marshall here is an important reminder of something many of us forget, even those of us who are lawyers, and that is we have something unique in this country in our constitutional system. we have state constitutional courts, and the work the judges on the highest court that the states play in interpreting state constitutions, and in many -- state state caution constitutional justices have taken individual rights further than the federal supreme court has. it is a unique aspect. some people call it dual

federalism. we will talk about the interplay of state and federal constitutions. i would like to mention one thing because justice marshall is here, and it is to point out that justice marshall really was part of a team of two in terms protecting the individual .ights in the united states and when she retired from the supreme judicial court of massachusetts in 2010, she retired in part to be able to spend more time with her husband . as she put it at the time, to be able to share their last seasons together. justice marshall, want to share our condolences in the loss of your husband a few months ago, who was also an enormous loss for the country. anthony lewis, tony lewis, was a giant among a champion of

individual rights, a champion of the bill of rights. two pulitzer's,on trumpet,""gideon's and significantly bit more than any other reporter in the united states to explain the role of the courts, and especially, the supreme court, in a very sophisticated way. i think it is fair also to say that that kind of explanation, the role of the court, continues now par excellence by justice breyer, because it is not part of the job description of a supreme court justice to go out in the public and explain the role of the court, explained opinions, and justice breyer is one of the few retired justices -- sandra day o'connor is another -- who go to great lengths to provide this important set of functions. we appreciate that and we

appreciate enormously the contributions of tony lewis. as you heard in the introduction, and i will start with you, justice marshall, the overich case -- you wrote 300 opinions, many of them -- many ofpport and them and were mostly important, and i would like to go back to 2003 thousand three and when you wrote that opinion for the court , finding a right in the massachusetts constitution for gay marriage. you were criticized pretty widely and strongly from all quarters, from the massachusetts legislature, from the governor's office -- mitt romney at the time -- and all the way up to the supreme court. and i wonder if you were prepared for that and whether

you thought at all about what the reaction would be or whether you just looked at the massachusetts supreme -- constitution and felt you had no choice but to come to the conclusion that you did? guest: >> i probably was not as prepared as i might have been, not so much for the massachusetts reaction. ofad come into a lot criticism, and as a firm believer in the first amendment, i think judges can be criticized as long with it everybody else. we are different in that regard from moststart -- other countries. what i had not anticipated, at all, was the reaction from around the country and around the world. and although i was criticized, the opinion was also praised, and i had not anticipated that. you might say that was my naïveté. state court judges -- we know our opinions are followed in

other fora, but we do not think we are going to make international and national news on the scale that was the response to the dredge. as i say, i grew up in south africa, and for a very tiny village, and it is a little odd when the president of the united states points his finger at you and says, you are a judicial activist. makeis a sentence not to to justice breyer all the time. not if you are sitting on the massachusetts court. i think the reaction did take be by surprise. >> do you think your experience growing up at in apartheid south africa strengthen you in anyway for the kinds of courageous could positions you took on the court? >> no. [laughter] when you become a judge, you bring to that position your

entire life history, and when you are sitting on the court, you work very hard to put aside your personal views. and so -- and gay marriage really was not part of my thinking in south africa. in fact, gay marriage had not been part of my thinking in the united states. so i did not make a one-to-one connection. my life had been involved with issues of race discrimination, deeply involved in issues of gender discrimination to some extent, involved in issues of this ability law, but i can recall and i do not say this proudly, but looking at the extent of how much things have changed, when i was the general counsel at harvard in the 1990's , i was asked to come and speak to a meeting of the same-sex -- of gay and lesbian alumni of

harvard university, and somebody was, the conference o going to be held on the anniversary of the stonewall rebellion, and i had never heard of the stonewall rebellion. that was pretty astounding for somebody who had been very involved in the equality. i see that as an historical fact and not because i am --so i think gary marriage just was not on my agenda. not knowe breyer, i do if there has ever been a time when public opinion has changed as broadly and rapidly perhaps as in the case of gay marriage. and i wonder if you could comment a little bit about the role of the book opinion at this -- on the role of public opinion at the supreme court. you were in the five votes overruling or declaring it was

unconstitutional. it is hard for some of us to believe that even as little of go as one or two years the supreme court might have come to that same conclusion. i am sure you say it probably would have, but tell us about -- >> the truth of the matter is i do not know. that is the truth. margie just put this very well. one, i do not know. two, she said exactly what i think. of course, what you are trying to do is decide the matter on the law on what is now, i look at the briefs, i look at the law, i try to get it right. my entire life is there in the open cases. by background of course matters. no, it does not matter. perfect. and you find a judge who says he does not think that -- they do. of course they do. and the third way and why this is such an interesting case in this area but to me, you have to

think of loving errs is virginia. virginia.vs. it was the miscegenation case, interracial marriage. the question of whether a law forbidding interracial marriage was unconstitutional, which it was. the court had decided around. frankfurter said do not take this case, and he did not. they did not take it for quite a while, and eventually when things had settled down some, and it was clear that this integration was going to end -- we thought -- then they took the case and said it was unconstitutional. there is discretion in taking the case. was frankfurter right? muchis something that is debated. personally, i have read about eisenhower and little rock and

how important i think that was taking those thousand paratroopers from fort bragg and sending them to little rock and escorting the black little rock nine into high school. open up. the freedom riders, martin luther king. lived to that. thing was tortant get this thing of desegregation accepted. was all that there was gay marriage? no, it is not there. when people say they are day and meet people who are gay, they are friends. i think you had a hand in that. but it is not the same thing. but nonetheless, you are asking really had ae problem about whether this would be accepted in large number of states and people go up in arms and you think about all these things -- would the court have decided to take the case? well, i don't know, do i?

through what live we did live through, and of course we are going to take it, and of course all the lower thiss who had decided said it was unconstitutional, and if you set there as i did and read the briefs, i think, but how can i prove it, i cannot, but i think those people would come to the conclusion when you see the harm the law was causing and you look on the other side -- and i am putting it not in constitutional terms -- that i can see this directly into the constitutional problem of equal protection and so forth -- i will not get to come pitted -- but i would say what is your justification for this? a little skimpy. a little skimpy, said the majority. a little skimpy on the reeds for classing these one thousand statutes in this way. alright, so i read to those respected of course it would come out the same way if they had taken it sooner.

so there we are back to margie. of course not. >> i am glad you took it. me ask a different kind of question. you have often written about perhaps your next book is going to be about the supreme court in a global context him and the topic of whether or not foreign shortoreign judgments informed american courts. in reverse, what kind of effect do you think that opinion might have in other countries? >> again, i do not know. there i do not really know. how do i know better than people who live in these countries or go there more often than i do? it might. it might not. i cannot answer that question because i do not know the answer. >> what do you think? >> i think one can at least posit an answer in the sense. we in the united states forget our constitutional form of enforced by an

independent court was unusual, was not followed in most of the from 1780 until 1948 in germany. people often look to the united states. what has happened around the world, increasingly in the post- second world war era, more and more countries turned to what i call the american system, a written charter of rights. why? not like the way parliament was working in germany, for one, and quite a few other places. when you begin to have models that are similar to the united states', you begin to look at the united states courts, but you also look at other courts. if you are in south africa or two english-speaking constitutional courts, they look at our opinions and they also look at canadian opinions and things from other of special

courts. a is not helpful when you are parliamentary system, because it is a different system, and i think the united states continues to have a quite a degree of influence, but it is not the only influence, not the only influence, because there are wonderful judgments that come from other courts. from my point of view, when i was sitting on the supreme judicial tort, i always enjoyed looking at what other course who lookingfunctioning and at what our system was doing. it was not helpful before 1980 seven in canada to the but the parliamentary system was doing. it was helpful to me to look at them, of, but i follow course they were helpful, yes cap they were helpful, and i think it always will be. this room is as capable of answering one question as i am, which is the headline is, supreme court gayikes down the anti-hal

marriage law as unconstitutional, and and people react to that all over the world. if you're asked again the question how the lawyers will react, the lawyers read the decision. decision is interpreting the massachusetts constitution and whether they have to have to treat the gays the same as respect to marriage as the heterosexual system. our question is a different question. our question was is a federal area ofthis marriage, which goes to a thousand statutes and deprives people who are lawfully married who are gay, of federal benefits , such as $300,000 in tax deductions to him is that consistent with the constitution of the united states? and they will read the opinion and they will see there's a great deal of emphasis in that opinion on the fact that it is primarily not completely, but

primarily up to states to define what marriage is. family law is a matter of state law almost entirely. and so the federal government was intruding here in an area that is primarily states. this is how the lawyers will look at it, and you say, will it make a difference? i say i am not sure, and you see why? by the way, since i pointed out which i normally point out to the 10th-graders what her court does -- and it is important they know this in the 10th grade -- law in united states is primarily almost 90%, 95% a matter of state law. of course, marriage law is 99% stake. and you go through court law or law and law or business you will see primarily state, primarily state

environmental, education, you name it. --which she is doing is is what i tell the students, and why if you want to make a difference, do not read the headlines in "the new york times" --go back to your communities and work there, and that is why she can do that. >> i want to give the audience a taste of that, because the latest figures i have are 2010, and i say this with greatest respect, if you took every case that was filed in every federal court in the united states, trial courts, united states supreme court, other than bankruptcy, in 2010 there were 1.2 million cases filed. in state courts, trial courts, intermediate, judicial courts,

excluding traffic offenses, gu ess -- 48 million cases. so he gets to pick -- [laughter] >> she is including traffic tickets. >> no, no, no. 48 million cases. in a funny kind of way, i'm afraid that justice breyer is using a different objects, which bubble up. there's so much happening. of course we are a great nation and we are one nation. but i want to tell you, i want to tell you, massachusetts and not aakota -- hmm -- lot in common. great chief justice. it is just different. massachusetts -- i do not want a good back to the gay marriage case all the time -- but

massachusetts, we have adoptions, we had the state placing foster children in saint-gender couples. he had governor wells had wanted to have a huge teaching program in middle schools about -- massachusetts was just different. and so gary marriage in a sense sat comfortably in massachusetts, and i do not know how it would sit in north dakota. >> let's go back to another aspect of individual liberty and freedom. there has been a lot of discussion the last few weeks around the country of the relationship between individual freedom and national security. you have actually written a great eel about this. you do not face the same kinds of issues that justice breyer faces in the supreme court. you have written quite forcefully that judges must insist on government accountability as vigorously in wartime -- whether declared war as they terror --

do any time. you say that democracy must fight sometimes one hand behind his back. i wonder what you see as the implications as no longer a sitting judge and not facing these kinds of questions about these issues in the context of things like national surveillance or detention at guantanamo bay. on my court we did not have issues likesions of guantanamo bay, but i would say this -- i grew up in south africa during the apartheid years, and almost everything that i detest it was done in the name of national security, and it had a racial overtones to it. the reason why people were banned, put into prison, white people disappeared in the middle of the night was because the south africa and government

articulated that was necessary to maintain national security. so i think i bring to my view of the world a profound sense that you have to really test it all the time. and of course, i think what has made this country such a great , a really great comfort tree, is transparency in a government, which is why i think people can criticize judges. it is not comfortable, but they have a right to do it. they should know how we go about our business, how do courts select its cases. transparency is important, and knowing what our government does is terribly important. there are hard questions. obviously, the united states in 9/11 suffered the kind of attack on our security that was almost unprecedented, certainly for us, and so that has changed the

view. but i tend to think one should always be skeptical when the claim of national security and push for transparency and be careful, be careful. >> justice breyer, how should a judge or sponsored when the executive branch comes to you and talks about national security and issues that judges are not trained in and when the country is at war, when lives are at stake, is it a different posture you take when they come to you with those -- up the president and congress are in charge of the security of the united states. the judges are not. that is constitutional. you can trace it. the judges, however, are responsible for protecting individual rights. i mean, their first and foremost -- that is what they do with unpopular people -- you try to infringe a protected right for

an unpopular person, i am sorry, that person is entitled to the same rights as others. these two collide in that situation. -- i foundbe thought out somebody told me -- cicero and i cannot remember i like my -- translation -- i said, when the cannons were, the law falls silent. an audience, and they said, you idiot, the romans did not have cannons. [laughter] we have changed from that. her attitude is right recall law applies. now, that is the beginning of the process. not the end. if you look at many of the protections of human rights, for

example, privacy, reasonable searches and seizures, it says no on reasonable searches and no unreasonable searches and seizures. ok, what is reasonable? that is the argument. we have one tremendous help in this, and it is not the government. the government health like any other groups of lawyers. one thing about lawyers -- they help. why? because the defense lawyer in this case, if it is a prosecution, the side against the government is undoubtedly going to ask two questions -- and these two questions are very helpful, and they focus the point she's making. when you see an ordinary protection being diluted because of more times, guantanamo, or the germans ind

prison camps and so forth or the ones who ended in the separates -- the first question, why? these are questions the israelis face all the time. and the judges ask it, and the lawyers ask it. why? in the government better come up with a good answer. if the government says it is a secret, there are ways around that. you can show that to the judges privately. if you cannot, ok, still better to have the judge looking at it. there are ways. that would look at it. the second question is, why not? if they show why, then the lawyer says, hey, why not do it this way, which as you get your obstacle. you can build the wall across , the chiefsays barak justice. build it so you do not shut out the arabs on their farms over here from getting their water supply. why not do it that way? those two questions -- why and why not -- are very powerful

questions. >> i would say remember what the justice is said. there is a hierarchy, and his two questions are dependent on what? access to a lawyer, access to a lawyer, and i would say that the thing i feared most in south africa was that i would be arrested and i would not have access to a lawyer. you have to have a lawyer. so you learn to have a kind of sensitivity on things that are really going wrong. and the second thing is him access for the lawyer to a judge. there's something terribly important about the adversary process. that, too. presente in and they danger. courts are not

courts. one-sided courts are not courts. good luck. >> justice breyer, you mentioned search and seizure, and you also had said you have some trouble with the dog case. >> that was a tough case. particularly if you liked dogs. >> why was a tough? >> it was a question of unreasonable search and seizure. he divided 5-4. warrantman without a who is standing in the street can look into your house if you leave the window open. that is your problem. he can do that. and he can go up to the front door, too, like any other person, unless you put up a sign saying you do not want them. you people think about putting up that sign. by and large you can go up to the front door if you are policeman like anybody else -- and that is not unreasonable because you have all kinds of

people going up to the front door all the time. now, suppose the policeman comes up to the front door with a dog. everyone likes dogs. what is wrong with that? that happens all the time. this dog is trained to sniff marijuana inside the house. does he have to have a wart or not? people come up with dogs all the time. , so what are you going to do when the person is your next door neighbor. found it a difficult case. i ended up deciding for the dog. >> justice marshall, you have often written about someone who , aeared in the first case

man named clark walker. tell us why he is so significant. >> the oldest constitution in the world is still being enforced. with all men are born free and equal. it has changed to all people. massachusetts in 1780 had slavery. always the south. sometimes it is the north as well. appointedces had been by the king. they come before the court with a brilliant lawyer, saying,

excuse me, it appears all men are created equal. the case involved a slave and his owner ringing him back. back. they said ,lavery was unconstitutional and massachusetts had not had slavery until 1783. there were only two cases i knew about. one was a wonderful case. when governor wells nominated me to the court, it was such an incredible rib lynch and on her. wonderful -- it was so

incredible. exn you become a judge, my -- experience is all judges find it very hard to look and see. we know the chief justice was a slave owner. this is pretty close. >> we like judges. >> my husband liked sleeping with the judge. >> we will move onto something else now. [laughter] nelson mandela has been on everyone's mind around the

you obviously knew him well. episode you could share with us? >> i just want to mention nelson mandela was president. there was a case against the with a national congress brand-new constitutional court in south africa, and the court the africant national congress, and it was us -- a stunning defeat, and he went out the next victorysaid, today is a

for all south africans. it shows even if you are a therful political party, rule of law will prevail. for me to be a political leader, that is the fact, and another ,lightly more personal one someone told me this and it does. it didn't. this anecdote. they were allowed one present, and they liked good dive at chocolates.

godivaed go dive a -- chocolate. every year the colleague at his wife for a box of chocolate. somehow he would think, if i just took one and pushed it by june mandela would give me a box of chocolates. it is one thing to talk about discipline and generosity. >> on the 10th anniversary a few years ago i had the chance to go there. becky -- mumbeke was

president. they are nervous. a don't know what he is going to do. in the banquet walks mr. mandela. the room lights up. he told that story. he told your first story, and you could just hear an audible sigh of relief from the judges and lawyers. president oh the -- obeyed every order. when people say to me what is africa, iin south

know mandela made a huge inference. i love that anecdote. i am going to open up to the audience. one case the media seemed to was the affirmative action case. i do not inc. you view it as insignificant. explain how you view it. >> one view is the 14th amendment, which says equal protection means the constitution is colorblind. there are a lot of good .rguments for that area

the other is that it was put there for people who would be be asleep not either. they had been slaves. they were free. there is a big difference between trying to be inclusive and bring people into society than a law which is exclusive. hold a friendes views two different degrees. our court is divided. first the judge wrote an opinion that was simply a concurring opinion, but people have taken it as the law of the united they say, don't take

this seriously. action,have affirmative but be very careful. yes, you can. ruth ginsburg was dissenting. she thought it should go further. the court held you can take justice powell's view. you can use affirmative action, but to not go too far. in the end it may not be necessary. it said, the very careful.

now the same thing comes out of texasarea did -- out of texas.d -- do? will the court will they say no affirmative action? what the court did do. seven members of the court said gruner was the law. what did i say? i said, that is right. seven members of the court said that. justice ginsburg did the same position as before, and there we are. i think it's an important case, and sometimes an important case is simply reaffirming.

likeu said you do not being in the minority. timeser if there are where you actually think it might be better, even though you feel passionately about an issue, to join them to be able to influence the way it is written? >> nobody likes to make an unprincipled decision, and i would inc. about the following. -- think about the following. the constitution is not according to me or any other individual judge. an interpretation is not by an individual judge.

we wear black robes to symbolize -- of the law.he it is made up of individuals who are serious and hard-working and have different views of what the law is, and every member of the court knows that. you try your best to produce an opinion that will affect the court. you cannot sign up for something you think is equally wrong. judges would the in the position -- can i agree with this? other people think it is right. what changes need to be made? it is not like the senate very good it is not a political body.

it does not work that way. soon you have to face the question of how do you get the majority opinion, and what is it going to say? spend two months writing one of the greatest dissents ever. experience, and if you are not prepared to do that -- you will see. have microphones for you if you can wait for a microphone. >> inc. you. our political system has many but many people agree that money is hurting our

political system. how does the supreme court individuals contributing? >> i will tell you how they justify it, but i do not want to persuade you. the constitution says congress shall pass no law abridging the freedom of speech. money is not speech, but you try running a political campaign without money. without money you would have the income been forever law, so the first amendment does have something to say about this. greatest judge this nation has ever had said, don't get into the position of trying to say this person to speak less so that arson can speak more,

because once you start down that road, you won't know. there's no stopping place, yet that's what campaign laws do. they say this person speaks less with his money paid to support a point of view he believes in so others who have less money will be able to have their voice heard more. saying?hat they are argumentot such a bad area did you say, why do i take the other side? that, you say, they did not know what the world was going to be like. we have to let congress draw the line somewhere, so he cannot shut the door on the people who have only five dollars to give, but that requires ringing

judgment into the case to decide whether the legislature is actually trying to keep the playing field balanced more evenly or whether they are trying to write the incumbent so to ben act, , to say no one can contribute over a certain amount, i thought that went too but the judge will see the type of decisions i am asked inc. judges to make in order to further the point of view you stated in your question. not so easy a question. >> let andsk you about state court

its effect. appointed judge, but many state judges are elected. how pernicious is it in state courts? there was a case brought ion said, underge who the first amendment i should he able to say whatever i want to say. if you vote for me i will never vote in favor of the death or i will never uphold an abortion law. the way states dealt with that was by codes of judicial conduct. cannote court said, you say these kinds of things.

states essentially said the first amendment says the united states shall make no law, and i think that had a devastating consequence. there were 48 million cases -- 48 million cases. the united states has agreed but it can beice, in jeopardy. i think what is happening with downupreme court sucking and the rules of conduct. >> i agree with that.

i have to be consistent. i have to take the point of view the states have the power to regulate what these judges will say through codes and conduct, but now the problem is we have to make these distinctions. it is a huge problem, just as campaign finance is a huge problem. there are two points of view. >> we have a question. it is hard for us to see. if we can get a microphone ferried over there. lex i am curious. i would love to get your perspex is on the role of state law versus individual rights of immigrants.

it depends on the rights and so forth. the 14th amendment says no person shall be deprived of rep -- of life, liberty, or pursuit of copper to. -- of property. the fact it says person is important. it says they protect people who are not citizens. can make not mean you distinctions. there are some protections. >> states can decide to give immigrants and non-citizens certain rights.

it's an area that is heavily regulated. >> over here. >> thank you for your tremendous service to our country. it wasn't that long ago elliott the manferred to you as who writes supreme court events, and things have changed. i wonder if you can talk about being on each side. the personal relationship is

fine. i've never heard of voice raised in anger. it's collegial. we get on pretty well. i would rather be the majority. the dissent performs an important function. the first thing it does is improve the majority. switches, but

nobody likes to look like idiots. dissent makes the i amd point and you say, going to change my opinion. best points. the they have written out the majority so there is no need to make that decision anymore. failedu are seeing is a dissent. what you are seeing is those who did not change people's minds enough. nobody's going to say it does not make that big of a difference. you've written it, etc. it is a very helpful process

to think about what you are going to say and revising it again and again. nine is harder to work with than seven. problemsk one of the is the constraints. if the justices on the supreme court of a state, and i run defeat him, not just to criticize the decision, but to say he is a skunk and a and he is in the pay of big business and labor.

i am seeing a fracturing of states of ring courts. -- state supreme courts. when you begin to change the and there are fights that very nastyblic, and you just don't have that. the careful. remember, it's in your hands. we have to say, we don't need that.

>> you will have served for two decades. i wonder have your views changed in any significant ways? >> you're sitting there frightened to death eerie dead -- frightened to death. after five or six years you stop wondering. maybe you'll do all right. you're doing your best. he said, you're on duty all the time. it's different people.

they bring different attitudes to the table eerie dead -- to the table. i bet there are more decisions now then there were. over time you get to know the area. to formulate views. you don't want to simply go the opposite direction. you try to follow where you tarted. you're going to be not too

different. it's interesting. are doing their job, and i am not going to go beyond that. >> you talk about the danger of citizens. when so many of those decisions -- happen to be -- >> he unusual threatens to become the usual.

my own view, it's not so surprising as you think. oftenstice and i disagree. why not? i think it's because he takes the view that laws should be cannot of rules people sustain. he's uncomfortable when you can't come up with a clear rule. withuch more comfortable

ms. -- ms. -- a mess. much tonot bother me so not have an absolutely clear rule. i think you can teach by example. a lot of our differences will be about that. once people start a particular road and think it is the right track, they continued down that road. father gave me two pieces of advice. one was to stay on the paved -- on theedead