might have been. they had been deficient for my court. i come into a lot. the strong believer in first amendment i think they go they can be criticized. .

>> you think your experience growing up in apartheid south africa strengthened you in any way for the kinds of courageous positions you took on the courts? >> no. [laughter] well, i mean when you become a judge, you bring to that position your entire life history. and when you're sitting on a court, you try very hard to put aside your own personal views. and so, and gay marriage really

was not part of my thinking in south africa. in fact, gay marriage hadn't been part of my thinking in the united states. and so i didn't make a, you know, 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 with issues of disabilities law. but i don't say this proudly but just to give you some sense of how much things have changed, when i was the general counsel at harvard university, which i was in the early 1990s, i was asked to come and speak to a meeting of same sex, same, ah, of gay and lesbian alumni of harvard university, and somebody said the conference was going to be held on the anniversary of the stonewall rebellion. and i had never heard of the stonewall rebellion. that was 1992, or three or four, that was pretty astounding for

somebody who had been very involved in equality. and i mean, i say that with, you know, just as an historical fact and not because i'm proud about it. so i think gay marriage, um, just wasn't on my agenda. >> justice breyer, i don't know if there's ever been a time where public opinion has changed as broadly and as rapidly perhaps as in the case of gay marriage. and i wonder if you could comment a little bit about the role of public opinion at the supreme court. you were, of course, in the five votes overruling or declaring that doma was unconstitutional. it's hard i think for some of us to believe that even as little ago as one or two years, the supreme court might have come to that same conclusion. i'm sure you will say it probably would have, but tell us

about... >> the truth of the matter is i don't know. and that's the truth. and margy just put this very well, which is the same point. one, i don't know. two, she said exactly what i think. no, of course what you're trying to do is to decide the matter on the law as it is what now, now. i look at the briefs, i look at the law, i'm trying to get it right. no. my entire life is there on these open cases. my background, of course, matters. no, it doesn't matter. oh, yes, well, okay. [laughter] perfect. perfect. and you find a judge who says he doesn't think that, they do. of course they do. and a third way, and why this is such an interesting case in this area, to me, you have to think of loving versus virginia. loving versus virginia was the mysogynation case. and it came to the court well

before loving versus virginia came up, the question is whether a law forbidding interracial maybage was unconstitution -- interracial marriage was unconstitutional, which it was. frankfurter said don't take this case. and they didn't. they didn't take it for while -- quite a while. and eventually, when things had settled down some, and when it was clear the segregation was going to end, we thought, then they took the case, loving versus virginia, and said it was unconstitutional. there's discretion in cases we take. was frankfurter right? that is something that is much debated, much debated. personally, i've read about eisenhower and littlerock and how important i think that was taking those thousand paratroopers from fort bragg and sending them to little rock and escorting the blacks into the high school. and look what it took.

the freedom riders and martin luther king. it's not, it's not there. when people meet people who are gay and they say i'm gay, they're friends. okay. i think you had a hand in that. but it isn't the same thing. all right? so nonetheless, you're asking me, well, suppose we really had a problem about whether this would be accepted in a large number of states and people go up in arms and you think of all these things. what if the court had decided to take the case? well, i don't know, do i? i know i did live through what we did live through. and of course, we're gonna take it. and of course, all the lower courts who had decided this, and there were quite a few, have said it was unconstitutional. and if you sat there as i did

and read the briefs, i think, but how can i prove it? i can't. but i think most people would come to the conclusion when you see the harm the law was causing, and you look on the other side, and i'm putting it not in constitutional terms, but i can feed this directly into the constitutional problem of equal protection. and so far, i won't get too complicated. but say what's your scuff -- justification for this? a little skimpy, a little skimpy said the majority, a little skimpy on the reasons for passing these 1,000 statutes, or amending them in this way. all right. so i read through those briefs and say of course it would have come out the same way if they had taken it sooner. and then i think, you see. and so there i'm back to margy. yes, of course not. well... [laughter] >> i'm glad she took it. >> we all are. >> let me ask a different kind

of question. you've often written about and i think perhaps your next book is going to be about the supreme court in a global context and the topic of whether or not foreign law, foreign judgments should inform american courts. in reverse, what kind of effect do you think that opinion might have in other countries? >> again, i don't really know. there, i really don't know. how do i know better than the people who live in those countries or go there more often than i do. i mean it might, it might not. i can't answer that question because i don't know the answer better than anyone else in the room. >> what do you think? >> oh, i think one can at least posit an answer in the sense, you know, i think we in the united states forget that our constitutional form of democracy was a charter of rights. and it was not followed in most of the world really from 1780 until 1948 in germany. parliamentary systems are there.

and people have overlooked the united states. and i think what's happened around the world increasingly in the post second world war era, more and more countries have turned to what i would call the american system, a written charter of rights. why? because we didn't like the way parliament was working in germany for one. and quite a few other places. and when you begin to have models that are similar to the united states, you begin to look at the united states court. but you also look at other courts. so if you're in south africa or canada, to choose two english speaking constitutional courts, they look at our opinions, they always look at canadian opinions, and they also look at opinions from other constitutional courts. it's not really helpful when you're a parliamentary system to look at the united states because it was just a different system. and i think the united states continues to have quite a degree

of influx, but it's not the only influence. of course, the wonderful judgments that come from other courts. from my point of view when i wae court, i always enjoyed looking at what other courts who are now functioning and that our system was doing. it wasn't helpful before 1987 in canada to look at what the parliamentary system was doing. it was very helpful to me to look at judgments, did i follow them, were they precedenttial? of course not. but it was helpful and it always will be. >> anyone in this room is as capable of answering one question as i am, which is the headline, supreme court strikes down the antigay marriage law, federal law is unconstitutional. and then people react to that all over the world. but if you're asking a question of how will the lawyers react, the lawyers will read our decision. now, our decision is not talking about what her decision talked about. her decision is interpreting the

massachusetts constitution and whether they have to have treatment of the gays the same in marriage as heterosexuals. okay? our question was a different question. our question was, is a federal law in this era, area of marriage, which really goes through a thousand statutes and deprives people who are lawfully married who are gay of federal benefit such as $300,000 in tax deductions. is that consistent with the constitution of the united states. and they'll read the opinion. and they'll see there's a great deal of emphasis on 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's primarily state. now, this is how the lawyers are going to look at it. and you say, well, will it make a difference? i'm not sure. you see why? and by the way, i can bring that up, since i pointed out, which i normally point out to the tenth graders, what her court does. and it's important that they know this in the 10th grade. law in the united states is primarily almost 90%, 95% a matter of state law. of course marriage law is 99% state. and you go through tort law or criminal law. or business law. and you'll see primarily state, primarily state. environmental, education, you name it. and so what she's doing is sitting, which is what i tell the students, and it's why, if you want to make a difference in your community, don't read the headlines in the new york times and the post, which are about

the supreme court of the united states. go find out what's actually happening in the law. and go back to your communities. and work there. and that's why she can do that, you see. >> i just want to give this audience just a taste of that. because i know justice breyer's had so many cases. so the latest figures that i have are 2010. and i say this with the greatest respect for federal courts. if you took every court, every case that was filed in every federal court in the united states, appellate court, united states supreme court, other than bankruptcy, in 2010, there were about 1.2 million cases filed. in state courts, trial courts, interimmediate, supreme judicial courts, excluding traffic offenses, guess? 48 million cases. so he gets to pick... >> including traffic tickets.

>> no, no, no. i said not traffic tickets. [laughter] 48 million cases. so state court, and in a funny kind of way, we're using it in a different context, which is states are seeing it bubble up, they bubble up. there's so much happening now. and i know, of course, we're a great nation and we are one nation. but i want to tell you, i want to tell you, massachusetts and north dakota, hmm. not a lot in common. i love the chief justice, but it's just different. and so, you know, massachusetts, i don't want to go back to the gay marriage case all the time but massachusetts, you know, we had adoptions, we had the state placing foster children in same gender couples. we had governor weld had, you know, wanted to have a huge teaching program in middle schools about how not to

discriminate. i mean massachusetts was just different. and so gay marriage in a sense sat comfortably in massachusetts. and i don't know how to just fit that into north dakota. >> let's go back to another discussion of individual liberty and individual freedom. there's been a lot of discussion the last few weeks around the country of the relationship between individual freedom and national security. you've actually written a great deal about this. you don't face the same kind of issues that justice breyer faces in the u.s. supreme court. but you have written quite forcefully that judges must insist on government accountability as vigorously in war time or whether it's declared war, as they do any other time. and you wrote that democracy must sometimes fight with one hand behind its back. even though, democracy has the upper hand. 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. until on my court, we didn't have as many decisions that touched on issues of guantanamo bay, but i would say this. i grew up in south africa during the apartheid years, and almost everything that i detested was done in the name of national security. it had a racial overtone to it, but the reason why people were banned, the reason why people were put into prison, the reason why people disappeared in the middle of the night was because the south african government articulated that that was necessary to maintain national security. so i think i bring, i bring to my view of the world a profound sense that you have to really test that, and test it all the

time. and of course, i think what has made this country such a great country is transparency in our government, which is why i think people can criticize judges, for example. it's not very comfortable, but i think they have a right to doubt. they -- to do it. they should know how we go about our business, how the supreme court selects its cases. transparency is important. and knowing what our government is doing is terribly important. so i think they're hard questions. obviously, the united states in 9/11 suffered the kind of attack on our security that is almost unprecedented, certainly for us. but that has changed our view. but i tend to think that one should always be skeptical when there's national security and push for transparency. and be careful, be careful.

>> justice breyer, how should a judge respond 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 that you take when they come to you with those? >> well, there is a, look, the president and the congress are in charge of the security of the united states. the judges are not. and that's constitutional. you can trace it. the judges, however, are responsible for protecting individual rights. i mean first and foremost, that's what they do, as unpopular people, you try to infringe some kind of protected right of a person, it's an unpopular person. i'm sorry, that unpopular person is entitled to the same right as the most popular. so these two specialties collide in that situation. and where margy, where i completely agree with is it used

to be thought, and i found out, somebody told me, cicero said this, and i can't remember it in latin, so i'll get it all wrong. it's like arma legus or something, which i like my translation. i said, when the cannons roar, the laws fall silent. and i said that once to an audience, and they said, you idiot, the romans didn't have cannons. [laughter] but i mean, we've changed from that, okay? and her attitude is right. the law applies. now, that's the beginning of the problem, not the end. because if you look at many of the protections of human rights, for example, privacy, reasonable searches and seizures, it says no unreasonable searches and seizures. okay. what is unreasonable? and if somebody's throwing a bomb or something, it might be quite different than if they're

not. and that's the argument. and you will discover it goes on. we have two, we have one tremendous help in this. and it isn't necessarily the government. the government helps like any other group of lawyers. one, i'll say a good thing about the lawyers. they help particularly. why? because the defense lawyer in this case, if it's a prosecution, or somebody could be on the plaintiff side, but the side that's against the government, is undoubtedly gonna 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 war time, guantanamo, you see, or world war ii, and the germans and prison camps and so forth are the ones who landed in the submarines. the first question, why? this is a question the israelis face all the time. and the judges ask it. and the lawyers ask it. why? and the government better come

up with a good answer. and if the government says i'm sorry, it's a secret, there are ways around that. you can have them show it to the judges privately. we can't even let the other lawyer in, okay, prove it to us. and if you can't, okay. still better to have the judge looking at it. there are ways. so now, we look at it. and the second question is why not? if they show why, then the lawyer says, hey, why not do it this way? which is you get your obstacle, you can build the wall across jerusalem, says the chief justice. build the wall, okay. but build it so you don't shut out the arabs on the farms over here from getting their water supply. why not do it that way? and those two questions, why? why not? are they powerful questions. >> so i would say, remember what the justices just 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 is 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 access for the lawyer to a judge. there is something terribly important about the adversary process. >> remember that too. adversary. there are often very good arguments on the security side. >> very good. >> it isn't true, one side making all this stuff up. they come in and present things. >> one-sided courts are not courts. one-sided courts are not courts. adversary with a lawyer representing. good luck. >> and justice breyer, you mentioned search and seizure. and you also had said that you

have some trouble with a dog case this term. >> that was a tough case. especially if you like dogs. [laughter] >> why was it tough? >> oh, it was tough. it was a question of unreasonable search and seizure. i'll put the question to you. we divided 5-4 i think it was. but here, a policeman without a warrant who's standing in the street could look into your house, if you leave the window open, that's 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 don't want him but few people think of putting up that sign. so by and large, you can go up to the front door if you're a policeman, and like anybody else, and that's 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. most everyone likes dogs, what's wrong with that? dogs come up all the time. yeah, that's the problem. this dog is trained to sniff

marijuana inside the house. sorry. now, does he have to have a warrant or not? i mean people come up with dogs all the time. but not marijuana-sniffing dogs. how finely do you want to cut this? is this reasonable or not reasonable? and what are you going to do in an apartment house by the way, when the person who called you in was the next door neighbor? you see, you go through all kinds of possibilities. and i found it a very, very difficult case. i'll tell you, i ended up deciding for the dog. [laughter] >> justice marshall, you've often written about someone who appeared in the first case i think in the massachusetts supreme judicial courts. a man named quak walter. >> walker. >> walker. tell us why he is so significant >> the massachusetts constitution of 1780, first

constitution, oldest constitution in the world still being enforced. and unlike the federal constitution, it starts with the charter of rights. all men are born free and equal. it's changed. it now says all people. but it did say "all men." all men are born free and equal and have certain alienable rights, blah, blah, blah. massachusetts in 1780 had slavery. it's not always the south that's wrong, right, sometimes it's the north as well. and the five justices on the supreme judicial court had all been appointed by the governor i.e. by the king, they weren't revolutionaries in this case. come before the court with a brilliant lawyer, you need a good lawyer, so went on to become the united states attorney general, saying, excuse me here, justice, it says here all men are created equal. and the case involved the division of a slave and his, quote, owner bringing him back and beating him up, and it was a

complicated case. and the supreme judicial court in 1783 said that slavery was unconstitutional. and massachusetts had not had slavery since 1783. now, when i was in south africa, they were only two cases that i knew about in the united states. i didn't even know the courts, in the supreme court, it was the same case, same court. one was the quark walker case, a wonderful case. and the second case was brown versus board of education. so when governor wells nominated me to the supreme court, i just felt like such an incredible privilege and honor. but i think again, it's wonderful to teach about the case because judges, they were the same five justices who were there before hand. i mean they weren't revolutionaries and yet when you come before a judge, my experience has been all judges try very hard, very hard, to

look at the language, to see what it means and try their very best. and here where, were know that the chief justice was a slave owner. i mean, so this is pretty close. this is pretty close. >> it verifies, we like judges basically. [laughter] >> and my husband loves sleeping with a judge, i have to... [laughter] >> we'll move on to something else now. [laughter] justice marshall, ah, nelson mandela has been on everyone's mind around the globe, and you obviously knew him and knew him well. is there an episode or an anecdote that you could share with us that... that would

invoke him in your mind? >> i want to mention two, and i'll make them brief. the first after south africa had been through the constitutional process and president mandela, nelson mandela was then president, there was a case against the african national congress, his party, overwhelming majority party to the new constitutional, brand new constitutional court in south africa. and the courts ruled against the african national congress and president mandela and was a stunning political defeat for mandela. stunning. and he went out onto the steps of parliament the next day and he said in that wonderful voice of his, today is a victory for all south africans, because it shows that even if you are a powerful political party, the rule of law will prevail. and i just, you know, we know

that he's a man of great dignity and generosity, but for me to be a political leader and a very difficult constitutional situation, um, that is one fabulous moment. and then another slightly more personal one, a friend who was on an island with mandela told me this anecdote. he said he and president, he and nelson mandela, he wasn't president, shared the same birthday. and they, as prisoners on the island, they were allowed one present at christmas time. and many of the prisoners liked black magic chocolates, they were like godiva chocolates, mixed chocolates. and their birthday was in june, they shared a birthday. and every year, president mandela would ask his wife for a box of chocolates and then keep them in his cell until june. and then go to this colleague and give it to him as a birthday present. and every year, the next year,

the colleague asked his wife for a box of chocolates. and then somehow, somewhere round about february, he'd say, well, if i just took one and pushed it around... and by june, mandela would give him a box of chocolates and he had another box of chocolates to give him back. and i just think, if you want to talk about discipline and generosity, i love that anecdote about him. >> i had a foot note to this. because what she doesn't know, which is true, on the 10th anniversary of the south african constitutional court, it was a few years ago, i had the chance to go there. now, mr. mubaki was the president. and i talked to quite a few of the judges. they're nervous about it, they're nervous because they're making a lot of decisions he doesn't like. and they don't know what he's gonna do. they had a banquet that night. and into the banquet walks mr. mandela with mr. mubaki sitting

there. and you know, if any of you, i'm sure you have, been in a room where he comes in, the room just lights up. and he told that story. he told your first story. >> wonderful. >> he told the story with mr. mubaki sitting there. and you could just hear an audible sigh of relief from the judges and the lawyers after he told it. >> and i will say that president mubaki obeyed every order, sometimes dragging the feet a little, that's nothing new, and president zuma has obeyed every order. not too many new democracies think them. so when people say to me, what is happening in south africa? i know it's a lawyer, a judge's point of view, but it makes a difference. and i think mandela made a huge difference in that regard. i love that anecdote. i'm going to add that to mine. >> i'm going to open things up to the audience in just a minute. this term ends with lots of what

the media called blockbusters. one case that the media seemed to dismiss as insignificant because the court just threw it back was the affirmative action case. and i don't think that's how you view it as insignificant. what, explain to us what the court did in that judgment. >> well, of course, it would require more time and it's more difficult than you think, that there are two views of the constitutional. one view is the a 14th amendment which says equal protection of the laws means that the constitution is color blind. that means you cannot discriminate in favor or against on the basis of race. and there are a lot of good arguments for that. the other view, which is closer to my own way of thinking, is that the 14th amendment was put there to bring people inclusively into our society who had previously not been there. and they had been slaves and they were free. and so there was a big difference between a law that mentions color or race, where

it's trying to be inclusive, and bring people into the society on the basis of equality. than a law that is exclusive, which is called segregation. now, those two views in the law are at war. and of course, different judges hold different views in different degrees. and our court is closely divided on that kind of question. well, several years ago, first, justice powell in a case called backey, which was the university of california, wrote an opinion that was simply a concurring opinion, but people have taken it as the law of the united states since then. if i parody it, so don't take me as literally, but the, you can have affirmative action. it's positive, it's inclusive. but be careful. don't do it too much or go too far. be very careful. no quotas, et cetera.

but yes, you can individually, et cetera. now, his view was picked up in a case called gruder, where i was in the majority, sandra o'connor wrote the opinion, ruth ginsburg dissented, she thought it should go further. but the court held in gruder five or six years ago that yes, you can in university admissions, take justice powell's view. you can use affirmative action, but be careful, don't go too far. and in the opinion, there's a thing, we hope this will not be necessary and it may not be necessary in 25 years, et cetera. so it looks as if there's some sort, i'll leave all the lawyers to interpret what that means, but it said be very careful. now, the case comes up again, the same issue out of texas. and what will the court do? what will -- there was a lot of speculation about what they would do. and gruder, i did look up, and it hasn't led to a lot of litigation. people have lived with that

reasonably well. well, would there be a change? would they say no affirmative action? what would the court do? i can tell you what the court did do. what the court did do is 7 members of the court said gruder is the law. so what do i say? [laughter] i say that's right. that was my view. gruder is the law. and 7 members of the court said that and justice ginsburg taking the same position she took before. >> dissented alone. >> yeah. and she said, no, it should go further. and there we are. and so that's why i think it's an important case. and sometimes an important case is simply reaffirming another case, which reaffirms another case. >> and you said the other night, you don't like being in the minority, you don't like dissenting as much as you do. and maybe this was a case where you chose not to join justice

ginsburg's decision. are there times where you think it might actually be better, even though you feel passionately about an issue to join the majority, to be able to influence the decision and how it's written, as opposed to sticking on a firm principle. >> well, nobody likes to make an unprincipled decision. and the way i would think about it is the following. and this is a very big and rather deep question for any judge on any court. the constitution is not the constitution according to justice o'connor, according to me, according to justice rehnquist, or according to any other individual judge. and an interpretation is not an interpretation by an individual judge. we wear black robes to symbolize, in my view, i've always heard this, the anonimity of the law. it's a court. it's what the court says that matters. and the court is made up of individuals who are serious and who are hard working, and who have somewhat different views of what the law is.

and every member of a court knows that about his colleague. and, therefore, you try your best to produce an opinion that will reflect the views of the court. now, you can't go too far. you can't sign up to something that you think is deeply wrong. and then in many, many cases, a judge is put in the position of, can i agree to this? can i agree? other people think it's right. what changes have to be made? and it is in a sense a negotiation, but it's not a negotiation where tommy susman and i were working for senator kennedy. i promise you, it is not like the senate of the united states, it is not a political body, it doesn't work that way. but still, you have to face the question in a very special kind of environment, which is not a political environment, of how do you get that majority opinion and what is it going to say? and sometimes, and not necessarily with me, with other

judges, and they'll do it. they might spend two months writing one of the greatest dissents ever written, and they'll swallow it in order to get their way, enough to get them to join. that is a common experience. and if you're not prepared to do that, you shouldn't, well, you see. >> all right. ladies and gentlemen, let's please... we'll have microphones for you. if you could wait for the microphone. >> thank you. mr. justice, our political system has many problems, but one issue that many people agree that money is killed or hurting our political system. how did the supreme court justify that corporations and pacs could contribute as individuals can? >> you want to know how they justify? i'll tell you. but i don't want to persuade you. because i was in dissent in that

case, but i'll tell you how. the constitution says congress shall pass no law abridging the freedom of speech. now, money is not speech. but you try running a political campaign without money. i mean if you were to say no money in a political campaign, you would in fact have the incumbent forever law, all right? and so the first amendment does have something to say about this. now, no other than learn in hand, -- noah hand, probably the greatest judge that this nation has ever had, said don't get into the business as a judge of trying to say this person should speak less so that that person can speak more. because once you start down that road, you won't know, there's no stopping place, and yet that is what campaign laws do. they say this person speaks less with his money paid to support a

point of view that he believes in. so that those others who have less money will be able to have their voice heard more. okay. now, you see what they're saying? that's not such a bad argument. you say, why did i take the other side? to take the other side, i have to say, no, learned hand didn't know what the world was going to be like today. and we have to be able to draw the line somewhere. not us, but we have to be able to let congress draw the line somewhere. so that by spending $20 million, whether it's somebody from nevada or georgia, he cannot shut the door on the people who only have $5 to give. but that requires bringing judgment into the case to decide whether the legislature is actually trying to keep the playing field balance more easily or whether the legislature is trying to write the incumbent protection act.

so to be consistent with my point of view, i had to vote in the majority, in a case out of vermont, where they had passed a law saying nobody can contribute more than $100 to the gubernatorial election. i thought that went too far. you can't even have a coffee and doughnut for the man trying to challenge the incumbent. but now, you see? the judge, you see the kinds of decisions that i'm asking judges to make, in order to further the point of view that you implicitly or perhaps explicitly stated in your question. not so easy a question, is it? >> justice marshall, let me ask you about money in state courts. and its effect. the citizens united effect at the next level. you were an appointed judge, but in many states, judges are elected. how pernicious if at all is the effect of money in state court? >> i have to go back one step,

and it's still the first amendment, and it's like justice breyer, they have differing views. there was a case brought by an elected judge in the state who said under the first amendment, i should be able to say whatever i want to say. if you elect me, margaret marshall, i promise, i will never vote in favor of the death penalty, or i promise, if you vote in favor of me, i will never uphold an abortion law. now, the way states dealt with that was by codes of judicial conduct. when we said, if you're running for election as a judge, what the code said is you can't say these kinds of things, you can't take money from those kinds of people, and the united states supreme court, in a decision that's now a decade old, essentially said, the first amendment says congress, now applicable to the state, shall make no law. and i think that had a more devastating consequence.

because now in state court, and remember, 48 million cases, and if i were to say one thing this evening, you know, the united states has a great system of justice. but it can be in jeopardy. and i think in what is happening in state courts now, with elected judges, with the supreme court decision opening, closing down judicial codes of conduct, and now the infusion of money, i think really puts us in a very difficult position. >> i have to just let me agree with that. i mean absolutely. and you see, i've dissented in that case in the supreme court. i have to be consistent. i have to take that point of view, that the states do have the power to regulate what these judges will say when they're running for judicial election through codes of conduct. but now, same problem. the problem is that then we have

to make these distinctions. so i say, okay, that's what we're there for. it's a huge problem, just as campaign finance is a huge problem. and i think we have to make those decisions. but there are two points of view. >> another question. it's hard for us to see. yes. there's a hand over here. if we could get a microphone somehow ferried over there. >> thank you. i'm curious and i'm trying to think how to ask my question really, really clearly. i'd love to get your perspective on the role of state law versus federal constitutional rights with respect to the individual rights of immigrants. >> i think... >> well, it depends on what you're saying. well, it depends on the rights and so forth. look, the 14th amendment says no person shall be deprived of life, liberty, or property. it doesn't say no citizen shall

be deprived without due process of law. and the fact that it says "person" is important, because that in various cases and in various particular rights, it depends on the rights, it depends on the circumstances, et cetera, it said that they protect people who are not citizens. and that means immigrants too. now, it doesn't say that you can't make distinctions, there are loads of distinctions. but there are some protections because it says "person." and my guess is the state constitution just hasn't had the cases. >> well, it would be the state statutes. so, for example, states can decide to give immigrants, noncitizens certain rights, and not to others. and so we get lots of those kinds of cases. and, but, it's an area that is heavily federally regulated. >> there's the immigration clause in the constitution, et cetera. >> over here.

>> hi. first of all, thank you both for your tremendous service to our country. [applause] we all have great lives because of what you do. it wasn't that long ago, justice breyer, that elliot would refer to you as the man who writes the supreme court's dissents, and things have changed. >> yeah. i was in the majority a lot this year. >> that's great. >> which i preferred. >> so i was wondering if you could talk a little bit about what it's like being on each side and how the relationship between the justices is and... >> well, the personal relationship is fine. i mean we all know that we're not going to agree about everything. and as i've said, and it's still true, i've never heard a voice raised in anger in that conference room, it's somebody else, people don't insult each other.

they don't say mean things. i just haven't heard that. it's professional, you state your point of view, and it's professional, it's collegial. we're not necessarily drinking buddies, but we might play bridge together. and we have our, and so we get on pretty well. and between the dissent and the majority, i'd rather be in the majority. who said that, between winning and losing, winning is better. but the dissent performs an important function. and the first, and you'll never know, you will never see it, the first thing the dissent does it improves the majority. sometimes it switches, occasionally it switches the whole court. but sometimes, more than sometimes, no one who writes a majority opinion or no person in this room, none of us, like to look like idiots. and if somebody in the dissent makes a good point there, you read that dissent and say, i'm going to change my opinion. and they do change. and you never see the best points the dissents make.

because they've been written out of the majority so that there's no need to make that dissent's point anymore. so i think it's a pretty good system. now, what you're seeing, of course, is a failed dissent. you're seeing those that did not change people's minds enough. and still, they'll serve a purpose. you know, in a way, it's easier to write a dissent because you can say what you think, and you know, it's fine, and nobody's gonna say it doesn't make that much difference to the law. you hope it would, but nonetheless, et cetera, and maybe people will learn from it in the future, the issue will come back, it will affect something else. anyway you've written it. but you see, it's a very helpful, i think it's a very, very helpful process of having those dissents, the concurrences, and having time, having time to think about what you're going to say, and revising it, and revising it again and again and again. and that's true in every court.

i mean you have seven, nine is harder to work with than seven. >> much harder. i was going to say this. and you know, there's wonderful justice that takes place right across the united states but one of the problems that goes back to the elected judges is the constraints taken off. if justice breyer is on the supreme court of the state, and i run against him to defeat him, and say not just to criticize the decision, but to say he's a skunk and a liar, and he's in the pay of big business or labor. it makes relationships harder when you're on the court. and i am seeing, in cases right around this country, a fracturing of the collegiality of the state supreme court. it doesn't have to do with elected judges. we've had elected judges since

the middle of the 19th century and they've worked well. but when you begin to change the rules and there are more states, and watch them in your states, and watch them elsewhere, where there are fights that are very public between and among justices sitting on the court. very painful, nasty, individual, horrible, non-collegial fights. and you just don't have that where you have a system like the united states supreme court, or fortunately in massachusetts, or other states. so be careful, be careful. and remember, it's in your hands. not in the justices' hands, it's in your hands. and you have to say, no, we don't want that. >> justice breyer, let me ask one last question. i think i'm right in thinking about after another year, you will have served on the court for two decades, for 20 years. and i wonder have your views about the court and its role changed in any significant ways

over those 20 years? >> the first three or four or five, i mean you're sitting there frightened to death in a sense. maybe you don't reveal it. and my goodness, there's nobody to correct you. and will i do this all right? and what chief justice rehnquist used to say is after five or six years, you stop wondering, how did you ever get there, lightning did strike, and maybe you'll do all right, who knows, et cetera, and you're doing your best, period. and then you do. you try, david souter said that. he said you're on duty all the time. and that's true. and that's a problem. so over time, it is a different court. justice white said that. he said with each new appointment, it is a different court. and it's different, it's different people, they bring different skills and different attitudes to the table. and i think in some respects, we have more discussion of some things, and in some respects, i

bet there are more 5-4 decisions now than there were. and over time, you get to know the area of the law, you get to formulate views. sandra o'connor used to say, your first three, four, five, six years, it's like putting foot prints in the sand, you see, in a particular area. because you don't want to suddenly go in the opposite direction. and why not? well, you know, there would be no control if you're not consistent. you try to think out an area, and you try to then follow where you started, and you're learning and you're developing, but you have sort of guidelines that you're going to be not too different from the way you were at the beginning. and so it's somewhat more, probably more 5-4s now. people get on well. there are different personalities. but it's interesting. i mean they're interesting people. and they're working hard and

they're trying to do their job, and i'm not going to go beyond that. >> i will go beyond that in one respect. you mentioned that there are more 5-4 decisions. you've written a lot about the danger of citizens and the importance of people accepting a court and its judgments. when there are so many 5-4 decisions, and now, when so many times those 5-4 decisions happen to be five people who were republicans, and four who were democrats... >> not as often as you think. you could count the number of times, you read in the new york times or the washington post, in an unusual grouping of 5-4. well, the unusual threatens to become the usual. i mean this is, it's not always the same 5 and the same 4. >> no, it's not. >> but on some issues it is. >> and... >> and then, i'll give you, my own view of that is it's not so surprising as you think.

because, ah, people, for example, justice scalia and i often do not agree. all right? why not? i don't think it's because he worked for republican administrations and i worked for a democratic senator. i really don't think it's that. i think it's that he takes an attitude towards law, which is law should be at the supreme court level, made up of rules that people can understand. and so try to get the clear rule. and he's uncomfortable when you can't come up with a clear rule. all right? a lot of what he writes is affected by that. and there is a point to what he said. i'm much more comfortable with a mess in a sense. i think life is complicated, filled with differences, don't go too far too fast. you'll find situations you never thought of. and be careful of saying something in black letter that's going to live for too long because there's too much that comes along by surprise and hits you in the face.

so it doesn't bother me so much not to have an absolutely clear rule. and i think you can teach by example. that's a common law method. and a lot of our differences will actually be about that. not all but a lot will. and if you get into an area like affirmative action, it's hardly surprising that once people start down a particular road, and they think this is the right track, they continue down that road. and as far as acceptance is concerned, i said this the other day, but i'll repeat it. the advice i got from my father, he gave me two pieces of advice. one was stay on the payroll, which i've managed to do. [laughter] and the second, which i think is true, do your job. and if it's 5-4, it's 5-4. and i think ultimately, people will, you hope, you have to hope, but ultimately, those who know will go into it, and they see that people are serious and trying to do their job, the court will earn respect for that, even if it's 5-4. >> ladies and gentlemen, thank you. two great justices.

[applause]

we'll be joined for the producers of the documentary ofking at the decline manufacturing workforce as well as stories of businesses that succeed in electing community. we are live every day starting at 7 a.m. eastern. >> we have several life events

to tell you about tomorrow. the carnegie endowment for peace will discuss a conversation. that'll will be at home :00 eastern. senate p.m. thomas the foreign relations will consider authorization of military force in syria. it would hear from secretary of state john kerry and defense secretary chuck hagel. network,ur companion the brooking institution discussion about how a free- trade agreement between the u.s. and the european union could affect turkey. >> the science and do not tell us what to do. think isus what we going to happen and then we have to make choices about that. because one of the implications of the line of argument is the earth is always changing and we as societies can change and

adapt in many ways and of course we do not know that is the case with the climate. it is something we can adapt to. but if you take that idea that society can adapt, it leaves us with the question of, even if we can adapt this is the kind the world we want to live in? about areings we care being endangered by the changes that are happening and we do have a choice about this. >> can human ingenuity saves the 9:00. sunday night at hard book tv this weekend. markook club is back with book.itch read the book and see what other viewers are saying on our facebook page and on twitter. >> a special season two preview

of first ladies, it was a image. politicss look at the and styles of first ladies from edith roosevelt to michelle obama and how the world -- role of first lady continues to evolve. this about one hour. ♪ >> you have to be honest, exactly how you feel and i feel very strongly that the best thing in the world is when the supreme court voted to legalize abortion and bring out of the back and put it in the hospitals where it belongs. [indiscernible] >> somewhere there may be someone who follows in my footsteps.