Thates a thats a kind of funny sentence. For Justice Breyer, you may hear hat all the time, but not if you are sitting on the massachusetts court. I think the reaction did take me 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] i mean, 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 onetoone 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 1990s, i was asked to come and speak to a meeting of the samesex 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 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. Justice breyer, i do not know 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 doma 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 that. The truth of the matter is i do not know. That is the truth. And 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. No, 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 vs. Irginia. 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 brown. 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 the case, loving vs. Virginia, and they said it was unconstitutional. There is discretion in taking the case. Was frankfurter right . That is something that is much 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. Endlessly. We have lived through that. The most important thing was to get this thing of desegregation accepted. Was all that there was gay marriage . The most important thing was to started. Esegregation was all that there was gay marriage . No, it is not there. When people say they are gay 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 me, suppose we really had a 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 dont know, do i . I know, i did live through what we did live through, and of course we are going to take it, and of course all the lower courts who had decided this said t was unconstitutional, and if you sat there as i did and read the briefs, i think and how can i prove it. I cant. I think most people would come to the conclusion, when you see the harm the law is causing, and you look on the other side, and im putting it not in constitutional terms, but i can see this directly into the constitutional problem of equal protection. I wont get too complicated, to say whats your justification for this . A little skimpy, said the ajority. A little skimpy. A little skimpy on the reeds for classing these one thousand statutes in this way. All right, 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. Let 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, 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 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. Better than anyone else. 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 democracy was enforced by a court was unusual. It was not followed by most of the world from 1780 until 1948 in germany. People often look to the United States. What has happened around the world, increasingly in the postsecond world war era, more and more countries turned to what i call the american system, a written charter of rights. Why . Because we did 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 canada, two englishspeaking Constitutional Courts, they look at our opinions and they also look at canadian opinions and things from other of special ourts. From other Constitutional Courts. It is not really helpful when you are in america to look at other parliamentary courts. It is not helpful when you are a 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 court, i always enjoyed looking at other courts that are functioning and are doing what ur system is doing who are not functioning, and looking at what our system was doing. It was not helpful before 1987 in canada to see what the parliamentary system was doing. It was helpful to me to look at judgments, but i follow them, of course they were helpful, yes, they were helpful, and i think it always will be. Anywhere in this room is as capable of answering one question as i am, which is the headline is, Supreme Court strikes down the antigay marriage law as unconstitutional, and people react to that all over the world. If youre asking a question of how the lawyers will react, the awyers will read our decision. Now, our decision is not talking about what how the lawyers read the decision. Her 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 law in this area of 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 them, is that consistent with the constitution of the United States . And they will read the opinion and they will see theres 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 10thgraders 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 state. And you go through tort law or criminal law or business law, and you will see primarily state, primarily state. Environmental, education, you name it. So what she is doing is which is what i tell the students, and it is why if you want to make a difference in your community, dont read the headlines in the new york times. Go find out whats actually happening in the law, and go back to your communities, and ork there. 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 StatesSupreme Court, other than bankruptcy, in 2010 there were 1. 2 million cases filed. In state courts, trial courts, intermediate, judicial courts, excluding traffic offenses, guess 48 million cases. O he gets to pick [laughter] she is including traffic tickets. No, no, no. 48 million cases. In a funny kind of way, im afraid that Justice Breyer is using a different object, which is cases bubble up. Theres 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 north dakota hmm not a lot in common. Great chief justice. I love the 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 samegender couples. He had governor wells who wanted to have a huge Teaching Program in middle schools about massachusetts was just different. And so gay marriage in a sense sat comfortably in massachusetts, and i do not know how it would sit in north dakota. Lets 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 deal 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 or war on terror as they do any time. You say that democracy must fight sometimes one hand behind is 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. On my court we did not have as many decisions of issues like 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 ecurity. 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 country, a really great country, 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 elect cases. Transparency is important, and knowing what our government does is terribly important. There are hard questions. Bviously, 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 react 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 look, 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. It used to be thought i found out somebody told me cicero said and i cannot remember it in latin so ill get it all wrong. Speaking in latin] like my translation i said when the canons roar, the world falls silent. I said that once to an audience, idiot, the , you romans did not have canons. [laughter] we have changed from that. Her attitude is right 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 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 shes making. When you see an ordinary protection being diluted because of wartime, guantanamo, or world war ii and the germans in prison camps and so forth or the ones who ended in the the first question, why . These are questions 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. If the government says it is a secret, there are ways around that. You can show that to the judges privately. We cant even let the other lawyer in. Ok. Prove it to us. Still better to have the judges looking at it their way. If you cannot, ok, still better to have the judge looking at it. There are ways. They 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 jerusalem, says barak, the chief 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 justices have 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. Theres something terribly important about the adversary process. Remember that, too. They come in and they present danger. Onesided courts are not ourts. Onesided 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 like dogs. Why was a tough . It was a question of unreasonable search and seizure. We divided 54. A policeman without a warrant 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. Few 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 warrant or not . People come up with dogs all the time. But not marijuanasniffing dogs. Well, how finely do you want to cut this . Is it unreasonable or is it not unread reasonable a. What are you going to do an apartment complex 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 is a very, very difficult case. I tell you what, i ended up deciding for the dog. [laughter] justice mars