captioning sponsored by comedy central captioned by media access group at wgbh access.wgbh.org >> stephen: tonight, who is influencing the supreme court? fashionwise, i say drew ids. james mcpherson has a new book about confederate president jefferson davis or as i call him the lincoln of slavery. investigators found i.s.i.s. used ammunition from 21 different countries including china. oh, no! some of those pull et cetera might contain lead! this is "the colbert report"! (cheers and applause)

captioning sponsored by comedy central (eagle caw) (cheers and applause) >> stephen: welcome to "the report." (audience chanting "stephen") (cheers and applause) >> stephen: well come to "the report"! good to have you with us! thank you so much for being here! nation, today is the first monday in october, the start of the supreme court's new session, and i am pumped to the gavels.

it's like the start of football season, only, unlike the n.f.l., the players go to court. (laughter) and right here on day one, the court's already decided on a huge non-decision. >> the supreme court has said it will not hear any of the seven same-sex marriage cases that were filed over the summer. >> now the lower court rulings stand. >> in most of these jurisdictions now, same-sex marriage will be de facto legal. >> now we are in a situation where 30 states have same-sex marriage. approximately 60% of the american people live in a state with same-sex marriage. >> the momentum when you have that many people living in a world where same-sex marriage is legal makes it inevitable, it seems, that the rest of the country will follow. >> stephen: inevitable that the rest of the country will follow. well, i guess that's it. (laughter)

i'd just like to thank my wife lorraine for 25 good years. (laughter) >> stephen: what can i say? we gave it a good shot, honey. and i was just about to get a photo of you. and i'd like to well come my new government-mandated life partner roger cornsworth. (laughter) rog and i are registered at restoration hardware. we're doing our entire living room in hammered stainless steel. (laughter) but for now, folks, let's talk about the cases that the court has graciously agreed to hear. specifically, how they will be arriving at their decisions. i read all about it in the virginia law review. i'm a long-time subscriber. i use it to hide my hustlers. the article was by william and mary school of law professor allison orr larsen. in it, allison, or larsen, i'm

not sure which one it was, blows the lid off the supreme court's reliance on something called amicus curiae or friend-of-the-court briefs, informational documents written by third parties who are not involved in the situation, whose opinion was not sought, but still want some say in the decision. it's the legal equivalent of grandparents. (laughter) and you don't have to be some established expert to influence the court. for instance, in a 2013 decision, justice stephen g. breyer cited an amicus brief to establish that american libraries hold 200 million books that were published abroad... the figure came from a blog post. the blog has been discontinued. (laughter) so what if it's discontinued? i get all my legal research from cached geocities pages. from the 1990s! (laughter) that's how i know --

(cheers and applause) it's how i know it is my constitutional right to get jiggy wid gillian anderson. (laughter) and in carhart v. gonzales, justice kennedy wrote that women who get abortions can suffer severe depression and loss of esteem. quoting an amicus brief citing the work of dr. david reardon, who is an electrical engineer who holds a ph.d. in bioethics from an unaccredited and now non-existent school in hawaii. (laughter) (audience reacts) well, i say its lack of existence is irrelevant, and i have a doctorate in existential philosophy from the university of narnia online. (laughter) (cheering) and these are not isolated incidents, according to larsen. the number of amicus curiae briefs filed at the supreme court is at an all-time high. and from 2008 to 2013, the

court's opinions cited factual assertions from amicus briefs 124 times. well, as a wise man once said, there's nothing wrong with quoting someone who doesn't know what they're talking about. (laughter) you know who said that? i did. (laughter) (cheering) but i say why limit the court to amicus briefs when there are so many sources for unverified facts? what about snapple caps? (laughter) your honor, alabama seeks a precedent in its ability to redraw congressional voting districts because... emus can't walk backwards. (laughter) clearly, amicus briefs are the greatest thing to happen to jurisprudence since the case of sliced v. bread.

here to tell me why they're not is professor allison orr larsen. (applause) what is the problem with the am amicus briefs being filed with the court? >> the trouble is today anybody can be a factual expert or claim to be. >> stephen: exactly right, because if it feels like a fact, it is a fact. (laughter) >> but if all those assertions are made to the court in dozens and dozens of briefs, it's hard to tell which are reliable and which are not. >> stephen: but all you have to do is merely treed amicus briefs that agree with you and then you don't have to change your opinion. >> i think that's part of the problem because usually, in the law, we have two sides fighting it out and the judge picks which

is the most reliable of the experts but that's not the case when they're coming in at the eleventh hour and untested and they're supporting a pre-existing point of view. >> stephen: coming in at the eleventh hour, is that like bidding in the last five seconds on ebay? >> a little like that, except bigger implications. >> stephen: really? have you ever bid on a troll doll? it gets pretty vicious. (applause) cheerin(cheering) what are these amicus briefs supposed to be? if they're not what they're supposed to be, what was the golden standard. >> they were called friend-of-the-court briefs a long time ago, when a lawyer in the court would help the court out with a question of law that he wanted to know. >> stephen: they would be battling an issue and look around and say, is this a lawyer here? >> yes. >> stephen: really? is there a lawyer in the house? >> it hasn't been that way in a long time. >> stephen: that's how it

started out? >> it started out that way. it hasn't been that way in a long time. now they're filed by motivated groups, people with a dog in the fight. >> stephen: why wouldn't you want a motivated person in what's the down side? >> the down side is if you aren't testing that, like when you want an expert witness at trial, you don't let anybody come to the courthouse steps to testify. >> stephen: anybody who agrees with me. >> it doesn't work like that. there's saim in place for deciding who can be the real expert at that point in time. >> stephen: so who are these powerful people who are submitting these? are these lobbyists? >> no, there is organizations created to lobby and also to file amicus briefs, too, in support of their organization. >> stephen: i'll give you an example you've got here. the american college of pediatrics and the american academy of pediatrics take opposite positions on adoption of children by gay couples. >> right. >> stephen: which one of them is reliable?

>> well, it's hard to tell, right? >> stephen: which one is against adoption of children by gay couples? >> that would be the american college of pediatrics. >> stephen: sounds like good folks. (laughter) so both these organizations could submit a friend-of-the-court brief and the justices have to keep in mind which one has already made up their decision is essentially a lobbying organization? >> you're looking to support facts of something you already believe anyway. it's a convenience and you pick the brief that fits your preexisting view. >> stephen: which justices do this? >> they all cite amicus briefs. some complain when their colleagues do it. >> stephen: do they still do it themselves, though? >> yes. >> stephen: who is that? does scalia do it? does scalia complain about it? flap flap.

>> he does complain about it. >> stephen: does he do it, anyway? >> he has done it. >> stephen: ah! thank you so much. (applause) professor allison orr larsen! we'll be right back! hmm. trade in your old iphone and get a new iphone free at verizon. did you say something, paul? huh? no. can i route our trip? i love our trips. oh, me too. but no i'm good i know where i'm headed. how about music? nah i don't really feel like- ♪ just the two of us ♪ we can make it if we-- what a fun drive. we always have so much fun. remember that one time we- okay. sure you loved your old iphone. but you'll love your free new iphone you trade it for even more. ♪ rock and roll music

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contain any chance of further infection. you can sleep soundly. there will be no ebola outbreak in the united states... is what they want you to believe! jim? >> are americans being told the truth about the threat of this very dangerous disease? >> i heard the c.d.c. chief say it's not going to happen. i heard the hospital say, don't worry. we have this under control. i'm not sure we can trust anyone. >> an emergency room physician says the c.d.c. is lying. >> they have been downplaying this from the very beginning. i don't think americans are going to just sit back and go, it's cool, the government has it taken care of, because i don't believe the government has got it taken care of. th>> the c.d.c., the centers for denial and confusion are downplaying the dangers to americans almost to the point of lying to them. >> stephen: the c.d.c., the coalition for deception and coercion is lying! they want you to believe that they've got this under control. but look at their track record. back in the '90s, they let

that infected monkey from "outbreak" escape, then he shared an ice cream cone with ross from "friends," and now gwyneth paltrow is dead. (applause) so i don't trust the c.d.c. or coven of deviants and charlatans i listen to tv pundits because we treat everything like it's the end of the world. >> white house spokesman josh earnest says screening procedures are in place at our border and people are screened as soon as they get here. really? you're kidding, right? what is that? you're saying that because you don't want people to panic? you don't want us to panic? how about i don't want us to die? >> stephen: yeah! yeah! obama wants can you to line up

for a calm and orderly death. what's that? what's that you're saying? this is my deaf ear? and nobody's talking? then why am i hearing voices? is that because of ebola? what's that? it's an unrelated mental disorder? all right then, as long as i don't catch whatever paralyzed her eyebrows. (cheers and applause) point is, the federal government is incompetent. we simply can't trust them to contain ebola. it should be left up to states. and my home state of south carolina already has a potential plan to eradicate the virus. as former executive director of the south carolina g.o.p. and current middle school debate club treasurer, tom kincannon tweeted... the protocol for a positive ebola test should be mediate, humane execution and

sanitization of the whole area. that will save lives. finally, a way to save lives. humanely execute the victim. of course, the shotgun blast to his chest could spread some bodily fluids. so, to be safe, someone will have to compassionately murder whoever executed the patient. and that person, of course, will have to be sensitively bludgeoned to death by a fourth person, and so on until the chain of humane homicide makes it back to whoever's wonderful idea this was. (cheers and applause) we'll be right back. (door bell rings) trick or treat!

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(cheers and applause)

>> stephen: welcome back, everybody! my guest tonight has a new book about confederate president jefferson davis. i will claim the interview is about something other than slavery. please well come james mcpherson! (cheers and applause) thank you so much! thanks for being here! you are a professor at princeton university. well, la tee da! you're pretty smart. you're considered an expert on the civil war and author of many books including pulitzer prize battle cry freedom and your latest "embattled rebel: jefferson davis as commander-in-chief." are you from the south? >> no. >> stephen: where are you from? >> north dakota. >> stephen: you got no dog in this fight! what interests you in the south,

being from north dakota? >> i grew up in minnesota after born in north dakota. >> stephen: okay. the south was a mysterious, strange land to me and i decided to learn more about it. >> stephen: i bet the south felt pretty good about mid february. >> being from minnesota, that's quite true, yes. >> stephen: well, i'm from charleston, south carolina, where we like to say all roads lead north from here, and there are people in my home state who still get teary when you start to talk about robert e. lee, but nobody gives a damn about jefferson davis. (laughter) he was the president of the confederacy. i'm not saying anything about your book, it's a great subject, but why don't we love davis? >> well, davis was at the top of the chain. somebody has to be blamed for defeat, and the buck stopped at the president's desk. >> stephen: he said that, originally, didn't he? the buck stops here. >> harry truman said that. >> stephen: he was the harry

truman of the confederacy. >> that's correct. (laughter) >> stephen: question about davis, great confederate or the greatest confederate president? >> he was the only. >> stephen: i'll put you down for greatest, because they don't have greater-greatest here. growing up in south carolina, i know the civil war wasn't primarily about slavery. >> mm-hmm. >> stephen: why did davis feel they had to secede? >> because the civil war was about slavery. >> stephen: economic issues, states' rights but not slavery. >> mm-hmm (laughter) davis said lincoln's election represented a threat to $3 billion worth of property. some of that property was actually jefferson davis' himself. he owned 113 slaves, and if slavery disappeared, he would have had to go on unemployment. >> stephen: did they have that? the confederate states? >> well, a lot of people who

owned slaves were not employed because the slaves did all the work. >> stephen: how was the commander-in-chief? did he have a good relationship with lee? >> a very good relationship with lea, it was a created partnership. >> stephen: that's like that you were in a dance troupe. >> well, in a way they did. >> stephen: in way, they were in a dance troupe. i want to be clear on what you just said, okay? (laughter) (applause) who's leading in this dance? (laughter) >> davis is leading. lee is actually manipulating him to lead in a certain way. >> stephen: why did the south lose the civil war? >> i think the better way to ask that question is why did the north win the civil war. >> stephen: let me ask it again. why did the south lose the civil war? (applause) my show, my question. (laughter) why did the north win? >> the north won because it developed a better leadership by the latter two years of the war

that could make use of the north's superior resources. the north had more people, a stronger economy, more guns, more butter, but at first they didn't employ this advantage very successfully, but by the last year or two of the war, lincoln had put together a winning team of grant and sherman and sheridan and thomas and lincoln's own political leadership, and that eventually carried through to a victory. >> stephen: can i point out something? can we have a close shot of this? there's the cover. there's jefferson davis right there. i want to point out something to you. if i do this and this, if i do this, okay -- (laughter) -- if i do this, okay, and this -- (laughter) -- and this, and like that, like that, okay -- (laughter) (cheers and applause)

is there any chance -- is there any chance that jefferson davis and lincoln were the same man? did anyone ever see them in the same room together? >> no one ever did. >> stephen: no one ever saw them? so they could have been the same person and just said mary todd was crazy to protect lincoln's secret identity and that's why lincoln had to be assassinated because only one of them could survive the war. >> that's right. >> stephen: that's your next book. >> that's my next book. >> stephen: thank you so much! (applause) >> stephen: james mcpherson, "embattled rebel". we'll be right back. introducing nexium 24hr

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report," everybody! good captioning sponsored by comedy central captioned by media access group at wgbh access.wgbh.org >> it's 112:59:59 seconds. this happened on youtube today. unfit parents are posting of their children looking for sweet vie rat success. latest was 17-year-old cody lanphere, who was expecting a special guest at his surgery. >> who are you looking for? (mumbling) >> god stkapl