the press, well known nationally before they came on the court. now what difference it makes when they debate? do you want people on the court or not to have political background? other thing that strikes me about the difference between then and now is in the face of the court, the democratic -- democratic base of the corps. and obviously is we have women on the court, didn't have them in 1969. we have a black by then, thurgood marshall and surely will have assuming the senate and pierre blais the first hispanic on the court. there have been other changes and it is interesting to recall in 1969 there is exactly one roman catholic on the courts, one jewish justice and all the rest are protestants. mostly presbyterian episcopalian and now by contrast to the majority of justices are roman catholic, to jewish justices and

one justice souter leaves there'll be exactly one protestant. again i am not suggesting that chicken tracing a kind of cause and a price between the the justices religions and how they vote on cases, but it is an interesting way of commenting on how the courts reflect the changing demography of the country itself. fourthly, the confirmation process. packin the 50 is or so years ago and especially back in new deal days before then, confirmations were fairly and exciting. it was not until 1953 that justices in nominees regularly were before the senate judiciary committee. harlem was from that point on words and now we know especially since the board hearings in 1987 it is strong, it is a passionate political contest of guerrilla theater between contending forces and that has politicized the process of nomination

confirmation. fifthly, i think today we know a great deal more about what goes on in an the court that we did in 1969. i remember in my cooking days in the '60s that justices rarely talk to the press, they did not go on camera and make a lot of speeches. well, today there is increasing transparency, we have books like the brethren or close chambers or in the nine. i think they do march rally and a more appearances in general so the court is more i think available in the eye to the general public. sixth, changes in the court's internal process. i mean, something that one is not necessarily aware of that was touched on again in the conversation this morning that i think the courts are very different place in terms of how does business. the notion that justices will share memoranda written by common pool did not exist until the early 1970's and now i think seven add of the nine justices take part in aunt.

there was the immersion cents in the '60s of what justice powell once: nine little law firms, little bureaucracies as they were, more law clerks and more work done within each chamber. i think also there is quite a difference in how the conference is conducted by the chief justice, the style of chief justice warren, chief justice burger and rehnquist. i think they differed a lot from each other. and finally i think the growth of multiple opinions, chief justice commented a moment ago about a minute -- and difficulty of lawyers getting guidance from courts or you have splintering of opinions. i think the multiple opinions are more common now than there were 40 years ago. number seven, a phenomenon that i can't explain in some people, the great shrinking dockets. the supreme court, there was a time when they would decide after an argument something like

100 and two cases, this term to read and 80 cases will have been decided in that fashion. why that is so is certainly not something that anybody can be sure about. and those i think you're just a few of the differences. i want to suggest is a completely different tribunal, organic supreme court tradition is very important, but the court operates and things and does its work and wages would not be recognized by the warren court. finally to set it up for my panel, and we're blessed with some of the best and i think most reticulate commentators and the country as you will find out shortly, and i thought i would just put on that in the table several questions of a thematic kind. i am not saying that the panelists have to address these questions, but they may rise in the conversation among us during the next part of the program. and and think they are just ways

of thinking about the term we have just finished and to see whether this term helps us understand any better where we think the court is going. first question is is it now possible to talk about a conservative court whenever that means. that is a loaded term and is sort of a lay term but is there evidence that some my people would understand that the court is a more conservative tribunal that it would have been in two years back. secondly and this is interesting in light of having the chief justice year earlier this morning, in what sense is that the roberts court? what is the evidence for the influence of the chief justice either on shaping the court's agenda and for selection of cases or in -- reshaping the opinions themselves with the decisions actually say. the question he raised earlier about their opinions horses brought opinions.

thirdly, one here is sort of popular press commentary distinguishing two justices on the court, justice scalia and thomas, on the one hand, and roberts and justice alito on the other. are those parings and, as fair comparisons? is there and grab some jurisprudential difference in the way each of those pairs of justice is operates? fourthly, what about justice kennedy? justice o'connor used to be in some encases the with our critical loads, justice kennedy is not implying that rollout. what should we say about place of justice kennedy on the court? fifthly, is the accord today more receptive or shouldn't say less receptive to non-traditional legal sources. in the warren court was a famous line in brown vs. board of education for having a social science data in its with nouns. is the present court less receptive to data have that kind

and in this respect one might think of the arguments over the use of comparative or international law did it which as you know has been somewhat controversial and what about methodological the beit? to the justices enter into debates over things like textualism, regionalism, and questions of that kind? seventh, what true and if any would you care to remark on from the beginning to the present time of the roberts court? it has ali been for years but are beginning to be able to pay any kind of picture for this particular court? i mentioned the declining dockets. does anyone care to speculate on five syracuses decided on the merits of. number nine, when i call avoidance techniques. there are ways the justices have that course in general have the simply deflecting a case before it reads the marriage.

and not hearing it all when having decided to hear that having him go off on grounds like standing or rightness or movement. in the servicing of land public doesn't i think have much concern about the lawyers and judges in our import, indeed, appear come are those devices being used in any recognizable way by the roberts court? tent, what about the interplay -- this question goes back to the warren court -- the interplay between the court and the democratic religious and ever political process? is there evidence that the justices on the prison guards are more inclined to want to respect decisions being made in some other venue than the court itself? and i would add in addition to that, what difference of any do fine in the courts cases to administrative agencies? today assumes some expertise or competence which the court are not over tune -- overturned. 11, a statutory interpretation

-- how does the court reached statues? do they read them generously to sort of expand upon of a thing to be the core principles of the statute or are they likely to give statutes a more narrow or technical reading? and in that respect finally, and this again is to borrow a description, is impossible again to talk about the roberts court as being pro-business? is impossible to say that it's not very friendly to environmentalists? what would one say about questions like that? well, to say no one is obliged on the panel to speak two any or all of those questions, but they are the kind of teams that might emerge in the various panelist remarks. now, we are going to sort of some of the many years of the court's work this term. i hope you'll understand we feel the obligation to talk about everything the court did and we simply can't do that. we have picked a few areas we think interesting that we hope to apply to hear about in the

one we want to start with is the one the court hasn't fully answered yet and that is a civil rights and voting rights and we were all waiting for the new haven farm rhetors case which will come down on monday. but that is not going to deter us, we're going to plunge right in with so rights and voting rights act and out like to turn to linda greenhouse to lead us on that. >> right thanks, dick. before i start my case discussion i found i would pick up on your invitation with some of those questions and give some statistics about the term so far. and i think it is the most telling statistic is how many dissenting have eight justice cast because that gave him kind of get a sense of where the center of gravity is on record so i have reduced out for the 72 decisions that have come down so

far. so far on the conservative side of the court to and forgive my over simplistic labels of the conservative and liberal because you rightly pointed out that there are no liberals on the court to whom i have served comparably -- comfortably on the warren court so i will call the conservative liberal so among the four conservatives the number of dissenting votes chief justice roberts 12, justice thomas 13, sp 1313, justice scalia 14, on a liberal and, justice breyer 18, justice ginsbug it 22 or 23 counting on how you count her vote on a strip search case on the constitutional violation by she dissented from the finding a qualified immunity so 22 or 23, justice souter 24, justice

stevens, the ads of it justice ginsbug 26 or 27, so to sum goes up on the conservative side they have collectively dissented 52 times. on of the liberal side of the court and i have collectively dissented 90 or 92 times. justice kennedy has cast for dissenting votes in the entire term. so kennedy's role as the so-called and median justice is really extraordinary and i covered that the accord as a dick indicated for 30 years and then i have never quite seen anything like this. is a polarized warrant of the 72 decisions that have come down so far. twenty-one have been by a vote of 524. of those 2116 have been by the usual four vs. the usual for as i outlined earlier with justice kennedy casting the deciding, and of those 16 and which

justice kennedy cast the deciding vote he when the conservative side 11 times in the liberal side five times so that is my statistical overview and i think we can see from that that, yes, it is certainly more conservative court as objectively in ways that i'm sure will bring add in the case discussions. so dick asked me to start with a case that hasn't come down yet, ricci v. destefano, the new haven firefighter case and i will be briefed on this because it hasn't come down. but is it an occasion to make a couple of remarks because the case has been turned into a sword of one-dimensional cartoon of reverse discrimination and hapless victims in this and that and this will tell us about judge sotomayor and her jurisprudence and on i kind of thing. but what i really want to say is this is a conflict case of and there is a lot of nuance in this

case. and gives to the relationship between title seven and equal protection who 14th amendment. you all know the facts of it so there was a promotion in the new haven firefighters and the white and some hispanic firefighters got a score at a much greater rate that made them eligible, not entitled but eligible to be promoted because there are more who eligible than their worst loss available for promotion so nobody in the group could actually claim i would have been promoted but they will all would have been eligible for promotion. the racially disparate results of the test failed what is known as of 4/5 zero. this is a regulation put down by the equal employment opportunity commission that if there is a racially disparate outcome is

employment practice our requirements so that one group passes or qualifies at a rate 80 percent less than the other group, that this is disparate impact and require some kind of explanation. its shares the burden to the employer to explain the job-related this of this requirement or and the lack or availability of some other alternative that would have produced a less disparate results so that is the case in new haven and new haven corporation counsel advised the city that they were at risk under the south, of being sued under title seven disparate impact and so they canceled the results of the exam and thereby got a lawsuit from the white firefighters who had scored well on the exam claiming that in

this was an instant of intentional discrimination and, of course, there was two prongs of title seven disparate treatment in disparate impact and have the 14th amendment lurking in the background. so there really profound question in this case is ken compliance with title seven in new haven says basically title seven made as to this, can compliance with title seven amount to a violation of the constitution? and if the accord is going to be getting its hands around that, that is a big deal because there is some tension in the way title seven of law has developed and so the question judas' prevent chile where the question is through judicial behavior is whether the court will seek to of the justice brennan strongly urges it to do which is to find some way to reconcile and eliminate this tension and not

have the two be at war with one another and it will be very interesting to see whether they can do that. if you look at the apr arguments in this case was argued in the courts last sitting in which 10 cases were argued in april and there were two cases that remain undecided. this case in a baking regulation pre-emption case called cuomo against clearing house. and justice kennedy has not written yet from a pro. and so i think there is certainly a fair possibility that this would be kennedy opinion. that will be really interesting because he is somebody who is extremely skeptical of government counting by race, but , on the other hand, he and the chief justice as you recall parted company two years ago in extremely important case called parents involved, the seattle

and louisville school case where the chief justice wrote for a plurality on which he said the racially conscious efforts the louisville and seattle school boards had taken to prevent resegregation of their public schools, were not supported by a compelling state interest that the city of louisville, kentucky had no maintaining of integration. interesting point. and justice kennedy said i can't sign that coming in is more complicated than that, i can send this opinion. of course, they have a compelling state interest in maintaining integration given their history. however, i think that is steps that they have taken on a sufficiently narrowly tailored to serve that interest so i agree on the bottom line these plans are unconstitutional but i don't sign of the plurality opinions. so there is a fair amount of daylight and will be interesting to see what happens.

which brings me to a case that they have decided. and brent the court decided is the section five voting rights case. very interesting exercise in avoiding the big issue. some people say, well, they avoided the big issue in the voting is rights case because they're going to tackle the big issue in a firefighter case may be. i have no idea. some people say they avoided the big issue in the voting rights case because they were in the mood for avoiding big issues. we will soon see. so the voting rights case called northwest austin municipal utility district number one against holder which is in your materials, as you know this was a challenge to the continued constitutionality of the preclearance provision in the session by the voting rights act renewed for 25 years in 2006 by congress. and the big issue lurking there beyond the symbolic issue, the

iconic nature of the voting rights act there is a doctrinal issues that was lurking here which is how do you evaluate the claim that section five has run its course, it has become outdated and there's no longer a need for the kind of intrusion that section five imposes on the coverage jurisdictions by requiring them to get just as a permanent federal court permission before making any voting change. do you have evaluated as a balance in this case argued under this city of bernie standard that dick referred to whereby congress is enforcement powers under section five of the 14th amendment are limited to finding remedies that are congruent and proportional to demonstrated violations. or do you continue the very deferential standard the court has always used in evaluating challenges to the voting rights act and the court's previous

turn down three or four challenges under south carolina against kathy back which is congress' having given direct legislative authority by the 13th amendment under section five, the court is going. >> off from second-guessing congressional judgments. that is a really big issue because the court has dance around with this and launch right up to the line with the city of bernie cases of implying that a judicial supremacy principle to a variety of claims but not to claims involving race and suspect categories and strict scrutiny so that was really teed up in this voting rights case. and the court blinked and did not reach that issue. the chief justice wrote an opinion for eight justices in which he said that continued viability of the voting rights act presents important and serious constitutional

challenges and consequently we invoke the doctrine unconstitutional of moines. we are going to hold that district, that was to get out from under the voting rights act for the bailout provision which on its face does not apply to this district because it applies in the language of the statute only those jurisdictions they themselves actually are registered voters in the district is not registered voters as part of the travis county texas and a registered voters and actually came in on the side of those defending the voting rights act. but the court said, well, because of the doctrine of voting rights act we will read that provision and find it the district is eligible to apply for a bailout. and so we sent the case back on that and let them apply and see what happens. so, of course, this is very intriguing pair go when dick mentioned that the court is now more transparent and a certain level i guess it is but one

would like to know what would happen in the core to do in the tennessee -- >> remember the oral argument of this case kennedy was especially active, he asked 17 questions most of which were fairly hard -- >> and the chief justice too. >> in one detected a certain skepticism as to whether congress has simply gone to the motions all these years and whether they had taken a hard look at the changes the chief justice said things have changed them south. in light of that oral arguments were you surprised there for to see the case come out this way? and i am wondering is in a case that we might consider as an evidence of the chief justice's the ability to pull everybody together on narrow ground rather than have the court fragmented on a constitutional question? >> one can argue that. one can also observe that if he could and get five votes to do what he wanted to do in this case. there's all kinds of theories floating around. there is one interesting theory

that the court seeing in institutional train wreck, obviously of a lesser dimension but i thought the chief's comments about chief justice taney in dread versus got rid very interesting in terms of the court having it out for the kind of general zeitgeist. here we had an election that may be in a case to some people pick up the accord presently constituted and behaving in is perhaps a little to the right of the country's center of gravity is this going to be the core that declares one of the iconic achievements of the sole rights revolution to be unconstitutional. which raises the question why they took the place in the first place. it came under appellate jurisdiction as the voting rights case in the bush administration severely affirming just of the jurisdictional statement which would have avoided a whole bunch of running around america around

here. so one theory is that the court having in an exercise of activism take in this case for plenary review became as they did on the bench gotten a whole lot of push back from the country at large for what it looked like an inevitable outcome from that argument, pulled back collectively and that the opinion that has the chief justice's name on it was i to a collective product by across the spectrum of the court saying we are not going to drive ourselves into that to ditch. you know, the more i think about and i think there is something to that. if you really parsed of the opinion with great care, it doesn't actually read like an opinion by john roberts. for one thing, i'm glad i'm not here and i can say these things. [laughter]

for one thing it sides law review articles and i think i am right and a summit in the audience or somebody on c-span or whoever is covering this can give the evidence to the contrary i could ask him. i don't believe he has ever cited any law review articles since he's been on the court except by judge friendly whom he a law clerk for. and you asked about extralegal materials gumma -- i mtt in a law school and sensitive about that. but it does cite a number of law review articles to tell us what the current status is the voting rights act enforcement and so there was something else going on here. and also the clarence thomas dissenting opinion which says things have changed and the voting rights act as our lives need, we should declare victory. is no longer a remedy for intentional discrimination because there is no more

intentional discrimination in the voting area. has a very mild tone to a. is not an angry dissenting opinion is so there is another theory floating around. and have started as a majority opinion or a punitive majority opinion by somebody or pieces of it by some group of people and that that was and then pulled back and was left with justice thomas name on it because it doesn't mean like a clarence thomas' dissent. jann, you look like you want to jump in. >> i think having listened to the chief justice and talking about how i've tried to explain what he meant by deciding cases on a more narrow ground, looking for a greater consensus. i think that this case is one that you could easily read as a perfect example whether by intention or by results of what the chief justice was talking about doing. is quite an extraordinary in this incredibly divisive a significant issue that we have a

justice is speaking with one voice including some of the more liberal justices who are willing to sign an opinion that says the voting rights act resister recession five in serious constitutional concerns. now granted day as linda said it stepped back from taking that next up in striking back imprisons of that act as some had urged the court to do, but it is i think a pretty extraordinary product when you look at this decision and think about how this court has spoken. and then you can contrasted to the case that linda mentioned from a few terms ago in the school desegregation cases when the justices really had a mess series of opinions with justice kennedy stepping in with his concurring opinion refusing to give the chief justice is a note to. his concurring opinion in that case was and what you kind of

guy behind, wasn't all that different than what roberts was saying in a majority, but we had a case hair or that decision was decided as linda pointed out and seminar with anthony kennedy. so when john roberts talks about consensus and unanimity one way of speaking about that i think is a way of minimizing the influence of anthony kennedy. and that is in everyone's interest. as linda pointed out, liberals really on the court and again using judicial conservatives have no more interest in arguing over justice kennedy like the human shambala and the conservatives do because there are going to lose pierre already they have been with conservatives 11 and liberals five times, does annoys me the conservatives happy but will go with them more often than not. so if you are the chief