and this attorney general of maryland was arguing that you should be able to not only ask passengers to get out of the car when police are searching the automobile, but detain the passengers on the side of the road. and justice o'connor, i'll never forget it. were you there at that argument, do you remember? she sat up and said, you mean to tell me that police could detain a pregnant woman, you know, with a baby, and then she keeps playing it out in the rain, you know, on and on -- [laughter] thinking, you know, how that rule, how that kind of ruling could affect the real world experiences. so anyway, moving on. >> jan, could i just -- >> linda, quick comment. >> on justice o'connor, she often does and did say, you know, wise old man, wise old woman at the end of the day make the same decision, but she in recent years has modified that. she's no longer quite so sure that that's true, and i heard her give a talk a couple of

weeks ago in which she backed away from that, i think, in light of current events and quoted i think i have the name right, florence allen, who was the first woman to be a federal judge who would say you have to forget you're a woman, and you have to remember that you're a rom. woman. >> both. john. >> yes. just on this very interesting question i think it really goes to the heart of what one thinks about the nature of the judicial process about what the agenda is adding. of course, there's a lot of social science evidence that having female judges makes a difference in decisions. of course, it's a leap from that to say, well, the decisions are better. they're different, that doesn't necessarily follow except if you have a view that perhaps justice is best served when you have a diversity of perspectives, and

that creates justice. that's not necessarily -- that's our democratic view of how, that's why we have democracy. of course, our view often of justice is a more formal one, doesn't necessarily carry over that diversity leads to better results. so i think it's important to think about the difference between the difference that women make and the question of whether that, whether that in any particular area means that it's better. that's a leap. >> jan, other comments on the criminal docket. >> oh, before we go on from that, though, the other thing about the strip search case that is an interesting kind of theme is, and it shows a unique power of the chief justice, and, you know, of course john roberts would like two votes. i'm sure they all would, but he does get to sign the opinions when he's in the majority which is a major big deal. and in this case i thought it was by signing that opinion to david souter, you know, he ended

up getting a case that kind of toned down whatever dissent the that justice ginsberg was going to write on the qualified immunity question. i just thought it was a beautiful example of a pretty wise use of his opinion assignment power contrasting it, of course, to the led better case of several years ago when i think the court didn't expect that to be so controversial, and the chief justice assigned it to justice alito who, of course, had just replaced justice o'connor. so it was just this immediate comparison that how, you know, alito was writing this decision and how different it would have been if o'connor had been on the court, and that, of course, led to that very pointed dissent, outraged dissent by justice ginsberg. okay. the other case that i wanted to highlight just because it also, i think, is such a fascinating big-picture issue in terms of the way we look at the courts

and the laws, this dna case out of the state of alaska. this is in your materials, the decision just came down. william osborn was convicted of rape, and postconviction he wanted to get access to his genetic material for dna testing, and the state of alaska refused. and so he argued that he had a constitutional right, substantive to due process right to access that genetic evidence for his dna testing because he thought he could prove his innocence even though he had at one point confessed. so this case sharply divided the court by a vote of 5-4, but the reason i find it so fascinating and i strongly encourage you to take a look at this opinion is it's just a, to me, a beautiful example of when we talk about the differences in approaches of liberals and conservatives on

the supreme court, this case really has it all. john roberts wrote the majority opinion, and it is a, it's just a classic kind of exposition of a conservative judicial philosophy. now, remember in this case 47 states and the federal government give you access to your genetic material by law. alaska's one that doesn't, massachusetts for some reason -- i don't know why, you'd think massachusetts would, but massachusetts does not and oklahoma. so you've got three states. and roberts in this decision really kind of gets to as he did in his confirmation hearings and, again, not to go on another tangent, but when you think about the confirmation hearings, those kind of can be teaching moments, and we saw that with john roberts talking about the conservative approach to the law. i'm just going to quote you some of what he says because it's complete textbook. to suddenly constitutionalize this area would short circuit what looks to be a prompt and

considered legislative response. establishing a free-standing right to access dna evidence for testing would force us to act as policymakers. it would take the issue out of the state legislatures and the state courts where they've been dealing with it very well and allow the federal courts to intervene. and as roberts wrote, we are reluctant to enlist the federal judiciary in creating new constitutional rules for dna. now, the liberals on the left, obviously, the four dissenters saw that this is a new area, and, of course, they have a duty to act when this man's constitutional rights have been violated. and they -- so you really saw this head to head which is an ongoing struggle in the supreme court between these two very different views about the role of the courts, the way to look at the law, the way to interpret the constitution, and it all bubbles up in this case from

alaska. am i running out of time? >> no, that's interesting. the classic case is probably at its most forceful when it's a sub instant i right that's being created. one's talking about the the admission of evidence which is uniquely something courts are able to talk about, and you might say, well, the supreme court would have more competence at deciding have you crossed a line where something is so fundament total fairness of the criminal process that it ought to be recognized as a constitutional right. >> right, but the chief justice said in his opinion, you know, federal court should be reluctant to get themselves in issues of state post conviction release procedures and really only do that when those procedures are, as he wrote, fundamentally inadequate which he concluded weren't here and again as his -- >> just to contrast that interesting opinion with one that came down this week, the confrontation clause case. >> oh, that's the next one.

>> oh, you're going to get into that. >> no, go ahead. >> i don't want to preempt you, but this answers a question that dick asked at the beginning about whether there's a difference between the two pairs on the conservative side of the court. justice scalia and thomas and then chief justice roberts and justice alito. so in this six-amendment con -- 6th amendment confrontation case which asked whether a defendant has a right to cross-examine the laboratory technician who did the analysis. so you have, you know what part of confrontation do you not understand from justice scalia and then three of the liberals, then you have the more pragmatic of the conservative side, chief justice roberts and justice alito joined by the pragmatic liberal, justice breyer and

justice kennedy saying, you know, you're just going to create a huge mess in the crime labs and courtrooms of the country. but anyway, i didn't mean to -- >> no, no, that's great. that was the perfect segway. did you want to say anything? >> dvd, jan. >> this was another big case that raised all these themes, too, and it looks at the court's -- this case is kind of the last, the most recent and perhaps one of the most sweeping kind of decisions on the court's efforts in recent years to refine their jurisprudence on the confrontation clause which, of course, as you know in the 6th amendment all criminal prosecutions, the accused has a right to confront or to be confronted with any of the witnesses existence him. and so -- against him. and so the court over the past 15 or so -- let's see. longer than that, 18, 19 years has really been looking at what that meant. and so in this case as linda was

saying, they said this case came about when luis menendez dias was arrested for having cocaine and charged with possession and distribution. and so the state at his trial introduced a lab report that said, yes, that white stuff in that little baggy that he stuffed under the seat in the cruiser was, in fact, cocaine, and, yes, this was this amount of cocaine in that bag. and the issue was whether or not that affidavit, was that okay? or was that testimonial evidence that you needed someone who had prepared that to come in and testify. the supreme court in its decision by justice scalia said, yes, affidavits are this kind of testimonial evidence. two points on this, there was a remarkable -- and i'm not sure i agree with you, linda, on the voting rights decision didn't sound like john roberts, but i will say there is a remarkable

dissent by justice kennedy that did not sound like justice kennedy to me. it was basically somewhat repetitive, actually, so maybe he wrote it quickly, but he basically said the court is sweeping away 90 years of rules, disrupt criminal proceedings, i mean, it was one of the sharpest and most pointed dissents i've seen from kennedy who maybe because he just doesn't write that many of them, this only being one of four this term. but this case is, obviously, quite significant, and it'll take some time o shake out. i wanted to make a point, kind of looking at the court and how we look at the justices. obviously, a very interesting lineup of judges in this case, scalia writing it, thomas in the majority and then the three liberals joining scalia, kennedy writing the dissent and then breyer joining roberts and alito as well on that disseven.

when we think about the role of new justices and how they can change the court, obviously, we will see sotomayor change the court. that's an area that justice thomas has had quite a lot of influence on, and if you look back to his first term on the supreme court, there was a case called white vs. illinois which involved a man who was convict inside a sex abuse case, and he was trying to argue that the girl who had accused him should have to go in and testify so he could confront her. and rehnquist wrote the majority and said, no, you know, she doesn't have to come in, and he kind of analyzed it into the way the court traditionally looked at confrontation clauses, whether or not the evidence was reliable and as hearsay. and thomas wrote an amazingly powerful concurrence in which he urged the court to really rethink the way it's looked at this entire issue. he looked back historically at how the framers surely must have been concerned about what they'd

seen in england. he talked about the trial of sir walter raleigh for treason and how the framers were concerned we not have these trials by affidavit. of course, in the decision this week justice scalia quotes from that concurrence in white. thomas files a separate concurring opinion in week as well -- this week as well. i only bring this up because i think when we think about the court and this kind of goes back to some of the stuff we were talking about at the beginning and transparency, but you still don't really know. you know, you don't know what's happening behind those closed doors. you know what these decisions say, and i always think it's passionating so -- fascinating to see cases where particularly justice thomas, we see his powerful dissents, but in cases where he has had influence on shaping law that we don't

necessarily think about it, and i think this is one. he's obviously made quite a mark on that supreme court through his dissents being very powerful and different. he's often aloan as he was in the voting rights case, but there are also areas of the law, confrontation clause being one where he's shaped it quite significantly. >> we have to move on, i'm sorry, to the next topic. okay? sorry. [laughter] time does run. we'd love to say more, but anyway, john, could you take us into the ink ball case procedure? >> yes. i'd like to talk about the case, and this is, perhaps, the most important case of the term practically and gives us the strongest window into the see change of the roberts court from what president howard was talking about in the warren court. it comes out of the terrorism

context although it isn't decided in that context. he's someone who was picked up after 9/11 and complained that he was treated in an improper way because he was a muslim. it was essentially a discrimination case, and the court resolves the case on looking at a civil procedure, looking at the rules of pleading. it rejects the claim in a 5-4 decision because the argument is that civil procedure requires that a plaintiff have a short and plain statement of acclaim showing the pleader's entitled to relief. and here the emphasis is on showing, and justice kennedy in his majority opinion says there's really nothing in the complaint that shows he's entitled to relief. there's just conclusory statements that he's discriminated against because he's a muslim. and justice kennedy notes that, of course, after 9/11 it is not

at all surprising given the events of 9/11 that muslims might have been disproportionately impacted by law enforcement afterwards, and there's simply no facts that he alleges that suggests that the better explanation is that they're just look for traditional law enforcement, techniques, wheel people who might be more connected to the e end vent of 9/11. so i think the way to understand the rule in this case is that in pleading you have to do what one of my colleagues suggests, show that you have some reasonable suspicion. there's some sense even at the pleading stage that that inference is some facts that you can infer that it is at least possible, at least quite plausible that some violation has occurred here. why this case and i'll now state

why i think this case is important practically, and why i think it's very important in understanding the roberts' court more generally. practically, this case follows on a case in which a court in the antitrust contract made much the same argument in knocking out a case at the pleading stage because they simply did not have enough factual allegations to suggest there was any wrong doing on here. and what this case shows is that developly is not limited to antitrust. it is what we would call transsub instant live. there's a requirement that you show this decision even at the pleading stage. it's been cited almost 7,000 times in the two years since it's been decided. that gives you some sense of the enormous significance.

of course, all cases can be addressed at the pleading stage. so i think there's enormous practical importance as exactly what's worked out to be the plausibility of pleading going forward in district courts. secondly, i think this gives us an enormous, powerful window into changes into how we regard a justice in the united states. some of the liberal pleading cases come from the warren court, and what does pleading really focus on? it really tries to get a balance, balance between two kinds of considerations. on the one hand you want to be able to have people come into court and make their case even if they don't have possession of all of the facts. on the other hand, if they can come into court without showing any suspicion that something is wrong here, ec have the advantage of a huge amount of discovery and pose all sorts of

costs. and so it depends on what we're going to weigh more strongly about how liberal our pleading rules are going to be. and i think what the combination of these cases suggests is that the roberts court has a very different balance, that there's a greater concern about the cost of discovery. you might actually suggest that what is actually destroying liberal pleading is liberal discovery because that imposes all of these costs. now, yishtd say that it was a 7-2 decision. this was a very hotly-contested decision with justice souter in dissent here, and i think that shows one of the possible problems going forward of this new plausibility strd for pleasing, that it may be very much in the eye of the beholder,

and so i think that's a possible downside of this kind of rule even though i think it has some potential of constraining costs. but at the supreme court level i think one also can see this as very much connected to another theme of the roberts court. $what alexander bickle would have called the passive virtues, avoizing the decisions on constitutional issues by civil procedure issues of getting out, getting rid of the case before deciding constitutional issues. and i think we see that right across the board this term. of course, we've already discussed the voting rights case where they interpret a statute and, perhaps, not a completely textual man tore avoid a -- manner to avoid a constitutional battle.

no longer is the court going to be required before getting to the qualified immunity issues. so it allows district courts and, of course, the supreme court itself to decide whether anyone has provided immunity without taking a position on the law itself. and finally, another lawyer, and i think this will segway into our discussion of environmental law is standing in which the court again in this term kicked something out on the grounds of standing. and all these are ways that do court manages to avoid taking song positions on constitutionality. i think there's more than in chemoing that may be in some sense his most passionate interest. it may -- justice roberts although he doesn't cite many law reviews, he actually did write one law review argument,

and it was all about standing. and by implication the actual, the court, the way the court can actually act to advance justice actually sometimes by not exhale making a decision on the merits. and so i think this case has multiple meanings, and in some ways in my view although it's a civil creed enough view, a pleading case may be the most important case of the term. >> linda, you had a comment. >> yeah, just to emphasize the vigor of justice souter's dissenting opinion because he said, you know, i wrote develop my, and this isn't what i meant. under one they theory it was completely innocent, and another it was collusive. he said when there are two plausible theories, you know,

one of which is completely innocent behavior, you've got to show more than that in order to get, to get discovery. and really the court really changed the game, the majority changed the game in developly, i think and going beyond that. and i think it's, you know, just interesting that there was no common ground at all between the majority and the dissent in that case. furthermore, they reversed a very modest opinion by judge john newman of the 2nd circuit who said we realize that discovery in this context of, you know, these detainees and they're suing the former attorney general, and they're seeing the head of the fbi, and this is a very sensitive matter, we think discovery should be

very limited. it wasn't a katie, bar the door, and still that provides a vehicle for the majority to import it into this set of facts. >> i don't know, you mentioned the environmental cases. there were several cases this term, and, ted, would you take us into that? >> yes. i will start with what john ended with which is the standing point. there were five so-called environmental cases, and the so-called environmental side lost all five, so i suppose it's going to be characterized as a big loss for the environmental interests and so forth, but most of these cays really had to do with -- cases really had to do with other grounds for decision, one of which which john mentioned involving the extent to which people harp objecting to a forest service policy in the cutting of trees could go ahead and wring this challenge

notwithstanding the fact that the case had been settled, and they were went going to process and procedures and policies of the. justice scalia said there's no stand anything this case. john roberts wrote a law review argue about standing. he joined the justice department in 1981 when rex lee, chief then john roberts, now chief justice roberts was a special tant to the attorney general. one of the things going on is judicial restraint, what can we do? what kind of arse -- arguments can we make, and standing was a big thing with rex lee, and there was john roberts as a part

of that. and when he did become chief justice, one of the first opinions he wrote was a case against daimlerchrysler, and that ostensibly involved tax breaks, but it went off all about standing. and a very, very -- i think it was his first opinion or main his second opinion as chief justice. he wrote a very, very powerful standing decision going down various different bases for rejecting all of them. the other cases in the environmental area, and i'll do this brief because i know we're short of time. one way -- case was whales vs. sonar because of the damage the submarines might do to the whales. the next case was the tree

huggers versus the loggers, and the loggers won. [laughter] the next one had to do with the use of the best available technology to pool water that was being used for nuke collar reactors and then putting back into the stream. cost benefit analysis won, and then a case in alaska which involved a gold mine in alaska, and the justices that were against the permit which had been given to the gold mining company to put the tailings from the gold mining operation into a small rake were very, very concerned about the fact that this was going to kill the fish. i didn't quite say this, but i was thinking of them as bait rather than fish. laffer and they were just going to be killed temporarily. after this was done there was going to be restoration of the

wildlife. the gold miners won. but really those cases aside from the standing case have to do with deference to decisions that have been carefully bead by the administration i have agency. in the case involving the water going from the nuclear reactor, the cost benefit analysis was something that the agency has carefully thought out, and the best available technology could have been so good you couldn't have put any water back in the stream, and justice scalia's opinion says, no, no, no, there's some play in the joints to decide what's the best available technology. in the whales vs. the submarines, the judge says we have to give some deference to that against some of the speculative arguments about injury to do whales and in the

gold mining case both the epa and the army corps of engineers had been working for years to determine who would have which permit being authority under what circumstances whether it was affluence or fill, and they had finally worked out their agency, and in this case both agencies eshooed permits, and the court decides we are not going to substitute with respect to the allocation of their possibility under the clean water act. >> ted, thank you. let me move on now. john, what should we say about the first amendment this term? really interesting case is still to be decided on monday. justice roberts' successful attempts to bring