and present her own plan to restructure the american health-care system. our health care programming concludes with eric topol who contends digital technology can make medical care more efficient and effective but the current medical system is resistant to change. for complete schedule of booktv programming this weekend visit booktv.org. .. >> the u.s. supreme court.

it's not the kind of book that an author's going to do a reading from. it's not a dramatic novel, but it's a pretty dramatic story, actually, when you step back and think about the supreme court over the centuries. and i know many of you are probably here because the supreme court today, this very day or next week, three days of the health care case being argued. the court is more visible in american life than it's been for quite some time, and i'll be happy to chat about that and answer your questions, but i want to talk a little bit and just kind of frame the story of the supreme court. in writing this book, what i tried to do was put myself in the position of i'm assuming many of you or myself before i had the chance to attend yale law school and spend the next 30 years writing about the supreme court on a daily basis for "the

new york times", and that is to say somebody who's interested in public affairs, interested in the civic life of the country but just doesn't happen to be an expert on this particular topic. so what would a person like that, a person as i was and maybe only of you are, need to know to really get a personally satisfying handle on the court. so with that as a kind of framework, what i proposed to do was really make a series of observations that i'll elaborate on and then turn it over for what i expect will be a fruitful and fun conversation among us. so when you step back and think about the court, one thing that jumped out at me as i was organizing the material to write this book is the extent to which the supreme court is really the author of its own story.

it wasn't given very much to work with. i mean, i said i wasn't going to read, but i'll read the first sentence of article iii of the constitution. the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. and that's kind of it. article iii goes on and talks a bit about the jurisdiction of the court and so on, but many, many unanswered questions including, for instance, there's no mention of the chief justice in article iii. we only infer there's supposed to be a chief justice because he's given in article ii, the presidential article, the right to preside over -- not the right, the duty to preside over the impeachment trial in the senate of the president of the united states.

and remember william rehnquist did that in the bill clinton impeachment trial, and when he was later asked what it had amounted to, he said i did nothing in particular, and i did it very well. [laughter] so the duties of the chief justice are undefined. and much about the supreme court initially was undefined. so it really had to create itself. and it's done so not in a straight line progression, but it's done so through its cases, the cases that in the early years it had to decide because it had very little discretion over what to hear, and the cases these days that it chooses to decide. and even that was a choice by the supreme court. you know, most appellate courts today in this country they have to take what comes. and so they act sort of as

courts of review, courts of appeal, courts of error correction. and that was the supreme court's initial fate or so it seemed, but william howard taft, the capstone after his presidency was becoming chief justice of the united states, and he sized this up, and he thought the court would greatly benefit from the ability to write its own ticket, create its own docket, not have to take every case that came along. so under his leadership, his urging congress passed in 1929 what's known as the judges' bill because all the judges of the country got behind this effort and gave the court for the first time discretion over its docket. and so that's the place we are today. we have a supreme court that is capable of and does set its own agenda, and in doing that it

really sets the legal agenda for the country. and when you think about it, that's really a very powerful tool that members of the court have especially if there's a majority of five of them in projecting their own legal agenda onto the canvas of the country by means of the court's docket. i mean, just one example. and it's not health care. the health care case, really the court i'd say didn't have too much discretion as a practical matter in deciding to resolve the dispute over whether congress had the authority under the commerce clause to create the individual mandate because the lower courts were in dispute over that. so when you have a, when you have a federal law that a federal court of appeals has declared unconstitutional, that's almost certain to be granted review by the supreme court even though as a technical

matter the court doesn't have to take it. it would have been really, really surprising had the court not chosen to take that up this year with the lower courts in disarray. but i'll give another example of a case that the court didn't have to attend to at all, and you may not have heard much about it yet because it won't be argued until next fall, but the court is getting back in the business of deciding the constitutionality of affirmative action in higher education admissions. and you might say, huh? what's that about? remember in 2003 when the court upheld in the griewder case the affirmative action plan the university of michigan law school, and justice sandra day o'connor writing the majority opinion in that case said, okay, this is a tough issue, but we've decided it, and as far as we're concerned, it's now resolved for the next 25 years. we hope in 25 years from now

affirmative action in higher education won't be necessary, but that's it, we're finished. well, so this being my math isn't that good, but i think it's about nine years later, we find the court having undertaken to review affirmative action admissions at the university of texas, and that's a case that's going to be argued early next fall. and decided sometime in the spring of 2013. and it's an example, obviously, five -- let's assume five justices some of whom were not on the court back in 2003 when the court decided the michigan case who were not happy with that outcome and have decided that they're going to get their hands back on it. and so i think the threat there is something that can really unsettle something that's been fairly well settled in much of the country up until now in these last eight or nine years.

and that's an example of the power that the court has to get us thinking, talking, responding to issues that come framed as legal, constitutional issues basically whether we want to or not. the court's agenda-setting function. so one thing that i have found intriguing over the years in watching the court and the behavior of the justices is how do they know what they know, or how do they know what they think they know? how do they know what the country wants, what the country needs? what are the facts at their command? you know, they lead lives that are not as isolated as many people assume, you know, they live in their own homes, they drive their own cars to work, they have the same sort of upper middle class daily lives as many other people. but they are at least somewhat

isolated, and the court doesn't have the ability to send fact finders out across the land and try to come up with a better understanding of the reality behind the cases that they undertake to decide. there's one example from a few years ago, 2008, that just struck me as really exemplifies the absolutely -- the vulnerability that the court has in a situation where it's really the captive of the information that people, the parties, the friends of the court in their briefs bring to it, and that was the case from louisiana, a case called kennedy against louisiana. and the question in that case was whether it's constitutional under the eighth amendment, cruel and unusual punishment, for a state to impose the death penalty for the rape of a child that does not lead to murder.

so it's a nondeath-related capital crime. and louisiana was one of a handful of states that had this law on the books, and it was challenged under the eighth amendment. and the court's eighth amendment jurisprudence, basically, to find out what's cruel and unusual, what's unusual, they look at what other jurisdictions in the country and to some degree other jurisdictions around the world are doing about the particular issues such as capital punishment for juveniles. the court said, no, that's unconstitutional. capital punishment for mentally retarded murder defendants, no, the court said that's unconstitutional. so in this case the court did its usual counting up by states, found that very few states had this particular death penalty statute, and justice kennedy said for the 5-4 majority look at the federal government. the federal government, the congress has revisited the federal criminal codes many

times over the years, and congress has never added this kind of death penalty to the federal criminal code. so the court declared that capital punishment for the nonmurder, rape of a child was, violated the eighth amendment, was cruel and unusual punishment. just one problem. it turned out after the case was decided the court learned that, in fact, congress had added such a death penalty under the uniform code of military justice for this kind of crime in the military just about 18 months before this opinion came down. and nobody had told the justices. the solicitor general in the department of justice who represents the government before the court was unaware of it, had not filed a brief stating the government's interest. the state of louisiana defending its law was not aware of it. a whole coalition of other states that came in to the case on behalf of louisiana, they

were unaware of it. nobody told the justices. and it came to light only because a military lawyer blogger who was very familiar with the death penalty in the military put it out on his blog a few days after the opinion came down. well, um, this came to my attention, and i had occasion to write about it on page 1 of "the new york times", and this created quite a ruckus because the attorney general of louisiana who had not bothered to return my phone call the day before once they saw the story, they filed a motion with the court to get the court to reopen the case, and it was a whole bunch of motion practice back and fort for the remainder -- back and forth for the remainder of the summer of 2008, and ultimately, the court stood by its decision, decided not to reopen the case, just address this problem in a footnote. but i just think it's a great example of, you know, we have this extremely powerful group of nine people, but at the end of

the day they only know -- just like the rest of us -- no one's born knowing anything, and we only know what we learn from our own observation or what we read or what somebody tells us. so that raises the question of, okay, who are these people? who are these justices? and it's interesting to look back over time and see how our expectations of the kinds of people who fill the seats on the supreme court have changed. back in the early days, of course, these were among the justices were framers of the constitution, leaders of the new country. over time that continued for quite a while. i mean, for instance, even as recently as the warren court earl warren himself had never been a judge. he was three-time governor of california. he had run for national office for vice president on the republican ticket in 1948. his court was filled with former senators, former cabinet

officers, former attorney general robert jackson and so on. you know, and that seems strange to us today because today for the -- well, since elena kagan came on the court that's no longer true, but leading right up to elena kagan's nomination for the first time in american history we had a supreme court all of whose members had as the most recent line on their resuée having been a federal appeals court judge. the framers would have found that remarkable because they really envisioned the supreme court being drawn from the heart of american life, american political life. the last justice we had who actually held herself out to the people for elective office was justice o'connor who had been majority leader of the arizona state senate. and she, her jurisprudence was unique on the court at that time, and i think it had a lot to do with pragmatic sense of

getting down to it and getting things done that she was nurtured in her, by the fact that she had been an elected office holder. so that's certainly been a change. there's, obviously, been a change in religion on the court. it's quite remarkable, though, when justice stevens retired two years ago, he was the last protestant on the u.s. supreme court, and we now have a court of six catholics and three jews. the framers would probably be turning over in their graves to learn that. [laughter] but i think it's a testament to the fact that religion, of course, it's gotten pretty salient in the current presidential campaign, but until then anyway it was just not such a salient feature of american life. geography. it was often, for a long time it was the case that presidents felt and the senate agreed that

there should be some kind of geographic balance on the court, so there was kind of a southern seat, a western seat and so on. and can that's fallen away -- and that's fallen away because it's become much more of a homogeneous country in that sense. we don't necessarily think of individuals being southerners and westerners so that right now we basically have a court of people from the mid atlantic which also would surprise the framers. and, of course, we're starting to have a diversity of race and diversity of sex. i was at the court yesterday as it turned out listening to a couple of arguments, and there was a very lively argument in a criminal case over whether the judge or the jury has the power to find be facts that lead to a criminal fine as opposed to a criminal prison sentence. and the lawyers who were arguing this case 30 minutes to a side got a total of, i think, 94

questions within the 60 minutes, and the women on the court -- justice ginsburg, justice sotomayor and justice kagan -- were asking one question after another, just dozens of questions, and i sat there thinking, this is the new normal. with three women on the court, no longer a surprise to hear a woman's voice on the bench. and, you know, when i first justice o'connor's voice on the bench back in 1981 when president reagan named her the first woman to be on the court, it was just a startling thing to see sandra o'connor sitting there. it was maybe just a year before her nomination that there had been a broadway play, maybe some of you remember it, first monday in october that posited a female supreme court justice as a joke. the play was a comedy because people thought, well, that's never going to happen. and, you know, now as they say it's the new normal. so we've seen all kinds of

biographical changes over time and some of this, of course, relates to the confirmation process, and i want to say a little bit about that. it's almost a truism to talk about the confirmation mess and the breakdown of the confirmation process, and i'm sure many of you have watched at least snippets of recent supreme court confirmation hearings. and it's kind of a dispiriting experience where senators ask these kind of canned questions, and they don't really expect to get -- i think they'd be shocked if they really got substantive answers because the nominees are trained to within an inch of their life to say i will follow the law, i'm not a judicial activist, i just do what the law tells me to do as if judging was some kind of robotic, paint-by-numbers exercise. and, of course, we all know that it's not. there's a great deal of discretion. the senators certainly know that, and the nominees certainly

know that. but yet it's a kind of a play acting that we all have to go through. so what is going on with the con fir be mission process? well -- confirmation process? well, seems to me a kind of new paradigm has emerged in the last couple of years. i used to have a kind of comfortable rap about this. i covered many be confirmations from sandra o'connor's through, i guess the last one i really covered was john roberts in 2005. and my takeaway from that including the fascinating work battle in 1987 was that if the president is not seeking to use the power of a supreme court nomination to press outside the bounds of the existing political consensus, there's not going to be a problem. i mean, stephen breyer and ruth bader ginsburg, both nominated by bill clinton, both nominees very much in the mainstream of

kind of centrist democratic thought at that time, the mid '90s, were confirmed within weeks by huge margins. and so if a president chooses to play down the middle, i thought or my observation told me, confirmation was going to be a piece of cake. well, that stopped happening in the last two nominations. we had sonya sonia sotomayor, te wonderful personal story and a person of high achievement, 17 years as a federal judge, i think more federal judicial experience, i believe, than just about anybody else ever nominated to the supreme court. and, you know, what happened in her confirmation hearing? of course, she was confirmed, so at the end of the day it was a happy story for her. but all that garbage about one speech she had made and the wise la latina remark. you probably remember this. kind of wrenched out of context of what actually had been a

speech that was very thoughtful and heartfelt, not a sound bite. you know, opposition research that turns up something like that and dominated her confirmation process and be just the merest handful of republicans ended up voting for her. elena kagan, former dean of harvard law school, as you know, highly accomplished, mainstream nominee for sure, you know, was bedeviled by that whole business about harvard law school having not allowed military recruiters on its campus to recruit students to be lawyers in the military. well, as if elena kagan had made, had made that policy up when, in fact, it was the standard policy of the american association of law schools, the law school trade association. all law schools were supposed to behave that way for better or worse, you could debate the merits of it. but it was nonan -- not an elena

kagan declaration, and be even fewer republicans voted for her than sotomayor the year earlier. so the paradigm has obviously changed, and the landscape of a confirmation, senate confirmation is going to be a battleground whether there's any objective reason for that or not. and i should point out that both of the vacancies that these two nominees were filling, a vacancy left by david souter and john paul stevens, these were not game changers. the ideological balance of those two vacancies was not going to change. but one of these days it will. who's going to leave the court and in what order? i mean, eventually, all nine of the current ones will leave, but i have no idea in what order or when. but at a certain point a justice who holds a central position on the court, letting that nomination be a game changer,

that will happen. it happened in 1987 when louis powell retired, and he was the swing justice of his day, and we had the bork battle, the titanic battle that in many respects is still going on today. it really never ended, and it kind of informs how we, how we think about the nomination process. and so i just -- given what's happened in the last couple years, i just personally, you know, hate to think about the conflagration that's going to occur when that vacancy occurs. i'll just say another word about the still-resonating bork battle. and, again, recent political events, i think, should make us kind of rethink what has seemed to be the takeaway from the bork battle which was a definition of the political mainstream within which a nomination would occur or outside of which a nomination would run into lots of trouble.

so the mainstream as defines coming out of the bork battle, you remember he was defeated on the issue of did he believe that the constitution contained a right to privacy? did he believe that the constitution gave people individual rights that were not enumerated in so many words in the text of the constitution, and he said, for instance, that he thought that the griswold case from 1965 which created, which discerned in the constitution the right of married couples to use birth control, he believed that case was wrongly decided. and that coming out of the bork battle, that was generally taken to be kind of a sign that no matter what a nominee thought about about this, that or the other provision of the constitution, at least you have to accept griswold against connecticut as being correctly decided.

of course, now in the recent flap over contraception, what's going on in the republican primary, you could wonder whether the definition of mainstream is changing. it's really caused me to shake my head. so the question is, what happens next with this broken, highly, highly politicized confirmation process? be there's a debate going on kind of underneath the radar, mostly till in the academy -- still in the academy, and i talk about it a little bit in the book just to bring it to people's attention over whether life tenure on the supreme court is still a good idea. the framers, of course, provided for life tenure for all federal judges, what are known as article iii judges, and this has been a great protecter of judicial independence. life tenure's really a great, a great thing. but one can make a case that it's part of what is bedeviling us in the confirmation process because not only -- not for the

obvious reason which is that justices tend to stay an awfully long time, and so you're confirming somebody at, for instance, in the case of john roberts, age 50, who might well be there 40 years later when the presidential administration that appointed him is a dim and fading memory and the issues that concern us have greatly changed. justice stevens retired at 90, for instance. so that's the sort of obvious issue with life tenure. but the less obvious one that's kind of interesting with respect to the confirmation process is that you never know when there's going to be a vacancy. and so each, the filling of each vacancy becomes terrifically freighted because you never know when this president is going to get another one, or maybe the next president won't get any. jimmy carter had the bad luck to not have a single supreme court vacancy occur during his term in

office. so there's a randomness to it that just ratchets up the significance of every vacancy. so there's a few ideas floating around about this. i mean, obviously, to simply get rid of life tenure would require a constitutional amendment, and that's a very difficult and, you know, not smart way to proceed, basically, about anything. so some scholars have come up with another idea, that there should be a functional 18-year term on the court, and once somebody has served 18 years, another justice gets appointed, and be they all remain on the court for the duration of as long as they want to stay. but the ones who have already served their 18-year term become, in effect, senior justices. and there's kind of the same thing happens on the federal courts of appeals. stay as long as you like, but you can choose to enter into a senior status where you have to work, i think it's now halftime

or maybe it's -- you have to put in substantial work if you want to keep your pension up-to-date, cost of living on the pension up-to-date. but you don't have to work full time, and you retain your life tenure on that court. so that's a thought that i think is, you know, far from being accomplished. but it's being discussed, and i think it's a reflection of the fact that we're a little discomfited by what we see in the confirmation process. it's interesting that when you look at other countries' courts around the world including constitutional courts of old democracies and constitutional courts of emerging democracies, these countries and these courts have adopted many supreme court lessons, have to some degree modeled themselves after the supreme court although in interesting ways they have diverged. but the one thing no other country has adopted is life tenure for its high court

judges. they either have a term of years or an age limit. they have other interesting features. in some other courts, some of the european courts, for instance, won't, don't publish dissenting opinions. the opinion speaks for the court, and we don't have the vigorous dissenting opinions that we see out of our supreme court. the court speaks as one. and if somebody dissents, they just have to keep it to themselves. that would be something quite different on this supreme court. so i think with those, with those observations, um, maybe i should turn it over to you, and i'd be happy to take your questions. i see there's microphones, and, um, be happy to have any kind of conversation. ..

chief justice ginsburg's visit to egypt made and amend of suggestions advised to the drafters of the egyptian new constitution to look at the canadian power -- south african -- i was just wondering about your comments as supreme justice doesn't even believe in our constitution how can he be made

a justice? and your advice -- not suggesting -- hasn't really been discussed in the media. >> having a little trouble hearing you. you are asking about justice -- >> ginsberg. advice to drafters of a new constitution in egypt to use canadian -- i find it hilarious -- i find it -- >> what he is referring to is talks justice ginsburg gave in egypt on a state department mission and her remarks have been taken greatly out of context and distorted. she certainly was not running down the u.s. constitution. she was suggesting simply that

there's always room for improvement. she is somebody who in her own career has brilliantly expanded the meaning of equality under the constitution and i don't know anyone in public life who believes more deeply in the constitution is all i take issue with the premise of your question. >> thank you so much for wonderful and rich talk. there are so many issues that i think you raised. you could probably go on for longer but you made an interesting comment about the justices themselves who are who they are. what i am leading up to without quoting your exact words is how much do you think there has been a politicization of the court?

particularly as we see so much bickering, to use that probably ridiculous word in our country about these issues of contraception and morality and so on and so forth but what is your sense of the politicization and perhaps another question, do you think justice thomas who has rigorously or steadfastly refused to ask questions, do you think that is a good thing? >> you raised a kind of profound question and a very specific one. on politicization there was a bloomberg poll that came out of you days ago that asked people whether they thought the health care decision when it comes later this spring will be

influenced by the justice's politics or whether they will resolve the case based on the law. three quarters of the people responding to that poll said politics. i just found that depressing. i actually don't think it is true. someone is bound to ask me what i think about the health care case so i think the court will uphold the law regardless of whether as legislators they would have voted for or citizens whether they like it because the precedents under the commerce clause in terms of defining the scope requires the court to uphold it. i don't think they have a choice and i don't think they will have a choice. i don't see the supreme court as a politicized institution. i think there are justices who

have agendas. the review in the university of texas, the reason i highlighted that is it was unnecessary -- does put the court gratuitously in a political spotlight and the prospect of institutional self harm. that was a misjudgment but i don't think the court is politicizing in the way we think of that term when we think of the political landscape right now. justice thomas and what i think of is not having asked a question for the last five years not that i am counting. it is very strange behavior. it may show oral argument is a lively -- a great scene.

people have a chance to witness it. the court is open. people should go or you can read the transcript and download the audio of every argument before it goes up on the web site on a weekly basis and the health care argument, the audio will be put out every day. remember of the court to decide i am not going to play or participate, i am not inside is head. it kind of reminds me of a little boy who says i'm going to hold my breath and stand in the corner and nobody calls his bluff and he is still standing there because after five years when given all kinds of reasons why you are not asking any questions and they don't quite are consistent or coherent how do you get out of that?

you can just ask a question. the questions were perfectly fine and illuminating and useful. that is my answer. i don't quite get it. >> i want to know if you think the court will change -- will diversify in any other way -- diversify in any other way in the future and second, drebin of bar there any other problems you see with the court's other than confirmation aspects? >> any problems other than? >> the confirmation. >> i am sure the court will diversify further. the court needs to look more

like america in all kinds of ways and that the it will. it will be good for the country. do i see any problems that the court? they have got areas of doctrines that have been driven in directions that the question now is whether you are going to go -- follow where they have been going to a logical conclusion which is right over a cliff. for instance i am sure you are all familiar with the citizens united case. you can debate the merits of that case one way or the other but it is an indication that

this court takes a view of the first amendment that i think has strayed rather far from what the framers would seek as the dimension of the first amendment. for instance there is the case that i think is heading to the court now about whether the government has the power to order cigarettemakers to put graphic warning labels on the packaging and a federal district judge, i think not necessarily in correctly interpreting where the supreme court is going said that this requirement was in violation of the first amendment rights of the cigarettemakers because it was a form of compelling speech. so that is pretty interesting. we have a regulated product, congress has given the

government, the food and drug administration the right to regulate aspects of cigarette marketing and congress determined that this was inappropriate deterrent to smoking and how the first amendment got into this equation is pretty interesting. asking whether the court has any problems today, maybe they need to take a deep breath and take a look at where they have been heading and decide if they want to keep pushing along. >> thank you for your speech. i would like to ask you a question about judicial ethics. the supreme court and certain members of the supreme court have brought the court down to the point where people are questioning some of the

legitimacy of their decisions and i wonder how you think the code of judicial ethics should be applied to the supreme court and why if you don't think so, why they shouldn't be held to a higher standard. >> that is an issue that has been largely misunderstood and a little demagogueed, i don't mean by you, but it is true that certain of the judicial ethics rules that apply to all other federal judges don't technically apply to the supreme court but the justices regard themselves as bound by them so for instance all the financial -- are bound by financial disclosure rules just like all other judges. on the recusal issues which is where this comes up, the court has explained the recusal policy

and it is the same as the policies that bind all other federal judges. the single share of stock in a company requires a judge or a justice under the policy that they have adopted on -- to recused from a case involving that corporation and so on where you get to the margins, it is not black letter reason for refusal. personally speaking as a citizen, i am not a big fan of judicial recusal. you get into a situation like the motion to recuse judge walker in san francisco who resided over the proposition a trial. he is a gay man. he had a conflict of interest. what people on the left are trying to get justice thomas and justice scalia recused from a

bunch of stuff because they have attended meetings sponsored by folks on the right, i think we need to be really careful about setting in motion rules that would kind of disabled the court, the justices from being out in the world actually. i have to say -- justice scalia was quite right when he declined to recuse himself on the basis of having gone duck hunting with dick cheney when there was a case involving office of the vice president that didn't have anything to do with dick cheney's personal life and justice scalia explained himself with a 20 page opinion as to why

friendship with a high government official became means for refusal over history, many supreme court justices would have recused themselves from many cases because you don't have a supreme court justice unless you know if you people in high places. personally i am against -- i am not an expert on ethics. quite comfortable about feeling members of the court are making the ethical calls that i wish they would make. >> i have a follow-up question touching on citizens united and cases like that about the politics of the concept of judicial restraint. for much of a 20th century progressives argued for restraint. and after the 1950s and 60s it

was a powerful conservative political argument. on wonder where you think that argument stands now. will we see it becoming a liberal call again or is it something -- the pending where you stand depends on where you sit. were there any coherence to that issue? >> there is not a lot of coherence. an activist judge is a judge who has come out with the opinion that doesn't like and really interesting conversations going on in conservative circles about this. you might have seen the interesting op-ed a few days ago by judge wilkinson of the u.s. court of appeals for the fourth circuit and he is talking about judicial activism of all kinds but his focus is on judicial activism on the right and he is

a conservative. he is an old-fashioned conservative, invention of for instance very critical of justice scalia's opinion in the second amendment case that declared the second amendment gives the individual rights to own a gun. judge will consider regarded that as an example of right-wing activism. we have got it on all sides. the health care case is a chance for conservatives on the court to disavow the kind of activism that would have judges substitute their own policy judgments for pretty clear commands of the constitution's text and history and the court

found precedence. it is interesting test for them and i think the more people like judge wilkinson or individuals look at the court across the entire spectrum and be willing to call out and do activism when they see it. it is interesting conversation to be having right now. you want to come to the mike, that would be good. >> i think c-span is recording this. >> thank you for your explanation.

it was very helpful. when you were talking about kennedy versus louisiana, the fact that the justices were unaware of a law that congress passed are may have missed the timing of that. would that not have come out in oral arguments or somebody calls one of them for a slip of paper or something? something -- what was missing that they would not be aware of that kind of legislation? that is one question. it was interesting to hear you say some of the founding fathers would be turning over in their graves and certainly many of us are saying that is just what the republicans -- more conservative people are saying about the right to bear arms etcetera. it is interesting because we can see that from two side. what the intentions of the

framers of the constitution, the second question is being called into question has been raised and yet how do we move on from that or apply it to it purest form without getting ourselves all wrapped up in something and not recognizing change and the evolution of society and time. >> right. two interesting questions. how did the court -- how did the court miss the fact that congress had recently passed a law on this subject? it was because it was attached to the uniform code of military justice and nobody thought to look there. it came up -- it was a federal case involving state law. the court agreed to review it and typically what would happen is the solicitor general's office and the department of

justice would basically survey all the different general counsels and units of the government to say here's a new supreme court case. cannon house office building a brief representing your agency's interest? is there anything we need to know? i never could track down exactly what the missing link was but i think they didn't bother questioning the pentagon. in retrospect the military justice system we know from these horrible current events there's a lot to say about military justice it didn't occur to anybody. nobody in the pentagon general counsel's office is watching the supreme court stock for things that seem on their face have nothing to do with the military and obviously the state of louisiana and the state that come in as run to the court on its behalf they didn't think of

the military. so it fell through the cracks. it came to my attention but it does make you wonder how many things fall through the cracks in other cases that just don't happen to come to anybody's attention. i don't know the answer to that. u.s. about the debate over or regionalism. the second amendment case was interesting because justice dubya for the majority, justice stevens, they both thought that case on grounds of or regionalism--originali regionalism--originalism, on the grounds -- on some ground and try to let your evidence that some people found compelling, as

to whether the framers meant the second amendment to apply to individual rights or only a right in connection with membership in a militia. that was your originalism when added to all nine justices fighting our originalism. we don't really know. the text is ambiguous. the history is ambiguous. we could stand here all day the bonds going over the second amendment and not get any agreement. justice briar had an interesting separate opinion in that case. he also wrote separately and said this is not a productive way to go about this. we need to look more pragmatically. we need to go back. if we're going to go to the framing we may not get hung up on text and where the comma was

and how the second amendment was worded but what were the framers thinking? what was that about? he said colonial and postcolonial boston had a law against keeping ammunition, gun powder in private homes. why was that? it was a safety hazard because you could have a fire that could burn up the city of boston. they had a safety concern. the reason the district of columbia and acted district east gunmen in the country was public safety. decided they ban in the countr public safety. decided they needed a handgun

ban. uphold the ban is understood from a pragmatic, not grammatical position. at view works for today and put it in a couple books and that are quite interesting fleshing that out. it is a debate going on and is a productive one and it is interesting that justice scalia and justice thomas remain the only self identified originalists on the court. chief justice roberts and others have not signed up for that. they make a basis to or originalism but are not stuck there. history is more important now in court arguments than it has been

in recent years because of justice scalia's force on the matter. originalism alone will not win a supreme court argument. people need to come up with other arguments. fbn >> the first question i have is about technological issues. in congress we have seen the fight over issues where the people don't necessarily have the technical know-how to actually voting on this legislation and something you could end up seeing on the supreme court with tenure and things like that where they might not -- technological things are getting lost and couch with different issues. if you could address something that somehow could be addressed and i was going to ask -- it is

not politicized -- the court is not politicized but -- >> the mike is very loud. >> talking about politicizing the court and whether it is politicized. one way that it is politicized is they can come back and are coming back so quickly to the affirmative-action case. will we see that back and forth? we have another liberal justice and citizens united. will this snowball so every time the court shifts they will revisit issues? >> good question. every time the court shifts. there's a real challenge now on the court to settle ideas about the meaning of statutes, not only affirmative-action areas

but other aspects too. not only the role of precedent in a common law system where one case leads to another case leads to another case. you have got to have a fundamental concept of precedent where you are twisting in the wind. and brown versus board of education or plessey against ferguson. you don't want a slavish -- you have to have awfully good reasons to go back to a case that was full the fought out and argued very recently and reopen it. i was surprised by the court's announcement that it was going to take the texas case under review. watching the court's behavior on

this very closely. >> i have heard it said that if you put a group of liberal people in a room, the views will skew toward the extreme liberal and the same with a group of conservatives. they will skew towards the edges. do you see any tendency of that in the evidence flow of makeup and opinions with the history of the supreme court? put liberals in the room and a bunch of conservatives they tend to be extreme. is that happening in the court today? >> it is not happening on a liberal side. i will tell you that. there is no one on the court today who would l