it. i don't have a picture of the guy. >> can watch this and other programs on line it booktv.org. >> with the current health care legislation constitutional court cases being heard by the supreme court next week booktv will be airing several other programs related to health care. at 1:00 a.m. easter and we will bring you linda greenhouse giving a short introduction of the supreme court. alice mcgillis is on discussing a series of essays written by "the washington post" on the recently passed legislation. ..

a >> >> [applause] thank you very much. it is seth zero to be here in this beautiful stark hall.

this is a very short introduction into the u.s. supreme court. not the type of book to do reading from. it is not bad dramatic novel but it is said dramatic story if you think of the supreme court over the century. many are probably hear because the supreme court three days of the health care case argued on the court is more visible than it has been for quite some time. of baidu one to talk about and frame the story of the supreme court. in 19 the book, i try to put myself in the position i assume many if you are myself before i a attended law school spending next 30

years writing about madonna databases, interested in public affairs our civic life who does happen to be an expert on this topic. what is a person like that to need to know to really get to a personal leave satisfying handle on the court? as a framework i propose to make us series of observations and i have some conversations among us. if you step back and think about what jumped out at me was the extent to which the

supreme court is the author of its own story. that was it given much to be given with. rivalry the first sentence article iii. >> the supreme court should be divested in the supreme court and an inferior court as congress may establish. that is it. it talks about the jurisdiction and so on but have many, many unanswered questions including no mention of the chief justice in article three. we only and for that to the cousin article to the right to preside want to presided over the impeachment trial

of the united states remember renquist did that with the clinton impeachment trial and later asked what it amounted to he said i did nothing in particular and i did it very well. [laughter] cities of the chief justice or undefined. much about the supreme court initially was undefined. and had to create itself. not in a straight line progression but through the case. that in the early years had very little discretion. and these days what it chooses to decide. that was a choice. most appellate courts have to take what comes.

they act as a court of review, the appeal and error correction. that was the supreme court initial fate but william howard taft, the capstone after his presidency was becoming chief justice and he thought the court would benefit from the ability to create its own pocket and not take every case. under his leadership and urging congress passed the judges' bill because all of the judge's behind the effort to give the court discretion over its stock it. that is where we are today. we have a supreme court that is capable of and does said

its own agenda to set the legal agenda for the country. it is a very powerful tool that members of the court have to project their own legal agenda onto the canvas of the country by means of the dock it. it is not health care. health care case, really the court did not have to much discretion to decide to resolve the dispute if congress has the authority under the commerce clause for the individual mandate because the lower court's laurentiis you. if you have a federal law and has been declared unconstitutional it is almost certain to be granted

review even though as a technical matter it does not have to take it. it would be surprising did it not take that but one case the court did not have to get into all but it it is not argued until fall but it is getting back into the business of the constitutional -- constituti onality if affirmation -- affirmative-a ction. remember against the michigan law school? justice sandra day o'connor wrote the majority opinion said this is a tough issue but we decided and as far as we are concerned it is

resolved for the next 25 years. we hope that will not be necessary. we are finished. mimas is not that good but to nine years later refined the court has undertaken affirmative-action and admissions that is the case argued early next fall and decided sometimes bring of 2013. let's assume five justices some who were not on the court who were not happy without outcome had decided they would get their hands back on it. the threat to this something that can unsettle the has been unsettled up until now.

that is the power the koran has to issue setter framed as legal constitutional issues. the court's agenda setting function. one thing that is intriguing over the years, the court and had to they know what the country once common need? what are the facts at their command? favor leed lives for not as isolated as people assume. they drive their own cars cars, upper-middle-class daily lives as many others.

but there some isolated. the court cannot send fact finders out to come up with a better understanding that from 2008 to one caisse check me as it to one diggs it -- exemplifies the vulnerability in this situation it is captive the friends of the courts to case called kennedy vs. mexia and a. the question is whether it is constitutional for a the state to oppose the penalty of rape of a child not

leading to murder. nine deaths related capital crime. it was challenged under the eighth amendment. eighth amendment jurisprudence what is unusual to what others around the world about capital punishment for juvenile capital punishment for mentally retarded defendants. the court did the show found that few states have this death penalty statute to. justice kennedy says look at the federal government.

many times over the years and congress has never added this type of death penalty. so declaring that capital punishment not murder of a child but after the case was decided the court learned in fact, congress had added a death-penalty under the uniform code military justice 80 months before the opinion came down but nobody told the justices. the solicitor general represents the government was unaware and did not file a brief indicating the government's interest in the state of louisiana was not aware, a coalition of states

were unaware. nobody told the justices. a came to light only because a military lawyer who was very familiar putting out on his blog after the opinion came down. this came to my attention i could write about it with "the new york times." the attorney general of louisiana who do not bother to return my phone call the day before i filed the motion to get the court to reopen in that case. in the remainder of the summer 2008 ultimately the court stood by the decision put to address it in a footnote. but we have an extremely

powerful group of nine people really know what we learned from our own observation or was somebody tells us. who are these justices? it is interest dain to look back over time to see how expectations have changed. among the justices were framers of the constitution, over time that continued. even as recently as of warren court who was never a judge and then 1948 his

court was filled with former cabinet officers. and robert jackson, it seems strange to us. since elena kagan came on the court it is no longer true but levying up to the nomination we had a supreme court all of whose members were a federal appeals court judge. the framers would find that remarkable pace of the supreme court drawn from the heart of political life. last that held herself out was justice o'connor who was majority leader of that arizona state senate. heard jurisprudence was unique on the court at that time and it had to do with a

pragmatic cents of getting down to it to get things done she was nurtured by the fact she was an elected office holder. there is a change in religion. it is quite remarkable when justice stevens retired, we now have a court six catholics, three jews. of the framers were probably rollover in their graves. it is a testament to religion has gotten celly in the current campaign but geography for a long time was the case the senate

agreed there should be a geographic balance. at has fallen away it is more of a homogenous country. right now we have a court people from the mid-atlantic. no have controversy of race and sex. i was at the core yesterday as it turns out listening to arguments there was a lively argument in a criminal case where the judge in the jury has the power to lead to a criminal find as opposed to the prison sentence.

the lawyers had 94 questions within "60 minutes" and the women on the court were asking one question after another. i thought this is the new normal. it is no longer a surprise to hear a woman's voice from the bench. when i first heard justice o'connor would reagan named her to be the first woman on the court it was startling to see o'connor sitting there. maybe one year before her nomination there was a broadway play that a female supreme court justice was a joke. it was a comedy.

now the new normal. some of this relates to the confirmation process. it is almost a truism for the breakdown of the confirmation process. if you watch the supreme court confirmation hearings, where senators ask the canned questions and don't expect to get or would be shocked if they did because the nominee is trained within 1 inch of life doing what the law tells me to do. we all know it is not. there's a great deal of

discretion that yet to it is play acting to go through. what goes on without process? you. i'm has emerged. i covered many confirmations from sandra o'connor and the last one i covered was john roberts. and with a fascinating work battle 1987 the president does not seek the power of the supreme court nomination , there is not a problem. steven briar risk peter ginsberg made by clinton in

the mainstream of centrist democratic thought to work confirm to within weeks within a huge margins. my observation told me confirmation is a piece of cake. that doesn't have been. we have sonya sotomayor a wonderful personal story and higher achievement 17 years as a federal judge and what happened with her confirmation hearing? she was confirmed by all of that garbage of one speech she had made and that y s90 now remark wrenched out of

context but was very heart felt. opposition research that dominated the process. a mere handful ended up voting for her. elena kagan, highly accomplished mainstream nominee, was bothered by the whole business of harvard law school not allowing military recruiters to be lawyers in the military. as if she made up that policy. it was a standard policy of the law school trade association. all were supposed to behave that way. it was 90 elena kagan

creation even fewer republicans voted for perth and soda might your one year earlier. so in the landscape of the senate confirmation is a battleground. both of the vacancies these are nine game change years. with those vacancies filled will not change. but one day it will. eventually all we'll leave but i have no idea when but a justice who holds a central position the day

that nomination the game changer will have been. and have been when the was powell retired. rehab the titanic battle still going on today. it informs how we think about the nomination process. i personally hate to think of what will occur when that vacancy occurs. talk about the work battle, recent political events should make us rethink the take away which was a definition of the political mainstream of which a nomination would occur or run into trouble.

the mainstream as defined defined, it defeated they believe it was the right of privacy and gave rates that were not enumerated? for instance he thought the griswald case which was discerned in the constitution the right of married couples to use birth control. that was generally take an to be assigned the matter what the nominee thought at least you have to except griswald against connecticut

but now with the flap of contraception you can wander if that definition is changing. what happens next with the broken highly politicized confirmation process? there is a debate going on in and i talk about it to in the book over but -- over whether life tenure is a good idea the framers provided for that. this is penetrate protector of independence. but one can make a case it is part of what is hurting

us in the confirmation process. not for the obvious reason that they tend to stay alone time you confirm somebody like john roberts at age 50 who could be there for the years later when the presidential administration that appointed him is gone justice stevens retired at 90. that is the obvious issue but less obvious is that you never know when there is a vacancy. the filling of each vacancy is because you don't know if this president gets another one. jimmy carter did not have the same goal vacancy occur.

there is a random s a ratchets up the significance so there is a few ideas floating around. to get rid of life tenure is a constitutional amendment. that is not a smart way to proceed. so there should be a functional 80 near-term once somebody has served 18 years the all remain on the court but those who have served their 18 year term is a senior justice. of the federal court of appeals stayed as you like

the you have to work halftime are put to the the substantial work to keep your pension up to date on your cost of living but to yet have to work full-time and remain life tenure. that is far from being accomplished but it is a reflection marriages comforted by what pc with the process. look at other countries were courts around the world coming these countries have adopted many supreme court of since. let the one thing no other country has adopted is life

tenure. the term appears, age limit limit, the other interesting features some courts don't publish the cent-a-share opinions. field opinion it speaks for the court but we do not see the dissenting opinion and then just to keep it to them sells. that is something quite different on this supreme court. with those observations i should turn it over to you. i'm happy to have any conversation you would like to join me. [applause]

>> good evening. thank you for your presentation. the current supreme justice ginsberg visited egypt and in my opinion mated vice to the directors of the constitution to look at the canadian and south african constitution umbro i would your comments as a supreme justice who does not even believe in our constitution how can she remained a justice?

it has not been discussed in the media. >> i have trouble hearing you. talk about justice ginsberg? >> paradise to the drafters of the new constitution in egypt to use canadian and south african. it is not hilarious. >> what he is referring to talk the justice gave in egypt and her remarks have been taken great the ad of context and distorted. she was not running down the less constitution but suggesting there is room for improvement.

in her own career has brilliantly managed to expand the meeting of the quality of know anybody who believes in that more. i take issue with the promise of your question. >> thank you for wonderful and rich talk. you could probably go on longer but you made an interesting comment of the justices themselves they are who they are. without quoting, how much is there a politicalization of the accord?

as nbc's so much bickering about the issues of conception and morality but what is your sense of the politicalization? do you think justice thomas has rigorously refuse to ask questions is a good thing? >> host: you raised a profound question and a specific one. >> guest: politicalization of bloomberg polka amount a few days ago to ask people if they thought the health care decision later this spring would be

just -- influenced by their politics or resolve the case based on a lot? three-quarters responded politics. i found that depressing. i don't think it is true. i think the court will uphold the law regardless as legislators they would have voted for it because the court precedents under the commerce clause to define the scope of congressional authority requires a court to uphold its. i don't see the supreme court as politicized you do

have the agenda but the affirmative-action case i highlighted that because it was such an unnecessary act that puts the court gratuitously into the spotlight to have the prospect of institutional self harm. but the court is not politicized in the way how we think of our landscape right now. with justice thomas cannot ask a question in the last five and a half years coming it is very strange behavior. oral argument in is likely. it is a great scene.

those who have not had a chance to witness the accord is open. they are not on television. you can read the transcript it is on the website the health care arguments the audio is put out every day. for them to decide i will not play? i will not participate? it reminds me of a little boy who says i will hold my breath and nobody calls his bluff. he is still standing there. after five and a half years you give reasons why you don't ask questions you are not consistent more coherent, how do get out of

the box? when he used to they were eliminating and useful. i don't get. >> i want to know if you think will die the day shiver -- diversify and any other way in the future? are there any of their problems that use the other than confirmation aspect. >> yes. the court will diversify for their. there have been some courts the have a majority of women. in the is to look more like

america. politics drive it in that direction. and then it is good for the country. to ic any problems? they have a serious the doctrine driven in certain directions the question now is you will follow to re logical conclusion right over a cliff. i am sure you are familiar with citizens united but indication this court takes

its view of the first amendment to fester raid rather far from what the framers would have seen from the of dimensions. one case i think is headed to the court now about whether the government has the power to order cigarette makers to put graphic labels on those packaging. one judge denied a correctly interpret say this requirement was a violation of the first amendment rights of the cigarette makers as a form of compelled speech. that is interesting. are regulated product. congress gives fda the right

to regulate aspects of cigarette marketing and congress determines it is the inappropriate deterrent to and how the first amendment got into the equation is interesting. if there is any problems today, they need take a deep breath. looking at where they rutted to see if they want to push along. >> i'd like to ask a question of judicial ethics. it brought the court down to your people question the

legitimacy and how the codes should be applied to the supreme court and five and why not? >> that is the issue largely misunderstood. not buy you as a demagogue but with the judicial ethics rule don't technically apply to the supreme court could justices regarded as bound by them. just like other issues but the recusal issues the court has explained that policy and it is the same as the

policies that bind all other federal judges says a single share of stock requires a judge or justice under the policy they adopted from the case involving that corporation getting to the margins it is another reason for recusal, speaking s a citizen i am not a fan of judicial recusal. if you get to into a situation like in san francisco who presided over proposition viii. he is a game man. he has a conflict of interest. people on the left tried to get justice thomas and justice scalia reduced

because they attended meetings sponsored by those on the right to. i think we need to be really careful about setting in motion rules that led disable the court of from be out in the world. it may surprise you but i think justice scalia was right when he declined to recuse himself on the basis have gone up contain with take -- to cheney when the vice president office was before the court and justice scalia presented himself with a 20 page opinion why french chef without high government official is means

for recusal over history history, and many supreme court justices 1/2 to because you don't get to be a superior court justice unless you know, people in high places. i am not an expert on ethics but quite comfortable feeling that the members of the court make the ethical calls i wish they would make. i have a follow-up question about the politics of judicial restraint progresses argued for restraint striking down new deal laws.

after fifties and sixties it was a conservative argument. we'll receive that become a liberal call or does it depend where you stand and reuse it or any coherence to that issue? >> there is not a lot of coherence. and activist judge is one who comes out with an opinion that one does not like. there is an interesting conversation in conservative circles. you may see the op-ed from the u.s. court of appeals from the fourth circuit judicial activism he is an

old-fashioned conservative on with the invention and very critical of scalia's opinion that declared the second amendment gives people writes that on a bone -- monegan. the judge said that is right wing activism. we have a all sides and the health care case is a chance for the conservatives on the court to disavow the activism to have justices substitute their own policy judgment for what it is a clear command.

it is an interesting test. more that people like good tokens then look of course, -- across the entire spectrum to call undue activism is interesting conversation to be having right now. >> , of to the microphone. c-span is recording. >> >> thank you for your expo's say. is very helpful.

talk about kennedy vs. louisiana for justices were unaware of allah i may have missed the tiny but would that not have come out in oral arguments horse somebody slips of paper? i am being facetious but to what was missing that they would not be aware of that kind of legislation? the was interesting to hear you say some founding fathers would turn over in their graves we say the more conservative people say about the right to bear arms because we can see that from two sides. the intention of the framers

, is called into question bit yet to how to remove find from that to in its purest form without getting wrapped up with the evolution of change? >> to interest dain questions. how did they miss the fact that they pass a lot on this subject? is on the uniform code of military justice nobody thought to look there. not a federal case but state law and then typically the solicitor general's office would survey all the

council's to stay here is a new supreme court case should be filed a brief? anything we need to know? i could not track down the missing link but they did not bother questioning the pentagon. in retrospect of course, of military justice system there is a lot to say but it did not occur to anybody. think nobody is watching the supreme court docket that have nothing to do with the military. obviously those that came in as friends of the court, it

fell through the? it came to my attention and then how many others to not come to anybody's attention? so then you ask about the debate over regionalism. the second amendment case was interesting because both justice the leah and justice stevens for dissent both fought the case on grounds of original was some. justice stevens endeavored to be justice scalia on the grounds to muster evidence some people found compelling

as to whether the framers means second amendment as individual or only with a militia? that is at its height all nine justices fight it out. we don't really know. with history is ambiguous. we could stand here all day to call and experts on the second amendment with no answer. justice breyer had a separate opinion. to say this is not a productive way to go about this. if we go back to the framing we need not to get hung up on the text, the, uh, this strange way it is worded but

to what is that all about? colonial and boston had a law against gunpowder in private homes. it was a safety%private homes. it was a safety hazard. said they have a safety concern would is the reason why the district of columbia the strictest gun ban in the country? it is for public safety. after seeing done violence on the streets they decided they needed the handgun ban. prior says to uphold that is consistent with the original

intent understood from a pragmatic not grammatical position. he wrote for himself although that is a workable constitution it is a debate going on and it is productive. it is interesting injustice goalie and justice thomas remain the only original list on the court the other justices have not signed up for that. they are not stuck there. history is more important in court arguments stand recent

years because it to less -- justice ghalib is forced on the matter. but original loathsome alone will not win the supreme court argument. people have to come up with other arguments. >> >> first i have technological issues congress vct fifth fight where people got have the technical know-how voting on the legislation you could see this on the supreme court with life tenure as technological things are being lost and couched as a different issue also you say

the court is not politicize currently in your opinion. >> i am having trouble hearing you. >> but politicizing the court to one way it is politicized they come back so quickly to the affirmative-action case do we see that back and forth it will snowball every time the court shifts they will revisit the issues? >> that is a good question. it is possible. there is a challenge now and the meaning of our civil-rights statutes. but other aspects.

the role of precedence with a common-law system one caisse who leads to another which leads to another to have a fundamental president or you twist in the wind. we are glad brown vs. board of education overthrew plessey but you have to have good reasons to go back to a case that was fully argued it fair the reason they. and reopen. good reasons to go back to a case that was fully argued it fair the reason they. and reopen. i was pretty surprised it would take the texas case under review and it is worth watching the courts be