minister. >> throughout the weekend and saturday at noon eastern literary life in columbus, ohio, with booktv and see spend local content vehicles on c-span2. >> now on booktv linda greenhouse, former supreme court reporter for "the new york times," examines the inner workings of the high court. she explores the day-to-day operations of the cord from out a case makes it to the court to the duties of law clerks and the responsibilities of the chief justice. this is just over an hour. >> thanks very much. it's a thrill to be in this wonderful, beautiful, historic haul. so as you can see this is a very short introduction to a very big subject, the u.s. supreme court. it's not the kind of book that an author is going to do a

reading from. it's not a dramatic novel, but it's a pretty dramatic story actually when you step back to think about the supreme court over the centuries. and i know many of you probably are 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 and american life than it's been for quite some time, and i'll be happy to chat about that and answer your question but want to talk a little bit, 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 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 some 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 will elaborate on, and then i will 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 said i wasn't going to read but i will be the first sentence of article iii of the constitution, which says 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, the 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 chief justice in article iii. we only infer that 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 very well. so the duties of the chief justice are undefined. and much about the supreme court initially was undefined. so it would have 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 do. and the cases of these days that it uses to decide. and even fat was a choice by the supreme court. most appellate courts today in this country, have to take what comes. and so they act sort of as courts review, courts of appeal,

ports of error correction. that was the supreme court's initial fate, or so it seemed, and william howard taft, the capstone after his presidency was becoming chief justice of the united states, and he sighs this up in he thought the court would greatly benefit from the ability to write his own ticket, create his own pocket, not take every case that comes along. so under his leadership, 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, is

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, one example, and it's not health care, the health care case really the court i was taken have too much discretion as a practical matter in the citing to resolve the dispute over whether congress has the authority under the congress clause to create the individual mandate. because the lower courts are in dispute over that. so when you have a federal law, a federal court of appeals has declared unconstitutional, that's almost certain to be granted review by the supreme court even though it's a tactical matter. the court doesn't have to take.

it would've been really, really surprising have 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 get into at all, and you may not heard much about it because it won't be argued until next fall, but the court is getting back into the business of deciding the constitutionality of affirmative action in higher education admissions. and you might say, what's that about? remember in 2003 when the court upheld in the grutter case the affirmative action admission plan at 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 decided it and as far as we're concerned it's now resulted in the next 25 years we hope in 25 years from now affirmative-action in education will not be necessary but that's

it, we are finished. so this being -- i think is 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 is going to be argued really next fall, and decided sometime the spring of 2013. and it's an example, i mean 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 decided that they're going to get their hands back on it. and so i think the threat there is something that can't really unsettle, something that has been fairly well so 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 us thinking, talking, responding to issues that come friend is legal constitutional issues, basically whether we want to or not. the court's agenda setting function. so one thing that i 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 that their command question, they lead lives that are not as isolated as many people assume. they live in their own homes, they drive their own cars to work and they have the same sort of upper-middle-class daily lives as many other people. but they are at least somewhat isolated in the court doesn't have the ability to send

factfinders 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 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 bring to it, and that was a case in louisiana, 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 non-death related capital crime.

and louisiana was one of a handful of states that had this law on the books and it was challenge under the eighth amendment. and the courts eight amendment jurisprudence acyclic to find out what is 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 had, congress has revisited the federal criminal code many times over the years, and congress has

never added this kind of death penalty to the federal criminal code. so the code -- court declared that capital punishment for the non-murder rape of a child was, violate the eighth amendment -- just one problem. 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 and the department of justice who represents the government before the court was unaware of it, have 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 they came in to the case on behalf of of louisiana, they were unaware of it. nobody told the justices, and it

came to light only because a military lawyer blogger who is very familiar with the death penalty in the military put it out on his blog a few days after the opinion came down. well, this came to my attention and i had occasion to write about on page one of "the new york times," and this created quite a ruckus because the attorney general of louisiana whom we -- 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 it and it was a whole bunch of motion practice 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 and if it do. 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 now, just like the rest of us, no one -- we

only know what we learned from her own observation or what we read or what somebody tells us. so that raises the question, 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 filled the seats on the supreme court have changed. back in early days of course these were among, among the justices were framers of the constitution, leaders of the new country. over time, that continue for quite a while and we, for instance, even as recently as the warren court, warren himself never been a judge. he was three-time governor of california. he had run for national office or 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, that seems strange to us today because today, welcome since indicating came on the court, it's no longer true, but leading right up to elena kagan's nomination for the first time in american history we have a supreme court, all of whose members had as the most recent one on the resume, having been a federalist judge, the framers would've found that remarkable. ..

>> there's, obviously; been a change in religion on the court. it's quite remarkable though. when justice stevens retires two years ago, he was the last protestant on the 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, but i think it's a testament to the fact that religion, well, of course, it's gotten pretty be salient in the current presidential campaign, but until then anyway was just not such a salient feature of american life. geography, it was often -- for a long time it was case that presidents felt and the senate agreed 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 that's fallen away because it's become much more of a homogeneous country in that sense. we don't necessarily think of individuals as 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 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 facts that lead to a criminal fine as opposed to a criminal prison sentence, and the lawyers who were arguing this case 30 minute toss 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 just asking one question after another, dozens of questions. and i sat there thinking, you know, this is the new normal. with three woman on the court, it's no longer a surprise to hear a woman's voice from the bench. and when i first heard justice to connor on the bench back in 1981 when president reagan named her to be the first woman on the court, i mean, 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 now, as i say, 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 dispiriting where senators ask these kind of canned questions, and they don't really expect to get -- i think they'd be shocked if they actually got substantive answers was the mom -- 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, as if judging was some kind of of robotic, paint-by-numbers exercise, and, of course, we all know there's that. 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 confirmation process? well, seems to me a new paradigm has emerged over the last couple of years. i used to have a comfortable rap about this. i covered many confirmations from sandra o'connor's up 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 begins, but both nominated by -- ginsburg, both nominated by bill clinton, both in the mainstream of centrist,

democratic thought 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 sonia sotomayor with a 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, you know, 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 latino remark kind of wren. ed out of contact out of what had been a speech that was very thoughtful and heart felt, not a

sound bite. opposition research that turns up something like that and dominated her confirmation process, and 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 that policy up when, in fact, it was the standard policy of the american be association law of w 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 not an elena kagan creation. but that have wrapped around her neck, and even fewer republicans voted for her than had voted for

sotomayor a year earlier. so the paradigm has, obviously, changed, and the landscape of a senate confirmation is going to be a battle ground. 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 say can is si left by david souter and john paul stevens, these were not game changers. those two vacancies being filled 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 this 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 till going on today. -- still going on today. it really never ended, and it kind of informs how we think about the nomination process so i just, given what's happened in the last couple years, i personally 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 should make us think about 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 defined

coming out of the bork battle, remember, he was defeated on the issue of did he believe that the constitution contained a right to privacy, 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 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 this, that or the other provision of the constitution, at least you have to accept griswold against connecticut as being correctly decided. well, 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? there's a debate going on kind of underneath the radar, mostly 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 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, for instance, in the case of john roberts at 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 hess 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 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 they all remain on the court for the duration of as long as they want to stay, but the ones who already served their 18-year term become, in effect, senior justices. and kind of the same thing happens on the federal courts of appeal. you can stay as long as you like, but you can choose to somewhere 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 up-to-date, but you don't have to work full time, and you retain your life tenure on the court. so that's a thought that i think is, you know, far from accomplished, but it's being discussed, and i think it's a fact that we're a little discomfited by what we see. it's interesting when you look at ore countries' courts around the world, including constitutional courts of old democracies and 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 x. if somebody dissents, they just have to keep it to themselves. finish -- that would be something quite different on this supreme court. so i think with those observations, maybe i should turn it over to you, and i'd be happy to take your questions. i see there's microphones. and be happy to have any kind of conversation. that you'd like to join me in. thank you. [applause] >> good evening.

thank you for a wonderful presentation. >> will you talk into the mic? oh, okay. i have to keep it close. thank you for your presentation. the current supreme justice ruth ginsburg and her visit to egypt, in my opinion, made an unjustice even not a suggestion, advice to the directors of the egyptian new constitution to look at canadian and south african constitution. i was just wonder your comments as a supreme justice opportunity even believe in our -- doesn't even believe in our constitution, how she could be a, still remain a justice. and your advice, well, not even

a suggestion, haven't really been discussed in the media. >> i had a little trouble hearing you because it was a little distorted. you're asking me about justice -- >> ginsburg? >> justice ginsburg? >> right. and her advice to drafters over new constitution in egypt to use canadian and south african --? >> oh, oh, oh. >> i mean, it's -- i couldn't even find it hilarious, i find it as -- >> okay, yeah. what he's referring to is a talk that justice ginsburg gave in egypt. she was on a state department mission, and her remarks have really been taken greatly out of context and december torted, and she certain -- distorted, and she certainly was not running down the u.s. constitution. she was suggesting simply that there's always room for improvement, and she's somebody who in her own career has brilliantly managed to expand

the meaning of equally under the constitution. and i don't know of anybody in our public life who believes more deeply in the constitution, so i'll have to take issue with the premise of your question. >> thank you so much for a wonderful and rich talk. there are so many issues that i think you've raised that, um, i think you could probably go on for longer. but you made an interesting comment about the justices themselves who are, they are who they are. i guess what i'm 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 the our country about these issues

of contraception and morality, whether a person gets health care, so on is and so forth, but what's your sense of the politicization. and maybe perhaps another question. do you think justice thomas who has rigorously or steadfastly refused to ask questions, do you think that's a good thing? >> okay. you've raised a kind of profound question and then a very specific one. on politicization, so there was a bloomberg poll that came out a few days ago that asked people whether they thought the health care decision when it comes later this spring will be influenced by the justices' politics or whether they will resolve the case based on the law.

and three-quarters of the people responded to that poll said politics. and i just found that depressing. i actually don't think it's true. somebody's bound to ask me what i think about the health care case, so i think the court will uphold the law regardless whether as legislators they would have voted for it or as citizens whether they like it because i think the court's precedence require the court to uphold it. i don't think they have a choice, and i don't think they'll feel that they have a choice. so i don't actually see the supreme court as a politicized institution. i think there are some justices who have agendas. i think the grant review in the university of texas affirmative action case, the reason i sort

of highlighted that is because it was such an unnecessary act that i think does put the court gratuitously in a political spotlight and has the prospect of institutional self-harm, i think. i think that was just a misjudgment. but i don't think the court is politicized in the way that we think of that term when we think about our kind of dispiriting attitude we have now. as for justice thomas and his not having asked a question for the last fife years, not that i'm counting -- [laughter] it's strange, it's very strange behavior. i was at the court yesterday, and oral argument is a really -- i mean, a great scene. people who haven't had a chance to see it, you know, court's

open. they're not on television, but they're open, and people should go, or you can read the transcript every day, or you can download the audio of every argument. the court puts it up on the web site on a weekly basis, or i should say the health care arguments, the audio's going to be put out every day. so, you know, for a member of the court to just decide i'm not going to play, i'm not going to participate, um, you know, i'm not inside his head. i think it's, it kind of reminds me of, you know, a little boy who says i'm going to hold my breath and stand in the corner, and nobody calls his bluff and he's still standing there. after five and a half years when you've given all kinds of reasons why you're not asking questions and they're not quite consistent or coherent, how do you get out of that box? when he used to ask questions, the questions were perfectly fine and ill -- illuminating and

useful. so i guess that's my answer, i don't quite get it. >> okay. um, i have two questions for you. first, i want to know if you think the court will change, like, will diversify in any other way. >> the court will --? >> diversify in any other way in the future and, second, um, is there any other, are there any other problems that you see with the court other than just the confirmation aspect? >> any other problems than the --? >> the confirmation aspect. >> yes, i'm sure the court will diversify further. you know, there have been some state courts in the country that have a majority of women, for instance. i think the court needs to have more -- the court needs to look more like america in all kinds of ways, and i think it will.

i think politics will drive it in that direction, and, you know, i think that's something that would be good for the country. do i see any problems at the court? well, i mean, they've got, they've got areas of doctrine that have been driven in certain directions that the question now, i think s whether they're going to go right over -- follow where they've been going to a logical conclusion which is kind of right over a cliff. for instance, i'm sure you're all familiar with the citizens united case. so you can debate the merits of that case one way or the other, but it's an indication that this court takes a view of the first amendment that i think has strayed rather far from

certainly what the framers would have seen as the dimensions of the first amendment. for instance, this is a case that i think is heading to the court now about whether the government has the power to order cigarette makers to put very graphic warning labels on the packaging, and a federal district judge -- i think not necessarily incorrectly interpreting where the supreme court is going -- said that this requirement was a violation of the first amendment rights of the cigarette makers because it was a form of compelled speech. so that's pretty interesting. you know, 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 an appropriate deterrence to smoking and so on. and how the first amendment got into this equation is pretty interesting. so, you know, you're asking me if the court has any problems today, i think, you know, they maybe need to take a deep breath and take a look at where they've been heading in some of these areas and decide whether they want to keep pushing it along. >> thank you for your speech. i would like to ask you a question about judicial ethics. the supreme court or at least certain members of the supreme court have, i think, 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 this supreme court and why, if you don't think so,

why they shouldn't be held to a higher standard. >> yeah. thank you for asking that because i think that's an issue that's been kind of largely misunderstood. and a little bit, um, demagogued. i don't mean by you, but, i mean, it's 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 -- well, in fact, the justices are bound by all the financial disclosure rules just like all other judges. on the recusal issues which is where this comes up, they've -- the court has explained its recusal policy, and it's the same as the policies that bind all other federal judges, for instance, a single share of stock in a company requires a

judge or a justice under the policy that they adopted to recuse, you know, from a case involving that corporation and so on. when you get to the margins of, you know, where it's not kind of black letter reason for recusal, personally just speaking as a citizen i'm not a big fan of judicial recusal. for instance, you get into a situation like the motion to recuse judge von walker of federal district court in san francisco who presided over the proposition 8 trial because, oh, my god, he's a gay man. he had a conflict of interest. you know, what people on the left are trying hard to get justice thomas and justice scalia recused from a bunch of stuff because they have attended meetings sponsored by folks on

the right. and i think we need to be really careful about, um, setting in motion rules would kind of disable the court, the justices from being out in the world. actually. i mean, i have to say, it may surprise you, but i think justice and scalia was quite rit when he declined to recuse himself in the, on the basis of having gone duck hunting with dick cheney when there was a case involving the office of the vice president that was before the court. it didn't have anything to do with cheney's personal liability, and justice scalia explained himself with a 20-page opinion as to why friendship with a high government official if this became means for recusal over history, many, many supreme

court justices would have had to recuse themselves from cases because, of course, you don't get to be a supreme court justice unless you know a few people in high places. so i'm just personally against speaking as a citizen, i'm not an expert on ethics, i'm quite comfortable about just feeling that the members of the court are making the ethical calls that i would wish they would make. >> hi. i have a follow-up question in a sense touching on citizens united and cases like that. about the politics of the concept of judicial restraint. for much of the 20th century, it was progressives who argued for judicial restraint when the courts were striking down new deals laws. then after the 1950s and '60s, this was a very powerful conservative political argument. wonder where you think that argument stands now, will we see it becoming a liberal call

again, or is it something -- does it depend on where you stand, depends on where you sit, or is there any kind of coherence to how people view that issue? >> yeah, there's not a lot of coherence. i mean, i think an activist judge, quote, activist judge is a judge who's come out with an opinion that one doesn't like. and there's some really interesting conversation going on now, i think, in conservative circles about this. you might have seen the interesting op-ed in the times a few days ago by judge jay harvey wilkinson of the u.s. court of appeals for the fourth circuit, and he's talking about judicial activism of all kinds, but his focus really was on judicial activism on the right, and he's a conservative. he's an old-fashioned conservative. and he's discerning on the right kind of the invention of, well,

for instance, he's been very critical of justice scalia's case in the heller case, the second amendment case that declared that the second amendment gives people individual rights to own a gun. judge wilkinson regarded that as a, you know, an example of right-wing activism. so, you know, we've got it on all sides, and i think the health care case is really a chance for the conservatives on the court to disavow the kind of activism that would have judges substitute their own policy judgments for what i think are the pretty clear commands of the constitution's text in history and the court's own presence dense. it's really an interesting test for them, and i think that

people like judge wilkinson or, you know, just individuals look at the court across the entire spectrum and be willing to call out undue activism when they see it, i think it's an interesting conversation to be having right now. you want to come up to the mic, that'd be good. >> i can speak quite loudly. is that all right? >> i think, actually, you know, c-span is recording this. >> thank you, first, for your expose. it was very helpful. when you were talking about kennedy v. louisiana and the fact that the justices were unaware of a law that congress had passed, i may have missed

the timing of that, but would that not have come out in oral arguments or somebody calls one of them or slips them a piece of paper or something? i mean, i'm being facetious there, but something -- what, what was missing there that they would not be aware of that kind of legislation? that's one question. then the other one is, it was interesting to hear you say some of the founding fathers would be turning over in their graves, and certainly, perhaps many of us are saying tsa just what the -- i shouldn't say this, but the more conservative people are saying about the right the to bear arms, etc. so it's interesting because we can see that from two sides; what the intentions of the framers of the constitution, that issue -- this is a second question, of course -- is being called into the question that's being raised, and yet how do we

move on from that or apply it in its, in its purest form without getting ourselves all wrapped up in something and not recognizing change and the evolution of society and time? >> right, right. um, two interesting questions. so how did the court -- in kennedy against louisiana, how did the court miss the fact that congress had recently passed a law on this subject? i think it was because it was attached to the uniform code of military justice, and nobody thought to look there. so when -- now, it came up as, it wasn't a federal case. it was a case involving a state law. so the court agreed to review it, and typically what would happen then is that the solicitor general's office in the department of justice would, basically, survey all the different general counsels, all the different well related units of the government to say, you know, here's a new supreme court case, should we file a brief

representing your agency's interest, you know, is there anything in it that we need to know? and i never could track down exactly what the missing link was, but i think infriend cially they didn't bother questioning the pentagon. because you look at -- i mean, now, in retrospect, of course, the military justice system we know right now from these horrible current events, i mean, a lot to say about military justice. but i think it just didn't occur to anybody, and i think nobody in the penalty gone general counsel's office is watching the supreme court's docket for things that seem on their face to have absolutely nothing to do with the military. and, obviously, the state of louisiana and the states that came in as friends of the court on its behalf, they didn't think of the military. so it just fell through the cracks. and, you know, they say 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, you know? i don't, i don't know the answer to that. so then you asked about the whole debate over originalism. and, of course, this heller, the second amendment case from 2008 was really interesting because moat justice -- both justice scalia for the five in the majority and justice stevens for the four in dissent, they both fought that case out on grounds of originalism. justice stevens, kind of remarkably, i think endeavored to meet justice scalia who we know is a self-described originalist on the ground, on his own ground and tried to muster evidence that some people found pretty compelling but not five justices as to whether the framers meant the second amendment to apply to an individual right or only a right in connection with membership in a militia.

so that was originalism sort of at its height when you had all nine justices kind of fighting out originalism. it came out, it's like a rorschach. we don't really know. the text is ambiguous, the history is ambiguous. and, you know, we could stand here all day and call in, you know, experts on the second amendment, and we wouldn't get any agreement. so, you know, so what to do about that. so justice breyer had an interesting separate opinion in that case, and he joined the stephens dissent, and then he also wrote separately to say, look, this is not a productive way to go about this. we need to look more pragmatically. if we're going to go back to the framing, we need not to get hung up on, you know, text and where the comma was and, you know, the spring way the second amendment is worded -- the strange way the second amendment is worded. we need to think what were the framers thinking, what was that all about. and he said colonial and

immediate postcolonial boston, for instance, had a law against keeping, like, ammunition, gun powder in private homes. and why was that? because it was a safety hazard, because you could have a fire and buildings would burn up the whole city of boston. so they had a safety concern. he said, what's the reason why the district of columbia enacted this strictest gun ban in the country? for public safety. they, you know, seeing gun violence on the streets and lots of, you know, obviously -- not to belabor it, decided that what they needed was a handgun ban. so breyer says, you know, we're -- to uphold the d.c. handgun ban is to be consistent with the original intent understood from a pragmatic, not a grammatical, you know,

position. well, you know, he wrote for himself, and that's his view of a kind of a workable constitution that works for today, and he has written a couple of books that are quite interesting fleshing that out. so it's, you know, it's a debate that's going on. it's a product i one. productive one. and i think it's interesting that justice scalia and justice thomas remain the only true kind of self-identified originalists on the court. other conservative justices, chief justice roberts, justice alito, they haven't signed up for that. i mean, they'll, they'll make obey sans to originalism, but they're not stuck there. so history is more important now in court arguments than it has been in recent years because of the force, justice scalia's force on the matter. and he's, obviously, a vote that

people want to get. but originalism alone is not going to win the supreme court argument. people have to come up with other arguments. >> hi. the first question i have is about technological issues. like, so in congress we've seen, like, the fight over sopa and some of these type of issues where some of the people don't necessarily have the technical know how who are actually voting on this legislation, and this is something you could probably end up seeing on the supreme court with, you know, life tenure and things like that where they might not, you know, where the technological things are getting lost, and it's being couched as a different issue. so i don't know if that would be something you could address, do you think that's something that could somehow be addressed? and also, you're saying the court's not politicized currently in your opinion, but -- >> i'm having a little trouble

hearing you because the mic is very loud. you're talking about, you know, politicizing the court, whether or not it's politicized. i think one way it is politicized is that they can come back, they're coming back so quickly to an affirmative action case. do you think we're going to continue to see that back and forth, okay, we have another liberal justice, so let's revisit citizens united statessed, do you think that's going to showball where every time the court shifts, they're going to revisit issues? >> yeah, that's a good question. will they reopen things that have been settled? it's possible. i mean, i think there's a real challenge now on the court to various settled ideas about the meaning of our core civil rights statutes. i mean, not only affirmative action area, but other aspects too. so, you know, the role of precedent in a common law system that we have where one case

leads to another case leads to another case, you've got to have some kind of fundamental concept of precedent, or you're just kind of twisting in the wind. now, obviously, you know, we're glad brown against board of education overturned plessy v. ferguson, but you've got to have awfully good reasons to a case that was fully fought out and argued very recently and reopen it. so i, you know, i was pretty surprised by the court's announcement a couple weeks ago that it was going to take the texas case under review, and it's worth, you know, watching the court's behavior on this pretty closely. i think your concern is well, is well founded. yeah. >> um, i've heard it said that if you put a group of liberal people in a room, the views will

skew toward the extreme liberal x the same with a group of conservatives, that they will skew toward the edges, if you will. do you see any tendency of that in the ebb and flow of makeup and opinions within the history of the supreme court? >> could you repeat your question? so you put liberals in the room, they tend to the extreme, conservatives in a room and they tend to the extreme, and is that happening on the court today? it's not happening on the liberal side, i can tell you that. i think there's nobody on the court today who would like a justice brennan or a justice thurgood marshall think of the constitution as an engine to be harnessed for a certain kind of

social progress. i mean, that's not -- the liberals on the court, and i use that word very advisedly, have been playing defense for a long time. i mean, maybe because there's, you know, they don't speak for a majority, but i think it's, it relates in part to just the personalities of the individuals and also to the realities of the confirmation process that i talked about. i mean, somebody who has, you know, deeply progressive roots, activist roots you might say is not very likely these days to get nominated or confirmed. so, um, on the more liberal side of the court we have, um, you know, very mainstream, middle-of-the-road people. now, on the conservative side there's been some social science research that has identified this court as, in fact, the most conservative kind of center of

gravity on the court that we've seen in many decades, and using certain metrics. .. >> are there any reproductive rights coming up before the justices given the composition of the court and the tenor of

the whole contraception debate that's going on in america? what do we think of the future of roe v. wade? >> well personally i think the future of roe against wade is hanging in the balance. there are not currently five votes to overturn it. there are five votes to uphold it or when i say it, what has become in recent years, but obviously the whole notion of reproductive rights as they were once understood is under a great deal of stress. there are some lower courts threw upheld most recently the taxes ultrasound law. i don't know whether the reproductive rights centers of that law are going to take an appeal with that case to the supreme court and if they did i don't know whether that would need advisable. so, i think this is an area

where things are really hanging in the balance. as you know, because of the way you frame the question, this last year or two in the legislature's of the country we have seen dozens and dozens of antichoice measures being proposed and some of them went into effect in some and some of them brushed back by voters or by legislators. so, this is very contested territory and i think the court is really, really finally balanced right now. so i wouldn't, i wouldn't assume anything about the future. >> i would like to thank you very much for coming. i think we can let you relax now that you have had a very good conversation with us but thank you very much for a wonderful top. [applause] ace.

with gaddafi, they had this huge injection of cash. he did increase the age at which chil would leave >> i see pose one of the people who i tell embodies what i think, this was mohammed who i met in tripoli. he is the guy who makes the halfmoon. he bangs them out and he told me how in 1969 he left gadhafi. yes we have arrived as a country. we are going to be like egypt because the pin arabist leaderbe was in egypt at that time and he went running out and demonstrated his support, and so that this was libya's chance to enter the modern world and that is exactly what happened. i said well then what made you change her your mind plex he said well, in the 70's i would go home from work and people would say don't go down that

street because they have directed the gallows there andwu someone is hanging.rk and p so he said then i saw how he just picked off the -- and then one day, men in plain clothing surrounded the sikh as they grabbed mohammed and they spent the next 11 years in army and he ended up fighting the war. the war in chad has got to be one of the most futile wars tha the worlds has ever known. ed it was over a strip of desert about 60 kilometers ride -- wide called uzi strip. if it's something that libya does not need its a it's a bit more desert.slovia there is plenty, believe me. so this money that was originally spent on health care and education was now being spent on warrant on terrorism. >> the fact is in our world

which is often remarkably stifling when it comes to thinking about writing, about our politics about the national security state, about what used to be called foreign-policy but is now more inaccurate regarded as this global military policy. we definitely need -- the rooms are very very small. we need people willing to try to step back, ready to try to make their way out of the massive trees and actually take the woods we are largely lost in. my book the united states affairs really what guy in such a rim could produce in a year for reading, writing talking and doing my best to consider our american world and the absurdities in it that are accepted as ordinary reality. as those of you who read know i write long myself and i like to run long framework style pieces of the site, despite what everyone thinks about brevity, attention spans and the internet. before i talk i'm going to read you two pieces from the book,

both however on the shorter side. the first as you'll see is really my thoughts about guys in rooms. i wrote it back in march 2010 well before our military was out of iraq and just after the supreme court issued to citizens united decision but before it was utterly clear that the floodgates have been opened so wide that what might be called politics rich in america would soon become simply american politics. i called it on being a critic, all the world is a stage for us. in march 2010, i wrote about a group up or your journalists eager not to say the see the u.. military leave iraq. that case appeared on the op-ed page of "the los angeles times" and in a longer version at tajikistan.com. one of its stocks curiously enough was a military newspaper stars and stripes. on the military man came this e-mailed response.

read your article in stars and stripes. when was the last time you visited iraq lacks a critique and 15 well-chosen words, so much more effective than the usual long, angry e-mails i get and his point was interesting. at least it interested me. after all, as i wrote back i was than the 65-year-old guy who had never been anywhere near iraq and undoubtedly never would be. i have to assume that my e-mailer had spent time they are possibly more than once and disagreed with my assessments. first-hand experience is not to be taken lightly. wide after all to a know about iraq? only the reporting i've been able to read from thousands of miles away or analysis found on the blogs of experts like martin kohl. on the other hand even thousands of miles away i was one of many who could see and not by early 2003 to go into the streets and demonstrate against an onrushing disaster invasion that a lot of people theoretically far more

knowledgeable on iraq than any of us considered just the cats meow the cakewalk of the new century. it's true that i have never strolled down a street in baghdad, ramadi, cause right and that is a deficit. if you want to write about the american experience in iraq. it's also true i have not spent hours sipping tea with iraqi tribal leaders are been inside the green zone or step foot on even one of the best american bases or the pentagon's private contractors built in that country nor did that stop me from writing regularly about what i called and still called america's cigarettes when most of the people who visited those bases didn't consider places with 20-mile mount parameters multiple bus lines mercenary guards and who knows what else to be particularly noteworthy structures on the iraqi landscape and so with rare exception -- i am certainly no expert on shiites and sunnis and i weigh him a little foggy on my iraqi geography and i have never seen

the tigris or the euphrates rivers. on the other hand it does occur to me that a whole lot of pundits bollettieri officials who have spent time up close and personal in iraq or at least the american version of the same couldn't have arrived at dumber conclusions over these last many years. so first-hand experience may be for great reporters like say anthony should date of "the washington post" and now "the new york times" or patrick copeland of the british independent can be the be-all and end all either. sometimes being far away not just from iraq but from washington and all the cloistered thinking that goes on there from the the visibly claustrophobic world of american global policymaking has its advantages. sometimes, being out of it experientially speaking allows you to open your eyes and take in the larger shape of things, which is often the obvious, even if little note to. i can't help thinking about a

friend of mine who's up close and personal take on the u.s. military commanders in afghanistan was that they were trapped in american-made talks and capable of seeing beyond its boundaries of, that is, seeing afghanistan. i have no doubt that being there is generally something to be desired but if you take the personal finders with you it often hardly matters where you are. thinking about my my stars & stripes readers question, the conclusion i could come to us this. it's not just where you go, it's also how you see what's there and no less important who you see that matters. which means that sometimes you can actually see more like going nowhere at all. and iraqi tragedy. when american officials civilian or military open their eyes and check out the local landscape no matter where they landed all evidence indicates that the first thing they tend to see is themselves. that is, they see the world as an american stage and native

factors and countries we have inva ocded orpy it or where in pakistan and somalia and yemen and we conduct what might be called the semi-war as so many players in an american drama. this is why in both iraq and afghanistan military commanders and top officials like secretary of defense robert gates or national security james jones continued to call so utterly unselfconsciously for putting an iraqi or afghan face on whichever world is being discussed. that is, to follow damage to its logical conclusion putting an iraqi or afghan mask over a face they recognize recognize however and conveniently or embarrassingly as american. >> you can watch this and other programs on line of booktv.org. during the republican and democratic conventions we are asking middle and high school students to send a message to the president as part of this year c-span studentcam video documentary competition. in a short video students will answer the question, what's the

most important issue the president should consider in 2013? for a chance to wind the grand prize of $5000 there is $50,000 in total prizes available. c-span's studentcam video competition is open to students grades six through tow. for complete details and rules go on line to studentcam.org. >> up next, in depth with best-selling author and screenwriter ben mezrich. during the next three hours he talks about the rich and famous