>> -- how a case makes it to the court to the duties of the law clerks and the responsibility of the chief justice. this is just over an hour. >> thanks very much. it's a thrill to be in this wonderful, beautiful historic call. 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 and 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 answers your questions, but i want to talk a little bit and 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 you 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 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 read 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 the 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, or 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. 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 do. and the cases these days that it uses to decide. and even that 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 court of review, courts of appeal, courts of error correction. 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 sides -- size is something he thought the court would greatly benefit from the ability to write its own ticket, create his own

pocket, -- docket, not take every case that comes along. so under his leadership, urging, congress passed in 1929 what's known as the judges bill, because all the judges in 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, it's really a very powerful tool that members of the court have, especially if there's a majority of five of them, and projecting their own legal agenda onto the canvas of the country by means of the courts docket. i mean, just one example, and it's not health care, the health care case, really the court i

would say didn't have too much discretion as a practical matter in deciding to resolve the dispute over whether congress has the authority under the congress clause to create the individual mandate. because the lower courts were 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 technical matter. the court doesn't have to take it. it would have been really, really surprising if the court had not chosen to take that up this year with a 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 have heard much about it yet because it will 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 have decided it and as far as we're concerned, it's now resolved for the next 25 years. we'll been 25 years from now a from of action in iraq education won't be necessary, but that's it, we finished. well, so this being -- i think it's about nine years later, we find the court having undertaken to review a primitive action admissions at the university of texas, and that's the case that is going to be argued early next fall, and decided some time 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 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 unsettled something that has been fairly well settled in much of the country up until now, in these last eight or nine years. and that's in example of the power 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 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, 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 in their briefs bring to it, and that was a case in louisiana called kennedy against louisiana. and the question in the 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 challenged under the eighth amendment. and the courts eighth amendment jurisprudence basically to find out what is cruel and 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, the 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 court declared that capital punishment for the non-murder rate 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 governments 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 it on page one of "the new york times," and this created quite a ruckus because the attorney general in louisiana who had not bothered to return my phone call on the day before

once they saw the story, they found a motion with the court to get court to reopen the case. 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 in the footnote. but if you 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, we only know what we learn 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 the early days, of course these were among, among

the justices were framers of the constitution, leaders of the new country. over time, that continued for quite a while. for instance, even as recent as the world court, earl warren himself had never been a judge. he was a 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 i'll indicated him 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 have as the most recent wine on the resume, 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 to actually held herself out to the people was justice o'connor. who had the majority leader of the arizona state senate. and 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 by the fact that she had been in elected office holder. ..

it's become much more of a homogenous country in that sense we don't necessarily think of southerners and westerners so that right now we basically have a court of people from the metal and tech which also the blood supply is the framers and we started to have diversity of

race and sex. i was at the court yesterday and it turned out listening to a couple of arguments and i was a very lively argument in a criminal case over whether the judge or the jury has the power to find the facts that lead to a criminal fine as opposed to presents, and the lawyers who argued in this case have a total of five and 94 questions, and the women on the court, justice sotomayor and kagan and i was thinking this is the new normal. it's no longer a surprise to hear a woman's voice from the bench, and when i first heard justice o'connor on the bench back in 1981 when president ronald reagan named her to be the first woman on the court it

was startling to see o'connor sitting there. it was maybe just a year before her nomination that maybe some of you remember the first monday in october that supreme court justice as a joke it was a comedy because they think that is never going to happen. now as they say it's the new normal so we have seen other 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 and the breakdown of the confirmation process, and i am sure many of you have watched these snippets of the supreme court confirmation hearings, and it's quite a dispiriting experience

when the senators asked these kind of questions and they don't really expect -- i think they would be shocked that they got substantive answers because the nominees are trained within an inch of their life to say i will follow the law, not an activist i just do with law tells me to the house of judging with some kind of the robotic painting by numbers exercise and of course we all know that it's not. if there is a great deal of discretion the senators certainly know that and the nominee is certainly know that, but it's a kind of play acting but we all have to go through, so what is going on with the confirmation process? it seems to me it's kind of a new paradigm that has emerged in the last couple of years. i used to have a kind of comfortable laugh about this. i covered many confirmations from sandra o'connor up through the last 1i covered was john

roberts 2005 including a fascinating work battle the 1987 which is if the president is not seeking to use the power of the supreme court nomination to press outside the bounds of the political consensus there's not going to be a problem. stephen breyer was nominated by bill clinton both nominees very much in the main street centrist democratic thought at that time in the mid nineties were confirmed within weeks by huge margins, so if the president chooses to play down the middle life or my observation told me confirmation is going to be a piece of cake. that helps the nominations. we have had someone said it's a wonderful personal story and a person of high achievement, 17

years as a federal judge. what happened in the hearing she was concerned, so the end of the day with a happy story and the remark you probably remember this would actually had been a speech that was thoughtful and heartfelt, opposition research that turned out something like that and dominated and adjust the handful of republicans in the up voting for her. elena kagan former dean of law school was highly accomplished mainstream nominee where she works was bedeviled by the whole business about harvard law school not allowing the military

recruiters on its campus to recruit students to be lawyers in the military. welcome as if elena kagan had made that policy up when was the standard policy of the american association of law school carryall were supposed to behave that way for better or worse the could debate the merits but it was not an elena kagan creation that was wrapped around her neck and even fewer republicans voted for her than had voted for sotomayor the year earlier, so the paradigm is actually changed and the landscaped of the confirmation is going to be a battleground. whether there is any reason for that or not and i should point out that both of the vacancies that the nominees for filling, the vacancy left by david souter and john paul stevens these or

not a game changers. the ideological balance of the supreme court with the vacancies being filled by president obama is not going to change. but one of these days it will. eventually all nine of the current ones will lead but i had no idea what order it went but at a certain point, the justice that holds the central position on the court letting that nomination beah game changer it happened in 1987 when lewis powell retired and he was the swing justice of his day and we had the titanic battle that in many respects is going on today. it never ended and it informs how we think that the nomination process. and so i just -- what happened in the last couple of years i just personally hate to think about the is going to happen

when that occurs. i would say another thing about the still resonating battle. and again, recent political events i think should make us kind of rethink what seems to be the take away from the battle which was a definition of the political mainstream in which a nomination would occur or outside which the nomination when from into lots of trouble, so the mainstream coming out of the board battle was defeated on the issue of didier believe the constitution contained the right to privacy the constitution gave people individual rights that were not enumerated in so many words in the constitution and so he said for instance that he thought the griswold case from 1965 which created discerned in

the constitution the rights of married couple to use birth control. coming out of the work model that is generally taken to be a matter what in of any thought about this, that or the other provisions in the constitution at least you have to accept griswald against connecticut as being decided. of course now when the recent flap over contraception what's going on in the republican primary you could wonder whether the definition of the mainstream is changing. the question is what happens next with this broken confirmation process? there is a debate going on underneath the radar. mostly still in the academy, and i talk about it a little bit in the book to bring you to the attention over whether the

tenure on the supreme court is still a good idea. the framers of course provided tenure for all federal judges in what are known as article 3 judges and this has been a great protector of judicial independence. what can make the case is that it's part of what is the devil in us in the confirmation process. not for the obvious reasons they intend to stay so you are confirming somebody 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 memory and the issues that concern us have greatly changed. justice stevens retired at 90 for instance, so that is a sort of obvious issue.

but the less obvious one that's kind of interesting with respect to the confirmation process is that you never know when this will be a vacancy, so the filling of each vacancy become strategically freighted because you never know when this president is going to get another one or the next president will get any. jimmy carter had the bad luck for some dave crossing goal supreme court vacancy in his office. as a, there is a randomness to it that just ratchets up the significance of every vacancies if there's a few ideas floating around. life tenure would require the constitutional amendment, and that's very difficult and not a smart way to proceed about anything. so some scholars that come up with another idea that there should be a functional 18 year term on the court and once

somebody served 18 years another justice gets appointed and they all remain on the court for the duration of the day but the ones that served their term become in effect senior justices and others the same thing that happens on the federal court of appeals that can stay as long as they like but you can choose to enter into a senior status where you have to work. i think it is now have time or maybe -- you have to put a substantial work if you want to keep your pension up-to-date. the cost of living on pensions up to date. but you don't have to work full time and you maintain your life tenure on that court. so that is the thought that i think is far from being accomplished. it's being discussed and it's a reflection of the fact we are discomfited by what we see in the confirmation process.

it's interesting when you look at other countries courts around the world including constitutional courts of democracies at a constitutional clauses of the emerging democracies. the supreme court lessons have to some degree model themselves at the supreme court and interesting ways they've diverged but no other countries adopted the life tenure for an age limit the of other interesting features and some of the european courts for instance weld -- don't publish the dissenting opinions. the opinion speaks for the court, and we don't have the dissenting opinions we see. the court speaks as one and as somebody descents they have to keep it to themselves. it would be something quite different on the supreme court.

so, i think with those observations maybe i should turn it over to you, and i would be happy to take your questions. i see there's microphones and i would be happy to have any kind of conversation that you'd like to join me in. [applause] >> good evening. thank if you for a wonderful presentation. >> would you talking to a microphone. >> thank if you for your presentation. the current supreme court justice ruth ginsburg in my opinion made and justice a suggestion there right to the

drafter of the egyptian new constitution to look at the constitution. i just wondered on your comments as a supreme court justice how she could be the main justice, and about the suggestion but really discuss in the media. >> you are asking me about justice -- >> ginsberg. >> right. and your advice to the drafters over the new constitution in egypt.

i find it has -- >> what he is referring to is the talk was given in egypt on the state department and her remarks have been taken briefly of context and distorted and she certainly was not running down the u.s. constitution. she was suggesting simply that there is always room for improvement and she is somebody that in her own career has brilliantly managed to expand the meaning of equality under the constitution, and i don't know of anybody in our public life that believes more deeply in the constitution so i will have to take issue with the premise of your question. >> thank you so much for the wonderful talk and there's so many issues i think you have raised that are i think you

could probably go on for longer, but he made an interesting comment on the justices themselves who they are with a hour. 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 course? particularly as we see so much bickering to use that probably ridiculous word in the country about these issues of contraception. what is your sense of the politicization and another question. do you think that justice thomas who has rigorously were steadfastly has asked to ask questions. do you think that is a good

thing? >> there was a poll that came out a few days ago that asked people whether they thought the health care decision when it comes later this spring influenced by the justice politics or whether they will resolve the case based on wall? three-quarters of the people said politics, and i just found that the pressing. i actually don't think it's true. somebody is bound to ask me about the health care case so i think the court will uphold the law regardless of whether as legislators they would have voted for it or citizens whether they like it because i think the

precedents under the commerce clause in terms of defining the scope requires the court to uphold its and i don't feel that they have a choice. so why don't actually see the supreme court house a politicized institution. i think there are some justices that have agendas. i think they will grant review in the affirmative action case. the reason i highlighted that is because it was such an unnecessary acted that i think does put the court to gratuitously in the political spotlight and has the practice of institutional self are my think. there was justice judgment. but i wanted the court is politicizing this in the way we think of the term when we think

about our kind of the spreading political landscape right now. as for justice thomas and what i think of his not having asked a question the last five and a half years now that i'm not counting -- [laughter] it's strange. it's very strange behavior because the oral argument is a lively -- is a great scene. people that haven't had a chance to witness, the course is open. they are not in television but they are open and people should go and you can meet the transcript. you can download the audio of every argument the court puts it on the web site on a weekly basis. the health care arguments are going to be put out every day. for a member of the court to decide i'm not going to play, i'm not going to participate and

not inside his head. a little boy that 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 and a half years when you have given all kind of reasons why you are not asking any questions and they don't quite -- you're not quite consistent or coherent how do you get out of that box? we are perfectly fine and useful for >> first one to know if you think the court will change, will diversify in any other way diversify in the future, and second arthenia other problems that you see with the court other than just confirmation

aspects any of the problems other than -- >> the confirmation. >> i'm sure the court will diversify further. >> they have the majority of women for instance. the court needs to have -- the court needs to look like america and all kind of ways and i think it will. i think it'll drive you in that direction and would be good for the country. do they see any problems at the court? well, we've got areas of doctrine that has been driven in

certain directions that the question now i think is whether they are going to go right over and fall over they've been willing to the logical conclusion which is kind of right over the cliff for instance i'm sure you are all familiar with the citizens united one way or another but it's an indication that they take a view of the first amendment that i think has strayed far from certainly what the framers would have seen as the dimension for the first amendment. for instance, there is a case that i think is heading to the court now about whether the court has the power to order a cigarette makers to put labels on the packaging and a federal

district judge i think not necessarily incorrectly interpret and where the supreme court is going said that this requirement was a violation of the first amendment rights of the cigarette makers because was 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 deterrent to smoking. how the first amendment got into this equation is pretty interesting. so, but you know, if the court has any problems today i think they may be 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 along. >> thank you for the speech. i would like to ask a question about judicial ethics. certain members of the supreme court have i think about 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 you think they should not be held to the higher standard. >> thank you for asking that because i think that is an issue that is largely misunderstood by demagogues for -- i don't mean by you. 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 justice re themselves as bound by them. as a for instance of the financial -- they are bound by what the financial disclosure rules just like all other judges on the recusal issue which is where this comes up the court has explained its refusal policy and it's the same as the policies that combine all federal judges for instance a single share stock in the company requires a judge or justice under the policy that the adopted to reduce from the case involving the corporation and so on. when you get to the margins it's not kind of black letter reason for recusal. personally just speaking as a citizen i am not a big fan of the judicial recusal.

for instance you get into a situation like the motion to recuse judge walker of san francisco who presided over the proposition eight trial because my god, he's a gay man, he had a conflict of interest. well, people on the left are trying hard to get justice thomas and 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 setting in motion rules that would kind of dusable the court, the justices from being out in the world actually. i have to say it may surprise you but i think justice scalia

was right when he designed to recuse himself on the basis of having gone dhaka hunting when the was a case involving the office of the vice president for 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 friendships with a high government official have just became means for refusal over history many supreme court justices would have had to recuse themselves for many cases because of course you don't get to the supreme court justice unless you know a few people in high places. so, i'm just personally, speaking as a citizen not an expert on ethics, quite comfortable out just feeling that the members of the courts are making the ethical calls that i wish they would make.

>> i have a follow-up question touching on citizens united in the cases like that. about the politics of the concept of judicial restraint for much of the 20th century was progressives who argued for judicial restraint on the courts striking down the new deal and then after the 1950's and 60's this was a very powerful conservative argument. i wonder where you think that argument stands now. will we see it becoming a little call again or is it something -- does it depend where you stand, does it depend where you sit? is there any kind of coherence how people view that issue? >> there's not a lot of coherence i think an activist judge, "activist judge comes out with an opinion that one doesn't like and there is really

interesting conversations going on now i think in the conservative circles about this. you might have seen the interesting op-ed in the times a few days ago about the judge wilkinson of the u.s. court of appeals for the fourth circuit and he's talking about activism of all kinds but his focus 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 with the invention -- for instance he has been very critical of justice scalia's opinion in the heller second amendment case that declared that the second amendment gives people the individual rights to own a gun. judge wilkinson regarded that as, you know, an example of right-wing activism, so you know, we have it on all sides, and i think that the health care

case is a chance for the conservatives on the court to disavow the kind of activism that would have judges substitute their own judgments for what i think are pretty clear commands of the constitution's text and history and the court precedents. it's an interesting test for them and i think that the more that people like judge wilkinson or, you know, just individuals look at the court across the entire spectrum and be willing to call out the undue activism when they see it i think is an interesting conversation to be having right now.

>> if you want to come up to the microphone there would be good. >> i can speak quite loudly. >> c-span is recording this. >> thank you for your experts say. it was very helpful. when he were talking about kennedy versus louisianan and the fact that the justices were unaware of the law that congress had passed, may have missed the timing of that but would that not have khanna at all arguments or somebody calls one of them and might or slips a piece of paper or something? i'm being facetious there, but what was missing that they would not be aware of that kind of legislation? that's one question. the other one is a 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 well, that is just the -- shouldn't say this, but the more conservative people are saying about the right to bear arms etc., so it's interesting because we can see that from the two sides. what the intentions of the framers of the constitution -- that issue, this is a second question of course that is being called into question is being raised, yet how we move on from that or apply it in its pure form without getting ourselves wrapped up in something and not recognizing change in the evolution of society and time >> two interesting questions how does the court missed the fact that they have said recently the passed ball on the subject? i think it was because it was

attached to the uniform justice, and nobody thought to look there, so now, it came up the case involving the state law to the court to review it and to the clear what would happen then is the solicitor general's office and the department of justice would basically survey all the different general counsels, all the different units of the government to say here is a new supreme court case. should we follow the brief representing york agency's interest? is their anything in a domini to know i never could attract, the missing link was, but i think in financially they didn't find the questioning depended upon. because you look at -- now in retrospect it is of course the military justice system we know right now from these portable

current events there is a lot to say about the lottery justice, but i think it didn't occur to anybody, and i think nobody in the pentagon general counsel offices watching the supreme court docket for things that seem on their face that had nothing to do with the military and obviously the state of louisiana and the states that came in on its behalf they didn't think of the mother to become so it's just fell through the cracks. it makes you wonder how many things fell through the cracks and other cases but what happened to come to anybody's attention. you know, i don't -- don't know the answer to that. then you asked about the whole debate over original was some -- originalism. the house lowercase from 2008, both justice scalia were the five and a majority, and justice

stevens wrote for in the descent. they both fought the case on the grounds of remission. justice stevens, kind of remarkably, i think endeavor to read justice scalia that reno was a self-described original list on the ground and tried to muster evidence some people some very compelling as to whether the framers of the second amendment to apply to an individual right or only the right of connections with membership in the militia so that was our regionalism at its height when you have all nine justices kind of fighting out over journalism it came out. we don't really know. the text and the history is ambiguous and we could stand here all day and call an expert on the amendment and we wouldn't get any agreement. so, what to do about that.

justice breyer had an interesting opinion on that case and he joined stevens dissented and then he also goes separately to say look this is not a productive way to go about this. we need to look more pragmatically and we need to go back if we are going to go back to the framing we need not to get hung up on text and where the comma was and the way that it's worth it. we need to think what were the framers thinking? what was that all about? and he said colonial and postcolonial boston have a law against keeping ammunition in homes and why is that? it was a safety hazard because you could have a fire in buildings the would blow up the whole city of boston. so they had a safety concern. he said what is the reason why the district of columbia has enacted this strict gun ban in

the country? for public safety. seeing the gun violence on the streets decided that what they needed was a handgun ban, so they said we will uphold the handgun ban to be consistent with the original intent understood from the pragmatic, not the grammatical position. he wrote for himself, and that is his view of the kind of workable constitution that works for today, and he's written a couple of books that are quite interesting. it is a debate that is going on. it's a productive one. and i think it is interesting that justice scalia and justice

thomas remained the only true kind of self identified original lists on the court. chief justice roberts, chief justice alito, they haven't signed up for that. well the base our original was on the they are not stuck there, so history is more important now in the arguments than it has been in recent years because of the force on a matter for, but original was alone is not going to win the argument. people have to come up with their arguments. >> first question is technological issues. and conversely seen some of the

people don't necessarily have the technical know-how voting on this legislation and this is somebody then you could probably end up seeing on the supreme court with the tenure and things like that but it might not technological things are getting lost and it's a different issue. if that is something that you could address that could be addressed and also the court is not politicized in your opinion. >> the microphone is very loud. >> you were talking about, you know, publicizing the court whether or not. i think the one way that it is politicized is that they can come back, they're coming back so quickly to the affirmative action case. you think we are going to continue to see that back-and-forth now we have another liberal justice and citizens united, do you think that is going to snowball where every time the court shift they are going to be repositioned?

>> that's a good question. every time of course they reopen famous have been settled it's possible. i think there is a challenge now on the court to a various set of ideas about the meaning of the core civil-rights passion, not only the affirmative action area, but other aspects, to sell their of president in the common-law system that we have where one case leads to another leads to another case you've got to have some kind of fundamental concept of president or you're just kind of twisting in the wind. now, obviously, you know, we are glad that brown v. board of education overturned so as you are for the sake of president you have to have awfully good reasons to go back to a case

that was thought out and argued very recently and reopen it. so i was pretty surprised by the court's announcement a couple weeks ago there was went to take the texas case under review, and it's worth watching the courts behavior. i think you are concerned and its well-founded. yes? >> i have heard it said that if you put a group of liberal people in the room, the views well skewed towards the extreme liberal and the scene with a group of liberals, they will scute words the edges if you will. do you see any tendency of that in the evidence flow of the makeup and opinions in the history of the supreme court? could you repeat the question? >> said, you put liberals in the

room and they tend to the extreme conservatives and it's happening on the court today. it's not happening on the liberal side. i can tell you that. i think there is nobody on the court today would, like justice brennan are justice thurgood marshall think of the constitution as to be harnessed for a dessert and head of social progress so the liberals on the court, and i use that word very advisedly have been playing defense for a long time because they don't speak for the majority, but i think it's -- it relates in part to just the personality of the individuals and to the realities of the confirmation process but i

talked about. i mean, somebody who has deeply progress of routes, activist groups you might say. it's not very likely these days to get nominated were confirmed, so on the liberal side of the court, we have a very mainstream middle-of-the-road people. now the conservative side, there's been some social science research that have identified the court as the most conservative of the gravity and the court that we've seen in many decades using certain metrics, and we have a couple of these on the air and we will see where we land. it's not that they agree on everything. amana going think the original was and always carries them so

far. but they may be united in certain policy winds of you that reinforce one another as they continue to serve together. they are at age seven right now still a pretty young court to see where there and to take us. >> given the composition of the court and the whole contraception that's going on in america what b.c. is the future of roe v wade. >> they are not currently to overturn this. but obviously as they once

understood under a great deal of stress they upheld most recently texas ultrasound law. i don't know whether the reproductive rights defenders of the law we are going to take an appeal of the case to the supreme court and if they did i don't know whether that would be advisable, so this is an area where things are hanging in the balance. it is a question the last year were to in the legislatures we see dozens and dozens of antitrust measures some of them into effect and rushed back by voters and legislators so this

is during contested territory getting the balance right now. i would like to thank if you very much. we can let you relax now that is a good conversation. thank you very much for a wonderful talk. [applause]so

spread i suppose one of the people whose stories itelone of embodies what i think a large number felt. he makes the half moon, it's called the half moon, he bringse them on the top to go on to mother rats but he told me

copper happens. hemb how in 1969 gaddafi. he said we would be like egypt. and he went running out and showing his support. he felt that this was libya's chance to enter the modern world. that is exactly what happened. and i asked what made him change his mind. he said in the 70s he would go home from work and people would say don't go down that street because they have hung someone. and someone was singing. then one day, he was walking and men grabbed him, and he ended up fighting one of the most

gruesome wars, the war in czechoslovakia. if it is something that libya does not need, it is desert. there is plenty, believe on your screen is a new book that's coming out september of 2012. lynn povich as the author and it's called the good girls revolt. who are the good girls, lynn povich? >> i was a good girl. i went to work at "newsweek" when they hired women only as researchers. actually then they could graduate to the researchers and fact checkers and all of them were reporters and writers. and we stayed and fact checked

and then one day we realized there's something wrong with this picture of and on the day that "newsweek" did a cover story on the minister's 46 of us. >> was the timing accidental? >> we knew we would get the publicity because we need the publicity was just on more than a case. secure to "newsweek" from 65 to 70. at what point did you start talking with other women in the office? >> it was organizing in the fall of 1969. one of our friends said our situation was illegal in the research category. >> as we were organizing, we decided to do a cover story on the women's movement because there were no women to write it. so for the first time they went

outside the magazine they hired a woman from outside. how long did the situation last? >> they wanted to negotiate and we settled in august to promote and a year later they've done very little in 1972. >> , nor holmes norton is now the congressman from the district of columbia and named harriet went on to represent "the new york times". in 1979k gramm of "the washington post" center corporate lawyer to negotiate and that was just the gift of justice stila vana. so we settled finally in the spring of 73 and the promised

again to hire and promote at this time we had a goals and the timetable and had a third of the writers and reporters to be women and researchers which is really important. >> what was his career >> in august of 75i was promoted to that position. so i was the first female at newsweek. it's a story raised in the 40's and 50's came of age to do with the woman's role of the world is and the fact that it has on us and then again what's changed for the young women today. >> when you become the senior

editor the men that were the riders supported the women. the senior editors in the organizations is where a lot of the discrimination took place. the editor-in-chief was pretty quickly. the other senior editors and the women that tried out as the writers for the field often and the senior editor and a woman still by then. it was very hard for me. i had to learn to speak up and i had to learn to fight for my stories but one of the things i learned about a lot of the men that there are fighting for the writers were actually free passage and it was rejected they just rolled over in fact, there are a lot that you just realize as well and there's a lot of

learning experience the research category at "newsweek" at all, so young women and men are hired right away and when they took over as the editor in chief. >> the first magazine editor? connect for time and newsweek editor-in-chief. things are different now that she's taken over but there are still subtle signs of discrimination that make it harder for young women today that still exist often about marginalization not being heard there's still a lot to be done in the workplace in general.

this morning they said that men who are in female occupations now because they are becoming nurses and they are rising faster than female occupation than women are. estimate is there a reason? >> i think it is the perception of men and how they can be more competent still exist and putting themselves forward. >> what have you learned over the years about making sure that your voice is heard? >> i've learned to speak up and put myself forward and put other women forward in their ideas. i also learned not to be put off by style. a lot of women's styles are very modest and humble and a lot of men say i can do it. but the question is who does better job they should do the

job and who is really capable and confident in. >> what made you write this book? >> i wrote the story because i thought it should be told. we were the first women in the media and i think that it's important when young women today found out about our story have learned we were not the only ones the were feeling a large and it's not changed their lives. they call themselves feminists that makes a difference i can't look forward without understanding where you come from. is that we have been talking with lynn povich from "newsweek," formerly of "newsweek," the good girls revolt is the name of the book, how the women of "newsweek" sood their bosses and change the workplace. thanks for being with us on booktv.

>> best-selling author and screenwriter ben mezrich he talked about the real-life subjects of his books including facebook founder mark zuckerberg and he's the author of six novels, the titles include the accidental billionaires', bringing down the house, and his newest release, sex on the moon. >> host: ben mezrich where did you find the story of the accidental billionaires'?>> a >> guest: that one came at rand om at 2:00 in the morning i was at home and i was a harvard student and he said my best friend co-founded facebook and no one has ever heard of himy best friend founded facebook, and no one's ever heard of him. >> host: when was this? >> guest: wow, it had to have been -- it gets all mixed up because of "the soc