sentence right after tbhab he referenced the internet talking about how that was, you know, a built, you know, with government investment in to that as well. do you think that future communications networking you think that falls under his philosophy of kind of building that framework for private innovation? >> guest: i think a lot of -- when you talk about innovation, there's a number, i mean, clearly the government has a role to play in a variety of arena to ensure fair play and exittiveness and boost innovation in different ways. it you look at the manner in which the railroad got build or the internet got build. all those various things. government was involved in investing. they wouldn't have happened otherwise. they wouldn't have happened without the private sector. again, it's not an either/or situation here in my opinion. it's trying to find that balance, as you say, between where the government helps and where the time comes where the government needs to step back

because the industry is up and rubbing and it just needs to make sure everything is regulated welfare play going forward. >> host: we're out of time. john, do these issues we've talked about in priority sei and private sei do they move the political needle are people paying attention? >> guest: i think the universe -- make their selection based on the technology issues is diminishing small. however, they are very important issues for the economy and for the country the fact you haven't seen this being a top level topic for either the obama administration or the romney campaign team is just indicative of the fact it's not really campaign issue. but i think you will see that it's a very important government issue and i expect both sides to be prepared to devote significant energy and effort to should they be the administration. >> guest: i'll take a

different approach. i think the american people understand that investment and innovation is hugely important to the well being to the opportunities for jobs opportunities for jobs for the kids and grand kids. i think they understand that. and i think they see investment -- [inaudible] certainly investment in the middle class. they understand that's where we need to grows to a prosperous country in the 21st century. no way is -- [inaudible] voting for innovation. but they're going in saying i'm voting to improve my life. i think that will be part of it. >> host: ed paisley, john kneuer, josh smith thank you for being on ""the communicators" this week. is the second presidential debate form live on c-span, c-span2, c-span radio and online at c-span.org. watch and engage.

..

tea party supporters are united on economic issues but divided on social issues it's not about me. it's about you and i want to come back to something i've said before. if you want somebody that believes we were better off eight years ago than we are now and we ought to go back to the policies back than emphasizing the cuts for the wealthy. if you want somebody that will fight for you and will fight to have middle class tax cuts when i am your man, i want to be i doubt anybody here makes more

than $330,000 a year. but if you do you are in the top 1 percent. >> i'm not going to asked. but if everyone here in this audience was dead on in the middle of a middle class and the tax cuts for every single one of you all added up would be less than the tax cut his plan would give to just one member of top wealthiest 1%. you judge for yourself whether or not that is fair. >> they get more under the plan. >> it's time to the night. >> if you haven't gotten anything done on medicare, social security, bill of rights it's time to get something done.

>> retired supreme court justice jon paul stevens talked monday of the second amendment and gun laws. the third longest serving justice was the author of the 2006 and 2008 dissent on the cases before the court. his remarks at the center to prevent gun violence are in our >> the mass shooting a movie theater just outside of denver colorado in aurora a gunman acting alone in the opening fire.

>> [inaudible] just two weeks after the shooting in our rot colorado a gunman opened fire. >> -- aurora colorado a gunman opened fire. >> they called police about a suspicious person and he had been shot in the chest. >> a lot of people can relate to our situation and it breaks their heart just like it breaks

mind. at the popular cafe minutes later four people were fatally shot and another wounded as the gun man stands alone he's holding what appears to be a gun. we are going to take you now to chicago where the past weekend at least 52 people were shot, eight of them killed. >> 8-year-old shot selling candy outside her home. >> far from downtown attractions in a weekend of violence so typically didn't even make the front page. >> gathered on the corner comforting each other trying to make sense of the violence. >> outside of the church >> already this year there's been 43 murders in the city.

>> a deadly shooting is being blamed. [inaudible] >> good afternoon. my name is dan gross and it is my privilege to serve as the

president of the brady center to prevent gun violence. i very briefly want to welcome everybody here and thank you our sponsors and especially you, justice stevens for the extraordinary honor and your participation of this event. [applause] like to many people, i come to this issue through a personal experience in february of 1997 my younger brother matthew was shot in a shooting that happened on the observation deck of the empire state building. my brother despite being shot in his head like a lot of our heroes in this room, jim brady needless to say it has changed his life and the lives of all of

us that love him and care about him forever. i was a partner at a big advertising agency and i just found i couldn't go back to work knowing this problem was out there and there's an opportunity to do something about it, so i quit that job and i devoted my life to trying to prevent other families from going through what ours has been through and that's led me to this extraordinary privilege to assume the presidency of this organization this february. since then our focus has been not on changing this organization, but rather getting back to the essence of what made it great in the first place. and to put most simply, brady has always been the voice of the american people on the gun violence issue. the voice of the public that doesn't want to live in a nation with 32 million more gun murders

every day. the voice of the overwhelming majority of americans who support sensible measures to make this a safer nation than we all want and deserve, and brady's laser focus is to make that voice as bold and powerful as it needs to be to create the change that is long overdue in our country. our unwavering mission is to bring together the american public into one voice for a safer nation. a voice that has action to confront the tragedy that is gun violence in our country like you saw in that video. one voice, blue state and read, republican and democrat, gun owner or not, mothers, fathers, kids, copps, clergy and yes, lawyers. all of us dedicated to the vision of an america with safe neighborhoods, streets and schools. because we as a nation we all know that we are better than

this. we are better than the mass movie theater shootings and places of worship and better than 42 million gun murders in the country every today, a tragedy that happens every day on the skill of the virginia tech massacre. and make no estate, change is starting to happen. this past summer, well, of course remembered for the terrible mass shootings like the one that the movie theater in aurora colorado and the sikh temple in bill waukee wisconsin but i'm confident that this summer will also be remembered for something else, the beginning of a real broad based movement in the nation to finally do something about gun violence once and for all. for the get beginning of the sustained oriented national conversation a conversation of brady is hoping to convene. it's a conversation that and put americans from across the country and across the political spectrum. coming together in a common cause to make this a safer

nation that we all want. a conversation that is respectful of those that might like to hunt or target should but don't want 19 people getting gunned down in the streets of chicago overnight. none of us want that. we've seen people like rupert murdoch, bill o'reilly and michael% of the church w. bush's speechwriter, all advocating for special policies that will save lives. frank, the well-known conservative pollster showed us that 74% of the nra members support criminal background checks for all gun sales. hundreds of thousands of americans have signed petitions and letters like the ones on wearebetterthanthis.org to demand action. that's wearebetterthanthis.org. one voice is forming in dallas important part of that is the legal community. to use its expertise and resources to protect the good gun laws that are under constant

assault by the gun lobby and hold the gun industry accountable when it pleases profits over people. in fact, i would go so far has to say no profession has a greater opportunity to prevent gun deaths and injuries the and the one that so well represented in this room today. so how was that for a saddle and some serious responsibility on your shoulders? but i do want to emphasize this isn't just about all of you here today or anyone profession not conversely to let you off the hook? in the and this is all about all of us making our voices heard based on the fundamental belief that we as the nation are better than this and this is the pledge to you, the entire american public that together we will make the voice of the american people heard. that it will be heard, that will resonate, and will be felt. and it will only continue to build until each and every one

of us has the freedom to live in the better, safer nation that we all deserve. thank you again for being here and for all of your support. [applause] it's also my privilege and pleasure to introduce to you truly one of the brady center's superstars, jon lowy, the director of the brady's action project. [applause] >> thank you, dan and all of you for coming to reach levels like to speak for the sponsors, alan bennett, bob harwood, and from said the austin, tom cole, kristen brand, carter philips, and in particular a great supporter of ours that is here

today, tom greene. please recognize the key member of the board, bob bates if he could stand up as an invaluable member of the team than vice and a special thanks of course the justice stevens for honoring us with his presence. i have a suspicion that most of you are not here to listen to me. so i will proceed quickly but before i do, i have a few words to say about our work and is exciting new program that we are launching. the legal action project was founded 23 years ago to take the fight for a safer america to a level playing field americans to defend solutions to gun violence can get a fair hearing. we remain the only public interest group in america dedicated to finding in the courts to reduce deaths and injuries. if you need a reminder of why our work is so vital, recall ten years ago almost to the day on the evening of october 14th,

2002, 47-year-old woman was loading her car outside of a home depot in falls church, virginia when gunfire came out of nowhere and she was shot dead in front of her husband. linda franklin was an fbi analyst and mother of two. she was one of 13 random shootings by the d.c. area snipers terrorized the region as many of you will recall. one man was shot and killed while mowing grass and a mother was reading a book on a bench, a man was pumping gas, a mom was vacuuming cheerios off the floor of her minivan. we live in fear that we could be next, and we can be. you see, those three weeks in october were fairly typical in terms of gun violence in america. and in some parts of this city, people live every day and year, real fear that gunfire can claim them or their children. the sniper shootings simply

brought immediacy to the gun violence that is around us every day. in the ten years since, about 1 million people have been shot in america. about 300,000 lost their lives. imagine the governmental response of those if they were fired by terrorists or some enemy force. welcome of the legal action project doesn't refer politicians to respond to this academic to become epidemic. we take direct action and bring high impact liability actions to inform the gun still practices that harm the criminals and the landmark case on behalf of the families that live in franklin and more irresponsible you can read about another important victory than just one of the packets. we also challenged the law is that restrict gun violence prevention along with extraordinary work. we've recently stopped a florida law that infringed on first amendment rights by preventing doctors from simply advising patients of the risk of guns.

and most pressing today, we have worked to establish a body of second amendment law that allows americans to protect their communities by keeping the guns off the streets and out of the hands of dangerous people. this work has become urgent since the 2008 decision in which the supreme court had the audacity to uphold over the dissent of justice stevens and three of his colleagues. the second amendment recognizes the right to have handguns in the homeland separate from the regulated militia of reference. heller has unspoiled over 300 children just the gun law and more are being filed all the time. these cases are part of a far reaching campaign to force guns and to every sector of our society and to vastly expand the narrow right recognized by the court. they claim for example that criminals, domestic violence offenders, drug users and teams have a right to guns. that military-style, assault

weapons, the constitutionally protected. and that law enforcement cannot take reasonable actions to keep guns off the streets to a 50 strawbridge's prevail, not only will the current gun lobby struck down, but americans will be foreclosed from enacting much-needed on policies in the future. if heller is properly read, these challenges will be projected and most have been so far but already some courts have struck down important public safety laws. some cases are heading to appeals courts as i said more are being filed all the time. that is why the legal action project is launching a new effort unlike anything we've done in our 23 years. it's called lawyers for a safe america. lawyers and law firms who join will become a part of an alliance and will assist in some cases represent governments, victims of gun violence and other organizations, high impact litigation. this is a rare opportunity to

help develop an emerging body of constitutional law, one of the great threats to america's health and safety. we cannot win this battle without your help. we are with you in and we can create a new law that recognizes our most basic rights to life, self-government and we can save lives. and handed them to the staff on the we ought to date. this work is challenging but it's fulfilling and crucial to making america a better and safer place. which brings us to our main event, a man that has undoubtedly made america a better and more just and more free and safer place. there is regrettably only one jon paul stevens. he may in fact be the only person that has ever shared a stage with two of my other personal heroes, for thurgood marshall and bob dylan.

he wasn't playing in the band. he was awarded the presidential medal of freedom. justice stevens has valiantly served as the nation for over 70 years earning a star in world war ii. president nixon nominated him to the u.s. court of appeals for the second circuit and after he was nominated by president ford to the united states supreme court he served over 34 years, the third longest tenure in american history. upon his retirement in 2010, the commentator argued convincingly that justice stevens was the greatest associate supreme court justice in american history. in light of the numerous and diverse areas of law in which his left in a profound mark. and in addition to the wisdom expressed in his opinions, his writing is a model of clarity and elegance and wait. -- whit. he inspires us to strive for a more perfect nation and to do so

with a civility, decency and good humor that reflects the best of our profession and our humanity. i hope in some modest way our work at the center and that we will work together is for a safer america is worthy of justice stevens example and furthers his ideals and vision of the justice in american society. it is my honor to introduce a national charter, the honorable justice jon paul stevens. [applause] >> thank you very much. thank you for those kind

remarks. this morning i was sad to read about senator specter's passing and i need to say a brief word about him. he was an independent highly intelligent public servant who served the country with a great distinction. i had a number of conversations over the years with the senator and one was his argument in the one case i can recall what he argued before the supreme court. he was a victim of the very strict enforcement of bill rehnquist when the red light goes on and he never really was happy with the fact that the senate judiciary committee was treated just like any other. but i also remember the case that he particularly in my

memory of conversations with him he particularly was unhappy about was bill rehnquist's opinion in the violence against women act in which the court held the statute unconstitutional and wrote an opinion which senator specter fault was not adequately differential or respectful of congressional findings. and on more than one occasion he thought they should have shown more deference to the congress. i just want to mention to the center before i began with what i want to represent to you. before answering questions that may occur to you, i shall make three comments. two of them relating to the supreme court's 2008 decision in the district of columbia against heller three and a third to the court's 1997 decision in prince against the united states.

as i am sure you all remember the central issue concerned the scope of the second amendment's protection of the right to keep and bear arms. over the years guns have been used for military purposes for self-defense to collect to the east and occasionally to fight the tools. in the united states against miller decided in 1939, the court held the congress could prohibit the possession of a shotgun because it had no reasonable relation to the preservation and the efficiency of a well regulated militia. when i joined the court in 1975, the holding was generally understood as limiting the scope of the second amendment to the use of violence related to the military activities. four years ago, however, in heller, the court concluded that

the amendment also protected to keep a handgun in one's home for purpose of self-defense. while the decision commentary by historians and other scholars has reinforced my conviction that the court's decision to expand the coverage of the second amendment was incorrect to good things about the court's opinion there its special comment. first, the court didn't overrule. instead, it over red miller to say only that the second amendment does not protect those weapons not typically possessed by the law abiding citizens for purposes such as short barrel shotguns. on the preceding page of its opinion, the court made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of

weapons protected by the second amendment because the protective class of weapons was limited to those in common use for unlawful purposes like self-defense. even though a sawed-off shotguns or machine gun might well be kept at home and useful for self-defense, neither machine guns nor sawed-off shotguns satisfied the common use requirement. thus even as generously construed in heller, the second amendment provides no obstacle to regulations prohibiting the ownership of the use of the sorts of automatic weapons used in the tragic multiple killings in virginia, colorado and arizona in recent years. ..

add emphasis to the narrowness of that. by describing uses that were not protected by the common law or state practice. prohibitions and carrying concealed weapons on the possession of firearms by felons and the mentally ill and laws forbidding the carry of firearms in sensitive places such as schools or government builds or impositiving conditions and qualification on the commercial sale of arms are specifically

identified as per admissible regulations. part iii of the opinion is admitly -- [inaudible] and it is embarrassingly inconsistent with the earlier argument in the opinion that the word, quote, people, unquote, is used in the second amendment has the same meaning when used in ore provision of the constitution. on page 581 of the opinion the -- the opinion confidently asserts that the term quote, unambiguously refers to all members of the political community not an unspecified subset, unquote. that assertion accurately describes the category of persons protected by the first amendment because felonies and the mentally have the same right to worship as they please as do law-abiding citizens and no

citizens need obtain a license to sprees his views publicly. never the less, i believe justice scalia deserves praise for including advisory opinion in part iii. my comment on the case will be brief. the case subject of a talk that i gave to the chicago bar association a few days ago i should are reserved for this audience because it involved the constitutionality of the provision of the brady act that required law enforcement officers to make background checks of perspective gun purchases during the period that the federal government was developing its own enforcement program. relying on a judge made, quote anticommandeering rule, unquote. totally unsupported by the constitutional text, the five justice majority held the

statute unconstitutional. in my talk, i described scholarly -- federal court's ability to respond to terrorist attacks and natural disasters as well as the efficient administration of federal programs. and i recommended a forward amendment to article vi of the constitution to nullify the rule. i shall not repeat what i said? chicago, i want to call your attention to one provision of the constitution that is significant for reasons that had not briefsly occurred to me. all of you, i'm sure, are familiar with the great comprise made by the framers who created a bi-- [inaudible] legislature including a senate in which both large and small states have equal representation. i am not sure, however, that your also aware of the fact that

article are of the constitution was described z the procedures for amending that document. contains the proviso prohibiting any amendment that would deprive any state without the consent of the equal suffrage in the senate. that provision institutes powerful evidence that the framers regarded the senate as the branch of the federal government having the most significant responsibility for protecting the sovereignty of the several states both large and small. as i said in my chicago talk, quote, the notion that they expected federal judges to fashion the additional rules for the protection of the sovereignty of the several states is really quite absurd. thank you very much. [applause]

[applause] thank you very much, justice stevens. is gracious enough to answer questions of us all. if you have question, there are two ways, you can communicate them. one is line up by the microphone here ask them directly. there are index cards on the tables, you can write questions down. raise your hand when you do, and there are staff who will collect them and feed them back to me. but to get the ball rolling, of -- while people line up, justice, there are a number of issues that have come up since the heller v. mcdonald

decision, as we mentioned whether attempts to expand those holdings. one of the major issues is an argument that the second amendment includes a right to carry guns in public places. and that governments are prohibited, in some cases, from enacting an enforcing restrictions on public gun carrying. what are your thoughts on whether heller v. mcdonald supports that extension. >> my prediction on the court will do or what they should do? [laughter] >> whatever you're free to say. >> well, actually, i think that what i said in my brief talk does have that particular problem not squarely covered, i think it quite clear that the holdings only relates to guns in

at home. it's specifically enlists the use of a possession of guns in certain sensitive public places as beyond the amendment. and it seems to me that the reasoning which justifies that limitation was equally applied to a right to have a guns available outside of the home in public police -- places if the law making body in that particular community thinks otherwise. one of the principle problems with the whole holding in heller and what developed since is the fact that ironically in the name of the federalism in the light -- holding -- interpretation of

the due process in the liberty due process clause which ends up with the ironic result that everyone though the preamble to the second amendment makes it quite clear that the amendment was designed to protect the ability of states in their own militia in states regular -- regulate the use of guns in the own militia. the irony of the holding is that federal judges have the authority to disagree with the state legislature or the state law making body. an ironic and preverse intertapings of the basic document. i also do think that deliberately narrowed in stating the holding, if you read the holding in the heller case itself and mcdonald's

description of the holding and relating just to guns within the home, i think that there's a very powerful argument for saying it does not extend to degreing with local community decisions about where which public places they should not be permitted to be carried. >> thank you. i'm not sure if you'll feel okay answering the question. it goes to how the supreme court reaches decisions. i've heard the view impressed at least in the margins in some cases, the court is affected by popular opinion and views. and i've heard it stated by some that the facts that many americans believe, according to polls with their a constitutional right to bear arms even when the history and precedent did not necessarily

support that view that that may have had some effect in some way on the court's ultimate decision in heller. what are your thoughts on the general theory how the supreme court arrives a the the opinions and how it relates to the case. >> i can't speak for anyone else who has been on the court. in my own thinking about it, first of all, you limit the issue in the chicago case to the due process clause of the xivth amendment which support a primary argument made by the litigants in the case the court disregarded or rejected that argument all except clarence thomas wrote a very interesting and strong opinion on that particular issue. that if you just look at the word liberty in the 14th amendment in itself in the drew

due process clause, i do think that the -- deeply held views of the people in general about particular issue that there is some force it an argument if people general felt they grown up with understanding they could have the pistol at home for self-defense purpose in the like i think it lends support to the argument that the majority adopted in the case. i think it's trumped by other consideration. i think it's not totally unfair for the court to try to appraise the depth of the feeling of the community as a whole to get some attention to the views of the individual about the right to have a gun at home. >> thank you. >> the heller decision has provoked much discussion on the history and the constitutional

history making and fireworks between justice poser in and scalia. what in your view does heller tell us us about the appropriate use of history in constitutional making? >> it tells us that sometimes people rely on it extensively can be wrong. [laughter] a dissident too. -- [laughter] the supreme court held that the second amendment assures that right to have a hand gun in the home for self-defense as you said. questions ask that protects only gun owners. whaibtd those that don't have guns. surely they have a right of self-defense. instead of relying on the second amendment wouldn't it be more racial to rely directly on the

rights we all have to deserves. what are your thoughts on that? >> i'm not sure i actually captured the entire question. but it does occur to me that one thing i thought about from time to time is that maybe you have a some kind of constitutional right to have a cell phone with a predialed 9-1-1 in the number. that might provide you with a little better protection than a gun which you're not used to using. [applause] >> speaking to us as lawyers who are often in court or writing browsers arguing that the second amendment right should not be extended beyond that which was recognized in heller v. mcdonald. what arguments, evidence or principles would you think that courts would find more

persuasive? >> well, i suppose one of the arguments that is actually not direct legal argument, but some of the statistics you assemble from time to time about the damage that's done by the unregulated use much firearms but it is strange, i have to acknowledge, and i find it almost difficult to sen the -- accept the fact that notwithstanding the recent tragedy i mentioned -- you mentioned a little activity that's been in law making bodies to address this issue for one of the arguments that i made in the both opinions, i think, is it's particularly ironic because it's an issue on both sides are well represented and there's no hesitation in getting your views out to the public domain.

and when an issue is a subject of such both importance and wide spread discussion, the fact that congress doesn't address it, i find mind boggling, to telling you the truth. >> thank you. >> you'll get much agreement on that thought. [laughter] justice, and i have to brag that when you mentioned the importance of statistics about evidence about the effect of gun violence that you did the great honor to us insighting our brief in the mcdonald case, which was written largely by the team -- it had to have been a good brief. [laughter] expwe have a nongun-remitted question. we like to think we make a difference when we appear before the supreme court or other courts and we persuade judges at

oral arguments but especially in the briefs, can you tell us has there ever been an argument where the oral argument actually switched your vote and generally the effect that briefs and arguments have had on you? >> i can't put my finger on any right now. i think -- every member of the the court may somebody who has been a there for a year or two like justice kagen may not be able to say it yet but over the years it's absolutely true that both oral arguments and briefs will actually change votes from time to time. and sometimes the impact to the argument really doesn't come home until you discuss it at conference and sometimes the argument will change your result. i know, a good many of occasions

when i've come out differently after argument than i expected to just on the briefs and certainly before i -- before reading the brief. the arguments make a great deal of dairches. difference. and don't ever think the court already made up the mind on most of the issues that come before it. because they wouldn't go through the routine and the trouble of having oral arguments and all the rest of it if they didn't think it made a difference to themselves. the fact that they tach such an importance to arguments is a demonstration of the fact they do have an impact on the actual process. of course, there some cases on which the issue is 0 clear there's nothing you can do with it. but in the general case, and most cases up there are not all that easy or they wouldn't be there. and most of those cases that the work of the lawyers does make a

huge difference. >> what is the likelihood that the the court will take another second amendment case in the next few years. what issues open issues do you think it's likely to address? >> i really don't know. i just haven't been prief privy to any discussions that were decided. i know, they left issues open. i would not expect them to decide a rash of cases. >> okay. another hotly disputed issue after heller v. mcdonald is what standard of review should be applied in second amendment cases and the some lawyers seeking to expand, quote, gun rights that courts should look to the first amendment and apply that injuries prudence to that second amendment. can you address whether believe

that's appropriate and what standard might be applied in these challenges? >> well, you may be asking the wrong person. i have never believed in a variety of different standards for different kinds of cases. i really think that as basically one standard of what sort of a generous use of the term rash shall basis not racial in the -- rational somebody can think of a hypothetical case that might match the standard. there is a reasonable justification for a law that is based on neutral consideration that actually justifies whatever the discriminate treatment is. and i would assume there might be different standards applied to different issues than arise. i don't think it's necessarily one size fits all for the second amendment in every case.

just as i think you can't say the same applies to the first amendment. i think there are aid a wide range of issues which different standards have been applied even though in the recent case under the invalid substitute that makes it a crime to brag about military declarations that you never receive in that particular case, i think justice kennedy wrote an opinion which about nine or ten exception to the strong presumption that the viewpoint regulation was per admissibility. there are exemption to every standard. i don't know how to answer that. i would have to wait for the case and the particular issue that came up. i don't think all second amendment issues will be anymore than all first amendment issues are. >> this is another nongun

question, but in your excellent book, five "five chiefs" which you don't me to show for your book buys. i would recommend it to everyone. it's an extraordinary book, you discuss some of the conventions that foster civility among the justice. do doff any suggestions that could foster civility among the private bar or capitol hill. i mean that as a serious question. you have a way of cutting across the sharp divides on the court. >> that's an interesting question. i just like to -- you're right. the same approach should apply within a multijudge court or within a legislative body or adversaries in the trial and i really think it's a very important part of your law practice to treat your adversary

with civility and courtesy and i think you will find you're more persuasive with the court if you do. those who get to the bickers over the minor discovery matter and the like do more harm to themselves than they realize. i think it's the same basic professional obligation of integrity and fairness of the alike applies in all three arena. >> okay. what do you sympathy is the biggest change you saw in the court from 1975 to 2010. >> if i read my book, you know the answer to that. [laughter] but i'll say the rest -- with the book. it was the change from thurgood marshall to clarence thomas. i say that with all due respect for clarence. he's a fine gentleman and good

scholar. the approach to the legal issues is so different from thurgood, that have probably the most significant change that occurred during my tenure. i'll comprise that the draft, i'm reading from the question, that the drafting second amendment was motivated by fears of federal tyranny in the form of overbearing standing army, how does this inform your reading of the second amendment? >> well, i think that's a legitimate and correct interpretation of history. they were concerned about having the federal government make militia unavailable to the states, and that concern does not involve in the lightest the right to hunt, for example,

chches protected in other state constitutional provision. or even the right of self-defense and especially protected in in provisions and in drafts that mad southern considered. but they ended up -- did have a preamble which i -- i think that's significant. >> this is another question from the audience, which my guess is you can't answer. i'll ask it ?ea. are you responsible in part for getting justice scalia to include the advisory portion of the majority opinion in part three. >> one of my response . >> part three of the heller

justice scalia's opinion in hell will. >> i can answer that. no. [laughter] i take no responsibility for anything in that opinion. [laughter] [laughter] your feelings on citizens united? [laughter] has anybody read the whole dissent? [laughter] it's a long dissent to read, but they're all set forth there. i really think it was the gulf incorrect decision i i do think though that -- and justice kennedy's behalf that the seats

for that opinion are were in the buckley case. there's language that does lend support to the interpretation that the majority took in in citizens united and i really think to get that whole area straight end out the way it should, they should i can't remember the exact language. in substance says you cannot restrict somebody's speech in order to enhance the speech of overs. but that isn't what is involved. question is whether you can oppose equal rules on both participates in the debate. and i think that particular sentence should be dis-- and rewritten in the whole -- you can then permit state regulations of spending and contributions designed to equalize the opportunity of

rival candidates to express their views so long as and this is a caf yet that justice put in his writing in buckley as long as there's an adequate opportunity for both to have a full -- make their case effectively to the board. >> this may be a leading question, but it appears from your comments that you'd agree that the battles over conceals carry restrictions, laws that restrict the carry and concealed weapons in public, laws that would restrict assault weapons, or would require background checks for all gun sales is it your view those would be constitutional even under heller v. mcdonald. >> i think that's correct. and as i said, i do think that justice scalia is entitled to

credit for his own decision or whoever else may have discussed it with him part iii in the opinion. didn't really have to be included at all. >> in your -- book, you talk about the importance of defense of how some great disaccepts in the supreme court history have ended up stating the position of the court years later. you have authored some great dissents are there any in particular that you would like to see or predicted you may well see being made in to effectively majority opinions in years to come? [laughter] i would like to see them all. [laughter] but i -- [applause] i really -- i really think that it is one of the worst.

i really do. and that would be the first one that i would change. >> another question from the audience, since the context second amendment is the outdated problem of citizens having to provision state militia doesn't that limit the scope of the second amendment? >> well, i think it would make sense to have it limited. but quite obviously the court decided otherwise in heller. >> and i think we have reserve some time to give you some token of our appreciation, but i have a couple of -- last minute questions. you can ask them. i'll question one -- the tennis player you talk about tennis players on the book.

which justice has been the best on those court. you can include yourself. don't be bashful. >> who is the best tennis player on the court? >> that you have seen open the supreme court. >> you may remember. i thought i was good when i played with justice black when i was a law clerk. i beat him pretty easily in the first second. he ended up the winner in the long second set. i then began to respect the abilities of aging senators and that respect carried on to applies to aging judges. [laughter] >> we have a question here. >> hello, sir, justice. i have a question and i insist on asking you personally i wanted to tell you what an amazing honor it is to be in your presence. i'm only 18 years old and interior interested in law specifically gun laws.

i'm an intern at the coalition to stop gun violence, and my question is, as you mention in your description of the heller case, the court considered fact that many people grew up with the idea that there was a constitutional right to have a gun on your person or in the home. i was wondering while it might not necessarily have been directly constitutionally represented, where do you think this idea came from or this idea or this understanding that you could have a gun in your home or on your person? >> where did the understanding come from? >> yeah. if it wasn't directly in the constitution? why -- where do you think it came from? >> i suppose a lot of it came from -- [inaudible] [laughter] and i think there a very large number of private homes in which a gun was kept notwithstanding

knowledge that might have been unlawful to do so. i think it's one of the beliefs that was encouraged over the years from time to time. >> thank you. i have what is called, it says a serious question on the card. and if you can avoid the lawyer-witness problem. baseball ruth call his home run in the world series which i hear you were a witness to. >> let me give you a little story about it. [laughter] i was asked that question at the you additional conference with the sixth circuit about two years ago, about three or four years ago now. and i said at the time i remember vividly that the ball both responding to the razzing from the guy bush and pointing to the center field bleachers and hitting the ball over the

center field bleacher, and that satisfied the audience. but after the session was over, the question the young man, i think he may have been a bankruptcy judge, i'm not sure. came up to me and said he department want to embarrass me in the proceeding before the whole group, but his grandfather had been at the game silting in the bleachers, and one of the treasured possessions was the ball baseball ruth hit in to the bleeshers. therefore when i recall the ball going over it. my memory true -- become unreliable. so after that experience i went back to the office and asked my law clerk to do some research. [laughter] the law clerks -- and she came up the correct answer. baseball ruth hit two home runs on that day.

we were both right. [laughter] and grandfather had gotten the ball in the bleachers. [applause] >> is there any -- no other e requests we have some small tokens of appreciation for you. first, jim and sara braidy, were sorry they could not make it here today but jim brady wrote a letter to you. dear justice stephens, how thrilled i was hear you will be speaking to the brady action project lunch. i want i wish we could be there to hear what i know the wisest. we're not traveling much these days but look forward to a transcript. as a fellow person from illinois you must know how much pride for

all you have done for our country. i'm proud to share with you membership in the quote, -- aptly named for the beloved cubbies. i know they will make it to the playoffs next year. [laughter] again, my thanks for honoring u on monday. my regards, james brady. and our first gift for you, i was told there's an a movement in your family to convert you from a cubs fan to a nationals fan. [laughter] and i should get the -- [applause] ryan zimmerman offed baseball might help with nap i was unable to procure that. i was able to get an autographed jim and sara brady baseball.

[applause] >> also, we were hoping you would be able to wear this to nationals games in the coming weeks but sadly you have to wait until april. this is your personalized -- [applause] jacket. [applause] thank you. [applause] [applause] [applause] i really want to thank you for everything you had to say today. and i tell you that even though since you know i'm a cubs fan. i did pay up past midnight the other night. it was a sad evening.

[applause] [applause] thank you all for coming. thank you for supporting us. if you could fill out the cards that are at your tables, whether you're interested in joining lawyers for safer america or not, and hand them in to staff members who will be making themselves known around the audience. again, thank you very much. [inaudible conversations]

[inaudible conversations] see the second presidential debate at town hall format tomorrow live on c-span, c-span2, c-span radio an onlined at c-span.org. watch and engage. coming up on c-span2, the supreme court oral argument in fisher v. the university of texas. a case challenging affirmative action policy in college another missions. later a discussion on affirmative action in college admissions. after wards panel of historians, journalists and film makers mark the 50th anniversary of the cuban missile crisis. scheduled to take affect in january 2013. speakers include peter roscoe republican congressman from illinois and -- democrat from pennsylvania. live coverage at 8:30 a.m.

eastern here on c-span2. later the american surprise striewt hears from the educationed a providers for the obama and romney campaigns to discuss their candidates' policy plans. we'll go live starting at 4:30 p.m. eastern here on c-span2. when i want to get the news without a lot of stalking and pundits adding their point of view. i can get the original script from a person and then i can come to my own conclusion. which i think is better than having someone else tell me what i should think. c-span, c-span2, and c-span three. two is booktv, which i love. c-span 3 is the history channel, and they have been doing civil war series, but when i sometimes want to visit the senate and see what the house is doing. i look at c-span for those.

she watches c-span on verizon. created by the american cable companies in 1979 brought do you as a public service by your television provider. last week the supreme court of the united states heard oral argument. a case dealing with the use of affirmative college -- white was denied admission to the university of texas and argumenting that racial minority with lesser credential were accepted ahead of her. the court before the court is an hour and twenty minutes. i get to say this is case number 11345. fisher v. the university of texas. >> trained me too well. chief justice and members of the

court, may i please, of course, the central issue here is whether the university of texas at austin carry the burden of proving that it use of race is an admission plus factor in the consequent denial of equal treatment which is the central man at a time of equal protection clause to abigail fisher, two tests of strict scrutiny. which are applicable. before we get to -- to raise on the own. the question of standing, the injury -- if the injury is rejection by the university of texas, and the answer is no matter what, this person would not have been accepted then how is the injury caused by affirmative action program? >> justice ginsburg, the first

injury before the court was the use of a system which denied equal treatment. it was a constitutional injury part of the damage claim was premisessed directly on the constitutional issue. >> past texas v will sage with that injury. >> the use of race is not -- injury sufficient necessarily. >> they were litigate order the merit and the question was whether the sage could carry the case on summary judgment when it was apparent that the complaint which that was he was denied access to the graduate program at the university of texas was not sustainable as i said there's several factor in the case that are different. there's a constitutional injury as such and doubter recognized it. second, the fact premises she could not have, allowed. wasn't raised below. it comes up in a footnote. >> can i go to another side.

>> she's graduated. >> correct. have she disclaimed the desire after the application to go to the school at all. she was permitted to apply to the summer program and get in automatically and she didn't, correct. >> no. that's not correct, your honor. she was not automatically admired. she was considered for the summer program and rejected. you're about it the c.a.p. program. she could have attended a different university in the texas system. >> she's graduated. >> she's not -- so what measure of damages will she get or will she be entitled to. >> well, that issue is -- we have reserved the ability . >> you have to claim an injury. what is the injury you're claiming that would sustain a claim of that ? >> the denial of her right to equal treatment is a constitutional injury in of itself. we claimed certain damages on that. we started the case before she was clear whether or not she would be or wouldn't be

admitted. >> you still haven't answered that. give me another question. >> on if we then on were to assert damages contingent upon the fact she should have been admitted but was not admitted but for the use of race that would be admitted whether we can or can't prove it. you can't on the record. it's merely asserted. i would point out there's no way to determine that issue. >> what happened. >> we've had cases involving a lynch discrimination in the state contracting, and we haven't required the person who was discriminated against because of race to prove that he would have gotten the contract otherwise have we? >> no sir. >> that is correct. that is the first premises.

the same issue is raced in the contention he couldn't have got anyone to the medical school. he has no case. the court said in footnote 14 to justice powell's opinion. it's a matter of merit. it's not a matter standing. i think in parents involved, the same type of cob -- contention was made with respect to louisville who had the son admitted to the school of choice and damages muff inspect it's sustained standing. there's a live damaging claim here. and i don't think the question. >> her claim is not necessarily she would have been admitted. but that she was denied a fair chance in the admission lottery just as when a person is denied participation in the contracting lottery he suffered an injury. yes. >> justice scalia, i agree with that. you're going the merit -- i want to know whether or not you are

asking us to -- said it would be good law for at least twenty five years. i know, that time flies, i think that only nine of those years have passed. and so are you and if so, why overrule a case in to which so many thought and effort went and so many people crossed the country and depended it on it. >> justice breyer, we said very carefully, we were not flying to change the course of dispositions of the issue could there be a legitimate a compelling interest in moving using race to establish a diverse class. what the problem we have encountered throughout the case, there are very understandings not of the legitimate sei of the interest, how you get there is it necessary to use race to achieve that interest what does a critical . >> the question is your point is does your case satisfy -- is

that what you're arguing? why we litigated on that base. >> how do you want to argue it right now in the next ten minutes. i'm interested. i have a short time to get my question out. i need to know how you're going argue it. >> justice breyer we can satisfy if it if it's properly read. >> may i can you on that specifically let's take away the 10% solution. suppose the only plan were the one that is before the court now. no 10%. it's the exclues iway the university is attempting to increase minority enrollment. then if we had no 10% solution, under ruther would the plan be acceptable? >> i think that would be flaws under it even assumed something that can't be assumed away. it's a matter of texas law. there's a top 10% program.

>> the question is can you have both but it seems to me that this program is certainly no more aggressive than the one in it's more modest. >> i don't agree with that. let me explain why. in order to satisfy that you have to say you are not using race but producing a critical mass. and so to be within the framework. the first question is absent the use of race would we be generating a critical mass. to answer the question, you have to exam in context the so-called soft factor. is there an isolation? do members of minority feel they cannot speak out. >> one social study that the

university did said that minority students overwhelmingly even with the numbers they have now are feeling isolated. so why isn't that under your test we can go back to whether substantiate evidence is adequate or necessary or not. why does their test fail? >> well, the survey was random survey is not reported any somatic way. they evidently interviewed students and was about classroom isolation. >> it was done before or after they announced the decision to reconstitute racial -- >> it was done after president had made the declaration they were going to do it. it was done before. which came almost immediately after our decision. >> i believe on the same day. >> by the way, do you think that goes to justice breyer's question do you think held there's no more affirmative action in higher education after

2028. >> no. that does not . >> i -- what i'm trying to pinpoint. we have a limited time. what i want to pinpoint. since you're argued on dissatisfied if properly understood, ooze you say that. we have the two-court rule. and two courts have found it seems to me, that here there is a certain -- no quota is individualized, it is time limited, it was adopted after the consideration of race and means, each app cats receives individual consideration and race did not become the predominated factor. i take those as a gift. i want to know what precisely it is that router required in your opinion that makes this different from of it not satisfied here. they were the same.

on something connected with facts to overturn it. >> that's why i mentioned it and particularly in the case of considering alternative that worked about as well. i think that's a legal question the the court is free. >> there are facts and there are facts. if i might try to answer your question, there was no effort in this case to establish even a working target or critical mass. they simply ignored it. they use words and said we have to comore. they never answered the predicate question which grutter asked. can we generate a mass. that's flaw we think is necessary for the the court to restate the principle. >> that's the normal fact exceed to holdings on.

whether there is or is not a critical mass? >> no. a weird kind of a fact. and i -- i'm not saying it's -- isn't if? a judgment justice scalia, that is correct. and downtowner didn't find . >> can you tell me what a critical mass was? >> i'm looking at the number of blacks in the university of texas system. -- it was 4 percent. today under the post grutter system it's 6%. the 29% increase is enough for you even though the state population is at 12%? somehow they reached a critical mass with the 2% increase? >> we don't believe the dem grasping are the key to underrepresentation. >> no. put that aside. i'm not going quarrel with you that demographics alone were

become used. i would be somewhat concerned. but you can't seriously suggest that demographics aren't a factor to be looked at in excision -- excision -- you mistake i think what i think is the proper thrust of . >> it might insulting to some to be thrown in to a pot. >> why don't you seriously suggest that? why don't you seriously suggest that the demographic -- that demographic makeup of the state has nothing to do with whether somebody feels isolated. if you're in a state is only 1% black, that doesn't mean you're not isolated. as long as there's 1% in the class. >> certainly -- i wish -- take that position it seems to be

right. >> justice scalia, racial balances is not a per admissible interest. we constantly the court constantly held a not a per mebility interest. that is something we agree with. prying to respond to justice sew to my -- what your looking as does the person member of so-called underrepresented minority of the concept we continue necessarily accept. are they unable to speak out. i think we always said if you have a very large number. as texas did in 2004, when the ostensibly made the constitution p decision to reconstitute race they 21% admission pert age of what they call the minority. they also had about 18% admission of asian-americans open on campus you're talking about 40% of the class being minority. >> the test is, the test is in your opinion write this in the

opinion. the proper test of critical mass the minority isolated unable too speak out? that's the test. that wasn't in grutter. and the reason it was satisfied there in not here and grutter the small number of admission minority admission looked a the l whole it was looked at as a whole only in grutter would have yielded class of 350 which means about 12 to 15 . >> what are you telling us is the standard of critical mass? at what point does the district court the deeing segregation on the particular state over decades. that it's now going to be stuck at the fixed number and it has to change the rules? what's that fixed number.

it's not our burden to establish the number. it was the burden of university to texas to determine whether -- this >> they are told they analyzed compensation of the classes and they determined in their educational judgment that greater diversity just as we said in grutter is a goal of their educational program. and one that includes diverse fying classes. so what more proof do you require? >> well, if you are allowed to state the grounds that need to be proved. you always prove them in fairness. >> the question is more who.

>> they were generating a substantial number of miesht iminorty on presence. >> that's enough now. >> and that immediately thrust upon them the responsibility if they wanted to, you know, essentially move away from equal treatment they had to establish we have a purpose where trying to generate a critical mass of minority that otherwise could not be achieved. >> tell me what about their use of race did not fit the narrow -- not the necessity problem you define ited but the narrow tailoring grutter required. how is race used by them in a way that violated the terms of grutter. >> assuming that the need is there. i know, you're challenging me. >> put aside -- what is necessary and whether it was appropriate in last resort in a request for diversity and political mass. i put that aside and come directly to your question, first of all, if you think about

narrow tailoring you can't taylor to the unknown. if you have no range of vails. if you have no understanding of what critical mass means you can't tailor to it. having a range of view would be appropriate level to critical mass allows to evaluate where you are . >> we won't call it a quo that. we'll gall it a goal. something grufter said they shouldn't have. justice, it's important to disting every year of each application which was -- it sounds to me that you should not be doing individualized

assessment of the applicant. tell me how this system doesn't do that. it's not narrowly tailor. there are certain forms that it follows. >> do you understand what the university of texas think the is the dpef in addition of the critical mass? >> relying on the 10% is enough. they got minorities through the 109% so they don't need anymore. and i try to get you originally to focus on forget the 10% plan. this is the entire plan. >> well, let me tell you that if you look outside the top ten, the 0 called aipia admits only forget the top ten for a

minute. they were generated approximately 15% minority admission outside the top ten which was above in grutter. >> the 10%. >> no. i'm talking about only the nontop so% admissions. 15% of those so were called underrepresented minor tip. this is without the this is before the adoption. >> that is correct. >> those were the numbers. >> i am confused. i thought the 15% figure was arrived at with the 109% plan. no. it is higher.

in fact but the pai system which was adopted in response it was as texas says it was the first thing they tried to accommodate to their loss of the ability to use race directly. that was the first response. to look at it more balanced it's not system -- can you comment on this. i hope we get back to the question -- so few minority i

have trouble with that in the brief. what's the problem. >> it's the question that unless assume needs to be done. that it resulted in the admission of many minorities then you come back and say well, this is shows that we were probably wrongly exclude. >> i see an inconsistency here. you shouldn't impose this if we takes texas at the word and said they are satisfied and happy going on with way they apply race today, we try measure well, what difference is it making and could you achieve the the same thing with a reasonably available race alternative.

that was question that was asked in grutter. they didn't answer it. >> if the race neutral alternative is the 10% plan. >> the race neutral alternative includes extension -- right now -- that's okay because it's race neutral but is it really the only reason they substituted the 10% plan was to increase minority enrollment. >> and that -- the only way it works is if you have heavily separated schools. and worse than that, if you want to go to university of texas under the 10 percent plan to go to the low performing schools, you don't take challenges forces but that's how you'll get in to

the 10%. so maybe the university is concerned that that is an inadequate way to deal with. >> justice ginsburg. let me say that a lot of that is speculative. there's nothing in the record to support it. we don't know, we never surveys to see ask you -- the 109% plan is not imposed by the university. it's not their option. to say it's not good for education because please , ma'am take easy courses. it's imposed by state law, isn't it? >> anybody no the 10% of the gets to the university of texas. you can't disregard the cons agains. it's a matter of law. they could choose to extend it beyond. ..

>> take hundreds of thousands of these people and have federal judges dictating the policy of all these universities. you see, i'm looking for some certainty. we saw the numbers.

>> i will answer your question and you can answer it later if you want were not accurate at all. [laughter] >> i'm perfectly happy to answer your question. i think that the increasing african-american information you're looking at, it was generated for 2004. sorry, just want to make sure that the record doesn't depend on doing this. of minimal change in regards to race, that is why we say is an alternative. it increases yields or puts more emphasis on the socioeconomic factors. which is an academic measure within the vai. >> is not a job [inaudible]

>> and overwhelmed them with other factors in their system has created. >> i think, just to answer your question fully, you have to analyze these alternatives and the outcome was so small that they aren't readily available.

>> the implementation is not effective. which of those are you arguing? we are arguing doing both. we continue to argue about. >> in what respect? >> under the first category. we don't believe they have shown any necessity for doing what they are doing. certainly, race should have been a last resort. and they failed in every respect. if you go to what we are thing or not alternatives, as we have pointed out, asian-americans, there are a lot of asians. a democratic measure, in excess of their share of the taxes

population. if you are trying to find individual comfort levels, breaking it down between african-americans and hispanics. >> asian numbers have gone up into however they structured as cai. as i understand, their position raises balance against other issues like socioeconomics and the classes people do. goes to an entirely black or latino school who becomes vice president she has proven that they foster [inaudible] and that is how i understood their plan. but it is not just giving you a

plus because of race. it is combining that with other factors to leadership. >> leadership is an independent actor. he's getting that because of his independent leadership. race is an independent add-on, it can be used to boost the pai for the pas element. it gives disparate treatment to asian-americans and to the extent, depends on the classroom factor. there is simply no way to relate what they are doing to the solution of the problem, which

they used as a major foundation of their proposal, which is the non-diverse clasroom. certainly there is no correspondents there in a few in my time as a for two overriding reasons, they are holding this court is approved and the harvard plan. >> i had put that in the category, it is now clear the way that he says.

in achieving an interest that is compelling. the universities interest in assembling a broadly diverse body. >> what exactly do these numbers mean? >> someone who is one quarter hispanic, check the hispanic box. >> your honor, there is a multiracial box. students checkboxes based on their own determination. >> suppose you are a person who is one quarter hispanic. >> and they would check that box remember when about one eighth? >> your honor, they would make that self-determination. if anyone in any part of the application violates the on

record in the honor code. >> when someone was 18 check the box, wouldn't that violate the honor code? >> i don't think so. [talking over each other] >> no college in america -- >> have you know that you have 15% hispanic? >> your honor, it is the same way that that determination is made in any other situation i am aware of. the person self identified on a form. >> they do not, your honor, every year people do not. >> how do they decide? you know, it is not just in the school at large, the class by class. how do they figure out the particular classes don't have enough? whether someone walks in the room and look them over to see who looks asian and who looks

black and looks hispanic? is that how it's done? >> no, your honor. the university has never asserted a compelling interest in any specific diversity in every single classroom. it is simply looking at the class as one dimension of students. >> i don't know what you're talking about. there is either a factor that is i'll be in this case, or it isn't. >> do they look at individual classroom diversity, or not? is so? how do they decide when classes are diverse? >> it may be the most important thing that he said. when given an opportunity to challenge and this court recognizes the fact that the classroom is one the most important environments with the educational benefits of diversity is realized. in determining whether or not -- [talking over each other] >> have a look to the classroom?

do they require everybody to check a box where you have somebody figuring out if this person looks 132nd hispanic? >> what kind of a study? >> well, it has to do with the joint appendix. >> it doesn't explain how they go classroom by classroom deciding how many minorities there are. >> there are students in each classroom. students must. >> student lists for each classroom? that have race identify? >> no, your honor. each classroom -- the university knows which students are taking its classes. if you want to gauge diversity in the classroom, just go back to welcome you go back to what they checked on the form? >> your honor, this is part of a -- >> yes or no question? people that what they checked on her application form in deciding whether economic still one has a sufficient number of

african-americans or hispanics? >> that information is available to university, your honor. as they checked the box on the application. i do want to be clear in the classroom diversity studies. this was only one of many information points. >> i am talking about classroom diversity. how does the non-10% target the plan for further classroom diversity? i understand that universities have over 5000 and the total number of african-americans and hispanics who were admitted under the part of the plan is challenged with just a little over 200. so how does that happen to increase classroom diversity? >> there are many more minorities. >> per class? >> no, not on a per class basis. in looking at the classrooms, with the universities found was

shocking isolation. >> how many non-top 10% members of the two minorities had issues here. >> your honor, we did not look specifically about determination. in other words, we did try to find whether they were holistic in the percentage. this was before the plan of his she was adopted. what we concluded is that we simply -- if you look at african-americans, 90% of the classes -- >> i don't understand that answer. you know the total number of african-americans in class. >> yes, your honor. >> and you know the total number who were admitted under the top 10%? >> we do, your honor. >> your honor, at the time,. [talking over each other]

>> let me try to explain why the university did not look specifically to that. it was before the whole process was adopted in 2003 in 2004. that determination had been as important and just finding out if african-americans and hispanics are underrepresented. >> what is that number? what is the critical number of african-americans you are working toward? >> your honor, we don't have one. >> are we supposed to tell if this plan is narrowly tailored to that whole? >> to look to the same notion as that you came up with a fixed percentage two asking from group to group, does it vary from state to state?

>> it certainly is contextual. i think it could very, your honor. throughout this litigation, it is 20% is a critical mass. >> did you answer my question -- what does the university of texas think about those questions? >> with a dependent upon the breakdown of the population of texas? >> no. it is not at all. it is to the educational benefits of diversity on campus. we actually agree on what that means. >> could you explain, i think you were trying to before. it seems to me a critical question in this case. >> were those minorities

admitted as a part of the 10% solution? >> let me make a couple points. first, if you just look at the numbers to make come if you look at the numbers after seven years, racial diversity among these groups, at the university of texas had remained stagnant or worse. academic enrollment had actually dropped 3%. if you look at the admissions under the top 10% plan, the top 10% of high school graduates, that is one of the best. >> i don't understand as well. >> is true for any group -- this quarter proved that he would not want representatives with different viewpoints with individuals within the same racial group. just as you would from individuals outside of that. >> what kind of viewpoints?

>> anyone's experiences, where they grow up, the situations that they experience in their life. >> i think it directly impacts the educational benefits. the minority candidate who has shown that he or she had succeeded in an integrated environment has shown leadership, community service and the other factors that we look for is precisely the kind of candidate that is going to come on campus and help to break down racial barriers and work across racial lines. it shows the breakdown of africans and the percentage plan and i don't think it has been seriously disputed in this case

area. >> you make a very different argument that i have never seen before. the top 10% plan, lots of americans, lots of hispanics, and a fair number of african-americans. you say that it is faulty because it doesn't admit enough african-americans and hispanics to come from privileged backgrounds. and he specifically have the example of the successful professionals in dallas. and that is your argument. let's say one is a corporate lawyer and you have income to put them in the top 1% of

earners in the country. they deserve a leg up against an asian or a white applicant whose parents are absolutely average in terms of education and income >> let me answer the question. first welcome of example comes almost word for world from the harvard plan to this court approved. >> our point is that we want minorities from different fronts. we go out of our way to recruit minorities and disadvantaged backgrounds are what you are saying is that what counts is raised above all. >> no, your honor, -- [talking over each other] >> what we want is different experiences. >> underprivileged of a certain grace and privilege of a certain race. that is raised.

>> no, your honor -- it is not race. it is just the opposite. this court said that they are taking into account members of the same race. >> but the reason you are reaching for the privileged and so that members of that race can be represented. and that is great, is isn't? >> members of the same racial group are bringing different experiences. and to say that if you had an admissions package that only admits people from a particular background or perspective, you'd want people from different perspectives. that is the interest that we are discussing here, but the harvard plan specifically adopts. >> i understand that my job under our precedents to determine if your compelling interest you identified is

allowing a critical mass of minority students at the university of texas. he will not chummy with the critical masses. >> when will we know you have reached the critical mass? there has to be a logical endpoint to your use of race. when will i know that you have reached a critical view of? >> i understand that you haven't challenged the diversity at all. what we look do and what we think that the courts can review this determination -- when we look directly from students. >> so you ask students if they feel racially isolated? >> that's one of the things that they do? >> that is the basis for our constitutional determination? >> another is that we did look to enrollment data, which shows among african-americans that

african-american enrollment at the university of texas dropped to 3% in 2002, under the percentage -- >> we all agree the critical% is not a critical mass. >> what level will it satisfy the critical mass? [talking over each other] >> am hamas was to decide whether you have an environment with particular minorities when they don't feel isolated? >> part of it is the judgment that the educators are going to make. >> when you tell me, that's fair enough. >> no, your honor, you look to the criteria that we look out. the enrollment data, we also took into account diversity in the classroom,. >> with 3% be enough in your bordering state with the african-american population is around 2%? >> your honor, i don't think it would. it is not tied to demographic.

none of the key facts are in dispute here. some think that race is only a factor here. some consider individuals in their totality. >> i think that the issue is, as my colleagues are asking, is at what point and when do we stop referring to the university's judgment. that is the bottom line of this case. you are saying, and i think rightly, you can't set a quota, because that is what our case is that you can do. we're not going to set a quota, what do you think is the standard we apply to make the judgments? >> i think the standard is that you would look to whether or not

the university reach an environment in which members of underrepresented unturned underrepresented minorities do not feel like spokespersons for their race. an environment with racial austerity is promoted. the reason why university of texas concluded that environment was not met here, laid out in several different information points,. >> that is only another 16 years, right? that seniors were going to call it all off? >> we don't establish it as a timeslot. >> in means the advocates are, and what we would look to his once we are looking at this -- we're looking at it carefully, and once we reach that point, of course we are going to stop. [talking over each other]

>> some of the stuff you agree with and some of the stuff it says that you don't agree with. >> i don't know that i disagree with anything. >> we have a point that i'd like you to answer is the documentation is just too small to use a racial criteria. so how do you answer the argument? >> first i would say that it consideration of race helps enrollment. secondly, i point to the fact that african-american hispanics admissions doubled between 2002 and 2004. so this is not a very important impact on diversity at the university of texas. >> how do you justify lumping together all asian-americans? you have a critical mass of content filipino americans and

cambodian americans? >> do have a critical mass that serve all the subgroups within this group of americans? >> we look we have a critical mass of underrepresented minorities. which is exactly what we were asked to do. >> if i can make a quick point of jurisdiction. >> suppose we identified a numerical category and standard, a numerical designation for critical mass. with x percent. during the admissions office checking this -- >> no, and we don't. on page 389. >> you cannot do that? >> we would not be monitoring

the class. >> isn't that what happened? router allow that? >> was one of the things he pointed out. what i'm saying is that we don't have that problem. >> i am asking whether or not you could do that. >> i don't think so. because the majority didn't understand it to be monitoring for the purposes of a specific demographic. >> the race is the only one of your holistic factors that appears for your education, right? >> all of the factors are taken into account. >> i'm sorry, it is like race is the only factor that appears on the cover. >> could i make one point on jurisdiction. >> i would be little more time since we are going to give your friend a little bit more times to the fundamental problem with jurisdiction is this. first of all, if you're not sure that she was injured by any

consideration of race. that artist pages for 15 important 16 of the joint appendix. >> are you arguing that she doesn't have the standard -- [talking over each other] >> you address that in the brief but no? the matter what you gave us is one footnote in which he said it is hard to see how she could establish [inaudible] >> there is another part that comes from not which goes to the believe that she has requested. declaratory and injunctive relief that this case begin with, that request was undisputed. the only thing is a request for monetary damages. that request is on page 79 of the joint appendix and is it focused exclusively on a request for the return of admissions fees. the reason why that is not an offer of standing is because she would have paid the admissions be no matter what policy had.

>> what about our jacksonville cases that it is an injury to be forced to be part of a process in which there is race consciousness? that the injury is not sufficient in a case like this where you only have monetary damages in jacksonville and all the other cases, the declaratory and injunctive relief where people are going to get contracts again. >> looks like your friend told us that these remedial issues and damage issues are being segregated out of the process and are still available for review. >> that is not an answer for jurisdiction for this reason. it is true that we can go ahead and prove damages. but the complaint makes no doubt that the only request for monetary damages is a request for admissions fee. they said that relief is not a lot that is the very essence. it comes from the stelco

case to it is not the only injury, perhaps. did she have to pay an admission fee for a process in which she was not treated fairly? >> why should she get her money back? >> the reason why that doesn't address the injury is that she would have paid it when they didn't consider race at all. therefore, the payment of her application fee does not remedy injury and she's complaining about. >> now, i ask you, i want to use accurate numbers. and so i discover, i wanted to find out how many universities actually use this kind of process in one of your admissions officers is the only place that had that information. i just want them to do it because it might give your view

here. if you could agree roughly on what that number is, i would like to know it. otherwise i can use other numbers, which are [inaudible] >> i don't have specific numbers. the best universities, the best have been using this plant for 30 years or more. >> i'm curious to know -- this is a very ambitious racial program here at the university of texas. how many people are there in the affirmative action in the department of university of texas. you have an idea? it must be a lot of people to monitor all these classes and do all these assessments. a large number of people would be out of a job, when they?

we certainly just went to 10%? >> one of the things of university of texas does monitor is the racial climate on campus. it does not all students on campus. i don't have the specific number of people, but it is an important part of improving the educational experience for all students at the university of texas, no matter what their race. >> thank you can. >> general? >> in resolving this case, it is important to focus on what is over what precisely is not an issue. the petitioner is not challenging the reaffirmation of the principal of justice powell's opinion that student body diversity is a compelling interest that can justify the university admissions.

colleges and universities have relied on that principle in shaping their administrations policy, and it is of vital interest of the united states. corps of our interest is ensuring the nation's universities produce graduates who are going to be effective citizens and an increasingly diverse society. >> those from privileged backgrounds. >> i understand that differently, justice alito. here is how we understand what is going on with respect to the admissions process. and i'm going to address this directly. i think we need a bit of context to do so. the top 10% plan certainly does produce some ethnic diversity, significant numbers to them. the problem is the university can't control that diversity in the same way that it can with respect to the 25% of the classes that make it a holistic

process. with the universities generally looking to do is not to grant a preference for privilege but to make individualized decisions about africans who will directly further the applicant issues. for instance, the hispanic who has mastered classical greek. they can also look for those who demonstrated a track record. those who come from affluent backgrounds, those within a preference, it is a marginal case, the last position available in the class under the texas when one. you agree do you agree with that come or not? >> no, i think you agree that

that is an incorrect statement and the facts are and understanding of equal potential. >> i think that there is no automatic preference in texas. and i think that this is right in page 398 of the joint appendix. they describe the process of saying an applicant's race is only considered [inaudible] >> the hypothetical is that the two applicants are entirely between. if the ability -- the minority student gets in and the other one doesn't. >> i disagree, justice scalia. what i think texas has made clear and i think this is a common feature of these kinds of holistic approaches, but not everyone in an underrepresented

group gets a plus factor. >> it's not a matter of everyone. cynical and all other respects. what is the racial preference mean? it may not be one that depends on a holistic view of the applicant. >> i just don't understand this argument. i thought the whole point is that sometimes race had to be a tiebreaker. and you are saying that it isn't. the mission to see you can use race. >> it functions more subtly than that. >> but it doesn't unction suddenly in every case. >> racism meaningful factor. if it doesn't make a difference, then we have a clear case by

using recently that doesn't make a difference. this opposition has to be that raises a determining factor. unless it is a determining factor in some cases, they are using rates when it doesn't serve the purpose at all. >> you can make a difference. it just doesn't invariably make a difference with this respect every applicant. >> but you have to agree that it does to some. >> yes, but it does not in all. >> the same would be true -- under the policies now in the military economies. >> that is exactly right, justice ginsburg. but it is not a chemical factor. i do think it is clear, all the

petitioner challenges implementation, that this plan addresses the concern of justice kennedy. there is no quota. everyone competes against everyone off. it is an individual consider is a shame. because of the way the process is structured, they do not monitor [inaudible] >> the supposition of justice soweto's question is they are not and identifiable chemical factors. the factors are so contextually sent. no two applicants could never be identical in the sense of hypothesis.

>> that is correct. [talking over each other] >> as i understand it, racist take into account. >> the key is the way it makes a difference and it makes a difference by casting accomplishments of the individual applicant in a particular right where the potential of an individual applicant in an important light. race can have a bearing on that because it has evaluating accomplishment. it has information about what they can bring to the table. what they can bring to the student government and what they can bring. >> but it is the correct answer. if there are, every two

applicants, the essay one, as they do, leadership, awards, work experience, community service, socioeconomic status, families responsibility, languages other than english spoken at home and sat scores relative to average rates. if you had a situation with all of this thing, then the person would be admitted on the grounds of race. >> not necessarily. >> i'm trying to make a simple point here. >> before your time runs out, let me ask another question. >> you devoted a lot of attention in your breach of the military. could you explain your rotc argument? >> the rotc program has this

plan are the top 10%. >> our military is on a pipeline of well-qualified and well-prepared candidates from diverse backgrounds who are comfortable exercising leadership in a diverse setting. >> i don't want to cut you off. so you have a marginal candidate who wants from the university of texas and is interested in rotc. if race is taken into account, the candidate gets in. if not, he doesn't get in. how does that impact the military? the candidate will probably go to texas a&m or texas tech. is your position that he will be an inferior military officer if he went to one of those? >> the point of educational diversity, point up with the university of texas is trying to achieve is to create an environment in which everyone

develops appropriate citizenship and a capacity to we in the racially diverse society. so it will benefit every rotc applicant. 40% come from the rotc. it is a very significant source from our military leadership. >> what is your view on how we tell whether the university has attained critical mass? >> i agree with my friend that critical mass is not a number. i think it would be very ill advised -- >> our responsibility is to decide whether this use of race is narrowly tailored as critically mass. >> thank you.

>> it has achieved the level of diversity that needs to accomplish the educational mission. the court has to make its own independent judgment. and the way that the court would go to make independent judgment is to make the kind of information the university consider, that the information about the composition of the class, it could be information about classroom diversity, it could be information about the graduation rates and it could be information specific to the university's context and history. there could be a series of factors. the university has substantiated this conclusion based on that -- based on the information that is considering. it needs to consider race to

further advance this. i will say that a number of universities that do that was going to get that at the time. it would raise exactly the kind of problem that i think justice kennedy identified in creating hydraulic pressure towards outnumbering. >> we should probably stop calling it critical mass then. because mass assumes numbers. >> we could call it a cloud or something like that. [applause] >> i agree that the idea of critical mass has taken on a life of its own in a way that is not helpful. it doesn't focus where it should be. if i could just add one point, it is important that our

university has the flexibility to shape their environment and their educational experience to make a reality of the principal that justice kennedy identified. our strength comes from people of different races, uniting in a commitment to freedom into a more perfect union. that is what the university of texas is trying to do with its admissions policy and it should be upheld. >> enqueue. >> mr. ryan, 10 minutes. >> okay, thank you, sir. more than i expected. >> a level playing field for abby fisher. they're just three things i want to touch on. first, there has been a lot of back and forth.

as we have pointed out, it really relates to marriage. and i just want to make clear that we do not accept the premise of that footnote that she would not have entered under any circumstances and they have asserted that, but in fact, she was -- >> it was limited to the release and the return of the $100. >> no, at the point where we were writing it -- >> in alvarez we said and he and other damages are too speculative. it is actually what you see that i said in the return of the $100.2 what i am saying is that we never had the opportunity to develop the full -- >> we said we can't manufacturer standing after the fact. did you act with a specific $100

only? >> the only specific complaint because of the point of time in which it was filed was the application fee, -- >> and indy would be that no matter what? >> under any system, you would've paid the same $100? >> you would've paid the fee in return for the application, which she did not receive. it is not tested at this point. the second thing is, because of the way the case was handled, we did not develop the additional damage. we reserve the right to amend, and as things have progressed -- [talking over each other] >> in the cio, what we pointed out is there were other kinds of financial injuries which were not ascertainable at the time the complaint was filed because we were trying to -- >> sequin have done a better job because she went to another university? >> there are differences in

costs between what she paid at lsu in which you would've paid at ud. i'm guessing that these are all reserved questions and they don't go to stand that the court made that clear. let me go to another issue that i think i never completed my answer to. where we stand on what we should do is that we recognize that there is an interest which is cognizant -- what we are concerned about, as you see here is that universities like university of texas have no discernible target, no critical mass -- any circumstances reduced to something that can be reviewed. as long as you don't cross to wines, and fix quotas, meaning that you will build this exclusively with whom to be

deemed as a representative -- we don't think that's the way it was intended. they were intended to say this is an area of great caution using race. race is all kinds of red flags. the educational interest. >> you are not suggesting that those three minority students who got into university, got into only the physical education, and in this particular university, that physical education includes all of the star athletes -- so every star athlete in the school happens to be black or hispanic or asian or something else, but it has now reached the critical mass of 10 or 15%, the university in that situation -- in a holistic way that it

permits? >> if you are talking about a differentiated separate college comment you change the nature. >> no, they said everyone of their students who happen to be a minority is going to end up in that program. you don't think the university would consider that it needs a different diversity for other departments? >> well, if that were the case, remember the factors that are causing it. you have a critical mass of students. they choose to major in different things. that is one of the biggest problems with the classroom diversity project. they never ask the question why 40% of students are minorities. why does that happen? physically would say that is an aberration. you might ask the question of what is causing it. >> when we are looking at the holistic measure, we are looking for that student -- that

minority student that is a nuclear scientist? >> no, because they don't take into account or ask you if you're going to join rotc. they don't ask if you're going to major in physics. when it comes time to access different majors, they do that in a way that is basically promised on academic preferences. they have a two-tier system. it doesn't go to sorting people by majors. i think our answer is when we see it has been perceived as a green light. go ahead and use race. race is a highly questionable abominable sorting out. that unchecked use of race, which we think has been spawned --

>> anymore starting us off this off in 1978? the many different facets of how race is used? >> those are two different questions. the harvard plan is a very different world. it compares individuals one-on-one to establish the platonic idea of a class of an educational mission. this is not what is going on at ud. this is not an individualized thing. this is something that will be scored individually. i am not admitting people. i am admitting categories, boxes, and that relates to justice alito's question. in the way they do their system in the scoring, you can figure out that two people would have had the same score -- it is an add-on and allows them to talk

about the x percent four. that is contrary that they get points for the socioeconomic advantage. but it is purely race. it comes to the ultimate question then, which you are asking, where is the endpoint? if you have nothing to gauge the success of the program, you can even say that we have critical mass because we don't know what it is and it we refuse to say what it is. there is no scrutiny and there is no endpoint to what they are doing. what we have said comes right back to justice breyer.

it requires you to do a, b, c. there could be enormous confusion and. >> you want to do is read what we wrote. there could be underlying determinations of critical mass. exactly how it has been done in texas. i will then find enough of the difference that i can write some words that could be administered by two or 3000 federal judges as they try to deal with the programs like this. that is the point, is that right? >> you clarified a necessity point. if you then look at some of the other deficiencies and clarify the consideration of the available alternatives, if you

want to clear the odious classification, that's what we're talking about, it's a narrow window. once you reach a certain number, then you can't use race anymore and. >> i don't want to gut it. the only way one could reach that conclusion is to assume that it isn't unlimited mandate just use race to your own satisfaction. and to be deferred to the use of race. that is the invasion of abigail fisher's rights of law. >> the cases