that the federal law had to fall because marriage a matter for states. you can see how you make the opposite argument if states don't want same-sex marriage, federalism principles suggest they don't have to have it. >> and justice ken i kennedy rejected the argument from the bureaucracies. the administration wanted. in fact the standard isn't really crystal clear. it's sort of a federalism plaza equal protection slightly higher but not up to heightened for any other audience which is what they are they talk abouting. yop know it matters and this is what is going to matter. t sub standard legal work. you cannot tell which standard they are using to get to where

they are going. >> i agree with that. do any of you put that in your articles or is that something that is such an insight audience your generally readership doesn't care? >> i said it was hard to locate the constitutional at work in the doma decision. it was federalism with equal protection and dash of due process. [laughter] >> don't you think the same thing could be said about the voting rights case. >> my gosh. >> the votes rights case, if you ask the average person why was it part of the voting rights unconstitutional. usually you point to some provision in the constitution that said the law -- john roberts made a vague reference to the tenth amendment which says, you know, if things are not part of federal power, there's the 15th amendment that says right to vote shall not be denied or abridged on the count of race and congress should have the power to enforce this to appropriate

legislation. well, congress decided how could that be unconstitutional? and i thought john robert's opinion made a very good sort of political science common sense argument, which is this is all based on data from the 19 70s. it's old, it's outdated. doesn't make any sense today. i thought it was hard to say as a legal matter yfs that provision unconstitutional. >> it comes down to a case you will remember, the bernie case, that not all five conservatives subscribe to. nobody was going to write a story that they're not on board of berch any. the truth was it was part of it. they didn't articulate for the five justice majority exactly what the standard was. it's going to be complicated going forward too for power of congress. >> and -- in the several of the cases last week, but particularly in the

doma case, justice schee ya, in several cases doma case he delivered quite an impassioned oral descent, more impassioned when you can see it in the courtroom than readerring about it in the newspaper. joan, you recently published his oral dissent become even more impassioned over the years? do you think. or is it the same person? >> it's hard to know when he's more revved up or not. he's always revved up about something. the one in the courtroom -- actually, this time when he dissented in doma, i believe he dissented for 13 minutes, and anthony kennedy who read the opinion went on for eight minutes. the the earlier one he was on center stage for 11 minute dissending in the dna case where the majority said it was okay

when someone is arrested to take a dna swab. he was very much against that. this is a genere of his. and ruth bader begins berg showed it was one of hers too. it's a way for the dissent to call attention to his or her opinion. then we take it and run with it. justice scalia told me in 1988, when he did his major dissent in the independent case. had a wonderful line that sometimes the wolf come in the sheep's clothing. the wolf comes as a wolf. the reason he decides to dissent, byron white said we have a practice here if we feel pay nately about a dissent we should one a term do that. so scalia did. he went on for nine minutes in 1988. i think each year my colleague will correct me. i think each year he does once.

the doma one was if he could have pounded the fist he would have. but the words carried it. >> one of the great thing of being in the courtroom. he has a great story teller voice, for one thing, he was going on and telling the story. he can be very sarcastic. he's really rolling along. then he finishes, and then he has written the majority opinion in the next case. so the chief justice says now, justice scalia will give the opinion, he had to like recalibrate sorry about that. then he tried to start again and using his sarcastic voice even though he was reading the majority opinion. he had to shake it off and start over again. [laughter] >> i wonder what my colleagues think about whether the justice who wrote the majority knows that the oral dissent is coming

and whether they know what is in the oral dissent. >> well, you know the answer, don't you, adam? >> i'm not sure they do. >> they know now somebody will be dissenting. we learned over time that they think it's good manners to let -- [laughter] the majority justice know that a dissent is coming. but they do not know what is actually in it. because justices make it available. it's somebody is personally reading. if tony read the majority, and kennedy reading the majority, and scalia wise acre saying how dumb you are. you know. that's the tone of them. >> and these are people who basically live a life in which everyone thinks they are funny and wise. all of a sudden they are getting a tongue lashing which not all of them enjoy. >> think they should make it clear now that when justices

re-- read their opinions and dissent, they're not reading the while thing. they are writing a summary that they or their clerks have written. and so it has -- i guess it's about as close to spin as the justices can get. they are able to tell the public which part they are think are important, and the nuances. and there's been some discussion, actually senator durbin, toward the end of the term, asked the court to allow the broadcast of the opinion announcements. there's an unsuccessful campaign that's gone on for decades to allow camera coverage of the arguments, but he was focusing on the opinion announcements as sort of a foot in the door. i think that's an interesting

idea, but -- and i think it would get rid of some of the objections that justices have at camera of oral argument. the dianamic of the justices interacting. they think would be effected. but the problem is the court doesn't like the idea of a opinion announcement being featured. they don't want people -- they don't want lawyers to be citing the words of the opinion announcement instead of the opinion i.t. it's not actually -- it's a summary and maybe oversimplifies things. anyway, i think there is something interesting about these separate entity of opinion announcements as far as the public access to that. i wish it was greater. >> the audio that have becomes available at the end of the term. and they are fascinating. when you listen to the health care announcement. there's a sense of dpra ma in the room as the chief justice

gradually lets you know where he's going. >> if you go back and listen to the announcement from this year. i thought there was something odd, jaw dropping. on tuesday john roberts driver -- delivered the opinion parting of the voting right. and ruth reads it and it's an act of arrogance on part of the court to strike down a law that has been passed over whemmingly by congress. the four liberal justices dissent. the next day they strike downtown deafen of marriage act. justice scalia lights in to the defense. he calls it jaw dropping arrogance we are overturning the decision of the congress and in the executive and the defense of marriage act, a popular law. he made fun of the voting rights act. like who would vote against? who would vote against something called the defense of marriage act. pretty easy in the mid' 90s to talk about that.

when the justice is talking it's like anybody there the day before that. wait a minute, pal, weren't you exactly on the opposite side of the very much the day before? >> i like the form of reasoning there's something -- you should be skeptical about. the voting rights act was passed 98-0 in the senate. something that pass that overwhelming majority was to be disfavored. >> right. and i wonder if justice scalia he was confirmed by the 98-0. [laughter] >> justice alito wrote a very interesting dissent from the dough that -- doma but didn't have room for it. did you have room about it. it was only for himself. >> i certainly mentioned. he stated very clearly that he read the majority's opinion to

be that the states decided for themselves that the definition of marriage was. if that's what the majority was holding. completely agreed with it. he summed it in a very nice and quotable way. and speaking of justice alito, you wrote about his behavior while justice ginsburg was reading it. shaking his head and appearing to roll his eyes. did you get any feedback on that? and what made you decide to put that in a story. >> i got a little bit of feedback on that, yeah. [laughter] >> maybe roll their eyes? >> it wasn't, you know, -- what it was, i think, he has a hard time keeping a poker face. sometimes he lets you know he squints, he moves his head, you can tell during arguments that he thinks someone is making a point he thinks is silly.

he has a hard time, you know, just looking at ahead. and i think that the reason that it seemed relevant was sort of recall at the moment from the state of the union address, in which when president obama criticized the citizens united ruling, the just i allee to thought he mischaracterized and caught on tv saying not true. i thought it showed it was a guy who, you know, -- as i said, doesn't have a poker face. >> speaking of poker face, justice o'connor was in the court last week some of the decisions. she a completely poker face as a decision came down. joan, you wrote a biography of her, how is she doing? are you keeping up with her at all. i saw she used a cane. she has on occasion used a cane. she's 83 now. she came a lot in june.

she keeps a very busy travel schedule. she involves very much in the work, and still talk about alzheimer's, which is what her husband died of. and remains pretty active and published a little book earlier this year, but during the reading of the texas affirmative case, which picked up where had her michigan ruling left a decade ago, she just sat with her hands clasped not showing her feelings at all. as everybody remembering it was a 7-1 ruling that didn't dismantle or hurt her majority opinion for 2003. but a lot has yet to play out in term of how lower courts are going interpret it. i try toed to get an interview with her after ward and she said no. i presume -- she's the kind of person, i think, will say what she thinks

about it. some of us remember after that 2007, 2008 term when several of her majority opinions were undercut, she said a few months later they are dismantling my opinions. how would you feel about that? i think eventually just justice oh connor will be able to keep a lid on it. >> sometimeses you when you hear justice o'connor speak, at least for us, we only hear joan -- rather than justice o'connor herself. [laughter] >> joan, are you now picking up a different accent working on a book about justice sotomayor. >> the book i'm almost done with is more of a political history than a biography. the way justice o'connor and the justice scalia ones were. it's a political history how we got the first latina on the supreme court. tracy -- she maneuvered herself to get

ton the district court in new york and the elevation to the second circuit and the trajectory of the latinas and the law. and watching the very am big -- wishes woman. she came out with her own book "my beloved world "which has been very helpful. t been helpful to draw her around. she can draw a crowd like no other justice can. >> adam, here is a change to give us a plug for your byliner original. please tell us what a byliner original. >> my journalistic philosophy is leave them wanting less. [laughter] after this term, i thought what the world needed was a 50,000-word. sadly not $50,000 narrative that looks at the ten year of litigation and the personality that lead to the landmark decisions a couple of dais ago. i finished it, i think, on

sunday. t being edited now. it come out for the kindle or ipad or other device on july 9. it cost $1.99. it will be hard to make $15 ,000. for those who write appellate briefs, the word limit is 14,000 word. this is adjust bit longer than your appellate brief. >> but a ton more fun. [laughter] anybody else working on the book at the moment? i don't want to skip anybody. no. justice ginsburg turned 80 in march this year, the ides of march, she seems frail, but a lot of you probably remember there was a story by ann in the post a few month ago about the personal trainer that some of the people may not have seen. do you recall that? >> she works, i think it's twice a week, with a personal trainer.

someone who works at the d.c. circuit and trains a lot of the judges. i think justice kagen works with him as well. but justice ginsburg seems extremely dedicated to it. a real regular, and i believe that he said that she can do 20 perfect pushups. now whether that is true or whether that is more of an advertisement for himself, we don't know. [laughter] there was no documentation of it, but certainly she takes care of herself after the health scare she's had. and, you know, the question is when she is going to be ready to leave the court? she certainly doesn't give us an indication that that time has come. >> she's also very sharp on the bench. when i started, justice brennan,

justice marshall, harry blackman were middle 80s. they sat quietly and rarely said anything. she asks one of the first questions. she's sharp with the questions. if the attorney judges something or mistakes it a little bit. she'll correct it and say wasn't it so in this case in the trial court -- whatever. she's really always well prepared and extremely sharp in the questions she asks. >> she was the first -- well, no, chef the second woman on the court for awhile. chef the only one, i guess. now there are three. and adam, you wrote this morning about the three women justices. are they a voting block? >> if this could be a long time to work out mathematically. there are 36 possible combination of pairs of nine justices. and the three pairs were most likely to vote together are the three women on the court. so they are in that sen a block. they are not a block because they are female.

they are a block because they are liberal appointee of democratic presidents inspect a term where the right splintered a little bit. you saw the three of them very cohe'sive. any pair of the three women voted together at least 93% of the time. >> didn't that raise an interesting question about the steven breyer. he was the fourth democratic appointee of the crowd, he seems to -- >> term and as joan knows, in a series of fourth amendment cases, he flipped with scalia. scalia becomes the great opponent of fourth amendment protections in taking dna from, taking blood from people stopped for dui. letting franky, -- what kind of dog? lab labrador any sniff around

your house. she was an original member of the sentencing commission. she had an interesting criminal law. when she wok for senator teddy kennedy he helped write a lot of law. we saw the background emerge a little bit more. >> do you think there's anything in his personal life that might have driven that. somebody else answer it. somebody should answer it. adam, an your own question. i'm sure it has never to do with it. he had the misfortune to be have his home burglarized and attacked by a man with a machete on vacation in the caribbean. >> we have talked a little bit about the other two women and not yet justice captionen, i think she finished the third term on the court. is there anything more to say about her after three years? is she gaining her stride or did

that happen two years ago? is she exercising more influence on the court than she did before? >> i think all of us who watched the court think she's terrific. she's a real talent on the law from the very beginning on all the arguments. she asks good questions and a great sense of timing as to when to ask a question. she's a terrific writer. she's as good as it gets right now on i think on writing. whether a dissent or majority. she writes, clearly, strongly, she's quotable. we're anxious for anybody facebook page is -- that is quotable. >> and we learned shea a very good shot. hunting in wyoming and took down a white tail d.o.e. >> i like justice scalia said she could do it in the driveway.

>> she's an amazing speaker, she really likes the dramatic form in the courtroom but also on the stump. i saw her and the chief justice roberts recently in annapolis, and just the chief of going to be the keynote. she was there to introduce him. as you well know, she's a great peek speaker. he can hold an audience. she tells a great tale and he says i have to follow that? i thought for someone of his caliber as a speaker to say was revealing. she is something. >> justice -- i had one example of justice kagen easter risk writing. a case that didn't get much attention on the 24th of june. it was the camp versus united states case on the how to categorize a prior convictions for someoning -- sentencing for the criminal

act. she was talking about the sub category of crimes, and she resorted to the game clue and think professor plum in the bedroom, counselor mustard in the conservative with the rope on a snowy day to cor up the affair with mrs. peacock. it's usually not what you get in a spleem court decision, but of course, justice alito, in dissent dropped a footnote where he disagreed with her interpretation of clue. [laughter] to which the court refers does not provide sound legal guidance. [laughter] in that game matters whether counselor mustard bashed in the head with a ceajts or lead pipe. sort of a humorless response to kind of a funny.

>> oh no. it was funny. yeah. he was going along. >> the best as he could. >> that was the written equivalent of an eye roll. [laughter] >> she slipped another one to an opinion i never would have noticed. a much younger person pointed out. i wonder if you caught it. in american trucking facilitation against los angeles a case about preemption against los angeles court regulation. one of the regulation was that a truck has to have a placard for a phone number for reporting mental or safety concerns. then she added so you seen the type, how am i driving? i see a smile in the add yen. >> you don't know the tune. >> i didn't until i watched it on youtube. there's a song by -- what i'm told the '80s power pop

band called 8679309-jenny. your definition of young and ours is two different things. >> who thinks justice captionen knows it. and the law clerk slipped in in. >> i'll go for the law clerk. they said in the interview at the a aspen institute she pointed out how she brought up mortal combat and she disclosed that she asked one of her cleshes as she was going tout oral arpgment i need an iconic violent video game. one of them volunteered that to her. i'm not sure how much she played clerk helped her out on that. >> but she's the youngest justice. >> yeah. do you think these kinds of

things could have gotten in to a supreme court opinion thirty years ago? fifty years ago? at all. do they have similar -- >> gilbert and sullivan, you know, not totally different. >> and -- [inaudible] version of an '80s pop band. fifty years ago you have to ask tony or david. [laughter] thanks, bob. we can't remember. [laughter] we have talked about what good questions justice kagen asked and justice ginsburg. we had another term with no questions from justice thomas. he said something one morning, it created quite a fire storm in the press. tony, do you -- are you up to date on that? >> yeah. we all -- , i mean, i remember we all kind of -- the press gallery looked at each other and did he really say

something? it was hard to tell. [laughter] it was sort of a quip made in passing. but she was intentionally, he line -- leaned toward the microphone, it seemed like he intended for it to be heard. it was a case that actually ended up getting dismissed boyar v. louisiana about the appointment of counsel in a capital case, and there was some discussion about the quality of the counsel, and justice scalia said something like, but i see the defendant had lawyers who graduated from harvard and yale. as if this is great. and anyway thomas leaned forward and said, what we now have documentation from the court is that he said well, there, see he

didn't provide good counsel. in context, this was read as sort of a jab at yale. his alma mater yale law school. he has a sort of complicated yale law school. i give it even more interest. but yeah, we kind of went crazy trying to report this and figure out what he actually said. and -- >> pathetic but true. [laughter] >> aye. sometimes it's like this is what, you know, the supreme court we're reporting do for fun. try to figure out obscure quips from the court. but actually that someone that i just read, well, see he didn't provide good counsel. that's like the third interration of the court reconstruction if the transcript.

they mu will -- must have done some forensic voice detection work to get the sentence. in the original, in the original transcript, of it incomprehensible. so anyway. >>ic there's dispute whether it was harvard or yale that was on the receiving end of the joke. i'm inclined toward the yale view. i think my colleague at the what's post was the harvard viewl. >> i think it was general ivy league. it's such a joke or nonjoke. first of all, this is what passes for humor. but the other things is, they are harvard or yale. they are ivies. and scalia, who made the original comment about harvard went to harvard law school. and tony is right that justice thomas has a i hate yale but starting to like yale a little bit more the alma mater. recently along the lines justice kagen was speaking and she

happened to make a joke eat the ivy. she referred to the fact that the justice ginsburg started harvard law school and went to colombia and moved to new york city her husband was getting a job. then there was justice ginsburg slumming at colombia. it was purely a expwroak. this is what we're talking about. if anybody is going to take a step up the harvard and yale path it's going to be colombia. >> thomas on did he or didn't he speak. one of the reasons justices say they would rather not have cameras in the court it would put the focus on trivial incidents could get played up on john stewart. take the most trivial thing. i think it's a good example of something the most trivial thing became the sort of story of the day. did he try to speak. did he actually say anything?

did any words come out? it seemed like a modern matter. >> talk about questioning something that happened, which they all sort of talk about. i don't know they know how to control it is that there are a lot more questions asked. there's a lot more rapid fire lawyers who come before the court often have a really hard time getting their -- getting nist out -- anything out before another question comes. all of us have seen a number of times this year when the lawyer gets up before he or she can say anything there's a question asked. ..

down at that end of the bench but that is the place i think lawyers worry about. >> you say, you think this court is starting to take notice of the fact that they dominate the argument with their questions? is there any hint that they're actually going to do anything about that? >> not really. the chief said publicly it's an issue. he used to stand at lecturn. he stood there 39 times. he knows what it is like to be cut off so quickly especially with rebuttal, when the lawyer has his or her last chance to

say the core of the case and some justice jumps in and inevitably it's justice sotomayor. constantly jumping in at those moments and the chief justice. he tent to have a face that doesn't reveal much. you can tell that hurts him when the advocate is cut off. that is issue for him over many terms but doesn't seem like it is changeing. >> one thing he tries to do and a bandaid, in that situation where someone is eating into the rebuttal time. he will let the argument run longer. chief justice rehnquist would not. the argument with judge wilkinson we referred to before, again this is not a chief justice who often talks about the internal workings of the court. the justice are quite alert. eight of them like to ask a lot of questions and there is only an hour to do it in. but the number of questions is quite high. justice sotomayor asks more than

average of 21 questions per hour of argument. that is a lot of questions from a single justice. >> does that kind of style make it even more important for litigant to have experienced supreme court practitioner representing him or her? i think many of you have written about the increasing specialization of the supreme court bar. joan, you wrote a very funny story about a guy from guam who had his pro se case accepted this term. maybe we should start with that. would you like to tell us the story? >> all of us have written in one way or another about the how the elite bar is contracting and there are more and more clients turning to this core group of private practitioners and it's become more proannounced because of course the court's calendar been shrinking over the years, fewer cases. what i wrote about the fam no

that then has very prestigious lawyers chasing after cases, looking to pick up more cases. volunteering to do cases for free once the supreme court has taken it and in this case it was a man by the name of steven levin, who was a pro say litigant living as far away from the u.s. mainland as possible, in guam, a u.s. territory. and he had gotten his case accepted. it was a claim for a medical battery from, a botched cataract surgery and as soon as his case got accepted no fewer than a dozen law firms jumped on him saying please pick me. we want to argue your case best supreme court. which i thought was a by-product of the competition for cases now and, you know, there's, i think, you know, there is some debate over how helpful it is to have a really seasoned litigant before the justices. the justices certainly seem to appreciate it. they have talked publicly how they like the fact that they can

get really high-quality advocacy and i think that's a pitch that many of the advocates themselves make to clients that i can speak the language of these justices. when you were talking about art, the very active bench we have here, some of these advocates say, well we know how to get in there. we know how to make our point. we will not be thrown by the fact that justice sotomayor from the left will ask as many questions while justice alito on the right will jump in there too. >> i think it really has become a much more difficult task to argue than it was certainly when i started covering the court. it is like, it used to be matterhorn and now it is everest. you need the best sherpa. you need a lawyer who can be hit with three questions almost simultaneously, keep them in his or her head and respond to them, you know, in order of senority.

it's just, it is not easy. i always, i'm amazed how well they do. you know, used to be, there are stories of lawyers fainting during oral argument. i think stanley reed, when he was solicitor general did that and i can fully understand it. it is really a blood sport. >> it matters at the briefing stage too. the specialists are very good knowing how to get a cert petition granted. only one out of 100 is granted. the fact that you have appellate superstar on your brief gets it read more closely. it talks to the court in the terms it wants to be talked to. it doesn't want to know your guy should have won. it wants to know why this is an issue worth the court's attention and that will give rise o some general legal principle whether your guy wins or loses that is the right legal principle.

that is not the terms in which most lawyers think. >> they're grown up several institutions to try to help the nonspecialists like the stanford clinic that georgetown institute, the alan morrison project at public citizen. do you have any sense of whether those things are really worthwhile to the nonspecialist lawyers? do they really help? do they give the nonspecialist a fighting chance against one of the regulars? >> well, i guess the thing i would point to is the georgetown mood project where they really, georgetown university has a supreme court institute that i think had a part of just about every single case. >> every single case. >> yeah. so there are places in town that especially that one, art, and what you've mentioned, that want to help practitioners get better and field questions from these just tests. >> you know, art, i think those are one in the same too that

those groups, stanford, the one at yale, have very experienced practitioners who run those programs and so they, you know, it's a little bit of the same, it's a little bit of the same thing. >> let's move from inside the courtroom to the outside front of the court. probably everyone saw photos of the enormous demonstrations out on the sidewalk during some of the arguments and last week during the decision days and the rule there, since united states against grace back in the '80s you could have signs and placards and demonstrations on sidewalk, the cement sidewalk that abutts the street but couldn't have any on the marble plaza which is up four steps from the sidewalk and is most of the real estate there in front of the court. and then tony, on june 12th, just in time for the end of term

hoha, howell. >> that is what we call it. >> beryl howell, a fairly long and, meaning newly appointed judge on the u.s. district court here struck down the rule banning demonstrations on the plaza and what happened after that? >> well, just, to set it up a little bit, it always, seemed bizarre to me that the supreme court which is the guardian of the first amendment you can't demonstrate on the grounds of the court. but you can across the street at the capitol but you can't at the supreme court. one of the rationales hyped this law, which was passed by congress in 1949 was that the court didn't want to be seen to, be seen by the public as susceptible to being swayed by demonstrations. which seems like a very

farfetched rationale under the, for a first amendment restriction. but the law has been upheld numerous times. there are lots of cases, there are a lots of demonstrations every year. you know, whether it is death penalty or cornel west or minister dropping to his knees and praying on the plaza of the court, they get arrested and usually challenge this law. it is usually in superior court and goes to the d.c. court of appeals, the local court of appeals and the law is upheld. well this case that art was mentioning, instead went to the, federal district court. and finally, at long last the law was declared unconstitutional. it's a law that prohibits as semiages and banners --

assemblages, and banners and processions on the property of the court and as the judge said, you know, if you read this literally it could cover a group of preschoolers tethered together, you know, going up on the plaza for their first visit to the supreme court. of course i couldn't quite imagine preschoolers visiting the supreme court. i don't know that they could get much out of it. obviously the law i think was overly broad and it was struck down but the court had a quick response. they invoked a different federal law, a law that allows government buildings to set up rules for order and decorum. under this different law that hasn't been challenged they basically promulgate ad rule that says the same thing. you can't demonstrate on, on

property of the supreme court. that too will be challenged no doubt but i hope the whole process, this litigation process is given the court some cause to reflect on maybe, maybe there is some middle way, there is some other way of allowing for demonstrations on the court plaza. they, you know, there is a lot of other first amendment activities that occur on the plaza. the court, media steakouts, press conferences with lawyers. it seems like there's a lot that goes on there. seems that you could have some kind of a demonstration with regulations but some kind of demonstrations on the plaza in front of the court. >> although as i wrote when i wrote about this i think it would be hard for anyone to think, oh, people would be surprised to find out you can't demonstrate at the supreme court because certainly there is

constantly footage of people on the sidewalk and, after the prop 8, i mean the doma decision, you certainly saw a huge turnout in front of the court and certainly looked like a demonstration of some type so. >> especially considering for just about 355 days of the year the general public doesn't even know that the build something there. it is not like there are people coming there to protest every day. they're very rarely do you see anyone who wants to protest outside of the supreme court on a regular basis. >> although my impression it has gotten more and more over the last 10 years say. i can't remember demonstrations there in the 90's, maybe one or two. but now every big controversial argument and certainly the end of term decision days have both encampments of the press and hundreds of people, abortion cases and gay rights cases i guess being the two biggest

draws. tony, is it your view that the whole plaza should just be a public forum and people can demonstrate up to the, up to the doors? >> i don't see why not. like i said, there could be regulations, time, place and manner regulations but i think that would be a, an expression of the court being, made of sturdy enough stuff that it can, you know, welcome first amendment expression. >> the justices go in and out through the basement garage pretty much. so it wouldn't interfear with them. chief justice rehnquist, however, used to take a walk around the block before arguments in the morning. i think i read in somebody's piece once it had to do with his bad back. that he was stretching out but i haven't seen a justice outside the building since then.

we've got 15 minutes left to go in our program. so, if there are any of you who haven't yet been thinking about questions you might want to ask, let me just give you a five-minute warning. we'll try to have some questions starting in about five minutes. in the meantime let me ask a general question and see if anyone has an answer which was, were there any big surprise this is term? david? >> i thought there was some big and small ones. i suppose the biggest surprise for us was the after ferrell tiff action case which they heard that case in october. it seemed very well set up for the conservatives to really pull back in a big way on affirmative action. that's why we think they took the case. five on the right were very skeptical of any sort of race-based admission program. they held it all year long, all year long up to the last week and turns out to be a 7-1 decision that didn't decide too much. so i, i don't know what to make

of it but i would put it, you would would not have expect addition several liberal justs on with several conservative justice. >> that was a big clue when they took the michigan case for next year -- >> that they -- >> weren't going to throw out affirmative action for what is the point of taking michigan case next year? >> different law. i don't know. >> i went backward and forward on that question the fact they took another case. i would have still thought more likely they strike down the particular program, this program out of texas which had race-neutral component, race conscious component. you need to do the second step. agree with david for seven of them to get together on such a contentious issue is interesting. >> and how about another general question. some years, some of the

panelists identified sleepers, decisions that didn't seem tearily important at the time but that contained the seeds of major change down the road. the most successful such prediction i remember was apprendi against new jersey in 2000. someone, i don't remember who, just watch. that was a case about sentencing. just watch. that's going to be a big deal and sure has turned out to be an enormous deal. does anyone have any pet sleepers they think may have occurred this term? >> there was a piece in the arizona voting case which looked like a liberal victory saying that federal law preempted a state law that required evidence of citizenship to vote and, it is beyond my expertise to really make sense of this, but it's a clue that scalia wrote and there is discussion in the case about the qualifications clause of the constitution and that states are allowed to decide for themselves who's qualified to vote as

opposed to the manner of voting. and there are people in the election law community who think that that was a kind of a sleeper time bomb be compromise that scalia got into that opinion. >> i agree with that, with adam. it's at least the case that most divided the people who should know the answer. and so that, you know, a lot of election lawyers thought it meant one thing and a lot of election lawyers thought that it meant something else or pretended something else. and so i think that is one to think. the other is not a sleeper obviously but certainly, yes as we discussed, the doma decision, certainly laid out a lost language that i think is going to be analyzed by a lot of courts in the future. >> and prop 8, you know, everyone says it goes off on standing but the kind of standing it went off on, is to make it much harder for citizens

of a state to put a ballot initiative into the constitution, and essentially allows state officials if they don't like it to effectively veto it by not defending it and that rejiggers the initiative process substantially. i don't think that came in anyone's mind and they were looking for an exit ramp and this was available. >> i was going to cite the same case adam did, the arizona as a sleeper case but for a different reason. the justice scalia said the elections law give congress to regulate federal elections. after voting rights case i think there are very few people that congress will pass some new formula to, some special situation where the south is under federal oversight. on the other hand, if congress could agree on some national standards on elections, for example, early voting hours. that i thought this decision really opens the door for congress to say, there needs to be some basic minimal standards

to protect the right to vote nationwide and that case seems to sort of invite that sort of law. >> i think that's right and it also seemed to really foster some agreement on the court that states decided who gets to vote it would seem to have a lot of importance for voter i.d. laws or for other things that the states can decide. >> we've got about 10 men's left. let me invite your questions which can include comments as long as they have a question mark at the end. and we have a traveling microphone. here's a hand up right here. >> -- texas affirmative action case, is there another case or are there other cases that are working their way up through the

courts that, the supreme court might, emphasize might, have an effect and that of the fisher case back in order to have a combined result with the others? >> there is, i'm not aware of it. the openly cases i'm aware of are two we talked about, the michigan one for next year and the texas case. as you suggest the texas case itself will in short order get decided. if it turns out the standard announced in fisher now back at the fifth circuit or perhaps the trial court requires the texas program to be struck down that very same case might rebound back into the court a term or two later. >> anyone else? >> just one other point. some people pointed out that these after affirmative action cases are very difficult to mount. you know, it is a solo plaintiff and especially now with this

heightened standard, there's going to be a lot of discovery, a lot of witnesses so that, effectively some of these successor cases are going to be harder to bring unless they're belle funded by some organization like the fisher case was. >> this is a follow-up to the sleeper cases discussion and clearly the voting rights act case seemed to be a follow-on to the 2009 decision that was a warning shot across the bow about the concern relying on 40-year-old data. do you see other decisions from this term that might be a warning shot in coming terms and if so, what are those issues? >> well, most directly, what we've been talking about, the affirmative action one, what kind of burden might be on universities to justify these programs. but there is, you know, i think seeing what we saw in the 2009 case you're referring to, that involved utilities, the

northwest austin water district that had challenged originally section 5 of the voting rights act and, an eight-member court led by chief justice john roberts said, that that water district actually had an exemption, qualified for the bailout and wouldn't go forward but we now see so richly what was laid there with the help of liberal justices and i think that's why the question has come up so much in the texas firm tiff action case. did the liberal justices sign on to another opinion that could lead down the road to a complete undercutting of affirmative action because of the suggested changes in the, in the fisher case? but it's, it's interesting just how these, everything is built on precedent there, for better or for worse. and i think it is not just a matter of the law but how the justices will sort of tee up a case for the future. >> it is not a warning shot exactly but they have taken a campaign finance case for the

next term which citizens united having laid waste to the expenditure side of campaign finance regulation now is, is a first step toward chipping away at the contribution side. >> anyone else? while we wait for your potential question, let me ask, here, please, joe. >> hi. i hope this isn't a semantic quibble but we use the terms, conservative and liberal as if they really do make sense for the voting blocs on the court and left and right might be a little more accurate but for conservatives to always rule with corporations over individuals or always rule with state over individuals isn't a classic conservative position. i just waned to ask you to reflect on the use of the terms liberal and conservative. >> who wants to reflect? >> i think it's a shorthand that makes sense to people. when i talk about a liberal justice or conservative justice

they know which justices i'm talking about. it is a shorthand that doesn't require a degree in moral philosophy or something. you know, they do array themselves across a idealogical spectrum the political science data completely supports it. call it left. you call it liberal but you know which justices we're talking about. >> we are suggesting that there is better term to use, right, left or something like that? >> i think left and right or -- [inaudible] >> so, it's your suggestion that in ordinary parlance conservatives are not pro-business? >> ordinary parlance -- >> that is what i traffic in. >> i understand that. does conservative always rule -- [inaudible] >> in, it's a semantic question but a political science question as well as general parlance

question. i think it is confusing the public to call people conservative when their views are all over the place and certainly not, you know, conservative viewed consistently or liberal, the same thing. >> people are poppedderring. >> yeah. >> no i just think it is one of those things at that's hard for journalists to decide what is the right way and i guess i'm with that i think it makes more sense to the general reader to describe the court that way than it does any other way that i have thought of. i think left and right would work. i think sometimes we use those somewhat interchangeably when we talk about four justices or who are consistently one way and four justices who are consistently the other and then one who joins both sides. >> maybe refer tome this by the party of the president who appointed them? >> of course that drives judges crazy when we do that because they say, you know, who

appointed us doesn't dictate how we vote. >> but sometimes you think pro-government and antigovernment might work but then often it doesn't because conservatives are sometimes quite antigovernment. anybody else? well, we've got a couple minutes of the let me ask one more question, which is, william souter is retiring august 30 first as clerk of the court for many years. the court just announced scott harris, who has been their in-house legal counsel will take over. does the person who is the clerk of the court make any difference to the jobs that you guys do or to, or to anything else the public should care about? >> i think in a general way certainly the online docket is extremely helpful and well-done. i think a lot of policies that

bill souther instituted have been customer-friendly and we are, customers along with lawyers. so i think it does make a big difference. he is, the clerk of the court is the face of the court to the legal profession in many ways and so i think that it's a very important public position for. >> any of you know scott harris? i don't. any predictions what he will be like as a clerk? no? >> seems like a very nice guy. says hi to you in the hallway. >> don't want to get on his wrong side. >> much more important for the lawyers than for us. i mean our only interaction most days is making jokes about us. the lawyers sit in the front. press is next to him. and cartoon we did for him at the end sums it up where he is advising the lawyers, hold on to

your wallets, that is the press right next to you there. he was great for jokes all the time at our expense. >> well we've now reaches 2:00. thank you very much for coming and i hope to see you next year. thanks for the panel. . .