message, and they have 480 designs for organizational messages and 50,000 personalized messages. and the issue in this case is the person who puts the license plate on their car is the one that communicates the message. the other people are just giving approval. ..

that says you can't have everybody who has this program. >> it's not normally colleges and universities, but often placed in taxes is the natural features of the state. and you've got a lot more. >> they actually do those. those are state and they charge more money. >> answer the hypothetical. justice scalia says first colleges, next thing places. suppose that there's some little town that thinks that if scenic and there's a way in which they can petition to get on this list. you see where i'm going. if you had just a standard state

of course that's the speech. if you've got that dustin different variations people can create for themselves it becomes a lot harder to say that if the speech. where would you draw the line? >> my view is when people create a message themselves and then the organization in this case create the message for themselves and the people pick out the license plate that they want and put it on their car. then the speech will treat the person who communicated it. >> my problem with this is there are three categories which i understand. there's the official state play. there are specialty plates created by the legislature and there are specialty plates created by an individual.

how do i tell the difference between the legislative plates which are government speech and the private plate. what i do know is what i said at the beginning. it is those people speaking and endorsing each other's message in some way. why should the government he compelled to accept speech because it thinks it's wrong? and doesn't want to be associated? >> i understand. in the first place, there's a big long catalogs with 400 different organizational plates. there is every day. people picked them out from a catalog from out of the website them and they put it license plate. the communication on the license

plate is controlled entirely by the people who picked the play of. >> the direction of his question was supposed to date both by itself has 10 messages, 20 messages, 200 messages from a 2000 messages. the state picks up the messages and gives you all the choices. >> a result if the state has all the messages and picks out the messages and the people who espouse the place too. >> i want to know the legal result. >> well mistake and assign license plates that it wants to choose, >> from justice alito's question consistent with the first amendment or not?

>> the individual submits when other people submit the design and that is not hypothetical. and you can choose. as their first amendment? >> the state does everything and it's the creator of the message and the speaker is the driver. >> what happens if they submit messages that they'll go through the legislature? >> my view is that it's a much more difficult case if the legislature passes the statute because that's a legislative act in a clear act. >> what is the difference if you think that it's all right, texas has said the dmv does it. it is government just the same. >> the issue is whether or not

in the cases -- with court of appeals cases that don't distinguish between legislative action and non-legislative action and those that do. it is my judgment the state has a greater claim making its speech when the legislature passes the bill and the governor signed it. the statute clearly is the next nation or expression of the state. >> i take it that if i object to the message on the new hampshire plate i have a right to be disassociated with that. well if the state, which represents many people in texas doesn't want to be associated with a particular message why doesn't it have the right to say we don't want that association

and the state represents x million people. they don't want to be associated with the message. >> the differences they invite people -- they charge people and have them pay for the manufacture of the license plate by giving them the chance to design a message. that is what they do. the people who come up with these things have $18,000 collateral and is a money making scheme that they use. the fact they choose to apparently twice in history and there may be more but we can't document anymore. this is not a form which people make any decision besides an economic decision. the factual matters what happens. >> do you have an objection to

the materials or friend has cited from outside the record? >> to the extent he cited relations to the design i do not have an objection to god because it's the record materials. >> the fact that we have gone from 350 to 480 organizational designs since the case was tried was not in the record either. but the organizational plates since then keep a better talent than we do. >> and my right that in your view has to be open to everybody

or they can said the program down and nobody cared vanity plates. maybe if the legislature passes a law or laws saying this plate is okay, that might be okay. is the choice between everything or nothing for the legislature does. i believe the best analysis is the legislature or the board of vehicle commission discriminates on the basis on the content of the speech serious first amendment concerns and probably illegal. that is what this conflict and

circuit i believe it is an issue >> could i take you back to the chief justice question for a moment and make sure i understand mr. keller has indicated a number of other occasions in which the state has disapproved play in which the state has done that on the grounds of the fans, do you have any of actions to those representations? >> to the extent they were done on the grounds of defense i do because i have one that we verify that is concerned about danger and thinking somebody state trooper may name them a state trooper. >> what is the argument were not simply offensive but a higher degree incitements are likely to give rise.

it is likely to trigger public islands. is it at all pertinent to your position? >> well, this court had a law going back to brandenburg versus ohio and the ku klux klan rally decided was not incitement is pretty thin at this point in our history because i don't know what the role of incitement would be today. >> this is the worst of the worst whether it is the were the most racial epithet you can imagine and if that were on the license plate where it is provoking violence of some kind. somebody is going to ram in the car. >> i don't think they can discriminate. this is not the state speech. big orange letters.

>> where is that going to say? [laughter] >> we have taxation for representation on the license plate in that the political message. >> your position is if you prevail the license they can have a racial slur. that is your probation. i don't think there's any consistent position otherwise although the state can disclaim it undoubtedly on the same license plate. >> you have to put taxation without representation on the plate? >> i'm not really here but i believe it is required good >> is somebody objects it is like -- >> they can tape it over.

you can put the disclaimer idea justice o'connor came up with that and the columbus ohio ku klux klan case and i thought that was a pretty good idea. that is we have a disclaimer when you don't like speech and you don't believe it is appropriate. the state can do that. i think that is largely part of the answer. this is not purely governmental because the action of the state is only approval. as to the pleasant city utah case, monument or in fact unique circumstances. this court had decided.

ben gordon versus perry from years ago involving justice breyer, but a but a map of the state capitol grounds of the monuments in it. when that case was decided monuments are different than any speech in the park because of the nature of the creation. you'd have less in common with monuments every seven feet which you can't do that. the case turns on those facts and i believe it is absolutely correctly decided. i'm also convinced the board is correctly decided because it started with the statute passed by congress telling the department of agriculture to do something with the marketing material, have it submitted back to the secretary of agriculture, let him approve it and put the

attacks to support it. cytosol government speech. >> i don't have a line item in the budget. >> that is all this is about. >> yes. [laughter] >> people get to do business with them that they like what they are saying they don't get to do business and they don't like what they say. >> thank you on the council. mr. keller, three minutes remaining. >> your roster? the republican, democrat distinction. is there a first amendment dander you can use to deny the plate? >> i believe a big government speech, therefore it would not be a first amendment problem. it would not be allowed because

other constitutional bars would apply. >> just as if they monument were put up coming would be the government speaking. however, it would not be allowed under other constitutional provisions. if i can suggest a way to avoid the problem of the government has its name on the speech and one as part of the regulatory process or program of the government and there is a public vote and no abridgment of traditional free speech rights which in this case is government speech. justice breyer to address the other interest texas has here. texas wants to prevent confusion misrepresentation, the diverse interests the state house. justice sotomayor, even if this is hybrid speech and the tango. you need to stay promulgating the message that is still government speech.

from one matter, all of our site and opening brief to title 43 have been renumbered since the filing of our substance all the same. this is not just about texas making money out of texas does make money. this is about the state of texas not wanting to place a stamp of approval on certain messages and is not entitled to the imprimatur of the state of texas on whatever message you wish is to put the license plate. thank you, mr. chief justice. >> thank you council. the case is submitted.

>> supreme court attorneys and scholars discussed whether the court is to be reformed at the american constitution society's 2015 national convention in washington d.c. speakers include university of california irvine law school dean erwin chermerinsky and

constitutional accountability center chief counsel tran 11. this is about an hour and 45 and it. >> if everybody here from the breakouts? welcome to the planner program of the afternoon which hoped to land with a bang and discuss whether the supreme court is a failure. and if so what can be done about it? this program is recorded by c-span. you may find it at any random day or hour for the next five years. [laughter] before introducer distinguished panels i'll have to go through my marching orders here, one of which is to introduce myself. i am transcending. i'm a member of the acs board and i'm happy to be a member of the acs board because i view our mission as helping to grow and

sustain the next generation of progressive lawyers. i've been delighted to see how many students there are piazza that is why we are all here. but we have a diversity at all. not everybody is necessary on the same page and that is a good thing. cell phones, please mention cell phones must be turned off. .. okay we will have about 20 25 minutes of q&a at the and starting at about 20 minutes past five. the cards will be collected. if they would like to tweet about the section or their national convention experience the twitter handle the official hash tag is acs 15. this session is approved for cod

credit. for more information consult the handout in your convention bag or the stack. okay. we are going to take an outside the box responds to the supreme court is the failure and by that question we don't mean doctrinally. we mean the problems of the supreme court. we can all agree that this may be problematic. but that is life. there are many things we can talk about in terms of the supreme court's institutional functioning the combination process, confirmation process in various other aspects of the way the justices collectively or individually approach their work. what i have done rather than ask

people to give us a talk to start us off is i am going to throw up if i should to our distinguished panelists who i almost forgot to introduce. just to name one thing if it indicates whether the court is the failure and what they would like to do about that and we will move onto the next person. in the order in which they speak, not the order in which they are spinning. on the far right is larry kramer who is the former dean of stanford law school and now runs the hewlett foundation in the bay area. to my left which is not where you'd usually find yourself from george mason law school and on the far left is erwin

chermerinsky, founding dean of the law school at you see irvine. and to his right is elizabeth wydra chief counsel of the constitution accountability center. and on my immediate right from the university of chicago law school. so these are all very distinguished constitutional scholars and we are very lucky to have them here. so i'm going this hour with larry. if the supreme court a failure and if so which should like to do about that. >> i have a talk about why she keep the supreme court. so it honestly depends on how you define success. it has way, way, way too much power and the amount of power can be insane. >> you a whole book about it.

>> i did write a whole book about it. >> here for a variety of reasons. there should be some balance for accountability on the other side. they are independent provisions built into the constitution do we pile onto that a million more i thought any attempt outside of the court is bad. i will talk about two of those. and the lack of transparency is shocking and extreme and ridiculous. and that cuts across the board was very talk about their ability to take disclosing them to anybody undisciplined and when they have such an interest. the lack of television coverage

in the quarter, which they opposed because they don't want too many people to see exactly what goes on and on and on. that would be one base. you cannot love her transparent in how it operates, which would change public perceptions without in any way significantly undermining judicial independence. the other is if they have the power who would put on the court come i hope there are no justices out there. this will be a little halting. i will preface it by saying i wouldn't put myself on the court either. if you give people the power the fact of the matter is that once we care about, the ones that make it an institution adequately by definition the one to answer. once you've done the legal analysis come you go one way or the other what will take you the last little bit? we used to put people on the

court who had done things in life, real experience in real accomplishment who have been senators or governors and hackers on stability for making decisions in the political round and what the consequences were. with that comes in experience and wisdom. take people and remove them from the partisan context and they can bring that to bear in making decisions when you have to make that last little bit. i say make the supreme court more important we of course stripped away the ability to put anybody on the court ever done anything like that. now in order to get on the court you have to have basically done nothing other than a technical legal expert and have not said anything beyond that. of course the problem is when the labyrinth out, exactly what it is that people have to bear have nothing else and so they tend to fall back on what you would expect which is ideology

and supposition and that is what you see. the last justice from my perspective who had the experience to bring to bear would've been justice o'connor. you saw that in the way she decided cases. very distinctly, whether you agreed or not. we need that wisdom, so i don't know how you do this because of the cultural thing but what we don't need on the court are people who've only ever been technical lawyers and never said or done anything that might cause any controversy and have people with real errands in the world that the court is going to affect. >> one other metric is something i remember walter dillinger said back in the day when he was advising president clinton on potential nominations is to ask whether the potential nominee if they ever made it to the court would get into "new york times"

and what would you say. i guess by that measure ruth ginsburg would qualify. i'm not sure if anybody has. you make two kinds of points. one is on the transparency and with the undertone of ethics. then the kind of work product to do with him on the course. those are two quite different points and maybe we can discuss them separately. also on the transparency point, you make a couple different points. television is an old issue. one can debate and it's been debated for many years so maybe we can put that aside. you mention judicial picks and

junkets and things. it's that a problem? they do disclose their finances like every other judge and made as i understand it as a formal matter, the code doesn't apply to the justices, even though they abide by because who would judge the justices. the two others named that these are problems that indicate the court is falling short? let's look at the ethical part of the transparency. >> just to be clear about that point, it is not said much the viewpoint to any particular thing that would make a difference. it's more about the overall culture in the sense they have that we can do what we want for there is actually public double watch what we do. when i take junket after junk it paid by the unions,

corporations pick your side, do i think that affects how i decide? i have zero doubt that it does. it's a pervasive culture and how the court operates in the particular rule of what it might change. >> is very corrupt culture at the court? >> the the correction is accepted and independents in the sense we don't have to worry about or care. it is all interconnected. if you do not take would judicial supremacy, how can you give them some sense they have to be accountable. that is the transparency rules are about. >> one of the great things about our federal judiciary including the supreme court is rarely are there other allegations of corruption. i think what larry says is right. the rule to apply to other federal judges and dialysis inc.

it is wrong to decide whether to recuse himself or herself. i don't think anybody should be a judge and i think the procedure should be changed for be changed or others are making the decisions rather than the individual justice. >> who would make a decision? >> we could create a panel that would be submitted to. i don't like the idea of other justices because they were able all to first to each other. it shuttles me and justices are participating even though they are serious questions. we all know it is left to do justice to decide. related to that justices are reluctant to recuse themselves because they fear it would have a split. i see no reason why it couldn't be some justices. and they make it more likely

that justice would recuse itself in the close cases and it's better they recuse themselves. >> what is your ids and outside body? every grant to case would have to be vetted? >> when there's a motion to recuse justice it should be submitted to somebody other than that justice. with the body as less interested in. i'd even settle other justices of the court to decide. i don't like the idea that a person is a judge of himself or herself. we've added to this further serious emotions to recuse unadjusted set-aside inc. i will stay here. i think of this when there is decided by the supreme court and there's a motion to recuse justice rehnquist because he participated in the issue as attorney general of the united states.

quite famously there is the instance where justice scalia went hunting with vice president and participated in a case where the vice president was involved. just as scully of road a piece i can be fairer. it is better in this questions about whether he justices recused to submit it to somebody other than the justice. >> so i do think it is possible to put barry's comments side-by-side and think about the way the justices are ubiquitous figures that law schools and on c-span in one place we don't see them is in the oral argument capacity and i do find that distressing and difficult to explain. it seems like justices before they joined the court are often attracted to the idea and as you say is an argument about we need cameras in the courtroom for why hasn't it happened? it seems the justices are going to go around and give talks,

then they should be seen in their capacity. i don't think it is because people would be embarrassed about the proceedings of the court. the justices asked question and so i don't think they have anything to fear about allowing cameras in the courtroom. justices are lawyers are going to play and not already happened. i don't think i would introduce a new dynamic. it would let cameras in the courtroom. i don't think there's a serious argument against it. >> and i think of an argument against it? >> the justices themselves are concerned their comments would be taken out of context. we are to have audio of their comments and not doesn't really seem to have been not much. there's perhaps a middle ground

between the arguments of having cameras in the court assemblies to have live audio of the argument. we see in some cases and very high profile cases -- >> they release them earlier but still later that day. those of us who are member of the bar type audio into the overflow for the supreme court lawyers by section. it seems technologically easy to do that. that would be a very good middle ground for the court to adopt if it wants to make itself more transparent and only to the good of the american people can be more engaged and more knowledgeable about what the court is doing. >> in a way the current system is more problematic and that from time to time the court will acknowledge a major case in the same date idea which puts the court in an odd position of identifying important cases. with this in every case they

grant -- >> what is the difference between audio after they argument with c-span putting photographs and watching it live two hours earlier. there is no distinction there. >> or having to put to the john oliver dog reenactment. is that better? i don't know. the docs are cute. >> leary said they think they can do anything they want. i think to the extent that is true it is a much worse form of corruption than anything we've been discussing about recuse souls that televising proceedings. >> yes. do you agree? >> they can do anything they want. >> yes.

>> yeah i do have some ideas about that. i can give a little bit of background. i went and read all of the transcripts, the confirmation hearings of the last four justices. when they were asked what they thought the role of the judge was common i found what they answered and you couldn't tell the difference between the answers. if i read the answers come the answers come to you and build a tunnel. they said exactly the same thing. the job of the judges to apply the law to the facts. my personal views on anything have nothing to do with the judge. the two most striking cases for president obama's nominees. both of them are asked, the president said it all about your heart. that is an important part of being a judge and that is why she picked you. they said no, i don't agree with

that. so they say and all the senators agree on both sides of the aisle but that is what a judge is supposed to do. i think it is not completely impossible that they could do that a lot more than they do now. i saw a report of the talk alanna kagan -- gauge. when are the ones about the big cases that make the front page of "the new york times" in those conferences are very short. nobody discusses the case at all. they say how they are going to vote to make eshoo said they all think they have to explain and discuss the case with each other they would just annoy each other, so what is the point of that. but there are long conferences about the cases that nobody except lawyers who specialize in the field pay any attention to. often must go on quite a long

time and they spend their time trying to figure out what the right legal answer is. my proposal would be congress do a few things to encourage more conferences and fewer short conferences. i have for proposals which i worked up with my colleague, craig lerner. i was state the conclusions that giving reasons. congress can require all opinions of the supreme court majority consenting to be anonymous. that would include the concurrent says. second, they could expand the jurisdiction of the court. right-wingers often go into the jurisdiction stripping ideas cut it down. i would say let them do more. there is a no longer used

statutory mechanism by which courts of appeals can certify the question to the supreme court on issues that they think the lower courts need more guidance on. what case are they going to hear so they never rather any longer except for certification. my proposal would be if her of research grants they have to take one certified case from the court of appeals and that will give them more opportunity to deal with the issues of the lower court that they need guidance on. the third thing is take away the law clerks who are pernicious of the culture. the law clerks have a pernicious accepting a valuable function and that could be assigned to the office of the librarian of the court and the results would then be shared with all the

justices. not just little research projects aimed at that particular justice. they are there required the justice to write their own opinions but have some of the beneficial effects of term limits. if they had to do their job, we would have fewer jobs in the state senate could no longer mount a horse. [laughter] my last suggestion would ring back circuit writing. that was 100 years they were required to do circuit writing by congress even though they hated it. they finally manage managed to get rid of it to bring up back. they could spend a little less time in the alps and more time sitting on some lower court

doing real judicial work. these are all marginal changes come at very modest proposals. they won't give us the perfect court that would only happen if we appointed it more justice thomas is. [laughter] >> so these are wonderful blue sky proposal is good i actually think you and craig have an article in which i assign to my students every spring and of course about a quarter. i wait until the very end of the turn so they have formed around this and then i present them to yours and i think it is one of the favorite assigned readings. >> yeah, i am often good for a laugh. >> anonymous opinions, for some of the european court to take a

different approach, but approaching the same problem is they don't allow dissenting opinions. so you could have anonymous opinions that would speak for the entire court without concurring or dissenting opinions. >> i wouldn't do that. i understand the european judicial culture is quite different from ours. dissenting and concurring opinions conservative viable service. partly in disciplining the majority by presenting competing requirements of informing the bar about disagreements within the court. what i think making them anonymous but do wouldn't necessarily curtail a lot of developing. many opinions nowadays are not written for lawyers.

they are written for "the new york times" and there's a lot of stud in my view just doesn't belong in the opinions of many of the justices. that is not a partisan or ideological thing. you know who i'm talking about aside from the ideological divide. >> so the concurring opinions would also be unanimous. >> they would be anonymous. >> anybody have her reaction to that? >> i think having offered opinions is important because if we had anonymous opinions that make the transparency problem that larry mentioned even more pronounced because i think it is important to say justice scalia authored this opinion and it is in contrast to the three other opinions justice scalia has

authored or joined. i think that is an important part of synthesizing precedents and also allowing the public to hold justices accountable if they deviate from their own stated views. not being able to do that would be harmful. >> actor there is initial point how does the public hold them accountable? where is the accountability? >> i'm not saying they are necessarily very sensitive to public outcry, but i think if one does take seriously one most of the jurist you want to be seen as principled rather than unprincipled. if you willy-nilly decided according to preferences that the outcome of the case, they would be a sufficient outcry as a standing cases where it has been important to say he voted

this way and grace. you should vote this way when obamacare comes before you. if you don't that is motivated by politics and that is a principled statement of the law. >> the way we hold the supreme court accountable as two presidential elections. who we elect for president in 2016 especially two turns is likely to fill four vacancies on the supreme court. there should be no issue in the presidential election more important supreme court decisions. >> that statement which is short of true analog is insane. something has gone seriously wrong with your democracy when the state says that we need to worry about is who they are going to put on the supreme court. this is not critical because it cannot statement under the clear

statement of what the core problem is. i would absolutely get rid of the law clerks for exactly that reason. what do you have -- the court is acutely self-conscious at the limits of its own power. the problem is where we have set those limits are so far out that they can go really far. the question is what are the devices you can have two reproduce some semblance of modest eight with respect to their views compared to the views of people who disagree with them. so as i say, i don't think it's incorrect but what can a democracy where the unaccountable brands they have to worry about. democracy is great except for things that are important. those things we have to put a little oligarchy over here. >> and i think the question is are we as a society better off having an addition like the supreme court and federal judiciary largely insulated to

define the meaning of the precious rights and constitution and although i'm tremendously critical, i believe we as a society are better off. >> in front of live audience too. we are not better off and we didn't have that until recently. what always amazes me is the progressive audiences should hold this view is so much more strongly that a conservative one. the court has been a reactionary institution far more often and in many more ways than that of average as progressive cause. >> the only thing i have to say is when i think of the people i represent in my career, criminal defendants prisoners for them it is really the courts are nothing. to say we are not going to have the courts available, when his last time the legislature adopted a lot to expand the right to criminal defendants.

>> they do it all the time. what is amazing is the delusional capture that are very brief in american history has put over the whole of american history. other progressive reforms that took place in the run-up to the 50s and 60s and never quite a few of them and if we tend only to focus on the things the supreme court did, where did that come from? what is happening now is the face of really radical conservative supreme court and criminal justice right with one area in which we got the break down of polarization on criminal justice issues. you have to take the long view. you were a lawyer doing exactly that. it's not that we've never had a period. if you have to look at the course of american history charger justify the court

although that is not my view. i don't care one way or the other. >> if i can go back to elizabeth's point, which i disagree with, i think it's actually been a pernicious development that the justices feel compelled to stick with their own personal precedents. it used to be that the precedents where the decisions of the court and often times very commonly once the court decided an issue the justices have accepted the precedent and now is the precedent of the court. in decades we have seen an increase in the idea that each just as faster because this stem from case to case. and i think that contributes to the court gave him a flickr court. it is true of the opinions were

inanimate -- anonymous, people could change positions. they could do that anyway because there's not a single justice in modern times but hasn't been able to hire law clerks who can figure out a way to find some precedent for that reason or any other. >> i agree on the idea that justices should not fear changing their mind as much as they seem to. that causes them great pain. one sometimes encounters elaborate explanations as to why they voted to uphold the statute and voted to invalidate the statute. i think it would be better if people got away from that. if they can explain what led them to change their mind that would be advantageous. one other question of accountability and how we hold justices accountable, one of the ways is by having them sign their name to the opinions

themselves. but they write a dissenting opinion in 1896 and identify the opinion or that they wrote an infamous opinion on behalf of the supreme court. it is helpful to identify the particular justice that wrote the opinion. i'm not even sure it's possible to have anonymous opinions anymore given the specification of computer databases that would be capable of going through the opinion. that takes us to the question of law clerks. after the law clerks, it wasn't all that long ago. i think they at least are capable of adding something valuable to the institution and perhaps what's most important is instead the voice of the younger generation. any justices are in their 70s and 80s and frequently cases that come before the court including technological issues

are issues swirling incredible value to have someone in their chambers they can talk through these issues. i'd be reluctant. >> if any selection process to bring the expertise to bear. >> i got a lot of students at stanford who say why don't you pick them or whatever the issue is. [inaudible] >> i probably shouldn't have been a clerk either. >> your mention of the age of the justices are the utility of bringing young boy says into their chambers of course ray says the whole topic of life tenure. so i think there is a lot to discuss about tenure. i'll just throw it out and see who would like to get rid of it. >> i would. >> in 18 are nonrenewable.

thankfully now it is so much longer than it was in 1787. clarence thomas is 43 or solomon confirmed to the court in 1991. i want to sound ideological. elena kagan and john roberts for 15 -- 50. that is too much power to be exercised by a single person for too long of a period of time. too much now turns on history. richard nixon had four vacancies in its first years as president. jimmy carter had no vacancies. 18 near nonrenewable terms mean every president would have a vacancy every two years and i would be far better. >> anyone want to take that on? >> i don't have any objection to term limits. 18 might be too long.

two might be better. you could have rotating circuit judges on the supreme court for two years at peace. that might be even better. >> i think i'm opposed to term limits and here are some arguments. one would be the constitution of the united states. article iii section one talks about the tenure of the justices. assuming one were even able to have an amendment which i think would be required to bring that about and that seems incredibly unlikely. i worry about the cost of the constant churn of the supreme court justices. if there are a turnover every two years one could imagine justices have been even greater than two to have strategic arguments about whether to hear a case or not hear a case. i should also say some of our most distinguished justices

serve for more than 30 years to think about chief justice john marshall and was rather important ball after being on the court for 18 years. the same could be true of all of her wendell holmes. before we start thinking about opposing this tenure requirements, which should be really careful. one of the reasons is because i do think incentivizes justices to think about what they are going to do after they leave the court. that seems like a mistake to me. laura warren was attorney general of california during the internment of japanese-americans. and then he joins the supreme court in a way that's very compatible and one of the reasons he was able to vote the way he did this because he didn't have to think about the next election or what was going to calm after leaving the court.

there is a real virtue in having people go to the court and understand the last position they will ever hold in their professional lives. >> you require a constitutional amendment and the proposal which functionally does not require an amendment. see the arguments of both sides. on balance i would favor term limits. you have an occasional justice. they got the justices over time would over time would serve long times in the vast majority don't do their best record of eight years and more importantly they are so out of sync with the way the country is. what i like over regular turnover is one of the ways you can preserve independence and supremacy and not worry about. too far away from where the court is moving because of the turnover. the question which is a good one. i don't think the justice would have too much trouble finding a good job.

they know the confirmation process would have to change obviously. it would if it was every two years. it would bring mistakes down for a single appointment. >> one answer to the concern about losing the best work of the older justices might be with regular turnover there wouldn't be such an incentive to put the young justices on the court. i think one can make an argument that the framers view was that service on the supreme court with the kind of a cast-off and not something that would come early and someone's political career. talk a little bit more because this may not be completely up on the various proposals that are

circulating. the lake decides every two years. looking at the 18 near there is an argument that could be done without a constitutional amendment if somebody got tenure on the supreme court. but the actual job of serving and working day-to-day just if would be the nine most junior people at the group. am i right about that? >> they say it would require a constitutional amendment. i think it would require a constitutional amendment. here i may disagree about the impossibility. when rick perry ran for president four years ago he proposed what i suggested. 18 near nonrenewable terms with conservatives like brick. liberals like me but proposing maybe it becomes where possible.

what is interesting on the rare occasion i get interrupted with applause proposed in 18 near nonrenewable term limit. [applause] i didn't do that on purpose. but i do think there's much more support for this than we might imagine. it would take time to build support to turn into a constitutional amendment, but i don't think it is an impossibility here. ..

to the i'm skeptical about it. the high temperatures that occur at supreme court confirmation hearings since the board hearing our something fairly new and are probably contingent on the fact that we have a somewhat closely divided court -- board hearing. i think is probably a more important fact in driving these things. >> i want to get a chance to weigh in. >> i think, sure it would lower the temperature at all because portable raise the temperature is the fact these are high profile other important cases get to the court in first place which does it's a bad thing

initial premise but that would still happen even if we had a 18 year terms. i think we would still a very heated confirmation processes. i'm not entirely sure what we get out of the term limits i just. i think a perfect sample of counterpoint to the idea that justice is toward longer on the bench don't do some of the best work are not as accommodating to current society. our speaker tomorrow justice ginsburg is the notorious -- you can get more embraced by the younger generation of then current events than that. we are getting tattoos cover on their arm. if that term limits we might not have gotten some of her best to since i think in shelby county. a lot of these things by somewhat by accident public cases come up when you have which justices.

jacketed as thought after of what would happen if we had a 10 year term at and he comes to the conclusion role he would've gone the other way. a much what we missed to get out of that -- roe v. wade. >> what you get is this. it's not that are not individuals. i will say. i could have some experience, the last term sheet justice burger from six of the justices were in their 80s. i will play they were not all there. in the fall quick step did we did what we wanted we didn't in a way that almost we would've would extrapolate from the past opinion without they would want to go and it was not simply to say that far and no farther. you do see this pic you see a lot of the elderly justices become centered version of the younger selves in their later years. so again you can't do this by anecdote exactly but on balance think that the important things you may want to construct for

your own lives. who do you want, you want to delete the people at the very tail end of their lives and disabilities are unquestionably declining or would rather people who are at the peak of their powers? i don't think there's any question we would say i think on bellsouth take the people were at the peak of their powers. there's a reason this should be different. >> we are going to assess the supreme court, one part has to be locked it. goes for years were a terrible failure by the supreme court that entitled dems to people in society. in large part that was because justices remain on the court far too long. i think the change of 18 nonrenewable term is saying we will have new justices comment on the court but still give 18 years which is a longtime director mark on the constitution. >> a long learning curve. >> given the arc of your own career and are on scholarship,

doesn't that year of clerking is that what did you did you that judicial supremacy is overrated? >> absolutely. i was a part of it was i clerked a year before. he approached it the way i was taught you would approach. i was angry the entire year. it was such a disappointment in every single respect. some of it was the aging issues and added nothing to with the ideological step it was the way to work. it was sadly fitting inside a the ball realizing what an incredible bubble you were in. the complete unawareness of real consequences just in a few cases where i thought i'd some sense of what they were and on and on and on. it took about 10 to get to the juice i got. nelson potter will remember. we were at law school the same time. they were uganda. i was a staunch defender of

judicial supremacy of the time and he was not then. it took a long time to come around, and a lot of it was because of the kinds of arguments early next what you don't dismiss lightly by any stretch which is there is a really our judgment to figure there are benefits from having an accountability as part of the mix. the question is how much do we need? we've gone way farther than we need you companies might view. there's some notion the court is anything other than an 800-pound political guerrilla which is and always has been, and so we don't need be quite so afraid of doing things that as i said make them get their information from make the more aware and someone spent how old was judge friendly went to work for him? >> i do know it's true he was 82. but here's the thing. i talk to a lot he was excellent are all around excellent at all around, smartest human being a

government. though still a decline in bush as at ridiculously high love. i thought it must mean that acey ducey in in his 40s and 50s. >> judge friendly decided not to go until his powers were gone. >> he decided -- >> he decided not just not to stay on the court until his powers were completely gone. >> yeah, yeah. >> justin, if i understand some of your recent work, your view is that court hasn't necessarily been counter but you're carrying enough right? that's a part of the court has for the good that it shouldn't be shy about about using. i want to get a chance to talk a little bit about that. >> i think that the supreme court has fallen down in indicating the constitutional rights of marginalized citizens.

some people would say that's because the supreme court is fundamentally incapable of indicating those rights that it's just too fragile and institution. when you attempt to vindicate those rights into making matters much worse. it can't come to the rescue of marginalized groups. you do this all the time with respect to roe v. wade and furman v. georgia, the capital punishment and even brown people would say that are sort of seventh grade conception of course coming to the rescue of racial minorities is inaccurate because the nation as hell was committed to racial egalitarian. i think that oversimplifies brown, the north was not quite the land of racial enlightenment that we sometimes pretend. but even the supreme court does have the capacity to vindicate

rights and even for very unpopular groups. if you think about kennedy v. louisiana from 2008, a decision involving capital punishment for individuals who rape children, the court says that's unconstitutional, can't do it. if you pull that -- >> based on a mistaken fact. >> right. if you pull that thing is not a great surprise that people will say, the majority will say yes you can inflict capital punishment on those sorts of people. if you think about texas v. johnson in the first thing in the context flagburning, more than 80% of people think of course chief she didn't have a lot of things that. the supreme court stepped in, invalidates is measured and stand strong even in the face of proposed constitutional amendments. if the supreme court has not a good enough job is not because it lacks the capacity. i think it's because of personnel but on the court.

and their desires and their constitutional visions not offering a conception to afford people those rights. when one looks back over appointments from earl warren what you think was the beginning of the modern supreme court in 1953, through justice alito's nomination in 2006 there were 23 justices that were confirmed to the supreme court 17 of those justices were appointed by republicans, only six were appointed by democrats. and of the 17 10 of those appointments happened in a row. when one thinks about what the supreme court is capable of doing, i think it is a mistake to only look at sort of history and not think about what the supreme court could do going forward. i really do worry about people and law school today constantly hearing don't file lawsuits.

instead go to the public square go to the state has put as with a real changes greater. i'm not encouraging people not to go to the stakeout -- status but are some people from going to the court has is the only option and the court stepped in and successfully vindicated rights on only some occasions and is no reason to think it's an incredibly powerful institution. said his united is a perfect example. i understand you regret that power, but it is a powerful institution. the question is what is that power going to be used for? >> nelson, you mentioned when you're talking about the stare decisis problem that the court is not acting as a court -- >> not like it used to right. >> is it acting, just to put off what justin was saying what is the courtif you had to identify the? >> i guess they kind of monster. [laughter] it really is too coarse and i

think what justice kagan said at his law school part i think is a side effect of the army to courts, the political court and the legal court. and for a variety of reasons the legal court is smaller than i think it should be. in the political court is much bigger than i think it should be. may be a bit different justices of their and my views i would feel differently and they would be fined not a political court but i don't think so. >> i strongly disagree. i think the assumption in that statement is such a thing as value neutral judging them that there can be law apart from value choices. it's just impossible. when you did with the constitution you're dealing with a document written in open textual language. was cruel and unusual

punishment? what is the process of law? there's no way to decide that with a value judgment. also no rights absolute. there's no protection of any class. inevitably, there's balancing to recall the in all of this could the court has to decide if it's a fundamental right a racial minority that is very compelling government interest such as diversity in the classroom a compelling government interest was even with rational basis review the court has to decide is there a legitimate government interest? if the court chooses rational basis they saw to ask is there some legitimate government reason for keeping gays and lesbians from being able to ameriquest i think the answer is there is no legitimate government reason but still all of these require -- [applause] >> my point is all of these are legal questions. all of them require a value choice. there's no way of adding value neutral judging. it's a mistake to say there's two courts, one that is

political and one that is legal. it's all legal and all in false value choices. >> what's interesting is there's social science research that indicates that the public understands that. so that although there's a political culture that forces a judicial nominees to say, as nelson said my job as a supreme court justice is to apply the law to the facts. the public knows that's not true and they are okay with it. that you can hold two thoughts in a way the public seems to want judicial nominees to say that, and let's assume for else they wouldn't be required to say it. on the other and the public will understand that judge he is a value inflicted task. elizabeth, i haven't given you enough chance to weigh in your. >> i don't know the public is necessarily okay with the court

acting like just another political entity. i think sometimes -- >> that's not what i was saying. >> but i think there's an understanding that the justices have thoughts and experiences and so forth and maybe getting an increased diversity of those experiences, talking about justice o'connor as the last justice to what state legislative experience as a mitigating a diversity of experience with more public defenders and fear prosecutors more folks are in the public interest people just and law firms, maybe that would help but i think the idea the court as a protector of rights is something we shouldn't overlook. the idea you can achieve things in the court that you could do the political process is important. today is the anniversary of loving v. virginia. while it's true most of the state didn't have bans on interracial marriage on the books, and were still a hard-core group of states that

would not have done this i do not think without the court stepping and i think that's important to note that even if the court is not leading on these things and many would say in energy quality cases this term they are not leading but there are states that will not what the court telling them recognize these constitution was to call the. i think that's an important role of the court. >> all of this is completely there. what is bizarre is the impossibly to anyone's in this debate. don't mean this debate, the debate we're having in society at large. nelson's position i don't think is there some completely value-neutral free analysis to choose what she do that a judicial drug on the other hand, there's a big difference in the relative mix and when you take a case and who decided they saw that because you are legal considerations. i would feel comfortable saying 20, 30, 40 years ago at almost no the time with a case like king v. burwell be in the court. it's a ludicrous.

[applause] something is gone seriously wrong. thing that has gone wrong is we seem incapable think the court should have a role. now we have protected to enable them to do anything they want. brown and iverson because of the time it was decided there's a question didn't get a judicial supremacy was not established as part of the background political culture is reflected in pushback at the time and what you got what made this work was not that the court had no role it's the culmination of the legislation educate in the mid '60s, the civil rights act. the notion you don't want people to go out to be engaged in the political site. so the question is how do we find a balance we don't have to say the court is going to be our protect rights and, therefore, no matter what they do no matter how unprotected it is underwent it is like to protect their authority because someday we hope maybe that would is something we like, or every once in a while to do.

remember robert post join me when he was doing his volume when the court decided can what's it called, pierce and myers to face in those opinions around see we are not always conservative. here's a little one. they will toss the ball and use that to july 25 of the things. that will go both ways so this is not whether you're a liberal or conservative. a conservative. so the question is can we have a system as we did through most of american history where we get pushback. what are the devices to pushback? what are they? the things nelson listed are great. jurisdiction stripping i think is great. budget slashing if i. korda bashing us by. who did this in american history of jefferson, jackson, lincoln reconstruction congress, franklin roosevelt. teddy roosevelt. not a rogue government. it's only in the last 50 years we moved to the position that any of those devices all of which are playing constitutional

on the face of the constitution to any of those devices are such a threat to what the court will do that we can't do it. we need to be balanced and recognize that pushback has taken both ways. for every brown there is a citizens united come and the notion all right bush v. gore or the day after when al gore comes out and says it would be unpatriotic to do anything other than acquiesce. like in 1876 i would not seemed to come would not happen so the court didn't have had the ability to step in. so it's a dynamic we need to be aware of. so we do need some devices. i think it's good to talk about what they are, term limits they play some role but we have moved in our public debate so far from that right? honestly my view it's depressing sometimes. my fans, ralph nader and newt gingrich. that's got a left-right thing but that's not what i would like to be on either one and

something is wrong. [laughter] when the notion of challenging judicial supremacy is so french and this is what you get. >> i think it's not an accident the notion of challenging judicial supremacy is a fringe phenomenon. we shouldn't leave the store off in the 1930s. you have to think about the 1950s and brown. there was pushback in the form of most probably the southern manifesto where a group of southern congressmen and senators to give an offer their own constitutional interpretation. incredibly legalistic document. and one can use that to stand for the proposition that judicial supremacy may not have been so widespread at that mix lots of people uncomfortable when individuals are taking the constitution in their own hands. i think the notion of judicial supremacy was a good bit more widespread in the 1950s as judged by the results of southern manifesto.

people respond in strong terms. who were you all to offer your constitution? eisenhower said something to the effect and many others said this in newspapers all around the country said the same thing. it's not an accident that given our modern historical moment that individuals, many individuals are made it easy when they said i don't care what the supreme court says, i'm going to go ahead and do it spirit that was always to get that was true when jefferson was present as well. there's always been this debate. this was been people, typically very quickly the judicial supremacy through the vast bulk of american issue was a conservative position. particularly are conservatives are but whatever that was come and the progressive position was always in favor of democratic afford all that happened after brown, and it takes time. the left slips and what doesn't the debate shifts.

sadly for the first time beginning in the '60s the debate shifts to how do you interpret the constitution? the stakes are so high that what the supreme court is going to do but that is a new development, not that there'd never been both position before the dominant position shifts because the left in what my perspective is a shortsighted action, which switches underserved and now have have an agreement from left to right that the court she tells what our rights are and what the constitution means. now have to wait for someone to die or retire or get tired of the job or amend the constitution, which is nearly impossible, to undo what they've done. >> seems to me on facility various jurisdictions there seems to be liberals who wanted very generous ideas of standing and now all of a sudden basically any plaintiff, the plaintiffs in king v. burwell

were as sketchy as they come. [laughter] let's not investigate understand the. that's a question that a let's not question the extent of abigail fisher even though she already graduate from college and there's no redressability into tranche of the standing doctrine and so and maybe that reflects what you were talking about. >> i think you have to separate the lead against choices in the court decisions. i understand where the university of texas didn't challenge abigail fisher's standing. i don't solicitor general's office didn't forget chose to standing in king v. burwell so there is not the supreme court. it was the lead against choices are in terms of the supreme court i just want to be clear, we shouldn't think of the supreme court is all of a sudden the blessing standiford think of the last major standing case from the roberts court. it was clapper versus amnesty international two years ago when the supreme court ruled 5-4 that

no one would've standing to challenge federal law given the national security agency the billy to accept mutation those trained in foreign countries. the reason was no one could show their communications were and likely intercepted by the nsa. and if it doesn't kill people. that's a terrible decision in terms of standing restrictive and that's the most recent one. >> win some of you all were courting, the court to draw twice as many cases or even more. more than twice as many cases decided today that some things i'm hearing, maybe they're still taking too many cases. what do you think? is the court decided you must speak with no. i think i'm not taking enough cases. they're just taking the wrong kinds of cases. there are lots of important decisions that need to be resolved. professor helmand did a study of

the court circuit granting practices, and what he found was that there seems to be a cultural shift on the court away from an obligation to resolve circuit splits. they can always find somebody thing is not a true split and all this kind of thing, if i recall quickly he suggested justice white was the last justice on the court who really took that obligation to clarify the law where circuit splits take that obligation judicially. he suggests with a lot of data but that's pretty much gone now. i do think that's unfortunate. they should take more cases that actually involve more law and less politics without suggesting that you can have a purer version of either one ever. >> i don't think that it matters. what i said at the beginning there's a reasonable number of cases attacks are technical

legal cases. they have that expertise both as judges and have a law clerks. spin but you want to get rid of the law clerks. >> well, for other reasons. in any given term and it doesn't matter whether they're 75 by 160 cases, there are four or five typically that are the big cases and that's why we're here. they are the ones we care about. they would be those in either domain. so i don't think you're going to affect that data on these momentous issues, the supreme court has and always has some critical in helping resolve those issues. i don't think much would change as i don't think the from 75 -- from 150 to 75. >> i agree. they would not change much. it would be a marginal change. >> but you think every circuit split would've --

>> i think would be impossible although i should point out that it was a time when the supreme court decided hundreds of cases every year with no law clerks. said this is not -- >> and with no opinions. >> but they decided the cases though. they decided to cases. they were acting like judges. that's not an impossible thing for them to do. >> are there any kinds of cases that the court is ducking or failing to take note of that they should take? >> second amendment cases. [laughter] >> they recently denied cert and a second amended case and to dissent from justice thomas and justice scalia. >> anything else? >> we had a category, every time there's a constant i see cases where there's a real circuit that requires resolution.

inexplicably cert 59. this year the court had oral argument in 68 cases. last year the court decided 60 cases. before it was 73. before than 65 which was the smallest number in any of my lifetime. as nelson points out as recently as the 1980s the court was deciding 160 cases that you. i think there are cases where there are splits among the circuit and the court is just not taking them. i think a pernicious consequence of the small docket is the opinions have got much longer. i can show you a reverse correlation to i don't think that's led to the analysis for better opinions. >> in defense of the opinions that i think also in defense of there was criticism about the opinions maybe nothing written for lawyers in defense of interesting and maybe perhaps long opinions i think that is one of the rare instances where would you have them transparency from the court for the public.

if that is the way the public jenna gets information about what the supreme court is doing better than having those opinions been written in a way that is both interesting and understandable for the public is only good thing. i went out on the cases that the court should be taking, i think the cases involving criminal defendants that the court is not necessary taking i do know if it's because they are not interested but i remember a day partly because of my cert petition, the day the court granted the case about the destruction of fish and whether that counted as evidence destruction to a tonight petition with is a circuit split on whether you can have a non-unanimous jury sends a person to life at hard labor. i think that's a clear constitutional violation at every wish the court would've taken that. some of these cases involving, they are not sexy social issues, not high political issues high political issues, they don't

have big this is interesting i think that implicate incredibly important values. >> binary i would identify involving cases that the court should take more of seems to be reluctant to take on would be in the context of student rights in the elementary and secondary school contacts. the court has not heard a case involving student rights and the last six terms during the roberts court. the ready in case and come and often the strip search in the fourth minute and the so-called bong hits for jesus case involving student speech along with the parents. to our three major cases the court decided but it seems not to want to get involved and there are lots of discussion about the supreme court is delivered to be with to get involved in this arena. this is whether shy away from -- that are contentious because we think about our schools we think about who across the nation.

i think the effort to stay out of the matter is mistaken because lower courts do need guidance from the supreme court in order to be able to do with these cases effectively. >> can you give us a couple of examples of cases that are being cert denied? >> one of the major issues in the area that the circuit court of at odds about his speech that happened outside of the school context, you know, on a home computer say or in some other way that ultimately comes back into the school. so that doesn't get into the traditional find categories anyway. so that is one of the major issues. there is a case involving religious speech by students about homosexuality, and these are really difficult cases but they are common in the circuit

courts as well. so the court seems to not want to just get involved with that at all the there was a case to court denied this term involving students wearing the american flag to school in the ninth circuit, and think of that was impermissible. that sounds insane, the exact context was on the day of cinco de mayo and this was seen as a side of idaho, sort of rebellion and even maybe -- so that was a very decisive case in the courts and it seems like it would be a place for the court to step in and get involved in this area. >> is about the kind of case we need to court for? >> i have no opinion on this. i don't. i don't think i know enough to really say. >> you mentioned court stripping as a valid way of constraining the court if the public so desires.

the most recent occasion i can think of for that was once the people in congress got concerned that the court was relying too much on quote for law. there was a house resolution that was passed i think not with the expectation of a result in some serious piece of legislation, but as an expressive protest that the court and any justice or judge who decided for law -- foreign law should be impeached. so it's going to come down to that but what about court stripping as appropriate constraining mechanism? >> what then would stop congress from adopting an unconstitutional law and even a blatant unconstitutional and precluding the supreme court lower federal courts would be able to review it? if congress can do that then we would have lost the judicial

branches there for marbury v. madison created. let me mention, i'd want to skip over that you mentioned possible of budget-cutting. just yesterday the kansas legislature passed a law that said if the kansas supreme court decides any particular way the funny for the kansas issue with the stupid if you think is a violation of separation of powers it has to be that. >> i want to jumping. if you have a simpleminded i'm not going to simpleminded, i hate when people do that that we think about these matters were looking in the past. again the idea with these devices is once the threat is realistic you seldom need them. because the court is acutely conscious of how far it can do. go. what happens, jurisdiction stripping proposal were introduced in the 19 -- almost never passed the that was not because of judicial subsidy. it's because the core ethical by the responsibility responsibly

actually is an 800-pound gorilla in politics. they play the judicial role in the judicial way but there is a difference between, i did a talk with justice breyer. it was clear that he took pride communist prague but it is a what i'm doing is absolute of else in the country thinks is bad come is wrong. that struck me as just wanted independent judgment but it should be like of like what the rest of the country thinks because after all it's not they are all idiots i do. the democratic politics action works is these things become the point of engagement with these issues are actually been fleshed out. when i think about the southern manifesto, it started to be. be. it didn't end when. provided the grounds of which are real public engagement that produced along with a lot of real political activity fiscal rights act of 19 safety for calm and that was so much better in such a better solution. you don't get that when the court is effectively deemed to

be a shudder off of politics. it never completely shuts it off. we see a lot of debate at the way people respond, is not just about whether they agree or disagree with its outcomes. it's a product to which they feel entitled to disagree. i treat my boss carefully when i disagree with him or her that i do my subordinates when i disagree with in order. whether the court sees itself as our boss or subordinate will affect her family the way it operates. if you look historically i think you get a better balance with these devices being available not that you can't imagine the parade of horribles. the marshall court didn't stop being the marshall court but it pulled back and probably to the benefit of the country old back in the face of introduction of all these kinds of barriers. at the of the of the threat, not idea what to do. i think the europeans have better ways. this is what our constitution this is because when it was

written not for them really imagine the court find this kind of also put this strong independent judicial into. we wanted to make that impossible and individual case and they were stuck having to kabul something together. term limits, super majorities are upon us, there's also -- the ones we have come i was i would rather have them but nothing because we have nothing what you get is this court. >> we are having cards collected if people have questions. >> i want to pick up before we get to that on butler said. i think part of which are comments reflected, things are actually kind of working out. we do have these which back from the other branches. we have when congress doesn't like what the supreme court is done, for example the lead but a position to get past a law. we have the president able to

set after this should not become. >> reckoned people in the state of being address this decision has deleterious effects and it's a problem. he's speaking to the american people in the way that he is in part an attempt to do so. i think when i think about this question of whether the court is if you are not part of it is self-interested i have devoted my credulity get in front of the supreme court so if i think it's a family, and the markets will not get out of bed in the morning. in many important ways it isn't a bigger part of that is because it is the independent judiciary that our founders put in place instead of some of the european or the english model, that wasn't as independent. the legitimacy of the institution is reflected in fact i think the american people you it legitimate even with the disagree. even when al gore comes out and says i disagree with this decision but i'm going to stand

by. that isn't institutional success i would say. when you're looking at independent judiciary. it only continues to be that way if there is some sort of idea that the court asks -- ask according to the law and not just politics. no one has said this more often and chief justice roberts says he doesn't want the court to be considered just another political entity. i think we have a lot of instances and even the robert court erred with asthma to what he considers united, the court reaching out to something that didn't have to be decided and king v. burwell, another major test when you have scholars from across the ideological spectrum singers no legitimate interpretation that lead you to row for the challenges. that instrument is whether the court will follow the law or politics. i think that's something to watch to see whether or not the court as if it were not. right now i would be sort of the voice of optimism in saying that it is in the we might disagree

with it a lot but i think institution it is not a good steps in as it did decades ago of this they would issued loving v. virginia to vindicate constitution and individual rights. >> our conversation has provoked quite a few good questions. so maybe i will turn to those in our last 15 minutes or so. one question is are there lessons for reforms from state supreme court's that could inform the federal supreme court? >> i'll give an example. a number of states have a merit selection system for the supreme court justices, but i think any president could voluntarily create. what the they present to do is create a commission, bipartisan and he wants names two or three at least, supported by two-thirds of the group, he promises either to pick from those names are ask for additional names. as an example of ascii is used this system to tremendous

success. so sarah palin picked a morgan -- a person who barack obama to put on the ninth circuit enemy thinks she's the most liberal judges his place on the ninth circuit or jimmy carter created merit selection to purchase a court federal court of appeals appointment. i think i make it harder for federal court of appeals appointment. they were among the best the first in american history and i think he might've done that to this report had already supreme court vacancy. this wouldn't take a constitutional amendment. >> any response or any of the ideas? >> i have one question, which is what the merit selection system lead to the potential nomination of a sort of people they were would speak about earlier, that public figures, senators and other folks who have played an important role in public life, or would instead lead to a more traditional way of judges on the courts of appeals being a farm

team for the supreme court? like larry, i am drawn to the old model, and it's hard to imagine say governor earl warren would've in anyone's merit selection team. he was not a distinguished law student and people always thought of him as, even during his own time. i guess that's one concern about the merit selection system. >> it would include life expenses and political expenses. merit does not to be so narrowly defined. so i think a merit selection like we would produce john robert and ruth bader ginsburg. i think it could produce another felix frankfurter hugo black parrothead depends on how we define marriage. may be grading such a merit selection process would cause us to a discussion of what we mean by merit and that would be a good thing. >> here's another question.

we've talked a lot about the failings of the appointment lifetime tenure system but the majority of state courts have elected judges. many of term limits. those state judges are subject to attack ads, such with regard to being soft on crime. what is the institute judicial impartiality? so i take it is asks us to reflect on the dangers of the system, and we certainly have seen in this decor not order topic but we have seen in the state courts, wisconsin is one example of the mess that was created out of their in the recent -- up there fishing in the unseating of chief justice abrahamson terribly messy situation. does anybody have thoughts about

that? >> i agree with justice o'connor that it's a pretty bad idea to elect judges. we've seen in the states on the problems, and i think it also to be raised in my mind why we want come why some folks criticize the court want to make it more like the democratically elected branches. i can't imagine right now and then do we want to take the long view but i can't imagine anyone say with all the problems of the roberts court think should be more like this congress, like that's a good thing? it doesn't seem like it to me. i think that's something to keep in mind. we are thinking of what are the better alternatives. >> let me be clear. i certainly wouldn't argue that judicial elections have been a good thing. it is with memory where they came from historically which is in the early years when it was the same fight over who controls

the law, the jacksonians made a move for codification. they have trouble and in the to judicial elections as a way to make sure that the people who are controlling the common law would be somewhat subject to control by the democratic process. judicial review takes off once you judicial elections. election. it takes off in a state court, stylish itself is recognized that gets picked up in the federal courts much like imposed reconstruction era. there's a certain irony in terms of where this idea comes from. the what elections are but that is not a good thing. the notion of accountability, there are all different ways to produce accountability. the amazing thing about the founders went to construct the constitution was they thought this through very carefully in each branch has a different balance. the long-term, you know election by state legislature. we have lots of options for no one is arguing whether we want the supreme court to be elected to what congress does but that's not to say we have to go all the way to the other extreme.

the other point i would say because i get this pushed back a lot also is congress, are you serious? nothing could be worse from congress. i do agree with it. we are spending $50 million that way foundation just to get how to make that better. the point is if that's the problem, then the solution is to fix that. not to give up on entering the lawmaker -- lawmaker over to an oligarchy. i don't get that part of it. never did. >> fdr tried to add more justices to the supreme court. would adding more justices solve problems or create more problems? we are used to having nine justices. we've had nine justices throughout the 20th century, anyway. but there's nothing in the constitution that tells us how many justices congress should designate. do we have the right size on the court? does it matter if? >> i think it matters but you can manipulate. when lincoln gets elected, the increase the size of the court

because they want them to have more say. when johnson gets elected they shrink the court. when grant is elected to increase the court again. those kinds of manipulation. fdr was completely successful but you to look at it not in isolation as part of the package the pressure that the court responded to that you would have today because people were saying because of things that were being set sent in congress in the 1930s would be shouted down across the spectrum and that's why you have to have some pushback. president obama makes this one little offhand comment about citizens united which is so tepid and weigh them come he gets slammed by everybody left or right. how dare you criticize the supreme -- that is a long way. go back and read the congressional debates. around the new deal and that's a robust debate that doesn't exclude the possibility of judicial review but also doesn't assume the court having failed

in many important provisions of the constitution. >> question may be related to what would the court look like it senate confirmation was no longer required? required of course by the constitution but setting that aside. what about the blue sky idea of just getting rid of senate confirmation of that the president -- >> it would look more like congress. >> if there was no senate confirmation required? i think we've got to remember historically in the 19th century, 20% of presidential nominations of the supreme court rejected by the senate, almost always on ideological grounds. in the 20th century and even this century confirmation battles occur when the senate is a different political party than the president. virtually never will the senate reject the nomination of the president when the sin is that same political party as the president is when the senate and

to political parties are a party such of confirmations fights. i think you have a very important check. i think it was completely appropriate and very thankful the senate rejected robert bork. and counterfeit the law would've been. we can go back to others who are rejected because of their ideology. one of the checks that is built into the system is senate confirmation. what happens is when the present this in our of different political parties. >> maybe we can get rid of senate confirmation because of the constitution to a subset is what about expanding the nuclear option for supreme court nominations? the idea right now you need 60 votes to get some of your for the supreme court but there is a strong argument that the constitution sets forth majority rule and maybe we should have the dignity we should the same or right now because of the deployment of the nuclear option

for court of appeal judges, maybe she do that for the supreme court. that's something that is a possibility under the constitution an interesting thing to think about spent i think the supreme court have the power and authority has no senate confirmation wouldn't change complicated bit of senate confirmation would change all that much because it's a political controversy that happens outside the the confirmation hearing provide your place in which to do this and have pressure. isn't like prescience would make the point and nobody would care or do anything about it. >> on that line, harriet miers was will to dominate and then a conservative legal establishment sort of rose up as one and said that over our dead bodies. so i think that is a real phenomenon to its possible that the senate confirmation process itself intimidate some people who might otherwise be attractive judges. governor mario cuomo was very

seriously and consideration during the clinton administration did i don't know what made him back out but he did play hamlet forever long time and it's possible the scrutiny that one is subjected to to the process does make some people say thanks, but no thanks. >> is it possible that the courts law is not enough our? especially in enforcing its decisions. case in point, what could the court due to keep other alabama state officials are refusing to comply with the marriage equality decision? so the court can't carry out its orders as we were reminded in history, but should have some kind of enforcement power? >> in some ways i think enforcement power is to be believed in its legitimacy. if that became further undermined benefit it would be even harder for the court rulings to be accepted and

followed. which is not to say we should criticize the court what but if you think that this sort of the way when marbury was decided it wasn't a given that the courts will and would be followed. we have it today and i think it's, it goes into one of my reasons for saying the court as an institution is not a failure. >> itit doesn't need any more enforcement power because it has the lower courts to enforce these things. >> essentially all the department of defense, and always has been a general assumption that will enforce the judgment any particular case. so lincoln ignored dred scott in every the context that says i will enforce the judgment of the particular case, i decided to follow the rule. it will force the debate back into politics intricate the kind of public deliberation that the constitution was designed to great so that we make a decision. >> here's the question that is sort of inside the court but

maybe -- should the cert will be reform? i guess eight of the justices for their clerks to do the initial vetting of 8000 or so cert petitioned the community and make a recommendation as to which are worth taking further of which will be subject to the default rule which is if nobody's interested they are just denied. so they no. 14-144 about in the 1970s and has been -- cert pool. they simply think the cert pool presents a problem that needs to be reforms because i think it's partially responsible for the smaller doctor. it used to be that every cert petitioned was read by nine law clerk. they would tended of issues that the justices were interested in.

now a cert petitioned is read by two law clerks and i think that is a problem and i think from a large prospective these to be be better to have a red light nine people rather than to people. >> i would add one thing to do which is iso- this is still the case, it was only two years ago but there is a strong norm in favor of denying cert among supreme court clerks. and the reason is if you goof off and the case is granted in the court, the justices decided that was an improper granted you're not a very popular person. nobody ever gets criticized for mistakenly criticized enough of cert and it feeds into the problem. i think it is a serious problem. one would disappear when the clerks disappear. [laughter] when i clerked there were a bunch of justices not in the cert pool the i can say with a

fair amount of confidence a number of them which is read the question presented us with the need to decide to vote for or against cert. >> maybe this will be our last question to you mentioned some dissatisfaction with the number and types of cases taken by the court. they think this isn't and what changes could be made such as a quota for cases for term? or having a third party entity have some say in which cases are granted a cert? variations of this, not the quote above the third party, the kind of cert court has been a recommendation over the years kind of came up in the early 1980s when chief justice burger thought the court was drowning in work. it may be less salient today, but -- >> it is fascinating that chief justice roberts, wendy weiss before joined the courtroom was are interested in increasing the size of the docket.

since you've become chief justice that has not happen. you should hear him talk more about why that is. it's hard enough and outside the i suspected they -- if there were a quota effective it would be if it were much higher, they would take some of the cases that they currently handle in a summary fashion and have argument and briefing on those computer the uninsured the justices would be incredibly irritated by having to have an hour of oral argument when they are ready to decide if on the merits. i don't think a quota is going to come at a don't think i'm attracted to it. that seems odd. >> effective quota that consists of the court's calendar, that is to say uganda courts website and you see the calendar of days for argument days they will be

on the bench. and one thing they really hate and fear is that they listed on the calendar when they have no cases. that's happened and they're very unhappy when that happens. i think we see a phenomenon a for instance in january which was the last time to grant cases in the regular order to be hurt heard enable which is the last argument of the term, it's a lot usually get a case grant in january than it might be in november whatever. so that's one kind of impetus. i once made this just into some of the court that it can only cancel the april arguments and then carry over the march to the cases granted would be carried over until october and they were just have a much better flow of cases and they wouldn't have this problem of having to expedite the briefing schedule in october in order to shoehorn

cases onto the january calendar. i was told yes, we hear you but we couldn't do that because the public would didn't think we were not working hard enough. so should there be a third outside court? a third party that would inform them of the kind of cases that ought to take and that they are not taking? >> i do think there's something interesting that can be learned from the lower court in disregard. especially, so in the cert petitioned there's a paper document the cases that the cert petitioned set of lawyers and then you have the docket and it's very rare for a case from the nonpaid docket to be granted i think it's partly because the justices income and there's some merit, that if there is if they are there in the case and are some figures up in the water with a taken against pro bono

for the cert petitioned into the case of that what did you think of the records you have panels that look at some of these cases, especially for not going to be hard for argument, might recommend a decision to the council for the court. i think of something that is something to think about for the court. when you have largely preserve the appeals that get overlooked because they are not written in a way that the court generally is used to sing. that may be one instance where having this sort of administrative body may quit and some of the lower courts might be a source for the supreme court. >> need to make a recommendation recommendation. >> exactly. >> one thing that concerns me about that is a problem that we've talked about. i think there is an increasing number of instances what the supreme court is issuing per curiam opinions without briefing and oral argument based just on the petition for surgery at the opposition.

i worry such a proposal would make it more, but i think it's a terrible development. you know there's an enormous difference one puts a petition versus the brief on the merits. the petition is all about convincing the court this is worth hearing. is a split among the circuits. ..