the same where you have -- we have two to three editors look at it before it goes up. what we call a backfield editor, which is somebody who looks at it for substance and is the lead okay and then there is a copy editor who looks at it and maybe another editor with an important story. a lot of pressure to get things up quickly. huge amounts of pressure. there's this constant tension between this got to get this up in the gut to make sure it's right. ..

>> much of mike were was involved with "the boston globe" for 11 years. editor for "the miami herald" and work of the "l.a. times." feel very strongly and strongly committed to the success of those institutions. they do face enormous pressures. i'll own up to the fact i eliminated the foreign coverage of "the boston globe" and i guess 2007 or so we were going through the recession. we were expressing 30% decline in revenues and does anybody any

management role has to do, you have to make some very tough decisions. the question was are we going to maintain our foreign staff, five or six people, or cover our local region? the answer for institutions like "the boston globe," we will cover our local region. there are other places that can cover the world. nobody was happy with it. i wasn't happy with it. i were sharply criticized you're pretty much all of the people overseas at the moment left "the boston globe" to do other things, but i think that those institutions, they are still major newspapers. "the boston globe" still does a terrific job. the "l.a. times" is a great job on a lot of subjects. there are some online operations, "texas tribune" has a tremendous job of covering the state. it's critically important they succeed. so at "the boston globe" we launched the investigation of the catholic church when i was

there that exposed the sex abuse scandal that the churches dealing with even today. we got a pulitzer for the. if we had not done that -- you know, i think these newspapers have to be eyes and ears for public, we can't be everywhere. regardless of our size. even if we were double the size we would not be able to do that. we learned a lot by looking at regional newspapers for local newspapers all around the country. it's critical they succeed. their financial challenges are greater than ours, no question about it. we have the capacity to great national products, or international products as elisabeth was talking about abot before as how the new york times was trying to get international subscribers. the regional newspapers that's a much more challenge and they face the same competition.

i just think, notwithstanding the challenges that they face, they do tremendous work under very difficult circumstances and very often right very important stories that all of us learn from. >> well said, thank you. i'm going to ask one more question for because. we're getting to the end. before i do i just want to ask of you is there something that you thought was going to be asked and wasn't, or should have been. okay. the final question has to do with the future. i wonder if you both could talk about the recruiting of young journalists in the digital age. what are you looking for? how excited our young people about doing a kind of things that you do that are so

essential for american democracy? >> i've got to tell you, given how tough the business is right now we still get an amazing applicants, kids. we had this fantastic intern this summer in the times washington bureau who, he's 22, graduated from harvard, he just wants to be journalistic he does want to go into wall street our finest. he wants to be a journalist and he's a great writer. the interesting, you think okay, everybody, what i find about this, the young people we do hire, first of all, we hire journalists. we don't largest, the main thing is you higher journalist. some of them have more experience than others, some have more potential but what i find is interesting is that of all the emphasis we have on the web and the iphone and audience development and graphics and video, and that's

really cool and there's all these young people running around the newsroom now pushing our stores after everybody, and they are young and they are hip, so many of them just want to be reporters and write stories. that's what gives me hope. i thought if you were so cool and we are sort of the legacy media and all the old content providers, right? they just want to be "new york times" reporters and write stories. it's great. that is their dream, you know, do the old-fashioned going out and anything people and writing a story. so i have, they're still in numbers interest. i have a lot of hope for the future. >> i would say the single most encouraging thing in our profession today is the caliber of talent entering the profession. the single most important thing to our profession is a talent that in our profession i'm amazed. at the quality of people we

have. the insurance that we have every summer. the people we end up hiring, some of whom have just worked for several years, five years, something like that. it's amazing. they have multiple degrees. they speak many different languages. they are a lot smarter than i was, auriemma. they are good writers -- or amateur gear series about the world and the into the profession with all the right reasons. they are not looking for fame. they are not looking to be a celebrity. pages think we serve a very useful purpose in society and in the world, and they want to be part of it. and they do that knowing that the profession is at a very challenging moment facing all sorts of risks and they do it anyway. all of us entered the profession when it was doing pretty much just fine. whatever problems at the time, they pale in comparison to what we face today. i have huge admiration for the

people entering our profession now and i am very grateful they've chosen journalism as a place for themselves. >> bravo. thank you very much. great. [applause] >> you were great. >> thanks a lot. >> really, really wonderful. thank you. [inaudible conversations] >> while congress is on break this month we are showing booktv programs that are normally seen weekend on c-span2. >> white house coverage continues this evening. articlee

national journal" if you want to read that for yourself. >> there is a lot to watch on c-span this weekend. coming up tomorrow we will alson be live on c-span at iowa, and this will be the iowa state fair soapbox and that continues. you can see some guests that that include bobby jindal andor chrii govere.nor christie. they will both be there on c-span2, booktv we will be live at the mississippi book festival beginning at 11:30 a.m. and on c-span3 which is american history tv on the weekend, real america is on at 4 p.m. eastern time. you a seat in 1971 short film about a pilot program to improve

police community relations in washington, d.c. all of that this weekend on c-span networks. >> chief justice john roberts have been on the job 10 years and earlier this month current and former assistant solicitor general who've argued dozens of cases before the supreme court talked about the roberts court and predicts what's ahead. this is about 90 minutes. >> well, good morning and good early morning. it's nice to see all of you on this pitiful morning in chicago. welcome to this showcase panel on "the first ten years of the roberts court." my name is kan shanmugam. on how many of you know where you were on september 3, 2005, but i remember where i was there

i was at a college football game with my father. in fact, the first game of the season if memory serves, and we got to my folks house after the game and turn on the tv and saw the breaking news alert on cnn that william rehnquist, chief justice of the united states, had died after a very short battle with cancer. and that triggered a very fast-moving series of events that culminated in the confirmation of john roberts as the next chief justice of the united states. and within a month he was sitting in the center chair of the supreme court hearing oral arguments. well, for me it's very hard to play that that was 10 years ago, and 10 years ago almost exactly from the date that we sit here today. we are going to talk today about a number of aspects of those last 10 years, and i would just very briefly introduce the

panelists then talk a little bit about the format. to my right to do is miguel estrada, a partner at its and done in washington. he's been at gibson dunn hard to believe for almost two decades. he is one of the best known and, indeed, one of the best advocates practicing before the supreme court. he has argued 22 cases before the court, first bachelor and the justice department and then in private practice. to my lap, no, you're on the position of in your times is adam liptak, the supreme court correspondent for the times. you've been the supreme court correspond i've listened 2008, so he is covered most of the roberts court and, of course, has covered other legal issues before that for the times. rather like a former baseball player who turns into a color commentator, adam is himself a lawyer having practiced at the firm in new york before going in

house at the times. suite brings a perspective of someone who knows of what he speaks. and get adams left is nicole saharsky, the honorable nicole saharsky, according to her name tag -- >> just a regular person. >> may be at regular person but she is extraordinarily. she has argued 23 cases before the supreme court if my math is correct, and she's an assistant to the solicitor general so she serves in the government office that has all the comments litigation before the supreme court. i believe nicole has been there since 2007, is that about right? she is the longest-serving assistant in the office, and i can say she's also one of the finest advocates before the supreme court. i know that from personal experience, having argued against her last fall in the very interesting security's case, the omnicare versus

labor's case. in terms of the format for this morning, we have approximately 90 minutes. we would just chat amongst ourselves for most of that time, that the end will take questions from the audience. and if you are too shy, feel free to send me a tweet and i'll be happy to send out your question if you don't want to localize it yourself and, indeed, i have a few questions submitted on twitter earlier this week which would get you towards the end. but let me start with just a very general question for all the members of the panel and i think i will start with adam and then go to miguel and then nicole. and that is a good thing, we're going to talk about substantive areas of law. i promise when i get too deeply into the issues today but we'll talk about substantive areas of law in a minute. i want to start with general observations about the style and the overall approach of the

roberts court. adam, to put the question this way. if you had to think of and identify distinctive characteristic, quality of the roberts kate -- roberts court, any aspect, what would that be? >> i may start where you did with the chief justice taking the spot of chief justice rehnquist. i was of course not the spot which was originally nominated. it was originally nominated to be associate justice to replace justice o'connor. and i think an associate justice roberts may be a different figure, chief justice roberts. i think the chief justice and handled it very important cases may have voted differently because he's got an institutional perspective in addition to a jurisprudential want to is the custodian of the course authority, prestige, legitimacy. and in taking the chiefs spot has led to justice alito taking justice o'connor's spot.

and justice alito, we have now had four versions of the roberts court which is unusual 11 unbroken years by the rehnquist court, all of a sudden we have o'connor briefly, then toledo, and sotomayor and then taken. no, switch that matters ideologically is alito for o'connor. that's the distinctive kuchar's got the robert court that alito in key cases involving abortion, campaign finance, race, footage of the event but justice o'connor would have. that's my best understanding, my best shorthand way of saying was distinct about the roberts court spirit we will talk and show the course of the panel about the central role of justice kennedy now with the changes in the court membership. miguel, to pick up her adam left off, you have to virtually unique perspective in terms of its panel of having spent as much of your professional career in front of the rehnquist court has in front of the roberts

court. and so you are as well places in what kind of comment on the differences in style. >> that makes the old. the old chief wood an interruption in the middle of the wor workday of, if your tims up. a new chief is a lot more generous with the clock and he might actually choose he might actually choose finish your sentence or give you more time, which never would've happened in the rehnquist court. i think adam is right that the changes in the membership of the court since 2005 have done a lot to define what we think of as the roberts court. there are cases in which the lowest shipping at the time -- where it was going in one way and in addition of justice sotomayor who is a former prosecutor has shifted it back in certain ways that are not all that happy with safe justice scalia was at the forefront of trying to move the law and a

codefendant way. you can't really think about the roberts court without thinking with the ensemble the people who have gotten there since 2005. yes, it is a different court because chief justice rehnquist is no longer there but it's a different court because justice kagan and justice sotomayor other different. >> nicole, your arguments have been in front of the roberts court. so any further observations on its? >> when a think about the court and think about what the chief said when he was going to the confirmation hearings and the like, he pledged to be more of it on par, par dinner with the need for to take a pretty measured an incremental approach. it's hard for the public to see if that's happened because the things you about a big cases like health care, gay marriage but it's not clear they're taking a very measured or incremental approach. the court decides cases narrowly, not reaching very far

ahead of where were they need to be to decide the case. i think the chief is a measured at the point than one unit is a good one but chief justice roberts is probably greater but that associate justice roberts would have been. like chief justice roberts is very aware of the court's role in america, of perceptions inside the courtroom at for example, in the gay marriage case he read his dissent from the bench. we had never heard him read any kind of dissent from the bench. he just doesn't do the geeky does make waves in the kind of way. them i concur or might% but is not a just a silly our justice alito. we were talking, could we run into him read a dissent from the bench with we couldn't. you might all remember when but it takes a very chiefly approach. that's the only way i can describe it. he really does see himself as that they did it is going to take the court where it needs to

go but up big when pressing the boundaries. in some cases sure, but usually no. >> i'd like to talk a little bit about the chief justice's style and i think there are two components of that. his personal stock of the way he conducts himself in oral argument and the like and then he is quoted in court agenda. the famously said after he is confirmed that he wanted to court to decide more cases unanimously. he's talked about judicial role and judicial modesty. so folks were not going to run in any particular order from here on out to either he wants to weigh in any particular aspect of that? >> out a page full of very small -- smart water choose among the very smartest, quite charming, and exception legal craftsman, very good writer. i would say only he and justice kagan write opinions from a standing start to read the back section and understand what's going on because they have

labored on it to make it crystal clear. that's an exceptional quality. >> he's a charming than they can be awfully tough at oral argument. >> the old chief was sort of tough and sometimes nasty and dismissive in a very charming way las. [laughter] he would say -- edgy new he didn't give a darn. but he was just yanking your chain. there was some argument where if you didn't like the position that you are arguing, the old chief, he would cut you off really quickly. there was one time his red light went on any set i meant to save a minute forward but all. the old chief said well, you didn't. [laughter] that was about. i think the old chief has a more congenial manner than the old

chief. sometimes you can get on his backside. i haven't yet, thankfully, but i think he took, has a better understanding for what it is to be on the other side of the bench because he was there so many times. i think he's a little gentler with people that he is questioning even when he does not agree with him spirit but not always with the sg's office. >> also because he used to be there and every so often -- >> that's what makes speedy do you think that is what he was tough on you because he was in the sg's office? >> i don't think so. there have been, probably jumping ahead but there've been a few cases and yet perhaps justice alito see government overreaching that he's just not happy with. a lot of the things we gives the government a hard time are not high profile or even overreaching cases. i had a case that was about kind of an arcane judicial review

eeoc question, so that something is getting a lot of people out of bed in the morning. >> like this. [laughter] >> the question electric aggressively for five minutes, why should we trust you? why should we trust the government? i make like $5 an hour, i'm doing my best so why are you yelling at me? [laughter] and i just can someone kindly says things like akin to the government with the ax, but you work for the government so you know why we would say that the why is this happening? >> just for the record for anyone who may be watching at home, lawyers in the sg's office duty paid the minimum wage. to want to be any doubt about that. let me turn the discussion a little bit back to 2005. the chief justice -- >> we didn't answer the second part of your question which is an intriguing part of chief justice have an agenda. i am sure i've written that he has and ensure that he thinks he does not. i'm sure he thinks and thursday

so that he decides cases one at a time. there do seem to be cases, in particular about race, that light up his curiosity and his assertiveness. i'm curious if other panelists about the things that they think this chief may care more about our less about than the old chief. >> let's just table that for a minute. i want to talk about not only what the court is on substantive issues but also what the court is interested in. let me ask one last question of personal stalker we have a chief justice who actually court for the last chief justice, he clerked for then justice rehnquist, one of the pallbearers at his funeral. so i'm curious to what extent he modeled himself early on, on the late chief. and as you point out he came into this interesting situation where he was doing a number

members of the court would gather for this unprecedented period of time. do you think you start out being more like the late chief justice? has he changed? >> i don't think i'm the right person to answer that i've had to just a slight different question than the one as. i do think the fact that he clerked and the fact he is so highly credentialed is characteristic of this court, which is all lawyers who attended harvard or yale law school always exception of taken, former federal appeals court judge, no englishman for elected office, quite unlike justice o'connor who was a public person and deserved all three branches of the arizona government, that you do have in roberts and the rest of them, and the old chief talked about this, that there is a tendency in american judicial life to become more and more like europeans. so we don't have with the brown court looked like, a former

senator, a former california governor, former attorney general large public personalities making decisions, rather highly credentialed lawyers who almost from the beginning of their trip had only one gold which is to become a judge. as in europe where did the judge is a lifelong career. i think we see that with this court. >> ac is on main? >> absolutely. the most recent obamacare case, we wonder if you can be but he is definitely his own man. he runs, i think adam is right. the court as a professional corporate they are all very highly skilled tactical lawyers which is not within the case. i don't want the passing of the warren court or the fact that -- no longer telling us what the law should be. their opinions are

incomprehensible. i think it's good to have a professional skilled court and it's good to have good tactical lawyers. i don't buy into the myth that we had to cover his ostensible purpose is to bring some the other two law. i wish i could've court brought more law to the law but that's where we are. >> let's take up adams invitation to kind of look at the court's docket and look at some substantive areas of the law, if you pick up the question that a adam was trying to post o himself. how has the court changed in terms of its priorities in the case of a put on the docket? one of the questions i got on twitter was in the panel talk about the courts ever shrinking docket? part of the question is, is the docket really shrinking? and second, what is the court focusing its energy nowadays and

how much of that can we attribute to the chief? >> i think some of that. i don't think the docket is a shrink i think people have a relatively short memories. i was a law clerk in the '80s where the court heard about 150 cases on the merits every year. in september or october 1988, congress changed the law to cover the mandatory appellate jurisdiction. it turns out a lot of the cases the court was hearing back then were challenges in state proceedings that we had no business being in the supreme court just because the constitutional question was raised. it was mandatory jurisdiction to all manner of things that are important to the parties but not that much to the country. since congress changed the law in 1988 you've seen a very sharp drop in the number of cases the court hears but i think is stabilized in around 55-78 a year.

i think it has been there for several years but i don't think it's a shrinking. i do think the court is exercising a lot more care now that he has a choice in the cases he takes. the chief justice having come to ththe corporate and business law background has had some influence from what one can tell. others may have -- one cannot really know into the composition of the docket. have noticed were as, whether the court is to take one patent case every three decades, that it takes several each term. mostly to flip the federal circuit. coming from the federal circuit gets overturned every so often abouapatent case of make you ths a specialist court for those cases. at least with regard to this aspect of our discussion, nicole, the court has seen the relatively different entity, when it comes to which cases to decrease commute.

against a critic of it is, right speak with intense to the great. a lot of people i think see, like miguel said with the rest of the roberts court taking on the basis cases, we don't have a dog and love those fights but we've been in some of them. everything back to when i was in private practice, which was the beginning of the roberts court, i remember the kinds of things that this is committee was up in arms about, punitive damages. tenuous one case, the excellent before the supreme court but there wasn't a lot goes on the business agenda. now there's a class-action clasn concerned, the wal-mart case and even in particular is clawlike securities fraud, the government has an interest in this. we've been in a lot of them and there's been a pretty cities begin to get some cutbacks on the part of the business commuted. and now with the union cases, the cases that been granted for next year. those are probably cases the government has less of our is much of an interest in as the basis communities and we, the

court asked our view. gets a call to the solicitor general. i can't say that defer to us all that much on those business tough questions that its interest is a lot more cases of that type. >> adam, as our color commentator, what is going on with those changes? >> i'm persuaded and reuters but in a study on this, that the rise of a specialist supreme court bar, which continues to dominate and increasingly so, both at the cert state and merits state. the increasing likelihood that a business group will find a right case and the right lawyer to launch a certification has aided the court -- cert petition, in increasing its business docket. we've talked about some the

kinds of cases i would also mention arbitration to the basis of communism really well in this court. i think it's attributable at least in part to the small number and some of them are the state you but the ones in private practice, the small number of large who really dominate the docket. >> miguel, do you agree with that in terms of either more basis cases on the docket? >> i think always knock on the door but they can always slam the door in your face. way back to the rehnquist court, ken starr i think when he was, now former sg wrote an article bemoaning the fact they would these crucial business issues that he tried to take to the supreme court to no avail, but it was indeed the expense of private practice at the time to india ken starr as you are and all that, the court was just not all that interested. i think it is maybe what adam

said, pushing an open door but i think this court is more receptive to believing that the issues are as important as the subordinate to the subordinate to this board cause of some subsection on terrorism that affects the death penalty act for which they take struggle a year. >> part of it is just organization on the part of the business community. think of the price of the chamber of commerce and the job that robin conrad did think it will can issues we want to be addressing in the courts of appeal and the state supreme court and the supreme court of the united states and is looking back i was kind of paging through with the cases the court was decided in the 2510 as opposed to now and it seems like it is a species the court are getting have been brought up better through the court, the wal-mart case was like a huge and attractive case i think, visits i get to our certain issues that is doing has just been pushing kind of better than if you look at the 2005 -- 2006

terms there were six terms there was a business issue basilicas were scattershot. i don't know how much you attribute to the lawyers or to the court if that some part of an agenda some members of the court have. it's happening to the arts and issues that keep coming back in securities fraud, class action, et cetera. >> to some extent the court to decide on your same place knock. justice alito has made it very clear that he would love to another case, and he got one in short order, about public sector unions. >> you write an interesting piece on the subject of justice and opinions inviting future petitions for review by saying this is an issue we really like to consider and the union's case is one of those. if the number of cases has remained static and if the court is taking more basis cases, what is the court taking less of? i will offer one possibility. you guys can either agree or disagree, and that is cases

involving federalism and the relationship between the federal, and state. when i was in law school, but they cases weren't lopez, a case that proposed limitations on commerce caused power. a lot of those issues have largest receded from the courts docket's. that seems right. when perception i have for the court, back towards the beginning of the roberts court was that the court was granting certiorari just results of the split like the court so it'll as we need to resolve circuit splits and may be insufficient that not many people care about what they would do. now the court is taking cases more along the lines of we think the decision below is wrong. maybe every court has held is what we will take this because this looks really fishy to us. >> like the fish case. >> i would just put them on the table for now. i think the court, maybe it's a level of confidence. think this is a confident court in respect and love of confidence about the cases they think matter in america.

it doesn't seem as rain as it did at the beginning of the roberts court timmie. >> is federalism just as low priority for this chief justice? >> that's basically right. i don't think it was a high priority for the old chief but it was a very high priority for justice o'connor. when i was a law clerk i remember we had some of these cases and she would walk the halls and she would touch the ice are going down the hall and having just salida, like talking to him about some commerce clause, 11th amendment case. she would not be put off on those cases i think the chief was congenial. he was the person who was -- i think he would not been pushing as much if she had not been actually the engine for the. >> you a true that just your backup? >> and? >> yes. come from the west, from arizona

-- >> the real west. not california. >> the real west. and having been a state official in the real west, she took these things were essentially, like a personal slight when the federal government came in and trample all over what state governments were doing. because she had been the state government. that is a log of there. i think the old chief was congenial with a pointy puberty was not pushing as she was pushing it. >> this chief justice except when he was in private practice and work for the federal government. >> as having of the members, new members of the court. that's a common thread with all the members of the court who have joined the time since. let's talk a little bit about -- >> the interesting thing about justice o'connor the is is right, talks with the right of justice kennedy is the swing of justice.

he could, one might have expected him to push the federalism agenda almost as much. he is sympathetic to it but not always. there's cases whic which have gt often, federalism base ground that happen. it's just a race to me that he couldn'couldn't play that will t would did not have the same background and press the same passion that she did spirit he pushed federalism in the first marriage case and then he stopped pushing it. >> you know, on that note let's turn to subsidiaries of the law. let me sort of post one of these tried and true questions. everyone talks about the roberts court but is visually the kennedy court? >> in 5-4 decisions, two-thirds of the time it's kennedy plus liberals are any because the conservatives so yes, of course. but at the same time the chief is in the majority almost as much as kennedy.

the chief justice win in the majority gets to assign the majority opinion. and that's not insignificant power. so in that sense obviously it's also speaking are you suggesting that's not entirely accidental? spirit i am suggesting that, yes. by voting with the majority you can find a way to give rise to a narrower decision you might be tempted to do it. >> just to give an example i was, thinking about this, that is why the issues in which the basis can has been pushing the chief justice have been active in securities fraud in particular there was a series of cases about this idea of fraud on the market, fraud on the market way of proving securities fraud which some on the defense i believe it was to from the two planes, special class action plaintiff. two cases and the person was a very narrow question with the fifth circuit said he had to print a certain something of

class certification to go forward but you can still rely on this big broad market to get a second case that you have this but the big question. so the first quest case is in no case and the chief justice wrote anything of the season, was behind which is the fifth circuit was want to make you put this picture thing in the ferry was valid, sector that position for the and america's big crush whicwhich was the, president of breaking should have this theory at all. i remember breaking the second case and i thought we'd won this one some critical look at everything and see what great things are and i can use it to chief justice looking and reading and dissent almost like nothing helpful to us. we won this case and the was written so nearly with the knowledge that is at the case is probably coming data really does not advance the ball much better. this is a very talented person is designed t to case in his window and its advocates is, and

what you say it's because he wants the court to decide cases never go because his agenda with respect to the issue, never purchased an example where it really was the situation -- >> narrow decision-making sort of accrue to the chief benefit in a the chief benefit and it allows him the chief benefit in a glass and ashes of that power to control the pain is more often. >> yes. >> yes. i default on nicole's point, the kelo device that cases are a perfect example of this was the first time a penny challenge of section five, the chief justice rights a very narrow opinion as to which i think everybody but thomas signs on. but in juxtaposition to nicole just said, she put in a couple of paragraphs that would come in very handy when shelby county turns out just a couple years later. we've already decided that there's this principle called equal sovereignty of the states which will search the constitution in vain for.

and having decided that we do know quite and effectively start down section five. >> i think that's right. i'm not sure to what extent there's a conscious decision to write nearly. if you think about it, and i was envious thought about it that if you thought that's you would have thought about it, it's not that we don't -- we are going to have a hillary clinton administration in 2016 and, therefore, his colleagues are not going to get in your congenial as time passes. he was really instrumental for instrumental reasons, he would be writing more broadly to significance while he asked the vote. but, in fact, isn't. you would think he's writing these things merely because he thinks that the appropriate role of the court, not because he's doing it for any instrumental reasons. >> isn't one side effect of writing opinions in italy that issues end up coming back to the court and relatively short

order? nicole has referred to halliburton and that's one such case that the other such cases of courses section five of the voting rights act, shelby county and, of course, that was the affirmative action case which is a case that got sent back on very narrow grounds and is back to terms later. >> there may be achieved with everything they see some benefit to prime the pump. let's get to argue is out there, have an oral argument, see what people are thinking about this. i understand. the halliburton case, that's essentially what happened to it ended up being the case that the broad rule prevailed but i think a lot of people thought that will was going down, basically, and it didn't. >> with the chief justice in majority. >> it was surprising. they are decisions, this court, these decisions from 1970s and 80s, written in a different way or recent in a different way than the court does thanks now.

everything broader stroke with maybe not as much citation of reasoning or things that the concord would like to see so that kind of, they are giving the stink eye to these decisions. not sure these are good decisions or not. if you can persuade them that is the basis, let's stick with it, then court says sure, let's stick with it. >> databases square the question of this court attitude towards stare decisis and how this court attitude may be different from that of its predecessors. any thoughts on that? >> there's a lot of discussion i do know if it is dispositive of the difference between stare decisis upholding our decisions in the statutory context or congress is free to come back and change the court decision in constitutional cases where the court has the last word. there's a lot of talk about. the data suggest on their usual metrics of activism which is

this the court that overturned a lot of career decisions, this is a court that strikes down a lot of laws? is perfectly in keeping with earlier court. although it does do those things thethat instigated in a conservative direction. >> do you think? >> same-sex marriage, juvenile death penalty at all of those cases where justice kerry is actually voting opposite cases that the joint in the '80s and whether people join him on the left of the court. spirit those are all exceptions that prove the rule spirit what are examples of the rule of? >> had been high profile cases like voting rights, just things that are very big decisions. we haven't talked about campaign finance but campaign finance and the role this gorgeously with ththe campaign finance decision has been huge. if you told me 10 years ago corporation is a person and as exercise of religion rights and speech rights, i would've been surprised by the. >> and the second amendment

completely revolutionize space authorship and the corporations can also -- sound that. >> just you wait. we managed to prefer to several provisions. let's start with the first, the bill of rights which is the first amendment. is that an era in which the changes in the courts membership have automated different? >> speech or religion? >> let's do both. start with speech. >> i think the court almost to a person is a far more pro-speech court and the rehnquist court was. i think that's a factor of the changes in the membership of in the chief justice as well. there was a case did with sign ordinances in arizona where the whole thing was about fashioning the ninth circuit upheld.

the sign ordinance visited it have any articles designed you can have this, a directional sign, you can do. the ninth circuit somewhat surprisingly has -- [inaudible] so the court said no, but your justice kagan writing, concurring sink why do we even have this case? this isn't scrutiny, which is in interesting comment. but you have a lot more cases where you see pretty much everybody in the court going you clearly can't do this. i don't think you have that in the rehnquist court. it was a big status. >> and is skeptical about speech rights claims as a member of the court. >> so miguel is right, that person is a justice breyer. every case is actually very bold

-- that read case. and makes a point i think is new, that if something is content-based it triggers strict scrutiny. and for the proposition justice thomas signed a pharmaceutical marketing case. i think maybe part of this court's agenda to make sure that all speech restrictions in a commercial or political settings are subject to strict scrutiny. on the other side of that expansion of strict scrutiny is the only two decisions as far as i know, majority opinions upholding laws, challenge under strict scrutiny comes from the roberts court. humanitarian law project and williams-yulee. we have brought me a bit application strict scrutiny and achieving of its budget spent i hope it is officially café because i want to raise the

question of standards of review at the approach of the roberts court. has been an erosion of the importance of standard of review in this court? >> i think that maybe right. even think outside the first amendment context identifier number of criminal cases and the like this is just my own personal view that the court is very confident to go do something and decide like right or wrong. reasonable or not. if it needs to explain it in the context of a standard or do they can do that but for all not up it is looking at and what makes sense in making their own decision. the interesting thing to me about the first amendment case, it's not just the court is pro-first amendment. it's pro-first amendment and context we could'v could have sm going the other way. by kimberly distasteful speech stephen, a dogfighting case -- [talking over each other] people protesting military

funerals. that's not a nice thing to do. you got the stolen valor act which did was a bit of a weird act of you who are entrusted to get purple hearts and the like. i've been i can get -- >> half of congress. [laughter] >> you think back to like the '80s where you had the flagburning case and i was like wow matt, this is a hard speech to protect this is a tough thing to watch someone do. that's at least political speech. some of the, what value does it have taking animal custody over dogfighting big a protest at the these funerals, people who serve in the armed forces. the court doesn't get -- doesn't it have any qualms about that. >> in both of those cases where he was just talking about both of them and he was the lone vote basically on both of those. >> what about the courts approach in criminal cases? if you'd like this court is more friendly to criminal defendants. >> i think miguel started with

this, that there were some things happening in the criminal law before the chief justice took over. it's mostly with the -- >> and with crawford. >> there have been a lot of questions following from those essentially presenting guidelines the least and mandatory way or invalidate, from the government's perspective, a huge deal to the sensing guidelines. crawford responds just that what it means to we learned ohio versus roberts about the confrontation clause which is yet to liability, and then you can prove in court over a period of years if the court premises on what statements were good at what statements were that everybody knew the rules. maybe they robert roper the rules were set. crawford put out the door and now we don't know what kind of adequate statement could come

in. that those of a lot of practical questions about 911 calls the court has had to enter or lab statements like a person who analyzes dna or a sample of some kind whether they need to testify. i don't know how much of that is attributable to the roberts court. >> a lot of that was in hand before justice roberts joined, and one of the things that has happened in crawford, is his colleagues have steered him down. he is not happy about it. justice scalia is not that he was the one pushing those pro-criminal defendant things get in some ways people like justice sotomayor has dialed it back in ways that justice scalia doesn't like. you might think it's really getting us back to the ohio versus roberts paradigm. involving child abuse where the opinion of the court, justice alito started out by talking

favorably about ohio versus roberts which caused the condition on the part of justice scalia who could not bring himself to even -- thing the author of today's opinion, the author of today's opinion. he was like really angry about it is a i think is right at the jonathan only justice roberts writes in the furious concurrence. >> let's hold off on question for me because i want to make sure we cover the entirety of this topic. substantive questions of criminal, boy, the government has a hard time whenever it's dealing with the construction of a criminal statute those cases seem to be overwhelmingly going to the defendant these days spent the court struggles with two impulses that it hates criminal and it hates the government spirit and sympathy, looks less empathetic. >> there have been a few cases in recent years, i do know it's a whole court but some very

vocal members of the court or unhappy with what they perceive as government overreaching. i think bond was one of those cases, but only as has been cheated on her and she worked at a chemical factory and she doesn't poisoned chemicals and tried to poison this lady. >> she smeared this chemical -- >> on a mailbox. a mailbox is a federal -- >> i understand. you do not have to prosecutor for violation of the campbell war which is what what set off the court. [laughter] if you prosecutor for tempered with a mailbox i guarantee the case would not admit to supreme court twice and you would have gotten one out of 18 votes. to make two trips in the case. spirit so anyway. [laughter] >> i'm glad you've had your caffeine. >> let's be fair. give me that if you are prosecutorial options.

of course reusing you, not personally, but the government. >> it's interesting because those have got a lot of press but there are criminal cases that the government wins. the statutory construction cases are harder because of the case in which someone prosecuted something the court thought perhaps just did not fall into the statute. the government is doing pretty well, maryland v. king was a pretty big case for the government. about collection of dna samples. >> i do dimly recall that the case. i try to block it out of my memory. [talking over each other] >> thank you, adam. i enjoy your coverage. the fourth and in the cases are particularly interesting because these are cases where the court as a whole is really struggling

with a question about we thought we thought fourth amendment principles to emerging technologies. >> i think that's pretty interesting to get started with jones, the gps became in which the court had president up to the point and said if you're out in public issue putting stuff in public, your trash for the most part, going about and the police are looking of which were doing, there's nothing wrong with that the question became what is the place had a gps and a contract authority would and they track you for a month or longer? was that a problem? the court said yesterday is not surprising. i remember attending a question at oral argument those past of the deputy solicitor general, could you put achieve this on one of our cars and tractors for a month? >> without a warrant. >> he should have sat down. >> he answered with surprising average. he said a justice of this court? like you would do such a thing that it was unprecedented? the implications position, was

yes. then came maryland v. king which was adjacent to govern one and it swung back together with a cell phone cases somewhat recently where kind of look at all the data on a cell phone right away is asking a lot and the court said it was asking a lot. >> these are not cases the breakdown of traditional ideological ways, bears underscoring. >> we talked about it in the sg's office in the legal me to get a lot of breaks down based on what the justices think might happen to them. if you think it could happen to them and like your ordinary citizens or their children and that's a problem. cases than the people who are arrested like a folks in maryland v. king had been arrested or people arrested and put in jail and there's a question whether they could strip search. hss is going to be arrested and put in jail because the case about a car stopped lasting too long. what to do in their cars and some of stockton and had to wait? they don't want to wait.

>> there was some article, first lady, very funny and entertaining and very insightful. it was some cases in 2005 where there was somebody who had supplied, flushed cocaine down to put their fellow question is whether the cops waited too long or too short to go into the apartment and bust in as the guy was flushing the cocaine down the 12. this could happen to you argument. this line, this could happen to you, rarely works at the supreme court mostly because justice is so rarely stock large amounts of cocaine in their own bathroom. so rarely was the key phrase. but that's not true with all these other electronic cases, gps and cell phone case. they all have a cell phone at

all like weight, you can do that to me. that's a very different feeling spirit it's against him in for this as an ordinary law-abiding citizen. >> and a reasonable expectation of privacy. >> the docs and if cases were like that. go to talk cases a couple years back both out of florida. when was the reliability of drug-sniffing dogs in what you got a positive public from doctor back later and try to have although many think about what was the dogs track record within a school he had the dog been to, this will question. there was a separate question about a police officer was coming to your front door to ask a question and happen to do with it and happened to overcome is there some kind of fourth amendment problem? the court said the dogs are reliable, if that makes sense because they rely on dogs. we all do in the government. take you to protect outside the court. they do an amazing amount as i

learned to this case is that the court was not happy with the idea of a dog sniffing if someone's front door, that was not what a reasonable person would expect. it was a lot of doctrine or by case logic out into the point. the prior case law favored because of you, they felt confident they could make their own decision but that was not a reasonable thing. >> this brings up another subject, which is the course attitude toward the government more generally. nicole, who the obvious person to ask about this as a representative of the government. you've talked about kind of skepticism towards the sg's office in oral argument. ..

>> what extent is that attributable to changes in administration and the like? >> i think probably not. you know, what the court gets every term is a random sample of what people bring to it. and, you know, what happens one term where this year it was a big win for, you know, the

liberal end of the court, but if the issues change and if you have, you know, race and abortion the next year, that may look very differently. you get a little snapshot of what the docketed brings, and you make a conclusion based on what is really a random assortment of cases. and you can't really draw any con can collusions. i think nicole -- any conclusions. nicole is right. for five years it was my job as your predecessor used to say, like to get really angry when she said this, she would call me clinton administration lawyer miguel estrada. i was, like, i'm a civil servant, linda. but i had to go there and argue the positions of the clinton administration. and, trust me, the rehnquist court was equally skeptical. >> adam, you, of course, watch a lot of oral arguments. do you have any observations between the court and the federal government? >> i think the, there are cases in which the sg's office

probably partly as a consequence of the incredibly high quality of their work and how much the court leans on them, if there are aspects of the argument, unavoidable aspects that displease roberts in particular are, the chief is likely to the make a point to make it in a cutting way. >> i mean, i think part of this is perhaps attributable to something that is just this chief justice's style which is this chief justice, i think, is somewhat gentle at oral argument. that if, for example, a justice uses up a whole bunch of your time, maybe he'll give you extra time. and also sometimes if there's an advocate who's just not getting it, he'll not give that person a pass, but help move the argument along so it's not a bad, painful situation. but the flip side of that is when he thinks people up there who do get it and are prepared and take it, he gives it to

them. so that doesn't always work in our favor. >> right. and one other aspect of the relationship with the government is the issue of deference to the government when it is interpreting statutes, the issue of so-called chevron deference. again, i hope everyone is fully caffeinated for the next couple of minutes when we talk about the role of chevron in this court. is the court sort of moving on that issue? is the court moving away from full-fledged deference to the government? >> you know, i don't know that i can say that there's a trend at all, but i can say that there are cases that i've argued in which i thought we had a pretty good claim of chevron deference. there was a statutory interpretation case, and we had agency decisions like the kind of good, reasoned, written-out agency decisions that one would think would be entitled to chevron deference -- >> and that so rarely happens. >> sometimes it happens, sometimes it doesn't. but, you know, good chevron deference cases, and the court had the action of does it want to go the statutory route, and

the court went the statutory route. in the cases that i'm thinking of, we prevailed on the statute. the court just said the statute means what the government says, but they weren't interested in the chevron deference. i have been thinking about that, you know, should i think about that as a problem that we're doing something wrong or not, and i think a lot is just attributed to the court's confidence in its ability to resolve cases. i think the court thinks we're looking at this statute, we can look at the text and maybe some of your legislative purpose arguments or whatever, and we can figure it out. we don't need your deference. it's not that you're wrong or you're necessarily going to lose -- >> so the obvious example of that is king v. burwell, right? at oral argument the chief justice seemed very interested this the possibility of giving the irs difference which would give the government the ability to change positions down the road. but then he wrote an a opinion that sort of disparaged the very idea of deference. >> he said this is too big a deal for the irs to decide: this is for the supreme court to decide. it is a court that's very confident that it gets to decide. >> and we had, you know, that

omnicare and sec-related case where there was not a huge deference argument the government made, but, you know, an argument where is the sec had issued decisions along this line, and i don't think the court even mentioned it in its opinion. they just were not interested. >> that is true. we could have have that argument right here, but we'll save that for another day. i want to make sure we have time for questions from the audience, and i do have a couple of questions that we have received over the internet. but let me for the last 15 minutes or so let's talk a little bit about kind of where the roberts court is now and where the roberts court is going. so we've had ten years of the robert ares court. what do you guys think are the most significant decisions that the court has issued in that time? >> you know, citizens united and heller and shelby county and marriage. >> you were clearly ready for that one. i sort of agree with that. i think also juvenile death penalty, and, you know, the juvenile death penalty and the,

you know, rulings on whether you can execute somebody who may not be technically retarded, but is challenged. >> and cutting back on the death penalty in cases not involving murder and cutting back on juvenile life without parole. so the court has narrowed harsh punishments across a number of dimensions. >> what is the long-term significance of the first affordable care act decision, the nfib decision? >> none, i would imagine. >> well, except for the medicaid expansion piece of it which got seven votes, interestingly. >> yeah. and is, basically, like an overruling of south carolina v. dole. >> south dakota v. dole. >> you're right. south dakota v. dole. which was 8-1 with justice o'connor dissenting. >> the interesting thing to me when i think about the court's big decisions about citizens united is not because of what the court held as a legal

matter, which i guess is a pretty big deal, but because of some sense of public outrage about the decision and public engagement and interest. i don't know how many people know this, i guess i know it because i see it, but the court has had over the last few years public protests in the court about citizens united, you know, a couple of groups where people are standing up during oral arguments and making comments about we want to take the country back and that sort of thing. and i can't think of any other issue aside from are a lone perp in the gay marriage -- person in the gay marriage issue in court. that is not cool. i don't know what the old chief would have done. one of them brought in this little pen camera, and suddenly there was a kamela in the court -- camera in the court. there's been this reaction to it that is almost like the reaction to bush v. gore or some other cases that have gotten people really up in arms and perhaps concerned about the legitimacy of the court or the court really

having an agenda or something like that. >> all of that is a function of the coverage because, you know -- >> you don't think people read the underlying decisions? [laughter] >> i think many people do. >> are you blaming adam for these protests? >> no. i am blaming his editorial board maybe. no, i do think there are all of these things that get can turned into cause celebres. the president of the united states, you know, did mention this in the state of the union causing justice alito to mouth "that's not true," and it wasn't. so, i mean, when you have that level of politicization by the president of a decision, you shouldn't be shocked that people who are his followers and who agrees philosophically with him think that this is really a big deal. >> i agree with miguel that the decision has really been caricatured and blamed for a lot of stuff that it can't be blamed for. but it does seem incredibly salient. just the other night justice ginsburg was asked about what was the most disappointing thing

the court did in her 22 years on the court. she said citizens united. it is a kind of flashpoint and a kind of shorthand, undeserved shorthand for the way our money in elections in general is unsatisfying to many people. and people like to blame citizens united for many things it simply can't be blamed for. rich people were free to spend money in elections before and after citizens united. and if there's a problem in our elections, that may well be the problem, and citizen ises united can't be blamed for that. citizens united endorsed the disclosure requirements before it. so if there's not number disclosure, it's not -- enough disclosure, it's not citizens united's false. >> do you think justice ginsburg cited citizens united because of the way that went down with the court granting reargument and, reportedly, a lot of back and

forth about how the court was going to write the opinion? >> i don't think that's the reason she cited it. i think she cited it because it's a way to speak to an audience. you say citizens united, and the left side of the audience, you know, heads explode. >> so let me just sort of raise one last topic, and then we'll throw the floor open for the remainder of our time. we've had ten years of the roberts court. what do the next ten years of the roberts court look like? >> i guess the thing i think about most is justice kagan and what role she'll play. she's super talented. i worked for her when she was solicitor general. it's shocking to me how quickly she gets issues, you know? especially when you're solicitor general, there's things you've never worked on before, the false claims act or the federal torts claim act, and she's the kind of person you explain the issue to her, and she just gets it. and her questions at oral argument are so, so good. when you look at the first five years that she'd been there and how she's performed at oral

argument, she's kind of started out very measured in almost a way that the chief would, you know? i'm going to get my bearings, and i'm going to ask some good questions, and i'm going to look around and befriend the other justices and see what's going on. and she hasn't, you know, made a strong stand in a lot of cases in the way that, perhaps, justice sotomayor has. she's very talented. she could do a lot to shape the court for a long time, so i think it'll be interesting to see what she does. >> is the direction of the court really going to be decided by the next presidential election? >> yes. >> yes. >> well, that was easy. [laughter] >> since this is the aba, perhaps we should urge you all not to vote. [laughter] >> now, miguel. [laughter] one of the things i've always thought is very interesting about the supreme court is we do think about the court, we named the court after the -- >> miguel doesn't know how to suppress your votes. [laughter] >> boy, the gloves are off. >> the comment on old chief? >> the gloves are off. i'm just going to leave at this point.

[laughter] courts are sort of named after chief justices, but the chief justice doesn't really control the court. so with the obama administration, the president obviously runs the the executive branch and is responsible for what goes on there. but what the roberts court, he's facing the very real prospect that he could be in dissent if the presidential election comes out in a particular direction, and that hasn't happened with a chief justice in a while. >> it's a weird shorthand to attribute a single name to a court where the person in question has one vote and where the personnel that that person -- i've lost track of my syntax. when the personnel of that court changes. >> to what extent do you think that the possibility of a sort of dramatic change in the direction of the court has kind of influenced the chief's thinking? >> i don't think it has, actually. i mean, i was making the related point earlier that if he were instrumental, he would be writing really broadly on the areas in which he has the votes, but he isn't. and either he has a lot of confidence this the wisdom of

the american people -- in the wisdom of the american people, or he just sort of thinks this is the appropriate role for the court come hell or high water. >> i think there's a lot to be said for that, although he may have even a longer time horizon than the cruz administration. >> that's low. what about the trump administration? >> he's 60 years old, he'll be with us for another 30 years, he may be playing an even longer game than you think. >> it is. it's a very long game for those two. >> and, you know, this -- in terms of the issue that is the court has on the docket even in the coming year, you know, what's left for the court? it teals like the court will have touch -- feels like the court will have touched on all the highest profile issues of constitutional law and -- >> there are lots of public issues that are yet to take over. >> such -- like what? >> you know, foreign relations. the whole war -- >> they did have a case last year. >> so next term we have one

person, one vote. we have afull-termtive -- affirmative action. we have public sector unions. we're very likely to have abortion. i would think that the right side of the court is ahead in the voting in most of those cases, so the texture of this next term looks different -- >> and some very important to business cases on the docket as well. >> of course. >> yeah. and the thing is, there's a lot of time that at this point of the year you look at what the court has granted certiorari on, and you think, oh, it looks like a boring term. this time last year, they hadn't decided to hear the gay marriage case yet, and it shaped up to be an insanely busy term. of we've already got some pretty high profile stuff for next year. >> and a lot of the decisions will come down in the midst of the presidential campaign. >> well, we've covered quite a lot of ground so far this morning, and i want to leave plenty of time for questions. because we're being filmed, i will repeat the questions even though i suspect everyone will be able to hear them. and i know that there was a lady

here who was patiently waiting with a question from earlier. >> actually, going back to your first amendment area, that seems to be that public employee speech in area of turmoil for the courts. and i -- [inaudible] >> the question was about the garcetti case and about public employee speech and the court's attitude toward it. any of you want to tackle that? >> well, the cases have always been unpopular with some members of the court. you remember the follow-on case where there was, i think, like a marshal or somebody in law enforcement who had been fired because when president reagan was shot, she said i hope that they go after him and they get him, and she was fired. you know, the court upheld, you know, the view that she could not be fired for that statement, prompting justice scalia to have one of the most memorable opening lines in dissent saying the question in this case is

whether, you know, whoever she was, topside or bottom side, whether she can, you know, ride with the cops and cheer for the robbers. and, you know, the answer was, yes, she can. and so i think that there are members of the court like justice scalia and others who have been very skeptical for a long time of pickering and being sort of a relic of the 1960s. and i think it's one of those cases as, you know, nicole said earlier that the court gives a little bit of a fisheye to. well, okay, but -- on the other hand, you know, we'll see whether they have a consistent view in the -- [inaudible] case next term. >> yeah. nicole, adam, do you want to say a little bit about that case so folks know it's about? >> in a case called friedricks, the court has now for the third time, it's been, you know, tinkering around the margins, but it seems that it will directly address the following

not-insubstantial first amendment question of whether if if work in a unionized shop for the government, you don't have to join the union. but you do have to pay fees to the union for collective bargaining. and does it violate your first amendment rights to be made to be compelled to pay such fees if, say, you don't think you deserve more money? you don't think the government should be spending money on your pensions -- [laughter] and, you know -- >> adam was just making sure that miguel was still awake. [laughter] i don't think, i don't think it's crazy. i think collective bargaining does have a speech aspect to it. just as you can't -- if you're a non-union member, you cannot be compelled to pay fees for political activity. the question in the government call setting is -- governmental setting is that negotiation with the government feels a little bit like lobbying and feels a

little stinky sometimes. and does it violate your first amendment rights. now, whatever the legal answer to that question is, the consequences of a decision against such arrangements, the ability of people to opt out of being members of public sector unions and taking a free ride on their collective bargaining activities would really devastate public sector unions. >> and that is the democratic party. >> and that is one of the cases that you talked about in your article where the court had really invited the challenge in a prior opinion i think by justice alito if memory serves. >> yes. in harris very quinn and -- harris v. quinn and this has been a campaign on the part of justice alito. he really hates this kind of stuff. >> and justice kagan, rather extraordinarily, essentially defended the principle. >> i mean, it was funny because, clearly, alito didn't quite have five votes, and interestingly, the vote he probably didn't have

was scalia's vote. and he wrote a decision saying, boy, was that a horrible decision. and for 17 pages he went on about how horrible it was, and kagan in dissent says, boy, they couldn't stop saying and saying and saying how much they hated abud, but, you know, not today. >> other questions? yes, sir. >> well -- >> [inaudible] i found it striking, you talk about how this is a very legal court or, the minds talking in legal terms. yet the public seems to regard it as a very politicized court according to polls in the paper. for instance, saying the public regards it in that fashion. and you talked about how they don't really look at the standards, but they'll fit things into the standards and maybe talking about corporations as persons and stuff like that. i don't want to get you to state, overstate citizens union, but what do you think the disconnect is between probably

the -- [inaudible] that's practicing in the court and the public's perception of this court as a highly politicized, basically party-driven court? >> so i think there are two things going on. one is that most cases before the court involve strictly legal questions in which smart lawyers, meaning the justices, are making inferences from legal materials, and the ordinary argument looks -- it doesn't look like politics, it looks like law. but the cases on the front page of my newspaper tend to be the controversial social issue cases, and those look a little bit more like politics than law. the other thing that we haven't talked about that's distinctive about this court is this is the first court ever that's closely divided in which the party of the appointing president perfectly predicts the ideology of the voting. so think back.

stephens, suiter, warren, brennan, blackman in one direction. byron white probably in another direction. the fact that a president, democrat or republican, appointed you wouldn't automatically tell you where you are in the ideological relay. here that can't help but influence public perception -- >> do you think that bothers the chief justice? i mean, do you think -- it feels like he's often really trying to fight this perception. >> oh, he hates it. he hates it, and i wonder whether it might not have played a role in the first affordable care act where had it gone the other way and had the five republican appointees in an election year struck down the signature legislative achievement of a democratic president, whether that might not have affected the perception of the court. >> see, i actually think that cannot be right, right? because looking at the case at the time, i actually thought larry silverman wrote perfectly

respectable opinions upholding the act on commerce clause grounds. so if the chief were looking for a way to uphold this for some sort of ulterior purpose, it was a lot easier and a lot more plausible to say that this is, you know, within the -- [inaudible] than to write an opinion saying this is beyond the congressional power, but it's a tax. >> so why did he do that, miguel? >> listen, i think you can talk to two audiences at once. the headline is chief justice upholds affordable care act. the legal audience says, well, at least he gave his commerce clause, he gave us medicaid, he did what he could. >> well, maybe. i mean, the fact is that, you know, i do think that, you know, if he were looking to do that, you know, he would have done a much simpler opinion that would have been like jeff sutton wrote, and it would have been a lot more plausible than what he wrote. it doesn't matter to the

opinion. i'm not sure what he gave anybody. >> other questions? yes, sir. >> any predictions about whether the supreme court takes -- [inaudible] >> will the supreme court take newman. >> well, they just filed two days ago. i looked at the cert petition. possibly yes -- >> maybe you should say what the case is. >> yeah. >> this is a case coming out of the second circuit court of appeals. it's a criminal prosecution for insider trading. i should disclose that i have somebody who's affected by it who is not the in the case, so i have a particular view of this that you should take into account, you know? for many years the southern district of new york has been pushing, you know, this question of tipper and tipee liability. and the question in this case is whether somebody who got a tip, claims the government, from an untoward source should be

prosecuted criminally and sent to jail. it's a little bit complicated by the fact that there is a lot of people in the chain who are stock analysts and people of that ilk, and there is a certain school of view that says that if you are in that sort of, in the sort of calling, you actually benefit the market by getting information into the market and all of that. now, the law says, of course, that you cannot go out and bribe somebody, basically, to get a tip. and at the core of this particular case is whether if you had an information leakage that appeared to be in a social context and was not obviously in a quid pro quo and not go down to the financial benefit be of the tipper and, you know, the person who ultimately got prosecute frommed did not know that there had been any sort of financial benefit, whether that is enough to prosecute somebody criminally. and, you know, the second circuit in what was viewed at

time as a change in that court's attitude toward these cases basically said no, i think the second circuit was concerned about some of the factors that motivated the court in the -- [inaudible] case that the government lost some years ago because there's a lot of iffiness about prosecuting somebody who, you know, benefited by being liked by the person. >> right. >> and i think, you know, the government is pushing a little bit in saying these sorts of social relationships are enough of a tangible benefit to put somebody in jail for 20 years. having said that, you know, it's an important area of the law, you know? every time the government files a cert petition and has heavy odds of being granted and, therefore, you have to take seriously the possibility that the court will look at it very seriously. >> if the court takes the case, is there any chance the government can win it? >> you know, the -- this is one of those cases in which, you know, the left side of the court

is like pro-enforcement, like fish case, where you sort of view these people as polluting the market, and you have to be toughened criminals. and it's hard to tell because the actual issue underlying this particular case has a lot of iffiness of the type of vagueness that troubles the court and that troubles people like scalia and justice breyer. i argue on the services case in the supreme court, and the one thing in which they could all agree was like, okay, you can make up any crime and then call it, you know, on the services fraud. and it troubled the court. i think the position that the government will have to urge is going to force them into that sort of box again where you have to say, yeah. if you met the guy at the church and, you know, you liked them from the church and that was, you know, the benefit that you got, that's enough for a felony. ask that's actually one of -- and that's actually one of tips in that case. and that's, you know, that's a bit tall. >> adam, i didn't mean to interrupt, sorry.

>> a delightful piece of the case, there's a circuit split -- [laughter] and that arises from the judge on the southern district and sometimes whose intention with the second circuit happened to be visiting as a judge on the ninth circuit, and there he decided he would decide that case at odds with the court that ordinarily supervises him -- >> to be fair, if you read the opinion, the conflict claim is really overblown because he said, well, we don't know if the we agree on behalf of the ninth circuit, but in the end, it doesn't matter. so the purported conflict, i'm not even sheer, is at conflict. >> see what happens. >> we're not going to ask nicole to express a view on that. >> be careful what you wish for aspect to this. you know, i think there's at least a live possibility that the upshot of the petition is affirmance of the decision below. >> it's what, i'm sorry?

>> affirmance. >> affirmance. no, no, i think that's not unlikely. >> other questions? yes, sir. >> i had a question from yesterday's program on this current -- [inaudible] >> which one? >> yeah, we have 20. [laughter] don't we? >> yeah. but there was a concern among the panelists of that -- [inaudible] had gotten sharper -- [inaudible] perhaps an issue of civility among the judges and -- >> and this was also something that i think, and is just repeat the question for the audience, the question's about the rhetoric on the court. and this was also something, i believe, that justice stevens in his speech to to one of the aba sections talked about yesterday as well. >> so i'd like your comments about is that a true perception and -- [inaudible] >> yeah. who wants to take this one? >> so as a reporter, the more

quotable, nasty stuff, the better. and i encourage it. [laughter] >> that sounds, to me, like one of those, you know, intractable aphorisms from a fortune cookie. [laughter] >> i would sooner put my head in a bag than agree with you. [laughter] >> even for a fifth vote? this is, like, you know, in the deep, in the depths of footnote 22 of justice scalia's dissent. i think -- i don't think it actually has changed that much. i think that there are certain members of the court who tend to be a lot more caustic, especially when they're in dissent. and that hasn't changed, you know? justice scalia was a happy member of the rehnquist court, and he wrote nastily and said nasty things about sandra day to o'connor when she was around. and so i think it is possible that his dissenting opinion on the same-sex marriage case was a touch beyond what even what he

has been but not much more than a touch. and i think in that case it's probably, you know, reflecting 21 years of, like, deep-seeded frustration with anthony kennedy. but i don't think it's that much more beyond what he has done before, and i don't know that there are any other members of the court who routinely engage this that sort of rhetorical writing. >> don't you actually -- i'm going to disagree. i'm going to exercise the moderator's prerogative and disagree with you a little bit there. don't you think some of the other new members of the court have been pretty caustic, including, actually, the chief justice who included such lines as who do we think we are and what chumps? not referring directly -- >> that was the, you know, the -- >> it wasn't directed at -- the chumps wasn't directed at colleagues. >> right. that's true. >> and justice kagan has been fairly in sharp in her dissents, though she doesn't write very

many of them. >> i agree that the couple's sentences in the marriage case were very personal and, i'm sure, deeply wounding and weren't about the quality -- the nature of the argument, but about the quality of the writing, as he put it, only pows and egotistical. >> that was justice scalia though, not the chief. >> yeah, yeah, yeah. >> five lawyers think they can do whatever they want, you know, that's not something you normally say about your colleagues. >> i don't know what that's not a fair point on the merits and especially civil as written. i actually thought the chief justice's opinion was perfectly civil and, you know, a very -- [inaudible] point of view. justice scalia's opinion, i will agree with you, was caustic and personal. >> do you think the dean at uc i vine has written are -- irvine has written an editorial, and i've been on panels where he's said he thinks this has a corrosive approach on the profession. do you agree with it? >> possibly. i think it encourages people in the trenches who are already not

known for being civil to each other for sort of thinking this is a good thing to be done, and to writing, you know -- the one thing about justice scalia is he can write prose in a way that is entertaining and enjoyable, and you get a sort of guilty laugh out of, and where most people try to emulate him in the discovery dispute is just nastiness. [laughter] and so it may be that if people take their cue from that, it's not helpful to the profession -- >> but maybe it elevates the quality of the incivility. [laughter] >> i mean, the other thing we haven't talked about this year that i think was at least surprising to me watching the court was the way they handled the death penalty case. you know, that was a very heated oral argument, and that was a pretty heated time when the justices were giving their opinions. a large number of opinions read from the bench. and sitting there i was, it was one of the only times that i've been this court and i've really been uncomfortable. wow, they really seem unhappy with each other and, wow, this

question seems to be shouldn't you, person who's about to get executed, be executed because someone else is trying to ban death penalty? i mean, those kind of questions, i think, were somewhat shocking, and i think the court just seemed very heated. and if you ask what's the best thing for society on a very heated issue, is it to make it more heated or to try to tone it down and have a more civilized dialogue? >> speaks of the roberts court, don't you think that really disturbed the chief justice? it was certainly the most heated oral argument i've ever listened to where the chief justice said to the end we're going to give you more time because we've taken up more time than usual. >> justice sotomayor. >> to be fair, you know, just to put this in context, this case was argued the day after same-sex, and everything that had been bottled up the day before blue up in the death penalty -- blew up in the death penalty the case the next day. you had justice alito, on the one hand, heatedly accusing the person who represented the

inmate of being part of an organized group to ban the death penalty -- >> guerrilla warfare. >> right. and on the other hand, justice sotomayor accusing the counsel for the other side of being an outright liar. and they were all sort of talking to each other, actually, not to the counsel. so it was really, really -- it was actually, probably, the worst tempered oral argument you have seen out of the supreme court in several decades. >> and on the one hand, the chief justice seemed uncomfortable with it, but on the other hand thinking think aw chief justice rehnquist would have handled -- >> he would have stopped it. he would have been gone like, no. [laughter] >> i once had an argument where, you know, i was, like, having five, five people coming at me at the same time. i was at the government, and i was having one of those very popular clinton administration decisions, and the old chief justice went, one at a time. give the man a chance. [laughter] and, you know, he would have -- you know, he had a different

manner to intervene in that fashion. i don't think chief justice roberts would do that. >> yeah. i mean, he has done a good job of trying to control the court, certainly with justice sotomayor who likes to ask a lot of questions, he's had to do some traffic copping, let's say, and he has given advocates more time as a result. >> well, i think on that note, we're almost out of time. i have been asked to read the following script at the end of the program, so i'm dutifully going to do so. thank you for coming to, program name. [laughter] i guess that's ten years of the roberts court. we invite you to join the panelists in the cle showcase lounge at the aba expo in riverside center, one floor directly below. i had thought that the core of the earth was directly below. laugh for further conversation on the program, coffee, tea and soft drinks will be available. while you are in the expo, stop by the aba head shot lounge to take a complimentary

professional head shot, visit with the aba team for answers to all of your tech questions, sign up for a test drive with tesla motors which sounds like, by far, the most enjoyable part of this, and attend a session in the aba learning lab and visit with the many exhibiters to learn about new and exciting legal products. >> thanks. >> so with that announcement, and it does say thanks, exclamation point, thank all of you for joining us for this fabulous program. and please join me in thanking our panel. [applause] >> while congress is on break this month, we're showing booktv programs normally seen weekends here on c-span2, and tonight it's books by presidential candidates. rick santorum discusses his book "blue collar conservatives: recommitting to to an america that works." also bernie sanders, his book, "the speech: a historic filly wasser on corporate greed and the decline of the middle class." we'll also hear from are jeb bush and "immigration wars." it's booktv in prime time tonight at eight eastern here on

c-span2. also coming up this evening, democratic presidential candidate vermont is senator bernie sanders at a town hall meeting. he'll respond to c-span callers after that event. live coverage gets under way at seven eastern. next week marks the ten-year anniversary of hurricane katrina which killed nearly 2,000 people and displaced about a million around the gulf coast from florida to texas. atlantic magazine is hosting a daylong discussion of the impact of that hurricane, and c-span will have live coverage beginning monday morning at ten eastern. up next, a one-hour discussion of the ten years since hurricane katrina from earlier this week at the newseum. [applause] >> go ahead. good evening.

i'm doug brinkley, and i'm kind of a quasi-moderator here with my amazing friends, marc morial and shepard schmitt. but i -- shepard smith. but i wanted to begin and just set a stage for the tenth anniversary. it's history now, katrina. although people in the gulf south are still living katrina. you know, we talk about the dust bowl budget just an event of one day -- wasn't just an event of one day, it was an entire decade affecting a region. and katrina is one word, but it means, you know, a whole important to part of our country trying to come back from not just the hurricane, but from the manmade disaster of the shoddy levees and other problems that the katrina story points to; racism, poor school systems, crime, economic disparity. so it's, it's a very fertile field for, of looking at america today when you talk about

hurricane katrina. just not history. now, when the storm came, i was a professor at tulane university, and i had evacuated the year before. and i made the dumbest decision of hi life to stay -- my life to stay, because i didn't want to be in gridlock traffic on i-10. i did that before, and i can't stand traffic. i'm very hyperactive, and just sitting there like that. and my in-laws have lived on top of a building called one river place which i know marc knows very well, and it was right by the hilton right next to the morial convention center. and i thought i could do a vertical evacuation with my family, wait out the storm. we had provisions. and i did that, and it shocked me, because the natural disaster part of katrina, i remember all my life i looked out at the mississippi river and saw the river, the powerful, you know, the mighty mississippi, study and think about going the opposite direction. the power of the storm was pushing the water from the gulf

of mexico upwards, and i could see across this algiers there, and -- in algiers there, and you could just see things coming apart along the river bank. i also had a dog that i tried to bring out in the storm, and i went down when the winds were coming, and it almost lifted -- it's a border collie. et just pulled the leash of the animal up and quickly brought it back in, and you could just see the danger of, like, stop seasons blowing and debris. and, in fact, in mississippi a lot of people got hurt by shrapnel of just loose bits of metal flying. you walk outside and something hits you, and you had many injuries with that. but the odd part was once the storm settled, i went and walked around the french quarter because it was very close, and i kind of thought new orleans missed -- >> dodged the bullet. >> i thought it dodged the bullet. >> which it did. >> which it did. and then only later i went down towards the biwater region and talked to a group of police, and we were starting to deal with

the levees breach anything that city, the great city of new orleans going 80% underwater. so that's where i started working on my book, "the great deluge." but as a professor in new orleans, marc morial was one of my heroes because he was an outstanding mayor, and his father was an outstanding mayor, and they worked so hard and continues to work so hard on behalf of the city of new orleans. marc, i wanted to ask you where you were when katrina hit and what was your first reaction at the time. >> oh, thank you, and thanks to the audience, thanks to the newseum. doug, shepard, thank you. saturday, august 27th, i flew to new orleans for a funeral. it was, because by that time we were living in new york. we still owned our home in new orleans, but i had moved to new york after i left office to become president of the national urban league, and my wife as a cbs news reporter, and she was working at cbs news.

and so on the 27th i flew to new orleans to attend the funeral of clarence barney who was the president of the urban league of greater new orleans, a legendary community leader. the funeral was taking place at dillard university. it was a beautiful, flawless day when i walked into lawless chapel. the hurricane, which was out in the gulf as a category one or two, and so this was a glorious, celebratory funeral. that means it was going to go on for a long time. and about two hours into the funeral, my communications director who was traveling with me handed me a note. she said we must leave now. so i walked to the side of the sanctuary. she said the hurricane is a category five. we must leave town now because you gotta get back to new york, and the, if you will, the

airport's going to be closed, and all hell is about to break loose. now, mind you, it's a sunny, beautiful day. >> always is. >> no evidence that a storm is on the way. i said to her or, i said i'm going to my mother's house to check on her first, and then we'll go to the airport. my mother lived about five, about ten blocks from lawless chapel at dillard. i went to my mother's house, and apropos to many new orleanians, i said, mom, turn on the tv, this hurricane is coming. you must leave town and go to baton rouge which is where i had a sister. she said i'm not going anywhere. [laughter] she said i'm not going anywhere. she said you -- please get me a hotel room, and i'll vertically evacuate down at the windsor court. i said, mom, i think you need to go to cherie's house, honestly.

she goes upstairs, doesn't say a word. and i'm watching tv, and i said, mom, i've got to get to the airport, and i'm not leaving til you leave. the hurricane -- and i turned on television, and i saw the beginning of the mishandling of the crisis. i saw my successor, the mayor, saying to public that he could not order an evacuation until the lawyers cleared it. my heart leapt right into my mouth as i watched this, because i had managed through a 1998 storm called hurricane georges which was a storm which could have been like katrina, but it diverted -- >> they all do, don't they? they all go that way. >> and so it grazed the city and barely affected -- it affected the city. it knocked down the power, it knocked down some trees. so finally i prevailed on my

mother to leave. i went to the airport, louis armstrong airport, and got on a flight and went back to new york and got back into new york. the hurricane -- and this is what is so important about what doug said. so everyone gets perspective and, shepard, you know this. once hurricane passed, the sun came out. and mistake number two from an emergency response standpoint was that the city and the emergency officials were not aware that there had been levee breaches. so people went to bed, went to the their homes -- those that remained in the city -- and the levee breaches literally filled the city with water in the evening and overnight and into morning of tuesday. which created the panic and the crisis. now, mind you, in a hurricane the first thing that happens

that causes human, if you will, anxiety, confusion and misery is the power goes out. you lose power, you lose electricity, you ruse access to television -- you lose access to television, you lose access to anything -- people with cell phones can't charge them. that usually occurs first before any flooding took place. people congregated at both the dome and the convention center as shelters of last resort because that's what had occurred in 1998. and they went there expecting, in 2005, what they got in 1998. which was a facility where there was water, doctors, nurses, mres, the national guard on standby, because there were 25,000 people sheltered at the dome in 1998 and 10,000 sheltered at the dome in, at convention center in 1998.

long story short to the really, you know, add to this, what you saw was that those once the city said on late saturday evacuate who had automobiles and wherewithal got on the road and got out of town. wherewithal means you had a car, you had a family member with a car, you had a friend, and you had someplace to go. or you had a credit card and money to go get a hotel in jackson or memphis or atlanta or houston or someplace away from the gulf coast. the you didn't -- if you didn't, in all likelihood you either stayed in your home and said like the old tough -- i'm going to ride this thing out, because i've seen this story before, or i'm going to go to the shelter of last resort at the dome and the convention center. so that's a little bit of the context of why were all these people stranded at these two facilities, at the dome and at the convention center. i'll say this, because i want to

set this, this was a perfect storm of error. the federal government erred. the state government erred. the city government erred. however, the federal government, the president's administration initially pointed the finger at the governor and the mayor. the mayor pointed the finger at the governor, the governor pointed the finger at the mayor. they were playing a political merry go round game of blaming each other, having this argument about federalism and who was responsible, and that was what characterized the first two or three days. no one stepping up saying i'm going to be responsible. and it was the media, the national media which went to new orleans and got there tuesday, wednesday, thursday and friday that elevated what was occurring in new orleans to the national consciousness that you really saw in this news clip.

>> so just to add to that, i learned with that emergency operation with rescue and response you have about a 48-hour window to save lives, because otherwise once that electricity goes out -- >> too late. >> -- people will die in 48 hours if they don't get on a respiratory machine or dialysis, etc. what it is, and we failed as a country, everybody, as marc said, failed in that 48 hours except the coast guard did an incredible job. they weren't dysfunctional. and louisianians saved louisianians, and mississippians saved mississippi. but to the journalism perspective, shepard, where were you when you started seeing that blob as marked described on the tv -- as marc described on the tv and tell me your experience of getting down there. >> i was where all good new yorkers belong in august, i was in the hamptons. [laughter] i mean, come on. i knew it was coming. it would have been my 34th or 5th hurricane over too many years, and we've watched them,

what they do. they always do the same thing, mr. mayor. they come straight toward new orleans, and they hit mississippi. that's what they do. so we knew that's what was going to happen. and eventually as my father, who was visiting for the first time ever, and his wife were tooling around, and i was in a rented house, it was now time, louie armstrong was going to crow, and i actually -- close, and i actually had to go then. so i took my little bag, went straight to the airport -- which is not an easy thing -- >> to get out of the hamptons. >> it is not easy. no, sir. i have not elevated status at the moment. [laughter] so we got down there and quickly realized they weren't ready, and, mr. mayor, you say with, you know, with lots of knowledge and history behind you that errors were made. i would disagree about errors being made. i think people made decisions of money over man. i think when mayor nagin didn't send the buses, he made a decision can, money over man. and i think that decision killed people. and i think -- and i watched as time went on with people who

died after day two are not counted as victims of katrina. i don't know what they count them as, but they don't count them as victims of katrina. those people are victims -- this is the part where if i weren't tied to a corporation, i would fill in the blank with names. but people who made those decisions killed those people because they couldn't get water, and they couldn't get to do. people came up to me, one person came up to me with their baby in their hand and said feel my baby's forehead. my baby's hotter than humans can be. hi baby's going to die if you don't get us someone. so the overpass across from the super dome, the water's there, and is our team -- we don't ever put this on television, but there's video to move it, we stand in front of the place where the cops are screaming by, put the can camera on the cop and say this baby's going to die unless you take the baby, and you don't take the baby, i'm putting you on the news tonight.

so you're going to take the baby. and he took the baby, and i wondered to this day how many dead babies are there because decisions were made about money over man. that's what happened. and the other thing that i can tell you that you should already know is that this storm did not hit new orleans. a category two hurricane hit new orleans. my state got killed by new orleans. the south end of mississippi, gone. we couldn't geffen get there to tell you about it -- get there to tell you about it. the reason you did not have live people screaming at you from mississippi in the hours after that storm because if they were there, they were dead. it was a 32-foot wall of water that came into my state. new orleans got spared again. they couldn't even take being spared. man had been so poor at preparing this city that is under sea level to be prepared for a absolute inevitable, hurricane pam, as the model was given to the congress. they were so poorly prepared that they couldn't take a brush,

the equivalent of a category two storm ask a big surge, and killed thousands of people. it will happen again, and it will be worse, especially if they decide not to send the buses. and the last point that i want to make is that today it wouldn't happen. because today we have twitter and today we have facebook and today people would know, oh, you can't go to the convention center, you'll die there -- although that's, to some degree, overblown. but there's no medicine for your old people, there's no formula for your baby. those are not the place you have to go, and here's how you can get transportation. i think it would have been better this a today world. >> see, by wednesday there were no cell phones, because the cell towers went dun. and when the power went down, people who had cell phones could not recharge them. >> came to us. >> so you had this catastrophic situation where only by looking at television away from the city, so we were, you know, from a horrific point of view, when

we were in new york and we turned on television and when i saw what was happening at the dome and at the convention center, my wife and i looked at that, i went from absolute rage to crying. and i haven't cried since my daddy died. >> and the convention center is named after his father. so how did that -- that's the memorial for your father, and now you're seeing it's a den of suffering. >> it was shocking to see people suffering like they were in the hull of a ship, right? people suffering. now, mind you, ladies and gentlemen, in august in new orleans it is 99 degrees and 99% humidity. the heat, the humidity so pressive. oppressive. i mean, it is dangerous to be outdoors for long periods of time, yet people are outside for

hours, for days without water, without food and the like. and the other thing i want to mention while so much of the focus of katrina is on new orleans, the truth is, is that its impact was all along the gulf coast. mississippi got battered. the gulf coast of mississippi. coastal parts of louisiana got battered. and then there was a companion storm right behind katrina that called rita which affected the southwestern part of the state. so while new orleans was the epicenter, the massive extent of this storm and the extent of it went far beyond the city. i would also, i think, you know, offer this, and i think it's important for people to understand what caused the flooding. what caused the flooding. we always feared in new orleans that the most catastrophic thing that could occur would be a

mississippi river levee are break. in the event of a huge storm. in this instance, what broke were levees on what are called outfall or drainage canals that are not as wide as this room. and these drainage canals carry water from underneath the streets to a pumping station where they're pumped up, put in the canal, and the canal empties into lake pontchartrain which then empties into the gulf of mexico. with the power of the hurricane, it forced the water in reverse into the canals and created so much pressure that the levee walls broke in four to five separate places in the city. these outfall canals were an engineering invention of the early 1900s designed to drain what were parts of the city that used to be swamps.

so these engineering, if you will, innovations and inventions, why did they fail? if you saw these levees, they are floodwalls. they look a lot like the sound barriers you see on the side of a highway. some of them were poorly designed, some of them were inadequately constructed. the responsibility for those levees fell on the united states army corps of engineers. these levees were built by, financed by and designed by the united states government. yet when katrina took place because it's the army, because it's the united states government, they were immune by the doctrine of sovereign immunity from lawsuits, from lawsuitings. so there was a responsible -- lawsuits. so there was a responsible party that in normal circumstances would have been called to task,

and therefore, many people were left with if they had flood insurance, they were left with anything that the government would do under the stafford act or supplemental appropriations to repair the situation. so this was a unique set of circumstances, and i really, really believe that -- and i hope -- that what people will do now in this tenth year is really, really have a candid conversation, because shepard just said it could happen again, and it could be worse. ..

>> because they used to serve as a sponge. when that storm would head 60 miles or 70 miles, you know, north of the gulf they would suck in like a spuñ a lot -- sponge a lot of the surge. now you are getting more direct impact on the