cutter approach with no discretion? you check off this box is in this box and that is thes. result? that they'd think flies in the face of the idea the first resumption is to protect people's individual rights and sovereignty. >> with mandatory minimum you don't consider what the victim once which could be restitution and instead politicians without knowing the facts of the case substitute their judgmentei for that of the judge he or juries to sentencing inme texas so is happenstance of you commit a crime yesterday or five years ago obviously a number of states have been amending drug laws to reduce penalties have made retroactive in the sky has

not fallen action is easier for them to get a job with aer felony on the record and i do understand the retroactively reduces penalty that is say that is what we told you about at the time i industry and we can have a discussion about that but when we talk about retroactive reductions for drug penalties hydroxy how anybody could possiblyly object to that. >> let me know if you think it is wise to reform the mandatory minimum as well as general society and if it is it is not a bigger problem if you decide you're changing belloc. . . panel, reporting to this

audience my understanding of what is going on is that there is a very large number of united states senators that do in fact support that legislation, just as various bills in the house. there is a very large number of members of the house of of representatives from both parties that support those bills. the gentleman who has the question is properly noting what the hurdle is. what does it take to get to the leadership in either chamber i would add, to actually move legislation so it would have time to pass before we seek a new congress. i will let others comment on that too. from our view at present fellowship it is the age-old

issue that congress has a limited number of things that they can bring up to that level of all this is a significant priority to many americans it is competing with other priorities. such a piece specific about what would work, what i have seen work on any number of bills is when people bring in the values the part of the discussion and they are not trying to convince their numb member of congress on a new set of values but they are trying to remind members of congress that this is the value that they campaign on. they are their own values and it is an opportunity to express that. the second is that this is a very real human consequence. we are talking about increasing public safety and reducing crime and there is nothing more respectful to victims that we can do then to improve the criminal justice system so we have less crime in america.

the federal government can contribute to that now if they, and the remainder of the session take steps forward with a variety of bills that are available to them and how they express that. so from there it is a traditional advocacy. as you have seen here this panel was convened to show that the base of folks in one particular side of the aisle very much think this should be on the top of the agenda and very much believes this is something leadership should take up. i went to little long there, my friends. >> just quickly think there is a lot of consensus out there what we can do. there are some of our friends on the hard left that do not like -- i think today may convince them that they do like. [inaudible] and the rest of the country not just hillary clinton should have it in the laws they face. the idea that regulations passed

by some bureaucrat somewhere never passed by congress do not have mens rea -- [inaudible] protection. it is very important that it be part of this. and those people who are standing and where standing in the way of reform. go talk to them. >> again, just to elaborate, what we have heard is public, speaker ryan has indicated that they would like to bring it and it particularly if that is part of the build it would put considerable weight behind it in the senate to overcome some of the voices on the other side. so to have those huge numbers it would boat vote very well.

the house the witches, dance of with mens rea should pass strong bipartisan support. but in the senate a few people can be obstructive. >> i would just add that mark and i on this panel it is almost flippant to say but we can actually claim beltway outsider status because we are in the eye 35 belly down in austin. one thing that i think you are seen and that hopefully the polling data hasn't met out is that regardless of what the stumbling block is, be it not enough dates on the calendar, not enough hours on the day or put it: transit, whatever the case may be, this may be, this is a very, very, very safe issue. as representative of the voter base a matter how you slice it up. you see a pan ideological across the ages, cross i could patients come across genders too. you generally see this not modulated at all by party affiliation. it simply is a safe issue.

>> dan, we close us out? >> i will quickly respond to that. the american conservative union's house to see pack, the no conference for conservatives. we had a panel on the main stage and cpac a criminal justice report. you might be interested in that. we had one democrat and three republicans on that panel. the democrat was the one most aggressively not wanting any reforms. a couple of the republicans were saying some modest reforms. the third republican republican on the panel was saying aggressive reforms. so i do not think is such a binary thing, mcconnell what is and he just bring it up. well, like most legislations it's complicated. different people have different priorities in different interests. maybe that is why keep on stressing somebody's philosophical foundational questions so that informed thinking going forward that we have to respect the sovereignty and the dignity of the

individual, you have to presume innocence until proven guilty. these are some bedrock principles that i think we need to restore as well as the first branch of government. the first branch of government needs to be doing oversight of federal agencies and judges. federal judges have been impeached in the past for wrongdoing. congress needs to take back it's right for place and we need to return to our foundational principles. >> thank you. >> let's thank our panelists please. [applause]. >> i want to go back for just a moment to velasquez them. i think a big part of the reason we held that in the rayburn building is because the senate has got a lot of attention but it is the house bill that is looking like it is going to move. the folks in the sun is saying

the hospital is going to move first. so house people, the question is when are we going to start moving things over here. i just want to thank chairman and his staff who helped us get this room. i think next time we will need a bigger room. i also want to thank american protects reform, there are very helpful today. we needed a few more hands on deck i'm a handful of people are in austin. so it was helpful to have them here as well. i think hopefully you got the message today that conservatives have been and will continue to be the real champions of successive criminal justice reform. i want to remember the successful part. successful reforms are the conservative reforms. it takes conservative principles for the system work. for those of you who want to learn more, we still have a handful of materials in the back. in particular i there is one on federal myths. i think it's particularly good because i wrote it. it. our website, right on crime.com. as well as a criminal

intent.com. feel be free to reach out to me. i am here in washington. feel free to get in touch with any of our speakers. i was lazy can see it is an important issue to them and it is an important issue to conservatives everywhere. thank you so much for being here. have a great afternoon. [applause]. [inaudible] [inaudible] [inaudible] [inaudible]

[inaudible] [inaudible] [inaudible]ion saturday

night at 8:00 p.m. eastern on c-span. >> the d.c. bar hosted a review of the supreme court's recently concluded term. panelists discuss rulings on affirmative action and abortion and the impact of justice coleus. the supreme court's new term will begin, this is an hour and half. >> it afternoon everybody. welcome to the annual view from the press gallery program

sponsored by the d.c. session on the administration of justice. i am arthur spitzer a member of the steering committee i have got a couple preliminary before we begin. i'll start with our own reporter and marcia tucker who is pro bono coordinator and technical staff are making all the arrangements possible. thanks to c-span for covering us again this year. i understand we are being broadcast live on c-span2. if you want to -- and chris who is the producer of the show for coordinating the many requirements of the d.c. bar and c-span.

as i mentioned our main sponsor is the bar section on the ministration of justice which focuses on matters involving court administration and rules and relationship between the bench and the bar on the aspect of the lawyer's relationship to the profession. we also focus on improving access to justice with the district of columbia. if you're not a member of of the section you are cordially invited to join. if only one of 20 sessions of the d.c. bar which cover most areas of legal practice from antitrust and entertainment to family law, criminal law, real estate, taxes, if your member of the d.c. bar not involved we encourage you to join one. if you're not yet a member of the d.c. bar that we encourage you to think about a session. if you're not yet a member of the american civil union union you can join on aclu.org.

we will be privileged to her this afternoon from a panel of journalists who cover this up in court for many years. i will introduce them in order of seniority. in my far right of the national -- is cover the court since 1979. with usa today. they joined the washington council in 2000 and continued the correspondent as a merchant to the law journal in 2009. david savage who is next to tony has been with the los angeles times since 1981 and covering the court since 1986. he started 86. he started the same time justice scalia started. he also cover the court for the chicago tribune. he recently wrote the latest edition of the guide to the u.s. supreme court published by dq press which is the congressional quarterly.

and on my immediate right took over the new york times to state years ago and had a long history with the times when she first joined as a copywriter in 1984. after she graduated after she graduated from college and then return to the times with a law degree in 1992. she joined the legal department and advising the paper with defamation, privacy, the right the right to news and similar issues. a decade later they began with the legal issues. on my left, arianne who is a reducer for cnn politics covering the court legal issues and cnn's reporting on supreme court cases. before joining cnn should cover the court as well as the nomination for several justices and there it was an investigative reporter she covered terrorism, the aftermath of 9/11, built clinton's impeachment, and campaign-finance issues.

her bio on the cnn website tells me she grew up in westville indiana and google maps tell me that she that the population of -- [laughter] she is a graduate of george washington university. this is not a panel of litigators of case law although we talk about some cases. but we just mostly report on the cord as an institution and a collection of institution and covering the court as journalists. we plan to save some time at the end for questions from the audience. wait'll you see a microphone. there'll be one passed around. so you can think of questions as we go along and hopefully there will be time at the end. well let's get started. i certainly the biggest development this year and the most unexpected was the death of justice scalia midway through

his 30th term on the court. there are obvious ways in which his departure affected the result of several cases but how did it affect the operation of the court and the atmosphere at the courthouse? let me pose that question first to tony who started covering the court before justice cooley arrived. >> thank you. it is good to be here. yes. yes i do remember the days before justice scalia and when oral argument at the supreme court was much tamer affair than it is now. when he had justices like brennan and marshall, blackmun and powell, a lot of them asked very few questions. you could go a whole hour with may be a handful of questions. whereas now it is not uncommon to have 60 questions, 80 questions in an hour hour or half-hour. it's. it's incredible how different it

is. certainly scalia stirred the pot, soon as he got on their i don't think he waited for the rookie year of deferring to the other justices. he waited right in and i think just made oral arguments much more proactive or aggressive event. it was to the point where i would often come out of an oral argument and think boy, the supreme court is going to roll this way in this case. then i would get my notes and basically it was justice scalia who was going that way. but he has such an overwhelming influence over the entire court and over the entire event that it was just amazing.

he would throw lifelines to lawyers that he was in favor of. he would demolish lawyers he was antagonistic toward. i remember words he asked a question and the lawyer paused a little too long and scalia said, counselor, you have four choices. yes, no, i don't, i don't know, or i'm not telling. which is it? i'm surprised the lawyer did not faint at that point. i think i would have. he was that kind of an active participant and he got everybody else active too. >> i sure agree with all that. i remember i started when scalia started. i do remember a little

bit of the first couple weeks before scalia. it was a completely different place as tony said. it seemed to be a court of nine old men in the scalia came in and he was full of energy. there are of energy. there are so many times that i remembered the years when you could go up there on their arguing a case and there is an audience of tourist and i would say about ten minutes into it everybody is asleep. then scalia would say something like, so, you think you want us to sort of rewrite the rules for handling energy nationwide. on the attorney said no, no that's not an scalia was said it is sure sounds like that is what you're arguing. he was started in on an attorney. you could see everybody's eyes would sort of light up. he would have a different view of a case, a really clear, he would bore in on somebody and eventually the other justices would wake up and try to respond. he was a real force of nature. you could immediate see this spring how different things were when he was gone. the the abortion case followed a few weeks after that and the three

women justices really went after the texas attorney and it was almost like, i said while i have never seen the side of the court before. the three women are really working this guy over. in the old days scalia would have been to fight back. so if you just watch the court it was a very different place without him as well. >> i was going to say in that abortion argument, had scalia been on the bench he may have been able to cut it back a little bit. that was a sustained attack from the liberal justices. had he been on the bench he would have stepped them i think. he would have maybe change things a little bit. i also had an interesting conversation with somebody who has argued before the court for years and they said going in that suddenly they had to prepare a whole different way. that was very interesting for me

because as a journalist i'm not preparing for argument. he said without scully on the bench we have to look at all arguments it in an entirely different way and present the case differently. he had that ability if you are ever into watch oral arguments he would lean way back in his chair and then you knew it was coming. he would just bounce forward and he could derail even the most experienced lawyer could feel that. >> byron white used to say every time a new justice joins a court it's a new court. but it turns out even losing a justice completely transforms the court. i will just say that it isn't less want to cover this court than a court with scalia. you can agree with him or disagree with him, he said lots of quotable things from the bench. he definitely in his prime was one of the very finest writers who ever served on the court. he may have lost half a step in later years, you probably probably remember in the affirmative action case that he said some fairly wild things which i think i know what he was trying to say but he managed to say it so badly that it smelled

of racism. so here is a man whose career is tremendously influential, really fun to cover, but may have been on the decline even before his sudden death. >> let me follow up on something you just said. i also also think that i know what he was trying to say in that comment from the bench in the fisher case. how much, if at all do you think it was your job as a journalist to explain why he he thought what he was trying to say and was the reaction to that? >> i do think it is my job. if someone says something up and that you know they did not mean just that way and you know from the body of their work and their briefs filed in the court and he was talking about that that it is my job to give context and analysis. i have no question about that. >> and let's give a little background for those in the audience who may not recall the

comment, to have a volunteer? >> justice cooley asked if it was during the time in the boy he said, isn't it the case that sometimes that it is not the best thing for these african-americans to be recruited by a school like the university of texas where the standards are high and he said it may be that there are other schools that are slower paced. i forget the exact word he where the african-american students might do better. as adam said, he set it in a very, very clumsy way that made it sound like african-americans are per se going to be behind everybody else in the class.

people gasped when they heard him say it's. >> i did have to write about at the next day because one of my editors in los angeles said what is that about? i thought, that's a good question. so i try to explain the mismatch theory but as tony just said, scalia said it like a general proposition. i'm not sure it is a really good idea for african-american students to come to, and what he apparently meant was, not most african-american students, that if you have an affirmative action plan that gave a real big boost to a small number of students, maybe those students would not do well. maybe they would be better off going to another school where they were more in the middle. but that is a tiny fraction of the african-american students at texas. he he said it in a way that suggested that he has a general problem with admitting the students.

so if you are in our position you sort of have to say, here is what he said and here is what he sort of mental but he did not quite say it that way. so i wrote an unsatisfactory article that tried to say all of those things. >> but do you suppose that it may have helped move kennedy? kennedy wanted no part of this thinking and that helps kennedy even after scalia's death. abandon his thinking on affirmative action and come out the other way and right and fisher to? >> i actually saw that when you wrote it and i had not thought of it before and i thought it was so interesting to make that connection. >> do you hear me now? i thought that when adam wrote that i had not made that connection and i thought it was a fascinating connection connection to make when you think about the impact of oral arguments, how much that would have moved kennedy or made an impact. i remember that day really well because i knew a

schoolteacher who brought students to the court, i looked over and i did not actually hear because i'm so busy trying to keep up but i saw ten faces looking very stunned. of course what he said did not match up with the brief on mismatched that he had filed. he had not, he spoke quickly and as he said it was clumsy. >> even the limitations of your medium, were you able to try to explain all of this the way the reporter did or did you just let it go? >> oh no, we did explain that. i think i wrote a separate piece on the whole theory and then two days later we got the audio.

when that came out we wrote again because it is very powerful. you can hear about it and i can write about it but when the audio comes from the supreme court we cut that and we release that an i think people were interested in hearing it. >> i think that was a good example of why they do not want the audio to be released the same day. every tv a newscast would have had that on that evening had they released it the audio during the day. >> maybe now that scalia is gone they will be inclined to revisit the question. >> i think not. >> it is and i think. arguments are monday, tuesday, wednesday and for no good reason the audio gets released on friday. they're perfectly capable and to occasionally release the audio the same day. i have never gotten the beginnings of an answer to why they have to wait till friday. >> in fact we're going backwards. a few years ago there were some cases where we would get audio the same day and that does not seem to be happening. it also reminds me of jurat

general marelli when he was starting the healthcare case. he choked on water and water went down the runway and it was not a good start and that came out in an ad. >> and cut in a distorted way just the audio. you have to think the justices that my god, what if they had video. and they make and they make this into a political exec add something meant to be hush a serious argument of the supreme court. >> that ed did not help the cause of trying to get audio released sooner. >> tony, you wrote an article after justice scalia died about how he made it into an edge attend tell us what happened. . .

federal judges, i guess like members of congress, are not allowed to get $5000 for a speech or an article. they can get $20000 for a week of teaching law school in florence in the summer which a lot of them do that kind of thing, but they can't get money for speeches. justice scalia was jawboning members of congress to get that band lifted and he didn't much like the article so he wrote a letter to the editor which was

extraordinary. justices don't write letters to the editors as a rule, so my first question, i called up the public information officer and said first of all, is this for real or is it a fake? if it's real, but does the justice want it printed. the answer was, yes it's real and yes he wants it printed. so he said, among many other things, he said the story was gossipy and moronic. and he spelled it with my name, m a uro. that became a joke for a while and i imagine he regretted

having given me that moniker. >> in addition to asking interesting and bold questions from the bench, he was also known for his oral defense toward the end of the term. this term we only had to oral defense post. were those harder's or maybe the better question is less fun to cover than what justice scalia would have done? >> justice alito is a first rate lawyer, very good but not particularly quotable. this may segue into a topic i know you will ask about which is which of us still go on the big days up to the courtroom to see the decisions announced and to see the very rare oral dissent. i think it might be, none of us

which is a fairly recent development. it actually is a very good way to cover the court, to go up and have the person who wrote the decision in conversational terms explain it to you while you're not trying to flip through the paperwork but are paying attention and then on a really big case to hear with what's wrong with that person just told you. twenty-five minutes later strolled onto the pressroom and file a story informed informed by that valuable knowledge. that 25 minutes is no longer available to us. i can't be 2500 -- 25 minutes behind my colleague. in that case it was just two terms ago, i stopped going up and doing this valuable historical thing so i can be in the pressroom and start writing right away. we do have colleagues of mine, very good colleagues who are in the courtroom on the big days will tell you, i miss it. it's a cost-benefit where i

think the benefit outweighs the cost but the cost is real. >> interesting on that, when it's red and alito was reading the dissent in the affirmative action case, i'm in the pressroom, just off the pressroom in my own little cubby and i can hear him reading it and i thought, in the affirmative action case. >> they do pipe some audio. >> i thought i heard and i could be wrong but i thought i heard him say berserk this is affirmative action gone berserk. then he did not say it in the written opinion, so there's an example. they obviously don't read the entire dissent. i thought that was kind of like him to have affirmative action gone berserk. >> in the actual he said gone wild.

>> right, i remember for healthcare, i interviewed the first healthcare case and she didn't have the paper. they don't have the opinion before them so she's listening and she's thinking, it's not going one way and then all of a sudden when he shifted gear i went to the taxing power, i remember her saying something, her head just swiveled. that's something that you don't get when you're downstairs rifling through the paper. you miss that. i totally understand why we are not up there but i'm often in the us of my get to go and sit. the opinion announcement is the closest the supreme court gets to spend control because the

justices don't read their whole opinion. they use too, decades ago, but now it's just a summary. they are able to highlight the parts that they think are important and to sort of dodge or avoid the tough parts and so it is very valuable to see what the justices themselves think is an important part. sometimes they will use words that are not in the actual opinion. that's a big boss. that's also why, this is deep in the weeds, but that's also why the oral arguments aren't made available at the end of the week when they appear, just a few days later but the opinion announcements arm not made public until the following term. usually many months after the

argument. the reason i think we've deduced is the justices really hate, they don't like the opinion announcements, they don't don't want them to be made widely public because there is sort of some spin on it and sometimes justices will hear, they they don't sign up on the opinion announcements, even if they're in the majority. sometimes they will hear an opinion and local off at the end of the session and say i didn't sign up for that part. the opinion announcements are very controversial within the court and that's why they don't want us really quoting from it or using much of it. >> remember what justice so to my are, she gave an interview with linda greenhouse and said no she doesn't read the dissent and then she changed her mind.

she ended up, it was very interesting. she went into it saying i would read an opinion from the bench and then she felt strongly enough about that to go ahead and do it. >> it only happens a couple times a term when someone really feels deeply. >> do you think if the media got back together, when the justice upstairs finished delivering they might be willing to do that ? >> no. i do recall we usually make tiny increments of headway and we do get same-day transcripts which

is a huge help. we did once asked the chief justice whether they could release orders. orders are when they add cases to the docket. they used to release those at 10:00 o'clock which is the same time an argument started in the same time they started announcing opinions. what about 930 we said. he thought about it and then later he set aside from the fact that the press wanted it, i couldn't think of any reason not to do it. so now we have orders at 930. these are tiny baby steps but occasionally the court does try to accommodate our needs. in a general way, do you think your job is fairly different from your friends on the right? >> so i've only been in for about a year and a half.

before that i was about at abc and i've never worked for print, but i think this digital age has put us all in the same area, i think we all look for the bottom line first of all and get the bottom line out as best we can and then we follow it up, at least our team at cnn, we look for the best, people want to hear what the justice said so as quickly as we can we try to find that best couple of sentences to get that out and certainly on the dissent, which for me, it took a little longer although it was there. really quickly we have the television side going and then we moved just as quickly on our digital side because that is a big push at cnn and something

that really interest me to be able to do that because now, in the old days, i've been in journalism for a while, now if we put a story about justice scalia up, then maybe we can link to some of his oil arguments and then may be late to the interview he gave with justice ginsburg or the talk that they gave and then maybe a little bit about his son on the memorial service so it's a totally different world and it's fascinating, that push on the digital side. >> you actually need to get on air with the tv camera in front of you the mornings of decisions for you more behind-the-scenes. she is ready to go in front of the cameras out there with pete

williams, i'm inside and sometimes i do go on camera to explain other things because we have a huge news hole. i kind of wear different hats. one of the things i like to try to do is to write internally as well as externally. maybe the white house reporter who cares about this will see things from my angle. it's a different area where you do where a lot of different hats. >> speak about trying to get the news out so quickly, you wrote an insider piece about how much you had written in advance. >> i suspect i'm not alone in this and though wire services have plummeted but the moment this arises, our readers want to know what happened. it's much easier to do this if there are three or four possible outcomes to write each story in advance and propose that immediately and supplement it

almost immediately with some quotations and then fairly soon, having read it with actual analysis in the sense of the context and consequences. i guess it comes as a surprise that the standard journalistic device of writing be matter ahead of time, which is to say on controversial background that will work in every story and a lead that gives readers the bottom line is something you're not doing between 1005 and 1015, but 1015, but you're trying to get as ready as you can. i have to think my colleagues are in the same vote on this. >> absolutely. >> i've done this for a while so i remember the good old days when you could read the opinion and listen to the justices speak. i've talked to a few lawyers and then have lunch and then call my desk and say here's what i'm miller right for tomorrow's paper.

what would you say it's 30, 45 seconds, i would say within 45 seconds i have to decide and start reading opinion. >> people literally run to their q. week cubicles. i think i'm more restrained than that. i think i would walk. people go racing out of the room and make sure. >> it's actually very tense, right? >> you don't want to race up and put up the wrong headline. as adam said, we usually have two or three different versions of it. i look at it quickly and i go back to my desk and i try it one more time in 45 seconds have expired so i say, i thought the affirmative-action case would be a 4 - 3 decision striking down

it in a narrow way, but i think we thought, and it turns out i had a version that they restrict affirmative action. i don't think i had a four, four split but i had some other version. then there was the third one that i hadn't written and that was that they uphold the be affirmative action plan. i had to quickly say uphold that plan and i think in about a minute i said go up with that and there was two sentences and there was this background and contacts. anyway, you can have that stuff sitting there but you don't want to get it wrong. i always find it interesting and fun challenge because we spend a

lot of weeks up there where they decide nothing and then, on on the thursday, the last thursday of the term, they did affirmative action and immigration. >> it's kind of an afterthought. by the way, 44 split in immigration. >> i'm just getting that story straightened up and they end on this one sentence that says it's for four on immigration. that's a huge story. in california i think that was by by far the story that everyone was interested in. so do it again, 45 seconds and get that up. then again on monday we had two more of the abortion and the public, it's traditionally a job you spend a lot of time preparing and listening to arguments. i would say it's like being a college student where you get to read your regurgitate everything.

now we do it in 45 seconds. it seems like not only do you have to be prepared and go fast, there's very little time for second got a thing. >> the big cases were easy to understand who won and who lost. the day came where the desk would be going crazy and you're not going to know what the answer is until you had a chance >> everyone was thrown on the healthcare case. everyone who was was not following as close as they should have, there was that second question. i agree we've been lucky written recently that the bottom line is

clear. >> i thought the last week, when i was getting really tired and i started think of of every way they could rule, i was upset with the last with the abortion case, there were two provisions of that law, there should be admitting privileges and the ambulatory services and i was very worried that the court was going to act differently it was kind of like a game. if one goes out on procedural and one is something different, i spent way too much time on that because i wanted to make sure i was ready in case that happened. >> some justices have said since scalia's death there was an effort in the court to make things a little bit clearer perhaps or to compromise in a

clear way, i don't know, it did seem like a lot of the opinions were simpler to interpret more quickly to figure out who won and who lost which sometimes, that's really hard. i wonder if any of you have thought about it. on the one hand, they're trying hard to get in an opinion and on other hand the liberals are making up point that they're sticking together that they didn't have so many concurrences in the judgment. almost every year i've asked the question, which is, how do you possibly get a headline out. so-and-so announced a judgment of the court and delivered opinion of the court. justices so-and-so joined in

full and these joined in this way and so on. [inaudible] >> i know the case you're talking about here's the reason you want to go upstairs. leah wrote the majority. it was confusing as hell. at the end of the oral announcement, he said but you know what, epa 197% of what they wanted. thank you, but that quote at the top of the story and you're not going to be wrong. >> back to how i started, there was a theory that was nothing like that this year. i was hoping to have a question for you and i couldn't find one. >> the contraception case was a little like that. it was unsigned unanimous, but

completely opaque and sort of parsley declares that both sides are close to an agreement and were gonna send it back to the lower quarters to let them finish up the work we've nudged them toward because were not really judges, were like family court mediators to bring everyone together and both sides declare victory and that's a fairly, i forget what my headline was, it probably wasn't wrong, but maybe, it probably wasn't ideal either because we don't know what it all means. >> i thought this was the term, i've read a number of decisions where it's not really hard to be a supreme court justice project to get seven of you and me and we could be an eight-member court and here's how you do it. you read the briefs on one side and they make some good arguments. then we draft an opinion that says this goes too far and it would be a mistake so we don't want to go that way. on the other hand they make a good argument that not every minor violation is a violation

of law and we now vacate the lower court based on this opinion. they handed a lot of those cases down with a sort of said, we don't entirely agree with this or that but we can actually decide this case because it's a really close call. will send it back to let the lower court try again. there are a lot of these opinions but didn't really decide the issue in the case and they just sent it back. that's how they agreed to resolve the cases. >> i think that contraceptive case, i don't give ever seen anything like it. it was like here, you people figured out. it's usually the court's job to figure it out and they should've just said, this is a mass, you can straighten it out, you're not that far from each other, you do it. i've just never seen anything like it. >> to address the second part of

your question, it is true that this term, the liberal wing tends to be quite united where the liberals are more fractured. if that means if they want to block any movement to the right they can, but if they can pick up a vote from kennedy or both, they can then issue a liberal decision. that does does change the dynamics a bit. >> i was interested in the abortion case because ginsburg at oral argument, i thought was really interesting at oral arguments. she played a big role from beginning to end and walked, sort of guided oral arguments there and then of course when the opinion came down, she didn't write but she did write separately which she hadn't done the year before in the gay marriage court case and she wrote separately on something she mentions in speeches a lot which is the impact of those

laws which she felt on poor women, women without the access to travel. then she threw in this this was basically saying that for lack of a better alternative, if abortion, abortion, if they didn't have access, they might resort to clinics that might be unsafe. i thought it was interesting that she did choose to write separately, to make that point that she has made before and sort of break a little bit from the discipline. >> i suspect she might have liked that assignment. the senior justice in the majority, kennedy gets to make the assignment and he gave it to briar, not ginsburg and i think she would've loved to have that decision. >> i think all of you, i'm not sure if tony is in this category, had other beats before you became a supreme court

reporter, how is covering the supreme court the same and how is it different from covering covering others? >> were you in that category? >> a long time ago i covered city hall in massachusetts and the courts in new jersey. but the difference, the supreme supreme court is just a unique being. you get used to almost never talking to the people you cover which is pretty rare, and editors would always say well can you call up the justice and asked him about the red sox could see the big red sox fan. i said i'll give it a try and i got a note back saying on matters as controversial as this i must remain silent. on the red sox, they they wouldn't talk to me.

that's one thing that took a lot of getting used to. >> but you work around it. >> do you ever get to talk to the justice. >> we do have our occasional meetings with them, their social events at the court but it doesn't happen very often. not often at all. >> i covered education for a number of years before i started doing this. i must say the difficulty of writing about education is that everything is mushy. almost all the language, all the terms are mushy. i found it very hard to pin people down to what does that actually mean. i liked it when i started and i kept doing it. like the fact that people in the law business want to get to the bottom of it. what does that really mean. would you explain that to us. i think that's one of the great things about the law. they deal with a lot of, when i was covering education for example, what did the word segregation and desegregation mean.

they're usually significant. didn't mean stop segregating students or did it mean you have to integrate your city schools by affirmatively desegregating. it was hard to write about things in the education business because there wasn't the same level of precision and focus. i like covering the law because people are much more clear and specific when their arguing some point in trying to be as clear as they can be. >> i've only covered the law but before i cover the court i was a national legal reporter for the times in in new york. that job was much more satisfying than this one because you get to hunt around to find stories nobody else is writing about and travel the country and try to open a window on a major issue that hasn't been touched on, tell cool stories and then you come to washington in your writing the same story everybody else's writing. the journalist impulse is to do something distinctive.

here we are and it's a wonderful press corps, it's been the highlight of moving to washington but many days were writing the same damn story. you put them side-by-side and they look the same and they have the same quote in the third paragraph and so there's a little frustration and the fact that you don't get to choose your own stories. you're basically doing the stories that nine old people who are in a sense your editors that are assigned to you but they just happen to wear robes. >> i think one of the most difficult things for me, especially near the end of the term is that your caring around in your head four or five cases and they haven't decided it in the court doesn't tell you in advance which opinions they're going to release so you have to sort of toss them around in your head keep them straight and that is a challenge for me. another thing that's not true in other beats is when you're just

talking about the supreme, what we do, like nominations aside, there are no leads. i think when you cover other leads you're always worried that your competitor is going to get a leak. i think here it's happened, ages ago, but for the most part. >> yeah, every 30 every 30 years. >> right, you're not worried about the leak. my colleagues to cover the white house, that is a concern. >> don't you think this is one of those classic explainer beats? >> i think there's quite a few of them. if you cover science or medicine, a lot of what, i think what you want in a medical writer is somebody who understands medical research. they should understand it well enough to write the story that

explains this is a significant advance for this reason or this is questionable. i really think the job we do, something like 90% of it is really explaining the court said this and they said it for this reason and the senator said it was mistake and they're trying to give some sense of the significance of what they've decided. it is a frustrating thing as others have alluded to. if you want to scoop some breaking news, you're in the wrong job. i do think it's a worthwhile endeavor to basically try to the day after the mcdonald opinion came down on the last day of the term, there were a couple of people from the national association of criminal defense lawyers who had a symposium and they said the supreme court rejected the

government's efforts. nevertheless many and the media led with headlines along the lines of the supreme court makes prosecuting corruption more difficult. the headline should've been, supreme court rejects novel prosecution theories that convert into federal crime. so i went back and looked and your story on the l.a. times, the morning the decision was, the supreme court makes it harder to prosecute for taking bribes. they were obviously thinking about you. i don't know how much control you have over the headline riders at the l.a. times, but do you think these guys from the criminal defense association had a good point? how did you?

>> no. >> i thought that would be a good headline and an acl newsletter. i did think this was a case that would make it harder to prosecute corruption. i quoted somebody at the university of chicago who said, if i told you that i secretly gave the president's chief chief of staff $1 million to get my client in for 15 meeting with the president to advocate some product and you heard about that, think i think every person that i know would think wow, that was bribery and corruption. the president's chief of staff took $1 million to get this guy on the calendar so he could make his pitch to the president. the only problem is eight people in the country don't think it's a crime and they all sit on the supreme court. you know the facts of the mcdonald's case, don't don't

you? this is a situation where the guy, this guy, johnny williams has a private plane and he takes the governor on a cross-country trip and he basically says i need your help with this dietary supplement made out of tobacco when he gives his wife at $22000 shopping trip and a rolex watch in a series of favors and every so often he says i need a $50000 loan and it was not money that he had to pay back. >> that's my kind of loan. >> exactly. all secret and the governor has these meetings at the gov.'s mansion to try to get the staff interested in this dietary supplement. the thing is the dietary supplement was useless and none of the people were interested, but he tried. so he gets prosecuted for corruption and it's upheld and they say this is just routine courtesies. >> i've lived in virginia for a

lot of years. i didn't know this. in other words, if i had a book that i wanted to promote, i could call up the governor and say, having a luncheon at the governor's mansion so so anyway they bought the idea that because the jury, it's unclear to me whether this is a decision where they signed on and said let's have better jury instructions for all this money or whether you could never have a bribe unless the government actually gives you the contract. i'm not sure what it is but anyway i thought this would make it a lot harder to prosecute corruption and i thought most the people who prosecuted said the same thing but maybe they

don't agree. one is the notion that the court would've taken this case as error correction only not to announce legal principle. they certainly wrote it as it was legal principle. the second one was this rogue thing that was happening but if you went to the argument, the justice department thought this was the correct interpretation of the law. >> in addition to covering the important decisions at the end of the term, most of you, maybe all of you do around up general peace about the court. they had recent articles that i noticed about how the court is turning to the left. i have questions for both of them and tony and marianne can

chime into. the times had a chart on the front page showing most justices moving to the left over the last 30 years, or at least i thought i saw it on the front page. >> yes it was on the front page but it's a little more complicated than you suggest. the cases are different every turn. some cases get to the court only because they're the perception, recently that the court may move right word like the affirmative action case. how much can those statistics really show? are they really showing the court moving to the left or they reflecting. >> i think the chart you're referring to shows where the individual justices are and i don't think anybody would dispute what the science statistic show which is that thomas was and is the most conservative justice. if the three women are almost in the same place ideologically and prior is a little bit to the right and kennedy is in the middle and chief alito has

drifted a little bit to the right and roberts to the left. lawyers are weary of data. they like to argue individual cases. if you look at the numbers in large enough magnitude, patterns emerge and those patterns, as it happens are completely consistent with our intuitions, it's true that in the last couple of terms, they have played a small margin margin but nonetheless they have issued more liberal decisions than any court. that seems noteworthy to me. that also seems consistent with my intuition, but it doesn't matter. data is data and if the numbers are large enough they tell us something. >> we talk about various events

that if justice scalia had lived this would look and feel like a very different term. on february 9, the court issued a surprise order on a 5 - for vote to block the climate change policy from going into effect and that's going to put it on hold for a couple years. it was a real surprise, they've almost never done anything like that. it was a big decision blocking the climate change plan. scalia died four days later. had he lived, they would've had a 5 - for decision throwing out the agency fees and there would have been a five, probably in a fairly broad opinion that at least some of the language would have been rebuked to the president and then the two cases where it tilted the other way because of kennedy on

affirmative action and abortion. affirmative action would've deadlocked. >> it would've been four - 4. >> so i just thought, it is true that a few cases could tip you very much of the term but last year, you you remember we had the gay marriage decision and another decision upholding the health care plan. this year the big decisions at the end on affirmative-action and abortion, those are fairly big victories because kennedy tilted to the left, you could talk about that at some length, those are cases that turned out to depend a lot on the evidence. i think in the end he was convinced that the texas abortion couldn't be defended as a health regulation and that the

texas affirmative action plan was a narrowly tailored plan which he thought was okay then before. at the end of the term, you always have to pick, what do you say about a term that's a little of this in a little of that. i think 70 could argue that the court hasn't shifted decisively laughed but when you go through a couple terms were the big ones come out in the left side wins, it seems like a more liberal. >> think back to october, it sure looked like, also, the contraceptive case, how would that have come down if scalia lived. it looked like this would be the empire strikes back. at a minimum, clearly they were going to deal a devastating blow to public unions. there were a whole bunch of reasons why a term that looked like it was going right shifts heavily to the left.

>> to me what it was was a term that didn't go to the right, sort of what you were saying. they never would've been there except everyone thought they could over rule the 40-year-old but they didn't succeed and they didn't make the law any more liberal than it had been for 40 years. the texas abortion case never would have been there except people in texas and other states that they could push back against the right to reap produce choice. >> but it was the abortion-rights group who brought the case to the court. >> and they thought they could get away with the legislation. >> so every time somebody on the right does something that's devious and everyone someone on the left does something, it's doing god's work. >> did the right to abortion actually get more protection now than it had? i think the answer is no. >> more importantly, did the right to abortion get reaffirmed and broadened and the answer to that has to be yes.

>> i think it's in a safer place than it has been in a very long time. i don't see that changing back. you never know, if president trump appoint somebody, but i think we've sort of talked around it, but i wonder if what people's theory is and why justice kennedy moved on affirmative-action and on abortion-rights, was it a centrifugal force or the balance shifted to the left because scalia died and he felt he had to go there or what do you think it was? >> you had a bit of a theory about the two justices who grew up in california in that respect >> we did make a little more of the california angle than i wanted it to but i did mention that it is a surprise that there are two california natives on

the court. he grew up in san francisco and went to harvard wrote harvard and kennedy grew up. the thing that i thought, the long story here in the short story, over a lot of years when i've talked to law professions and others, they say who was your boss friendly with around the building or whatever. i was always surprised how many people would say, regarding kennedy, they seem to be very friendly, they spend a lot of time talking and i never figure that out because they were always on opposite sides but briar is a guy who worked for ted kennedy in the senate before he became a judge. he likes to talk about those years and one of the things he always talks about with kennedy is how even though he's known as this liberal lion, he really liked the idea of being able to work with republicans.

he would find a republican who is really interested in school this school this or that many find a republican who was interested in healthcare and he loved being able to work and find republican that they agreed on something and find a way to do some legislation. i always thought briar when he tells the story, that is sort of something values very much. he always talks about how he was in morning after sandra day o'connor left the court. she was somebody who was definitely not a rigid ideologue who cared about the doctrine. she cared about the facts and was in the middle and you wouldn't know if she would tilt laughter tilt right. it sort of depended on the issue. kennedy is kind of like that.

he does have a middle position. the conservatives thought, any use of races unconstitutional. that was not kennedy's view. he thought diversity was a compelling compelling interest but it had to be a really narrow, the question was could you convince him that the texas plan is narrow or is there to much of a thumb on the scale. anyway i think he and breyer could talk these things out and he ended up assigning breyer the abortion case and i think adam mentioned earlier, i think it's ruth ginsburg would have loved to have written but he knew breyer would write one of these very matter-of-fact opinions, no rhetoric, he'd say the evidence shows these regulations are not justified. the cost is very high and the benefits are low therefore texas loses. that's exactly the kind of

opinion that kennedy could agree with. he wouldn't like an opinion that would nearly slam the legislature for sham legislation for example. but let's not overlook the fact that here are two things we knew about kennedy before the decisions came down. he had never, in his time on the court voted to uphold any affirmative action program. he had voted to uphold 20 abortion restrictions and voted against only one. this is someone where the pre-decision data suggests one set of outcomes and we get a big surprise going the other way. >> alito, in the affirmative-action case called him on it and to the extent that there was a surprise, particularly after oral arguments with kennedy, at one point i think he said, because you remember, this is the second time we had gotten the affirmative-action case. he didn't seem to like it. he said you know, this this is

the same case or something. so i think alito really said, what happened or something happened. >> something strange is going on or i thought that was very interesting that he called that and he called early in that dissent. >> another thing that was strange about his dissent, i think it's probably the first oral dissent that ever focused on race and severability clauses >> thomas did defend the law under the texas abortion restrictions, alito was joined by the chief and really only talked procedure. they didn't seem to be prepared to defend this law. how do you cover that? do you say alito mounted a vigorous oral dissent focusing on race?

>> no, i do not say that. i think my editor. >> i think think it stuck into my story but we have lawyers, when i covered the supreme court they called me the reporter in charge of latin phrases. you have to work them in sometimes. >> so how did y'all cover the oral defense? there really was entirely procedural - briefly. >> i think i gave it one sentence. it's hard to write about it in a big case like that could there's a lot of other things to say but if you spend all your time saying this case was procedurally screwed up elation of decided it, how many people want to read about that the day after a big decision? >> so justice alito had the only

two oral defense this term and justice thomas had 18 defenses, more than one third of the total number of defense written by all the justices and he had 39 signed opinions which is more than justice kennedy and the chief combined, why do you think he's writing so much and trying to make up for never asking a question from the bench? how much did his separate opinion or separate opinions in general affect your reporting? >> i think when you look at the case this term, when we were all, when i was downstairs, i wasn't upstairs when he asked a question for the first time in ten years, i think what's interesting is that he hadn't asked a question and oral argument but he reads his opinions with his booming baritone voice.

he is very, when he gives public appearances, he talks a lot. he has given various reasons why he doesn't and one of the reasons why is that he feels sometimes the justices are doing too much talking on the bench and in that case it came soon after the death of justice scalia, and the court and they had declined to take up the second amendment issue in the case. it meant something to him so that triggered him to ask a series of ten questions and may be, he's true to his word. he wasn't on the bench and he probably would've asked that line of questioning. >> the advocate was about to sit down early so he wasn't wasting anyone's time as you would put it. >> right.

then i felt like that decision came down the last day and i feel like i haven't given enough time to his dissent in that case, but i thought it was very interesting because just because he doesn't ask questions and oral argument, those notions that he's shy or you never hear him speak, you can hear him speak. i thought that that case was interesting of him sticking to his word. he'll ask a question when he thinks the question needs to be asked. >> i always think of him, different justices view the job very differently. we've had a couple on the right, justice thomas and justice scalia and on the left at soda mayor and ruth ginsburg. there's a good piece in the paper that all these dissents

have written on the criminal justice system and she speaking to a different audience and trying to say, there's a real problem in the criminal justice system but she's writing those frequently alone. she speaking to an audience out there and justice thomas has always wanted to do that but from the time he arrived, he was always had a sense of his own to the contrarian view. he sort of a court of one peer he's always had a distinctive view on all sorts of things and he loves to sort of write one of those opinions that says all my colleagues are wrong and they've been wrong for 60 years. he comes back and says we should interpret this as we did during the 1920. commerce means taking goods across state lines. it doesn't mean regulating businesses. he's always had that instinct to say, this entire area of the law is wrong and here is how it should be rethought. that's what he likes to do. there's quite a few who are much

more focused on in the middle, how can we decide these cases but there really are justices on both wings that are speaking to a larger audience to say our court is completely off-base in this area of the law. >> i saw a law professor, might've been josh brockman who ran a word search through and it would pull up all the things he'd like to see overruled. it would take out half the constitutional law. >> i know there's at least three cases like that. he basically said this whole idea of different levels of scrutiny, rational basis, it doesn't make any sense. may not seem so crazy but it

certainly is. you been doing it wrong since the 1930s. he thought this lifetime ban on possession of firearms by people convicted of certain crimes was unconstitutional and in violation of the second amendment. in heaven well, against abbott which had to do with how a state decides who to count when it's setting aside legislative district he said the court has never provided a sound basis for the one person one vote principle. let's just go back to some counties get more votes than of other counties. these are certainly interesting ideas because they write the level of being worth reporting on, either when you report on a particular case or in a more general way that you talk about

these. >> it's definitely worth reporting. justice thomas is a justice who doesn't believe in devices. he just thinks relying on precedent blindly is a dumb idea and he's willing to upset the applecart quite often. it puts him outside the mainstream of legal thinking. it certainly deserves coverage. >> sometimes when he has to decide and judge a case, we had this case about the juries and the evidence coming forward that the prosecutor had sort of color-coded the jurors, each

potential juror, and it was unquestionably clear that they were trying to eliminate all the blocks from the jury. so when this this came out, the court had no problem saying if were serious about not allowing prosecutors to use race, this is a classic example, john roberts said said it was nonsense to suggest there were legitimate reasons for this. justice thomas writes that it's a solo dissent saying i'm not convinced that the fact that they've struck each of these black jurors who are seemingly transparent phony reasons amounts to racial discrimination i ended up writing about some of his dissents that i think are hard to think that was the right call.

>> we have a little bit of time left, let's talk talk a little bit about the future. in my advertisement that went out, i said will they hold a hearing if hillary clinton wins and will donald trump really nominate judge judy for the supreme court. you have any idea of what the future could be? >> i don't cover the senate so i can't. >> guest: that. i will say i have talked to conservative lawyers, conservative activists who have said there's got to be a vote and that's what they've told me on backgrounds, some of them. again, i don't cover that grant so i don't know how they do that. >> i don't know anything about the senate either in this is a

big assumption, but assuming they are rational actors, if the republicans know they're going to face hillary clinton as president and they have the opportunity to confirm a moderate 63-year-old, moderate 63-year-old, they would be insane not to. >> i agree with that for the same reason. it's just a guess, but garland is the kind of judge that all the republicans would think, they think this is the absolute best working to get from the obama and administration. they have a very good person but he's not as liberal as almost anybody that hillary clinton would pick so i would think as adam said, if mrs. clinton was elected in november, i would think that some republicans think maybe it's a better idea to confirm their garland now. >> another change, it went a

little hype profile but they retired at the end of june and his chief deputy will be the acting at least until next spring i suppose. do you think that's going to make any difference to how all this operates or what goes on at the court? >> i don't think so. i think they've worked together for quite a while and he ran a tight ship and they are in a sense coasting. they said the docket for next term is not that huge. :

>> more than likely they were not pleased with the way he was treated with the healthcare area particularly as we said earlier with that ad that went out. >> you give a bunch of energy use as he was leaving. he made a point that it was a self-conscious decision in most cases to keep it understated and businesslike. he thought that, that earned him

the opportunity occasionally to move the dial to something a little more rhetorical and emotional for something that really matter to him. as you are saying not every advocate would be giving the deference but i think he was earning that deference by five years of outstanding service. >> we have about ten minutes to go. the people have questions marcia how should we handle it? raise their hand in the microphone will come to them. if you have a question you can let yourself be known and there is one on the side. >> hello. often times it seems often to very important decisions will be released on the same day. this year the whole health and the well-being decision came down the same day. one, do you think there is some stratagene on the court and timing the release of the

decision to see that one of the decisions does not get as much coverage as the other. the second question is you as a reporter, do you advocate with your editor to make sure that the quote lesser decision in this case, waben gets the coverage that it deserves? >> as i said with the waben decision i thought it was interesting. i actually did write it. i did not write it as quickly as i got the other ones out so i absolutely think that is an important thing to do. i think and i will circle back to it particularly that dissent sometime. as far as i think the justices say that our opinions are released when they are ready, i was very pleased last term that we do not get too big ones in one day because that makes life

complicated. it makes a couple get that is busy trying to figure out what they say. this term when we got to affirmative action and immigration, at least the immigration was a 4 - four scoremac. so we did not suddenly have to go through. i remember for the drama you are in that press room and they announce it in one room and they come out with the affirmative action and you are reading and working on it and i think did we not get the four - four on dollar general? if so then there is a four - four on dollar general and you're same for dashboard and someone and someone says that is not it. then you race back in for the four-four. so it is a busy day. but i absolutely try and art team at cnn two, we did not want to lose that waben decision because it was important.

>> do you have high school final type nightmares during the last week of the term? oh gosh, i came without my pencil, i miss this this decision? >> absolutely. those last two weeks for me are very difficult, particularly this term. not only do you want to know every way the court could rule so you are not surprised, that is a tough one if you're suddenly surprised. but then you had the added burden of the potential of a four - four or a potential of an order for reargument. maybe you know you say okay there's not high percentage of something like this happening but you have to be prepared for it. so it is a little nerve making the last couple of weeks. >> asked whether there was a strategy, don't don't appreciate it if there is, but it is hard to know, this was a pretty bad year on that score. some years they have done better about spacing them out at the end. i would just a for myself, i find there are certain number of cases that i will say that or beat level interest and that

tran7, the the gun case i thought was in that category. on a slow day, i would love to write about that case. it is an interesting small spin on what they said before. anybody who is guilty of a misdemeanor crime or domestic violence, no gun, this no gun, this was a question about what if he pleads guilty and recklessness is part of it. so it cannot change the law and a big way, but if you put the words gone and domestic violence in the same story a lot of people are going to read it. i would read it. it is an interesting subject. on subject. on the other hand, if the court does at the same day they decided and affirmative action and immigration case, i did not write about it. i think we put something in our papers about it but those were two big stories that i had to devote a lot of time to. there is another case that was pending about drunken drivers

and breathalyzer test and blood test. i thought those those a great subject because everybody can immediately understand do you does the police officer need a search warrant before requiring someone to take a breathalyzer? the answer was no, six - two. but how about a blood test? it was different, anyway a very interesting subject but again, i took the view that i can only write two big stories in do them in a decent way. if i do a third when i can type them fast but there's a lot of potential to screw up insights. so i thought i'm going to do too big stories and not the third. so when you get one of these years were there is not a lot of big decisions it is really irritating and frustrating that they all get bunched up on two days at the end. >> any other questions? >> to what extent do you think the justices, particularly justice kennedy are influenced by public opinion?

>> justice ginsburg says and i think it is a nice place in a this is true of all of them, they are not influenced by the weather of public opinion but they are influenced by the general climate. think about same-sex marriage. ten or 11 years ago in the massachusetts supreme judicial court first announced that there is such a right in massachusetts it was an earthquake. nobody on that day would have thought that a decade later the supreme court would announce that it's a federal constitutional right. but public opinion moved so fast and there have been so much activism in litigation that it changed the climate and allowed five people including justice kennedy who wrote to come have a different view of the world in which the constitution requires. so i do not think they care about momentary blips in public opinion. i do think they care in a general way. they live in the same world we do. they look around and come to the conclusions. >> i agree with that. remember too that that kennedy would be

very much aware of the fact that if there's a ruling that the constitutional right to gay marriage is that changing the law in ten or 12 states, or 45 states? remember states? remember by the time they finally got around to ruling on that two thirds, three quarters of the state through legislation or court gay marriage was already legal. they were making a national announcement to say this is a national role as a national constitutional right. i think just like the public opinion switched, a series of state law s that they do not wao be issuing some decision the morning after some mesh shooting

-- mass shooting. >> you mention the liberal block of justices. and how they stick together, after the upcoming election of the core continues to move to the left, do you think we'll see some differences in opinion from breaking out from that block? >> i think if we get a justice garland they're are going to be tightly bunched as the charge shows. on the left, one question that i would love to hear other people say is i'm assuming there is a solid liberal justice majority in the court. what they do something with citizens united? what they do something with heller? the question on this goes back to the point are was making, the left has mostly blocked movement to the right. what if the left actually has

five voices to the left, what paths to the left may they take? i think that's an interesting question to think about going forward. >> i sure agree. on the road road we do not know whether we'll see this, but there'll be slits on the left to. justice sotomayor or others may say that we may go further and some others may say we may not go that far. so you'll see a split, concurring opinions, you'll see splits. as adam has quickly said, they have been sort of blocking things they think that conservatives want to change the lawn a big way there blocking things. but the majority, they don't, justice sotomayor has a different view of things such as justice breyer does. >> it is 158 p.m., i'm sure our friends at c-span will be happy if we wrap up within an hour and a half. thank you all very much for coming. see you again next year.it is sf

affirmative action which is something i support. >> sunday night night at 8:00 p.m. eastern on c-span's q&a. >> the naacp in north carolina suing to block implementation of an election on the state that cuts back on early voting, eliminate eliminate same-day registration, requires voters show photo ids. the fourth circuit court of appeals recently heard in oral argument in case of north carolina naacp versus mcquarrie. this is an hour and a half.

>> good morning. anna baldwin represented the united states. to the order of the presentation this morning i'm going to be addressing the united states section to claim through both its intent and wrong. ms. harris is going to be focusing on the results prong and were going to be looking at the constitutional claim and addressing any questions about implementation. >> with the closing which i might find exclusive but that is not the case here. if the emphasis is drawn by the district court we can do or do diligence. >> to me that is the core of the case. >> certainly your honor. under. under the split standard of the

district court applied the wrong legal's dander the facts found by the district court are binding. to start with the intent analysis. there are critical errors in the legal analysis in the district court's analysis of the united states intent claim that framed the analysis. we have to start with the facts that passing hd 5890 north carolina legislator acted to block growing african-american political power just as black north carolina and started to begin to experience poetical game. in looking at this claim, the district court district court failed to take account of the fact that even as the dependence expert testified in north carolina the best predictor of voting behavior is not party registration, but race. so a proper intent analysis would've required the district court to expressly consider whether passage of hd 589 was motivated in part by what the supreme court cause a troubling blend of race and politics. the district court committed illegal air and failing to analyze plaintiff's intent claim

through the framework that the supreme court set out. >> when you speak to the claim that section two? or the 14th amendment, intentional discrimination and is there a difference difference? >> under the 14th amendment intentional discrimination is the same standard. the united states is pressing his claim under the guise of section two but the standard is the same. the question is was the legislative action motivated in part by a racially discriminatory purpose. >> in any any event you are presenting your constitutional argument here and yet there is a section to results. should we reach that one first? >> your honor we think that understand section to results claim, in this case it is helpful in the tenuous factor in particular to look at the intent claim and the parties would ask

of the court to read both the result in intent violation because the nature of the release were seeking. were seeking relief under section 3c of the voting rights act which requires the finding. >> your colleague who is going to argue last is going to explain that also, right? >> she is going to be addressing the constitutional claim. but in terms of the intent climb, their rational discriminatory intent claim is necessary under the voting right back to retrieve your a preclearance recovered chip for under section three c. that is why that finding needs to be made under the intent claim. >> looking at the legal -- >> we understand you want everything, but i think my calyx questions he was, in your first brief you did the intent claim first. in the second brief you did your intent claim second, so which is first? >> your honor, we think those are very strong claims. with respect to both -- >> the question that were going

to is typically we do not do a constitutional issue if we can resolve it on open ground. the question is here under section two, should we first address that and then if we reach a resolution their course you would like for us to go for immediate reason to the constitutional question but should we start at least there? >> i think in terms of what is very practically important, the court, the parties, were all aware of the fact that there's an election upcoming in november. the importance of having some kind of remedy in place and having a reversal and an injunction and joined the decision that are discriminatory backing mainly be done under the results claim. this court could simply correct that we glares that the court made. >> and i cannot be done under the and ten claim? >> because there is a legal air in failing to account for the analysis and the seismic growth, the significance of turnout, -- >> as my other colleague said, i think we understand all those

arguments, basically what you have done in your first presentation of is glover your brief with us, you can rest assure we read the brief. i would be a little more interested in the specifics if you can give them to me. for example, did you present at the trial any expert data predictions on what the 214 voter turnout would have been without the new statue? >> no your honor in fact, we explain we explain why that is not possible. doctor stuart testified that in order to predict what 2014 would have been, not just doing the simplistic comparisons that the district court did you need more elections, more states, more data in order to do that.

>> we know what it was under the statute, did you have any expert try to make a prediction what it would have been if you had not had the new statute in place? >> what are some factual testimony your honor that you do not need expert testimony. we know if the statute had not been in place that more than 1600 voters who cast out of pre-stink ballots were not counted. those ballots could've been counted. we know that for the i believe it's nearly over 12,000 voters who registered after the book closing period, after the 25 day deadline but before the election, those waters would've been able to take advantage of same-day registration. those waters same-day registration. those voters cannot do that under this statute. so the notion that if were talking about turnout, the notion that the united states and the plaintiff did not prove that this law impacted the number of voters who are able to vote, that is simply not true. there's thousands of voters on the uncontested factual record who were shut out of the political process under this bill. what the district court did and its results analysis the critical air there is looking at two numbers rather than the numbers that the voters were

concretely shut out of the process. they said what was about turnout in 2010 and what was turnout in 2014. as everybody's experts 14. as everybody's experts testified, you cannot measure the impact of an election law just by looking at those two numbers. in 2010 you had a you had a 10000, $10 million senate race, you had a hundred million dollar senate race in 2014. of course that is going to have an impact. also looking at turnout, of course the statute prohibits laws that have an abridging effect as well as outright denial. on this record we have clearly proven outright denial but it is wrong to set up a standard where you have to show that voters are concretely shut out in do not take extraordinary efforts to overcome that burden as the record in this case shows that there were extraordinary efforts organized by churches to counteract the effects of this law. >> i have have another factual question? you talk about the 72 early voting sites.

is there any evidence in the record in terms of whether they were located in black or white communities, republican or democratic areas? >> your honor, think one thing i would like -- >> i'm interested in your explanation but is there anything in the record about that? >> i do not believe so and if i am wrong i will -- so one thing that i think is important to clarify in our challenge to the early voting voting challenge is that the united states is not challenging the only portion of the law that defendants have asserted rationale for which is equalizing the locations within counties. we are not challenging that. we are challenging cutbacks to the number of days of early voting. that is something to which the defendants have had no rest. >> part of your argument, maybe i misunderstood your argument was that voting, one of the problems was the board of elections was given this

authority to move voting sites around and they could in that way discriminate against minority voters. is that not part of your plane question i. >> that is not part of her claim. in fact in the reverse sort of this estate has rely more on the fact that the location of early voting centers and arguing that they were used to benefit african-american and democratic voters. we we are not making a claim about the location of the early voting centers, if anything where thinking the state's reliance on that argument is basically an omission of what the facts in this case show that recent party are tied together north carolina. >> that is part of your recent party argument. that's what i'm asking you. >> were not claiming that the new locations are old locations discriminate against african-american voters. what were claiming is the cutbacks to early voting,

eliminating 70s and particularly the lemonade in a sunday where the record shows that in 200849% of the voters who use that african-american in 2012 that eliminated some 43%. that's where the disproportionate impact is, it's in the cut and the number of days. were not challenging not challenging the location issues under the bill. >> so the answer to the original question is because you believe there is a legal air you do not have to for this with the district court. >> no, i mean that if the critical facts before the court are not contested. i think you said that you submitted a lot of this case by stipulation. we agree, the inference is that the district court drew from the fact that because the framework that it had wrongly adopted in the cases of the result claim it elevated turnout above every other kind of metric where to say that as

long as aggregate turn it goes up, as long as more black voters voted in 2014 then thousand 14 then voted in 2010, you cannot have a discriminate tory burden and that's not the case. with sun day registration we showed what the discriminatory burden is. it this is not just a statue, is that african american voters are more likely to use that when they're more likely to use that because of reasons connected to history of discrimination and importantly the removal of that. it's disparately burdens and amplifies the fact that discrimination because of the literacy deficit. that is not just speculation. the best of it is some of that is in the incomplete border registration that you see in 2014 that the voters were going to have more problems submitting the voter registration application, feeling to check a box or something, they are they are disproportionately african-american. and taken away same-day registration where you had an opportunity to correct those errors is going to desperately

burden african-americans. that is the way in which in particular the burden that belong our chemo to been greater. you take away a week of early voting. you take away the opportunity for african-american voters to you same-day registration during that period, the more you take away that early morning. were voters can show up at any precinct the more likely there to end up in the wrong precinct on election day. >> what is your best evidence connecting that burden to the historical discrimination? >> i mean i think the path that this court set out is that you start with the discriminatory burden show we show that through the disparate you and we also short through the socioeconomic effects of discrimination that amplify the fact that it is going to be more difficult for voters to navigate the process in north carolina without those. so i give an example of a voter

like gwendolyn farrington, think some of the individual voters bring to light the uncontested numerical socio- economic and disparate used testimony that she is a voter who works six days a week, 12 hours a day, she had voted early in 2008 and 2012. she did not have time to vote early during the compressed early voting. in 2014. she voted near her workplace because she worked on election day from 6:0e could have not got to her correct polling place in the time allotted because she had to pick up her adult children like 27% adult children like 27% of african-americans, three times higher than whites. there are transportation difficulties in her family wears most adults rely on one car. you see the same example of carolyn cottingham of the ways in which the birds in this case are committed. she was the first time voters who you