military career and some of the 400 missions he participated in. including the basket of captain richard phillips. and the attempted rescue of marcus luttrell, form and require office of and a former naval officer providing history of women's military efforts from the american revolution to today. a new york times chief white house correspondent peter baker details the obama presidency. that all happens this weekend on booktv. for a complete television schedule go to booktv.org now we kick off the weekend with james zirin the former assistant us attorney argues that the supreme court has become highly partisan in the course decisions often made on a political basis that has little to do with the law or constitution. >> good evening everybody. that's nice.

you usually do not speak back! thank you for coming. another of our speaker series. if i could ask you to silence your cell phone, turn off the cell phones, it is the politest thing to do. all the way off. anyway, as a reminder we have dinner upstairs after for those that wish to stay. one of our prefix dinners. thank you again. tonight we are proud to have james zirin to speak with us. he is the author of two books. mother court, gels -- an "supremely partisan: how raw politics tips the scales in the united states supreme court". as many of you know he is post of a television show in the metropolitan area and we

usually have a range of personalities on his show. he is a leading litigator having served as an assistant united states attorney in the southern district of new york and the criminal division under the former speaker robert - [applause] >> thank you for the overly and excessively generous introduction. as you begin to describe my accomplishments i kept looking behind me to see who you're talking about. i'm very honored to be here at the down town association. i'm always happy to talk about my favorite subject which is the supreme court of the united states. it is particularly fitting and proper to talk about the

supreme court in the shadow and grave of alexander hamilton who was one of the authors of the constitution. the book, we will get it later is about the politicization and as i've gone around the country talking about the book i find that lawyers and nonlawyers alike are keenly interested in the constitution and keenly interested in the supreme court. always with questions such as what is going to happen on the constitutional freedoms in the era of trump. questions like, has the rule of law been undermined? is the independence of the judiciary undermined? or how can it be that a court can so the president and he cannot do something in the interest of national security?

or, why can't the president been muslims from the united states? muslims are responsible for terrorism so they can be banned from the united states of the president's not going to do it, who is? and i tried to answer these questions in the context of the decided cases in the history of the supreme court. and there are answers. some of them there are not answers, there can only be perhaps some educated guesses. the court, of course, has become increasingly politicized in recent years. i'm often asked the question, hasn't it always been politicized? and the answer is that it has been politicized from time to time but never to the extent as we have seen in recent 5-4

decisions. they have test cases and regulatory cases and business cases that have nothing to do really with the constitution or really nothing to do with some of the ideological issues which we hear about so much. but when it comes to core ideological issues like guns, gay, god in divorce find that they seem to break out 5-4 liberals and conservatives. and it is almost predictable how they are going to vote before the briefs or even filed! because the positions on these issues are quite well-known. and have been well known. so we have a politicized court in that sense.

now what is a liberal? what is a conservative? is a definition that almost leads sensible elaboration. i use a convenient one, the liberals are all appointed by democratic presidents and the conservatives were all appointed by republican presidents. it's easy! the fact that ginsberg was appointed by bill clinton does not mean that she asks himself before she writes an opinion how would bill clinton might be to vote on this? but it is always interesting that she has certain preferred policy preferences.and those preferred policy preferences which are by far and large in line with the agenda of the democratic party. when you have clarence thomas

and antonin scalia writing opinions they do not ask themselves what would ronald reagan have done or what would george h. w. bush have done on this issue? they know what they would have done but by far and large, they both are outcomes that are consistent with the ideological preference of those presidents. people that i talked to not only in this country but also in london, they are very much adjusted and the politicization, they are very interested. lawyers discuss over journalism and textualism and doctrine as to how they get to those outcomes. scalia was an originalist. he made an enormous contribution to the court by saying, number one you look at

the text of the constitution. that's what lawyers do. they look at the text of statutes or they look at the text of documents. and secondly, that you look at the original understanding of the people of the society at the time of the enactment of the constitution, 1789.so the main body of the constitution was seven articles.for the first 10 amendments the bill of rights, 1791. he would have looked at the understanding of that society but you, and you get some extraordinary interpretations. for example, on the issue of capital punishment, very dear to school - very dear to antonin scalia's heart. -- who is the lord in the

context of capital punishment. it is the state. so capital punishment is on its face authorized by the constitution and fifth amendment. it talks, no one hall answers a capital crime list by indictment and no one should be deprived of life without due process of law. so the due process of law you know damn well that the state can, in the lives of the authors of those words to deprive people of life. but at the time of the constitution, we would hang people for stealing horses. at the time of the constitution, we would hang people for crimes short of murder. we do not do that anymore. with his and in the constitution that might prevent that?it is the eighth amendment pitiful and unusual punishments clause.there

arises a very interesting question. in 1791 with three people in the stocks refacing his wife in public on sunday for 30 days. now that is unusual but today we would consider that perhaps cruel.but at the time it was certainly the understanding of society. if there ever were a line now that said that, antonin scalia was it stupid but constitutional.i think most judges would say is unconstitutional. and would not enforce the punishment. so that is an example of how constitutional interpretation might depend on an originalist view of the constitution versus a more enlightened view of the constitution because earl warren said the meaning of the

eighth amendment, the cruel and unusual punishments clause must be drawn from the evolving standards of decency that mark the progress of a maturing society. antonin scalia really mopped that.he said evolving standards of decency, i do not know what that is and i do not want to know. that was his view of a living constitution which he detested because he was afraid that if you allowed it to be interpreted in accordance with the evolving standards of decency of the judge, we might get outcomes even tyrannical outcomes that none of us would like. so he said that really, the rights we have should be anchored in the language of the constitution. the constitution does not evolve, constitution does not live. he said dead, dead, dead! but what is so interesting is

that over journalism, more often than not leads you to a result that might be endorsed by the agenda of the republican party. and the evolving standards of decency approach would lead you to a result that is more in line with the agenda of the democratic party. so you see a politicization, a rising and how these things are determined. these days gone by, you had notable - homes was appointed by teddy roosevelt. brandeis by wilson.and if they voted together quite often. most often in the senate on issues involving basic political rights for example. the first amendment.

alexander hamilton coming to get me. [sirens] in the period of the new deal, franklin roosevelt, a liberal, did not like what the supreme court is doing. and you had a. which is an interest. in the history of the court called the lochner era because of a 1905 case where they struck down some new york social legislation that prohibited bakers from working a certain number of hours every day. and or every week. the supreme court said that it interferes with the freedom of contract and it interferes with the process you cannot tell an employer and a worker what kind

of contract to make for themselves. and later that was discredited but yet a whole series of cases with which were largely 5 to 4 franklin roosevelt it is with decisions not under the constitution but over the constitution. where they struck down a new deal legislation. so what was roosevelt's solution? it was to pack the court, his solution was to attack the independence of the judiciary. so he introduced a bill in the senate which is opponents referred to as the court packing bill. his supporters called the court reorganization bill when he said that too many justices of the supreme court over the age of 70. remember, they all have lifetime tenure. and he said for every justice over the age of 70, and congress can do this, he would have the right to appoint up to six justices and for every

justice over the age of 70 conceivably, there could be a court of 15 justices. remember we started with six justices on the court. not even a odd number and then it was increased to nine. so the bill was dead on arrival and certainly, the better the us it was a terrible attack on the independence of the judiciary. what happened was one justice owen roberts who always voted with the conservatives, switched sides and in an important case, voted with the liberals. it was called the switch in time that saved nine. there was no longer necessary to pack the court. age put up with him and roosevelt got to appoint nine justices in the time he was president.

so the problem disappeared and legislation started to be approved in the supreme court. we come down to the next issue which we saw played out very recently. which is how do these judges get their? how are they and how do they get there? i was struck with a painting in jacob lawrence's migration series. we just saw at the museum of modern art where you have a black defendant, two black defendants reminiscent of scottsboro before the white judge and the illustration really asks the question, who are these judges and how did they get there? and can they administer equal justice under the law? so we look at the composition of the court and when antonin scalia was around it consisted of six catholics and three

jews. no white anglo-saxon protestants even though they represented the majority. at that point we had 116 justices. 89 of them were white anglo-saxon protestant men. they learn they gave us brown versus board of education, many decisions. it was so interesting that he looked at roe versus wade perhaps the defining abortion case. perhaps of our lifetime is made possible by the votes of three nixon appointees, burger, blackmun and powell. the opinion was written by blackman. so these are judges that were appointed by nixon, burger made the statement is that i do not mind abortion. i really hate abortion, i would never allow anyone in my family to have an abortion but i felt this is what the constitution required. and we see a number of

instances, only that one incidents where republican appointed justices like brennan and warren bonded with liberals and even kennedy was a so-called swing voter on the fort was in the majority 90 percent of the time. he switched because of the view of what the constitution required. so i could go on on identity politics. we have a time when there was a catholic seat, not many people know that. we had the dred scott case that was decided by roger - that was the first catholic chief justice. he swore in abraham lincoln. but in african-american were not citizens of the united states.

an extraordinary miscarriage of justice. there was a catholic seat for many years. there was a jewish seat we know for 53 years. starting with brandeis in 1969. in 1969 when trevor had to resigned the white house tape showed that the attorney general, mitchell, came to see nixon and said he is going to have to resign and nixon sit good! and he said well, we have to appoint a jew bill jewish seat and this is it i'm not going to appointed jew, and appointing harry blackmun. and he said you cannot do that mr. president. when you going to appoint a jew? and he said after i am dead. and so, the presidents had been very conscious of identity politics. we appointed clarence thomas. to replace thurgood marshall. this seems to vote against

black interest every time the issue is presented. so the personalities in the background of these justices are very much in play in terms of the decision-making. original-ism, textualism would work well for antonin scalia and most issues but when you get to the gun clause, the right to keep and bear arms, of course there is a preamble you're supposed to have every word in a statute in there is a preamble that says a well regulated state militia being necessary to a free state, the right of the people to keep and bear arms shall not be infringed. he absolutely swept aside the preamble and ignored it. which is an detector list and empty originalists.and sit with a personal right to keep and bear arms.so it apply to hand something your home and

the district of columbia. i do not know whether it would apply to having a bazooka or so in your arms. you could carry a bazooka, so you do have a constitutional and thomas said you have a fundamental right to have a bazooka in your home, a military weapon. and they have not extended this to military weapons although it remains to be seen that states can regulate assault weapons and also we will see shortly whether they can regulate the carrying of guns either openly or concealed on the street. that is it at the moment. i think i will leave it at that and they must've many questions and there is a lot i probably left off i do not want to keep you to long. i figure your questions are more important than what i have to say.

[inaudible question] >> is interesting because that was decided at a time when republicans were out of power and wanted to raise campaign funds and that is when again, a departure from original-ism because certainly, none of the framers of the constitution never thought in a million years that campaign financing was a form of political speech. when corporations give $100,000 to apac or even $1 million to pack congress doesn't have the power to regulate that. but the 5-4 case decidedly. it is every indication that neil gorsuch feels exactly the same way. as he has taken antonin scalia's spot. so i think there will be open

season and political finance for years to come. he did not talk about the, when neil gorsuch replaced antonin scalia in a wave of it really was not such a big setback for people interested in liberal values because number one, it did not change the voting composition of the court. and number two, you were not getting a justice - antonin scalia's -- there is every prospect he will be there for another 30 years or more. and if you have other retirements and i do not think that ruth ginsburg is going to retire until she is on life-support. but i think that there may be other retirements. kennedy is rumored to retire

and donald trump will have another nomination and there is every prospect that the nominee would be confirmed by the senate. yes, sir? [inaudible question] >> i think it may vary from issue to issue because it said here was kennedy appointed by ragan and yet he was the decisive vote in the gay marriage case. but he has been a consistent opponent of gay rights. so that is kind of a political issue of his own. just as antonin scalia was a consistent opponent of gay rights. and if you have any doubt about that i do not know what you are smoking because in the argument of the gay marriage case, a man stood up in the courtroom and said you're all going to roast

in hell for this. and he was dressed the part of him. as they dragged him out, antonin scalia leaned over the benches that you know i find that rather refreshing. [laughter] antonin scalia believed in the devil, he said. [inaudible question] >> these are all highly qualified, highly intelligent people.they are highly experienced people which is perhaps the most important factor. but you had all of the qualifications and mary garland. so why was he blocked? he was blocked because of political reasons. and why did neil gorsuch get in week because of political reasons. >> as political as they are is not all intellectual political factor? >> some more and some less but i think they would all qualify

under any standard of intellect and integrity. another was a big flap about clarence thomas who was the furthest right of all of the justices and said he believes in natural law and natural law means a lot of things but to a lawyer it means that you find a basis to decisions other than what's in the constitution. and for example, the right to bear arms he said was a fundamental right which was given to citizens before the constitution was in the declaration of independence and part of the right of life, liberty and the pursuit of happiness. that sums the constitution. you have to look about neil gorsuch because he studied natural law at oxford on a marshall scholarship. and under a man named john finis who believed in natural

law. but i think that there is that question about that but he is undoubtedly a very bright jurist. it is just that i don't know what motivates him to come to the conclusions. [inaudible question] with no religious backdrop. it seems, that is my first question. isn't it a false equivalency. antonin scalia famous tate is god. so therefore i justify my views biblically. which really - >> he never said that judicially. >> can you repeat the question? >> i think the question is that is there something different between antonin scalia's

original is in which may be based in his religious belief and burgers original-ism. i don't know that berger was in her was a conservative.and which is not based in religious belief. first, scalia - >> one justify through religion and the other through an original interpretation. >> antonin scalia never justified on opinions on capital punishment. he in speeches and articles and comments to his biographer, he justified it on the basis of religion and he kept saying, you cannot separate me from my catholicism because it is who i am. now, i think that he did say that if there ever came a time when of course there was duty

under the oath of office that conflicted with his oath of office but he resigned but there never was a conflict. [inaudible question] can you talk a little bit about that in terms of his - >> i think is an institutionalist. i think he has deep feelings about the court and its place and the constitutional system. while he's a lot during his confirmation hearings, it was nonsense about his being impartial umpire and is going to call balls and strikes and no one goes to the stadium to see the umpire. they go to work the players. i don't know what he meant but john roberts said that he deplored, is a terrible word these days. they lautner error. he said that brought the court

into disrepute. i think interestingly in the obamacare case, and he clearly did not like obamacare and he clearly did not like the statute and he thought it was unconstitutional, he was willing to say this under the taxing power because he thought otherwise they would be invalidating a signature piece of legislation of the new obama administration. he did not want to put the court in that position. so the court really has to depend for its legitimacy on public acceptance of the decisions and polls show that when the court's receive copy of court of law and interpret the constitution even when people disagree, they have confidence in fort and confidence in the rule of law. but when the court is perceived

as being partisan, that is the dirty word. then the city of no confidence in the court, no confidence in the rule of law that are just like politicians. that is my book! another example is that it is a court of not of law but of men and women is that the case on late-term abortion in 2000. at that time justice o'connor was supreme court and they voted 5 to 4 but it was an exception if it was in the life of the mother. then o'connor retires to be with her husband was in an old age home and she is replaced

first by, bush wanted to appoint someone else and then eventually by justice - so he is on the court, exactly the same facts, the same statute from another state. and exactly the same issue. and 5-4 they hold that the ban on partial-birth abortion is constitutional even when it does not have an exception for the health or life of the mother.so changing justice changes the law, question is what is what anyway? seven years that verruled the decision. yes, sir? [inaudible question] >> he was a federalist the first decision was in judicial review.that is to try to order something, jeff is he who was a republican but refused to do it.

so this is something that happened from the very beginning of the supreme court. >> yes. there were instances that you can save history. and what is so fascinating is that there were many issues that the framers of the constitution did not agree on. one of them was slavery. they were all slave owners. and they could not agree on that so they left it for another day. and the other issue is what the supreme court was supposed to be doing. and nowhere in the constitution does it say that they have the power of judicial review. nowhere in the constitution does it say they have the power to declare an act of congress unconstitutional and of the president unconstitutional. so with that power from? hamilton was killed in a duel in 1804. but before he then had a justice john marshall. he needs nothing about this opinion what he sees the power of judicial review and said for us as judges, of course this is what was meant to give the

power to declare what the law is. now that was the starting point and that is wendell started. hamilton said well, judiciary is the weakest branch of government because they have no army. he knew a lot about armies. and they have no money and he knew a lot about money in the first secretary of the treasury. he said what is the power? it has to come from the fact that they have lifetime tenure and that they are independent. so from that of the federal dignity of medicine arguing of the power of judicial view but they did not put it in his input and have attached. and this had nothing to do with the constitution he was having a good time. but the power of judicial review became established and then you have a succession of cases. of course as the court of last resort, inevitably, there was a political component because they decided not only in the

case before them but deciding for the future. and just as jackson said years later, we are not final because were infallible. we infallible because we are final. and i don't know, i probably did not answer your question. if i didn't it was deliberate. >> how will the travel restrictions, so-called muslim band plan to be assuming it will. >> i don't think you into the case. percival is the ninth circuit on eo to executive order two. the ninth circuit did not base that on the constitution. they basted on the immigration and they said that under the immigration act he did not have the power to ban people based on their nationality. and not have the power to discriminate against them based was interesting to as evidence

of what the policy was. however they did not go so far as to say we can find enemas against muslims from what he said in the campaign. even after the campaign.i do think they will take the case. there is no separation of powers and security know the rest but i think he ever did, they could clearly find that they should find an intent against muslims based engine can find that there is no overarching national security interest at all, we've never had his from nationals of any of the six or seven of the list.

where everything and so what is a rational basis with, what kind of opaque cases in other cases, they have shown lately and willingness to look behind national security and that is the the court was assigned to. there was this japanese americans were receiving radio signals, never him as to what to do to establish alliance and this was by the military. so i think that the skeptical of the national security claimant think that they would easily see through the claims under the second one which the white house is just an extension of the policy of the

first quarter and i think it was stricken down. they organize the constitutional question which i do not agree with. i think the ninth circuit to the embarrassing thing out. yes? >> you brought up that carhart and ãis a very clear-cut case. quickly viewing such a will will be hurt again because it actually takes the health of the mother on the picture is quite viable issue. but, why was donald trump spin and why didn't they go after obama's ban on iraqi citizens for six months that would arguably be the same thing we. >> i'm not. question is. maybe it's not.. west obama

>> abortion including iraqis? could you place on the abortion issue because there were similar cases and because the health of the mother is still very relevant that she robustly is, future? it is to cases is identical with the medical facts, there is unchanged.so is a classic case of avoidance is in seeming appointment as they that will competent in the future and part two was developed in this case because the obama a travel ban on iraqi citizens for six months and how is it that was challenged in court to. >> well, i think it only related to a russian citizen in

involvement and patient, sometimes muslim band which was plainly the preference of particularly preference to christians in those countries so it was certainly religious purpose which obama's failure is not. i think, first will not challenge. i do not know what can. i do not know why. but the misapprehensions of visit. he says cases case and there was do think that the people,. there is pending in congress, a

national teammates.and all cases and that is an active, then it will be a constitutional attack and the issue of roe versus wade is still in good flow with the play. and i think also several centerpieces coming from the state where there were serious restrictions on a woman's portion has to be done but needs certain standards to be performed by a dr. who practically needs a nobel prize with others may differ. >>. there has been talk lately

about breaking up the ninth circuit. do you think that would be a lower bar for congress clear then packing the court? do think impossible to change the boundaries of the ninth circuit or any of the circuits fully. >> i have no idea what the congress is likely to induce. it would take an act of congress to do it. and i know. you will need to agree that the republic is to prevent that happening. i think obviously it would be an intent on the independence of the judiciary and the hope of lifetime appointments that you have a democrat and power point justices and judges and the judge's of the lower courts mostly appointed by democrats, democratic presidents. clinton and obama and their deciding cases and that is what it was intended and you try to dilute the power by breaking up

the circuit and appointing judges is just, it is quick. >>. [inaudible question] he would put all of the present judges and one division of the night and that he would want to appoint his own judges to another division of the ninth circuit. five you decide which cases going to him? i don't know. but certainly the aim of the legislation would be to undermine the independence of the judiciary and undermine the constitutional system. and that itself might be unconstitutional. there will be a lot of litigation. it is so interesting about the era of donald trump is the pushback against him seems to be coming from a free press, from a resilient society, from

a resilient economy that seems to ignore some of the worst aspects of what he says is policy and that the typically ports. because the dictation challenging these various things that he wants to accomplish. yes, sir? [inaudible question] >> no. it just will not be sufficient agreement. we are in a deeply polarized country. we live in a polarized country. that is why the supreme court ironically enough, before they go into conference every day, each justice shakes hands with all of the other justices and so that is the total of 36 shakes if there are nine justices. and it is supposed to symbolize a sense of shared purpose and a commitment to the constitution.

but the fact is that they are deeply divided. in the country is deeply divided. congress is divided, our people are divided. and the media are deeply divided between fake news and all the other news. i think given that, it is impossible to get the consensus on almost anything that would be necessary for new constitutional convention. >> we've got the periods like this before and that they disappear. and in the past, how have they, half of the extreme politicization to less politicization? >> i think it grows out of the doctrine of - is a lawyers term meaning that judges should stand by their decisions.

neil gorsuch said it is the environment in which the judge operates. so it is true coming within the text and it is true that you look at what the original understanding was. must also look at the decided cases. now the clarence thomas says that he will overrule any case in his view that is contrary to the constitution. so the politicization continues. but if you have judges like antonin scalia who may not necessarily agree with the outcome, he said he would overrule murmurs went but he overruled other kids that were malicious but other cases he would follow the decided cases because it is easier and it is correct and you have some reliability in the whole judicial process and some faith that the dissenting in accordance with law of the decided so as long as they continue to do that, court of law more or less knowing that

they will always be areas of majestic ambiguity where is going to. it goes on. >> the politicization has been rather subtle i think. maybe with the exception of some of antonin scalia in the past been in on neil gorsuch not say i am going to fight with republicans and ideological issues but what is preventing the justices from doing so? what if it became overt? what if the -- >> only one supreme court has been impeached.that was samuel chase. he was appointed by george washington. he was acquitted in the senate even though he was impeached.

there was a bill of impeachment and what was the charge against him? he was too partisan. since then, no one has talked about impeaching. they talked about impeaching justice douglas but no justices has ever been impeached. so i don't know what he is likely to do.i think he is a good enough lawyer to find as much legal support and positions as he possibly can. i do not think he is just going to be a republican - though he has tremendous basis and what they did to his mother and what they did to him to be a very partisan justice. they take very extraordinary human being to ignore those experiences. yes, sir? >> justice, i would like to find out your thoughts about

justice thomas. one on one he is very open and outgoing. and very well-liked. when he is unusual in that until very recently his position is taken asking no questions whatsoever. could you speculate it is hard to know what is in someone's mind. can you speculate what or why he was doing that? >> i have met with him and i have talked with him and i have heard him speak. i totally agree with you. he is personable, outgoing, is a very interesting man and his book, my grandfather's son, which he describes his life up until the time he was appointed to the court. he calls himself an ordinary man and extraordinary things happen. he came from a dirt poor, terribly disadvantaged background. he was discriminated against

unquestionably. he hated yale law school. he thought it was awful because the court denied he was a product of affirmative action that although he undoubtedly was. and he could not get a job when he graduated from there. he had a friend there who became attorney general of missouri that gave him a job. he has always been angry, he is always been resentful and i think even more so after the anita hill episode. so much so that it was only about two years ago which was i don't know, 15 years after the anita hill episode.his wife called anita hill and left a message saying will you apologize to my husband for what you did? should it bear so much anger and so much hurt after all of this time? and i think the whole episode was unfortunate. and i do not flog them for any of that.

what i do flog them for our cases like one which was a black defendant in a capital case. where the unusual thing happened. they had access to the files of the prosecutor and they found that the prosecutor had challenged black jurors off the panel. and he was sentenced to death. and the supreme court finally refers 8-1. and i think that the job of being a judge, i think this really refers to neil gorsuch and a trucker case but it is to look at the outcome that whatever is overarching, wherever that leads them him or her, and the outcome is harsh, in this case the outcome that

he had advocated was totally against the constitution. and as chief justice roberts wrote, for the majority to challenge based on race and that is more than the constitution allows. that is affirmative action. -- yes, ma'am? >> i think so this is the first time the partisanship will increase. what environment or events do you think need to happen to prevent that or have that at least decrease? >> i think there is a chance, not a great one that the composition of the senate can change and in two years.

there is perhaps a greater chance that it can change in four years. so that is really the only possibility where you can have some pushback against the conservatives who will be in the appointing authority. because even if donald trump goes before that timeframe, and he well might, i would think that mike pence and whoever succeeds him would continue to seek to appoint judges who have conservative political views. after all, mike pence wanted, when he was governor of indiana wanted to hold a christian burial for every aborted fetus. he wanted to rename interstate 6090 antonin scalia expressway. so he is a lawyer and i think

he is very influential because donald trump does not have the legal background. and i think that he will want to continue to point a hard right judges. yes, sir? [inaudible question] >> antonin scalia vota with the liberals and it is not well-known. in 15 percent of cases. my friend, david wrote a book called antonin scalia's unexpected opinions. it is a very thin book. but he did particularly vote with liberals.

he did in a flagburning case. he found that that was form of symbolic speech and protected by the first amendment. even though donald trump wanted to deport anyone that burns the flag. so i think that it is an example of some decisions that were unexpected. i think the obama care decision was expected. think kennedys positions which are normally quite conservative on gay-rights was expected because in lawrence versus texas and other cases he should based on his personal experiences, had some empathy with gay aspirations and gay rights. kennedy unexpectedly and voted consistently against reproductive rights. in the last couple of cases has gone and voted with liberals and gone the other way.after

all, kennedy is in the majority in 98 percent of the cases. he has been the swing voter in the court. this is why he may not retire. sometime very soon. so those are the ones that i can think of. off the top of my head but i am sure that there are others. other justices like ginsberg, breyer. much more predictable. yes, sir? [inaudible question] >> i did not say that. >> do think it is possible for sometime in the future an executive to simply ignore a supreme court decision and what will be the implications? because the president has you know, executive function, not just military but policing,

state department, homeland security, all of those things with control. would it just be like them to do something that is countering a judicial decision? >> i think if one present agenda, actually andrew jackson did that. and he said that john marshall has made his decision i will let him try to enforce it. but eventually that was in one of the cherokee indian cases but i think eventually they came around and jackson came around and he did enforce the decision. we have had a respect, a deep respect for the rule of law in this country. which demands certain things of the president. demands things of all of us. and no one, neil gorsuch said this many times. no one, including the president. no one means no one is above the law! so if the courts decide that something is unconstitutional,

if the courts decide that something needs to be done if the issuing order, or an injunction, of the executive branch is compelled by law to carry that out as consistent with the president's oath to preserve, protect and defend the constitution. and you will see that even this government and lower court cases on the travel ban with which it disagreed with respect to the injunction, and has maybe slowed down the process in dragging feet but it is certainly it would be a constitutional crisis of the president justify the supreme court or defied the courts and did something else. >> thank you very much. >> thank you! [applause] >> authors like to sell books. and the book is in the back!

coincidentally. >> which i will be happy to sign if anyone wants me to.>> thank you. >> thank you! [inaudible conversations] >> every month booktv on c-span2 features an in-depth conversation with a nonfiction author about their writing career. join us on september 3 when our guest is eric - the latest book, if you can keep it. others include amazing grace. and his best selling biography

--. and the year of voting dangerously. november 5 michael lewis will talk about his books including his latest, the undoing project. he has also written the big short and the new new thing. join us for in-depth this first sunday of the month noon eastern. that is booktv on c-span2. >> now, booktv's monthly in-depth program with author and attorney ms. hall. she is the author of several books including liberty first, a path to restoring america, essential stories for junior patriots and -- >> we have chris and -- how is