2014, 2015 terms including health care. the dr. bar section on courts lawyers and administration of justice hosts this 90 minute discussion. good afternoon. thank you all for coming. and welcome to the 27th annual view from the press gallery sponsored by the d.c. bar on courts lawyers and administration of justice. i'm arthur spitzer, i work as the legal director of the local office of the american civil liberties union but i'm not wearing that hat here i'm wearing my hat as a former member of the steering committee of that section of the bar. our thanks first to arnold porter for graciously hosting us

again this year in the porter room and thank you to marsha tucker the probono reporter for making the arrangements. thanks to c-span for covering us again this year. if you have a problem with the backch your head being on c-span take this opportunity to slither off to the side. you'll be able -- it is not being broadcast live. can you watch the video on the c-span website probably starting sometime tomorrow. and many thanks to my former aclu cleg fritz mull houser who is the executive producer of the show coordinating the many requirement of the d.c. bar arnold importer and c-span. our main sponsor the section on courts, lawyers and the administration of justice concentrates on matters involving court administration and rules, the relationship between the bench and the bar and all aspects of a lawyer's relationship to the profession

such as ethics, discipline and admission standrds. the section focused on improving access to justice for everyone in d.c. it is one of 20 sections of the d.c. bar. 15 other sections of co-sponsors of today's program. i won't name them all. they are listed on your program. the section carries on most of the bars work and as can you see from the list they cover most areas of legal practice. if you are a member of the democrat bar and november involved in a section we encourage you to become involved. if you are an aspiring member of the d.c. bar we encourage you to get involved after you graduate law school in a couple of years. and on a personal note, if you are not a member of the aclu, you can sign up at www.aclu.org. we're privileged to hear from a panel of journalist covering the supreme court for a total of 112

years. i'll introduce them in order of seniority. on my right is tony morrow of the national law journal and american lawyer media. he's covered the court since 1997 for gwinnett news everybodity and usa today. he joined the washington times in 20 -- i'm sorry the washington legal times in -- [ laughter ] washington times doesn't cover the court and continues as the correspondent after it margined with the national law journal in 2009. david savage next to him on the right has been with "the los angeles times" since 1981 and covering the court since 1986 n. recent years he's been covering the court for the chicago tribune. he's authored the latest edition of congressional quarterlies guide to the supreme court. court bis cune is at reuters news and covered the court since

1989. her most recent book breaking in the rise of justice sotomayor published last year and the author of biographies of scalia and sandra day o'connor. before joining reuters in 2012 she was the supreme court reporter for the post and washington today and she is on washington week with glenn eiffel. this year she was a finalist for the pulitzer prize in explanatory journalism and i'll ask her to tell us about that later. on her left is the george baesh joining "the washington post" and since then the national political editor and the metropolitan editor but decided to return to reporting in 2005 and began covering the supreme court in 2006. bob was planning to go to law school but changed his mind after taking a journal i678

course as under undergraduate. his bio said it didn't occur to him as it did to others that he could do both. but perhaps a better explanation is that he realizes he didn't need three years of law school to not practice law. and on the far -- on my car right, adam lip tack who took over "the new york times" beat seven years ago but has a longer history with the times which he joined as a copy boy in 1984 after graduating from college. he then went back for a law degree in 1988 and in 1992 joins the times legal department advising the paper and representing it in legalization in defamation and similar issues and then became a reporter covering legal issues and has appears in the new yorker and vanity fair and other

publication. this spring adam served as marshal of the supreme court of la mancha with chief justice ruth bader ginsburg presiding to hear an appeal to manage the affairs of don kwix oaty and your program lists kimberly atkins who was with us last year and e-mailed me this morning to say she was home sick and unable to leave the house so we'll be without her this year and hope to see her again next july. this is not a panel of litigators analyzing case law. there are a lot of those that you can go to. although we'll talk about some case law. but our plan is to talk about the court as an institution and a collection of individuals and about covering the court as journalists. i plan to save some time at the end for questions and answers. there are two mics set up in the

audience and so if questions occur to you during the program please jot them down and i'll give you a heads up when it is time to go to the mics. finally, there should be -- no i was going to say there should be evaluation forms from the bar, but there are not. but repeat the reminder you got just, check your e-mail, you'll get an e-mail from the bar asking you to fill out an evaluation form and we appreciate it if you would. we read those and we've made changes in how we run the program based on comments from past years. so to begin, last term ended with hoppy lobby which was a very complicated decision with multiple issues and multiple opinions but this term ended with what seemed to me much more straightforward cases. same-sex marriage, yes.

obama care yes, dissipate impact, yes. confederate flag license plates no. so let me ask the panelists am i being flip about that or did you find the bigger cases easier to report on this year easier than last year. jason? >> well there were a lot of big decisions and they were fairly easy to report. there was not a lot of flexity, not a lot of divided votes. it is very nice because in this era, adam and bob and i talk about all of the time, we have to file stories within a few minutes, particularly with the health care gay marriage. i've gone it long enough that i remember at a time when i could read the whole opinion, listen to the justices, read the dissent and then thick -- now you have to move quickly. so fortunately the out comes

were clear, the holdings were fairly similar not a lot of complications and we were all writing within ten minutes to we're grateful to the court. >> another thing that i thought i noticed about this year that seemed somewhat different was how much the front-page decisions were spread out over the month of june. for the most part, it was sort of one leading decision per decision day. on june 1st was the abercrombie and fitch head covering june 8th was the jerusalem passport june 18th was the license plates june 22nd was the california raisins and then obama care and same-sex marriage on the same day and some times there were same decisions on the same day and do you think that was complete accident or do you think the court has some interest in spreading the

high-profile decisions around to make your job easier or to get better coverage of each decision tony? >> i think the court is not very interested in making life easier for us by spreading things out. i think the only exception may be that they decided not to hand down the same sex marriage and affordable care act on the same day. i think that realized our heads would have exploded and they didn't want to see that. but apart from that, they are quite adamant about saying they just released the opinions when they are ready and i just don't think they spread it out. there is the classic story of the prior chief justice william renquist after one day, when we all got seven or eight opinions on the same day, hundreds of pages, we kind of went to him

and -- the chief and said could you please spread them out. and he said, well why don't you just save some for the next day. it shows great understanding of how journalism works. but i think the new chief may be a little bit more sensitive to this, but maybe other people have different views but i don't think they really care that much. >> i thought the chief tried to have a little fun perhaps at our expense at the end of the last day, there were three decisions that were big and all of which we knew we would be writing about when he finished. and he said i have two retirements to announce and i thought i was going to throw up for a minute but it was justice scalia's secretary and someone else so it wasn't quite what would have really made our day horrible. >> but that last day was no picnic so we this three big decisions and they decided to take a big affirmative action

case and in the afternoon when we thought they were done they decided to let a bunch of abortion clinics in texas stay open so that is five legit stories. >> what was interesting was the very biggest two cases didn't come on the very last day which is typically is the pattern. in fact, i can't remember another term where the case that was most awaited didn't come at the end. hobby lobby going back to 1992 the casey ruling comes at the end, the hardest toughest case does typically come at the end so there we were on the thursday of last week getting the obama health care law case and then friday getting same-sex marriage and fortunately everybody up here was ready for that but we had sort of mentally thought if they are going to end on monday, maybe that will end on monday. so it goes to show we need to be ready no matter what and sometimes it will come before the last day. >> it feels like the grand finale at the fourth of july

firework where there is boom boom, boom, and then boom boom boom boom. >> last year many of you reported and we talked here about how the justices had a great proportionate of unanimous discussions than in deck ates, about 75%, and dissenting opinions from fallened from 52 to 31 and justice scalia was making his promise to try to be a unifier and this time unanimous was were down, 67 dissents twice as many, and 5-4, decisions were up 41% so is the chief losing his magic powers or what is going on? bob? >> i think every term is different. and i think that is what we learn all of the time. the issues presented to them are what really is controlling about

how they do things. we also had said last year too even though there were unanimous decisions they weren't really unanimous. they were unanimous in the judgment but not unanimous in the reasoning. and that the court was justice -- just as divided by ideology as this year. so i think it is what is up for them to decide every year. >> if the justice were to take the same kind of cases each year we would have a better time measuring them year to year. but the statistics can be misleading just like so many people talked about there was a liberal tilt this year it was the nature of the cases. next year we'll be up here saying the conservative tilt again. it is all what is before them. and as bob mentioned how broadly they will rule. if they are going super narrow, they will get more unanimity and

if in the dissent and concurrences, you'll find more splits. >> and there is talk about the liberals being more disciplined this year and falling in line with a single majority or dissent and not having a lot of concurrences. and i think that's -- that was notable but i think most justices don't feel that way. justice salito once said -- i asked him why he writes dissents when you could have have just joined or why he writes concurrences when he could have joined the majority and he said it is like somebody comes to your front door and asking you to sign a petition. would you sign a petition that you don't really believe in. and so i think they all feel like they have a responsibility

to say their own piece about important cases. >> and tony you think that goes for the same-sex marriage case? there was a line in the scalia dissent, even if he wanted to achieve that out come, he would hide his head in a paper bag before joining theary assimilations of kennedy. >> i was going to ask about that. in justice kennedy's majority opinion, he talks about -- he squalled the institution of marriage and he says it is a unique fulfillment to those who find meaning in the secular realm and it is essential to our most profound hopes and aspirations and just justice kagen who never been married signed that opinion. i wonder if she thinks marriage is essential to her most

profound hopes and aspirations. justice sotomayor who was married for a few years in her 20s signed that opinion. and what i thought was the most interesting about that foot note was not the reference to putting his head in a bag but even as the price to be paid for a fifth vote he wouldn't join such an opinion. what we've aerlz heard from the justice is they don't trade votes so was he lifting the curtain on the wizard? >> no way. because kennedy is the one who wrote it and kennedy would have been the fifth as a more conservative member, but as we all know, this is kennedy's area of the law. kennedy was not a reluctant fifth to sign on to -- with the liberals on gay marriage. and actually, didn't we just -- justice ginsburg at the american constitution society discussed the vote trading horse trading

idea and said it doesn't happen, at least among the liberals. >> can you imagine, art, where they join the kennedy opinion in full and write separately and legally and among more protection principals in concurrence. >> but nobody did. and isn't that curious. there were no concurring opinions, talking more about equal protection or talking about how marriage maybe isn't the only way to find personal fulfillment. >> maybe they took the advice that justice ginsburg talks about all of the time, that her mother-in-law gave her when she got married, that sometimes it is helpful to be a little deaf. >> i think they may have felt since it was a 5-4 decision already, something as momentous as same-sex marriage you would like to have as many votes as possible. so why dilute it even further

with concurrences or half approvals. so let's just keep our mouths shut and stick with the majority. >> there were a lot of odd lines in reading through that opinion. one that caught my attention that stopped me, john roberts said in the dissent, if this institution was good enough for the culinary bush man and the cath argenan and the as mecks who are we to reject it. i thought this is for a colbert or the -- the aztecs? i thought they were known for human sacrifice, not for human family values. >> it turns out you can cite international human law. >> so speaking of expressing one own's opinions justice thps

cited 37 opinions, 11 concurrences, he is obviously a believer in not signing a petition he doesn't totally agree with in expressing his own views, so i wonder, do you have any theories on why is he trying to make up for never asking a question to show he is awake or how do the separate opinions effect how you cover the cases? >> i don't have a great theory on any of that. i do think justice thps has been a contrarian that likes to go his own way. one of the strongest things you remember from him about 20, 25 years ago. he viewed himself proudly as i go my own way and the entire time he's been on the court he's devoted a lot of effort, almost every year he votes some long separate dissent making a completely different view of why the voting rights act is wrong or whatever or writes the

separate short dissents. so i think it is very much in keeping with him to sort of say i'm going to have my own say about this and don't see it the way the rest of them do. >> i think it was interesting to, he often writes to repeat what he says in the past, he doesn't think something is constitution and he's not going to give up on it and make that point again i think in hopes that others will eventually come to his point of view. it is kind of interesting, in the affordable care act, justice kennedy joined the majority and didn't write, remember i think this whole act is completely constitution. but i'm going along with this decision so -- >> in addition to writing dissenting and concurring opinions, sometimes justices also express their dissents and concurrences orally. i think there were four oral dissents this year which is

about average. so those deserve a purpose in your coverage of the case? do they change your stories, do they get more column inches for -- from your editors? is that something you focus on? >> i think their worth noting for sure that is why some of us go upstairs for the announcement of the opinions in case the dissent is read. and it adds some drama. you also kind of get to see the demeanor of the justices. and i think the last day of the term, when they announced the death penalty case, there were two dissents read and then justice scalia wrote -- read from his concurrence which -- a lot of which was responding to

breyer's dissent, and those were all unusual and they were so bitter and deeply felt that it was kind of an awkward feeling in the courtroom. and there is just no way to capture that if you are not there. so i think those -- really are important to cover. >> well you get a picture of what the individual justices think the importance of the decision is. because they have to condense it. it will be a 38 page written decision and they figure out what do we want to read from the bench and a couple of justices, including scalia will give us the written rendition for later, which is very helpful. and i think that tony is right, you get to see the drama of it and you get to see the highlights. and you can see whether a justice sitting next to the one

who is reading pulls back or doesn't. and one of the better moments of the announcement in the affordable care act case came when john roberts read for about 10 minutes saying the law was withheld and did it with vigor and confidence this time around than he did in 2012 when he read the decision and we talked about it in the end of july of 2012 the chief was on this zig zag thing, this is what i don't like about it and this is what i did, and it was complicated the way he we have together the completing rationals the way he upheld it in 2012 and there was his tantsy and sheepishness about had you he presented it in this courtroom that day. and this time you could hear the conviction of where he was at and he picked up the sixth vote from kennedy for the majority and he said congress isn't neat

and what they wrote here isn't artful but that is not why we are here and then he finishes up and then here comes justice scalia and as you know they sit by seniority and he trashes what the former chair and then he reminds what the former chair had done and he said he might as well call it scotus chair and that is when the chief breaks a little bit of a grin. because hey, give scalia credit for something colorful but that is about it. >> i looked at the way several of you covered that case in the next day's paper, and they were somewhat different so let me ask you a question about why you chose to write the way you did.

david, in the very first sentence of your report, you say, the first half of the sentence said the supreme court cleared the way for oklahoma to continue using the lethal drug cocktail, two liberal justices open the door to what could become a historic challenge to the death penalty. bob, you didn't get to the dissent to the fourth paragraph of your coverage. and adam, you got to it in the second sentence and ended the story with a story with a quote from justicealito and the other two -- david ended with more from the dissent and bob your story ended with several instances of botched executions which one might say leaned more

tor the dissenter view than the majority. so why did you make those choices? whoever wants to start? david. >> well, i'll go first. that is one of the cases where there are clearly several different ways to write the story. there is a 5-4 vote. oklahoma wins. the lethal injections can go forward. justice breyer reads and delivers a long dissent saying from him for the first time joining with ginsburg saying that the death penalty is unconstitutional and i thought it was an interesting formulation and he said what we've learned over the last 20 years is there are people on death row that are innocent and wrongly convicted and it takes 20 or 30 years on average before anybody is executed. so he said we could speed up the process, but then increase the likelihood that we're executing an innocent person or allow these appeals to go on

forever in which case there is no actual death penalty system in this country. and so i've concluded it simply can't work. i thought it was an interesting dissent. i went back to the office, i went -- the way the web works, you get to write two or three different stories during the day. i went and wrote oklahoma wins. and i went back to the office and i said this case will be more interesting and significant because it sets the stage for a much broader attack on the constitutionality of capital punishment which may take two or three years out. so to give a long answer to your question, by the end of the day i tried to keep both in the lead, and that is why. >> so i think that analysis is exactly right and the setup of my piece is sort of in the same order. it is a significant enough

question, can they use a particular execution drug but that is not a decision for the ages. it did give rise to a very interesting and bitter dispute between the five judges the majority, and the four in the dissent and the fact is we have seen liberal justs saying i'm not going to danger with the death any more and that is something you put up high and then you asked why i ended with alito, i have to say they have acknowledging what the majority is doing and alito not always quotable but in this case he did say something succinct that moved off the crimes for which the three oklahoma inmates were put on death row for but that was my thinking. but there is no perfect, i deal way to do it. there is no perfect way to do

it. and when i look at any story in the morning and david's story and bob's story, for most stories, they look alarmingly similar. you might think we cluded. they have a similar lead and quote. newspaper work in a way is a fairly narrow craft. >> wouldn't you be concerned on the out come of who won and who lost. >> it has happened. but the thing is they are both wrong. because what you really found from that is there were seven justs who didn't question the constitutionality of the death penalty. and what ip thought was stirring in this was that it was a narrow but i think the end of my lead wassin equivocal directive that states could experiment with ways to execute

and the courts weren't going to get in the ways with that. i thought it was interesting that the other two liberals didn't get in the way with that. i don't have a good answer for justice sotomayor who i think is the most questioning of the death penalty and whether it is fairly carried out. many it means that it will mean more later if she does that. maybe that would show some sort of momentum rather than it is just a minority of the justices who feel that way. but i thought that was an interesting part of it too. >> now that i hear your reasoning, sooner put my head in a paper bag than -- >> i was going to respond to something bob said, justice alito made a difference between breyer and ginsburg and sotomayor were saying and he said i leave it to how different they really are.

and don't write our daily stories these two do turly does that, and i did a separate on just these two senior liberals calling for reexamination of the death penalty and i did have to be aware of how long i've been covering this because i remember in 1994 when harry blackman said i shall no longer tinker with the machinery of death and in the late 80s when it was marshall and brennan alone just dissenting from capital punishment saying they were categorically against that. so that is the last time they were against that. so againstsberg and breyer hinting they would go that way and just hinting that they were. >> and they said that in the last lethal injection case too. >> it wasn't until he got off the bench that he called for that. >> and bob said why not

sotomayor and kagen but i think if for 20 years you were reviewing all of the time last-minute stays for execution, voting on these things and being pulled out of the opera, there is no rime or reason or who lives and who dies, at some point you get a queasy feeling in the pit of your stomach. >> i agree with that. oren we arewood wrote a good piece about that. and i sent him a note and something that i thought would catch your attention and suppose year after year you have had to been having to approve last minute questions or question about an appeal on a death penalty case and you said there is no grounds for further appeal and then you learn maybe reading in a newspaper or whatever that that fella was innocent.

i would -- to speak for myself i would find it -- wow! i feel as a justice, it is our responsibility to get these right. imagine, if you then learned, you turned down appeals who said we need more money to investigate this or look in that and you said there was no grounds and you looked at it and read and turned it down and then you learned the person was innocent. i would have thought i can't -- if that happened once and then again, i would think i can't trust the system. do you want to the way for somebody to be executed at 11:00 at night when you've had the experience last year and the year before that and the year before that that some of the people were innocent. so i think that is one of the things that might change your view over time. >> so, speaking bob to your question of why justice sotomayor sotomayor, i wonder, she wrote such a strong dissent on the

merits, about how what would be done to the prisoners was more or less burning them at the stake, that she maybe didn't want to distract attention from that message by putting her voice with the other two on this broader question. does that make any sense? >> it could be. as i say, i don't know why she wouldn't -- you know this issue -- the oral argument in this case was the most contentious i've seen in my short relative to everyone else -- time at the court -- was really nasty. and you saw how deep the divisions are among the justices on this issue. this is the one where they answered each other and kagen brought up the burning from the inside and alito answered her and they weren't waiting for the advocates to say anything in

this. and the chief justice finally gave more time to the advocates to a degree that is unusual even for this court we haven't let you talk. and so he gave them more time to talk. and to i think there was some real bad feelings among the justices about this case about this drug and about this issue. and i think we'll see that come up more and more. >> and do you remember how it came up? you remember this, bob. this was an unusual situation, because in january, four of the oklahoma murderers had an appeal, raising the question one of them, a guy named warner was about to be executed, so on thursday night, they allowed warner to be executed with four dissents. then the next week they granted his case. they granted the case of the three remaining murderers. i thought boy, there is a way to have an unhappy workplace

when five of you let the guy get executed and four of you want to grant the case. so from the beginning, there was a real divide on this one. >> and didn't there used to be a custom of a courtesy fifth vote for a stay in these death penalty cases? did that disappear this year, tony? >> they used to call it -- >> i remember when it was called the gentleman's fifth, before there were women on the court. you need four justices to grant cert and five to grant a stay. if there weren't enough votes for a stay somebody could come over to the person wouldn't be executed while his case was going to be heard. and you are right, that seemed to have disappeared. we don't know exactly why this happened in this case. some people have said that maybe

the papers weren't properly before -- the cert papers weren't before them. but it's not -- it's not pretty to have somebody executed and -- and then giving the green light to the execution and then a few days later they grant cert in the case he was part of. >> let me ask a slight already moy substantive question do you think it made any sense for breyer and ginsburg to essentially call for people to bring challenges to the death penalty to this court? i suppose they know anthony kennedy better than any of us but hasn't he been a complete hardliner on criminal punishment issues since he got to the court. >> since the lead, he's been cutting back on kagts of people and categories of crimes that are death penalty eligible. it also goes a little bit to the

point that joe made a little while ago, that the status quo is that we have the death penalty. putting the question on the agenda is not going to make that worse from the liberal perspective. so if you can get four votes to put something on the agenda and maybe you pick up the fourth vote but you probably don't make things worse for your side. >> and what about if your view is this is a legal challenge that would be four our five years in the making. who knows who will be on the court four our five years from now. so it is not something that will change in six months but breyer was basically saying there should be a broader -- well thought out challenge to capital punishment across the board. >> i suppose the question for anti-death advocates is how do you stop some lawyer somewhere in the country from filing that challenge tomorrow that wants to go to the supreme court and has a client on death row and feels

it is his obligation to get that issue up there. i think the answer is probably you can't. >> that seems like a question for you, art? >> yes, well, we try. but there is thousands of lawyers around the country with cases and they don't listen to me. but sort of responding to my own question about justice kennedy one thing that he did this term that surprised everyone was his concurring opinion out of the blue on solitary confinement. did any of you pick that up and write about it? >> it is not out of the blue, actually. he's talked about that before. >> but it was out of the blue in the particular case. >> yeah. it was unusual for the case but a concern of his. it might be his interest in some internet issues -- international issues that he has stepped back to call attention to problems and i thought that was a example of that even though it is not

the best case for it and it did get attention in the media beyond just the case itself. >> because there is a issue where someone ought to bring a case because if kennedy is leaning your way, there might be five votes. >> and i did write about it there is a case in virginia or south carolina and an aclu attorney told me, art, in a lot of the states, people are automatically sentenced to solitary confinement on death row. you don't have to do anything bad or be particularly judged to be particularly dangerous. it is just like an automatic matter. and kennedy quoted all sorts of literary figure said this is in effect a fate worse than death. so i thought it was an interesting -- that is one of the things about this term that i don't recall any -- like so many people writing separate opinions concurrences, dissents,

taking a big view speaking to a broader legal audience and setting the stage for future cases. >> and then it gave ride to a response from justice thomas and this wasn't one of his attacks on the administrative state, it was a paragraph that said the people's living quarters are much more spacious than their victims. >> which struck me as verging on inappropriate. but did anybody -- did any of you express directly or sort of indirectly by quoting someone else's opinion about that rejoinder? >> i certainly would not judge it inappropriate. he wrote several opinions or dissents where he went at great lengths and told the story of the victim and what the victim's family -- the devastation of

this murder -- thomas' view is we're deciding here a abstract edge earal question of an appeal 20 years down the road and we've scrubbed away the victim and the impact of this horrible murder and would you be last one to say it is inappropriate to write that. it is a different, important perspective. [ overlapping speakers ] >> he included a picture of the victim in one of the cases to as part of the opinion which is part of the departure. but again, i think we're seeing different ways of the justices saying they are not just speaking to each other but to the public and calling attention to things that are important them. >> and to your question, art this is not a legaling that needs an outside perspective, the reader can call attention to the appropriateness of the remark. >> joan you wrote a story about the justices style when they

announce the decisions, for some it is an artform. tell us more about what you wrote and why that was a worthwhile story? >> well, when you're up there, the nine of them have a distinctive approach to how they want to read their opinion. and actually justice thomas, who you observed earlier, doesn't speak from the bench, when he reads his opinion, you'll get his opinion because he'll read some jokes. and they have traveled from byron white who would read a sentence and then say and you can find it in the opinion when you read it. they find a tale. justice kagen likes to talk about the facts behind the case and both she and the chief justice have sort of a nice come here and listen to me -- listen to my story way of approaching it for the spectators in the courtroom. justice ginsburg takes a lot of

time with her reading. she's another one who hands out the rendition of what she says from the bench to those of us reporters so we can quote directly from it and it adds to -- just think of the suspension in the room. we don't know what opinions are coming on what day. so when the justices -- when the chief says -- justice spitzer will announce the opinion in 1442 -- you think oh, my gosh, what direction will it take by who will read it. that happened in the texas housing case, when we knew the chief -- the chief said it was justice anthony kennedy but the suspension was heightened by which side he would take and that was unusual when he said i would side with the liberals and uphold the fair housing law. so some of the justices play along to make it more of a tale, getting to the culmination an the climax at the end with

whether they've said yes or no. >> just a post-script to what joan is saying about the opinion announcements, to what she said i think we could all agree it would be nice for the public to be able to hear them or those opinion announcements. but the court has a special disdain for that, because they sometimes allow -- they allow the audio of the oral arguments to be released soon afterwards but the audio of the opinion announcements they send to siberia and they are not public until months later when the national archives processes them. and the reason for that -- it is fairly clear. past justices and current justices have said that sometimes they hear a fellow justice announce a opinion they were part of and they think,

gee, whiz, i didn't agree to all of that stuff the opinion announcements are not distributed to the other justices in the majority so that sometimes the justices will sort of put their own spin on their majority opinion and go off script sometimes and justices then end up afterwards saying if i had known what he or she was going to say, i wouldn't have joined the majority for that reason they don't want the audio to be out there quickly and be treated by us as sort of the official summary of what the opinion is. >> i was going to say, sometimes there is no suspense when they announce them, as justice alito began one, i can't

remember the defendant's name but he said that the defendant said that he would take care of his girlfriend's two children when he sent her to be a prostitute in washington, d.c. it doesn't take a bloodhound to know how that one is going to come out i don't think. >> actually whenever the announcement is justice alito has an opinion -- >> it was clear in the death penalty cases. >> there are even instances that tony was saying that some justice said he is listening to the announcement and thinks i didn't sign on to that. there was an instance when justice thomas was announcing his own opinion and he came across a line he wasn't sure he signed on to. about synthetic drugs called bath salts and he said, i have no idea what that sentence means. >> so tony, at the national law

journal you write for annoid yens of lawyers and how does that effect and how you cover the court for lawyers and how does that effect how you cover and what you cover. >> not as much as you might think. my previous newspaper was usa today so there is a dramatic difference between the coverage there and where i am now. mostly in terms of length. when i first started at usa today, before joan went there. a 600 word story was long. you would summarize a supreme court story in 600 words and that is a challenge. but still now that my audience is mainly lawyers at the national law journal not every real estate lawyer knows about securities law or criminal

defense lawyers don't know about arisa so you still have to use plain english as much as you can. even though i can -- i can use so there are some advantages. >> what was the oddest story you had a chance to write this year? >> i think it was the saga of howard shipley, a lawyer with fully and laudner, the first time in years when the court threatened to discipline a lawyer for the cert petition that he wrote. to make a long story short, howard shipley filed a petition in a patent case, which that's already a challenge to make it understandable. it turned out that his client, a german industrialist, who was

not an english speaker, insisted on writing the brief, the petition himself, when the lawyer said, we really need to change this, he said no. the lawyer decided to go ahead and file the petition anyway. it was complete gibberish. it was almost illegible. there were acronyms and all sorts of things you would never want to subject a generalist court to. the court threatened to discipline him for it. to make a long story short, howard shipley hired paul clement who was able to fend off the discipline and the supreme court discharged the show cause order but they did issue a warning to lawyers that they really have to use plain english

in their petitions and they also can't delegate the tasks to their client. but it just seemed like an incredible story of a nightmare client telling the lawyer, you must do it this way. there was some debate about it. other lawyers said, the client doesn't rule. the lawyer has to ethically file the petition or file whatever document is understandable and you can't just let the client rule. i also had the chance to interview the client. i e-mailed him on the off chance he might be willing to talk to me. we met in person at national airport. he was on his way to germany. he said how terribly sorry he was, he was never going to write another brief again.

>> i don't remember this happening before but it happened this term was the court granted a cert petition for a guy named chen suing the city of baltimore. they are very proud of the fact that they have a very thorough process, all the clerks to go over the briefs the cert petitions and sort of check them out. you remember you know, they grant less than 1 out of 100. so they grant chen and no one was able to find mr. chen for months. they couldn't find him. i would have thought one clue was that this was an unusual situation. he said he bought his house in baltimore for $900 and they knocked it down without telling him. i always thought you know, i know prices are not high in baltimore, but $900? to make a long story short, they couldn't find him. by the time the argument came, they let go the case.

>> then he hires paul clement. >> they weren't having mr. chen back after all that. >> i talked to a lawyer for one of the legal clinics who said, we should have just said we were representing him and taken the case. the guy was gone. >> in addition to briefs that are written in sort of half german, like the one that you wrote about tony, the court, itself, has had some stuff and opinions this year that seem to be pushing the edge of legal writing. in yates against the united states. kagan cited dr. seuss "one fish two fish, red fish, blue fish," for the proposition that a grouper is a tangible object.

in the spiderman case, she cited spiderman comics and quoted from them. is the court just getting more informal sort of across the board? is kagan an outlier on this? is that sort of changing the atmosphere around there? >> the chief justice seems to be picking up a little bit in that writing style in a case that was decided monday. the case said what chumps, exclamation point. scalia is still the world leader. i think the justice made up the term jigery pokre. did that exist before? >> yes it does. >> that exists? >> yes. there is this delicious twitter feed which talks about how justice scalia might rewrite the names of children's books. the one i like in particular was charlie and the closely held religious chocolate factory.

>> justice scalia also i thought showed his age a little saying, just consult the nearest hippie. that's sort of another hashtag too. the nearest hippie. >> also showing his age somewhat, i think. >> do we have hippies anymore? >> i thought that was interesting where he did that in the same-sex marriage dissent where he was talking much more directly to -- you know, he said, don't celebrate the constitution. it was a very sort of direct message in a way that i don't think i've seen him use before and that does seem a little kaganesque, but i also think part of the answer to justice

kagan is, she is the squun i don't remember justice. she is not going to get the affordable care act decision. she has to have fun with what she gets. don't you think, day to day and week to week, telling law student who to follow, john and kagan are easy to read. sometimes they are humorous and sometimes funny. both are good writers. >> that really shows up in the first part of the decision where they lay out the facts, they leading lay out the legal decision. when you read them, you can tell what is going on which we can't always say about supreme court decisions. >> speaking of not necessarily understanding, there's a category of question that i have tried to ask every year on the panel and i can't exactly ask it this year because there wasn't a good example so i'm going to use an example from last year as a way to get the question. how do you cover, especially in

five minutes, a case where the syllabus reads like this. scalia announced the justice of the court and delivered an opinion, part one or two of which was for the court. thomas and alito joined as to parts, 1, 2-a, and 2-b [ 1 ] ginsburg breyer sotomayor joined. thomas joined. you have got three minutes to write something. how do you manage? that was from last year. that was the utility air regulation group, the epa case. >> that's the one i would like to do the rehnquist suggestion. we'll get to that one tomorrow. >> you know, you do your best to report the bottom line and then you have to parse through that. i remember ages ago, there was one of those renditions with everybody joining in part and this part and david souter disappeared. there was no part that he ended up with.

it was like what happened to him? that actually -- usually there are a couple each term like that, but not ones we need to report immediately so fast. you can take the time to figure it out. this is such a reading job. people think of what kind of reporters we are in washington, d.c. so much of our beat has to do with taking out a yellow highlighter and going through the opinion carefully. >> the scary thing is the one we all remember from three years ago in a health care case where john roberts writes the opinion that says, this law cannot be upheld under the commerce clause. a big section. another section is, but it can be held up. there is the potential for all of us to rush forward with the wrong story. there was nothing like that that i recall this year. >> i thought the thing this year that was tough and i don't know the answer. maybe you guys do. i don't think anyone knows the answer yet was the epa case of

this year where it didn't exactly strike down these toxic emissions regulations. it did say they had adopted them improperly by not considering costs but then it said they didn't have to go back and do a whole cost-benefit analysis. so they sort of sent it back to the lower court. i think until the lower court acts, it is a little hard for any of us to know exactly what that decision means for those regulations. >> the other thing about that one, we have to worry about that. lawrence hurley, who was writing it, had to figure out, because it would move a market, how much, what kind of a blow it struck for these regulations. the court, the majority itself said exactly what bob was just repeating, that they weren't actually striking them down. they were saying, go back to lower court to see if they can stay in force but elena kagan

in her dissent used struck down. so you're like h'm. but it's the majority view that prevails, not the dissent version of what the majority just did. >> in a complicated case like that which had to do with how epa regulates power plant emissions differently from how it regulates other stationary source emissions, that's about as much as i can tell you about it, how much preparation do you guys do in advance so that you sort of know the underlying law, you know how the epa went about making its regulations? how much of a head start can you get on stories, and especially in technical cases like that? >> you try to be ready in all of them. the whole point of the job is to spend months of preparation in anticipation of a few days of crazy work. the environmental cases are easily the hardest. the court tends to be less scrutable in those cases than other cases. you do what you can to get

ready. >> it always feels like final exam week in college. you spend the whole semester studying this or that and regurgitate it all in one time. the last week in june. the good thing about a case like that though is we get a chance to look at it closely when it comes up to be granted cert, and then it comes up three months later during the argument and then three months, four months after that you have to write about it. i did try to immense myself in that. as you know, the epa and clean act cases are very complicated. it is the case that by the time june comes around, you have a good sense of the bottom line. this was an unusual case in that this regulation was 25 years in the making. it was the clean air act of 1990 congress had a list of 186 hazardous air pollutants. go study them and regulate them if needed whether it is

appropriate and necessary for the public health. you wouldn't think that would take 25 years, but the clinton administration spent a long time doing it. they had the regulation doing it. clinton left office and george w. bush came in. they pulled it back. the court said, you really have to do this. obama's people came in and started the regulation. they proposed it in 2012. it is supposed to go in effect this year. the supreme court says, sorry, you should have considered costs from the beginning, try again. that's the short version. >> the other thing most of us have is help from colleagues focused on the environmental beat. my story ran along with the by line of carl davenport who covers the environment for us and they bring a specialized knowledge to the subject. >> i think you've heard all of us say is the preparation and this sort of study is what makes these reporting jobs different, i think from any other reporting jobs. i mean, i did a lot of other things.

it was rare that i would ever leave work that i hadn't talked to somebody on the phone. now it is quite common that i leave work that i've never talked to anyone on the phone because all i've done is read, and read briefs and read the decision below and try to familiarize myself enough with it that you can then ask an intelligent question of someone. but it really is an incredible amount of getting ready and getting up to speed. it is what makes the job a fantastic job in that you learn about all these really interesting issues that if you are in some other beat, you would just be doing that. it is learning about all these issues that makes the job, i think, so fascinating. >> it sounds like you almost did go to law school. >> you wouldn't like to be out covering don trump on the campaign trail, bob? >> whenever i hear about adam's downward spiral of the career, makes me think it was a good decision not to go to law

school. >> i've plainly blown it. >> people are often quite surprised to learn that there is no advanced word on what decisions will be coming down which day. just how much, just what do you know that the tourists sitting in the back of the courtroom doesn't know and when do you know it? >> all we are told is whether it is a regular day or a heavy day, and regular means four opinions or fewer, right? or heavy day is -- >> we don't even know exactly what that means. >> we don't know what it means. >> when i first started to cover the court, they would tell you, there are three decisions coming today but then they stopped because one day they said three decisions and only two came out. we nosey reporters started sniffing around to see what happened to the third.

so they shut that down and just made it more general. the court is -- not every court keeps it a secret as to which decisions are going to come out on which day. the california supreme court, for example, will give the public a day's notice or two on which cases are coming up. i have heard just two theories about why the court doesn't do this. one is they want to protect their right to pull back a decision at the last minute. so if they say the same-sex marriage decision is coming out tomorrow and it doesn't, that will cause speculation. the other one is that they have concerns that even the announcement that the exxon valdez case is coming out tomorrow, that will cause the markets to fluctuate on exxonmobil stock.

they don't want to do that although speculation could happen anyway. so those are the two theories i have heard. >> we do know by process of elimination, what's coming on the last day. they are very sophisticated people in the press room of whom i am not one, who try to game out who might be writing a decision based on who has written from that sitting. >> i would like to say one of the great things about the court that sort of goes unappreciated i think we sort of know it i think the court is one of the last institutions in washington that plays it straight and doesn't leak opinions in advance and gives everyone the same opinion at the same time and do with it as you may. over the years, over the decades that i have lived in washington with each administration, news

has become more political and, for example, the white house doesn't almost announce anything that hasn't been leaked to a certain group of reporters that will put it out in a more favorable way. every one of the agencies does that. when the attorney general is going out to give a speech on to some legal topic, this most recent attorney general and the attorney general before that i don't want to point to one administration or the other, they would say, look, the attorney general is going out to san francisco to give this speech. you know, you are a fairly cooperative good reporter we'll give it to you, but we won't give it to her or to him. that creates in my view a sort of built-in corruption in the news business. which is, if you want to be on the in and get copies and alerts

about the announcements, you have to write fairly favorably about the secretary of defense or the attorney general. if you write critical stories about him, they are going to say, well, gee, we are not going to alert you. we will alert him. and i think that creates a sort of -- i'm glad i don't have to participate in that because you basically would say if you are a reporter, do i really want to give the agency a hard time for this announcement? because the next time i'll be screened out and my competitor will get the story and i'll look bad. i think the court has this very old passion fashioned and good system, they put out the opinions at 10:00. they give it to everybody. they don't leak. you don't read it the weekend before. the supreme court is going to do something on monday. sources have told the bla, bla, bla. you never read that story, and i think it's one of the great things about the court and the way they handle the news. >> john, i mentioned when i

introduced you, that you had recently published a biography of justice sotomayor. tell us a little about that. what kind of access did you have to her? what limits about she put on that access? how did she like the book? >> this one wasn't a biography the way the books i did on justice scalia and o'connor was. it was more of a political history of how she ended up getting the nomination and how the trajectory of her rise matched the trajectory of latinos in america. i did a lot on the confirmation process and found out a couple of interesting facts including that she and john roberts had crossed paths back in '91 when she was first -- early '90s when she was first nominated to district court. weigh actually in the h.w. administration as one of the screeners. that's how they first met and also found out a little bit about, again, how she was positioned along the way and relevant to the fisher case we

have coming up, found out a little about the back story of how she worked behind the scenes and the first time they considered the affirmative action case brought by abigail fisher. so it was a little bit different. the access, she allowed me to come and talk to her. she would let me use what she said but it couldn't be quoted in terms of specific interviews with specific times the way i did with justice scalia, who when you think of justice o'connor, sotomayor and scalia, you wouldn't have thought it was justice scalia that gave me the most unfettered, ruleless access. it was a little bit of a hybrid between o'connor and scalia. >> not only have we had a biography about justice scalia, this season we had a play about justice scalia at arena. did all of you see that and want

to give a mini review? bob? >> i thought the actor who played him was astounding. there were times if you closed your eyes and listened to him, it was like you were in the courtroom and hearing scalia's voice from the bench. he captured him spot on. i enjoyed the play. my only sort of quarrel with it was i thought the setup for it, hiring this liberal clerk, i thought that she was so incredibly rude to him at the beginning that there was no way that anyone would have hired someone who had been so rude, not justice scalia. i thought the setup was a little odd. i thought it was very good. i enjoyed it very much. >> anybody else? in addition to a play we now have an opera that's going to have a world premiere a week from saturday called "scalia/ginsburg." david, you wrote a piece about them and the opera about ten days ago.

i bet a lot of people in the audience don't even know about this. >> the fellow who is running this called and said, do you normally cover opera? he wanted me to come out and write about some other operas. i said, no, i don't. i did write a story -- a lot of my colleagues have written a similar story about this wonderful, interesting odd couple relationship that they have been good friends from way back, since the early 1980s. i got a lot of interesting e-mails about this story. i thought on the one hand, one really good part of washington that you don't see anymore. they have been friends together. they are on the opposite sides politically, idealogically. they really have a warm feeling for each other. it goes way back. it is family. it is personal. they have traveled together. they can joke together. with this thing with g.w., she said, ruth's feminist friends

made fun of her. we were on this elephant. she was sitting behind me and she leaned up and said, i was told it was a matter of distribution of weight. they are really sort of entertaining together. the truth is, they have the absolutely opposite views on legal matters and it doesn't seem to change. they talk right past each other. scalia will be talking and ruth ginsburg will say, you know, that argument doesn't work. he will say, ruth, we are not going to agree on this. i thought they were a lot of fun to write about. as far as the opera, this is -- ruth ginsburg sent me this. it is wonderful to read. the fellow, derrick wang, that did this has footnoted all of this with actual citations of their statements. he has used their words. scalia is singing about, you

justices are blind, you find things in the constitution. he gets in prison for excessive dissenting. ruth ginsburg breaks through a glass ceiling to rescue him. maybe i will switch to opera. it sounds delightful. >> i think the line i got from reading your story was that the composer of the opera said that a lot of what he heard scalia saying dissenting from the bench reminded him of these rage arias in the italia opera. >> he was a music major at harvard and yale and went to law school. he actually said he was reading these dissents and said, now, here is an operatic character. >> i mentioned that i served as the marshall of the supreme court?

>> all it did was make me into a hypocrite for when i criticizes the justices for taking part in this kind of frivolousness. >> i'm not sure everyone knows what i was talking about. why don't you -- >> oh, they -- the justices are out and about constantly. one of the things they like to do is have mock trials where real supreme court advocates argue fake cases about hamlet or don quiote or whatever. this was a case where two leading supreme court advocates argued about whether don quiote needs to be committed before ginsburg breyer, and patricia molind of the d.c. circuit. you know, they're chief laps. they raise money for the shakespeare theater. i don't know what the hell i was doing there. >> you did a good job. >> yes.

>> i also mentioned, introducing you, that you were a finalist for the pulitzer prize this year. i'm sorry you didn't get it. it was for a series called the echo chamber. why don't you tell us what it was about? >> it was about the lawyers including paul clement and carl phillips and adam goldstein, whoed awe referred to. we have had so many repeat players coming before the justices. what we decided to do at reuters was to actually try to measure this. our data team went back through 17,000 petitions and isolated on 66 lawyers who had a remarkable success rate going back over a decade, we found that fewer than 1% of these lawyers had 43% of the cases before the justices and that 51 of these 66 lawyers

had very deep corporate ties. we were looking at who these people are, why they are so successful before the justices and then raised the questions of whether the justices have added a new criterion to their decisions on which cases to take and whether it goes to the merits of the lawyer arguing, not just merits of the case. so we were able to do a lot of data work. then, i went and interviewed the justices about this saying, are you leaning toward repeat players because of their skills and expertise and possibly ignoring lawyers that aren't as polished but have very good cases on the merits for getting cert granted? they basically said, we like it the way it is. we are a professional court. we like the professionalism of these repeat players. we think it is important we have the highest quality lawyering possible and across the board, liberal to conservative, felt like this is the way it should be. then, after the series ran,

justices scalia and kagan happened to be on stage down in louisiana. and someone in the audience asked and they said, yeah, that's true. we said it, we like it. we felt it was important to at least let people know what happens up there and how the truth is, your chances are better about one of these folks who cost a lot of money at the krert cert stage. >> unless they're doing it pro bono. >> which they tend to do once a case is taken. you know it's -- the cert stage is the heavier lift than the oral argument stage because you're competing, of course, with thousands of cases each term. and the justices themselves say we know it when we see it. we know a good case and we're not missing -- we are not missing issues. if it's a good, important issue,

it will be back. >> do you have a sense, joan, of what it costs to hire one of these guys for a cert petition? >> yeah. some of these lawyers, especially the group we have out there now practicing who are former solicitors general, they can charge a thousand or more per hour for the time spent on a cert petition and even to do an amicus can be five figures. so in some cases are referred to that somebody might do it pro bono if they think it's got a good chance and they then will have the opportunity to argue before the justices. this phenomena of the lawyers drifting towards certain high-quality lawyers has occurred at the same time that the docket was contracting, that they're hearing fewer and fewer cases. so the skill of these very high-priced lawyers who can come in at very, very high hourly wages or in some cases somebody might charge a flat fee, like $50,000 or $100,000 for the run-up and, you know, it varies by firm.

you know, again, they're trying all different ways to get the attention of these justices who have thousands of cases before them and at the same time they seem to be reluctant to want to wade into any areas that they don't feel are particularly sound. we didn't mention this, but i know all my colleagues know about the new process they have about re-listing cases to make sure they really, really want to grant a case. in the past they would get all the petitions and decide, okay, what do we want to grant and then they'd grant. now they are holding over that decision for at least another week to decide do we really want it because the clerks are risk averse and the justices themselves are risk averse. they don't want to take a case that they don't feel is perfectly teed up. >> and i guess they had a few experiences in recent years where they granted cert only later to dismiss it because they found some flaw procedural flaw or something like that and this seems to be a check on that.

>> right. >> i said i'd leave some time for questions. we've got ten minutes left, so those of you who have questions, i'm not going to call on you at your seat. you have to go to one of the microphones so c-span can hear what you have to say. yes. >> a deadline, and a case, first of all, do you have some systematic way of looking for words like compelling, narrow, and looking for the color commentary. have you trained your eyes to look for things like head in a bag. >> jumps right out. >> you should say who you are. >> hank wallace. >> yes. a great legal writing guru. >> it depends. there's two kinds of cases. there's the kind that you have to write immediately and there

good words to look for are affirmed or reversed. my predecessors, linda greenhouse, gave me some good advice. start with the dissent. the dissent starts to tell you what's going on. if you're looking for a quote, look at the beginning and the end of the opinion itself and various sections of the opinion. >> yeah, i think that's true. the ends of the sections seem to be where they sum up a little bit. that's the place to look for a quote, if that's what you're doing. the other thing, at the end of this term all three of us, four of us, five of us who had to write right away stayed downstairs rather than going to the courtroom. but the good thing, if you can go to the courtroom, is that you do hear a summary of the holding in the case, and so you've got that in your mind pretty

clearly. you know how the case came out. you know the reasoning for it. and so then, as adam says, when you get downstairs you can quickly look at the dissent to see what the other side of the issue was. and so it's very helpful if there is the time to go to the -- to go upstairs, let them explain it a little bit before you have to get down. but i do -- i do confess to people, i say if you've read my story online right after it happened, that doesn't mean i've read the opinion. it only means i've gotten enough that i can write this piece. >> i'll just say for myself, we're downstairs, they pass out a copy of the opinion at 10:00 and say justice kennedy has our opinion and so and so. i take it -- first of all, check the votes because that really, whether it's 5-4 or a 9-0 opinion. and then check the syllabus for the main headings, the main holdings. as adam said, you want to know affirmed or reversed. check the dissent to see whether they say this is a big decision or an outrage or whatever and then start looking with a yellow

pad for some quotable lines. usually at the beginning, sometimes at the end. at the same time, i like to listen to what in my example here justice kennedy is saying upstairs, because that helps. and reading it helps at the same time. i'd like to think in about 60 seconds or 90 seconds i've sort of decided what i should go write. >> sir? >> all right. so my question stems out of the earlier discussion with regard to clarence thomas' comments on the solitary confinement case. i feel like the -- like whether a comment is inappropriate is whether you feel it's inappropriate depends significantly on your familiarity with the legal issues and standards at play. and so my question is how do you deal with writing this in the journalistic viewpoint knowing that you're dealing with a wide range of familiarity with the law as well as knowing that these are certain things that people may latch onto. >> anybody?

>> you know, i'm not sure that kind of aside is a legal point. i'm not sure he's making a legal point. i think he's making a human point or a moral point or perhaps an inappropriate point or kind of a point that a talk show host might make. i don't know that it needs a lot of legal context for people to evaluate whether they agree with the point or not. >> the question again was about trends that you may see in the court with respect to -- like the courts revisiting the voting rights act, i think justice scalia wrote a dissent in which he would have thrown out the dormant commerce clause which goes back 200 years. so do you see any sense in the court about whether they weigh that more or less than they used to? >> the data seems to show that this court is no more activist than earlier courts across two dimensions that of overturning precedent and that of striking down legislation. only a couple of times each

term, and this term was no different. >> let me ask a final question or two about the future. i saw on my e-mail this morning that someone in billings, montana, had gone to a county clerk yesterday and filed for a sort of marriage license for his polygamist marriage relying on the decision in obergerfell. is that issue going to be before the court in a couple years? does justice kennedy's opinion tell us how they're going to rule on that? bob? >> i don't think it did. certainly the chief justice brought that up in his dissent. it went on about it to some length, i thought. will it be before them in a couple of years? i kind of doubt it. but i think that there will certainly be a lot going on in the lower courts about it. i think there is a polygamist

marriage case that's pending that would come their way before obergefell was decided. so i think we all believe that the next real round of this is going to be about religious exemptions and, you know, bakers and florists and what these state laws do that say that people don't have to perform some of these tasks that they don't want to, to aid in same-sex marriages. it seems to me that's probably the next wave of things. >> you know, the thing that you see following the court over time is that these big changes in the law are a long time coming and when only after there's been a big switch in public opinion, the two examples we talked about before was the notion of the right to bear arms back in the '70s.

warren berger made fun of that. over time the nra -- the whole notion that the second amendment wasn't about militias, it was about the right to bear arms. it became so much the public's understanding that by the time the supreme court finally took it up, it wasn't a surprise for the first time they wrote yes, it does. as you know, you've all lived through it, the whole notion of gay marriage, it would have been a surprise and a shock in the '80s or the '90s, but by the time they finally did it, it was not like new news for us. it was sort of the accepted, understood, not everybody agreed, but accepted. and that's why it's always a mistake to say, well, the logic of this opinion means that. we'll know ten years, 20 years from now what it means, but it will be a while before polygamy comes back, i think. >> famous last words. >> famous last words, right.

on that note, we have a 90-minute window at c-span and we're just a few seconds from it, so thank you all for coming and i hope to see you again next year. [ applause ] thursday, the senate arms services committee holds a confirmation hearing for the president's choice to be the next chair of the joint chiefs marine corps general joseph dunford. he'll replace martin dempsey retiring from the military after 40 plus years. that's thursday, 9:30 a.m. eastern here on c-span 3. this summer book tv will cover book festivals from around the country and top nonfiction author's books. next weekend we're live at the harlem book fair. the nation' flagship literary

event. at the beginning of september we're live from the nation's capitol for the national book festival celebrating its 15th year. that's a few of the events this summer on c-span 2 book tv. next, the american constitution society hosts a review of the major cases and rulings from this year's supreme court term, including health care, fair housing and same-sex marriage. this discussion is 90 minutes. hello, everybody! we are going to get started. needles to say, it was a term that provides a great deal of

interest to people. nice to see such a great turnout for our event today. i would like to welcome you to the american constitution society's annual supreme court preview. i am caroline frederick son, the president of the american constitution society. as many of you may know and hopefully all of you already know, acs was founded in 2001. it is a national network of lawyers, judges, policy writers who believe they should improve the lives of all people. acs works for positive change by shaping the debate on vitally important legal and constitutional issues, such as the ones we will discuss today. so it seems that every june i stand up here and i remark on the blockbuster quality of the supreme court term that has just ended. this year, of course, is no exception.

from the challenge to the affordable care act to the continued viability of the disparate standard and discrimination suits to marriage equality more could not have been at stake for millions of americans. and as we head into the 2016 presidential election, no one needs reminding about the importance of the courts and who is nominated to sit on them. so to get us started in the examination of the october 2014 term, let me introduce our moderator, someone who is, no doubt, already extremely well known in this room. tom goldstein is an appellate advocate. he is known as one of the nation's most experienced supreme court practitioners. he has served as counsel to the petitioner or the respondent in roughly 10% of all the court's marriage cases for the past 15 years personally arguing 35.

in addition to practicing law, tom has taught supreme court litigation at harvard law school since 2004 and previously taught the same subject at stanford for nearly a decade. tom is also the co-founder and publisher of scotus blog which is still the only web blog to win the peabody award or as jerry hebert would say, the peabody award. you'll hear about that later. anyway in 2010 "the national law journal" named him as one of 40 legal experts in the world. "legal times" named him one of the 90 greatest lawyers in the last 30 years and praised him for transforming the practice of law before the supreme court. so who could be better than tom to navigate this term for us? so please join me in welcoming tom goldstein. [ applause ]

>> so thank you all so much. on behalf of the panelists, i really do appreciate that you all have taken the time to come and be with us to talk about the supreme court term that just concluded. it is an extraordinary thing. we've been doing this for roughly ten years or so, and this is the first time that it will be more fun than the federal society wrapup. it was an incredible term. i have learned a great deal about it. i have learned that i am now required to get same-sex married, that both my partner and i will receive subsidized health care and everything else, which we will need because the court has now required industries to put more mercury into the air. so to fill in the details of that, we do have an extraordinary group of people, subject matter experts, folks who know a ton about the supreme court. i'm personally very, very excited to hear what they have to say. we have one particular approach and that is we think that you all are a self-selected group of

people who know what's going on with the supreme court particularly with respect to the biggest cases. we're not here to tell you what happened, we're here to analyze. we're here to tell you what's going to happen in the future so that you can have a broader and deeper appreciation of what it is the court has done and what it is you can expect to see in coming years. there are two dominant cases but lots and lots of important ones, as caroline said and so let's start with same-sex marriage. and we could not be more fortunate to have someone than bill ethridge who is a professor at yale but he is perhaps the nation's most foremost scholar on gender and sexual minorities. can you talk to us about the same-sex marriage ruling? >> yeah. why don't we get started with justice kennedy for the majority makes a choice. it's very striking the majority decision rests upon fundamental rights fundamental rights to mare marry and not on the denial of

equal protections that his earlier rulings relied on. he goes with the griswold particularly the lawrence versus mode analysis. why do i think justice kennedy did this and what are some of the consequences? to begin with i read obergefell as a wedding of personal kennedy's enthusiasm for a libertarian philosophy, for dignity, a word that recurs in this opinion and elsewhere and apparently his very deep admiration for marriage which is described in the opinion as transcendent transcendent, the foundation of family, society, government, without which, i'm quoting, there would be neither civilization nor progress while, sir sigmund freud. justice kennedy further said marriage is a unique form of commitment, quote, responding to the universal fear that a lonely

person might call out only to find no one there. words that i'm sure still haunt the three women in the majority, none of whom is married. now as justice thomas points out in his dissent liberty has traditionally been understood as freedom from government interference, and thomas points out that even zablocky the dead beat dad case had that feature, government oppression. justice thomas reminds us that marriage is actually a highly regulatory institution with lots of restrictions as well as lots of benefits. so kennedy is using liberty apparently in a much broader sense certainly than the original framer of this as thomas points out, but in a sense of the freedom to construct life choices within a

government framework similar to everybody else and that's where kennedy brings in equality as part of the calculus. that's the first thing. second thing here is another advantage of justice kennedy from his point of view choice of fundamental rights. if you go with heightened scrutiny, this is some kind of heightened scrutiny though not very well specified it enables the majority to avoid any discussion of animus, a word that was prominent in romer and he have vens and mentioned also to some extent in windsor. kennedy goes out of his way to be respectful of adherence to traditional marriage and he recognizes, i think implicitly but clearly, that the traditional marriage folks are frightened to death that they are going to be associated with bigotry and their grandchildren will see them as the george wallaces of their generation.

now this doesn't satisfy the dissenters. justice alito worries that the traditional marriage will be to use his words, vilified. justice thomas correctly points out that the government doesn't confer dignity. i think the government does not do a very good job of conferring vilification. here's the third reason why i think kennedy went with fundamental rights rather than a quote, unquote equal protection clause analysis. that is that that might have brought sexual orientation out of the closet as a quasi or suspect classification, either implication -- explicitly or by implication. kennedy wants to keep the court's options open to respect religious and traditional marriage libertarian rights to exclude or discriminate because remember, justice kennedy was the fifth vote in both the hobby

lobby case last term and years ago in the dale and boy scouts case. justice kennedy is loathe options. notice i didn't say beginsbergthat ginsburg was from there. you go with the bride that brought you. there are some advantages highlighted by the near hysterical dissenting opinions in this case. so, for example, substantive due process, which much of this sounds like, and fundamental due process, which this is is much more controversial. unlike the equal protection law, it's not clearly rooted in the constitution text. marriage is not mentioned. or even original meaning. there's a lot of rich original meaning as i argued in my cado ruling here. the four dissenters go to town.

chief justice roberts raises this. this is what the majority is engaged in. i must say in defense of kennedy that kennedy does say, if you take the right to marry precedent seriously, they are the right to rule of law in america. you apply them it's very hard to identify lesbian and gay people. i relied on the majority opinion as well 1987, where missouri allowed procreating inmates to marry but not other inmates. supreme court unanimously struck that down no dissent in the o'connor decision. and it seems to be based upon the idea of committed relationships as the basis and the benefits space of marriage. i've always thought since 1987 how can a civilized society give convicted murderers and rapists a fundamental right to marry but

not give it to committed lesbian couples raising children, like deboer and rouse in the case? a second problem is that the famous redefinition argument has more bite against the fundamental right to marry than, say, against an equal protection clause analysis. this was the chief justices big concern at oral argument. they said erroneously marriage has always been different sex. that is simply false kinard, undisputed. it's not true. then he makes the truth marriage, says the chief has always assumed different sex. true. then the chief said the supreme court under the egis of fundamental rights to redefine this is a really big move and not something the court often does. chief justice says, quote, just

who do we think we are. i think the right answer to the redefinition argument is that michigan, ohio, they have already redefined marriage in their positive laws away from the imperative pro creation. and tore committed relationships and for those to flourish. everybody gets it except lesbian and gay couples raising children. to me that's the answer to the redefinition question though not a path that justice kennedy follows. third problem is the leading case was gluksberg. that was the 1987 aid in dying assistance. rehnquist's opinion which kennedy defined in full defines the fundamental rietsz analysis narrowly and historically. the kennedy opinion, interestingly, associates

gluxberg with baughers and jettisons the traditional historic approach by using the marriage precedent in a very effective way. this predictably drives the defenders crazy. they argue if they can set the level of dissent anywhere they are free to expand fundamental rights jurisprudence, what are the limits? is this not antidemocratic? to which kennedy's response is kind of democratic deliberation has been exhausted in this case. it was just beginning in glucksberg in the aid in dying. you can see the arguments that are used, it's an exhaustive discourse to exclude lesbian and gay couples. so the way kennedy sees it, his opinion is basically a cleanup operation. the democratic process has worked. it's not going to work very well

in mississippi, arkansas, some of the other states that were still outstanding and therefore it is meek as the supreme court did in loving versus virginia. cleaning it up. moving forward. what do i see moving forward? i see a lot of things until i get yanked time wise. so one thing. i do think the big take home point for obergefell is how broadly are we going to understand the liberty jurisprudence clause and i would read the majority similar to how i read lawrence and casey which is unclear in this case. this is a post hobbs ianian argument. it makes a structure for americans to make life choices which allow them to flourish. this is libertarian, at least

the way anthony kennedy and bill espege understands it. further, this is where kennedy ties in the equal protection idea, that structure cannot be arbitrarily denied to minorities and more importantly, he would include religious minorities as well as sexual and gender minorities. religious minorities going forward. can this be relevant? and this is a question, to the abortion choice issues that are going to be confronting the court, such as state laws that have sought to and have successfully closed down abortion clinics. cannot this regulatory understanding also plan those cases as militant immigration cases as we saw 30 years ago 35 in phyler and dough where children were excluded from the texas school system and that was struck down. that's the first take-home point going forward.

second going forward. what about the rights of religious people? anthony kennedy attempted to protect these rights such as the boy scouts case and hosanna taber which is free exercise and title 7 case. i would exercise that moving forward for religious minorities and traditional marriage people their protections are more often going to be statutory. v day, rfra title 7 which provides protections for marriage clerks. quoting justice kennedy. this can quote them to what extent i don't know. the first amendment ebb insures that religious organizations are given proper attention as they seek to teach the principles that are so fulfilling and central to their lives and faith and to their own deep

desperation to keep the family structure they have long reveered. all i would add to that is in the wake of obergefell and in the wake of more gay marriages religion as i've said for decades, has already changed and will continue to change. and mainly not because of government action. it won't be mainly because of obergefell, it will be because of young people and shifting more race. religion moving from hostility to lesbian gay marriage to neutrality, or don't ask don't tell. finally i can't help but say this is a bad day for obergefell for the hard rights. roberts and scalia i don't think consciously, the dissent reads exactly like the harvard law school's attack on brown versus board of education in the '50s

and then throw in herbert wexler who was a harvard ally but he taught elsewhere. if you substitute brown for reliance on oliver wendell holmes who was, it's true of critic of wapner. but holmes was don't forget the author of buck versus bell the sterilization decision where justice holmes not only upheld a denial of liberty, but then added insult to injury three generations of imbeciles is enough. right? one of the most infamous sentences in a judicial opinion almost matched in justice scalia's dissent, particularly footnote 22 where he wants to hang his head in a bag and ridiculed opinion.

original meaning jurisprudence did badly on that day. what's the future on the lgbt rights movement? i can't think we'll see the movement move rapidly from courts to legislatures and operative officials from judges to administrators. we've already seen that to a significant effect. the focus has got to be anti-discrimination laws educational programs healthcare needs and a structuring mechanism, not just marriage but family choice. one not so good lining for the decision, is that moving forward, there will be overwhelming pressure for good and bad reasons, on anti- anti-discrimination laws to allow conscious allowances probably broader today that would have been appropriate three years ago. thank you. [ applause ]

>> that is fantastic. the second really kind of major case from the end of the term is of course the subsidies challenge to the affordable care act. and to talk about that we have jeff law. he is the head of appellate firm. he previously served in the solicitor general's cases. he's argued ten cases himself. he's been involved in hundreds of others. can you talk about that case for us? >> thanks, tom. it's nice to be the bearer of glad tideings. in this crowd it's good they sided with the administration. it was a major case. but i think you know, having afirmed the administration's position took a lot of the air out of the debate over the case. but there are a handful of

things that i think the opinion might matter for going forward. and so talk briefly about those. and a little bit about the pending challenges, the other pending challenges to the affordable care act and what this might mean for those cases. i mean i think the one really significant thing in the opinion is that the court starts by saying the chief justice says look, this is too important to apply chevron. if the congress -- remember this was an irs rule that was at issue. and so you would normally think that it would get chevron treatment, at least the enalsis however you resolved it under the two step chevron structure. if congress had wanted the irs to decide this surely it would have said so. i think that's sort of an important clarification. in other cases where the court had invoked this bike brown and

williams or nci it seemed like it was part of the step one analysis. it was part of what the court was using to find that a statute was not ambiguous and there was no gap for an agency to fill. here that's not what the court says. before it even gets to the two step annulsis and looks whether the statute is ambiguous. it says this is too important to even do the normal chevron analysis. now, i don't know how much there is to recommend that approach. i'm not sure what it is that make as policy question so significant that it shouldn't get the normal chevron treatment. i think this case certainly qualifies. it's not just clear what else comes underneath the umbrella. i'm not sure why the court is so sure that congress wouldn't have wanted the irs to decide it. we know now that the mandate imposes a tax. this case was about tax credits for individuals on a federal

subsidy. if the administration was right on the merits, that congress would never have contempplated these individuals on federal exchanges could not get the tax credit under the act, then you would have thought that there wouldn't be that much controversy over the irs saying so in the face of any ambiguity on that score. i have some doubts about whether this too important for chevron doctrine is capable of principles application going forward. i am not as sure as some folks it will matter. by and large the court is invoking it in cases where most of us are probably more comfortable with the justices making these decisions than agency administrators. certainly i think that's probably been the intuition in this case. and i also think and bill can correct me if i'm wrong, having upheld the affordable care act, i suspect there will be not an

out cry in the academy over whether the court was being faithful to chevron. i think at the end of the day, the only thing i will say is that some folks have lauded the chief justices' opinion as one of judicial modesty. i'm less sure about that. whatever you think about the notion that some questions are just so important that they have to be decided by we the justices, i don't think that's a conception of the judicial role that can be fairly described as modest. i think the folks that are -- when folks laud this opinion as one of judicial modesty, i think what they're really saying is on the merits they agree with the court's statutory analysis. they think the court should not have disrupted the current way that the affordable care act functions. i don't think it's really a claim about the role of judges. on the merits, i think -- my own view is that there was a disconnect between the case and

a lot of the commentary over the case. i think there were a lot of people who said and wrote that this was an easy case. i'll be curious to see what the other panelists think. my own view is that it was a harder case than people give it credit for. if you believe in text or purpose, come hell or high water, it's an easier case. for the moderate justices they are reluctant to ignore text in order to look at larger claims of purpose. just as they are reluctant to read words in ways that they think would accomplish ends that congress did not intend in the statute itself. and i think bill and others made some very clever and good arguments. about why this was not a case about text versus purpose. it was a case about good and bad texulism and all the rest. bubbling up foreign policy the the

justice, whatever the force of the arguments there did seem to be a real pull between what the statute seemed to say on its face and what we all seem to believe that congress was intending, notwithstanding, you know, what may have been some inartful drafting in the provision. you know, as you know the majority said, look if exchange established by the state means just that, only state exchanges and not the federal exchange both in the provision directly at issue in the case, and in other related provisions of the affordable care act, if would really, it seems put the statute at odds with itself. because none of the individuals on the federal exchange would qualify for subsidies. but the act clearly contem plates in a number of provisions that individuals on all of the exchanges, whether state or federal are eligible individuals and can get the tax subsidies.

and that's enough the majority says to make it ambiguous. and then it turns to resolving that ambiguity it says by looking at the structure of the act. i think when you boil down what the court says is context and structure, i think it amounts to a set of arguments that are really about purpose and consequences. i mean, as the chief justice says in his opinion, this act was passed to improve health insurance markets, not destroy them. and i think it really turned on the fact that the chief justice and justice kennedy and the members of the court did not think that the challengers to the act had a compelling story to tell about why exchanges established by the state would mean only state exchanges. you can tell a story about why they would have wanted to induce states to create their own exchanges, but there certainly was not ample evidence of that

in the in the legislative act. if that were really the way that the act had been structured and what they were attempting to accomplish, you got the feeling you would have seen more evidence of it than, you know, some after the fact comments by folks who were -- played some role in the legislation. so i think at the end of the day, it really did turn more on a story about purpose than it did about some of these textualist arguments. and the administration had a more compelling story to tell about why it's interpretation must have been the one that congress had intended. you get flavors of that in the chief justice's opinion when he says there's a lot of inartful drafting throughout the statute. the dissent said we change all the rules again and again in order to uphold