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 came when first chief justice john roberts read for about 10 minutes saying the law was upheld and he did it with much more vigor and confidence this time around than he did in 2012 when he read the decision. in fact, i think we talked about it at the end of the 2000 -- in july of 2012 the chief was on this zigzag thing going, okay this is what i don't like about it, this is what i like about it. it was obviously very complicated the way he would have together the competing rationale to uphold the affordable care act in 2012. and there seemed to be a little bit of hesitancy. this time, you could see the confidence of where they were at. he obviously picked up the sixth vote from kennedy to have the majority. he basically said, look congress isn't neat.

what it wrote here was not artful. problems. but that's not why we're here. we're here to see what was congress's intention and give it a fair reading. so he finishes up and then comes justice scalia to read his dissent. as you all know, they sit by order of seniority. so scalia is going on and entouraging what the fellow in the center chair has just done and then he reminds everyone of what the chief had done back in 2012 to uphold it and he said we might as well call it scotus chair. as he says that it's the only time when the chief breaks a little bit of a grin. give sa he leah credit for something colorful, but that's about it. >> i looked at the way several of you covered that case. those of you who do the daily reporting. they were somewhat different. let me just 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 says the supreme court cleared the way for oklahoma to continue using the lethal drug cocktail. but the second half of that same sentence was two liberal justices opened the door to who could become a historic challenge to the death penalty. bob, you didn't get to the dissents until the fourth paragraph of your coverage and adam, you got to it in the second sentence which was also the second paragraph but ended your story with a quote from justice alito in the majority. and the other two david ended with more from the dissent and, bob, your story ended with several instances of botched executions. which which, one might say leaned more

towards the dissenters than the majority. why did you make those? >> go ahead first. that's one of those cases where there's clearly several different ways to write the story. there's a 5-4 vote. oklahoma wins. the lethal injections can go forward. justice brier reads and delivers a very long dissent saying for him for the first time joining ruth ginsburg basically saying that the death penalty is unconstitutional. and i thought it was a really interesting formulation which was that he said what wheelchair learned over the last 20 years is there are a lot of people on death row who are incident, who were 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 we could allow these appeals to

go on forever and in which case there is no dethd penalty system in this country. so he said i conclude it really can't work. i thought it was an interesting dissent. i went back to the office, the way the web works, you get to write two or three dirchbs different stories in the day. the first story i wrote, oklahoma wins. but i went back to the office and i said you know this case is actually going to be i think potentially more interesting and more significant because it really 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 say both in the league and that's why. >> so i think that analysis is exactly right. and the executive up with my piece is sort of in the same order. it's a significant enough

question. can they use a particular execution drug. but that's not a decision for the ages. it did give rise to a very interesting and bitter dispute between the five justice, the majority, and the four in the dissent. but the fact that we have, as we do periodically, have senior more liberal justices say i'm not doing this any more, i'm not going to tinker with the machinery of death any more, is the more lasting piece of this particular decision. so i think that's something you want to put up high. and then you asked why i ended with a a lito. i certainly do think that the weight of the beast does have to acknowledge what the majority are doing. alito said something quite interesting that moved off of the description of the crimes for which these three oklahoma inmates had been put on death row for. so that was my thinking. but as this illustrates there's no perfect, ideal way of doing it. things are going to be slightly different. and most of us are in pretty

much the same place. when i look at my story in the morning and david's story and bob's story for most stories, they look alarm going similar. they often have a similar lead, a similar first quote. you know, newspaper work is, in a way, fairley narrow craft. >> wouldn't you be concerned, though if we differed on the outcome of who won and who lost? >> the thing is, they're both wrong. because what you really found from that is that there are seven justices who didn't question the constitutionality of the death penalty and that what i thought was starring in this was that it was a narrow, but i thought -- i think the end of my lead was unequivocal directive that states could experiment with ways to execute people and the court wasn't going to get in the way -- wasn't going to get in the way of that. you know i do think that two of

them dissented. i thought waits interesting that the other two liberals didn't. rifs especially interesting and i don't have -- for justice sotomayor who is most questioning of the death penalty, maybe it means it's going to mean more later. if she does that maybe that would show some sort of momentum rather than it's just a minority of the justices who feel that way. but i thought that was an interesting part of it, too. >> 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 point about the difference between what justices brier and ginsburg were saying and justice sotomayor. he said i leave it to the audience to see how different they really are. i should mention that i don't

write our daily stories the way these reporters do. lauren certainly does that for us. but i will often write a sidebar or analysis piece and i did a separate on just these two senior liberals calling for a re-examination of the death penalty. and i did have to be aware of how long i've been covering this thing because i remember distinctly in 19934 when harry black todayman said i should no longer tinker with the liberty of death. and i was around in the late '80s when two justices alone dissenting from capital punishment saying they were categorically against that. so the fact that ginsburg and brier were hinting they would go that way and actually they didn't outright said they were. they said we would like to review it. >> but justice stephens did say that in the last case, too. >> but it wasn't until he got off the bench that he called for a stronger -- >> but some of that leads to why

not sotomayor and kagan. i think for 20 years you're reviewing all the time last-minute stays of execution, on vacation, pulled out of the opera, having to vote on these things and seeing that there's -- the liberals would say there's no rhyme or reason to who lives and who dies. at some point you probably get a quaysy feeling in the pit of your stomach. >> i agree with that. orren wrote a very good piece on the blog about the weariness. but i sent warren a note. i thought there's actually one or thing that would catch your attention. .it's the issue i raised earlier. suppose year after year, you've had to approve, you know last-minute requests or some sort of question about an appeal on a death penalty case and you said, oh there's no grounds for further appeal. and then you learn -- maybe reading in the newspaper or whatever -- that that fellow was innocent. i would be -- i speak for

myself -- i would find it wow. because i sort of would feel as a justice it's our responsibility to get these right. imagine if you then learned that you turned down a lot of appeals for somebody who said we need more money to investigate this and look into that and you had, no, there's no grounds for that sort of appeal. you've looked it it you read it you've turned it down and then you learned the person was innocent. i would have thought -- you know, if that happened once and then again i'd think i can't trust this system. do you want to clear the way to somebody to be actually execute ed 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 these people were innocent. so i think that's one of the things that might change your view over time. >> speaking bob to your question of why justice sotomayor didn't join she wrote such a strong dissent on the

merits about what was going to be done for these 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 said, i don't know why she wouldn't. you know this issue was -- the oral argument in this case was the most contentious i've seen in my short relative to everyone else time at the court. it was really nasty. and there were really -- you saw how deep the divisions are among the justices on this issue. you know this is the one where they answered each other and kagan brought up the burning from the inside and alito answered her and they weren't waiting for the -- for the advocates to say anything in

this. and the chief justice finally gave more time to the advocate saying, you know to a degree that's unusual even for this court, we haven't let you talk. and so he gave them some more time to talk. and so you know 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 know this bob, this was a real unusual situation. in january, four of these oklahoma murderers had this appeal there raising this question. one of them, a guy named warner was about to be executed. so on a whatever thursday night, they allowed warner to be executed with four dissents. then the next week they essentially granted his case. you know, they granted the case of the three remaining murderers. and i thought, boy, there's a way to have an unhappy workplace

when, you know five of you let the guy get executed and four of you then want to grant the case. so you could tell from the begin b, there was a real divide on this one. >> didn't there used to by a courtesy for a so-called fifth vote in these cases? >> yes. since you need four justices to grant cert and five to grant a stay, you know if there weren't enough votes for a stay somebody would come over so that the person wouldn't be executed while his case was going to be heard. and you're right, that seems to have disappeared we don't know why this happened in this case.

some people have said maybe the papers weren't properly before them but it does -- it's not a a -- it's not pretty to have somebody executed while -- them giving the green light to the execution and a few days later they grant cert and then the case he was part of. >> let me ask a slightly more substantive question, do you think it made any sense for brier and ginsburg to essentially call for people to bring challenges to dealt penalty to this court? i suppose they know anthony kennedy better than anybody else, but hasn't he been a complete hard liner on criminal punishment issues the day he got to the court? >> you know, not on the death penalty, he's been in the lead and cutting back on categories of people and categories of crimes that are penalty

eligible. it also goes to the point that joan made earlier, the status quo is we have the death penalty. if you can get four votes to put something on the agenda, maybe you pick up the fifth vote, maybe you don't, but you probably don't make life worse for your side. >> and what iffor view is this is a legal challenge that would be four or five years in the making? who knows who is going to be on the court four or five years from now? so i think it's not something that's going to change in six months, but brier was basically saying there should be a broader, well thought out challenge to capital punishment across the board. >> i suppose the question is how do you stop some lawyer from somewhere in the country from filing that challenge tomorrow who wants to go to the supreme court and who has a client on death row and feels it's 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 tried. but as 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 he did this term that surprised, i think, everyone, was his conquering opinion sort of out of the blue on solitary confinement. did any of you pick that up and write about it? >> it's not out of the blue, actually. he's talked about that before. >> but it was out on the blue in the particular case. >> yeah. it was unusual to the case but it's been a concern of his. actually he -- you know, it might be his interest a little bit and some international issues also that he has stepped back from some big issues to call attention to problems and i thought that was an example of that even though it might not have been the best case for it. and it did get attention in the

media beyond just the case itself. >> because there's an issue where someone really ought to bring a case. as you know, kennedy is leaning your way there may ought to be five votes. >> one of the -- an aclu attorney told me, art, is that in a lot of these states, people are automatically sentenced to solitary confinement on death wrote. in other words you don't have to do anything bad or judged to be particularly dangerous. it's just like an automatic matter. and kennedy quoted all sorts of literary figures as saying this is in effect a fate worse than death. and so i thought it was a really interesting -- i mean that is one of the things about this term that i don't recall any -- so many people writing separate opinions concurrences dissents, taking a big view that speaking to a broader legal

audience and sort of setting the stage for future cases. >> and then it gave rise to a response from justice thomas. and this wasn't one of his 30-paragraph attacks on the state. he said these people's living quarters are much more spacious than their victims. >> right. >> which struck me as verging on inappropriate. but did any of you express directly or indirectly, by quoting someone else's opinions about that rejoinder? >> i certainly would not judge it inappropriate. he wrote several opinions, dissents -- or i guess concurrences in death penalty cases where he went to great length, talked told the story of the victim and what the victim's family the devastation

of this murder. toppace's view is we're deciding an act tract question of appeal 20 years down the road and we've sort of scrubbed away the victim and the impact of this horrible murder. and i'd be the last one to say it's inappropriate to write that. i thought it's a different important perspective. >> he included a picture. >> i'm sorry. >> he included a picture of the victim in one of the cases, too as part of the opinion which was a departure. but, again i think we're seeing different ways that we're not just seeing the departures. >> i think the average reader can draw his other her conclusion about the appropriateness of the remark. >> joan, you wrote a story saying this is an art form.

tell us a little bit more about what you wrote and why that was a worthwhile story? >> well, when you're up there the nine of them have a distinct approach to how they want to read their opinion. and actually justice thomas, who you observed earlier doesn't speak from the bench. sometimes when he reads from the bench he'll make a joke so you get a little of his personality in it. they tell more of a tale. justice kagan really likes to talk about the facts behind the case and both she and the chief justice va nice come here and 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 so we can quote directly from it. we don't know what opinions are coming on what day. so when the chief says jufts spitzer will now announce the opinion in 1442, you're like oh my gosh, what direction will it take by virtue of who is going to read it? for example, that happened in a case when the chief says it's justice kennedy the suspend was hidened by what side he would take. so it's -- they kind of play alone long to make it more of a tale getting to the culmination, the climax at the end with whether they've said

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

think, ghee whiz, i didn't -- you know i didn't agree to all 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 the majority opinion and they'll go off script sometimes and justices then end up afterwards saying you know, if i had known what he or she was going to say, i wouldn't have joined the majority. so i think for that reason they don't want opinion announcement, the audio, to be out there quickly as -- and be treated by us as the sort of official summary of what the opinion is. >> i was just going to say sometimes there is no suspension when they announce them as -- justice alito began one and i

can't remember the defendant's name but he said the defendant said that he had take care of his girlfriend's two children when he sent her to be a prostitute in waud. it doesn't take a blood hound to know how that one is going to come out, i don't think. >> actually whenever the announcement is justice alito has -- >> that was certainly clear in the death penalty cases. >> there are even instances when some justice is listening to the announcement and thinks i didn't sign on to that. there was an instance where justice thomas was announcing his own opinion and he came across a line that he wasn't sure i signed on to. it was about synthetic drugs that said bath salts and he said i have no idea what that sentence means. >> tony, you write for an audience of lawyers.

how does that make a difference in how you cover the court from the others? how does that affect what you cover and how you cover it? >> well, not as much as you might think. my previous newspaper was "usa today i "so there is sort of a dramatic difference between the coverage there and where i am now. mostly in terms of length. when i first started at "usa today" this is before joan went there, a 600-word story was really long. so you would summarize a supreme court decision in 600 words or 400 word. and that's a challenge. but still, even though my audiences 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

erisa and so you still have to use plain english as much as you can and although i can't sort of i can use habeas corpus and not have to define it in every story. so there are some advantages. >> what was the story? >> that was is saga of howard shipley, the lawyer, it was the first time in years when the court threatened to discipline a lawyer for the cert petition that he wrote. and to make a long story short showered shipley filed a petition in patent case which that is already a challenge to make understandable. but it turned out that his

client a german industrialist who was not an english speaker insisted on writing the brief the petition himself. and when the lawyer said you know, we really need to change this he said no and the lawyer decided to go ahead and file the petition anyway and it was complete jibberish.