that, with respect to the guidelines there was always a minimum and a maximum set by statute, and the guidelines, even when they were mandatory, did not preclude judges from sentencing outside the guidelines depending upon the presence of aggravating or mitigating factors that weren't taken into account. and as justice alito's opinion for the court in united states versus rodriguez recognized, even the top of a mandatory guidelines range was not truly mandatory. so even under the mandatory guidelines which for sixth amendment purposes were treated as if they established elements of the offense, for the purposes that we're looking at here, they are not mandatory in the same way. so booker brought about a procedural change. >> what is the substantive difference to pardon the use of

the word between your formulation and petitioner's formulation that says this is substantive because it did away with mandatory life imprisonment? you're articulating it slightly different. tell me what you see as the difference and why your articulation. >> justice sotomayor. i don't think there is substantive day light between .petitioner's use and ours. it meant in treating it as a category. i think sums up the reality of what is happening. we broke it out into its component parts because i think it facilitates the analysis of it to understand that miller does have a procedural component. sentencing courts must now consider the mitigating characteristics of age. but it also and more fundamentally, in our view, contains a substantive component that required a change in the law. now, the change here was expanding the range of outcomes.

previously when this court has analyzed substantive changes in the law there have been changes that restricted the form of outcomes, say, for example, in justice breyer's hypothetical forbidding punishment at all. i think that, if you trace back the origins of the substantive category to justice harlan's opinion in mackie, this is still faithful to what justice harlan had in mind. justice harlan said the clearest case of an injustice in not applying a rule retroactively is when it puts off limits altogether criminal punishment. he did not say it was the only case. if you consider what's going on in miller and the reasons for the rule, the court made clear that it believed that, of the 2,000 people that were in prison under mandatory life or juvenile homicide, the court believed that that penalty was frequently disproportionate, that it would be uncommonly imposed in the future and that it was not a sentence that was consistent in

most cases with the mitigating characteristics of youth that had been recognized in roper and in graham and in miller. >> would it be accurate to say that a rule is substantive if it makes a particular outcome less likely or much less likely or much, much less likely than was previously the case? >> probably the last, justice alito. when the court characterized substantive rules most recently -- >> is there's a different between much less likely and much, much less likely? >> i would butt it in words the court used previously. the court said previously that a substantive rule creates a significant risk that the person is serving a sentence that's not appropriate for that person, maybe not even legally available for that person. did not say absolutely conclusively proves it. it said "significant risk." in contrast, when the court has talked about procedural rules, rules that govern the manner in which a case is adjudicated. it has said that the likelihood

or potential for a different outcome is speculative. i think, if you put this case on the speculative significant risk axis, this case falls in the significant risk domain precisely because of the reasons why the court said it was deciding miller. the reasons why the court decided miller had to do with the reduced culpability of youth and the capacity of youth to mature, change and achieve a degree of rehabilitation that is consistent with something less than the most harsh sentence available for youth who commit murder, terrible crime but still the harshest sentence the court thought would be reserved for the worst of the worst. which is what it said. it said life without parole should be reserved for the worst offenders who commit the worst crimes. when you combine the fact that this is not a rule that only governs procedure, it doesn't just govern evidence.

it also mandates changes in outcomes as an available option with the very genesis of the miller rule in a conclusion that, for the people in this class, the appropriateness of the punishment of the harshest degree, life without parole, will be relatively uncommon, it seems clear that the miller rule falls on the substantive side of the axis rather than on the procedural side. >> have any states treated miller as retroactive on state habeas? >> yes. the majority of states -- it's a close call. i think 10 to 7 or 10 to 8. the majority of states that concluded that miller is retroactive. most have done it as a matter of substantive law. there are a couple opinions that talk about the watershed exception which is not the way we think this case should be analyzed. not only the states have done

that, but the united states has taken that position with respect to the juveniles that were sentenced before miller to life without parole as a mandatory sentence, and in the re-sentencings of those that have taken place so far -- it's only been about ten, but those defendants have almost uniformly received sentences that are terms of years significantly shorter than the life -- >> what is the population we're dealing with if most states do i apply miller retroactively? i think there was a figure of 2,000 people with life without parole. >> i haven't broken it down -- may i answer. >> sure. >> i have not broken it down numerically, justice ginsburg. michigan has not applied it retroactively. it has a large population of juveniles in the miller class. i don't think pennsylvania resolved it yet favorably for the defendants. >> thank you, counsel.

>> mr. duncan. >> mr. chief justice. may it please the court. i was going to begin by saying i would proceed directly to the merits but i gather from the drift of the argument the court has serious questions about jurisdiction so i'd like to briefly begin there. we are in an odd position with respect to jurisdiction. we won below and would win in the fifth circuit on habeas which found miller was not retroactive. we believe this is a straightforward case not -- justice kagan it is not a standard michigan v. long case. it's an interwoven case. the state court took teague lock, stock and barrel. no doubt, justice scalia, in the previous louisiana supreme court opinions that the state said we are voluntarily adopting teague, there is no doubt about that. we think the question is whether that raises the question of an advisory opinion from this court.

why do we say it doesn't? because in cases like coleman v thompson, the court said where the federal law holding is integral to the state court's disposition of the matter there is no risk of an advisory opinion, and later in coleman the court said only if resolution of the federal issue, quote, could not affect the judgment is there the risk of an advisory opinion. here we don't think there is the risk of an advisory opinion. of course it's within the realm of possibility. it could happen that on remanned the court could say we've seen what you adopted on teague and retroactivity standards. the question is does it make this court's opinion advisory. the assistant solicitor general talked about cases like standard oil v johnson where the state was under no obligation to tether its state law to federal standards. >> it didn't say so, though. in standard oil, the -- this is

a quote from the opinion. the relationship between post exchanges and the government of the united states is controlled by federal law. >> right. that's right. my point, justice scalia, is -- that was embedded in a tax exemption statute. the tax exemption made certain taxes exempt from the statute and the exemptions -- >> it would have been true no matter what the state did, right? we're deciding a question of federal law that would have applied on its own. >> well, my -- no -- well, with respect to standard oil, my point is that the state didn't have to make its tax exemption status turn on a federal question. it did so the court will jurisdiction to resolve it. >> don't you think the state made its tax exemption law turn on federal law because there are federal constitutional requirements in that area? could the state have taxed -- i mean, there is the question of whether or not the supremacy clause would permit the state to

tax sales to the post exchanges. >> i think that's possible. this court didn't make its jurisdiction dependent on that. a case like ohio -- >> in the provision i just quoted it said that the relationship between post exchanges and the government of the united states is controlled by federal law. that's what our opinion said. >> well, so take the -- the assistant solicitor general brought up the ohio case. this court addressed that embedded and discrete federal issue. >> mr. duncan, isn't it similar when justice scalia used the controlled language, louisiana supreme court used similar language. it's dictated by teague. it's only dictated by teague because they've chosen to make it dictated by teague, but once that choice has been made, all

outcomes are dictated by teague. it's the same issue. >> well, we think -- we agree with that. we think it's binding, quote-unquote, binding within the meaning of binding federal law because the state has chosen to do it and it's never shown that it wouldn't do it. so we -- we think that -- look, if the court disagrees with us on that -- >> ohio versus reiner which you just cited, was there any other way that the state could have retained review of the state supreme court's erroneous determination that the witness in question there did not have a fifth amendment privilege because she said that she didn't commit the crime? >> i don't think so. because this -- >> do you think that's not a distinction between that case and this case? >> if is the teague standard is a discrete federal standard that the state has made, has incorporated, then the only way -- the louisiana supreme court could -- the defendant could go to federal habeas and get an interpretation that way, sure. it doesn't seem -- the difference between federal habeas and the review of the supreme court's decision makes a difference with regard to jurisdiction. it might mean this court would wait for a more robust split to develop and take a federal case

that way. but in this case -- this goes to the second reason why we haven't strongly contested jurisdiction. there is a robust split on this specific issue that extends to something like 21 state and federal courts. they're all deciding the same federal issue. it seems to us that, as a practical matter, this court ought to weigh in. it's going to weigh in sooner or later. >> we weigh in when we have jurisdiction. you think that doesn't matter at all? >> of course jurisdiction matters, justice scalia. >> so what you've said doesn't make much sense. >> i think it makes sense -- >> let's get in there quickly whether we have jurisdiction or not. you're not saying that, are you? >> we're not saying that. if a federal issue is genuinely interwoven with state law and there is no state grounds this court has jurisdiction. otherwise it has to wait for a federal habeas case. proceeding to the merits. >> we clearly have jurisdiction. just trying to figure this out in my mind. we have jurisdiction, where there is a person, that's the defendant. and the defendant says the court's decision, that's your court's decision, is contrary to the constitution or statute of

the united states. that's just what they say. so we have jurisdiction to hear the case. the question is how do we dispose of the case in which we have jurisdiction. in three instances, i guess, the court has done, in disposing of such a case, what the solicitor general says. namely, they have said we are -- we are not going to say whether he is right in saying it's contrary to the constitution. that's because there might be an adequate state ground. there might not be. it was one that was, was

explained as flowing from a certain intrepation of federal law. we will say their interpretation of federal law was wrong, and now we'll send it back to see what they do. >> yes, the cases that -- >> is that right? >> that's our position. and by the way -- >> what is the federal law that you're talking about? >> the application of teague to miller. >> that's not a federal law. it's a federal habeas statute is a federal law, right? and teague is an interpretation of that federal law. was that federal law at issue in this case? >> the teague standard-- >> of course it wasn't. >> but the teague standard, the teague exceptions could well be constitutionally required. teague doesn't apply. >> that's why we don't take a position. particularly -- >> you want us to hold that in this case? >> we do not want you to hold that in this case. >> can we say the opposite in danforth? or the majority say the opposite in danforth? >> could you tell me why you would think that something like atkins would not be retroactive to states? as a compulsion, meaning not as

by election of teague retroactivity. >> that is a difficult question that we don't take a position on, but to answer your question, justice sotomayor, the argument goes that danforth made clear that teague is an equitable interpretation to federal habeas statute. it's not constitutionally binding on the states, and that -- the court left open whether the exceptions are binding, but the exceptions were part and parcel of justice harland's mackey understanding of how he thought federal habeas ought to apply. and so whereas atkins -- i mean, atkins creates a binding constitutional right. the question of remedy, though. the question is a state constitutionally bound to offer that remedy? and this court has recognized in cases like pennsylvania v. finley, for example, that states have wide discretion in structuring their post conviction. and the next point, though, has to do with --

>> that has to be different because as justice breyer pointed out, you have wide discretion to structure it as you want. but if you structured it in a way that you're going to say i'm offering due process, isn't there a check, a substantive check by due process that you have to offer the minimum? >> well, i mean, that is the question. so this court has found that there's a substantive check on due process in griffith where we're talking about direct review. when we're talking about collateral review, i mean, our view although we haven't taken a position on it, collateral review is a different animal. >> we have any number of cases where states have viewed exceptions as controlling the fact that they have to offer the constitution. >> but this court has never held that. >> hasn't yet. why shouldn't we? >> understood. >> that's really the serious question. >> it is a serious question. and, again, we have not taken a position on that question because we feel that this case is interwoven with federal law

as a matter of state retroactivity. in miller, on to the merits, in miller this court was invited to create gorically bar the penalty of life without patrol for juveniles who commit murder, but it decided not to do so. now, that decision leads directly to the conclusion in our view that miller is not a substantive rule under teague's first exception. consideration of the teague framework, teague policies and teague precedent points instead to the conclusion that miller is not a procedural and not a substantive rule. so we think summerlin sets out the framework. >> suppose there's a state and it has a mandatory minimum for a theft. it says the mandatory minimum for theft is 20 years. and suppose a court looks at that and says, you know what, that's incredibly disproportionate to a lot of theft. and so strikes the mandatory minimum. says you just can't have a mandatory minimum like that. make it lower. would that be a substantive ruling?

>> we don't think so, justice kagan, because the mandatory aspect of it goes to the manner of imposing a penalty. >> it does not go to the manner of imposing. it says nothing about the manner of imposing. what it does is it jus increases the range of sentencing possibilities. it actually leaves it to the court. it says absolutely nothing about what factors ought to be taken into account, nothing about that at all. all it says is you can't have a mandatory minimum of 20 years for theft. make it lower. >> well, so if in that hypothetical that doesn't go to the manner of imposing a penalty, then it's different than miller because miller made very clear that the mandatory aspect of the penalty goes to the manner of imposing the penalty. not the substance. >> so if you're saying no, that's different because there was something else in miller, there is something else in miller. there is a bunch -- there is --

there is a process component of miller, no question about it, where the court says what courts are supposed to look at are the characteristics of youth and are supposed to try to figure out whether these terrible crimes are functions in part of immaturity or not. whether you really are looking at an incorrigible defendant. so there is that process component. but that process component does not take away the fact that there is a completely separate self-sufficient component as to what the range of punishment has to be that's completely on all fours with the hypothetical that i gave you. >> well, justice kagan, the relevant difference in terms of the teague analysis is that this court in miller did not take the punishment of life without parole. the distinct category of punishment of life without parole off the table, this court has never held that a noncategorical rule is substantive under teelg and for good reasons because that would fly in the face of the policies that inform the teague analysis. >> no, you're exactly right.

it did not take the lwop punishment off the table. but similarly in my hypothetical, a 20-year sentence for theft has not been taken off the table. what the court has done is to say there have to be other options. there has to be an option of ten years or five years or two years, whatever it is. so they've expanded the range of possibilities. they've just made the sentence different because a sentence is defined both by its upper and by its lower end. and so they've made the sentence different. >> understand that, but making the sentence different doesn't necessarily mean make it substantive under the teague framework. here's another way of looking at it. the defendant, a juvenile murderer who committed murder and is serving a life without parole sentence today pre-miller is not facing a punishment that the law cannot impose on him. and we know that from miller because miller said the court's decision does not preclude that punishment. and so that goes to finality. the finality interests underlying convictions do not

yield whether the state still has the power to impose that punishment. finality interest yield, justice harland explained in mackey and this court adopted in teague, finality interests yield only where the state lacks the power. that's where the finality interest crumbled, so to speak, because the state no longer can impose that category of penalty. so that would go for roper, graham, justice breyer's sedition or which crimes. if somebody's in jail because they were accused of being a witch, the state has no finality interest of keeping that person in jail. by the same token if the punishment is death for a juvenile, the state has no finality interest in doing that. so leaving the punishment on the table is crucial. if it doesn't take it off, it's not substantive. the second policy reason for teague is avoiding the adverse consequences of retrial. and we think miller is even more clearly not substantive under that standard because categorical rules apply retroactively because they don't carry the adverse consequences of retrial. they don't make you go back and

redo the trial and unearth old facts and drain state resources and come out with a distorted -- distorted retrials. miller, by its nature, envisions a fact-intensive hearing that considers multiple characteristics at the time of the trial. >> you don't have a distorted new trial if you just grant a parole hearing. >> that's right. that's right. but that's, of course, not what miller would require. that's what graham would require, justice kennedy, because graham is obviously a categorical rule that says you can no longer impose that punishment so you have to give them a parole hearing or some meaningful way of release. miller is about the step before whether to give a parole hearing. whether the person can be eligible for parole at the outset. that's the inquiry that we're talking about in miller, and that's quite different from a parole hearing.

the fact of the matter is, though, is that applying miller retroactively inevitably turns the retroactive miller hearing into a parole hearing which shows that it doesn't quite work. in terms of adverse -- >> are you going to say at some point you started, suppose you look at the watershed procedural change. my impression from the case you cited, summerlin, is that deciding whether that's retroactive has two parts. i think we are unanimous on this point. the two parts were is it implicit in the concept if ordered liberty. and here it would seem to be because it's applicable for the states. and the second is is it central to an accurate determination that life without parole is a legally appropriate punishment? and the rule that a mandatory can't exist is central to making that -- that was the whole point of the miller opinion. so if that's the correct analysis, for watershed rule procedural rule that's retroactive, if i'm right about that, why doesn't it fit within that category? >> well, let's take the first one. it's not just implicit in the concept of ordered liberty. the way that the watershed rule has been stated, the first prong of it, it has to all ter our understanding of bedrock

procedural elements necessary to fundamental fairness. and this would be a strange case to find that in because miller itself doesn't represent a bedrock revolution in sentencing practices. it takes sentencing practice from another area and puts it in this new area. so it's an incremental change in that sense. it's not a wholesale discovery of a new bedrock procedural element the way we had in a case like gideon versus wainwright. and i think this court explained in wharton versus bocking that it's not enough that the rule be fundamental in some abstract sense, right, but it has to itself represent a change in bedrock procedural understandings, and we don't think miller does that. we also don't think it's necessary to an accurate determination of a sentence. it would enhance the accuracy of the sentence, but it's not necessary. and the other point there is this court has never held that a pure sentencing rule can qualify under watershed because after all, this court has on many occasions said that a watershed rule is necessary to the

accurate determination of guilt or innocence. and here we're talking about a sentence. so we agree with the united states that watershed procedural analysis is not the way to go here, but it does raise an interesting question. in summerlin, because after all, we do part company quite strongly from the united states when the united states says we need an outcome expanding alteration to the definition of substantive rules under teague. we say that's not just a slight tweak to teague. what that is is a change in the understanding of what a substantive rule is. substantive rules under teague analysis have never depended on the frequency with which new outcomes might come about under the new procedures. in fact, in summerlin, and this goes back to my original point about the framework, summerlin explained that a criminal defendant under a procedural rule does have the opportunity of getting a more lenient outcome under the new procedures. so -- and nonetheless, summerlin

said that such procedural rules are not applied retroactively. and so as justice alito, as you were saying, the difference between a substantive and procedural rule under teague is not whether it's very likely or very, very likely to result in a new outcome. it's about whether the new rule categorically removes the power of the state to impose a category of punishment. that's what a categorical rule does. that is not what miller does. right? miller may express an expectation about the way that miller hearings will come out. and that may or may not come to pass in the future. who knows? right? we can point to cases where criminal defendants have had miller hearings and have still received life without parole. and i can point to several in particular from the state of louisiana under its new miller procedures. but the point being is that the idea of changing outcomes, which is what the united states' entire argument depends on, is

built into the procedural side of teague and not the substantive side. the substantive side is about -- >> i think not, i think by your own definition this fits on the substantive side. you said you categorically remove a certain outcome. and that's exactly what miller does. if you -- as long as you understand a sentence, which i think you agreed with, as defined both by its upper and by its lower end, effectively what the court said in miller was that that sentence which was the mandatory sentence cannot control for juveniles. there has to be a different sentence, one that includes other punishments. >> well, there's no doubt -- >> that increases the range. >> right. miller quite clearly said, as you know, justice kagan, that it does not categorically bar a penalty. and so what did it mean by that penalty? >> it allows something within the range, but it has -- it has completely changed the range that is given for any juvenile department. the range is important. this is what we said in alain. that you can't think about a sentence without thinking about

both parts of the sentence. both the maximum and the minimum. and when you decide whether a substantive change in that sentence has been made, you look at both, the maximum and the minimum. >> well, look. i hope this is responsive. i mean, i think after miller we would see two categories of punishment on the table. we would see a life without parole category and a life with parole, for example. but my point is is that miller does not band the first category. >> i would not describe changing the range of sentences available as changing the sentence. >> it puts another one on the table i think is the most. >> it doesn't change the sentence necessarily. >> well, this is what we -- >> you still get the same sentence. >> you could still absolutely still -- >> this is what we said last year.

we said it's impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. and similarly, we said criminal statutes have long specified both the floor and ceiling of sentencing ranges, which is evidence that both define the legally prescribed penalty. that is the penalty. is the range. >> a life without parole has the same floor and ceiling, of course. it's got the same floor and ceiling. what miller does is create the procedural circumstances for finding -- for putting a new penalty on the table, which is -- that's the point of the united states argument. there's a new possibility. and our point is to say that putting a new possibility on the table doesn't take away the states' power to impose the old category of punishment. >> mr. winston -- mr. winser -- >> duncan. >> i know that we didn't ever look at this issue. i'm sorry. i'm reading the wrong one. i apologize. but do you really think that any state would have not applied woodson retroactively?

they all did. >> probably not, your honor. but the question -- that, of course, is a pre-teague case. it raises the question is woodson substantive or procedural under teague? and our argument is it's a procedural rule. >> it just said you couldn't have mandatory death penalties. just like here u, you can't have mandatory life without parole. >> it required an individual sentencing process which we say is a procedure. >> to give sentences less than mandatory death. but they could have still given death. >> they certainly could have. so the question is whether is it substantive or procedural under thepre-teague rubric. it raises the question, is it a watershed procedural rule? >> that's the language -- bedrock is -- i don't think is the right language because that was the language he referred to in a sentence in mackey, correct. i've just been looking it up. but then in teague itself, justice o'connor tries to get the right words. and what she ends up with here

is that the procedural is the first test, first part, can be addressed by limiting the scope of the second exception. that's the watershed rule, to those new procedures without which the likelihood of an accurate conviction is seriously diminished. okay. >> that's the first one. >> that's joined by the chief justice, justice scalia and the fourth i can't remember. so is it seriously diminished? now, we read through miller. it's pretty hard to say. i mean, my goodness. miller is just filled with paragraph after paragraph about how a mandatory requirement for life without parole fails to

take a count of all the characteristics or many characteristics adherent in youth. and it's pretty hard to come away from that without thinking gee, accuracy under a mandatory life without parole does seriously diminish the accuracy of imposing life without parole when you apply the mandatory to a youth. >> but every eighth amendment rule goes to accuracy. >> no, but you have to say the accuracy is seriously diminished then she says i don't think there will be many such cases. >> we haven't talked about the capital sentencing cases but take a case like o'dell where the capital jury was not informed of the defendant's parole and eligibility while considering his future dangerousness. i mean, one could easily say that the accuracy of the resulting death sentence under the old rule was seriously diminished. and yet this court said in o'dell that that is not a watershed procedural rule. and you can go down the line

with all those cases. the beard case and the sawyer case. those are cases in which a defendant could have said, well, seriously diminished accuracy and yet the court found no watershed rule. and, of course, the bedrock is the word that this court has used in referring to that exception. particularly in wharton v. bock. >> is there any watershed procedural rule other than gideon? >> well, this court has said it's doubtful that any will emerge. and so we think this case is an implausible case for a new watershed rule to emerge since this rule and back to the bedrock point is not creating a -- it's not a revolution in bedrock understanding of procedure. it's an incremental step in sentencing juveniles. you know, if a case like crawford is not a watershed procedural rule, then it's difficult to understand how this one would be. >> we have one brief that tells us that this court has never

barred punishment as cruel and unusual under the eighth amendment but refuse to make the decision retroactive. is that so? >> we disagree with that. there are cases that take the case that refused to make retroactive the rule in call caldwell versus mississippi. that's an eighth amendment case. it goes to the accuracy of a capital sentence jury determination of death and this court didn't make that rule retroactive and found that it was procedural and non-watershed at the same time. so we take issue with that. just a few more words about the united states proposed expansion of teague. it would re -- it would shift the whole focus of what a substantive rule is from the categorical nature of the rule to the effects of the rule. and so any defendant in these capital sentencing cases we've just been talking about, o'dell and sawyer and beard would now have the argument handed to them by the united states new rule that says well, that new rule gave me the opportunity for a better outcome. i might have not gotten the death penalty.

if my jury had been properly instructed. we don't understand how the united states new rule in this case can be cabined only to where a mandatory sentence is taken off the table. >> i think you yourself cabined it when you said that the difference is one -- there is some category of cases which do refer to process, to how a decision makes a particular result. and another category of cases which refer to what we've called substance, which is what results are on the table. what category of punishment is on the table? and that's the difference between this and all the other kinds of things that you're mentioning. this is not about the how or it's partly about the how. but there's also about what punishments are on the table. >> well, i just have to push back on the premise a little bit. our position is not that a substantive rule is about what punishments are on the table. a substantive rule is about whether a state categorically no longer has the power to impose a category of punishment. here it's clear from the miller opinion and from the graham opinion that the relevant category is life without parole. the state still has the ability to impose that punishment.

and that's a sharp distinction from what a procedural rule is and the united states' new conception of what a substantive rule would blur that. it would blur that and call into question all the capital sentencing cases and a heard i question, i don't remember which justice asked it about booker. and my reaction to that is but booker is a matter of the sixth amendment, made a sentencing guideline nonmandatory. and it surely opened up new sentencing outcomes. and so by what reason could a federal habeas petitioner now not say under the united states' new test booker is now retroactive or aileen for that matter. aileen overturned the mandatory minimum under the sixth amendment opening up new sentencing outcomes. why couldn't a federal defendant on federal habeas say now i ought to get the benefit of that rule retroactively? our position is those cases, booker aileen, aprendy are clearly procedural. as this case explained in summerlin. they're clearly procedural. and what the united states would do is blur those categories. if there are no further

questions. >> thank you, counsel. mr. bernstein, you have three minutes remaining. >> what this fantastic discussion has shown is why the court, as it always has in the past, should keep the teague exception as a matter of equitable discretion rather than constitutional requirement. the court has much more freedom, generally speaking, on a matter of equitable discretion than it does on constitutional requirements. there's no way to look at the prior precedents of the court in teague and any of those courts to say oh, here's what our equitable discretion is. the only time you get retroactivity is when the constitution requires it. that would have been a really short opinion. and that was not that. now, to turn quickly to the cases that have been cited, the critical difference between this case on the one hand and merrill dow and three affiliated tribes on the other hand is that jurisdiction under this statute is question by question under murdoch. in merrill dow, the question of

whether the defendant's conduct had violated the federal drug labeling laws was a federal question. the court never would have gone on to say and we're also going to federalize the remedy. we're going to decide whether it's lost profits or out-of-pocket costs. similarly in three affiliated tribes, there was no question that there was a federal statute that limited state court jurisdiction. the only issue was the scope of that statute. here we have the opposite. there is no question that the federal statute does not apply to the state court. and yet people say you should decide the scope question even though the underlying issue may be one of state law. and then finally to the solicitor general's new argument that there's going to be review in this court and de novo review on habeas, the statutory lang wage in 2254d is pretty broad. quote, any claim that was adjudicated on the merits in state court proceeding, the only claim in this case is remedy.

this case was filed after miller was decided. the only issue in this case is redress. and it would be very wonderful turn if you could say on the one hand that 2254d doesn't apply. but on the other hand, 1257 applies when it requires a, quote, right claimed under federal law which gets to your question, justice kagan. is it enough that'll a state court says we voluntarily want to be bound? and the best answer to that is not only in the cases i would recommend moore which is cited in merrill dow which goes out of its way to show how federal law is binding on the interstate commerce conduct in that case, but it's also plain in the language of the supremacy clause. binding federal law means

binding in all 50 states. and that's why the statute also says right under federal law. thank you. >> thank you, counsel. you have three minutes remaining. >> your honor, i'd like to make two quick points. first of all on jurisdiction. resolving this case under teague avoids the serious constitutional question of whether due process requires retroactivity for miller. my second point on the merits, merrill says juvenile defenders should not have to die in prison with no chance for rehabilitation and no consideration of youth. that important rule changed the substantive outcomes available. indeed this court said that life without prison should be uncommon. the individual sentence before miller there remains about 1500 deserve a chance at redemption. thank you. >> thank you, council. mr. bernstein? the court appointed you to brief and argue this case against this

court's jurisdiction. you have ably discharged that responsibility for which the court is grateful. the case is submitted. having business before the honorable, the supreme court of the united states to admonish them and give them their attention. >> he boldly posed the forced internment of japanese americans during world war ii. after being convicted for failing to report for relocation, he took his case all the way to the supreme court. >> and this week on cspan's landmark cases, we'll discuss the historic supreme court case of korematsu versus the united states. after the attack on pearl harbor, roosevelt issueded an evacuation order sending people of japanese orgin who lived close to military insulations to

internment camps throughout the u.s. >> this is a recreation of one of the barics at topaz. the bare ricks were 120 feet wide and divided into six different rooms. they didn't have sheet rock of ceilings. the masoniterix on the floor. this would not have been able to heat the entire room in a comfortable kind of way. >> challenging the evacuation order, fred defied that order and was arrested and his case went to the supreme court. find out how the court ruled in view to have world 30urs of congress with our guest, peter irons, author of justice at war, the story of the japanese american internment cases and executive director of the fred

t.korematsu institute. we'll explore the mood of america and the policies during world war ii and follow his life, before, during and after the court's decision. that's coming up live tonight at 9:00 p.m. eastern. for background on each case while you watch, order your copy of the landmark casesh=sñ compa book. it's available for $8.95 plus shipping. a year ahead from election day 2016, the american enterprise institute hosted a division on the current field of campaigns. they discussed the presidential race and house elections and a potential balance of power outcomes in congress. this is about an hour and 15 minutes.

>> good morning, everyone. good morning. morning. my name is carlin bowman and i'm a senior fellow here and would like to welcome you to the first installment of the election watch program. as a number of you know, this is the longest running election in the program in washington and actually two of us on the panel were here when the program first began in 1982. i'd like to begin by thanking the conference team who do a wonderful job of making sure everything's in order and also, a special thanks to my assistants, heather, jay, who have been extremely important preparing the handouts that you have and getting this conference org nuysed. we invite you to join the conversation on twitter. and to follow our handle for

more insights into the 2016 elections. if the tradition continues in 367 days, 15 hours and 16 minutes, the voters in new hampshire will go to the polls to vote at midnight. this morning, we're going to tell you what we're watching at this early stage in the 2016 campaign and why. it's a pressure to have my colleagues, my ai colleagues on the panel and we're delighted to be joined by john fortier, who is director of the democracy project and e p pbc's senior fellow henry olson, you're here, wonderful. delighted you're here. >> i snung in. >> you did, good. after my introduction, i'm going pose a question to each of the panelists and they will have five minutes and then we'll try to start a lightning round in which any of them can answer questions. then we're going to turn to your questions. let me say a few words to begin.

like all of you, i read them, but i think we should treat wh we're seeing with with skepticism. here's why. according to political scientists, polls conducted even 300 days before an election have virtually predictive value. that's one of many reasons polls should not be used as a standard for debate participation. their predictive power comes much later in the campaign, usually around the 100 day mark. another reason for caution at the th stage of the campaign, polls cannot simulate the electric because of the arcane rules for awarding delegates that each party has. the most important find ng the new quinnipiac poll was not that trump and carson were tried for the lead, but rather that 35% of republicans are people who said they lean to the gop said their minds were made up. in the nbc news wall street poll released on tuesday sh only 2%

of republicans said they had decided. in the new monmouth polls the republicans in new hampshire released on monday, only 20% of republicans said they had definitely decided. democrats, especially hillary's backers, are more sure of their choices, but say they could still change their minds. traditional polling is beset by problems. all of the final polls in the kentucky gubernatorial contest showed the democrat ahead from two to five percentage points. the republican met by 8.7 percentage points. even beven's own poll showed jack conway winning. response rates for most polls today are below 10% for even the best designed surveys. thus far this year, gallup and pew, two of the best in the business have been sitting on the sidelines in terms of trail heats. in 2007 between january and november, gallup had asked over 50 questions about the election looking at the candidates and we of course all know about the

miscalls in great britain, israel and argentina to name a few. i'm not sure that election polling as we have known it has a future. polling remains important, of course. already, hillary clinton has spent more than a million dollars on polling and last week, bernie sanders hired a pollster. this week, we saw another change in the polling business again in part because of problems with the business overall. 48 years ago in 1968, cbs news conducted the first exit poll of voters leaving the polls in kentucky in that governor's race. it's become harder for the exit poll consortium to conduct an exit poll because around a third of us vote early on absentee. on tuesday in kentucky and mississippi, the associated press moved forward with an experiment to reinvent the exit poll by conducting an online voter poll. in the 2014 election, they did online polling in georgia and illinois.

their estimates were more accurate than the exit polls. i spoke to david pace yesterday of the ap and unfortunately, they've not fully analyzed their new results from either kentucky or mississippi. unlike the exit polls, online surveys of the kind ap has conducted this week, can't guarantee that the people they've actually surveyed have voted, but ap is is working with the national opinion research center to explore the possibility of using gps tracking on cell phones of online participants with their permission to verify that they voted before asking them to participate in the online polls. candidates with high name recognition and star quality usually do better early, then the fundamentals kick in. we say a quick word about the fundamentals. the jobs report this morning was very encouraging. the economy added for more jobs than had preb dikted and the unemployment rate ticked down to 5%. in part because the 2008 crash was such a powerful event in

public opinion, americans have still not fully recovered. they aren't confident that the financial system has been fixeded. second, while we have focused in recent weeks in weeks on divisi republicans, dissatisfaction with both parties runs deep. although the republicans lag behind democrats, slightly more than half, 52%, say they are angry with the way both parties have been dealing with the country's problems. only a quarter said they were angry at neither. adding to the sour mood, many americans share donald trump's critique that america isn't great anymore. finally, and this will be a major topic in our december political report, the ai political report, on virtual

over question, there is a chasm between democrats and republicans on the proper role in government. in each question people have been evenly divided, never separated by more than two percentage points. they conducted another poll in late october. in that poll, 41% said a democrat and 40% said a republican. once again, the country was evenly divided. when that question was asked in november of 2007 before our last open contest, people preferred a democrat by ten percentage points. since 1960, we have had five of the eight closest elections in our nation's history. now we'll turn to our panelists. michael barone is one of the

original founders of it. the 1972 edition of it was the first. >> that's 1970. >> he has one of the introductory es ksays in the volume this year. you say politics is stuck in a rut. explain. >> yes. you have already explained it. we have had five of the eight close closest elections in history since 1960. as i look back over the last few caree years, last century, we have been in an extended period of static partisan alignments going back really to the middle 1990s. it's persisted about as long as

any such period in american history. voter attitudes, voter choices seem to be linked primarily more on cultural attitudes than on economic status with the demographic factor most highly correlated with voting behavior is religion or a degree of religio religiousty. we've had increasing numbers of people who identify as secular and nonreligious and on the other hand people who identify as evangelical or stronger religious. this has been reflected in the polarization of attitudes. from the 1990s, allocate the perot vote, what you find is both democrats and republican

candidates have won between 46% and 53% of the vote. that's a pretty narrow range. we haven't seen anybody win like in the landslide victories like candidates who were seen as bringing peace and prosperity that we saw throughout the years. that hasn't happened. the highest percentage since 1984 in a presidential election went to george h.w. bush in 1988 nearly equalled by barack obama in 2008. rounded off to 53%. you've had elections where the easiest way to predict which party is going to carry the state's electoral votes is to look at the last map. 2004 only three states switched between parties from 2000, four years before. only two states switched between

parties between 2008 and 2012. even between 2004 and 2008, which was the biggest swing partisan twinge during the period, you get nine states out of 50 changing parties. we see the same thing in house elections. popular vote for house of representatives in nine of the 11 elections starting with 1994 a period when, i think, i was the first one to write there's a serious chance the republicans would win the house. the article appeared in july of the election year. we've had static numbers. republicans winning between 48% and 52%. democrats 44% and 49%. nearly overlapping numbers. you have two exceptions. 2006, 2008 when george w. bush's numbers plummet. then you have democrats winning 53%, 54%.

republicans in the mid to low 40s. in 2010, we swung back to the 1994/2004 range, and we've been there ever since in the house popular vote. this has been accompanied by increased straight ticket voting. i remember a book called "the ticket splitter" in the late 60s. that was then. this is now. in 2012 we only had 26 of the 435 congressional districts vote for president in one party, congressman of another. that's the lowest number since 1920, and warren j. harding was elected in a landslide. despite this, we've had divided government. even though you have a closely divided electorate and partisan -- straight ticket voting, you've had divided government 2/3 of the time in

the last 20 years, since 1968, but for different reasons in the earlier period. and part of the reason for that is demographics. democratic voters tend to be clustered in central cities, sympathetic suburbs. very high percentage democratic in those type of constituencies. it helps them in the electoral college. it hurts them in the -- when you go to single equal population districts. so far i've been looking for changes. we've seen huge viewership increases particularly in the republican debates, maybe in the democratic debates, but as i look at the results of the 2015 governor races and things, i see the same numbers. louisiana governor race democrats got -- it was 56, 42. president last time. 57, 41.

sounds similar. >> sounds similar indeed. this very low-tech gong reminds us that our late colleague introduced this to the election watch series to try to keep our panelists on time. michael, another quick question for you. this is the centennial of the new hampshire primary. when did it become important? >> 1952. basically, it existed but the results weren't really associated with candidates. you were just electing delega s delegates. 52 eisenhower backers in the republican party. they decide to put their candidates on the ballot and that becomes a sort of referendum. we see the iowa caucuses evolving from a new wine and old skins thing when anti-war democrats started in the 1970s to emphasize caucuses that were

prefunk toir before. >> henry, you tend to think of the gop contest not in terms of insiders and outsiders, but instead in terms of your forecoming book, "the fight for the 2016 presidential no, ma' nomination." it's available on amazon. can you explain your theory of the republican party? >> if you take a look at the exit polls going back through the 1996 republican nomination contest, you find there are basically what i call four phases, or four factions of the republican party. they are roughly the same in what type of candidates they prefer, what type of issues they prioritize, and they are roughly the same as where they are concentrated in strength and weakness. those four factions are moderates and liberals that dominate in the northeast and are strong in the midwest and in

california. nationally, they're about a quarter to 30% of the national electorate, but they're well over 35% and in some cases 50% in the states i just mentioned. there's the evangelical conservatives that are extremely conservative. they're dominating the south and in midwestern caucus states like iowa. there's the fiscal conservative. the person who thought steve forbes ought to be the next president. they're about 10% of the electorate nationwide. then the group that always wins is the group that no one pays much attention to and that's what i -- in the polls they say they are somewhat conservative. the best way of thinking about them in washington terms they're the sort of conservative that think john boehner is just fine. they're 35% to 45% of the republican party. they always back the winner.

track this group and you know who the next nominee is going to be. insiders versus outsiders has not been a theme of very much import throughout the last few republican cycles. that would be the idea that a lot of media representatives are pushing right now based on a couple of polls saying that republicans prefer somebody without elected experience. i think they're using that to interpret why ben carson or why donald trump are rising in the national polls, but i'd say two thi things about that. polls this far out on national level do not have a good level of predictiveness. if you dive below the type lines, the aggregate numbers, you find the factual explanation

explains that with insider versus outsider. the same factors that have effected republican nominations going back are going to effect the same ones here. the very conservative factions of the republican party prefer people who are highly ideological and highly active in their rhetoric. the 2/3 of the republican party that is establishment conservative or moderate liberal do not want those things. what's typically happened is that the moderates and the liberals and the establishment conservatives back someone who is conservative enough and they win the nomination. the only time that hasn't happened is when you saw john mccain. the conservatives lined up behind george w. bush who was the heavy favorite of the very conservative group.

right now it does not like who the candidate who is likely to come through is the very conservative favorite. ted cruz is not going to have much support outside of that group. whoever consolidates the two larger factions is going to be the nominee. the only reason ben carson is running well right now is unlike every other candidate who has profiled highly to the right, he appeals to the gop center. when you see someone who is extremely low key and self-assured on tv, that's the sort of personal characteristics that the boehner conservative likes, unlike a ted cruz and a hi mike huckabee and a rick santorum. someone who thinks the pyramids were built by joseph to conserve grain, there's too many of these things out there.

conservatives, they like stability. when financial markets in meltdown, invests flock to the 30-year bond. i don't think ben carson is going to be able to stand up under that scrutiny. i don't think ted cruz will appeal to the center. that means the winner of the rub rub rub rubio-bush contest is going to be the nominee. >> are there any other lessons in scott walker and rick perry's demise? >> rick perry is somebody's who sell by date was november of 2011. scott walker, i think, there's a lot of lessons. one, don't run as somebody you aren't. scott walker is not a tea party

person. he ran as the tea party candidate. what became clear in the debates and why he has had an unprecedented collapse in support is what his supporters were being sold as was not who he was. that became very clear that this is not somebody who is a ted cruz who can win, so i'd say the first lesson from scott walker is don't run as somebody that you're not when you're trying to run for national office. the other thing i think you can learn from scott walker is what worked for scott walker in the general election in wisconsin was a uncanny ability to mobilize people who generally support democrats to support him on what might be called a reform conservative platform. nobody is trying to do that in the republican electorate right now. none of the republican candidates are really trying to mobilize republicans in a way that present that for the general election. the thing that made scott walker an attractive candidate was

something that for whatever reason they decided was not salable in the republican party, and i think that speaks very poorly for the republican party's chance to win the general election. >> thank you so much, henry. now norm, this is a time that we know as the peak recruitment season. the democrats have done really well in a number of key house contests. is there any chance that they can regain the house and realistically, how many seats do you think they can pick up? >> thanks. first let me say i do miss rick perry. my favorite moment from the 2012 campaign came when he was asked about what he would with the west bank and he said he would bring back free checking. lindsey graham didn't even make

the kiddie debate next time. for jim webb and lincoln chafee, i feel for lincoln chafee. he tried to become the alternative to hillary clinton. he had the slogan feel the burn. he tried feel the chafe. just didn't work. for chris christie and mike h huckabee who are off the main stage and on the under card, christie said he would cross that bridge when he comes to it. so on to your question, karlyn. the democrats have had a pretty good recruiting season, but it's important to realize there's a bigger, longer term problem for democrats below the presidential level. they have really done poorly the last two midterm contests were disasters for them not just in

congress, but at the state level. and so the farm team -- and democrats in particular look to state legislators and some people who have been in other public offices to recruit, to move on up. it's a very thin team looking down the road, so they have to hope that they can turn that around. and while they have a good class this time and they're going to have some resources, winning the house would require a whole set of circumstances that go way beyond the candidates they have, the micro level campaigning. it would probably take a republican presidential candidate who would make some republicans yearn for the success of barry goldwater. it would take a complete wipeout at the presidential level. that could happen in a couple of ways. one way is -- here i think henry's analysis is really

terrific. i have a couple of cautions. i do believe that the anger level out there for a substantial number of republicans -- we know among other things that anger is driving the electorate more than we have seen before. it is anger at the other party more than it is support for one's own party. some of that is being driven by a lot of people are making a lot of money by fueling that anger. but if you end up with a nomination process that a significant number of evangelical conservatives and fiscal conservatives was stolen from them yet again, the ted cruz theory that they keep having having, defeat snatched from the jaws of victory nominating a nice person who is just another democrat, we may see a turnout that's not quite as robust as we've had before. the same thing obviously would happen in you ended up with a

ted cruz or a donald trump or a ben carson winning a nomination. and i'm not so sure that it is going to move in another direction, but that's a topic for another day. otherwise democrats can pick up seats this next time. if you look at the sheets, you can see how different the electorate is different for a presidential election year compared to a midterm election year and that's becoming even more distinct. categories in a presidential election year that work to the advantage of democrats and that includes people who are not married, it includes having more women, it includes a larger share of majoriinorities and a r share of younger voters, that works to the advantage of democrats and that can help in some districts, but the structure of house districts is such that if democrats manage to pick up ten seats, that under most circumstances right now would be seen as a big victory.

the senate on the surface is a great chance for democrats to win back a majority. 24 seats held by republicans. only 10 held by democrats. seven of the republican seats held in states that obama won and increasingly as we see the number of swing voters decline as we see red and blue states divide much more distinctly, as we saw with the kentucky results, which really reflected the fact that you're not seeing swing voters so much anymore. it's a red state and it votes red. for a matt beavan who was an outsider in that party to win handlely, that really tells you something. for democrats to win the senate, they're going to have to win the white house and win it by a significant enough margin that enough races that are marginal would go in their direction and they don't lose states like

nevada that are also toss-ups. >> thank you, norm. just five minutes. perfect. second question for you. i know paul ryan is a friend of yours. what are his greatest strengths and weaknesses right now? >> ryan started out very well. it is frankly because john boehner gave him two big gifts, parting gifts on boehner's part. the first was negotiating this broad deal that took us past a debt ceiling debacle that could have resulted in disaster, but also added enough money to the budget accounts. the money itself is not going to be the big driver in confrontations in the days and weeks ahead. by doing that, it also left it open for another bill that boehner helped negotiate, and that was the transportation, the infrastructure bill, which has to be done by november 20th or the highway trust fund is

basically unable to operate. and what ryan did bringing it up, which they couldn't do until they solved the basics of the budget bill, was to open up the process a little bit more. 100 amendments allowed, but he moved it through pretty expeditiously. don knows more about how the rules committee operates and the dangers of opening up a process even more. whether ryan can continue to bring up bills allowing a lot of amendments, maintains control over what happens on the floor. he is very smart and artful. now the other thing he wants to do is bring up substantive legislation that can pass and go

on to the president for signature or veto. the infrastructure bill is one of those that will go for a signature. most of the other things may not make it through the senate, and he has a real challenge because he's promised among other things to bring up an alternative to obamacare. we've been promised an alternative to obamacare since obamacare was enacted. we don't have a bill that's been introduced that can be underscored by the congressional budget office because it is very tough to do without being eviscerated. can he manage to do that? of course, we have the other big test coming up very quickly by december 11, which is will -- freedom caucus members and others now demand having voted for ryan and taking a lot of flak incoming from the right for being squishy on that front, will they demand that he confront the defunding of planned parenthood and adding

ri writers that block obama actions that could lead to shutdowns? if he can make it through that, he has relatively smooth territory through the rest of this congress. >> thank you, norm. john fortier. it seems to me the republicans haven't had the kind of recruitment season they've hoped to. >> first, i would like to thank all of you and look forward to henry's book. is it ready for christmas where we'll have it in our stockings or am i putting too much pressure on you? >> it'll be ready for christmas. >> i look forward to it, and i also look forward to the idea that we probably created a new insult. instead of two faced, you can now be four faced. the lesson is two or three old familiar faces are enough to win. i'll let you follow up on that.

the senate, some norm alluded to this a bit. we have different classes of the senate and they have very different characteristics. republicans had many more seats they could challenge. in addition to the number of seats, total seats, out there, the republicans did very well last election picking up extreme red states that had democratic senators. there were six states, that were rock red republican states in an open election. republicans picked up all of them, plus north carolina, republican-leaning state. those are the prime targets in a world that michael describes as being basically well aligned, where the republicans are holding republican seats, democrats are holding democratic seats. what does this election look like? on the surface, again the big

numbers are 24 republicans up for election while there are only 10 democrats, seats of that party. and then just looking ahead, if you look to 2018, it's a class in the opposite direction with only 8 republicans, 23, or if you count the independents, 25 democrats. so you can manaimagine that the fundamentals are very different in these types of elections. one thing that's different about this election coming up is there is one seat that looks like those very red seats that republicans won last time for the democrats and that's in illinois, a state that democrats should win, will win at the presidential election. i'll put money on it. and mark kirk is in a very difficult atmosphere because of the character of the state. the other opportunities for democrats are swing states. some of them democratically leaning states. the list is relatively long. if it were a very good win for a

presidential candidate, you could imagine a big win sweeping in, but those states are more competitive. republicans will win some and lose some. those states are wisconsin. the most endangered for republicans with ron johnson facing off against russ finegold looking to come back to the senate. new hampshire, where you have a couple of very strong candidates, one on each side. florida, which is an open seat in a sense that both primaries are quite interesting. we don't know who is going to congresswoman out come out of this, but both sides have better and worse candidates in their primaries. ohio where rob portman is facing a good recruit on the democratic side. democrats have done well recruiting in the senate. that's governor ted strickland,

who has won statewide as probably the only a-list candidate democrats have recruited. he is 75 years old, but still a very formidable force. looking down to other states that are competitive, but the candidates aren't there to pull out the states at this point pennsylvania, north carolina, places like that. on the democratic side, nevada is the one place where democrats will have to watch. colorado is another swing state, but it doesn't look like michael bennett is going to get a serious challenge. so if you look at the race, what democrats need is four seats to win to get the senate if they win the presidency or five seats. i think the bottom line we're looking at a senate that is more democratic, is closer to 50/50, but at this time it is very hard to tell how close we'll get to 50/50. >> john is the country's expert on early and absentee voting. i've wondered what changes we've

seen since the 2012 elections that will impact 2016. >> i wrote a book on this not so long ago. ten years ago, i guess. the numbers have started to go up and up and up since then. the direction is more rather than less of both voting by mail and voting in person. the numbers were roughly 40% or so in the midterm election. it'll probably be that or slightly higher this time. we've already had states like oregon and washington state voting 100% by mail. we now have the state of colorado, which is more or less that way. they send a ballot out to everyone. 95% of the people vote by mail. it is essentially a vote by mail state. you have states like massachusetts moving in that direction. i think you'll see more early voting, more absentee voting.

a couple of states are moving to new modes of registration, in particular automatic registration. this is a cause the left is excited about, i think, the democrats are excited about. in oregon it will happen in 2016. it will be implemented. we'll see people who go to their dmv, don't interact with anybody about the voting process, and automatically get put on the rolls. california has adopted this practice, but will not be quite ready to go in 2016. it may lead to other states adopting this. >> thank you very much. all of our panelists have kept to their initial five minutes. now i'm going to return to what i call the lightning round. it's interesting that no one has mentioned hillary clinton yet on the panel, so i thought we'd start there with a question about bernie sanders upping his compare and contrast attacks at

this point with a new ad that is designed to address her honesty and integrity. how serious of a problem is this for hillary clinton? >> i think most voters don't think she has those qualities. that's not a positive when you're running for president in a general election. i think it's interesting that bernie sanders has taken this tact. he's not going to ask questions about the em-mails and so forth. he's dealing with a democratic electorate that has universally positive feelings about hillary clinton and very little appetite that she might not be honest and trustwort trustworthy. they're loyal pretty much down the line. i don't see a real path forward for bernie sanders. one of his problems obviously is

that in a democratic primary -- in democratic primaries over all 20% to 25% of voters are black. hillary clinton is going to do really well against bernie sanders. black voters tend to be unanimous in democratic primaries as they have been in general elections. i don't see this as a game-changer. >> interestingly in the polls donald trump and hillary clinton are the two candidates who have the highest negative numbers on honesty and integrity and they're virtually identical and have been for a while. >> bernie sanders, he has chances in iowa and new hampshire, but once you get past that, his support just craters. you look at the numbers in south carolina where he is losing by almost 70 points.

you have to wonder in iowa the caucuses require people not to just go into a polling place and vote. you have to go to a site and stay there for several hours and it is a complicated process. in 2008, hillary clinton's campaign did not do the groundwork required, the sophisticated work, to get their people understanding how the caucuses work and the obama people just cleaned them there. this time she has a much better team. for sanders, whose support tends to tilt very young, you're dealing with a lot of people who likely have never been to a caucus and are probably not going to have as much staying power. if hillary wins iowa, it is pretty over at that point. if she loses iowa and new hampshire, i think there's still no path for anybody else. we're likely to see a democratic contest that is effectively over very early on and a republican

contest, even if you get a few more candidates dropping out, that's going to have more candidates than we usually see. and extending beyond what we usually have, whether it works out the way karl rove suggested the other day, that this goes on perhaps even to the convention or at least much more into april or may remains to be seen, but it's a draining process. you can see right now as candidates are looking for traction, they go after each other. he'll move more back into a substantive role. >> thanks, norm. one of the things obama did in 2008 was to considerably expand the size of the iowa electorate, the iowa caucus electorate, in

bringing in many, many young people. that was the key to victory. it's not clear to me that we'll see that same thing for bernie sanders in this campaign. let's turn to the primary calendar. henry, we'll start with you. who does it advantage? i wonder if you could talk a little bit about the byzantine delegate allocation rules? >> the republicans have decided that any contest between march 1st and march 15th must award their delegates in some manner of proportionality. republicans being republicans, they have a looser definition than democrats where there's a national standard that applies to all the contest. so what that first means is that if you're a republican voter in a state that votes during that period, your vote counts less than a state that votes

afterwards just because your vote to delegate ratio is going to be lower. secondly, for some reason the very conservative states of the south and the midwest have all decided to lock step vote in that proportionally window. so what that means when you read the polls about ted cruz gaining and ted cruz telling you how he is going to unite all aspects of the movement, the simple fact of the rules means he's going to walk out of all his key states, assuming carson drops and cruz is a beneficiary, with a much smaller delegate lead. in states that are heavily influenced by moderate, particularly those in the midwest and northeast, vote later and have adopted much more of winner take all approaches. someone who wins new jersey will

get 51 delegates. so i think what that means is that if there is a candidate who is favored by the establishment and moderates who are not fat fatally wounded by march 15th, that person is highly likely to win the nomination. >> one thing we should point out in those march 1 to 15 contests, eight of those states have a threshold of 20%. the delegates can be awarded only after that 5%, 15%. question related to what you just -- >> let me just add to that. there are a couple of interesting things to keep in mind. some of these moderate -- some of these establishment candidates may do very poorly in the first four, five, or six contests. marco rubio is likely to finish fourth, fifth, or worse in iowa.

he's third in new hampshire now. it's hard to imagine him doing much better than that unless things change. he's not doing well in south carolina. nevada maybe, but i'm not sure how many hispanic republican voters there'll be, and they're mexican-americans, not cuban-americans. you may find cruz, trump, carson doing pretty well. if you go through the first month and half of these contests and you're not winning much, it may be very difficult for you to win any traction. the candidates at that point that have that core 20% not leaving them start with donald trump who could win some of these winner take all states. >> what if a candidate gets no more than 19% in a 20% threshold state? >> i think henry's analysis is

broadly right, but there is a question of which part of the electorate consolidates first. you have a lot of people thinking ben carson may fade and ted cruz may take that vote. as henry indicated, a lot of the earlier states will be favorable to him. if that happens early, that gives ted cruz a lot of momentum. and the other candidates on the establishment side may be more divided. i do think the big question is donald trump. at what point do we say he is a conservative? does he become the alternative, or the one who can last through? i raise that as well. >> just very quickly, i'm assuming that ben carson is going to fade. ben carson's polling right now, if he were to sustain that through, it'll be quite clear that ben carson would be the nominee because ben carson is

running first among all the ideological factions, particularly the evangelicals. he's running first or second amongst the establishment conservatives. i don't think it'll last. then the question is who drops off of ben carson. prior to his rise, he was more of an evangelical candidate than an establishment candidate. where do they look? if they were going to be for trump, they'd already be for trump. if they were going to be for ted cruz -- there's one question ppp asks. they ask what would you prefer in a candidate? a little under 40% of republicans say the most conservative. cruz is running third there right now. a little over a majority choose the win and he gets 2%.

right now those people are going to carson. when they drop off, they won't look to cruz. if they were for trump, they'd already be for trump. the question is who else gets that vote. i think you're going to see a very late rise by rubio. i think he's going to finish second or third in iowa. i think he's going to finish second or third or maybe win in new hampshire. as carson goes down, people will switch to somebody who looks more like the candidate they're backing now than the other alternatives. right now because of jeb bush's implosion, that looks like marco rubio. >> i'm very cautious about predicting who is going to come second, third, or fourth in these primaries. there's a couple of numbers that make me particularly cautious here. those numbers are 24 million and 23 million. those are the viewers of the first two republican debates. the third republican debate held on a world series night got 14 million. previous record for a republican

debate was 8 million. 8 million, 24 million. triple. you also had a rise in democratic debate viewership but less so. their previous record was 10 million. that's a 30% jump. not insignificant, but not like what we've seen on the republican side. the republican caucus and primary electorate could be vastly expanded. norm mentioned that the democrats turn out in iowa 2008 about 240,000 people voted in the democratic caucuses. in democratic primaries and caucuses overall in that cycle 37 million voted versus 21 million in the republican caucuses and primaries in '08 cycle. iowa '08 republicans get 120,000

in their caucus. they tend to tilt elderly. they are the most evangelical electorate outside the south. those numbers could change. republicans and democrats pretty even in that state. the democrats are getting twice the caucus turnout. so obviously some of the increase in that debate performance, a lot of it, most of it was of the celebrity value of donald trump. but as i look at this static political alignment that i talk about and then i look at the possibilities of large numbers of people participating in stages when they haven't before, i'm pretty cautious about predictions. >> thanks, michael. let's change the focus a little. how big a factor do you think obama will be?

one of the interesting things is chris christie seems to be the only gop candidate who is taking obama on in his ads. >> and in a quiet car on amtrak as well. i think the incumbent president is always essentially on the ballot even in an open race. if you want to throw away all the details and look at political science models and say how is the president doing, what do people think of his job approval, that gives you a pretty good sense of sort of the playing field for the race, how it will be. the president now is kind of in the middle. the president's numbers are up from the midterm, but they're not great. they're sort of in the 47% range. and so the economy is kind of in the middle. that points to a kind of neutral playing field for the general election, but that could change. we're still early enough if things could get much better, we

could be looking back and saying these were bad economic times. or they could get worse and the president's numbers will matter for hillary clinton, even though she's a different candidate. >> norm, you can answer this one, but also how valid do you think the obama-rubio comparison is? >> this is one area where you should keep a close eye on paul ryan. the dissatisfaction and anger, so much of it focused on boehner, much of it will be focused on mcconnell was in large part a sense that the republican establishment leaders were letting obama just kill them over and over again. and of course it's part of a reality that if you look at lame duck presidents, two-term presidents in their final two years, the results are usually pretty pathetic for a whole host of reasons. you're tapped out with ideas. you have many, many fewer members of your own party in congress. you start to lose your people in

your own administration, and you can't replace them very easily. your party is usually divided over who the successor will be. and people don't want to do big things because the next person may well move in a different direction. obama has broken that mold and a part of it is because in a polarized world instead of having a united congress taking on a president who uses executive authority, you have democrats in congress siding with the president over the republicans and that's frustrated the hell out of republicans. now, will paul ryan be able to change that and reduce that frustration level? if not, obama becomes a bigger factor, but a big factor kind of because he looms over it all. look at what these insiders are doing. that's nothing. part of the problem that ryan is

going to have which is the same problem boehner had is he may be able to mobilize the house republicans to pass some things that conservatives will like. they're going nowhere in the senate where mitch mcconnell has to try to protect kelly ayotte, mark kirk, and pat toomey and others running in blue states in votes that are too extreme for those states. if ryan can navigate through that, it will make it much easier for the establishment republican party and it reduces the role obama plays. otherwise obama plays a role just because he is presiding over an economy. what happens with that economy? where are we when we get close the election? it's still going to come down as it always does in an open contest after a two-term president, do you want more of the same or do you want change? the president's successor in his own party has a difficult time saying i'm actually real change without alienating members of

his or her own party. >> obama-rubio anyone? henry? no. okay. michael? >> i sort of agree with both john and norm's recent remarks. i would just add that the policies, which obama says are the most important policies, domestic and foreign, of his administration both poll under 50%. they're not popular. we haven't heard the democratic candidates in so far as we have heard them trumpeting those policies at all. to listen to the rhetoric in the democratic debate, you might suppose we've been having a reactionary republican president for the last seven years. yes, obama's a factor. >> we want to turn to your questions now. and we're going to ask you to identify yourself and we have mics. if you could wait for the mic,that'll be very important. while you're thinking about youyour questions, i want to quickly ask the people do you see a quick

emerging theme or is this a mishmash of the economy and other things? >> i feel much more confident in predicting possible moves in the electorate 60 days from now than i do in a year from now. michael is absolutely right. american politics has been pretty much electorally divided in the same patterns and the same distributions since the 1994 gingrich revolution. going back to the presidential level to the 1992 races. it will mobilize the existing consistencies and move on the margins the few remaining swing voters that we have. >> first question right here, and if you could identify yourself and wait for the mic. >> thank you.

i'm tom reckford with the foreign policy discussion group. i wonder if the panel would talk about what foreign policy issues are likely to be featured in the presidential race. >> who would like to start? >> continue to make the argument across the board president obama doesn't want to lead from behind. he wants to leave america behind. i think you'll see some measure of that, depending on the foreign policy chops of the candidate. marco rubio would make it front and center. ben carson would probably soft pedal it more, but that's what republican activists believe. it's what intellectual republicans generally believe. and i think you'll see that sort of attack across the board. iran would be mentioned as an example of that. shrinking military would be an example. failure to draw the red line in see syria would be an example. those are all examples. the only thing that i think an

issue would come up is if there were a negative development in the world that would force people to debate that. other than that, i think republicans will make the argument we're weaker than we were seven years ago. and if you elect hillary or bernie, it will be more of the same. >> can i add that the foreign policy numbers of -- the overall numbers of the president job approval have moved up a little bit. foreign policy numbers have changed dramatically. he was more popular than on domestic issues in his first term. it hasn't really affected his overall number dramatically. the one thing that did seem to move the numbers and could be more specifically moving things is if terrorism very directly comes up. when we saw the beheadings of isis, that's when we saw the

numbers in polls. >> it will be event driven, but i've been amused. there are two main lines of attack by republicans against obama. the one is he is feckless and weak on foreign policy and he gets pushed around by putin and isis and others. the other is he's like sherman, racing through georgia back here at home while the republicans get rolled over repeatedly. and it's kind of hard to reconcile those things. but what's all the case is that there's a substantial fatigue even among conservatives over boots on the ground and more wars, so we may see an interesting contrast here. it may well be there's a desire for stronger leadership. the notion of trump that anybody taps me on the wrist, i'll cut their legs off and i'll do that to isis and i'll do that to putin. he's taking over the debate negotiations as well.

that may play just as well as a general matter, but we may end up with a republican nominee who is eager to move into more aggressive military actions and that could create divisions or waves inside the nominating process. >> michael, very quickly. >> i think the key moment in this second obama term in terms of public opinion on foreign policy was the execution of the american journalist james foley, i believe, in august of 2014. before that, rand paul seemed to be a real threat or a possibility in the republican race. he hasn't seen that since. before that republicans were willing to accept the sequestration cuts in defense or pull down in defense spending. after that, as we have seen recently, they were not. if americans think the world is spinning out of control, as they thought in 1979, 80, as they thought in 2007 to 2008, that's

a problem for a candidate who might happen to have been formerly secretary of state. >> question from this side of the room. anyone here? we've answered all your questions. let's go right here. kuwait for the mic. it's coming from back there. >> the mic is leading from behind. >> and identify yourself, please. >> i'm with acreman llp. i want to ask about mr. olsen's theory. it seems like it does explain who has won the nomination. i also wanted to ask it seems like the panel is operating under the assumption that donald trump will be around and be a factor for a while and it seems like a lot of the other candidates are operating on the assumption he's going to fade, collapse all together. do you think they do feel that way, and is that correct? >> taking the first question,

ted cruz's problem is it is kind of like he is working in common core math. he thinks a like to produce the wrong answers. there is not a majority of people who agree with him within the republican party, much less the country as a whole. the problem why republicans don't win is not because they have been nominating people who are not conservative enough. it's because they have been nominating people who don't appeal to the few remaining swing voters that they have. there is no pool of movement conservative voters who have not voted in 2008 and 2012 because the candidate does not conservative enough. that is simply not true. there is no argument that has any degree of statistically validity or has any sort of support that says somebody like a ted cruz is the person who can

summon people from the deep and cause them to come out and vote. the reason republicans don't win is because they don't understand the modern electorate. they don't understand what the swing voters in the modern electorate want. they remain too beholden to -- when the republican parties decides to stop running the 1980 campaign, which is what romney did just without as much charisma and detail and start to run a campaign that reflects real issues today, then you can see a candidate that comes out of the somewhat conservative wing win the general election. ted cruz is so flat wrong. it's really shocking that he continues to get -- that that theory continues to get seriously played up. >> does anyone disagree? >> i can make an argument in the

other direction. i'm not sure i agree with it, but i can make an argument. we're in a period of declining tu turnout. there's this huge surge of people to vote for obama. that's a pretty accurate way of looking at a waiter. hasn't been true since. turnout has been down in 2012 from 2008. turnout was down '14 to '10. i see democratic turnout record lows in these governor races since the 1960s or 70s in kentucky, louisiana, mississippi. admittedly republican states now. the cruz theory might work if you get your voters out and the democrats don't get theirs out as they have been having increasing difficulty in doing. 2012 numbers, obama's vote down 3.5 million from '08.

romney's vote up 1 million from mccain. reverse those numbers and the republicans win. that would be my defense of the cruz argument. >> john, you? >> i want to take on the second question about trump. most people who look at trump would have thought any of the number of things he's said would cause him to fall apart and implode. the big difference between him and a ben carson is ben carson has very high positives and low negatives partly because people haven't figured him out. i would not be shocked if somehow donald trump would implode, but he does have a record. a lot of people don't like him, but he has a lot of people who like him after having these gaffes. that's an argument that he's likely to stick around at some level for a while. >> trump draws very much like blue collar candidates in

europe. people in high education backgrounds strongly dislike him, but he has very passionate support. i could see what happened to him happening toukipp party in the runup to the general election in britain. they were polling 16% to 20% in the fall before. when it became a serious vote a lot of people voted for the torreys. i can see trump polling 23 to 25% going down to the 15% nationally and a little less in iowa if the cards play right. he won't implode but could very well drop. >> remember that trump is actually putting money into organization in early states. he actually has a campaign now. and carson, as we've seen, a lot of the money -- there's huge amounts of money going in -- is going to carson allies who are making a fortune out of this campaign. there doesn't seem to be much infrastructure there. maybe that changes, but it's getting late to build that kind

of infrastructure. you know, there is no infrastructure there. there is no there there. trump is building a "there." i believe the anger level out there at the establishment is high enough. and my guess is it's worth digging into the somewhat conservatives a little bit more as well. people are reading the same things and hearing the same things from their neighbors that support for outsiders may be a little bit more persistent than we've seen before. >> speaking of organization, "the post" reported this week cruz had 77,000 volunteers. organizations could be important in some of the contests. sir. >> brian harvey, former american political sciences association fellow. >> good. >> as you are looking at the press coverage on both sides, do you think a different lens is being used when they look at the candidates? on the republican side donald trump, dr. carson, you're seen as almost not really serious

candidates. whereas, on the democratic side bernie sanders has been billed as the progressive alternative to hillary clinton. and of course folks who know bernie from his days as the socialist mayor of burlington know how economically depressed and how burlington didn't thrive under his leadership. my question to you is, do you think there is a disconnect or a different standard being used. the second part of the question is, why do you think folks are so quick to write off jeb bush, who for many people really is the most thoughtful candidate and is really the most presidential? when will the silly season be over and we have the bush-clinton race that many of us are looking forward to? >> on the first question, you know, bernie sanders was a mayor and has been a senator. and a member of the house before that and has actually had some legislation in the veterans area

especially go through in a bipartisan way. donald trump and ben carson have never served in any office so they'll look at them in a different way. when you're looking at one side where there are two main candidates and the other where there are a bunch of others, you're going to get different lenses that are used. but i would say, for donald trump, you could change the name of cnn to tnn. it's the trump news network. and all of the others have focused -- they've given him a billion dollars worth of free publicity. it's a different standard. i'm sure other candidates would say please judge me by that standard. so as for bush, i do think we're going to see -- this is all driven to some degree by press narratives. a lot of narratives are the death watch. they love the death watch narrative. they also love the resurrection narrative. we're into that now. this becomes crucial because, if bush can stay alive through early contests, we're going to

get to a super tuesday and contests where we know that john kasich, if he is there will win ohio and all of those delegates and do better in the midwestern states. in bush and rubio knock each other out in florida it alters the contest of the race. for rubio, who is faces the scrutiny that comes when you move to the upper tier, and that's a danger. it's a little early. he didn't want this to happen. it's a different matter if you have several establishment candidates hitting at each other. mitt romney got away with having nobody in that category basically. >> is jeb finished? >> jeb has had -- i think jeb is running a poor campaign. it's not a technical thing. i think, like michael dukakis said, the fish rots from the head down. this is a guy who has basically

been retired from politics for a decade. the american political scene has changed dramatically in tone and substance since the last time jeb bush was involved, and he hasn't adapted to it. now he is trying to adapt to it, and you can see he says he needs to show passion beings so , so shouting into microphones. this is a guy who i think is more likely to be this cycle's john connelly, which is, say, spending tons and tons of money and getting very few delegates despite having a lot of media and establishment thought that he is a serious candidate than somebody who can come back. the polls have consistently shown that the third of the republican party that calls themselves very conservative loathe jeb bush. when you start with a third of the party who will literally vote for anybody but you, that's a problem. he is the only candidate that, when ppp asks one on one trial heats with donald trump, he is the only candidate who regularly gets pasted no matter what state

you ask or what thing i ask, whether nationally or in state. he is deeply unpopular with a third of the party and hasn't given the other two-thirds of the party much to hang their hat on. >> maybe even go a little further with bush in that i think he's painted himself with -- not only as the candidate who might have a foot in the liberal part of the republican party and the establishment conservatives. he really has only feet in the liberal and the most far left part of the party. if you look at polling. marco rubio has some establishment among -- support among establishment conservatives and some in the left wing. he was a conservative governor but doesn't seem to emphasize those themes and grab that. how to back oneself out of being seen as an establishment conservative or only appealing to the most left voters in the republican primary is a very hard thing to get out of. >> are there any questions in this part of the room? there is one here.

this gentleman in here in the middle. and then unfortunately we're going to have to shut this down. this gentleman right here. if you could make it brief. we only have a few minutes. it's not on. can you speak loudly. it's not on, unfortunately. >> full bright scholar at johns hopkins. last week i attended a book lunch talking about the american political dynasties from adams to clinton. and i have a question that is suppose there are two candidates who are equal in capacity and experience. one is from a noble family and the other is from the family with the fame of political dynasty. which one would americans prefer? >> well, we've -- actually very large countries that are

electoral democracies have had dynastic leaders have elected them. we see japan, the current prime minister, pictures of him with his grandfather, the prime minister. korea. taiwan. fill teenphilippines philippines. indonesia. india, so forth. my interpretation of that is that people in a very large country don't know the candidates firsthand and don't know anybody that does. if you're trying to assess character, it helps if you know the family. on the other hand, vis-a-vis jeb bush, in the '80s when his father was running for president i went to texas and odessa and drove by the houses that the bushes had lived in. i got the addresses. the nicest of them was a little modest ranch house. the idea that three presidents of the future presidents of the united states were living there in the 1950s somehow strikes me as really weird.

and that's -- i think that's a problem. obviously, if the republicans were to nominate jeb bush, they forfeit the idea that you can campaign against hillary clinton as, you know, old stuff, a remembrance to the past or the future. and i don't think, you know -- i used to say jeb bush was the best conservative governor in america in the last ten years. now i've got to extend it to 20 years, which suggests his problem. >> thank you, michael. we'll be back in february. i want to thank the ia team and all of you for coming. this has been a great session. thank you. [ applause ] coming up in a moment our original series "landmark cases," focusing tonight on the supreme court's 1944 decision to uphold the use of japanese internment camps during world war ii in korematsu versus

united states. then republican senator tom cotton talk about disability insurance benefits and proposed changes to the program. later, updates on campaign 2016 from washington examiner politics reporter gabby morangiello. all persons having business before the honorable the supreme court of the united states are admonished to give their attention. "landmark cases," c-span's special history series produced in cooperation with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. number 759. earnest, miranda versus petitioner. roe against wade.