negroes from africa. our sofar as it appears on map, it appears to be associated why she ery, which is doesn't want it to be a turning point in american history the turning point in american history, you can't slavery.about if you say that the pilgrims freedom, you ignore that purr tans had -- puritans had slaves, which they is and you could say that it minority of the essential identity of america. that happened down south. real origin was here with a morally elevated crew of people came. these histories are creating the is of national story that doing the cultural work in creating a sense of national eye didn'ty. >> watch the entire lecture aturday night at 8 p.m. and

midnight eastern on lectures in history. historyatching american t.v. where we bring the classroom to you. a one-day of justice e on retired anthony kennedy's career, about the death penalty. hey also touch on kennedy's opinions in race discrimination an affirmative action cases. hosted state university this one-hour invent. -- event. to transition ng a little bit in terms of topic now. have noticed, i faculty , i am on the here at the law school. will skip the longer introduction. i will tell you who we have up here. corena lanes, ps,

gail harriette, and we have unique task of leading multiple topics, not just what agenda, but we will discuss the death penalty as well. our format will be a little bit having t by virtue of the herculean task of doing that. i will spend a minute or two little introduction, then we will go panelist by a brief and give opportunity for others to chime and reserve time at the end for and a. as i mentioned, we are trying to different me pretty areas here, but perhaps we can parallels in thinking about justice kennedy's approach topics. justice ath penalty, kennedy didn't embrace abolition, but he provided the

fifth vote, including simmons, and kennedy v. joined justice stevens opinion in atkins and upholding majority in lethal injection protocols. we saw someone who didn't want to strike the death penalty down together but demarking the alues which a view on society and we'll talk about the importance of dignity in the affirmative action, we have somebody who for a long ofe who never voted in favor an affirmative action program, case, he e texas changed his mind in upholding the university plan. concurring e the pinion in parents involved, threading the needle. trying to think about the issues and two different areas of the

law, we put forth and certainly hit here can tell me if i on anything of value. i think we can think of justice thread the ng to needle and careful in trying to think about boundaries, but i to some extent having an aspirational view of society should be ow society and maybe trying to reach that that informed in how he approach these different areas of the raw. -- of the law. and i think a certain idealism it t society and where should be if not where it is today. i will start with dan to talk procedure.nal if you could summarize -- in ten minutes or so or less than that -- justice kennedy's approach to the field or cases that are of particular interest in that area. a lot of time of thinking about justice kennedy's approach to come up with themes.

think some of them are the relentless anti-formalism that about throughout the whole day. was 't think he particularly concerned with procedural rules for the sake of rules.ral he was oriented towards ubstance in the field than straight-up procedure. and he cared about fair about sts but cared -- fairness but cared about it toward a particular end. person but guilty did not get the correct which i'm entitled, he might not be the best justice. said something really unjustice happened to me, you shape.e in better one thing i -- he is often most libertarian supreme court justice in recent years. he has a big concern about liberty. i don't see a liberty focus in

crempro. i don't see the libertarian concern. cases, fourth amendment which i will talk about in a ittle bit, he is more deferential to the government. i found him more deferential to actors and police in crempro given his jurisprudence in other areas. most important contributions, and i think a lot to the capitalgo case. don't want to take the wind out of your sales, corina. v. florida where the court says you can't impose the of the role for juvenile onoffenders and miller which has individual sentencing for

juvenile homicide offenders. will get a lot of billing when people talk about criminal sphere. pro e is not a uniformly defendant justice. he writes an opinion in one case indicating some theoretical penness to eighth amendment challenges more generally -- not juvenile out the context but upholds an unjustice a first-time drug offender. seems to stingly he get sort of intrigued by some roblems with criminal justice late in his career. he gives a speech in 2012 to the a.b.a. where he talks about the anger imposed by corrections and care more for prisoners. but i don't know if he has nough of an opportunity to flush it out in jurisprudence before leave the court. in the juvenile

context. he does so in brown where there remedy about the violations system.california prison but it seemed like maybe there do if you wanted to can imagine him staying on the court for ten years. opinion in davis that the, it turns out defendant had been in solitary confinement, justice kennedy wrote a question about it and said this is a thing i might be getting into and that ends up being an unfinished legacy. mentioned earlier the talked mendment and we about the relationship between justice scalia and justice where justice scalia was defendant friendly. than you say was more so justice kennedy and we talked about where they disagreed

around issues. >> i would say certainly a want to t, and i don't overstate how much of a fourth -- he talked about the of the fourth amendment but when it came down to remies, i don't think he was lot to meaningfully enforce the fourth amendment. substance, to justice scalia was more concerned with the fourth kennedy.t than justice justice scalia writes a very in y and effective dissent maryland v. king where if you arrest ooes.st justice -- arrestees. with the drug carpenter, ent in is a search to get location. justice kennedy writes in one is when you can question, you know, arrest omeone who refuses to give

their name. o he does -- justice kennedy does write pro-defendant cases. and this is to get to point i a second ago. does have acalia he concern about the dangers of the government. see that as a real threat an emphasizes that the about the re worried dangers of government. i don't see that concern that kennedy's tice jurisprudence. >> so if there is one or several his in which you think leading the court might change procedure has changed that area of the law in a fundamental way? imagine it d to won't in some ways. but how it will change the law, will ch direction it change the law will depend on the issue. formalist issues, issues where the constitution dictates

certainly procedure but largely seems to serve to make it harder to get the bad guys, justice kennedy was usually with the government. in the sixth amendment senate was not a big fan of aprendi line and wrote opinions pushing it back, in the , i think he's majority in crawford but later writes a he train and bunch of i did sent which -- whyents where he is saying, are we doing this and con fonting this particular accuser, making it harder to get the bad guys. kavanaugh said -- if it turns out to be justice very ugh, we'll find out soon, maybe more formalist in those lines and draw more on scalia's decisions. justice scalia emphasized that, ook, we don't get to assess reliability. we have to look at the procedure

in the -- justice think he was i more interested in whether it is harder to get the bad guys. in those cases the defendants will be better off. defendants might be worse off in a more formalist originalist approach that someone like, if is confirmed, like justice kennedy, he wrote opinions about the the counsel ss of in the plea context and those are cases where i think you see saying, look, what's really going on here. maybe there are formal arguments in this doesn't quite work real.context, but let's be he quotes a person's work where our justice system is a police system. not ld imagine that that's going to be something that more type vative originalist

justices will push forward. >> i want to get the two of you you want to chime in. i'm about to transition. it is a seamless transition. it is a big area for justice kennedy was the eighth amendment. we could move to you to talk about, again, maybe approach what his his approach to those cases have been. way re, and i will say by of dan's comments, i agree 100%. 'm not surprised you mentioned eighth amendment cases. when i think about kennedy on criminal procedure, it is sort unremarkable in some way where as all the other areas, it a like, oh, yeah, there's real strong thread here, and i'm eminded of the survey, i don't know 2006, 2008, what it was, as it listed justice kennedy the number ten most conservative judge. 'm like, yeah, he didn't surprise us on criminal procedure. i think that scalia was much more interesting and surprising

had much more of a libertarian thread on criminal was more and kennedy -- there were some things that bothered him and i think you nailed it. when you got to the basic fairness point. and to t so distinctive bring it into the eighth amendment context, he really is distinctive. i feel like today what we've heard thus far and what we'll hear about is this sort of, at least dignity or language of dignity that he had, and it purest form in the eighth amendment. because the eighth amendment was all about dignity showed ore kennedy ever up. and so for the guy who really dignity.out by the way, i went back and looked and during his proceedings, kennedy's, he's asked a question, and he's asked, you

is the sort of liberties that the constitution protects? the do you consider under concept of liberty? and he says an abrave yated list essential of the rights to human dignity. talks s other things, he about harms to the person, injury, anguish to the person. first words out of his mouth are the essentials of dignity.t to human this is something that he had coming in and this is something had, the eighth amendment 1958, ow, really since troppv. dulles and the justice talks about reathing new life into the amendment. and he says the basic concept is dignity of t of the man. nd so you see dignity from the earliest time, justice brennan

justice marshall are talking about dignity when they talk abolishing the death penalty. justice me court tewart for the plurality is talking about dig knit. when they bring back the death italty, when they talk about in woodson, saying you can't penalty.automatic death why? because it -- the dignity dude ne for the dignity and you're going to see this really wrong thread here and so about when you think criminal procedure in kennedy, you think about the death and death penalty doctrine. it is not to say, as dan mentioned. not to say justice kennedy wasn't part of some really atrible decision, especially the beginning, so he was part of the decisions in 1989 saying

hat executing people who committed their crimes as juvenile was justice fine. he voted with -- the majority to say that offenders who had intellectual disabilities, then retarded, was fine. he did that in 1989. majority in f the herrera who said what about the needl innocence claim, you a constitutional violation to go along with it. in as part of the majority walton where the court's supposed to have a limited -- supposed tonalty is be for the worst of the worst, this says, yeah, just ordinary statute this says, well, if it is especially vial, and, you know, the lower courts anything forhat is the contrite murder saying, i'm orry i did that, i had to kill you. and that is limited. so, you know, he's a part, early years ofhe

scary death uite penalty decisions. and what's interesting is that we could talk and about that in q and a, he's -- he's really taking a turn. he does have some blind spots to day, particularly on lethal and.tion vote habeaustently review. but otherwise he really seems to 2000's.turn in the so he changes his mind and votes in atkins with the majority to rule invalid the offenders who have mental disabilities, that's in 2002. e doesn't write the opinion

there, but he later writes the florida wherel v. the court is striking down florida. florida's very narrow conception of intellectual inability. in that case florida said there is a cutoff. he defendant was in a range of error for cutoff. and florida said, too bad. there's a cutoff. and the supreme court said if you're going to use a test, have margin of error. kennedy talks about how the of the intellectually disabled is -- he said it is in dignity. of human and he says this is just a blind age that the death penalty is supposed to be the worst -- the to the worst o offenders, and if they are disabled, they can't be the worst. so this is against the dignity.on of human

in roper v. simmons, he writes that's 5-4., as you mentioned -- i think you there's graham, but kennedy v. louisiana where he outlying andcision invalidating the death penalty of children who did not die. v.plata, and in each one of these that he is writing, he talks about dignity. it is all over the place there. it is the theme, dignity. >> for the two of you, why is it hat this doesn't translate over? why dignity? over into translate every day interactions with the police. why does he not think about in that? >> well, you know, in some ways think that dignity -- that human dignity has this special

talking hen you're about the death penalty. canadian nking of the supreme court that refuses an ex -- extradition request. they said that even though we the extradition request, why? it is because the united states has the death penalty. francis in pope 2016 says, we should abolish the penalty? why? ecause every human being has inalienable right to human dignity. the death penalty is saying you have a right to be a living human anymore. know, we are kicking you out of the human community. you know, to the extent that you believe -- you know, what sister helen was talking about when she said hat every human being is worth

more than the worst thing they ever did. this residual dignity and humanness to you that the takes enalty uniquely away. i don't know what you would say about that but i think there is unique about that that is different. >> yeah, but also in these cases, part of what is important the message society is sending more generally because, as you noted, even in the context, he doesn't become a death penalty his career. in cases voting -- those often break down, he will almost conservative the majority. he's interested in making big statements. defendantsegories of are off limits, but when it comes down to the way the law in the day-to-day operation, he is less interested in really limiting things. you know, it is interesting i think it was,

justice scalia was speaking, and he said, i won't be surprised if the supreme court gets rid of the death penalty all together. e was clearly referring to kennedy because there's already the votes that you needed kennedy. have wondered if his jurisprudence over time -- i play out.dn't and he's certainly not and in jurisprudence wasn't going to go all the way. t was more of a proportion amounty doctrine. amounty ortion doctrine. one was that the death penalty uniquely degrading to the human community. very, very have to be careful. let's be very, very careful and who we do that do it to. the second way i think is this of excessively severe

disproportionate stance that really carries over to the where h penalty context he's saying, look, you know, if the person is not the worst of worst, then what you really see with the death penalty is playing out its rage ver this murder, and that is just a blind rage of brutalization and the court talks about this some in ford court says, you know, you can't execute the insane. think that the proportion amountality doctrine comes from that. of he talks about a dignity ociety and how we can't treat offenders, we can't treat murderers like they treated their victims. why can't we do that? know, in some ways it is part of the larger discourse. they res about whether

suffer lethal injection given victims?y did to their and his view was you can't do unto others what they did to someone else. why? because you can't stoop that low. it is not because they don't deserve it. it is because civilized society shouldn't set its standards by he brutalization of people who are breaking the law and murdering other people. piece i think he had that of it, a dignity to society too. the u brought up possibility of the court ending the death penalty. many writing in this area seem to believe that there or n inevitable decline we're seeing this decline. i don't think i believe that. in a part of the country that is less true than others. with justice kennedy leaving the court what of that possibility? >> yeah, so, i think it is -- i really super interesting, and i'm somebody death written about the

penalty collapsing under its own weight. and if you're -- the interesting with kennedy off the court, it is really -- it is going to be the court that is really going to help. in some of the most was, fic cases, the court that's the way it goes. i think that smart capital be careful about what they bring to the court and whether they want to bring because you court can just make bad law. so i think less things are going court.to the it is going to be more of a my mind ctice, but in furman v. about georgia, and the court steps in nd the court thinks, i'm shutting off the lights, everybody left the party, and you have a massive backlash. so i think in some weird way i nedy may have laid down --

mean he's really the power he decency standard, what is happening with death sentences? and, i know -- you know, those declining. we had seven states in the last death rs get rid of the penalty. executions last year, 23 in the country. mean, ten years ago, 15 years 48 all by itself. so just an idea of -- and, you you have prosecutors are not asking for it as much. askingsecutors that were for it, they are running for reelection, they are retiring getting elected the i think it is sort of dying its if you are ah, and death penalty abolitionist, the do is die it could its own slow death and the worst thing would be for the supreme

in fact, what scalia said that you, you're baiting them. just getting it going again. and so maybe this will all work out but not because of the court. >> i think the death penalty is where you e areas, sort of alluded to this, there states that are repeat players. capital i think under punishment, texas -- in a case clerking, there were multiple cases where justice of that.as a big part he wrote many of those. to the extent this is a more willing issue, he was to play that role of not letting things go too far. curious to see, aside from the bigger question, whether the court is playing role of checking states that -- it also means that now it is chief justice roberts that is left in that position to

role, and he has on occasion. davis case, you saw that chief justice roberts that case.pinion in ant is where the dissent has -- defense has an expert and talks about, well, because he's black, there's a higher chance he will be dangerous in the oh, myand so it is like, gosh. even chief justice roberts says, that.ou can't do he says that some toxins are doses. in small that fits the death penalty so well on so many levels. supreme court had oral arguments on the madison case, the one where you've got a capital defendant. he can't see. walk without assistance. alphabet y recite the to the letter g. he has all of these things wrong

rushing and alabama is to execute him. it goes to the supreme court to incompetent to be executed. who knows how it will turn out, arguments, it ral is pretty clear that roberts is going to side with the libs on this. now, it is a really limited thinkand it is -- i don't it is going to turn any water but in super egregious cases, will we have somebody who cares? other four are, like, that's what you get. i don't know. to follow up on that and say, that case, we will turn out.it if that is true, it will be that capital lawyers strategy of not bringing it to the court, one.might be a bad maybe you get facts up there and say, chief justice roberts, do really want to say this is okay. the worst thing that happens is

they will probably lose in the lower courts in light of the recent nominees. think there is value in forcing the court's hand in whether you want to endorse this or not. on egregious cases, you're right. >> and now let's move to affirmative action. >> you can start us off. >> and let people adapt over the seconds, to summarizing justice kennedy's approach on affirmative action. five minutes. >> okay, the usual story about ennedy is that he started out as a reliability conservative. a to be sure, he had fondness for articulating more soft -- more pliable decisions, but when push comes to shove, he was his more h conservative colleagues in favor

neutral results. even in those cases where he was judgment.g in the in the more recent years, however, according to this usual story, he has had made common ginsberg, justice breyer, agan, justice justice sotomayor. texas v. ly in the texas university case. the first case where justice kennedy was seen as the swing justice, but nonetheless it was a race case, it was an affirmative action case and that was considered to unusual. so people were asking, you know, why is it? what's going on in this case? so what did happen? according to some left of center commentators he just got smart about the virtues of affirmative action. we convinced him, they might

say. conservative commentators, some of them like prey to at he fell washington disease, that disease many small so government conservatives who they are not in favor of small government once they are in charge of things. but can corrupt anyone, there is a special corrupting effect on hat has an believers in small government or a less it even lattering spin, conservatives with washington disease start impress the liberal press. i'm not fond of any of those explanations. obviously oversimplifications and they don't have much to them. alas, i am not going to be able to give you a perfect for all of kennedy's opinions in the area of affirmative action, but for that

give you a uldn't perfect explanation in any other justice.for any other once you start looking really closely at a line of cases by a justice, they will all baffle you a little bit. let me give you a little bit little focussed perspective. let me put my cards on the table here. am a conservative, or a classic liberal, if you will, libertarian a streak. i'm generally sympathetic with kennedy, particularly the opinions. i have sometimes found his approach to pliable be particularly appealing, and i would say the parents involved a little you mentioned earlier is where i found the a better roach to be approach. on the other hand on fischer two decision -- so y way of -- so by way of legal

substance, kennedy has been on the ly consistent issues that has been brought up starting withnow, his 1989 decision in the city of v.crozen. this was >> it was based on public contracting. and kennedy, as always, i liked relentless anti-formalism. i think that's a good term. going to use that. he's been inclined to a case-by-case approach to raise discrimination essentially. saying that,lly look, he trusts judges to nuanced examinations of very complicated circumstances surrounding particular racial policies, more or less from rigid rules and more kind offree from any

doctrine beyond the very doctrine ofshed strict scrutiny, which he has continually referred back to. and so to be sure, like his colleagues, his view is that strict scrutiny must be applied no matter what or what ethnicity is being affected. in he's made it clear that he believes that is a very demanding standard. but he doesn't want to declare race discrimination is unconstitutional or even that adjust for to backgrounds, societal past,mination in the should be outlawed. so unlike justice scalia, unlike justice thomas, he wants to play it loose. and i suppose i could stop there and say, you know, look, naturally if someone is going to play it loose, sooner or later they're gonna hit on a case

they're gonnaw, be on the other side of it. and that's basically what the standard interpretation has been, you know. sooner or later, this was gonna happen. you know, i have to admit, you not a big fan of this approach to race discrimination issues. although back in 1989, during somerozen case, you know, of you weren't born then, but i was on the other side then. been with kennedy and said, hey, we want to play this loose. but after a few years of tonking about it, i tended go towards scalia's side. was attributing this just to the anti-formalism to comeve not been able up with a good explanation as to second fisher case, the fisher case itself, would be the exception for kennedy. for sort of the standard explanation. so that's it. >> i was going to ask, what

explains then, you know -- could it be burying the needle approach? the sort of, you know, holding others to this high standard, standard, meet that you -- you know, not wanting to go so far as to say you can never -- >> yeah. but, you know, i think even scalia might say that he can something where you would not say this is unconstitutional. the hypothetical everyone likes is thein this situation prison riot case where you've got a race riot between prisoners, you know. it's a matter of seconds. you've got to move quickly. save lives ando you decide to order that the prison guards separate them by race. of course, somebody is probably fighting not on the side of -- that's identified by their skin color, because the prisoners know each other and is on what side. you separate them out that way, and somebody is gonna get, you beaten up that way. guardsertheless, prison

have discriminated on the basis of race at that moment. is i don't think anybody going to argue that the prison haves, you know, should conducted a nuanced examination. quickly and they did. and that's the standard that lawcal professionals tend to use. the thick about kennedy, though, thought was interesting is, in the crozen case, he was dedicated to this anti-formalism. he actually articulated his rule. he was pliable about his pliability in that case. what he said was, in discussing wasia's approach, that he for itvinced of the need at this time. just kind of an interesting way, because then you have to wonder, is heotta an example then of what scalia was talking about?

of theseuld take 10 1989 styles and say let's look at how things have progressed, would you have wanted to take a slightly more formal or at least a slightly stronger approach? problems a number of with a loose approach to race discrimination cases. notion of i will know an unconstitutional race discrimination situation when i it, there's not a lot of guidance to give to the public who areut there governed by the 14th amendment or federal actors governed by the fifth amendment. and, you know, everyone naturally will believe what i good idea. i bet the supreme court is going to think is a good idea too, a smart person. and so it's basically no guidance at all. telling these actors that they should do what they think is the right thing to do and not after the crozen case, a case about public

a cottage industry got started up on how to get crozen case, and instead of getting less in the this, we got more. what don't think that was either o'connor, who wrote the majority opinion, or kennedy getting.hey were i don't think they expected that to happen. and another problem, of course, you have an anti-formal approach, it's not gets to decide what is constitutional and what's not constitutional, although i admit that in kennedy's case, he got to decide an awful lot. i mean, he was often the supreme justice. be on theot going to supreme court very much longer. and what happens is, you know, justices.other and their view of what is justified will be different. and that's what happened in the gruter case, where kennedy ends

minority. in that case, much to his disappointment, o'connor, join block, left of center university of michigan's law schools, very large preferential treatment based on race, they that was constitutional. basically the law school had been treating african-american and hispanic applicants to the 3.0school who had gotten a g.p.a., the same as they would a white asian or applicant who got a 4.0. really quite a difference. the things being equal. and that was very much not what wanted. justice o'connor's opinion was youcally, look, as long as avoid setting aside a certain number of seats, as they did or as long as you avoid a certain number of points in the gratz case,

the other university of michigan by the supreme court at the same time, that the majority of the court, o'connor leftist center block, they were willing to put up with that. and o'connor wrote an opinion said, look,ally we're applying strict scrutiny but we're going to defer to the university, which is kind of an odd notion, the notion of and scrutiny. ordinarily that would have been opposites. and kennedy dissented. the problem with anti-formalism, if you trust the judges, if you think they're gonna decide the way you're gonna decide, then i guess it's fine. know, that's a problem. and it's curious. really, again, o'connor thought she was applying the brakes lightly. preferential admission policies, by deciding one case in favor of the university, gruter, one case in grotz,f the plaintiffs,

and she dropped the line in the opinion that in 25 years, there a different approach that she's going to want to take. but i think that maybe, just by then, kennedy lighttood that the approach was probably not going to lead to left. going to lead to more. and there's plenty of empirical evidence right now, even with the university of michigan itself, that yes, the level of gotten larger immediately afterwards. and, you know, that brings us, i guess, pretty much up to the more recent years and to fisher. >> i'm curious. you mentioned earlier that you maybe can't explain or, you the, you don't know why switch, from fisher one to fisher two, but i'm curious about your thoughts about fisher two but also, how does that fit into your description of kennedy and the pliability?

playing --sigh that see that playing into how he decided to uphold the... >> i think it's really hard to explain fisher two. i start out with fisher one here. like obviously people who were if favor of race-preferential decisions were grutterleased with the decision. at the same time, those who wanted race-neutral decisions were pretty disappointed. it's difficult to say, where do we go from here? lawsuits like that are very expensive to maintain, very hard to get funding in order to bring lawsuit if you're dealing with sort of loosey law and moreover, not gruter isy goosey but pretty strong as a deference point. the university of texas case, which was pretty odd on its facts and maybe one that going to be easily reproducible, no matter what the

opinion had been. texas case, the university of texas had actually been operating under very gruter.t rules prior to there had been a decision by the court of appeals that impossible made it for universities in the fifth haveit to race-preferential decisions, in the they had held hawkwood case that tial admissions shal were simply unconstitutional. it.exas stopped doing at the time gruter was decided, texas could have just turned said, okay, now we're going back to what we did in the past. the texas meantime, legislature had passed a law that had required that in texas, graduated in the top 10% of a texas high school would be admitted into

the university of texas, what their s.a.t. who hads or for those already taken the s.a.t., i believe. so the university of texas had been bragging that actually this solution was very effective and it was getting them as much had underas they had their previous methods of with diversity issues. and so they were telling, you know, their students, telling great,e, we're doing doing fine. we don't need, you know, race admissions. and then within 24 hours, after decided,r decision was they came out and said we're bringing back race preferential admissions. so that actually was a very tiny decision in the sense that affected a tiny number of students, because the texas law,olution, that was the and they were not in a position to change that. it actually was not very popular the administration at the university of texas. but it was a law. and so they had very little

maneuvering room there. but nevertheless, they brought the smallsions for number of discretionary admissions that they had. 10%, that, the top pretty much fills up the law school. but they had a few discretionary positions. they picked this up. and so that then led to the fisher case. oral argument comes. and the case is pending before the court for a very long time, than usual. it was argued in the early fall and the decision didn't come out spring.e late it was this little puny, you know, 13-pager by kennedy, of course. basically adopting what he'd earlier dissent in weter, saying, well, we said would defer to the university but we really only meant we a little bit and we really only meant on the compelling interest side of things. to we're certainly not going

defer on the question of whether or not a particular solution is narrowly tailored. and so a lot of the language was much tougher than, you know, it had been before. well, people thought, when they get to decide the final issues -- they didn't juste, because they remanded back to the court to figure out whether or not there tailoring without any sort of deference. but the thought was they're two. get tough in fisher but that isn't what happened. instead, when fisher came back decision on whether or not this really is narrowly tailored, kennedy sided with the of center block. and the trouble is, not really a for, you know, that being the defection in the sense gonna defect, with the conservative group on this really, i mean, in some ways gruter would have been a

that. case for texas was really unclear about what their motivation for doing this was. changing their mind about what their reasons for this was. they had already said that diversity.enty of and they were really only getting a tiny number of additional minority students in way. i mean, i think the number was class of33 out of a 10,000. hadeven so, you know, they about 20% hispanic. very hard for them to argue in case, much easier for michigan to argue that they didn't have, you know, a sufficient number for critical mass. texas was having a hard time with that critical mass side of it. >> i want to make sure that we do have enough time for a q&a. add to -- i can't possibly try to wrap everything points, when iwo think about some of the affirmative action cases. i think the dignity piece that

much, i thinkt so that part of justice kennedy's thought around -- there's a of his piece in some writings, particularly in offended himink it for people to be defined solely by their race. thate to think that informed part of his thinking. obviously very different kind of but thinking about this inherent humanity or that we -- i think that offended his sense of dignity. the other thought that i have is, you know, the other point i careful orbeing threading the needle, i think it struck me that fisher is the work,- if this doesn't nothing will work. it was very narrow in some sense, maybe why it didn't result in these big results. and maybe, again, i'm not here to read his mind, but maybe was also some recognition that to foreclose, even that have been the end and he was not willing to go there. i was going to ask, in the q&a

that will come up, where do we go from here? the q&a. maybe in i want to make sure i have a chance for somebody else to ask aquestion, if anyone has question on any of these topics in our remaining time. >> can you move closer to the mic? >> i'm sorry i didn't hear the whole presentation on action.ive but i just wanted to point out, especially for the students, in mind thatp texas couldn'tr, use any form of racial preferences because the fifth ancuit was existing in anti-bubble because of the hockwood case, in which the fifth circuit ruled that the law. case was not the >> yes, we did talk about this. >> okay. sorry. but that might have been one of whyr reasons to explain

they decided to go back to the drawing board. and look at affirmative action again. couldn'tmember, they go back to the drawing board, them.e it wouldn't let >> i'm in criminal procedure right now, so forgive me if this sense as a to make question. but in some of the opinions by justice scalia, there's a call fourth interpreting the amendment under traditional understandings. substantive due process analysis justice scalia uses, he rejects justice kennedy's analysis of that, where justice kennedy writes separate to say agree but not with that method. but on the criminal procedure along withnd of goes justice scalia. is there a way to reconcile that

just two ships passing in the night? >> my sense is he's not always sortjustice scalia on the of original methods approach. like in the fourth amendment context, justice scalia really a newto sort of bring in way of thinking that's premised on property rights and that's something that justice kennedy was not totally on board with that project. and more generally, you know, oftice scalia made a lot arguments and said, look, this is really what the constitution and justice kennedy just sort of waves his hand at those arguments. as being moreoach sort of fourth amendment, let's about ourttle bit privacy rather than let's drill down to what the original meaning was. >> thank you. >> i'll just chime in a little bit. as a criminal procedure scholar and someone who teaches the now,e and is teaching it when i think of justice scalia on criminal procedure, i mean, places, cheek

swab context, navarro, the 911 call, he talks about, like, the freedom-destroying cocktail. there's some great lines. it seemsme ways, principled. but always -- my mind always case.ack to the hudson that's the exclusionary rule case where the court said the rule doesn't apply to these violations. that in itself is particularly objectionable. you could get there in a lot of different ways. stream court did -- supreme court did. what he did, he talked about the rule.ionary and he said indicta, we had rule was exclusionary constitutionally required. cited mann. the problem is mapp did say that, but there were words in hold of that that were "we

that," so he put a capital t on there with a bracket and called it dicta. think of scalia, it's hard for me to get around moves know,hat, although, you he's -- his rhetoric is -- sometimes he's just dead-on right. and he had this strength of purpose to disagree with the conservatives on the court. but there are lots of places. the one that my mind goes to first, where i'm not i guess i've said enough on that point. >> that goes to the sort of remedy distinction. he really -- justice scalia thought that fourth amendment -- he cared a lot about the substance but it wasn't clear to me how he thought it should be enforced. he wasn't a big fan of the exclusionary rule and civil damage actions. taked it's really hard to it super seriously when your framer is an original meaning

do something like that. i just... i'm just... yeah. wondering, if you something,xplore justice kennedy in the death penalty, as was discussed, he certainly has been concerned about who is -- >> can you move closer to the mic? >> he can be very concerned who gets the death penalty, but especially looking at his jurisprudence or the -- have muchseem to concern about why people might get the death penalty. he was generally a fairly consistent vote for a fairly enforcement of it. that may be correct as far as it proper application, but does seem to be intentioned with his opinions in the eighth amendment cases where he's who is beingut executed, particularly given that a decent number of these

cases involve ineffective assistance of counsel claims or actual innocence claims. it seems to be well -- you know, if you're mentally disabled or you committed the you can't beild, executed. but if you're innocent, well, can. you >> why is executing -- why is it an case that executing innocent person is not super bad dignity? you know? so, yeah, he's concerned with the who. to say, i felt like his decisions on the who also went why.e they were deeply interconnected, act -- it'salks about proportionality. hes talking about how -- says, you know, society can fall in the deathality penalty context. to so it's super important him that we're not executing people as the worst offenders

for the worst crime, that are 16 17 years old when they commit their offense or that are -- you know, have some of intellectual disability. deeplylike the why was connected with the who. i found that his blind spot -- subject toow, i'm pushback on this, but the commonality that i seem to see end game. so that explains the habeas decisions. the lethalns injection decisions. that explains the denial of the even when they were, you know, on issues that we otherwise would have thought he cared about. and i don't know if it was -- for him, it's just like, well, get to the end, it's just going to be ugly; i have nothing to say about this. but even in the lethal injection context, it's really interesting. in baze, in 2008, the court a paralittic.e of

and says,upholds it well, the paralytic is good for the dignity of the process. thought, did they need to do that to get his vote? perhaps. what was interesting about that him.u've paralyzed and if you cared about the you don't because want the person to move or squirm. aboutght, if you cared the dignity, maybe you should ask them, because clearly they don't think it's okay, because they're the ones challenging this. there was a great risk that the anesthetic, was not working, and when you know.ze them, you don't that's the thing. you're under a chemical veneer. so he was willing to say the dignity of how it looked was worth more than the risk that actually torturing someone and just couldn't see it, which is -- i would think is problematic for human

dignity. so i kind of put all that in the of he had a blind spot to sort of the end game piece. but i don't know. differently about that? >> i was thinking a lot about it this morning. think it is one exception to my thieves that he was more -- thesis that he was more concerned with bottom lines than procedures. that is one place where he the restrictions on federal habeas. federal courts get to decide a lot of stuffer. thee's a debate about what differential standard should be. he thinks it should be fairly differential. answer i've been able to come up with is that for him, those cases are largely about federalism. he thinks it's very intrusive on stateburdensome governments and he thinks there's often not very much going on there. just add one quick comment and then we have to break. but at the risk of trying too

hard, i'll try to draw another connection, your description of dignity. it's interesting, because it sort of reminds me dignitye conception of is it? his version? or like you said, the individual at issue? because the point i was making about his discussion of offensiveness of defining people solely by their race, when i was writing about identity, i talked about how you can use that about -- a lotlk of individuals would say that yourdoes in fact define experience. right? i think a lot of people of color, that is very true, every aspectfects of their life. yet he had this very different beingf i perceive that as insulting to dignity. maybe there's a larger question whom?gnity for >> i was thinking, okay, affirmative action, and death whatty, i'm not quite sure the connection is. but i think you found it, right?

note, we will end. thank you to our panelists. [applause] [captions copyright national cable satellite corp. 2018] on reel america, special news series, the warren report, anchored by walter cronkite. november 24, a mob scene continues as oswald is brought into the basement for transport to the jail. then, in full sight of millions of television viewers, a man named jack ruby surges through the crowd and shoots lee oswald dead. >> watch reel america on american history t.v. on c-span 3. week, american artifacts takes you to museums and historic places to learn about history. here's a brief look at one of our recent trips.

>> they spent two and a half months on the atlantic ocean. were claustrophobic, home sick. there was a lot. vermin infestation. on, a lot of difficult times for them during that two and a half month span. it.they made and they made it to the hampton roads area of virginia on november 29, 1619. they stopped at jamestown along the way. they ended up at berkeley 100 as it would be called on december 4, 1619. there's clifford doughty who his book, the great plantation, they rode to the shore. they dropped their luggage on hard winter ground. it was december 4 now. woodsazed at the enclosing them and they listened in complete silence. from the command captain, he said, gentlemen, prayer ofwe can say a thanksgiving. he said we ordain this day of our ship's arrival, in the land

of virginia, shall be perpetually and annually kept holy as a day of thanksgiving to god.hty that was the first official thanksgiving in the new world, first english thanksgiving and it was two years before the pilgrims had their thanksgiving 1621. >> travel with us to historic museums and archives each sunday on our weekly series, artifacts. this is american history t.v., all weekend, on c-span 3. >> next, melanie kirkpatrick, author of "thanksgiving: the holiday at the heart of the theican experience," on history of thanksgiving in america. including president lincoln's proclamation in 1863 that made it a national holiday. life of reflects on the sarah josepha hale, a magazine editor known as the godmother of

thanksgiving. who lobbied president lincoln to create the holiday. 45-minute event was part of the annual lincoln forum symposium in gettysburg, pennsylvania. [applause] pleasure this morning to introduce our first speaker, melanie kirkpatrick. miss kirkpatrick is a writer, journalist and senior fellow at the hudson institute, a tankngton-based think whose research focuses on national security and foreign policy issues. of expertise include east asia and the pacific, rights.policy and human from 1980 to 2009, she was with the wall street journal where she served at op ed pageimes as editor, deputy editor of the oftorial page and a member the editorial board. miss kirkpatrick