>> this is the stands "america and the courts." the confirmation hearing is set to begin on july 13. she broke her ankle on monday morning at la guardia airport, but continued to meet with senators on capitol hill. she met with senate judiciary committee members. . .

hagelin

>> thank you. >> i had a one on one meeting with the judge. it was a very pleasant conversation. since it was a one on one meeting it would be very unfair to her for me to say anything about the substance of the meeting. and i don't intend to answer any questions, but i want you to know that i enjoyed the 58 minutes i spent with her. thank you all very much. >> senator grassley, healthcare? >> healthcare?

>> supreme court nominee sonia sotomayor's confirmation hearing is set to begin on july 13th. friday, justice ruth bader ginsburg reviewed supreme court cases from this term at the second circuit judicial conference in bolton landing, new york. the second circuit court is the one that supreme court nominee judge sonia sotomayor currently serves on. [applause] >> i'm very glad to be with you, and wish i could stay longer. but monday is d. day at the court, the day that all

dissenting opinions must be in circulation. so sadly i will leave this afternoon and go right back to my work table. i wanted to start by mentioning that beyond our business as usual, there were at least three extraordinary events at the court this term. can you hear me in the back? ok. the first was that in january the country welcomed a new president and vice-president. and just days before the inauguration president obama and vice-president biden revived a tradition i had not experienced in my then over 15 years as an associate justice. they visited the court for a lively conversation that all present enjoyed and appreciated.

second, on may 1st, justice sutor formally advised the president that he would leave the court when we adjourned for the summer. each of us released a statement that day expressing our admiration and affection for a colleague we treasure. mine read, "among jurists with whom i have served, justice david h. suit or is the very best -- sutor is the very best. his level of preparation for the cases we consider is aston -- astonishing. he works so hard at getting it right. he is a genuinely caring man and a model of civility. never have i heard him utter a harsh or unkind word. i count is my great good fortune

to have known him as a working colleague and dear friend. much as i will miss david sutor's company i was cheered by the next headline, the president's nomination of second circuit judge sonia sotomayor as the next associate justice. the nominee will bring to the supreme court, as she did to the district court, and then the court of appeals, a wealth of experience in law and in life. and i am so glad no longer to be the lone woman on the court. [laughter] >> i look forward to a new colleague well-equipped to handle the challenges our work presents. and turning to the term's work,ly say some things about our -- i will say some things about our caseload and lineup. then note a few of the most

watched cases. and after that, describe second circuit decisions on our agenda. last year i predicted we might hear as many as 100 cases this term. that estimate proved incorrect, not at all to my regret. we in fact heard 78 cases. that was up from 69 the preceding term. and next term if the 31 grants are reviewed so far, by a fair measure we will stay in the high 70's ranges. of the 78 argued cases, opinions to date have been released in 60. 17 of the 60, or 28%, were 5-4 decisions, a rate considerably higher than last term's 16%. and there will be more 5-4's in the term's final weeks.

because several of the 16 cases that remain pending involve husband issues. even so, our agreement outran our disagreement. we were unanimous in 23 of the bottom line judgements, and 17 of those yielded unanimous opinions as well. the press tends to focus on splits with the chief justice, justices scalia, kennedy, thomas and alito ranged on one side, justice stevens, sutor, ginsburg and breyer on the other. but it is not always so. true there were nine of the 175-4 splits, nine of those -- 17, 5-4 splits did end up in the usual way. but in five or those justice

kennedy, stevens, sutor and breyer come prosed -- composed the majority and there were unusual lineups as well. i will mention three. the first was oregon v. i.c.e. it posed one of many post-apprendi questions. consistent with our current sixth amendment jury its prudence, could a judge rather than a jury find the fact essential to the imposition of consecutive sentences. i answered yes. and in agreement with me were justices stevens, kennedy, breyer, and alito. second baden against discover bank involved a credit card issuer's resort to a federal court to compel -- to compel arbitration with the dispute or a card holder.

although the issue it accept had commenced in state court, the card holder, however, had raised a counter claim governed by federal law. justice scalia, kennedy, sutor and thomas joined me in holding that issuer had to stay on the state court track, and their there petition for arbitration, not in federal court if so inclined. the fourth circuit whose decision we reviewed had come out the other way, as had the second circuit, although on a different ground than the fourth circuit. third and by far the most prominent of this set in arizona v.gant, the court revisited new york v.b -- beton and cut back on the search of vehicles during

arrest. -- police may search the interior of the car if and only if they reasonably believe that vehicle contains evidence of the offense for which the defendant was arrested. in other words, no search for drugs when the arrest is for speeding. justice stevens wrote the opinion, and he was joined by justice scalia, sutor, thomas and me. careful listeners would have noticed that i emerged in these cases as the swing justice. [laughter] >> the only member of the court in the majority in all three of those 5-4 decisions. among most-watched case that is did not come to us from the second circuit, i picked three,

wyatt v. lavigne, caperton v.a.c. massy coal company, and northwest austin municipal utility district v. holder. wyatt had a predecessor the year before in rigov. med tronnic. the court held 8-1 that f.d.a.'s regime for medical divines pre-empted all state law -- devices pre-empted all state law taught suits -- the f.d.a. allowed to be marketed caused physical injuries. i was the lone dissenter in that case. wyeth v. lavigne involved drugs rather than devices, and the absence of a preemings clause in that statute -- pre-emption clause in that statute proved as positive. tort laws and the state law could be maintained the court held 6-3, claims for inadequate

warnings on drug labels. caperton v.a.t. massy coal company came with a record resembling john grisham's novel "the appeal." the case involved a $50 million jury verdict in favor of caperton, who charged that the coal company's predatory practices drove him out of business. the west virginia supreme court, dividing 3-2, reversed a judgment for caperton and declared victory for the coal company. there was one problem. justice benjamin, who cast the deciding vote in west virginia's highest court, was newly-elected to the court. the coal company's c.e.o. had to defeat -- had spent $3 million to defeat the

incumbent whose seat benjamin won. dividing 5-4, we concluded that benjamin's participation in the case violated capertop's right to due process. justice kennedy's opinion for the court, joined by justices stevens, sutor, ginsburg and breyer, emphasized the truly extraordinary facts, the c.e.o.'s significant and disproportionate influence on the election, and the temporal relationship between the election and the pending case. finally, among these most-watched cases, and perhaps the most important case of the term, northwest austin municipal utility district. at stake is congress' year 2006, 25-year renewal of section 5 of the voting rights act, a measure initially enacted in 1965.

under the act, nine states, seven of them in the south, and some designated areas elsewhere, all with histories of discrimination against minority group voters, must obtain federal pre-clearance for any change in voting practices. the pre-clearance requirement extends to all local units within a designated state or area, and to gain pre-clearance the applicant must show that the proposed change has neither the purpose nor the effect of denying or abridging the right to vote on account of race. eight days after congress' latest reauthorization of the voting rights act, a small municipal utility district in travis county, texas, formed in the late 1980's, filed suit in

federal court alleging that it never engaged in discriminal that story voting practices -- discriminatory voting practices. the utility district thought a statutory exemption from section 5's coverage, a release from the obligation to pre-clear called a bail you the. if bail you the is not available to it, the utility district all thively argued, then the 2006 voting rights act, the reauthorization of the 1965 act, woulding unconstitutional. it would, according to the plaintiff, exceed congress' power to enforce the 14th and 15th amendments. congress had passed the reauthorization act by overwhelming majority in both houses. a three-judge federal district

court in the district of columbia, stressing the deference due to congress, rejected the utility district's argument and upheld the act. what the supreme court will do in this case remains to be seen. the second circuit ranked high on our grant list this term. we granted review in nine cases from the circuit and have so far decided six. the first four to come out yielded 5-4 decisions reversing the court of appeals in all four. i was among the dissenters. i thought the circuit got it right. [laughter] [applause] >> but in the two most recently-decided cases, the court affirmed the circuit's judgment. two of the reversals issued on the same perhaps fitting day, april 1st. [laughter]

>> one of the two, entergy corporation, v. river keeper, he e advocated a section of the clean water act, specifying standards governing cooler water intake structures must "reflect the best technology available for minimizing adverse environmental impact." several states and environmental groups challenged as unduly lax the performance standards that e.p.a. had set for these structures. concluding that statute did not permit the e.p.a. to use cost benefit analysis, the second circuit remanded the matter to the agency for clarification whether the e.p.a. had relied on that analysis. the supreme court held that the statute reasonably could be read to allow cost benefit balancing. justin stevens, the lead

dissenter, thought the second circuit was absolutely right and he criticized the majority for diluting the strength of congress' best technology available instruction. second of the april 1st decisions, 1410 plaza v. highiate, concerned a collective bargaining agreement providing that union members had to arbitrate, not bring suit in court, for complaints under the age discrimination and employment act. relying on a past marking 1974 titled decision, alexander v. gardener denver, the district court and in turn the court of appeals held that a collective bargaining agreement could not waive covered work ers' rights to a judiciary forum for claims that congress created. the supreme court's refers

denver to -- shrunk gardener denver to petite size. justice sutor writing for the dissenters explained why our 230-year-old precedent remained sound and should have controlled in 1410 plaza. f.c.c. v. fox television stations decided that the end of april was, i thought, a case that should never have gotten off the ground. the court upheld the f.c.c.'s 2004 determination that broadcast of isolated utterances of the f or s word could be condemned as indecent under federal law. the second circuit had set aside the agency's position as arbitrary and capricious under the administrative procedure act and as a post script the court of appeals expressed doubt that f.c.c.'s current fleeting

expletive regime could survive first amendment inspection. the supreme court reversed, holding that f.c.c. had adequately explained its new policy. because the court of appeals had not ruled on the constitutionality of the f.c.c.'s orders, the court declined to address that issue. justice breyer wrote the principal dissent, which essentially agreed with the second circuit's analysis. and in a separate dissent, i noted the long shadows the first amendment cast over what the commission has done. justice brennan, i recalled, had warned over 30 years ago that the government should take care before enjoining the broadcast of words or expressions spoken by many in our land of cultural you willalism.

-- lurallism. the -- pluralism. the word, i'm told, was spoken in the argument before the court of appeals, but the lawyers were alerted that some of the justices might find that unseemly. so only the letters f and s were used in our court. [laughter] >> in mid-may, the court reversed the second circuit for a fourth time. the case was ascroftv. ikthal. it was initiated by a pakistani muslim arrested on criminal charges in the wake of 9/11 and held under highly-restrictive conditions in brooklyn's metropolitan detention center. as plaintiff in the bivens action, it -- a number of federal offices alleging his

harsh treatment carried out a discriminal that story policy under which he was designated a person of high interest solely because of his race, religion or national origin. former attorney general ashcroft and the director of the fbi were both named defense. they sought threshold dismissal on grounds of qualified immunity. disagreeing with the district court and the court of appeals, the supreme court held ikthal's pleadings insufficient to stay the claim for relief against ashcroft and the fbi director. the majority opinion on justice sutor's dissent variously interpreted the court's 2000 decision in bell atlantic corporation v.tromley. under tromley, a plaintiff must

allege facts that if taken as true state a plausible -- plausible basis for relief. the district judge [indiscernible] with us. jerry didn't create the applausibility standard, but he did begin the whole business. [laughter] >> so perhaps he can tell us which side got it right in ikthal. [laughter] >> in my personal view, the court messed up the federal rules. justice breyer dissented separately in ikthal to underscore a key point the circuit had made. when a government defendant asserts qualified immunity, the trial court responsible for managing the case constructs a

discovery in ways that diminish the risk of imposing unwarranted burdens on high-level officials. on june 8th, the court broke the string of reversals by affirming the second circuit twice in boyle v. the united states we held 7-2 that an association in fact enterprise under ricoh requires no organizational structure beyond the defendant's predicate acts, and in united states exrel isenstein versus city of new york we held that a plaintiff not joined by the government has the usual 30 days and not the government 60 days to file a notice of appeal. three cases from the second circuit await decision. the backdrop for one of those cases, travelers' indemnity

company v. bailey is the [indiscernible] bankruptcy plan ended to releigh johns men'sville from as bess to us liability. at issue is an attempt by travel ers, johns manville's primary insurer, to pursue recent lawsuits against it and other insurers for conduct relating to their own coverage of asbestos manufacturers to what they did and not to what johns manville did. next, in you mow v. clearing house association, -- cuomov. clearing house association, the court is considering a position of the national bank act limiting the exercise of visitor yal powers over national banks. interpreting this provision, the office of the controller of the

currency adopted a regulation prohibiting states from enforcing against national banks, federal or state, federal or state laws governing banking activities. the controller invoked this regulation to gain a federal court injunction against the new york attorney general when that officer attempted to investigate national bank's lending practices for violations of state and federal antidiscrimination laws the second circuit affirmed the injunction in principal part, holding that controller's regulations reasonably interpreted the ambiguous term visitorial powers. finally and foremost in importance, riciv. destefano -- not to certify the racially skewed results of a promotional

exam for firefighters. ricci and his fellow -- fellow plaintiffs, mostly white, performed well on the exam. most african-americans and hispanic test takers scored low. the city asserted that if it certified the test results, it would be vulnerable to a title vii disparate impact suit. disappointed minority firefighters would target the examination's failure to identify and accurately test for the skills most relevant to leadership posts. ricci, on the other hand, sees the city's refusal to certify the test results as a clear case of reverse discrimination prohibited by title vi and the equal protection clause. new haven prevailed on summary judgment in the district court, and the second circuit affirm relying on the opinion of

district judge arterton. the supreme court decision, one can safely predict, will be among the last to come out this term. in addition to the nine second circuit cases the court heard this term, we reviewed 15 cases raising questions on which the circuit had issued an opinion. we agreed with the second circuit in seven of those and disagreed in four. one of the four still to be decided is forest grove school district v. t. a. that case raises a question that divided the supreme court 4-4 last term when we considered the second circuit's decision in board of education v. tom f. the question presented, under the individuals with disabilities