are those comments fair comparisons? is there some difference in the way they operates? what about justice kennedy? justice o'connor used to be in so many cases the fifth and critical vote. justice kennedy is often maying that role out. what should we say about the place of justice kennedy on the court? fifthly, is the court today more less receptive to non-traditional legal sources. the warren court was famous in brown versus board of education for having social science data in its footnotes. is the present court less receptive to data of that kind? in this respect, one might think about the argument over the use of comparative or international law data, which is somewhat controversial.

sixthly, what about the method logical debates? do justices enter into debates over things like text ulism and originalism and questions of that kind? second, what trends if any, would you care to remark on from the beginning to the present time of the roberts' court? it has only been four years, but are we beginning to paint any kind of picture of this particular court? eighth, i mentioned the declining docket. does anyone care to speculate on why fewer cases appear to be decided on the merits. number nine, what i call avoidance techniques. there are ways that justices have that courts in general have of simply deflecting a case before it reaches the merits, either not hearing it at all, or having decided to hear it and having it go off on grounds like standing or ripeness or moodness, the sort of thing that the public i don't think has much concern about, but we

lawyers and judges know that are very important, indeed. are those devices being used in any recognizable way by the roberts court? tenth, what about the interplay -- this is a question that goes back to the warren court, the intermay between the court and the democratic or legislative or political process? is there evidence that the justices on the present court are more inchined to want to respect decisions being made in some other venue than the court itself, and i would add, in addition to that, what deference, if any, do you find in the court he's cases to administrative agencies? do they assume some expertise or competence which the court presume tively ought not to order a return? how does a court read statutes? do they read them generously to expand upon what they think to be the core principle to the statute or are they likely to give statutes a more narrow or

technical reading. in that respect, finally, and this, again, is to borrow a lay sort of description, is it possible to talk about the roberts' court as being pro business? is it possible to say that it's not very friendly to environmentalists? what would one say about questions like that? well, to say no one is obliged on the panel to speak to any or all of those questions, but those are the kinds of themes that might emerge in the various panelist remarks. now, we're going to sort out some of the main area of the court's work this term. we feel no obligation to talk about everything the court did. we simply can't do that. we have picked a few areas that he we think are interesting, that we hope you would like to hear about, and the one we want to start with is the one that the court hasn't fully answered yet, and that is civil rights and voting rights, and we were all wait for the new haven firefighters' case which will

come down on monday. that is not going to deter us. we're going to plunge right in with civil rights an voting rights act, and i would like to turn to linda greenhouse to lead us off on that. >> thanks, dick. before i start my case discussion, i thought i would pick up on your invitation with some of those broader questions and just give some statistics about the term so far, and what i think is the most telling statistic is how many dissenting votes have each justice cast, because that way you can get a sense of where the center of gravity is on the court. 72 decisions have come down so far. on the conservative side of the court so far, and forgive my oversimplistic labels of conservative and liberal, because you quite rightly pointed out -- well, i mean, you

quite well pointed out that there are no liberals on the court who might have served comfortably among the liberals on the warren court. we will stipulate to that, but i'm going to call them conservative and liberals. among the four conservatives, chief justice roberts 12, justice thomas, 13, justice alito 13, justice scalia, 14. on the lib al end of the court, justice briar, 18, justice ginsburg, 22 or 23, depending on how you count her soet in the strip search case where she voted to find it a constitutional violation but dissented from the qualifying immunity, justice souter, 24. just see develops, 26 or 27.

they have chectsively dissented 52 times and on the liberal side of the court they have dissented 92 times. justice kennedy has cast four dissenting votes in the entire term. so kennedy's role as the so-called median justice is really extraordinary and i covered the court, as dick indicated for many years, for 30 years, and i have never quite seen anything like this. it is a polarized court. of the 72 decisions that have come down so far, 21 have been by a vote of 5-4. of those 21, 16 have been by the usual four versus the usual four, as i outlined earlier with justice kennedy casting the deciding vote, an of those 16, and with justice kennedy casting the deciding vote, he went with the conservative side 11 times and the liberal side five times. that's my statistical overview. i think we can see that it is,

yes, certainly more conservative court. i think it is objectively a conservative court in ways that i'm sure we will bring out in the case discussions, so dick asked me to start with the case that hasn't come down yet, richie against the new haven firefighters. the decision hasn't come down, but it's just an occasion to make a couple of remarks, because this case has turned into a one-dimensional cartoon, you know, of reverse discrimination and hapless victims and this and that, and you know what this will tell us about judge sotomayor and her jurisprudence and all that kind of thing, but what i really want to say is this is a complex case of a lot of nuance in this case, actually. it goes to the relationship between title 7 and equal protection 14th amendment. you all know the facts of it, right, so there was a promotion,

again, for the new haven firefighters, and some white and some hispanic firefighters had got a score at a much greater rate that made them eligible, not entitled, eligible to be promoted because there were more who were eligible than there were slots available for promotion, so nobody in that group could actually claim i would have been promoted, but they all would have been el scwibl for promotion. the racially disparate results of the test on failed was known as the 4/5's rule, a regulation put out by the equal employment opportunity commission that if there is a racially disspare rat outcome in some employment practice or requirement so that one group passes or qualifies at

a rate 80% less than the other groups, that's a prima facie disparate impact and requires some kind of explanation and shifts the burden to the employer to explain the job relatedness of this requirement or the lack or availability of some other alternative that would have produced a left disparate result, so that was the case in new haven. new haven corporation counsel advised the city that they were at risk under this outcome of being sued under title 7, disparate impact, so they cancelled the results of the exam and thereby got a lawsuit from the white firefighters who had scored well on the exam claiming that this was an instance of intentional discrimination, and of course, there is two prongs of title 7, disparate treatment and disparate impact and we have the 14th amendment lurking in the background, so the really

profound question in this case is can compliance with title 7, and new haven said title 7 made us do this, can compliance with title 7 amount to a violation of the constitution, and if the court is going to be getting its hands around that, that's a big deal, because there is some tension in the way title 7 law has developed, and so the question jurs prudentially, or the question toward judicial behavior is whether the court will seek to do what the justice department strongly urges it to do, which is to find some way to reconcile and eliminate this tension and not have the two prongs of title 7 be at war with one another, and it will be very interesting to see whether they can do that. if you look at the april arguments, this case was argued in the court's last arguments,

in which ten cases were argued in april and there were two cases that remain undecided. this case, and a banking regulation preemption case called cuomo against clearinghouse, and justice kennedy has not written yet from april, and so i think there is certainly a fair possibility that this will be a kennedy opinion, and that will be really interesting, because he is somebody who is extremely skeptical of government counting by race, but on the other hand, he and the chief justice, as you recall, parted company two years ago in an extremely important case involved parents involved, the seattle and louisville school case where the chief justice wrote for a plurality on which he said that the racially conference conscious efforts

that the school boards had taken to prevent resegregation of their public schools were not supported by a compelling state interest, that the city of louisville, kentucky had no compelling state interest in maintaining integration, interesting point, and justice kennedy said i can't sign that. it's more complicated than that. i cannot sign this opinion. of course, they have a compelling interest in maintaining integration given their history. however, i think that the steps aren't sufficiently narrowly tailored to serve that interest, so i agree these plans are unconstitutional but i don't sign the plurality opinion, so there is a fair amount of daylight that i will be interested in to see what happen pes, which brings me to a cases that the court decided and this week, they decided the section five voting rights case, a very interesting exercise in avoiding the big issue.

some people say, they avoided the big issue in the voting rights case, because they're going to tackle the big issue in the fire firefighter case. maybe. i have no idea. some people say, well, they avoided the big issue in the voting rights case because they were in the mood for avoiding big issues. we will soon see. in the voting rights case, a case called northwest austin municipal utility district number one against holder, which is in your materials, as you know, this was a challenge to the continued constitutionality of the free clearance positions of the section five voting rights act renewed for 25 years in 2006 by congress, and the big issue lurking there beyond the symbolic issue, the iconic nature of the voting rights act in section five is the voting rights act. there is that china irk shoe that was lurking here, which is how do you evaluate the claim

that section five has run its course, it's become outdated, there is no longer a need for the ciefns much intrusion that section five imposes on the covered jurisdictions by requiring them to give a justice department many or federal court permission before making any voting change? do you evaluate it as appellates in this case argued under the city of bernie standards, particularly referred to whereby congress has enforcement powers under section five of the 14th amendment are limited to finding remedies that are congruent and proportionate to demonstrated violations or do you continue the very deafer enshall standard that the court has always used in evaluating challenges to the voting rights act and that the court had previously turned down three or four challenges to the voting rights act in south carolina which gives congress, having been given direct legislative authority under section five, the court is going

to back off from on a second-guessing congressional judgments. that's a big issue, because the court has danced around with this right up to the line with the city of bernie and other cases applying that judicial principle to a variety of claims but not to claims involving race, claiming involving categories of scute ny. that was really what was teed up in this voting rights case, an chief justice wrote an opinion for eight justices in which he said that the continued viability of the voting rights act presents important and serious constitutional challenges an consequently, we invoke the doctrine of constitutional avoidance and we're going to hold that this district that wants to get out from under the voting rights act through the bailout provision, which on its

face does not apply to this district because it applies in the language of the statute only to those districts -- those jurisdictions that themselves actually register voters, and the seward district did not register voters, part of travis county, texas. travis county came on the side of those defending the voting rights act, but the court said well, because of the doctrine of constitutional rights, we will rewrierts that provision and find that this district is eligible to apply for a bailout and so we sent the case back on that and let them apply and see what happens. of course, it is very intriguing. when dick mentioned that the court is more transparent, to a certain level, it is, but we would really like to know what happened during the course during the vote rights act. >> kennedy was especially active during oral arguments. he ask he asked 17 questions.

>> and the chief justice, too. >> and the chief justice. one detected a certain skepticism as to whether congress had just gone through the motions all these years or whether they had taken a look at the hard changes. in light of that oral argument, were you surprised to see the case come out this way, and i'm wondering, is it a case that we might consider in evidence of the chief justice's ability to pull everybody together on a narrow ground rather than have the court fragmented on a constitutional he question? >> one can argue that. one can also observe that maybe he couldn't get five votes to do what he wanted to do in this case. there is all kinds of theories floating around. there is one interesting theory that the court seeing an institutional train wreck of the sort, obviously of a lesser dimension, but i thought the chief's comments about chief

justice tawny and dread scott were very interesting in terms of the judge having it out, an here we have an election and an election might indicate that the court as presently constituted and behaving is a little bit to the country's center of gravity and will this court declare one of the iconic achievements of the civil rights revolution to be unconstitutional, which raises the question why they took the case in the first place. it came up in the mandatory appellate administration. the bush administration wanted to narrowly affirm off the jurisdictional statement, which would have avoided a bunch of running around the merry-go-round here, but one theory is that the court having in an exercise of activism taken this case for plenary review, behaved as they did on the

bench, have gotten a whole lot of pushback from the country at large for what looked like an inevitable outcome from that argument, pulled back collectively, in that the opinion that has the chief justice's name on it was actually a collective product by the cross peck ter of them saying we won't drive ourselves into this pitch. it doesn't actually reliken an opinion by john roberts. for one thing -- i'm glad he's not here. i can say these things. for one thing, it cites law review articles, but i think i'm right and if somebody in the audience or somebody on c-span can give me evidence to the contrary, i could have asked him, but i don't believe he has

ever cited any law review articles since he has been on the court except law review articles by the judge with whom he clerked. you asked about extra legal materials, and that's pretty common to cite law review articles. maybe since i'm teaching now at a law school, i'm sensitive about this, but this does cite law review articles to tell us what the current status is of voting rights act enforcement and so it's not just -- you know, there was something else going on this, and also the clarence thomas dissenting opinion, which says, you know, things have changed, and the voting rights act has outgrown its need. it is no longer a remedy for intentional discrimination, because there is no longer intentional discrimination in the voting angries. it is not an angry dissenting opinion. it has a mild tone to it. there is another theory floating around that it has started as a

majority opinion or a punitive majority opinion by somebody or pieces of it by some groups of people, and that that was then pulled back and it was left with just thomas's name on it, because it doesn't read like a clarence thomas dissent. you look like you want to jump in. >> i think just having listened to the chief justice and talking about it and trying to explain what he meant by deciding cases on more narrow ground, looking for greater consensus, i think that this case is one that you could easily read as a perfect example, whether by attention or just by results of what the chief justice was talking about doing, it's quite extraordinary, and incredibly divisive and significant issue that we had a eight justices speaking with one voice, including some of the more liberal justices who were willing to sign an opinion that says the voting right acts raisesser is serious

constitution -- raises serious constitutional concerns. granted they took a step back from taking the next step in striking down provisions of that act, as some had urged the court to do, but it's a pretty extraordinary product when you look at this decision. i think about how this court has spoken, and then you can contrast it to the case that linda mentioned from a few terms ago in the school desegregation cases, when the justices really kind of had a mess of a series of opinions with justice kennedy stepping in refusing to give the chief justice his vote, his concurring opinion in that case wasn't what you got behind some of his words wasn't all that different than what roberts was saying in the majority, but we had a case there where that decision really was decided, as linda pointed out, as so many

are, by anthony kennedy, so when john roberts talks about consensus and unanimousness, one way of thinking about that is a way of minimizing the influence of anthony kennedy, and that is in everyone's interest. as linda pointed out, liberals really on the court, and again using judicial liberals, judicial conservatives have no more interest in arguing over justice kennedy, like the human jump ball than the conservatives do because they're going to look. he has been with them five times and conservatives 11. he doesn't always make the conservatives happy but he will go with the conservatives more often than not, so if you're the chief justice, you could say let's decide a case more narrowly. let's decide a race case, a discrimination case more narrowly. that's a way that we can speak with one voice, without letting

justice kennedy decide all these big issues, without us fighting over the vote of anthony kennedy, and they may well be dock that, of course, in richie, but i think this case, i thought was a remarkable opinion for a chief justice to written and who joined this court with the goal of trying to find a more unified voice. >> do you think this section five question will be backed? do you think they are pushing it down the pike and they will have to revisit it or will want to? >> well, i think, you know, this is a conservative issue, not just an issue that happened to drop out of the blue. there are people with a real vested interest in undoing section five, and there are jurisdictions that will seek to bail out under this bigger bailout provision, and they will fail to get a bailout, and that will give them standing to come

back in, and -- because it's hard to bail out, even under this. >> there may be a movement issue, but it's interesting how overwhelming the vote in congress for renewing the act was. i think for 25 years, in the old days it was five years at a time. now it is renewed for 25 years. i think the senate there was only a handful of dissenters, so apparently -- >> that's when the vote limit is unconstitutional. it is always unanimous in the senate. >> i think a number of people interpreted this week's opinion as saying to congress, ok, now the ball is in your court, and amend the section five extension, either limit the coverage jurisdictions or revise them or make them somehow congruent with, you know, issues on the ground today, where there

are demonstrated problems, and that is a complete can of worms. of course, you know, one of the arguments is the reason there are fewer demonstrated problems now with minority access to the deterrents in the city attorney's view of congress's 14th amendment power and justice thomas articulates in in his dissenting opinion, prophylaxis is outside congress's authority. congress has authority only to remedy, not to deter, so it's a fascinating issue. i don't think congress is institutionally capable of satisfying the supreme court no matter what the supreme court says, and no matter what congress does, i think the issue will come back and be joined either by this court or by the

roberts' court as it evolves over time. >> thank you. let's move now to another area of the court's doctrine. this is an area which has been very prominent in the present term, and that is the question of whether state tort law lawsuits are preempted by either federal statutes or the actions of federal administrative ajetions and that -- agencies and that surfaced in two important cases this turn. ted olson, would you like to take us into the preemption part of this? >> i would love to. i know preemption is very much in your mind. it is a saturday morning issue. i would like to say something more about the civil rights case, but briefly. john roberts, chief justice roberts in the earlier voting rights case, and i think it was his first term, said something that it is as sorted business -- it is a sordid business to be beat up by race. then in the seattle and louisville cases he said the way

to end discrimination on the basis of race is to stop discriminating on the basis of race, so he feels pretty strongly about that, and he's got colleagues on the court that feel pretty strongly about it, too i feel about the narrowness of the northwest austin decision, one of the those april arguments where there isn't much time to get everything done. they have got to get everything done by the end of the june. the strip search case, which we're going to come to later was also a late april argument and the tenor of the oral argument was a lot different than what the decision came out. you look at those two cases that looked like they were compromises because it might have been hard to achieve a five-vote majority and write a powerful opinion, sweeping broadly and so, the court found a narrow ground in each case, in the strip search case, which we'll get to the conduct was unconstitutional, but the school district wasn't going -- the

individuals weren't going to be liable for it, so everybody won, so that could have been part of it. one of the things in the orth argument that bothered justice -- in the oral argument that bothered justice kennedy and justice roberts was that part of the voting civil rights act treats different parts of the country differently, and it bothered, at least in the questioning, some of the justices, well, you mean to tell me that certain parts of texas behave differently these many years later, and is there any evidence of that not withstanding the vote in congress? i think it bothered some of the justices and i do think it will come back about having different standards for different parts of the country, which may have been more -- based more in fact some years ago than now. the other thing that's going to come back, that we'll see, perhaps in the richie case, in the areas that did come out of the school cases a couple of years ago is a debateet