versus some reduced level of scrutiny in race cases where the motive may be said to be good discrimination, like, for example, in the school cases, the effort to continue to have integrated schools as opposed to discriminating against people of race because of bad motives, so the decision in this richie case that we will see on monday, that's something to watch because that is an underlying over arcing theme with respect to the discrimination cases. i was going to say something about -- you said something about a conservative court. linda mentioned the number of dissenting votes. it's true with reit spect to the number of dissenting opinions, too. the four liberal members wrote dissenting opinions 50 times and the five so-called conservative

justices wrote dissenting opinions less than half of that, 23 times, so there is something that is reflective of how conservative it is. people can argue about particular cases but certainly in terms of outcome, there is quite a disparate allocation there. now, pre-sem shon that you have been waiting for so much. the court had he three preemption cases. it really is important, because it has to do with the allocation of government power between the federal government and congress and the agencies of the federal government and the states. the three cases were all three versus goode and wyatt versus levine and cuomo versus clearinghouse. cuomo versus clearinghouse is one of the three cases coming down on monday. we don't know much about that. all three cases was the degree to which the cig are rhett labeling act, which requires certain language to be on

cigarette labels and on advertising preempted state laws that would provide the opportunity to sue tobacco companyies for mislabeling or misleading advertising. the statute said in order to have a uniform national policy with respect to the advertising and promotion of cigarette products, prohibitions or requirements, by states on the advertising and promotion of cigarettes based upon smoking and health will be precluded. the the altria case has someone suing because they argued the advertising of light cigarettes was misleading. according to the allegations, people smoked those cigarettes in such a way that they got potentially mortar and nicotine than the regular cigarettes so the idea of advertising them as light was misleading and tobacco companies said yeah, but those sort of suits are barred and the

supreme court, in a 5-4 decision written by justice stevens said no, they're not. that prohibition, that explicit preemption provision in the cigarette labeling act goes to prohibitions based upon smoking and health, and what the lawsuit was based upon was the unfair practices act of the state of maine, i guess it was, that prohibited deceptive advertising, so justice stevens reasoned that that wasn't based upon smoking and health. that was just a prohibition of deceptive advertising. i'm going to mention in a minute how much this has chained. woo he are really on a teeter totter as to when things were preempted. the wyatt case, the cig cigarette labeling case was an expressed preemption case, and -- which because the congress had a specific statute covering preemption. the wyatt case had to do with the marketing of pharmaceuticals and the pharmaceutical company there was being sued for farrell

ure adequately to warn with respect to the farm sued cal product and the alleged failure to warn allowed a medical prac practitioner to administer the drug in a way in which it causes serious injuries. the pharmaceutical company said the process by which the labeling of pharmaceutical products on warnings is all arranged according to a process through the food and drug administration, and we had to label the -- the labeling was approved, and it had to be labeled that way, and if you start having every different state through tort cases decide what the labeling should be, that undermines uniformity of the expert judgment of the food

and drug administration. justice thomas added a concurring opinion saying i just don't believe in this implied preemption at all f we're going to hold that the federal government can do something to prevent states from regulating something, congress is going to have to be specific about it. we're not just going to assume that the states don't have power to do this sort of thing. the issues that these cases bring up first with respect to what are the words used by congress to cause the pre-sem shon, the court goes into great lengths in distinguishing preemption if the claim is based on a certain type of conduct or whether it relates to a certain type of conduct and whether that choice of language by congress, and there is very little debate ever about which actual words are going to be used, how much difference it will make, and then whether or not it will be a

preemption based upon a broad general prohibition like an unfair labeling actor unfair practices act, or whether or not it has to be specific, so the court is going back and forth about that. i will just make this one final -- two final points, that the -- if you really want to figure out what's going on with respect to preemption and it goes back and forth and up and down like this, all you have to do is track the opinions of justice stevens. it is really quite amazing and quite brilliant. the earlier cigarette labeling case was a case called chip alone, a 4-1 decision with justice stevens writing the 4 with a concurring opinion. then the court looked at the context of the airline deregulation act and there were two upstanding preemptions. then the court came along with a

medical device case where it was 4-1-4 with justice stevens writing the plurality opinion. then there was another case involving the cigarette labeling act and billboards, and justice stevens wrote a very important concurring opinion. then there were a couple of cases that struck down preemption involving pesticide in one case, an of ford motors in another, justice stevens wrote the opinions in both of those cases, and then last term, in a case called regald versus med tronnic, it was an opinion on medical devices an justice stevens didn't like it but concurred in the opinion and pointed out why it didn't undermine the previous opinions he had written and then these therm terms come along and he has the majority vote. if you are a practitioner and i

argued a couple of these cases, you have no idea what will happen with preemption unless you can figure out a way to persuade enough justices that they will outweigh justice stevens because he has written on every single one of these cases. ly make one final point. a a lot depends on what the agency does. in the obama administration, the president issued an executive order instructing agencies basically to vote through all of their regulations an scrub them clean of any ambiguities, in other words, only preemptions. don't saying regulations with your conduct preempts the state tort suits unless it is fairly clear. those regulations will affect what the future decisions are going to be. >> judge, i would like to jump in on this. i would like to follow up on ted's point. it is crucial to understand what the agencies are doing, because in some respects, some of these cases reflect an implicit

preemption in the area. the cases could have come out differently if the agencies had actually deliberated on the issues relevant to the case. for instance, in wyatt versus levine, if they had taken account of the particular risks and decided despite these particular risks, this is the way the wording should really be, like they had in the altria case, talked about what was requiring cigarette companies to put certain types of nicotine amounts on their labels, then i think the court would have come out differently, because we actually would have had deliberation of the expert agency. i think that changes the pre-sem shon calculus. then there is the concern that we don't want to have juries, inexperts, over rulings of the expert agency. it is also because we will have a decision in a national market,

and a deliberation that this is the way to proceed. on the other hand, if we don't have substantial deliberation by the agencies of the government, the danger is that the court, because they simply failed to deliberate, then the preemption becomes says that even if we haven't had the democratic process even through the agencies deliberate because congress has passed a stat iewrt, we're going to interpret silence to mean the market controls, and i think this court, has often been said to be a pro business court isn't willing to go that far to think that silence is a kind of principle of lazy fair. it is important to understand that these preemption cases still allow a lot of ability for the agencies to deliberate and so preempt the state. as ted suggested, i think the obama administration may require

the agencies not to preempt and therefore allow more groups to regulate. >> quickly, to elaborate on what john said about this very interesting pharmaceutical labeling case, what really was the problem here is that the f.d.a. had long taken the view that a federal label was simply a floor, not a ceiling, and the states could regulate through their tort systems within that. the bush administration changed that position in a preamble to a regulation and made that the new policy, and justice stevens says in the wyatt opinion that this change is entitled to no deference under chevron. it was extraordinary to the supreme court's reaction to that administrative lapse. >> my question is about deference. no deference. now let's move on to an area

which is year in an year out a staple of the court's docket, crim gnat justice cases, especially fourth amendment cases, regularly appear. jan crawford will lead the discussion on that. >> well, we have quite a few, obviously, as you would expect fourth amendment cases as we do every term. those are in your teerms, but instead of going over every single one, some are interesting factually but not that ground breaking. i will pull out a few that i think are ploafts interesting and touch on some of the themes, the broader themes that dick was talking about when we first got this panel discussion started. the first case, of course, is going to be the is a ford versus reading, the strip search case that you probably saw the coverage of it. maybe you saw it on abc news, thursday. that involved this girl who was 13 years old, i will quickly

summarize the facts, in arizona, a middle school student. a fell he will classmate accused of her having prescription strength ibuprofen. the assistant principal took her down to the office, searched her backpack. she denied she had it. she denied she had given this girl drugs, and the principal then took the next step of asking her to go into an adjoining office while a school secretary and nurse asked her to disrobe, and to take her clothes off, and then to pull off her bra and panties so they could examine her body for this prescription strength ibuprofen. the girl then got dressed. she was very upset. she sat outside the office until the end of the school hour. the school never called her mother. her mother learned about this when she got to the school and was furious and upset, and

decided to file a lawsuit against the school district and the school officials, arguing of course it violated her daughter 's fourth amendment rights to be free from unreasonable searches and see sures. the girl, savanna, won in the ninth circuit, which also ruled that the school officials were not he protected by qualified immunity, that they would have to pay her monetary damages, so not only was that search unreasonable, but it was so unreasonable that they were going to be on the hook for paying savanna damages. it then went up to the supreme court, and in a decision this week, the justices ruled that the search was, in fact, yes, it was unreasonable, but that the law was not clear enough on the issue, and so the school officials were not going to have to pay her damages. as ted mentioned, and this is

kind of, i think, a reasonable approach that both sides really could live with. savanna wins this moral victory on an issue that was enormously upsetting to her. she ended up dropping out of school. there was, of course, discussion during the oral argument about how adolescents are so vulnerable, you know, these girls at that age, in these kind of situations and it really affected her quite badly, so she felt vindicated, she said, after this ruling, but then the school officials also are off the hook for damages here, and of course, the court in its decision issued a new rule that said basically before school officials are going to do this kind of intrusive search, they have got to have some kind of belief that there is a real danger to students and that these drugs are actually contained in a students underwear. you know, this all came out during the oral argument that,

you know, they were looking for ibuprofen t wasn't heroin or a handgun, so, you know, the danger part was reflected in justice souter's opinion for the court. ted mentioned that this argument was a little different than the way this decision came down. there is just no question. going into that argument, hike i said, most people thought they would probably split the difference and rule like they did, but when we got into the argument, the justices were so skeptical in so many ways of the girl's arguments. justice briar went on in a long discussion of how is this different from going and changing in the hocker room? i did that and he made some joke that it didn't quite go that well for him, you know, but it is what is the big deal was basically their point, and it was only justice ginsburg who

was forceful and indignant and increasingly outraged as this argument went on that her colleagues just didn't get it. they didn't get it. they didn't understand how upsetting this could be. they hadn't been a 13-year-old girl. she had. savanna certainly was there. her case before the court. we all thought -- i mean, most people thought -- really, when they said was the chief announced thursday we would have this decision, i sat up, because i was ready for another one of justice ginsburg's quite stinging dissents she would read from the bench. instead, justice souter announced this very reasoned, careful opinion that got eight votes, with the underlying proposition that the search was unreasonable, and 7 votes that the justice -- that the school officials were entitled to

qualified immunity. when linda talks about it and ted is talking about we don't really know and so much of it is speculating. we are talking about the consensus possibilities, and the voting rights case, we -- i would love to know what happened between that argument and that decision. i do know that publicly justice ginsburg gave an amazing interview onto record with usa today in which after the argument in which she talked about this case and said essentially they don't understand, and when i talk, they don't listen to me. she is referring to her colleagues on the court. if you missed it, do a google search and get it. >> she said that after the argument. >> she was saying my colleagues don't get it, and then when the decision came down, they apparently had gotten it. >> exactly. >> so this goes to, obviously, some of the things we were talking about, some of the things that dick was pointing

out. he has the role of a justice, the unique role of a justice on the court. now, maybe they were just playing devil's add so cat during the argument. maybe they were all going to go along with this, or maybe it was justice ginsburg's really forceful position in this case that actually did change the minds, and end up with this result, because that is -- i mean, she is bringing that different perspective, and we certainly thought a few years ago in the ledbetter case she issued a dissent on the bench when an alabama woman sued good year for sex discrimination. we have seen in the appoint many of sonia sotomayor this question about whether or not a woman makes a difference on the court. those of you who have been following the sotomayor nomination, one of the major issues of controversy are a series of speeches that she gave

where she suggested that a woman or a wise latina can actually reach a better result, a better result than a man, and she goes on in one speech to say a better result can be a more caring and a more compassionate result. well, of course, you know, that has caused people to go crazy, that that's not appropriate, and that the judges should look at law and not bring in the personal experiences. it's been a really fascinating debate on the role of a woman, an contrasting it, sotomayor has actually, in her speeches, taken issue with justice o'connor's, and those of you who have heard justice o'connor speak about this, she frequently will say that a wise man and wise woman will reach the same as a resultt the end. sotomayor has said she doesn't agree with that, ooh that she thinks a woman can actually reach a better result r i have

thought outside the law that maybe women have a better perspective on many things. >> once you have tried to explain the opinion and gotten this advice to the country, assuming it is the job of the supreme court to clarify what officials at the school level are supposed to talk about. >> you don't want to talk about women on the court? >> i do. i want to know what will officials do faced with this opinion? do they stop stripper is ping altogether? >> no, no. both sides can feel comfortable with it because the schools wanted some guidance. as the chief said in his conversation with judge wilkinson, on some of these issues you don't always want to be looking at the supreme court but the law in some of these places is unclear. obviously, the court in this case in some states, 7, in fact, have gone on to outlaw all strip searches n this case, the court put limits on strip searches and said you basically had to have a

really good reason, and they better be in the underwear and most kids don't put ibuprofen in their panties, but it gives schools flexibility when there is a real danger to students, as the court said, to conduct a strip search. if there is an urgent danger, they can still do it. a lawyer for the school board association told us they were worried that they would have preferred justice thomas' dissent which gave schools quite a lot of deference to do these kind of searches. at the end of the day, it walks a pretty narrow line. anyway, that is the implication of that. >> if they are wrong and they do the search, they now get sued. >> now the law is cheer. we're going to talk about qualified immunity in that issue. john has a couple of cases that he is going to be talking about. these school officials are now on notice that you can't do the kind of strip search that school

officials did in stafford, arizona, and in 7 states you can't do any kind of strip search because the legislations have outlawed it. at any rate, the bigger theme, which i'm sorry, i'm getting off on a tangent here, but the bigger theme about the role of a justice, i think, ginsburg obviously made some difference in this case, and it covered the court over the years. you will see whether sotomayor is right, or whether owe conner is right there is no question that a justice's perspective, obviously, as all of you know from either appearing before the court, arguing before the court or being on the appeals court, your perspective and experiences can make a difference. one of my favorite cases was when justice o'connor had -- i think it was in '96, and attorney general of maryland was arguing that you should be able to not only ask passengers to get out of the car when police are searching the automobile but detain the passengers on the

side of the road. justice o'connor, i will never forget it -- were you there at that argument? she actually stood up and said you mean to tell me that police could detain a pregnant woman, you know, with a baby, and she keeps playing it out, in the rain, on and on, thinking like, how that ruling could affect fect the real worth experiences. >> imon justice o'connor, she often does and did say wise old man, wise old woman at the end of the day make the same decision, but in recent years she has modified that. she is not quite so sure that's true. i heard her give a talk a couple of weeks ago in which she backed away from that in light of current events and quoted -- i think i have the name right, florence allen who, was the

first woman who to be a federal judge, who would say you have to forget you're a woman, and you have to remember that you're a woman. >> this is a very interesting question. i think it goes to the heart of what one thinks about the nature of the judicial process, about what the gender is adding. there is a lot of social science evidence that having a female judge makes a difference in decisions. of course, it is a leap from that to say well, the decisions are better. they're different. that doesn't necessarily follow, except if you have a view that perhaps justice is best served when you have a diversity of perspectives, and that creates justice. that is our democratic view of ow how -- that's why we have democracy. our view often of justice is a more formal one that doesn't necessarily carry over the

diversity leads to better results. i think it's important to think about the difference between the difference that women make and the question of whether that in any particular area means that it's better. that's all. >> other comments on the criminal docket? >> oh, before we go on from that, though, the other thing about the strip search case that is interesting kind of theme, and it shows a unique power of the chief justice, and of course john roberts would like two votes. i'm sure they all would, but he does get to sign the preponderates when he is in the majority, which is a major big deal, and in this case, i thought it was, by assigning that opinion to david souter, he ended up getting a case that kind of toned down whatever dissent that justice ginsburg was going to write on the qualified immunity question. i thought it was a beautiful

example of a pretty wide views of his opinion, assignment power, contracting it, of course, to the ledbetter case several years ago when the court didn't expect that decision to be so controversial and the chief justice assigned it to justice alito, who of course, had just replaced justice o'connor, and so it was just an immediate comparison that alito was writing this decision and how different it would have been if o'connor had been on the court. that, of course, led to that very pointed dissent, outraged dissent by justice ginsburg. ok. the other case that i wanted to highlight is because also, i think it is such a fascinating big picture issue in terms of the way we look at the court and the way we looks a our lives is the d.n.a. case out of the state of lass scasm the decision just came down, involving a william osbourne, convicted of rape and

post conviction, he wanted to get access to his genetic material for d.n.a. testing and the state of alaska refused so he argued that he had a constitutional right, a stawb stan tiff right to access that genetic material to his d.n.a. testing because he thought he could prove his innocence, even though he at one point confessed this case sharply divided the court by a vote of 5-4, but the reason i find it so fascinating and i strongly encourage you to take a look at this opinion is it's just a, to me, a beautiful example of when we talk about the differences in approaches of liberal to conservatives on the supreme court, this case really has it all. john roberts wrote the majority opinion, and it is a -- it is just a classic kind of exposition of conservative

judicial philosophy. now, remember in this case, 47 states and the federal government give you access to your genetic material by law. alaska is one that does it. massachusetts, for some reason, i don't know why, you wouldn't think massachusetts would, but massachusetts does not, and oklahoma. you've got three states, an roberts, in this decision, really kind of gets to, as he did in his confirmation hearings, and again, not to go on another that tangent but when you think about the confirmation cases they can be teaching moments many we saw that are with john roberts talking about the conservative approach to the law. i'm going to quote you some of what he says. it's complete textbook, to suddenly constitutionalize this area would short circuit what looks to be a prompt and considered legislative response, establishing a freestanding right to get d.n.a. with access