confrontation case, which asked whether a defendant has confrontation right to cross-examine the laboratory technician who did the analysis . so you have the strict textualist, you know, what part of confrontation don't you understand from justice scalia joined by justice thomas and then three of the liberals, justice ginsburg, souter and stevens and the more pragmatic of the conservative side, roberts and alito, joined by the the pragmatic liberal, breyer and kennedy, saying, you know, you're just going to create a huge mess in the crime labs and courtrooms of the country. anyway, i didn't want -- >> no, that's great. it was the perfect segue. .

this case came about when he was arrested for having cocaine and charged with possession and distribution. so the state at his trial introduced a lab report that said yes, that white stuff in that little baggy that he stuffed under the seat in the

cruiser was in fact cocaine, and yes, it was this amount of cocaine in that bag. the issue was whether or not that after the was ok, was that testimonyial evidence, did you need someone to come in and testimony on that? and the supreme court in its decision by justice scalia said yes they are testimonyial evidence, and analysts can be witnesses. i am not sure that the voting rights decision didn't sound like john roberts, but there was a remarkable accident by justice kennedy that did not sound like justice kennedy to me. it was basically representative, but he basically said the court is sweeping away 90 years of established rules, vast potential to disrupt criminal

pronings proceedings. a sharp accident from him. this case is quite significant, and it will take some time to shake out. i wanted to make a point in looking at the court, how we look at the justices. obviously an interesting lineup. kennedy writes the accident, and briar joining roberts and alito in the accident. talking about how new justices can change the court, obviously we will see society mayor have her own impact on the court. >> if you look back to his first term on the supreme court, there was a case called

white versus illinois. a man was convicted in a sex abuse case and he was trying to argue that the girl who accused him should have to go in and testify so he could confront her. he said no. whether or not the evidence was reliable as hear say. thomas wrote a powerful concurrence in which he urged the court to rethink the way it has looked at this entire issue. he looked back historically at how the framers surely must have been concerned about what they had season in english. he talked about the trial of sir walter raleigh, and the framers were concerned we not have these kinds of trials by after the. justice scalia quotes in length from that concurrence.

thomas filed a separate concurring opinion this week looking back to that opinion in that 1992 case, white versus illinois. i only bring this up because when we think about the court, and this goes back to some of the stuff we were talking about at the beginning in transparency, but you still don't really know. you don't know what is happening behind those closed doors. you know what these decisions say. i think it is fascinating to see cases where particularly justice thomas has really had -- we see his powerful accident, but in cases where he has had really an influence on shaping law that we don't necessarily normally think about. i think this is is one. he has obviously made quite a mark on the supreme court through his accidents being very powerful and different. he is often alone as he was in the voting rights case and the strip search case. but there are areas of the law, the confrontation clause being

one where he has shaped it. >> we have to move on to the next topic. time does run. we would love to say more. john, could you take us into the case procedure? >> i would like to talk about the ikbal case, which is a case about civil procedure. i would like to make the case that this is programs the most important case of the term practsly and gives us the strongest window into the roberts court and the warren case. it comes out of the terrorism context, and though it isn't decided in that context, he was someone who was picked up after 9/11 9/11 and complained that he was treated in an improper way because he was a muslim. it was essentially a discrimination case, and the

court resolves the case on looking at civil procedure, looking at the rules of meaning. it rejects the claim in a 5-4 decision because the argument is that -- and civil procedure rethat a playoff have a short and plain state of a claim showing the pleader is entitled to relieve. here the emphasis is on showing. justice kennedy in his majority opinion says there is really nothing in the complaint that shows he is entitled to relieve. there is just a conclusion area statement that he is against it becauses he is a muslim. justice kennedy notes that after 9/11 it is not at all surprising that muslims might have been disproportionateli

impacted. they are looking for law enforcement techniques at people who might be more likely connected to the events of 9/11. and so i think the way to understand the rule in this case, and i think it is quite a dramatic rule, is that in meaning you have to do what one of my colleagues suggests, show that you have some reasonable suspicion, there is some sense even at the pleading stage that the infernoses did not is fernandez -- infernos is that there is some fact that. practically this case follows on a case two years ago in which the court in an anti-trust context made much the same arguments in knocking out a case at the meaning stage

because the anti-trust allegation simply did not have enough factual allegation to suggest anything wrong that was going on here. what this case shows is that it is not limited to anti-trust. it is what a civil procedure scholar would call trans-substantive. this is a requirement now that you show this reasonable suspicion even at the meaning stage. why this is practically important, it has been cited almost 7,000 times in the two years since it has been decided. that gives you some sense of the enormous significance. of course all cases can be addressed at the meaning stage. this was enornous practical importance, at what has worked out to be the plausibility of meaning in scrort. secondly, this gives us a

powerful window into changes into how we regard justice in the united states. some of the liberal meaning cases come from the warren court. what does meaning really focus on? it really tries to get a balance, a balance between two kinds of considerations. on the one hand, you want to be able to have people come into court and make their case even if they don't have possession of all the facts. on the other hand, if they can come into court without showing any plausible suspicion that something is wrong here, they can have the advantage of a huge amount of discovery and impose all sorts of costs. and so it depends on what we are going to wait for more strongly about how liberal our meaning rules are going to be. and i think what those two cases suggest is that the roberts court has a very

different balance, that there is a greater concern about the cost of discovery. you might actually suggest that what is actually destroying liberal meaning is liberal discovery because liberal discovery imposes all of these costs. now i should say that the first one was a 7-2 decision. this was a hotly contested 5-4 decision with justice souter, the author, in accident here. that shows one of the possible approximate going forward of this new plausibility standard or reasonable suspicion standard for pleading, that is may be very much in the eye of the beholder and people may divide ideologyly. this is part of the downside of this rule even though it has some potential of constraining costs. speak supreme court level, one can see this as very much connected to another theme of the roberts court.

what another one -- would have called the passive virtues. avoiding constitutional issues by getting rid of the case before deciding constitutional issues. i think we see that right across the board this term. we have already discussed the voting rights case where they interpret a statute, in perhaps not a completely textump al manner. justice alito decides no longer is the court going to be required to decide the constitution a lot of an action before it against to the other issues. it allows the other courts to decide whether someone has qualified immunity without actually taking a position on the law itself. and finally, another area, and

i think this will segue into our discussion of environmental law, is standing in which the court again in this term kicks something out on the grounds of standing. all these are ways that the court mansion to avoid taking strong positions on constitutionality. i think that is very much in keeping with the attitude that we saw from justice roberts, and i think that may be in some sense his most passionate interest. justice roberts, although he doesn't cite many law reviews, he actually did write one law review article, and it was all about standing, and by implication, the way the court can actually act to advance justice actually sometimes by not actually making a decision on the merits. and so i think this case has multiple meaning, and in some

ways in my view, although it is a civil procedure case, a pleengs case may be the most important case of the term. >> linda, you had a comment? >> yes. just to emphasize the vigor of justice souter's accidenting opinion. he says i wrote the other one, and this isn't what i meant. there were two theories of the defendant's act in the sherman act case. in one theory it was completely innocent and another theory it was cluesive. ep when there are two -- he said when there are two plausible theories, one of which is completely innocent behavior, you have to show more than that in order to get discovery. the court really changed the game, the majority changed the game in that case in going beyond that.

i think it is just interesting that there was no common ground at all between the majority and accident in that case. dissent. they reversed a very modest opinion by judge john newman of the second circuit who said that we realize that discovery in this context of these detainees, and they are suing the former attorney general and the head of the f.b.i., and this is a sensitive matter, and we think discovery should be very limited. it wasn't a katie bar the door, let's get any kind of discovery the playoffs are seeking. still that provided a vehicle for the majority to import the other case into this set of facts. >> you mentioned the environmental cases. there were several important environmental cases this term.

ted, will you take into that? >> yes. i will start with what john ended with, the standing point. there were five so-call environmental cases and the so-called environmental side lost all five. so i suppose it is going to be characterized as a big lows for the environmental interests and so forth, but most of these cases really had to do with other grounds for decision. one of which john mentioned, which was standing. one of them involved the extent to which people that were objecting to a forest service policy involving the cutting of trees could go ahead and bring this challenge, notwithstanding the fact that the case had been settled, and they were then going to challenge some of the process and procedures and policies of the forest service, notwithstanding the fanth that the -- fact that the case had been settled. justice scalia wrote a 5-4 decision saying there is no standing in this case.

john roberts wrote a law review article about standing. he joined the justice department in 1981 when rex lee -- the beginning of the reagan administration. then john roberts, now chief justice roberts was a special assistant to the attorney general. one of the things going on in the justice department then is judicial restraint. what kind of arguments can we make to the supreme court to advance our goals of encouraging more judicial restraint? and standing was a big thing with rex lee and the justice department, and there was john roberts as a part of that. then when he did become chief justice, one of the very first opinions he wrote on stepsively -- on extensively involved --

involved several things. as chief justice, he wrote a very powerful standing decision going down different bases for do all of them. i know we are short of time. one case was wales versus submarines. the ninth circuit issued a decision restricting the use of sonar by submarines because of damage to the whales. the next one was tree huggers verse loggers, and the loggers won. and the use of the best available technology to cool water that was being used for nuclear reactors and put back into the stream. that was best available technology versus cost-benefit

analysis, and cost-benefit analysis won. and then a case which involved a gold mine in alaska, and the justices that were against the permit which had been given to the gold mining company to put the tailings from the gold mining operation into a small lake were very concerned about the fact this was going to kill the fish. i argued the case. i didn't quite say this, but i was thinking of them as bait rather than fish, and they were just going to be killed temporarily. after this was done, there was going to be restoration of the wildlife. that was the small fish versus the gold miners, and the minuters won. really, those cases aside from the standing case had to do with deference to decisions that had been carefully made by the administration. in the case involving the water going from the nuclear reactor, the cost-benefit analysis was

something that the agency had carefully thought out and the best available technology could have been so good that you could not have put any water back into the stream, and justice scalia's opinion said no, no, no, there is some play for the agency to decide what is the best available technology reasonably is. in the case of the whales versus the submarines, the court said there has to be some deference to the military officials and we have to give some difference against some of the speculative argument of injury to whales. in the goal mining case, the e.p.a. and the army corps of engineers had been working for years to determine who would have which permanenting -- permitting authority. they had finally worked out

their differences and come to an afwreement where both agencies worked together, and in this case both agencies issued permits, and the court decided we are not going to substitute our judgment for what the agencies have done with respect to their allegation of responsibility under the clean water ack. >> thank you. let me move on now. john, what should we say about the first amendment this term? >> well, the first amendment this term, the really interesting case is still to be decided on monday. justice roberts' successful attempts to bring union anyonity made the other cases less exciting. in your hand out, the case about union regulation and the case about the monument in the park, the court really did not change the law substantially as

evidence by unanimous results and almost unanimous opinions in both cases. so i tholed i would focus on the most exciting case where i do expect there could be some substantial change in the law, and that is the citizens united case, which is the case about the -- very briefly because of time and i am sure the audience is knowledgeable about the facts. this is about the hillary film. this is a film that was shown that was, to put it mildly, not very favorable to secretary of state clinton. i think there was not a favorable word about her in the 90-minute film. the arningt was this under the campaign finance laws, an lex nearing communication forbidden within 60 days of an election. what is new about this is that

often campaign finances focused on commercials on tv. this is a more traditional medium, a film. and yet the f.e.c. tried to regulate this film because it was going to be given out 60 days before an election. this comes at a very controversial time for campaign finance law because there have been two decisions that point in different directions. the first on fine gold, was the mcconnell decision in which the court essentially upheld it against a challenge, saying that the government could ban election earing communications by corpses 60 days before an election. and then subsequently after justice alito replaces justice

o'connor, they succeed, and justice roberts writes for the court, that something won't be considered -- would be considered an election communication unless it can be interpreted any other way to attempt to get you to vote for or against a candidate. that sets the stage to this oral argument. the question is how is the court going to deal with this? i think there are three possible roots that come out of the oral argument. one is the simplest route that makes almost no law at all, saying this actually doesn't turn out to be that kind of communication you said the wisconsin for life law, that the constitution will protect something unless it is a direct or a functional equivalent of an attempt to get you to vote for or against someone 60 days before an election. i'm not sure how plausible that is given what the film -- as i

said, it says not a nice word for 90 minutes against mrs. clinton. secondly, i think the court might try to expand the as-applied challenge of wisconsin for life, and suggest that movies really have a different standard. as justice scalia said in oral argument, this is about willing listeners. they have to purchase the movie and willing speakers, and the constitution protects that as sack row sappingt sack row santh. the down side of that, we will see a lot more movies like the hillary movie around an election time. finally i think this case could be used as a vehicle for overturning the mcconnell

decision. when we talk about the personnel of the court, justice alito, it is important to understand, is different in important respects from justice o'connor. already he seems to be much less sympathetic to campaign finance restrictions than justice o'connor. that is the con text in which we might see a decision reversing that. another issue that came out of the the oral argument was i think many of the justices became very uncomfortable when they realized that the theory of the mcconnell case and the theory the government pushed would allow the government to prevent even books, let alone films, from coming out 60 days before an election if they were considered to be an election communication. and this seemed to be extremely troubling to the court. after all, what could be more core first amendment speech than a book about a candidate

right before an election? i think that up to date scores what i think is the oddity, threes in my view, of first amendment doctrine. the first amendment is being pushed in a variety of ways, and yet being narrowed around a core political speech around election time. i expect the court is going to allow films like hillary to flourish, and so we can look forward to a lot more of them in 2012. >> on that upbeat note, there is one more case we have to talk about it, and you certainly don't want to go away without our doing this. and that is caperton versus a.t. massey cole company. we are in west virginia. there are not many cases which are more familiar to readers of newspapers and people who watch

television. that has to be on our docket. >> many of you do know the background facts of this case, but let me summarize it briefly. there is a major dispute between two cole companies in west virginia -- coal companies in west virginia. one accuses the other of uses ma lirbles -- malicious aggressive tactics to drive the first company out of business. there is like a $50 million verdict against the aggressor coal company. the defeated aggressor coal company in that case says we are going to appeal, and the president of the company at the same time says i am going to participate in a big way in electing the next available justice to the west virginia supreme court. so that individual spends something like there are 3  million of his own money to replace in the election one of the justices on the supreme

court perceived by him to be least favorable to his potential case, wit someone who he perceived to be more favorable. the coal company that was the winner of the court case below asked that the justice recuse himself. he declined to recuse himself. the case goes to the united states supreme court based upon a claim that there is a violation of the due process cause clause. i don't know what is happening to my voice because every litigant is entitled to a fair jurist and a fair tribunal. and the supreme court decided, to make a long story short, that there wasn't, by a 5-4 vote -- this is another justice kennedy outcome. i think he had six opinions, five of which were