>> which was? >> the effort to obtain more consensus. >> sure, sure. i am not a literal list. it gets close to unanimity. nimity. on our core. [laughter] i am not suggesting that justice is compromised. you cannot do that. that is a violation of fourth amendment. this looks a lot more like long, with five-forcing it is -- 5-for being a little more skeptical, it looks more like all law.

people say, this is what everybody thinks, or close to it. 2, 3, one kind of thing that nobody knows. but we can come together on a broader agreement, and that is better. there are jurors potential consequences. you are more likely to get broader agreement. if you try to spin it out more broadly and insert issues, that is what people are going to spin off. the narrower the ground, the more likely they are to give broad agreement, and i think that is a good thing. i am delighted to be here, and thank you very much forhe opportunity. i should issue a warning.

broadly when that is just for me. [laughter] >> we have got a great panel coming up. we are going to ask our moderator, dick howard, to begin to assemble those. do not go away. we have wonderful commentary ahead, and i would like to thank the chief justice once again for his role in making this such a splendid conference. cloud of -- [applause] >> thank you.

>> this is about two hours. >> will you please take your seats? we are ready to begin the panel. we have, this morning, and wonderful panel under the leadership of professor dick howard, d miller professor of law and public affairs at the university of virginia. prof. howard has done this now for several years, and we have come to admire the manner in which he prepares the panel and prepares the cases and presents this -- each supreme court term.

i understand he is going to not cover many's cases, so you might have some interest in that. but i will call on professor herridge -- howard to come forward. his full resume is in your blue packet, as are the resumes of other panel members. prof. howard. [applause] >> good morning to all of you. i think some of you are veterans of previous sessions like this. we always try to make it worth

your saturday morning. if you feel like getting out at 11:30, just to do not tell me, if you do not mind. we will review some of the significant decision spot for the supreme court's 2008-2009 term, which is almost complete. typically, when we do this panel, the term is over, but they have kept us in suspense. i tried to apply the chief justice with an extra glass of mine the other night and said he could tell us about the decision on monday, but his lips were sealed. i guess we will have to wait for the case of the new haven fire fighters. we have a terrific panel. jan crawford greenberg is a chicago law graduate and the abc news legal correspondent.

you know linda greenhouse from her byline covering the supreme court from the "new york times." she is now a scholar in residence at the yale law school. we have john, a professor of law at the northwestern law school, for who knows the justice department from the inside. and we also have a well-known washington attorney who has argued 52 cases before the supreme court. it is not a record but it puts him in the big-league of protectionist -- practitioners. i want to thank chief judge williams, a judge niedermayer, the other judges of the circuit for their hospitality and extraordinary staff. i cannot think these people too much for having helped us with the arrangements.

so if the panel does not suit your expectations, but it is not because the circuit and staff did not do their best. we are in the fourth year of the so-called roberts court. there is the convention of calling the supreme court by the name of the chief justice that is deceptive. we have every reason to think this will be the roberts scored in every sense of the word, but a is a young escort yet. i want to provide a little historical context at the outset. it struck me, and i checked this out, this week it has been 40 years since earl warren last served on the supreme court. his last day as just as was 40 years ago. some remember his court personally, others have read about it, but we remember it as being uncommonly active trade

judicial activism is a term that comes to mind. john marshall harlan, who was on the supreme court, was often heard to complain that the court seemed to try and find a constitutional remedy for whatever the country's problems might be, and was not happy with what he saw as the courts stepping in to solve those problems when other expenses of government appeared not to be willing to act. archie cox, a scholar, made the comment that historians will record the warren court as being essentially mainstream, that it was very much in touch with the keeping of the genius of american institutions. so you had a wide range of judgments. there was discussion this morning, with judge wilkins and asking the chief justice about important cases, which cases he

would identify. when he stepped down, chief justice warren was asked if he would name the cases that he saw was the most historical. which had the most impact. he dicks three cases, and the top of the roster was car. he also mentioned brown versus board of education, and gideon versus wainwright, the course decision that said if one could not afford a lawyer, one would be appointed. if one tried to sum it up, they would have to say the court is not concerned with technical doctrine. the court wanted to do the right

thing, to get it right and move on, and it's fundamental themes seem to have been fairness and equality. those are two ideas that helped explain the opinions. that was 1969. you remember how it was. if you thought the court was active in 1969, think about the turf that is been constitutionalized by the supreme court since 1969. and number of areas not on the docket and which became constitutionalize, you could name these examples. abortion, roe versus wade, 1973, sex discrimination under the heightened scrutiny of the 14th amendment, commercial speech is now under the umbrella of the first amendment.

a remedy in school desegregation, recently gave rights. quite a list of areas in which the court has steadily expanded its reach of what it takes to be a constitutional matter. in addition, where have been revival's or expansions made before that point. federalism. sliced back into the 10th amendment and 11th amendment, finding the commerce power. i used to tell students they would never have that happen. i was proved wrong. finding limits on congress's power by the 14th amendment at one time seemed unlikely, but the court has done that. the extraordinary expansion subject to due process seem to

be attenuated in the 1960's ended has flared to life. property protection -- the second amendment. that was a list of areas in which the court has rediscovered constitutional protections. i could add to that list, but i think you get the point. we remember the warren court for activism. we should remember how much has happened since that time. the story of the supreme court from 1969 to the present time, one team has been the struggle between republican presidents, reagan and nixon before him, to reshape the supreme court in light of what they thought was wrong with the warren court. nixon put four justices on the

court and pushed among them a solid conservative, but you had some drifting to the left wing. reagan was very concerned about judicial nominations. that was the time when two very young lawyers join the team, john roberts and samuel alito. you had the first george bush, two nominations, one of whom will step down this summer, and bill clinton put two moderate liberals on the court. but there was a long time, 11 years, in which there were no vacancies on the court, quite historic. during that time, if you were to some of the rehnquist court, you would have to say that there

were some extraordinary movements. i mentioned several of them. but there was not a solid phalanx of conservatives. this was a time when the center held. justice o'connor's vote mattered a great deal. then came 2005. this extraordinary sequence of events where and president bush had rehnquist, and samuel alito had rehnquist, and samuel alito was nominated that was the conclusion of the concluding chapter of the rehnquist court and the beginning of the roberts court. what i thought i would do before it turned to the panel is give

you a glance -- the saudis will be familiar, some may not be. not so much about how the court has changed in trial terms, but in many ways with a profoundly different court it is from the court it was in 1969. in terms of who is on the court and how they do their business. first place has been a complete turnover. there are no justices left. there is no one on the present court who behaves like a war and the court justice. there are no thurgood marshall's or william brennan's. i was intrigued by chief justice roberts answer from the audience a few minutes ago about the phenomena and that all nine of the present justices came to the supreme court from the federal courts of appeal. that is unprecedented. i think the chief justice was nuanced in suggesting that that actually masks the fact that the

professional background of the ninth were fairly disparate before they came to the appellate bench. but if you go to 1969, there were people on the warren court who work national figures with extensive experience before coming to the court. for warren, for black, one of the leading new deal senators, for a chief adviser to franklin roosevelt, parker goldberg, secretary of labor, secretary- general of the afl-cio. these were people in the newspapers and the press who were well known nationally before coming to the court. what difference it makes when they debate. do you want people or not to have political background? sabain the third thing that strs

me is the democratic face of the court. in obvious ways, we had women on the court that we did not have in 1969. thurgood marshall's on the court. we will shortly have the first hispanic justice on the court. is interesting to recall that in 1969 it was exactly 1 roman catholic, one jewish justice, and all the rest were protestants, protestants and it is cotillion. the majority of justices now are roman catholic, two jewish justices, and when souter leaves, there will be exactly 1 protestant. i am not suggesting you can trace a cause and effect between the justice's religions and how they vote, but it is an interesting way of commenting on how the court reflects the

changing of democracy itself. the confirmation process. back in the 50's, especially in the new deal days, confirmations were fairly and exciting. it was not until 1953 that justices and nominees appeared before the senate judiciary committee. now especially since the bork hearings, is passionate political contests, guerrilla theater, and that has politicized the process of confirmation. i think today we know a lot more about what goes on in the court and then we did in 1969. i remember in the 1960's, justice is -- justices rarely talked to the press.

today, we have more transparency. justices do more traveling in support is more available to the general public. sixth, changes in the internal process. that is something that warren was not aware of that was touched on again in the conversation this morning. i think the court is a very different place in terms of how it does its business. the notion that justices will share memoranda did not exist until the early-1970's and now seven out of nine justices do it. there was the emergence of since the 1960 cost of what justice paul once called nine law firms, bureaucracies, clerks within the chamber. there is also quite a difference

in how conferences are conducted, the style of chief justice warren, chief justice burger, chief justice rehnquist. they learn a lot from each other. finally, there are multiple opinions that justices go about, the difficulty all lawyers getting guidance from splintered opinions. i think multiple opinions are more common now than they were 40 years ago and. number seven, a phenomenon i cannot explain. some book called the great shrinking docket. they would decide after briefing and arguments, something like one -- the cases, this term, fewer than 80 cases will ha been decided in that fashion. why that is so is not something that anyone can be sure about. those, i think, are just a few of the differences. i do not want to suggest it is a

completely different tribunals. it is inorganic court, and tradition is important. but the court does its way in ways that might be recognized by the warren court. finally, to set it up and say we are blessed with some of the best and most articulate commentators in the country, as you will find out shortly, i thought i would just put on the table several questions of a thematic kind. i'm not saying that the panelists have to address these questions, but they may arise in the conversation during the next part of a program. i think they are just ways of thinking about the term we just finished and to see whether this term helps us understand better where we think the court is going. the first question is, is it possible to talk about a conservative court, whatever

that means? is there evidence that in some way, people would understand the court is a more conservative tribunal than it would have been a few years back. secondly, and this question is interesting in light of having to chief justice year earlier this morning, in what sense is it the roberts court? what is the evidence for the evidence of influence either on shaping the court agenda or in actually shaping opinions themselves, whatever the decision actually say. the question earlier raise about narrow opinions verse is brought opinions -- verse is brought opinions. -- versus broad opinions. two pairs of justices, scalia and thomas, roberts and alito,

are they fair conspiracies -- comparisons? are there in jurisprudential difference is? justice o'connor used to be in so many cases a critical vote. justice kennedy often plays that role now. why should we say about the place of justice kennedy in the court? fifthly, is the court today more receptive, or i should say less receptive to nontraditional legal sources? the warren court was famous, like in brown versus board of education, for having social science data in its footnotes. is the present court less receptive to data in this respect? one might think of the argument over the use of comparative or international law data, which has been somewhat controversial. sixth, what are the methodological debates? justices into debates about

textualism, regionalism, and questions of that kind. seventh, " trend, if any, would you care to remark on from the beginning to the present time of the roberts court? are we able to paint any kind of picture of this particular court? i mentioned to the declining dockets. he was not here to speculate on how cases appear to be decided on merits. number nine, what i call avoidance techniques. there are ways the justices have -- that courts in general have of simply deflecting a case before it reaches the marriage. having decided to tear it, having it go off on grounds like standing or mootness, the sort of thing laid public does not have much concern about lawyers and judges, and are those devices being used in a

recognizable wayy the roberts court? 10th, what about the interplay? this is a question going back to the warren court. the difference between that cord and the democratic legislative process? . what difference if any do find in the core's cases to administrative agencies? today assumes some expertise or confidence that will not be overturned? 11 statutory interpretation. did he read them generously to expand on what they think to be the core principle? or are they likely to give stature to a more narrow or technical reading? in that respect, finally, and

this 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 is not very friendly to environmentalist? what would one say about questions like that? no one is obliged to speak to any or all of those questions, but they're the kinds of themes that might emerge on the various panelists. we're going to sort out some of the main -- i hope you understand we feel no obligation to talk about everything the court did. we simply cannot do that. we think are interesting that we hope you'd like to hear about. the one we want to start with is actually the one the court hasn't fully answered yet and that is civil rights and voting rights. we were all rating for the new haven firefighters case, which will come down on monday. but we're going to republican knowledge right in with the civil rights and voting rights act and i would like to throw

it 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 terms of our -- 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. i worked this out for the 72 decisions so far. so far, on the conservative side of the court, you know, fir give my oversimplistic labels as conservative and liberal because you rightly pointed out -- >> you're the moderator. you're free to. >> but you quite rightly spointed out there were no liberals on the court who might

have served comfortably on the warren court. so i'll stipulate to that. among the four conservatives, chief justice roberts 12, justice thomas 13, justice alito 13, justice scalia 14. on the liberal end, breyer 18, beginsberg 22 or 23 depending how you count ver vote in the strip search case where she dissented from the final being of qualify immunity, suiter 24, stevens, same caveat as justice stevens, same caveat as justice beginsberg, 26 or 27. to some those up, they have collectively dissented 52 times. on the liberal side, they have collectively dissented 90 or 92 times.

justice kennedy has cast for dissenting votes in the entire term. kennedy's role as the so-called media and justice is quite extraordinary. i covered it for 30 years. i have never quite seen anything like this. is it a polarized court of the 72 decisions that have come down so far? 21 have been eight -- have been on a vote of 5-4. of those 24, 16 have been -- with justice kennedy casting the deciding vote. of those 16 in which justice kennedy cast the deciding vote, he went with the conservative side 11 times, and the liberal side five times. that is a statistical overview. i think you can see that yes, it is certainly a more conservative court. i think it is objectively a cova