plurality opinion. there was another case involving the cigarette labeling act and billboards. justice stevens wrote a very important concurring opinion. there were a couple of cases that struck down pre-emption involving pesticides in one case motors in another. justice stevens wrote those decisions in those cases. the last case was a very strong pro-preemption opinion on medical devices. justice stevens did not like it, but it occurred -- concurrend. this term comes along and he has the majority vote in these cases. if you are practitioner and i argued a couple of these cases, you have no idea what is going to happen with pre-emption on as you can figure out some way to persuade enough justices that they will outweigh justice

stevens because he has written on every single one of these cases. i will make one final -- one final point. the obama administration, the president issued an executive order instructing agencies basically to go through all of their regulations and scrub them clean of any ambiguities, in other words, only preemption, don't write regulations saying your conduct here preements the state tort suits unless it's fairly cleemplet so those regulations will affect what the future decisions are going to be. >> john, you wand to jump in on this? >> yes. i'd just follow up on ted's point. i think it is very crucial to understand what the agencies are doing because, in some respects, both of these cases suggest, at least in the implymouth preemption area, the cases could have come out differently. the agencies actually deliberated on the issues relevant to the case, for

instance, in wyeth versus levine, if they had actually taken a count of the particular risks and decided despite these particular risks this is the way the warning really should be, if they actually had in the altria case talked about what the required cigarette companies to put certain kinds 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. and i think that changes the preemption calculus because then there are the concern that we don't want to have jurors inexpert overruling the views of the expert agency. it's also because we'll have a decision in a national market, we'll actually have deliberation that this is the best 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 a kind of lay say fair, even through the agencies, because congress has passed the statute, we're going to interpret silence to mean the market controls. i think this court, which is often said to be a pro business court, isn't willing to be that far to think that silence is a kind of principle of lays fair but i think -- laysa fair -- la zze fair. as ted suggested, i think the obama administration may require the agencies not to preempt and therefore allow even more room for states

>> just to elaborate on this very interesting -- the 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 system within that. the bush administration changed that position in a preamble to a regulation, not through notice and comment, and made that the new policy. and justice stevens says in the wyeth opinion that this change is entitled no no deference under chef ron. it was really an extraordinary supreme court reaction to that kind of administrative lapse. >> there is one justice's answer to my question about deference. no deference. now, let's move on to an area, which is, of course, year in and year out a staple of the court's document. criminal justice cases, especially fourth amendment

cases regularly appear. i thought for discussion of that, january crawford greenberg. >> thanks, dick. we have quite a few, obviously, as you would expect, fourment cases this term, as we do every term. those are in your materials. instead of just going over every single one, some of which, while interesting fact actually, are not that groundbreaking. i'm going to pull out a few that i think are most interesting and also kind of touch on some of the broader themes dick was talking about when we first got the discussion started. in the first case, of course, the saffered versus redding that you probably saw the coverage of, the strip search case. maybe you saw it on abc news ursday. that involved a girl who was 13 years old at an arizona middle school and a fellow classmate suspected her or accused her of having drugs, prescription

strength ibuprofen. so the assistant principal took her to the office, his office, searched her backpack. she denied she had it. she denied she'd 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 take her clothes off and then to pull out her bra and panties so that they could examine her body for this prescription-strength ibuprofen. the girl then got dressed. she was very upset and sat outside until the -- 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, that that search violated other daughter's

fourth amendment rights to be free from unreasonable searches and seizures. the girl, savana, won in the ninth circuit, which also ruled that the school officials were not 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 savana 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. savana 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, at least 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 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've got to have some kind of belief that there's a real danger to students and that these drugs are actually contained in a student's underwear, you know, this all came out during the oral argument that, you know, they were looking for ibuprofen. you know, it wasn't heroin or a handgun. so the dangerousness jesus

christ souter really got at and that was reflected in his majority opinion for the court. now ted mentioned that this argument -- justice souter really got at that in his majority opinion. the justices were so skeptical in many ways of the girl's arguments. justice briar went on a long discussion about -- breyer went on a long discussion of how is this different than changing in the locker room? i did that. he made some joke that didn't go that well for him. but it's like what's 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 just didn't get it. they didn't understand how intrusive and how upsetting this could be. they hadn't been a 13-year-old girl. she had. savana was certainly there. her case was before the court. so we all saw it and, really, when they said -- when the chief announced on thursday that we were going to have this decision, i sat up because i was ready for another one of justice ginsburg's quite stinging dissents that she was going to read from the bench. and instead justice souter announced this very reasoned, careful opinion that got eight votes for the underlying proposition that the search was unreasonable and seven votes that the school officials were entitled to qualified immunity. so when linda and ted were talking about we don't really know and so much of it is speculating, we were talking

about the consensus possibilities in the voting rights case, you know, i would love to know what happened between that argument and that decision. i do know that publicly justice ginsburg gave quite an amazing interview on the record with "usa today" in which after the argument she talked about this case and said essentially they don't understand, and when i talk, they don't listen to me. she's referring to her colleagues on the court. if you missed it, go do a google search and get it. >> she said that after the argument? >> 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. [laughter] >> so this goes to, obviously, some of the things that we were talking about and some of the things that dick was pointing -- you know, the role of a justice, the unique role of a justice on the court. now, maybe they were just playing devil's advocate 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 some minds and end up with this result because that is -- i mean, she is bringing that different perspective and we certainly saw it a few years ago in the ledbetter case when she issued the dissent when an alabama woman tried to sue good-year for sex discrimination. now with the nomination of sonia sotomayor, we've seen this kind of discussion of whether a woman makes a difference on the court. i know one of the major sources of criticism and controversy that's been targeted at sonia sotomayor is a series of speeches 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, that's caused people to go crazy, that's not appropriate, judges should look at the law and not bring in personal experiences. it's been a really quite fascinating debate on the role of a woman. contrasting it, i mean, sonia sotomayor, actually, in her speeches has taken issue with justice o'con or and those of you who heard justice o'connor speak about this she frequence says a wise man and wise woman will rch a wise result in the end. sonia sotomayor says a woman can actually reach a better result. >> let me ask you, once you have tried to explain the opinion and now have this

advice to the country, assuming it's the job of the supreme court to try to clarify what officials at the school level of supposed to do -- >> you don't want to talk about women on the court? >> i'm just curious to know what will officials now do faced with this opinion? do they just stop strip starches altogether? >> no. i think justice souter wrote a careful opinion that both sides can be comfortable with because the schools really wanted some guidance. as the chief said in his conversation with judge wilkinson, on some of these issues, you don't want to be always looking to the supreme court. but the law in some of these places is pretty unclear. obviously, the court in this case, seven states have outlawed all strip searches. but in this case the court put limits on strip searches saying you had to have basically a really good reason and really good suspicion that they're going to be in underwear and ibuprofen and most kids really don't put ibuprofen in

that is not a good reason. it gives schools flexibility when there is danger to students, as the court said, to conduct a strip search, if there's an urgent danger. they can still do it. a lawyer told us that they were worried that he would have preferred justice thomas's descent, which gave schools deference to do these searches. it really kind of walked a pretty narrow line. that is the implication of that. >> if they are wrong and they do the search, they now get sued. >> right, because now the law is clear. we will talk about qualified immunity and that issue. john has a couple of cases you will be talking about. school officials are on notice that you cannot do the kind of strip search that school officials did in arizona.

# @@@@@@@@ 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, and i think ginsburg obviously made some difference in this case and in covering the court over the years, i mean, whether sotomayor is right or whether o'connor is right, there is no question that justices' perspectives, obviously, as you all know from appearing or arguing before the court or being on an appeals court, your perspective and experiences can make a difference. one of the my favorite cases was one that justice o'connor had i think in 1996 and the attorney general of maryland was arguing that you should be able to not only ask passengers to get out of a car when police are searching an automobile but detain the passengers at the side of the road. and justice o'connor stood up and said do you mean to tell me

that police could detain a pregnant woman with a baby and she keeps playing it out, you know in the rain! [laughter] >> thinking how that rule, how that kind of ruling could affect the real-world experiences. so anyway, moving on. >> do you have a quick comment? >> on justice o'connor. she often does and did say wise old man/wise old woman, end of the day makes the same decision. but she in recent years has modified that. she's no longer quite so sure that that's true. i heard her give a talk a couple of weeks ago in which she backed away from that, i think, in light of current events and quoted -- i think i have the name right -- florence allen, the first woman 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. >> both. >> john? >> just on this very interesting question, i think it really goes to the heart of what one thinks about the nature of the judicial process, about what the gender is adding. of course, there's a lot of social science evidence that having female judges makes a difference in decisions. of course, it's a leap from that to say 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's creates justice. that's our democratic view, that's why we have democracy. of course, our view often of justice is a more formal one and doesn't necessarily carry over that diversity leads to better results. so 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 a leap. >> january, other comments on -- >> the other thing about the strip search case that is an interesting kind of theme is it shows a unique power of the chief justice. of course, john roberts would like two votes. i'm sure they all would. but he does get to sign the opinions when he's in the majority, which is a major big deal, and in this case i thought it was -- by assigning that opinion to david souter, you know, he ended up getting a case that kind of toned down whatever dissent justice ginsburg was going to write on the qualified immunity question. i thought it was a beautiful example of a pretty wide use of his opinion assignment power, contrasting it, of course, to the ledbetter case when i think

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. so it was just this immediate comparison that alito was writing this decision and how different it would have been had o'connor been on the court and that, of course, led to that very pointed dissent, outraged dissent by justice ginsburg. ok. the other case that i wanted to highlight just because it also i think is such a fascinating big-picture issue in terms of the way we look at the courts and the way we look at the laws. this d.n.a. case out of the state of alaska. this is in your materials. a decision just came down. it involved a name named william osborne. he was 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 and

so he argued that he had a constitutional right to access genetic evidence for his d.n.a. testing because he thought he could prove his innocence even though he had at one point confessed. so 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, to me, a beautiful example of, when we talk about the differences in approaches of liberals and conservatives on the supreme court, this case really has it all. john roberts wrote the majority opinion and it is -- it's 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 doesn't. massachusetts for some reason, i don't know why, you would think massachusetts would, but massachusetts does not and oklahoma. they've got three states. and roberts, in this decision, really kind of gets to -- as he did in his confirmation hearings. again, that's going on another tangent. but when you think about the confirmation hearings, those can be teaching moments and we saw that with john roberts talking about the conservative approach to the law. i'm going to quote you some of what he said because it's complete textbook. "to suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response establishing a free-standing right to access d.n.a. evidence and that would force us to act as policymakers. it would take the issue out of the state legislatures and state courts where they've been dealing with it very well and allow the federal courts to

intervene." as he wrote, we are reluctant to enlist the federal judiciary in creating new constitutional rules for d.n.a." now, the liberals on the left, obviously, the four dissenters, saw that this is an emerging area and the courts have a duty to act when this man's constitutional rights had been violated. so you really saw this head-to-head, which really is an ongoing struggle right now on the supreme court between these very different views about the role of the courts, the way to interpret the constitution, and it all kind of bubbles up in this case from alaska. am i out of time? >> no. it's very interesting. the classic conservative case against constitutionalizing an area probably is at its most forceful when it is a substantive right that's being created. what's interesting here is one is talking about the admission of evidence, which is uniquely something courts are able to talk about, and you might say, well, the supreme court would have more competence to decide whether you have crossed a line

where something as so fundamental to the fairness in the criminal process that it you ought to be recognized as a constitutional right. >> right. and the chief justice said in his opinion federal courts should be very reluctant to get entangled in issues of state relief procedures and really only do so when those procedures are, as he wrote, fundamentally inadequate, which he then concluded they weren't here. again, as his -- >> just to contrast that interesting opinion with one that came down this week, the confrontation case -- >> that's the next one, yeah. >> you're going to do it? >> no. go ahead. >> this case was a question about whether there is a difference between the two pairs on the conservative side of the court, justice scalia and thomas, and then chief justice roberts and justice alito. so in this sixth amendment

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 was one of the most recent and perhaps one of the most sweeping kind of decisions on the court's efforts in recent years to refine their jurisprudence on the confrontation clause, criminal prosecutions have the right to be confronted with any of the witnesses against him. the court, over the past 15 or so, let's see, longer than that, 18, 19 years has been looking at what that meant. in this case, this case came about when someone was arrested for having cocaine and charged with possession and distribution. the state at his trial introduced a lab report that said, yes, that white stuff in that little baggie that he

stepped under the seat was in fact cocaine and yes, this was just the amount of cocaine in that bag. the issue was whether or not that affidavit was ok, or was that testimonial evidence that needed someone to come in and testify. 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