caller: i think his initial point is very important. these confirmation fights are proxy's for much bigger, much ideological fight. you remember when sam alito was going to his hearing and we got all crazy about whether he belonged to this or that. we tend to concentrate on trivialities. i think it has to do with the fact that this is both sides talking to their base. when you have senator kyl or senator sessions say sonia sotomayor is far out of the mainstream, and you are looking at a 5-4 decision, it has nothing to do with the facts on the ground. it has to do with the way we are conducting this conversation. we are talking to people who we want to send us checks. this is how we talk about abortion in this country.

this is how we talk about gay marriage. this is how we talk about judges. it is happening in code. it is certainly true that it looks like there's a huge double standard. john roberts called out liberals for this a couple years ago in his affirmative action decision that had to do with schools and voluntarily integration programs. he said the only way to get past two races to get past race and liberals have to start favoring one race over another. that is an open question. there really depends on whether you think we're at the moment in history where we fix to the problems and we do not need all these remedial efforts. that is at the heart of the case. that is the heart of the voting rights case that was decided last week. that is the heart of the affirmative action decision. we need a perspective that says we are there, let's stop, where

we are not there. -- or we are not there. or, people do not discriminate overtly, they do if concurrently. -- they do it covertly. i do think that both sides are accusing the other side of being hypocritical, but on the other hand. host: our guest is dahlia lithwick. abt justices and an annual review of the supreme court term hosted by the washington legal foundation. it is about an hour and half. >> good morning, welcome to the annual supreme court briefing.

i am the chief counsel of the legal studies division, coming to you live from our murdoch center of enterprise. the foundation has been around for 32 years. we communicate in a number of different venues and put on programs such as these. we filed when the for greece in the supreme court this term and won seven of them. we also filed a petition to support common some of which were granted and some are still waiting. our moderator is dick

thornburgh, the legal advisor chairman for the foundation. >> good morning to you all. welcome once again to our annual gas and dust on month -- gab fest on the supreme court review of focusing ring to be focusing on cases that affect this, but there are other cases will be focusing on. we will also focus on judge sotomayor. i am reminded the the mythical bartender philosopher who once observed of the supreme court follows the election returns. we know that is not literally true, but we did have an election last year, and that will certainly affect the court. most notably, president obama

is the appointing of 34 vacancies over the next four years, and we can imagine a quite different scenario for appointments if john mccain have been the president, but perhaps the justice might not have resigned, and there are a lot of things there. the court yesterday completed its october, 2008, term, and we recruited the usual all-star lineup to share their views on its activities. to assess the consequences of a number of 5-4 decisions in recent cases, read something leaves on directions the court mayday, and to make sense on this year's decisions. i will introduce our recipients.

tom serves on the faculty of stanford and harvard and is responsible for the highly regarded blog keeping track of the court. to my right is martin, the former the pretty general -- deputy general, frequently appears before the court as a private lawyer now, and on my far right, mayer brown, a former law clerk to justice thomas. we will invite each of our speakers to share 20 minutes or so of their comments on court decisions and see if they have renewed strange among themselves, and then we will guide to open it up to your question and have you are out of here by 10:00, so with the introduction, i will turn it

over to our first speaker, tom gold. >> thank you so much. it is always a tremendous pleasure when i get invited to come and talk to the foundation. it is impossible to overstate the significance of the foundation and its role at the court institutionally as a body that is committed to a single principle of free enterprise for a writ of the level of threat to suspicion of the foundation -- free enterprise of the foundation is almost unparalleled. the chamber of commerce has a heavy level of participation, but we're focused on cases that have one principle but run through a lot of the supreme court's pocket, so knowing the many folks who are watching our

program on the web and c-span, it is tremendous to get to talk to you in this forum. i have three things i was going to talk about. the first as the term "by the numbers," a statistical analysis about the court. the second is what i think directionally is going on. what do we see about what the supreme court is of two, and enter prudence of -- jurisprudence of i ritualism, that pays attention to how the justices are, and then i want to talk about a couple of cases that may seem like gold coins of procedure. rather than substantive law, with the antitrust law means, which is tremendously important, but the kind of more technical- sounding stuff about when it is you have put in enough detail into your complaint or when is a

burden and what that tells us about the supreme court. the first thing is by the numbers. the supreme court has for many years had what seems to be a going out of business' sign. the number of cases argued and decided was that 71, and then it went to 68 and then 67, so the overall number of cases went from 82 to 72 to 71, and in this term, that number turned around. the court decided 75 cases after argument and 79 cases overall. that is a lot less than 1986. they talked about when they really have to work, and all the justices did all the petitions themselves. they did them twice. they were so tremendously busy. they decided 156 cases, but the thought it seems to have leveled

off and picked -- via docket seems to have leveled off, and that is particularly true for recently. the court has already granted 45 cases for next term. that means it has already filled of its argument counter in january, and it will also be in a position to hold afternoon arguments in october, so i think the -- it sounds kind of silly. does filling the dockets really matter? it actually does in terms of getting the cases in the door the justices want to resolve. the court will reverse 75% of the time, which put in context the number that gets bandied about about judge sotomayor having been reversed 75% of the time. but as the case.

the supreme court it in cases when there is a very significant conflict or it seems -- sees a real problem in the rowling below. 1/5 of the pocket region -- one- fifth of the docket is put in context when you realize seven of the courts of appeal had 100% reversal rate, which is pretty remarkable. that is relatively conservative for a court of appeals. the 11th circuit is the best this year. they had a 100% rate, which is a mildly interesting statistic. 23 cases were decided. that is incredibly high. the court to terms ago have 37% of its cases decided the number

hosts kick back up again. it is illustrious of the fact of the supreme court is more divided now than any time in its modern history by far. the average number of defense her case broke the barrier, so in any case he was expected to be a please 7-2 we are much less likely to see broad unanimity across the court. some people confuse the goal of bringing greater coherence with the idea he wants every case to be nine or nothing. what the supreme court justice tries to do is make sure the court is deciding cases clearly so you know what their answer is. it might 35-4100% of the time, but you know which it might be 5-4 100% of the time, but you

know what its is. justice x joins parts 2a, but not footnote 7. while the lines between the justices are growing more stark, they nonetheless are able to archly decide the cases what you're allowed to do and what you're not alone to do. the five-four #, 23 cases, is the second highest number in the last 15 years. of the 23 cases, 16 were decided on the classic ideological lines. that is justice kennedy gets to decide, so he is the justice ideologically.

of those 16 cases, 11 he joined the right and five he joined the left. what does but mean? it is a two-one ratio, but the important cases it is fair to say he joined right. the cases that will have a lasting significance. the only counter-example is the caperton case, which is whether you can have a case decided against year if the other side of one of the judges by contributing $3 million to their electoral campaign. whatever you think about the decision, whether there is a constitutional right, is of an accord should be handling themselves, i think it is regarded as an adult but will not have a huge effect on litigation and the courts, whereas the other cases decided, including the ricci case, will make the real difference in a

lot of areas of law, so are within the conservative members had a tremendously successful term -- i would say the conservative members have a tremendously successful term. the number i gave now, which is 75%, tends to hold pretty steady. the percentage, but which varies tremendously is whether justice kennedy finds himself evenly divided as he did last term for instead heavily tilted towards the more conservative side. justice kennedy wasn't the majority in 18 of those cases carrier almost the only case he was on the house was in the five-four cases for your -- on by outs was a five-four cases. justice scalia had 85%.

if you really want to know where the supreme court is that in any case, it is justice kennedy that can be your marker. in terms of what just as you might regard as the most interesting, it is justice scalia and justice thomas, who remain the most fascinating and principal. i happen to disagree with the principles of lott, but would you can see is that when they do believe in a principle, they go where it takes them, whether it is favored criminal defendants, something that might help a plaintiff. they stick to their principles, so they are much more likely this term to vote with the four members on the left to form a majority of five, whereas no one on love left ever joined any of the more conservative members of the reason no one in the left ever joined any of the more conservative members to reach a majority.

justice thomas's most likely to be independent, to take a president and throw it overboard and introduce a lot of new ideas, and we will say. maybe he will have a tremendous influence, but he does have a lot of big ideas. the last statistics i will mention is what the justices agreed to gather a lot, because everyone assumes it is justice scalia and justice thomas. on the left, just as stevens and justice souter agreed together 87% of the time. that is the term by the numbers. the statistics i find most interesting. directionally, let me make a couple of points and then turn to a couple of cases i want to highlight. i mentioned actualism, and the court does actually have a conservative majority. i think the 5-4 statistics

illustrate that, but under the leadership of chief justice roberts, it is taking a patient approach, so in areas where the conservatives take the view that the court in the warren court era and subsequently overstep the judicial role, it is much more patient and how it is that it is overruling those positions, so a couple of examples. we have the big case of voting, but was celebrated by the civil rights community as rejecting a civil rights challenge to the voting act, but if you read the opinion, it is page after page of why section 5 of the voting rights act is probably unconstitutional, and i think that decision if congress does not amend the act will later be cited as precedent for the fact that eight members of the court who recognize there were real problems with the voting rights act. there is a problem with the exclusion our role for the fourth amendment, the office of

the polyphyletic your rights in an illegal search and seizure, the fee it -- if the police to violate your rights in an illegal search and seizure, the evidence will not be brought against you, but there should been a realization if they do not do it intentionally. there are cases but do not seem to change the law but much. they do not change it much except with the technical act of bailing out the voting rights act. in area after area, the court is laying out decisions that will later result in significant changes in the law, but they will not look as dramatic because they will point case after case that was decided. the next big example is the finance case. the court did not decide the citizens united case about hillary the movie, which was not very complimentary.

it was revealing to me to note she was the antichrist. these folks wanted to publish a movie that was harshly critical of hillary clinton and wanted to distribute it and ask for it in the run-up to an electoral cycle, and the question is, should we treat that as a campaign act, but it was put on the table. the profound question of whether it should overrule prior preference filling with corporate speech in the run-up to the election, so i think the court will decide as with a couple of terms ago when john roberts nearly decided the finance question but said the table for more aggressive steps. next to there are five or six highly congressional questions were the court will continue to move to the right. i think this court can afford to

be quite patient on the questions on which it is moving along, because it is very unlikely there will be any opportunity to. the court membership to the left in the next eight years -- to pivot the court membership to the left in the next eight years. the next will be justice stevens, who is about 130 years old, and still doing great, but nonetheless, i think it is fair to say in the next couple of years is likely to retire. after that, justice ginsburg is committed to staying on the courts for quite awhile, but i still think it is likely to give iraq obama were to get a second term, he would replace her as well, -- it is likely that if barack obama were to get a second term, he would replace her as well. eight years from now, you half after some unfortunate turn of health, the prospect of justice kennedy are justice scalia, who was about to turn 73 -- they are

within a few months of each other -- would retire and potentially be replaced with someone on the left kerrigan the court is going to change in the next eight years, and the chief justice and others on the left can be quite patient in laying down markers without having to radically do anything, because they will get there eventually. that is the big trend ica over the course -- the trend i see over the next nearly a decade, and i think you will continue to seek substantial changes. the two cases are procedural. the biggest change in my mind that will be cited as 1000 times in the next six months, which for a supreme court case is a lot. the reason i want to highlight two cases for questions of free enterprise in particular is because they were unexpected. this cases of pleading case, which is dull and dry, but it

sets the rules for what you have to put in your complaint to start a lawsuit in court, and the supreme court has significantly raised the bar. it used to be the case i could write to complain that says i think these folks violate the antitrust laws and file it, and if i could just add a little more detail, if it was plausible -- he is capable of anything. i could accuse him, and people could say, that sounds true. the court would let me take discovery, and the supreme court is frustrated with changing policy and the burden of litigation through lawsuits that ratchets up the level of detail that has to be put in a complaint, and that is the case that makes it harder to institute litigation without a strong foundation for believing the defendant has tons of the wrong button show the court very analogous more likely -- now it is more likely will be kicked

out of the corporate and this was so unexpected because it was a case of terrorist detainees. it has nothing to do with free enterprise. it was an allegation that in the wake of several leavitt, attorney general ashcroft has set up a system for detaining people on the basis of their race, had set up a system for detaining muslims. the supreme court said there is nothing in your allegations that suggests you have a real reason to believe this is done with racial motivation. you need more proof. the other case is something unexpected. this is the case about how it is the proof of particular age discrimination case, which is fine, but the supreme court without argument stuck -- decided a much more profound -- lots of times in a civil rights lawsuit you have mixed motives. yes, they were motivated by my age but other things also. this also happens in briefcases,

gender cases, where it is not so clear why someone was -- this also happens in other cases, gender cases, etc., where it is not so clear why. the plight of the burden of proof in our courts, so you cannot shift the -- the plaintiff has the burden of proof in our courts, so you cannot make the defendant prove that we would have done the same thing if it were not for his age. we really thought they were a bad performer. instead, turning back a doctor from a more liberal era of the supreme court, that it is always the plaintiff that has to prove the case. those are a couple of cases i think will be significant that will for the business community in particular give them greater assurance they are not good to be subjected to pretty wide- ranging litigation. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> change in the lineup.

thank you for setting the table for our discussion this morning. our cleanup hitter is now our no. 2 speaker. hats off to you. >> thank you very much. i have been nice to talk about a subset of the court house business decisions -- i have been asked to talk about a subset of the court decisions involving environmental law. by my count there were a total of seven cases in the three areas with the vast majority in the environmental area. the seven cases collectively make up somewhere between a quarter and a third of the court's business dockage for this past term. there was only one telecom decision, and even that was more of an administrative law decision then the telecom decision. i will see more about that in a

few minutes. there was also one antitrust decision, and by the time that case was decided, everyone including the parties were in basic agreement on how the case was going to be decided. the only real question was how it was going to be decided. the court was far more active in the environmental areas, although even there three of them were strictly speaking business cases, and i will talk about them as well as the antitrust case in a few minutes. before the end -- before i do that, i want to make some general observations about the seven. five were from the ninth circuit, and two were from dhunna second circuit. in one -- were from the second circuit. in one of those cases, the opinion was written by judge sotomayor. in the other case she was not on the panel.

in all seven cases, the court of appeals was reversed. that is not so unusual for the ninth circuit. it is a little more unusual for the second circuit, although this term was not a particularly good term for the second circuit at the court either. although the judgment below was reversed and all seven cases, the court was fairly closely divided in the majority of them. four of them were decided by a 5-4 vote. tommy mentioned in some of the cases from this time you had an unusual lineup stand of of votes, so justin last week, you had to business cases decided 5-4 against the businesses -- two business cases decided 5-4 against the businesses. in two cases, justice thomas and scalia actually voted the

majority opinion. there were no such unusual lineups in the seven cases i am talking about. the five were the five you would expect, and the four were the of four you would expect. in six of the cases, the united states were part of it. in the other cases, the party supported one, said the united states was six in one in antitrust telecom environmental cases, which is a high success rate, even for the united states, which enjoys even more success in the supreme court than any other. .