internet. they have access to history, the smithsonian, the library of congress, everything. we are changing through the center for history and new media the way that history is taught in college and the way that it is caughtaught in k through 12. . .

importantly, it makes me relative and able to deal with the technology community around here in the greater washington area. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> tomorrow on "washington journal," and political roundtable with the "christian science monitor: and "politico." also, robert baird discusses "the devil we know" and the latest in iran. >> frank mankiewicz. his years as robert kennedy's press secretary, campaign manager for george mcgovern, and the time where walter cronkite

was considered for vice president. >> coincide supreme court to see the public places and those rarely seen spaces. hear directly from justices as they provide their insights about the court and the building. the supreme court -- home to america's highest court. first sunday in october on c- span. >> this is c-span's "america and the courts." next, kathleen sullivan will review important cases from the

recent supreme court term. she spoke at the ninth circuit court judicial conference in monterey, calif., last month. >> thank you, judge fisher, and welcome. it is an enormous honor and privilege to be with you here at the ninth circuit and with so many friends and admirers colleagues. my task is to talk about the last term the supreme court. i thought we would get the morning started with fleeting excellence. i do not just mean what you said on the golf course the other day. although that is not just a joke. justice stevens, in his concurrence -- his dissent in the decision in fcc versus fox says broadcast and expletives, according to the fcc, in violation of fcc broadcast policy, are not always in the center -- in decent.

as he said, as any golfer who has watched a shanked short approach go, it does not mean that the profanity uttered is in decent under fcc rules for describing sex or excrement. but i will return to the first amendment, a first topic. just a few overall observations about the past term. number one, it was not a term for making constitutional law. the only real strict constitutional case in this term was about a tonnage clause. there was a statutory evaluation. the first observation about the term is it that if you edit a

constitutional case book, as i do, you are hard pressed to find any cases that made new constitutional law as opposed to avoiding it. it is striking to make that observation when we see that the hearings we just included in the judiciary committee on the nomination of judge sotomayor focused almost entirely on constitutional law. so the first observation to remember, and this is no secret for those of you on the federal bench, most of what it does is not making constitutional law on hot-button topics. it is doing the work on interpreting statutory limitation, procedural rules, and regulation. that is the bulk of what the supreme court does. we did see that the supreme court did not focus on several

topics of recent interest. for a while, it was a patent court, taking a first great interest in a patent law since the 19th century, and there was a century in which the court did not pay much attention. the federal circuit to the onus off for a while, but then took a great interest and reversed the federal circuit in several cases, taking the pressure off the ninth circuit. the court has not recently taken any significant patent case. what did happen this term with the court took a new interest in environmental law. it took five cases, ruling against the environmental perspective in all five cases, in most, with the government but against environmental ngos. it did rule against several

liabilities in the first major case in 30 years, and some people with success -- suggest that they took a new interest in environmental law. the next observation was that the court was divided along some familiar lines in some cases but had cases you could refer to a strange bedfellows, cases where there was a division but the court did not line up along familiar lines, and we will talk about some of those when we get there. if i could in earnest turn to the agent, there is an outline available giving you the basic holdings of these cases as a reference, but i will try to expand it a bit beyond what is in the outline. to begin with, the first amendment -- probably the biggest anticipated case of the term never happened. citizens united, a case involving a question of whether federal campaign finance

regulations make constitutional be applied to a movie broadcast. in this case, hillary clinton. the question of whether the regulations can be applied consistent with the first amendment, that so-called election terry communication was put off. the big case this term was a fizzle. we have two the first amendment cases, but the first went off on purely statutory ground. fcc against fox television stations, a case in which the other major networks joined fox in challenging the fcc's newly announced excellence policy was decided 5-4.

an amendment interpreting the statutory ban on indecent broadcasting. the band, repeated, and the liberal use of sexually explicit or excretory terms on the airwaves, but it allowed for fleeting expletives to get away. fleeting expletives is a great name for a rock band, if you have teenagers. the sec amended their policy to say that after a couple highly publicized incidents in which first brought up, then share, then mikheil retreat 0-- bono, cher, and nicole richie, the

revisited their opinion, and they said that the fcc should ban those words. the only issue coming to the court was an administrative procedure act issue. it did not reach a first amendment question, or the question of whether fcc versus pacific debt should be revisited or overruled. you all remember that. an fcc sanctioned against george carlin's monologue on the seven dirty words, where he took every opportunity to say them on the air. in a petition to joseph stevens, the sanction was upheld, suggesting that this type of language is not at the core of the first amendment, and in any event, broadcasting is different, because it is uniquely pervasive. it comes at you, you do not

necessarily have the opportunity to turn it off. the court did not revisit that issue in sec versus pacifica in fcc versus box -- fox. but justice thomas, often writes interesting concurrences, acknowledged what everyone knows, which is that broadcasting is no longer the unique, pervasive a salt of medium -- assaultive medium. to the contrary, he says, and now we have cable, satellite, the internet. all of that and come at you using your cellular phone. the ubiquity of broadcasting, the assaultive in this -- assaultiveness has really

diminished. they have already permitted in decency to cable, to the internet, and a future revisitation was promised, but it did not happen here. five-four, justice scalia saying that there was no violation here. it was not arbitrary and capricious to go from the old policy of permission to one of sanction. even though there are some exceptions, like bono and cher were not allowed to say what the soldiers from "saving private ryan" were allowed to say, justice scalia found nothing contrary in that pattern and they upheld the sanctions without reaching the first amendment question. the defenders talked a bit about

the issue. if you put them together with justice thomas, you may hear about the broadcasting exception soon, but it is not happening yet. let's turn next to the only major first amendment case today. i was not familiar when the case rose. but one look was taken at pioneer park in pleasant grove, city, utah, and they said, well, i see a lot of monuments their donated by private groups, a 10th commandment group donated by the fraternal order of eagles. we would like to put up our monument to the seven aphorists

of cinema. the city declined and said, we have a policy of only allowing monuments that speak to our history, or, since most of them didn't come up from groups with which we have a previous relationship. [applause] [laughter] certainly, they wanted to have a relationship with the 10 commandments donors. you may recall pair of cases several turns ago involving established pauses to 10 commandment displays in public places, and the court split. they said you may not, under the establishment clause, it displayed the 10 commandments on a courthouse wall in kentucky, but you may put up a large grant and command monument in a parked outside the capitol building,

and the court made distinctions there, but that doctrine was overhanging the case. that was the shadow overhanging the case. but they established -- avoided the establishment clause issue saying there was no free speech problem in the case. let's recall what it was. he said, is a public park, a traditional public forum that has held since time immemorial for trust. even dissidents should be there, and we should be a will to put our speech into the mix. the court held, and it was unanimous, that no public forum principle was triggered here, because the placement of monuments in a public park is

not private speech regulated by the government, but rather is a speech by the government friend itself. no requirement of content you neutrality or viewpoint neutrality finds the government in selectivity with respect to monuments. who knows what a public monument means? there is a monument to john lennon in central park. there are monuments all over the country that have been given by private donors. we do not know that the city or accounting endorsed the meeting. we just know that the government was speaking by selecting these monuments rather than others and putting them up and the park. whether the government is putting up its own statues and

arches, or whether it is accepting monuments from private donors, these are ways where the government can choose what to say. you may have just been let out of the free-speech frying pan and into the fire. you might think that the monument has run afoul of not endorsing religion, and the court says, we will just postpone that. concurring opinions said we think there are establishment clause questions. in any case, it has been reserved for another day. i would just like to say a few words about the government speech doctrine.

the notion that government has more freedom to engage in activity, it is not just in four cases but in finding cases. you can recall that the courts on terms ago, when justice rehnquist was still alive, they decided a case called rusk against sullivan. the government is giving out subsidies, and it may restrict those subsidies to those who incur child birth and did not advocate abortion. the government's need not be even-handed as it is with public speech. and as justice rehnquist wrote, just because the government may choose to have a national endowment for democracy does not mean they need to have a national endowment for communism or fascism.

hear, similarly, the court was saying just because you have the 10 commandments does not mean you have the seven africans and the five principles of other sex -- sects. i want to remind you, that case was won by a young government lawyer, and extraordinarily skilled, brilliant at writing briefs, named john roberts. he was the deputy solicitor general who at that time talked about government speech. it was not fully picked up then. it was pulled in later in the rosenberg a decision by justice kennedy, which said you may not exclude a religious publication from a public university, but he distinguished, saying it was not the same because it was government speech.

so it is actually trying to create a division between free- speech principles, in which case there is freedom to be selective, and cases in which it is regulating private speech. and other justices are nervous about this doctrine. justice prior and justice souter wrote saying they would not go so far about it, saying it would undermine. but return from free speech to federalism and to talk about the free major federal some cases of the term, three pre-emption cases, and all came out for the states. why is that surprising? is always free statue-specific. he can never know in advance whether someone will be for or against federal pre-emption

until you know what the regulation says. but the reason why this is all levels surprising is that it has been banner headline for pre- emption in the last several terms. several notable cases in which the supreme court has stated remedies, pre-empted by federal regulation, with conflict pre- emption or other forms. i want to comment on that a little bit. when you think states' rights, i think anybody in my generation, but certainly the great generation that preceded mine, states' rights were invoked against federal civil-rights laws. it was a salvo back to the days of john c. tel home -- calhoun.

falling out on that, one of the great legacy is was a deeply articulated philosophy of federalism that came out repeatedly in the opinions of justices rehnquist, o'connor, kennedy -- one of the great point of those opinions was not only eight -- an insistence on states' rights, but protecting them against congress. the rehnquist court gave not only new limitations on commerce power in cases like lopez striking down a gun free schools or more some limiting -- morrison limiting, it has created new enforcement power in

cases like u.s. against morrison. the limit of the commerce clause -- for the first time since the great society, you have limited congress' possible rights power -- congress so' writes power. whether it was telling them to take title to hazardous waste or talented local officials to in law enforcement to do background checks on handgun purchases, in the case formerly known as prince -- [laughter] finally, when you thought what kind of prerogative can they come up with next, they gave us sovereign immunity. not just on the 11th amendment, lawsuits by citizens of another state, but in new cases extending the state sovereignty principal before the federal

maritime commission and state court, leading some to say this was not the 11th amendment, it was the new doctrine down. the rehnquist court really, over and over again, on behalf of what many people would characterize as conservative results, limited the power of the federal government and created new doctrines, including constitutional doctrines, protecting the states from federal encroachment. now look at this striking reversal of the seeming political valence of the federal and decision. you have cases in which rather repeatedly you have the so- called liberal justices, and i use those terms in quotation marks and with all due caution, because they're completely over sympathized -- oversimplified and misleading. but the judges who favored the federal perspective under the rehnquist court now, up finding

for the state repeatedly in cases where there laws are not preempted. and those finding the rehnquist court limiting are now coming out for federal preemption. so we see a shift in valence. you might notice that the business community is facing an favoring preemption. it is not hard to see why. business would most likely prefer to be regulated by one regulator and the central government than 50 regulators in states, were more likely, but one state that is more restrictive.

it is not surprising to see that federal preemption has become an argument favored by the business community and conservative advocates. the case and this trend seems to get that back out. what happens now? victories for states. the states are maine, vermont, and new york. so i would put this set of cases under the heading blue state rights. blue states' rights as opposed to the kind of states' rights that went to the anti-gun control and anti-domestic violence rulings in other cases. starting with the first, a poignant case. a woman who needs both arms as an anti nausea drug injected in her arm that causes

complications leading to amputation. a one-armed former violinist walking down the court room steps saying she is entitled under vermont what to bring a failure to warn claim, even though the drug had been approved under fda labeling regulations. in this case, the majority comes out, saying there is no pre- emption. it was aided by the fact that the fda had more or less hunted down the case to join this majority, and i will say more about that in a minute. the argument is there is no conflict pre-emption of state failure to warn a claim just because the fda approved labeling. justice thomas wrote an interesting concurrence. he said, i do not really believe in it implied pre-emption. if congress wants to expressly

preempt state law, it can say so. justice thomas does not believe in applied anything. he does not leave applied constitutional rights, so it is no surprise that he says no implied pre-emption. that means there is an ever- narrower speed spot to try and get five votes on the court. in the descent, they would have upheld pre-emption. it was interesting, because they are strict constructionists. but they were willing to have a more capacious view of pre- emption. just a little bit briefly, the claim was here that advertising of light cigarettes and reduced tar and nicotine were misleading, and addicted

smokers went to town with to law, tried to practice. the court again found no preemptions. it is limited to certain kinds of advertising claims, but does not preempt representation here. and the third case of note happened in the last day of the term, called cuomo versus the clearing house. it is a case illustrating the blues greats phenomenon.

it takes a more permissive attitude towards environmental laws, banking, and financial regulations, and you have a bunch of attorneys general and other regulators, eliot spitzer is just one example, who try to make aggressive use of state law to do things they think the feds should be doing but are not, in this case, curbing discriminatory lending practices by national banks. in retrospect, we wish there were more discriminating, but not allow the winds which eliot spitzer was challenging. so they asked a question, was the attorney general of new york permitted to go after national banks for discrimination in lending, when the controller's office interpreted the national banking act to his visit to oral

powers, meaning that only the feds can inspect and investigate a national bank. the argument was rejected-5-4, and this is a strange bedfellows case. it is a lineup in which justice scalia rights for the majority, joined by justices stevens, souter, ginsburg, and brier, because they declined to give deference to the office of the comptroller of currency when of course it was dr. scalia, who in the chevron decision first called for greater deference. hear, he says, there may be pre- emption as to certain investigative activities, but when the new york attorney general goes to court, and nothing about the term visitorial powers covers that,

so no pre-emption. they have these narrow majorities -- no. that would be you facing pre- emption courts all the time. they depend on particular cases. three cases do not a trend make, but this is a dramatic results against cases where they have suggested blue states can sometimes prevail. but to turn next to voting rights cases for the term. one of the most closely watched cases was northwest #one against holder.

looking for sound bites, they tried to make an acronym for that, but it did not come out right. a closely watched issue was whether hundreds had exceeded powers by passing the 2006 extension to voting rights, 1965. this was closely watched for the reasons i have been discussing, the fact that courts cut back on congressional power, including amendment 14, section 5, amendment 15, section two. they cut back on the power of congress. this is especially gets state governments. the court famously had thrown out the religious freedom restoration, because there was

no evidence that the states were taking religious freedom away, so there was nothing to restore. against flores, they had announced new limits. everyone thought, is the issue going to drop? if the court pointed stick congress is limited? even with respect to race discrimination and the third rail that was so costly avoided before, as you'll recall, an elegant opinion says, "i am not saying that all of the cases are overruled." he carefully grandfathered all of the cases up holding aspect of the voting rights act as it was reauthorize in 1970 and 1982.

this brings up an important moment, when congress has extended the voting rights act saying that jurisdictions that used to have voting practices and operated as to facto discrimination -- in 2006, congress extended the act, saying we still need these prophylactic measures, and then we'll let the first black president of the united states, but at the record, and would look around parts of the jurisdiction and see we have more blacks registered than whites. people look at that and say you do not need in 1965 remedy, because now it works. race is not a veiled basis for

voting discrimination, as it used to be prince of the case was closely watched, but many people thought, well, the courts are going to do it. they will strike down the reauthorization of section 5, preserve and provisions for 25 more years, saying it is over. no more remedial power here. but the court blinked and did not do that. chief justice roberts writing for a court that was a unanimous said we can avoid the serious constitutional aspect by interpreting the strategy to allow boston to bailout under the bailout provisions. statutory bailout provisions making it easier for you to opt out provisions that could show you have been good for 10 years. but it apparently applied only to counties, either counties or jurisdiction.

the court interpreted the term to include utility district and therefore allow the bailout, avoiding the constitutional question and the armageddon of whether congress still has remedial authority in race discrimination, even if it does not for disability, certain gender discrimination, and so forth. i do not think that is surprising, because the chief justice, in confirmation hearings and public statements since leaving the court has talked repeatedly about the need for institutional. it is absolutely consistent with his stated philosophy. so it was not a surprise. that said, it will not go away.

if there is something disrespectful to the states, then you'd have some. no doubt there will be other challengers, and the record congress gave the court may not have made it that easy to survive, to say that this is ongoing. there will be future challenges. i will suggest that many of them will continue to fail, because but aggressive use of bailout provisions is going to narrow the statute it has.

justice thomas dissented from the constitutional ruling. he provided the ninth boat, but he would have reached the constitutional question. an interesting opinion against, and much of the best reading comes from his opinion. he argued section 5 is no longer necessary, writing vividly about the way it was almost a necessity, but he said you can only necessitate prophylactic remedy is when there is intentional discrimination, and he does not see it going on now. there was another section to case this term barely noticed,

against strickland, interpreting section to double- a-1 narrowly, saying that a claim under section 2 of the act may not be brought by a jurisdiction that is only 39.6 black and 39.36% black, as opposed to majority, minority. this makes it more difficult to create majority minority districts, and dissenters would have said it should be fine for legislators to create this district, even when there is less than 50% minority voters in the district, as long as they could obtain the candidate of their choice. justice thomas wrote separately, saying they doubted whether section 2 should promote violation claims at all, but as usual, roberts, kennedy kept it

narrow. they said no dilution here. while we are on the topic of race, i would like to turn next to some of the most noted civil rights cases of the term under the statutes apart from the voting rights act. i'm sure it is in everybody's mind, given the prominence of mr. ritchie himself at the sotomayor hearings, there she testified that the case of richie versus stefano, the case involving invalidated emotional demand for firefighters in new haven, the ruling was it did violate title 7. i do not know about you, but i find the case rather poignant on both sides. on one hand, you have mr. ritchie and a number of his peers on the fire department, including not just white

firefighters, but several latino firefighters, and they study. new haven says we're going to throw out the exam, we are going to throw it out. it is like charlie brown and the football. you have got to feel for new haven. they have worried that they will be sued for desperate impact under title 7 by minority firefighters who may be terrific

lieutenants but they do not pass this test. new haven asked in its defense that it would be entitled to throw out the exam on the ground it was avoiding the serious prospect of title 7 disparate impact legislation against it using the results of the exam. the court 5-4 rejects -- not only rejects the argument, holding an opinion by justice kennedy, scalia, and thomas -- not only does it reject the city of new haven's argument, it says you need to have a strong basis in evidence to find that it would make you liable. mere fear of statistical evidence is not enough. there has to be a strong basis that you will be found liable. that is, you not able to defeat

litigation on grounds of necessity or other reasons. a couple of things here. the court put a strong basis in evidence case for constitutional precedents, suggesting it will increasingly use constitutional reasoning, even in a statutory context where traditionally the court and congress is giving employers more latitude. the second interesting thing about the case is that the court did not remand. ordinarily, you demand and let the decision arise in the lower courts, but in this case, they did not. they said on this record, summary judgment for the firefighters -- new haven does not get a second bite at the apple. they lose. so there is nothing in this record suggesting there was business necessity or something wrong with this test.

what happens in this case is significant in title 7 litigation, but what did not happen is more significant. here the court did not reach the ultimate constitutional question, which is, is congress authorized to allow a disparate impact litigation at all? or does that itself violate congress' obligation to observe the applied equal protection principle of the fifth amendment? if people are allowed to sue for disparate treatment, you are -- if you allow a disparate impact lawsuits, in a sense you're forcing the city to engage in disparate treatment, to invalidate a test because it does not promote enough people on the basis of race. justice scalia wrote in concurrence to raise the question, to say that it will have to be faced sunday, weather

title seven can constitutionally permit this litigation at all. narrow ruling, driven by the chief justice kennedy and justice alito, a narrow ruling that just interpreted title seven and did not reach the ultimate constitutional question. justice ginsberg wrote a dissent, arguing that the test was a fish of the flawed as to give the city a good basis, if not a strong basis. thus there should not have been a violation. one last interesting observation about this case -- justice sotomayor, i think the rhetoric

may have been modulated in part because you do not want to greet your newest colleague by just reversing her and her colleagues in broad and aggressive terms. the case may have been influenced by the fact that justice sotomayor was on the panel that was reversed, and it is fair to say the principle here was new enough that accord announced 5-4 and the decision was sharp enough that it cannot be said the second circuit decision was so completely wrong as some suggested. i will not go in detail to the rest of the anti-discrimination cases. they are listed for you here, but to give you an overview, there were a number of cases that arose this term under anti- discrimination statutes. under title 7 in some cases, under the individuals with disabilities education act idea,

and age discrimination, and under title line. the most interesting take away for you was to see that this term, as in previous terms, there has been on next set of outcomes in employment and education discrimination cases. in other words, discrimination plaintiffs are still winning a substantial number of cases before the roberts court, which belies what you see about the court always been hostile to discrimination claims or favoring businesses. not so. they made new laws favoring plaintiffs in these cases. not always. versus nashville and davidson county, a worker had testified in support of an investigation,

and the court interpreted the term opposable. they said, you are opposing sexual harassment even if you just initiated it, and the court unanimously said she was entitled to bring her sexual harassment action under those circumstances for retaliation. i just want to note, if you want to win a discrimination case in the roberts court, of retaliation case the court has seen lately has favored the challengers side. you might say that is consistent. the languages plane, a retaliation that is purposeful or discriminatory -- you do not have to get in fuzzy areas of statistical analysis. in other cases, the challenger winds. on the other hand, not sharing

so well with the claimant in a case familiar to some of you because it comes out the circuit. the court against the scheme. this was the case that ask whether the 1977 amendments to the pregnancy, title 7's ban on sex discrimination -- you remember those, right? there was a claim it was sex discrimination to exclude pregnancy for medical benefits, and the court, in a famous pair of decisions said that discrimination on the basis of pregnancy is not sex discrimination, it is not discrimination against women, it is discrimination against non- pregnant persons. apart from arnold schwarzenegger in "jr.," no one was aware of someone who could suffer pregnancy discrimination if they were male, but they probably amend the title seven to of the

statutory overruled gilbert and say pregnancy discrimination is covered by title 7. the case now arises whether the old amendments can apply retroactively to services with current calculation of benefits to women who have lost service credit prior to 1977 when a statute was changed. you said yes, the supreme court said no. and justice souter was off on the side of business or defense and a lot of cases. anyone who wants to typecast him as an ideological liberal mrs. cases like this. they said no retroactive application or service credits prior to 1977, they are just lost. against fbi, an interesting case

on page 3 of the outline. this is an interesting case, and i will predict right now it will cause a headache for district court judges who have to figure it out. you all know that under title 7, four years we have had a burden- shifting approach. i say that he fired me because of a primitive characteristic, race, gender, religion. you say, no i didn't come up with 34 a whole host of reasons. you have those characteristics, but you are also incompetent. in these cases, title 7 choreography has long been that if you put into evidence a prime aphasic case of an -- prime facia case, they could say they fired you anyway despite the characteristic. financial services says that that only goes for title 7. from now on, we will not have burden shifting.

this one arose under the age discrimination act. it is unusual for someone to lose, but this was lost. they were forced to bear burdens to rep. the case of persuasion over whether perot's was fired on age, and there is intimation that this decision is not limited, but applies to any anti-discrimination suits outside of title 7. i just want to turn back to two victories in parents. the individual with disabilities education act idea does permit tuition reimbursement for sending your kid to private school for special education, even if he did not previously send them to public school. it makes a certain amount of sense. if you had a better deal of public school with one child, go to private school with the

second child and get tuition reimbursement without exhausting the public-school remedy. the court said that was fine. even if you have not previously received special education, you can get tuition reimbursement. elastase i will mention is a case where the court sided with the plaintiff. this is a case about bowling and apparel going to a federally funded school. the title line action was brought, saying there was a failure to enforce. she then tries to bring in 1983 sex discrimination action, but the court unanimously holds that the constitutional claim is not

precluded, not an exclusive remedy. if you add that up, that is a good term for anti- discrimination. it just shows that in preemption, you have to look at these cases with attention to specific language of statutes, and the court does not. let's go on to do process. i put cases together sure that you may not have thought about together, but it is interesting to juxtapose them. the courts have two major interpretations of the process clause. in one, it announces for the first time that you processed may sometimes compelled refusal of a state court judge.

in the osborn case, the court holds that you process does not -- due process does not compel post-conviction opportunities to obtain and test dna evidence that may prove innocence of a prior conviction. let's back up to osborn and see what the court did. the district attorney's office verses osborn is a case that involved gristly, terrible criminal facts. it brittle attack on a woman, a rape and assault that left her for dead. she recovered, the perpetrators were tried and convicted and served out their sentence. in the meantime, having clients to certain dna testing in the previous challenges, the osborn

-- one of the defendants brings a 1983 action, saying, i want to test for dna now, and i am inserting due process, even though i am not in direct appeal but a post-conviction circumstance. the court held 5-4 in an opinion by chief justice roberts that there is no right for a proposed conviction challenge, even with an assertion that the test might prove innocence. in an interesting concurrence, justice alito says that the opinion did not go far enough. it is more narrow than some of the college to make a more incremental decision. they would have gone further and said habeas is an exclusive vehicle for challenging innocence or seeking dna. there should never have been a

challenge in absence of state remedies. in defense, justice stevens, joined by ginsberg and in part by souter said, you know, in these circumstances, due process should have allowed the test. alaska was one of the few states that had not resolved questions by statute. a big theme of the majority opinion was that if you wish to have dna testing post- conviction, handle it by statute. but the legislature figure out if they want to implement the cost or whether it will have all kinds of frivolous tests. the jury is saying it has to be a legislative remedy from the state. the defense said that that is not good enough. that is osborn. an interesting, different case

from massey. this case makes to kiss the ground that you are in the federal judiciary and though not have to run for election or retention. you have that gift the framers did you in article 3 of tenure for good behavior. and we figure that is for life. no diminution of salary. the state, by contrast, pretty much all have some version of elections for judges, whether they are initial or retention. that comes out one of the progressive efforts to make sure that there is democracy in government, that elected judges will be responsive, and that many initiatives, like the initiative and referendum in california, this one may be perceived to have backfired. now instead of judges being elected democratically by the people to insulate them from patronage, you have the influence of special interests influence of special interests on judicial elections. on judicial elections.