and two were reversed. that is not bad at all since we reverse more cases than we confirm. the fourth circuit did better than average. in fact, i think it did better than the statistics suggest. i dissented in one of the cases are reversed on the fourth circuit. [laughter] i think you should look at it as a free work correctly decided and when it was not. [laughter] there should be two very gloating district court judges that should be recognized for what you would call the "last laugh or more." they were reported by the fourth circuit, but then vindicated by the supreme court. both judges had the last laugh in their cases. again, on that last one, i dissented in the supreme court's decision to the fourth circuit. by the time the dust settles on monday, we will have about the

same number of cases going into october than we had last year. last year we sell the retirement of our good friend and colleague justice john paul stevens after a remarkable 34 years of service on the supreme court and 45 years of government service in total. he served are court with distinction and dedication. i can assure you that he is greatly missed by all at the court. while we had to say goodbye to one colleague, we had the great delight to welcome another. we are very delighted with our newest member, justice elena kagan. because of her prior service as solicitor general, she was very familiar with the court's work and hit the ground running offering seven opinions for the court this year. i think anyone who follows the work of the court will agree that her opinions are clear and careful and her questions from the bench very decisive.

there is one area in particular where she has already proven to be a great success. a newly arrived justice at the court is appointed by me to the supreme court's cafeteria committee. [laughter] it is a way of bringing them back down to earth after the excitement of confirmation and appointment. shortly after she arrived, justice kagan succeeded in getting a new frozen yogurt machine in the cafeteria. this accomplishment is significant since no one at the court can remember any of the prior justices doing anything. [laughter] i hope this is the last time i had to comment on our renovation projects. it broke down in 2004 and is nearly complete. it is still under budget, i am happy to say. we are in the process of

removing the construction barriers around the property, putting in the landscaping, and when that is done, it will reclaim its status as one the most beautiful landmarks in washington. another point that was mentioned last night, we had to say goodbye to the director of the administrative office, jim duff. he served the supreme court as an aide to chief justice warren burger and then as the administrative assistant to my predecessor, chief justice rehnquist, and most recently as the director of the administrative office. he has served with great distinction and will be greatly missed. i, in particular, will miss his wise counsel on an almost daily basis at the court. the supreme court, like the rest of the judiciary and the federal government, is facing increasingly difficult budget constraints. we at the court are finding ways

to do more with less. under the recent budget agreement for fiscal year 2011, which began in october 2010, the court will operate under the same appropriation levels as the previous year. the judiciary will have a slight increase in funding to meet specific needs including the cost of defender services and jury fees. i very much appreciate the efforts of the judges and administrative support staff of the fourth circuit in running a very efficient court system in the face of a growing docket. i will work to make sure that the courts have adequate funding to carry out their vital business. i am very grateful to the judges and administrative staff of the fourth circuit, my circuit, for the sacrifices they make for the good of the courts and to help sustain the will all live in the country. i am also grateful to the members of the bar for recognizing that they served

not only plants, but also as officers of the court. now, i would like to turn to what i used to have to endure and what lawyers still endure, a grilling from judge wilkinson. thank you very much. [applause] >> thank you. chief, welcome to the fourth circuit. you are especially welcome. he wrote a great dissent. [laughter] it had nothing to do with the fact that it was my case that was reversed. it is a pleasure. it has been a difficult conference for us because virginia and south carolina have faced each other in the college world series.

we will not inquire about the outcome of last night's game. it is a pleasure to have you here. i know i speak for the entire judiciary when i say how much we appreciate your leadership and sterling character and also the warmth and humor. >> i like this discussion already. [laughter] >> judges of all persuasions are really appreciate your leadership that you are giving the judicial branch. it has been, i think, almost six years since you were confirmed in august of 2005. i was wondering if, looking back of the six years, is there any one thing that stands out? one opinion? one moment that, more than any other, stands out from the rest

in those first six years? >> it is hard to pick just one. but if i had to, i would say it was a moment not on the bench. i remember, and always will, the first time i've presided over the court. justice o'connor on my left and justice stevens on my right, both of whom have since retired, but i would say my most memorable moment was my first time in the conference. the work of the court is, in some respects, very public. the arguments or in public, open to anyone. our decisions are there for everyone to see, but the deliberations are private. even people who have been around the court do not have the sense of what goes on.

i did not. i was going in to participate for the first time and was expected to get the discussion rolling. i was extraordinarily impressed by what went on. again, i did not know quite what to expect. the level of discussion, the level of analysis -- my colleagues, of course, were prepared to present their views. the interaction between the justices was at an extraordinarily high level with an appropriate degree of collegiality, but also reflecting the fact that these folks came from different views and more interested in exploiting those views. in our conference room we had at one side of the table u.s. reports. people get up and pull the books down and look at them. if they want to make a point or check a point -- i left extraordinarily impressed.

i appreciated the great challenge of participating in the process. >> so many times the conferences are talked about as a cut and dried affair where people suggest a confirm or reverse. there's not much discussion. there is a whole lot more interaction ban is otherwise known. >> it varies. some cases, but the time you have read the brief and that the arguments, it is cut and dry. even conflicts -- in some instances, those discussions are pretty clear what we think the right result is. we do not spend hours on every case, but others present more difficult issues, even when the outcome is clear. >> i have often wanted to ask

you about the restrictions on judicial life. there are so many things that we cannot do, and that goes doubly and triply for the chief justice. we have to steer clear of partisan activity. we have to be circumspect with the friends we can hang around with. particularly when they have cases before the court. we have to be model citizens, at least try to be, in so many ways. you and i are probably the only individuals in this room to have a dark suit and tie on on saturday morning. even if we wanted to, we cannot

go out for a wild night on the town. [laughter] over the years, this monastic existence -- with all of these restrictions, does that began to bother you or wear on you a little bit? >> i was not actually known for wild nights on the town before. [laughter] >> i was thinking hypothetically. >> whatever you think of the confirmation process, we have to focus a lot of wild nights. you know it is not as bad as all of that. i do not wear a dark suit and tie when i get to the soccer games on saturday mornings. i think a lot of less developed particular areas where our extracurricular activities are focused.

a lot of times people do not know you are a judge. no, it has not bothered me. you get a great opportunity -- if you're going to have a wild night on the town, you have an opportunity to have it here at the greenbrier. [laughter] >> all of us get a lot of criticism about cases. it obviously comes with the territory when you are chief justice. there is going to be a lot of criticism. i remember in politics it was satisfying to be able to fire back. if somebody said something you did not like, you're free to punch them back. but here in the judiciary, somebody can is characterized something or somebody can write in and say a first grader could write a better opinion than you did.

i get those kind of letters. i hope you do not. i know you do not. i thought to myself, when i was a newspaper editor i get paid to say what i thought. when i was a judge, i get paid to shut up. we are living a life of "no comment" in terms of the criticism that pours in. does it bother you never to be able to respond? >> first of all, a lot of the criticism comes from our colleagues. the answer is, no, it does not. once you appreciate that citizens have the full right to criticize what we do and always have -- it is not a new phenomenon.

your contribution to the debate is limited to the four corners of the opinion. it reflects your view of the law. if your not supposed to get into the partisan bickering. also, there is a real difference in terms of perspective. i think a lot of the criticism is focused on a particular moment. judges have a different perspective. i am a little more worried, concern, were focused on what people think of might work in 20 years or 30 years or longer than that. the fact that there is a lot of back-and-forth in the immediate wake of the decision, we, as judges, had a different perspective. >> let's talk just a minute about wlaw clerks, if we may. they are undoubtedly the most intelligent and dedicated young men and women everywhere.

yet, i think it would surprise the future leaders of our profession and the public to know that your chief legal assistants are 20-something. maybe members of the public would say they do not have years and years of experience. many of them are out of law school. a clerkship is a couple of years. some are dismayed by how green and inexperienced they are. in the early 1970's, we had a constitutional challenge to a garnishment proceeding. we went in to discuss the proceeding. within a few minutes, justice powell discovered that none of this court's knew anything about the mechanics of garnishment.

he buried his face in his hands and said, "who are these people around me?" he was used to working with the junior partners and junior associates. does the greenness and a lack of seasoning of the law clerks trouble you at all compared to the type of staffing you were used to? >> if it does not. i think it is a real plus. before i explain why, i want to say that it is a wonderful institution to have four very bright law students coming off of a court of appeals court ship in almost every case. they spent a year with you. you learn a lot about what is happening in the law school's, that level of the profession. you get a new perspective every

year. then they go out into the profession either into public service, private practice, or working in a law department. they also worked extremely hard. they really do, for which i am grateful. i remember i told my current clerks when they were starting out -- they want to know when they are supposed to be here and all of that. i was told when i started working for judge friendly, he said he did not expect us to work every minute of every day. he said we just had to be there when he was there. i have the same rule. it is a real plus that they are "green," as he put it.

the idea is for you and for me to learn about garnishment when making decisions. it reminds me when i was clerking for justice rehnquist -- he had the 10 day rule. i had the same rule. your clerks have 10 days to do their work. it did not matter if it was the second version of marbury vs. madison -- they had 10 days. i remember going to justice rehnquist and saying i could do a better job on the draft if i could have another week. he said, john, the idea is not for you to do a better job, it is for me to do a better job. i think that i will stay in the process. i do not need a polished, final

version. that might make it harder for me to make sure it is might work. they are extremely bright. i am absolutely delighted to have them with a four a year. i do not want them to get too familiar with the court were the work that we do because it is supposed to be our work. >> i know you're court's work hard because there was a family member in your chambers who reported that -- as you know, columbus day is a federal holiday. they would try discreetly to find out whether you were going to be in on columbus day. should we come in on columbus day? i was told your response was, "you will have the rest of your life to take off on columbus day." [laughter] >> to be fair, it falls right in the middle of the first two weeks of the term.

and memorial day falls right in the middle of the part where we are ready to head the decision is finalized. that is another reason i am sure they only work for one year. [laughter] >> you are at the end of a long term. everybody deserves a chance to recharge. i think my recollection is right about this -- reporters were giving someone a hard time about the two months in the summer that he took off, went away from the court, and did not do anything. he gave up what i thought was a classic response. he said, "i can do twelvemonth's work in 10. i just cannot do it in 12." i thought, that is perfect.

do you have some fun things you are looking forward to doing during the summer? some hobbies you do not have a chance to work on during the year? what are you going to be doing to get completely away from the law? >> hobbies -- after the last one, my favorite is sleeping. i look forward to doing more of that over the summer. it is nice to have a chance. people do not realize it is a very unusual feature of being on the supreme court that you are with eight colleagues and you do the same thing. the court of appeals, you work on different teams. district courts, you have different buckets. members of the bar, you have different responsibilities within your farm or your practice.

but the nine of us, we read the same braes, we go over the same arguments, we go the same cases, we go over the same precedents -- i understand the justice's point. it is a little more intense. i love my colleagues greatly. it is nice to get away from each other for a little while. of course, i want to emphasize, we do not take two months off. certain processes continue. we have to keep up with 1% of our cases. some things do come up in the middle of the term that we have to address. but, it obviously is time off. i do some teaching. i have a two-week course that i teach on the supreme court. i take my family with me so we

have an enjoyable break. i'd like to catch up on some extracurricular reading that has nothing to do with the law. basically, i try to make up for the fact that there are weeks and months when you're not able to spend much time with the family. >> it is certainly well- deserved. i know that many members of our audience would love to ask you a question. i think we should ask a member of the audience to come forward and asked the chief justice and question that has been on your mind. please do not inquire about the specifics of a particular case. you must have something -- this is your chance. this is your opportunity to ask the chief justice of the united states a question about the supreme court, or what ever is on your mind. >> mr. chief justice, good morning. i am from washington. there is a disturbing trend in washington to close the front doors to public buildings, most

notably at the capitol and the national archives, and most recently at the court itself. people are now shunted to the basement. can you comment on that decision and indicate whether it may change one day? >> first of all, the doors are not closed. they are open. people, tourists, and practitioners go through these doors. for security reasons, we determined it was not appropriate to allow people to come in. that is what is behind closure as some other places as well. it is a sad reality. but based on the information and studies we have received, we cannot in good conscience pretend there is no threat and carry on as usual. people do enter on the side. they go through our exhibits

down there and come up to the great hall. we do have state of the our security there, not only for all unusual metal detector things, but also mechanical and biological agents. we are happy we are able to keep the door open so people can exit that way. i am very disappointed, as i think you are -- when i was arguing cases, i liked to walk up the steps. it was an inspirational feature. i am very sad we had to do that, but in good conscience, i did not have any choice. >> good morning, mr. chief justice. i am from columbia, south carolina. what are you going to read this summer? what's the first book on my list is a book about florence, which has been recommended. i will be doing my teaching in florence.

i was told it is a good introduction. that is the first on my list. >> good morning, mr. chief justice. i am from durham, north carolina. judge harry edwards suggests that our judiciary all levels and be practicing bar are, unfortunately, to disconnect it from our academies. i want to know your thoughts on that. do you agree with that or do you think the relationship between the practicing bar and our law schools -- is there some impact on your structure as it relates to the future of our profession? >> first of all, judge edwards is a favorite of mine. he helped me greatly when i joined the court of appeals for the d.c. circuit, not only as a model for a judge, but also in a wide variety of areas.

he came in the first week i was there and said he was going to teach me how to use a laptops to let me stay connected with the court where ever i was. i said, "thank you very much, the judge, but i am not up to speed on the technology and would rather not worry about it." you wanted to do it, i told you you're going to do it." [laughter] he was tough to argue in front of. i am glad he did what he did because it brought me up to speed. he and i are on the same page on that point. there is a great disconnect between the academy and the profession. pick up a copy of any law review that you see.

the first article is likely to be the influence of immanuel kant on 18th century bulgaria or something. i am sure it was of great interest to the academic that wrote it, but is not of much interest to the bar. it is not of any particular help to members of the practicing bar or judges. at the same time, we are not looking for vocational guidance. this is how you fill out the form for an appearance -- but i do think if the academy is interested in the practice of

law and the development of law, they would be wise to stop and think is this area of research going to be of any help to anyone other than other academics? it is their business, but people ask me what the last of law review article i read was and i have to think very hard. >> chief, we talk about the different segments of the profession, one thing you sometimes hear is that a hot bench is taking over from the bar in terms of oral arguments. there are so many questions from the bench that lawyers rarely get the chance to speak. with nine people wanting to get their questions in, have the oral arguments squeezed the lawyers? the studies have indicated that over the years the time that council gets to speak has

diminished. >> my views on this have changed. [laughter] no, we are sort of in our office when we are on the bench. we are asking questions we think are important. it is a limited amount of time that we have. but frankly, i think we have gone a little bit too far. there have been moments, particularly this past term, when i thought we were not really being fair to the lawyers and not necessarily being fair to our colleagues. too many times one of us would ask a question, one would start to answer, and another with shop in with perspective on the question or changing the direction of the dialogue entirely.

there are some areas where we are trying to do things. for example, i feel it is not appropriate -- we have a light that goes on when lawyers have five minutes left. that means they have five minutes left for rebuttal. i do not think it is fair for us to start asking questions. it is hard. i am probably one of the prime offenders, but i do think we need to make a little bit more of an effort to give the lawyers time to give some kind of answer and to make sure we are not stepping on our colleague's questions. it requires a very expert counsel -- someone who is good can find a way to focus the court's attention. when they are bombarded with tipper questions, respond in a way that allows them to take control of the argument. i remember when i was practicing before the court.

justice stevens asked a question. before i could answer, another justice ask me one, and then another one. i answered the most recent question and then the next one. i was very proud of myself. i said, "justice stevens, i like to return to your question." justice stevens just smiled. i was standing there and suddenly realized i did not remember what his question was. [laughter] i had a good idea, but it did not work out. i think we need to do a better job of letting the lawyers participate in the dialogue. by the way, we have an extraordinary bar. >> it is a difficult thing with lawyers are trying to pick between which justice to answer or which judge to answer when the questions come. >> it is a challenging part of the practice. >> further questions?

yes, ma'am. >> [unintelligible] >> a lot of different ways. i do a lot of work in my chambers orally. that is a holdover from my practice days. i like to sit down with them. i do not do bench memos. they read the briefs in the case, i read the briefs, and sometime before the argument, we sit down and belts ideas off each other. they take one side and i take the other. usually as a result of that process, additional questions will come up and we will do further research on an issue. in fact, we have portions of opinions and they get 10 days to do whatever i ask them to do. then we have a very extensive

editing process. our work -- we usually go through about 25 drafts of opinions, a change in this part here, changing that part there, and looking at it before we sent something around to the other members of the conference. they spent a lot of time on the process. i do not think i am revealing any secrets. i do not read all the petitions that come in. they participate in a pool. most of the other justices will write a memo on each one and share it. in that respect, i will ask for a little more work from one petitioner or another. through all of that, they work pretty hard. >> this gentleman has been standing up for a considerable length of time. >> good morning, mr. chief justice.

ron davis from winston-salem, north carolina. one of the things our firm has grappled with is social media. it impacts ethical obligations that we have. its impact client confidentiality issues. i figure if we are grappling with those kind of issues, it is probably more acute in the court system. i was just curious how the supreme court has dealt with this phenomenon. i had this image of one of your clerks tweeting from the supreme court about what is going on. is it on a justice by justice basis where had you enacted certain policies? >> i sit down with the incoming clerks at the beginning of the year as soon as we get back and go through a number of things they have to be aware of and that is one of them.

i tell them they obviously should not be tweeting about what they are doing or whether they have websites or whatever. a lot of this is an advert in. they think they're working really hard this week and getting ready -- so many people can look at what they are saying and put two and two together and figure out what their boss is doing. unintentionally, they sometimes reveal confidences. that is very dangerous. i also appreciate that it is a generational thing and the idea that they are not being connected in a particular way could be problematic for them. it is also a generational thing, -- some members of the court are more into that than others. i do not think any of us have a facebook page or tweet, whatever that is. [laughter]

technology is making inroads. when we are traveling, it is easier to have some of us read briefs that are electronically available. different people have a different comfort level. in the courts in general, it is a challenge in a lot of areas. it is just something we are going to have to deal with. it is not limited to that. the impact of the new technology on the subject of law is significant, whether it is antitrust law -- that is nothing new. when you think of the supreme court's dealing with wiretaps when wiretaps for a new thing.

that is not covered by the fourth amendment. it is pointed the a great challenge for many of us to try to keep up with the new technology. it is one of the great things with the law clerks. if they know how these things work and what it means. >> one of the things we have seen at the conference is accessibility and transparency with the courts. one thing that keeps coming up is a tv cameras in the courtroom. obviously, the supreme court has made its proceedings much more available through audio recordings of some of those major cases. do you have some thoughts on television in the courtroom and television at the supreme court for arguments? would be very interested in that. >> we are having a pilot project

on that right now under the guidance of the judicial conference. in terms of the lower courts, the experiments with television in the courts of appeals -- we will see what the results of that are. judges in general, the judiciary, and the supreme court -- we tend to move slowly. those of you who have been to the court know that one of the architectural motifs at the base of our lampposts is a turtle. that is to indicate that we moved slowly but surely on a stable basis. we have made some changes. there used to be we did not release transcripts of arguments. now the release them within a

half hour. it used to be the audio recordings were released at the end of the term. now they are released at the end of every week. we are moving in a particular direction. cameras present all sorts of challenges that these other areas do not. i will not go to the whole debate. it is a fairly common one. you worry about the impact on lawyers. i worry about the impact on judges. i do think the considerations of the supreme court are different in many respects from the considerations -- >> you mean judges will ask even more questions? >> i do. that is exactly right. unfortunately, we fall into grandstanding. i am a little concerned about what the impact would be. we talk about it from time to time. it is something we consider. other courts around the country have had experience with it.

the supreme court is different, not only domestically, but in terms of the impact worldwide. i will be very interested to see what the results of the pilot program in the lower courts look like. i am sure will take those into account. movement will be gradual. that is the nature of the court. it is a good thing. you do not want us jumping into things until we have given them a lot of thought and deliberation. i hope the way society is these days, things do not happen until you see them on tv. the supreme court is different. i have talked to people that have been in the senate and they think that televising senate debates moved them. it is always one person standing at the podium and nobody else there. it did not used to be that way. >> when you think of the great speeches the daniel webster gave

and the great arguments that daniel webster gave and the great speeches of abraham lincoln gave -- they live through the ages, but they were not televised. >> that is right. other government institutions have opened up, but it will be interesting to note what government institutions people think function better now that they are on television. we are the most transparent branch of government. everything we do as an impact on the public. you do not see the deliberations. you see our work in public. our decisions are out there. the only impact we have is our opinion. that is out there. you see the materials we looked at in the breeze. what is not public is our internal discussion in conference. anyway, the long and short of it is it is obviously an issue we have looked at.

we'll see how the pilot project goes and take it from there. it is a concern for some of us. i had been sharing my views. >> i want to thank you so much for being here. i cannot tell you how much it means for us to have you as our guest and that you talk with members of the audience and have this conversation to begin our supreme court review. i hope you will return every time the fourth circuit as a conference because you are always our number one guest. it makes a wonderful occasion for us. >> thank you very much. perhaps you will be surprised if that will not stick around for your review of our term. [laughter] by the way, these are not the academics writing about immanuel kant. these are the good guys. maybe they will give us a break.

[applause] thank you very much. it was a lot of fun. >> thank you very much [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] >> who would think a youtube rap video on economics would become popular? >> as you see, we're not in a depression. keynes, here i come. lined up for the procession. don't you think it's time for a switch from the hair of the dog?

>> this weekend, we will talk with the creators of "fight of the century," an economics professor and a comic. >> we are reaching people interested in how the world works, everything from a high- school student curious about economics to a person just trying to make a living who is worried about what is going on in washington. >> sunday night at 8:00 eastern and pacific on "q&a." >> next, law professors and review the major supreme court decisions of the october term, at the fourth circuit annual judicial conference. panels examine how the justices ruled on specific court cases. they discuss freedom of speech and the first amendment, federalism, and campaign finance laws. this is just over the two hours.

>> good morning once again to everybody. i am happy to welcome all of you to the supreme court review for the fourth circuit. our plan is one that if you have been here before you are familiar with. we propose during the morning to take a look at some of the significant decisions of the most recent term of the u.s. supreme court. i hope you will realize we are being very selective in our coverage. it is simply not possible to be comprehensive. not even all the important cases will necessarily be talked about. we hope we are picking up enough of them to give a sense of but the court has been up to this year. we will try to bring the train in on time. i know some of you are getting on the road. we will conclude comfortably by noon today. we have a distinguished panel. i am delighted to have with us the professor at yale law school. she is nationally known for her

work on election law and democratic theory. we also have michael mcconnell, who is the richard and francis mallory professor at stanford law school. he is, as many of you know, a former 11th circuit court judge. he served in that capacity before he returned to the academy. also former law clerk and justice brennan. neil siegel is also joining us, a professor of law and political science at duke law school. he is a member of our family because he served at one time as a law clerk to judge wilkinson before he went on to clerk for justice ginsberg at the supreme court. finally, we have adrian vermeel from harvard, who clerked for the d.c. circuit and for justice scalia on the u.s. supreme

court. all of us on the panel want to thank the fourth circuit for its hospitality. the chief judge, judges, and staff could not have been more hospitable are gracious. we are grateful to you. let me take a few minutes as we begin our discussion this morning to try to set the context of the roberts court. it has now completed -- it is completing this weekend its sixth year. it is interesting. i was thinking about the time that passed from the year that earl warren in 1953 became chief justice and the time nine years later when the warren court relief finally came of age, i think when felix frankfurter left the court and arthur goldberg took his place. it was in the early to mid '60's that the warren court handed down many of its landmark decisions -- one-person, one- vote. gideon. miranda. cases like that.

the same time passed between the year that william rehnquist became chief justice, 1986, and the time in which his court came of age. i would say roughly around 1995. the benchmark of that year was u.s. versus lopez, the first time in 60 years the court struck down an act of congress on the grounds it had exceeded its commerce power. the rehnquist court in the 90's seemed to be coming out swinging on areas like federalism and church and state and some others. these nine year time periods may be coincidental, but it leads me to wonder whether at the six year benchmark we are now turning thirds -- we are now 2/3 from the point at which the roberts score will emerge from its cocoon and become something we can talk about as a historical time on the court. it is a six year old court. i looked at a book from the

gesell institute at new haven about how the six year olds behave. here is what it said. your 60 is a lively creature -- dynamic, energetic, enthusiastic, but one whose life is now without complications. his biggest problem may be his to way nature. he may be beautiful and bubbly one minute, but difficult and quarrelsome the next. that is the six-year-old. i do not know whether that fairly characterizes the roberts' career at age 6. i think we will find out during the moment. during the several terms in which the roberts court has been in being, the first term i will not even mention. the court was not fully complete until 2006. by 2006-2007, you begin to see the assertion of more conservatism on the court. it is clearly a result of justice alito have been replaced justice o'connor, in areas like

abortion upholding the federal partial birth abortion act, race in schools, the seattle and louisville school cases, areas like religion, holding taxpayers did not have standing to challenge a white house initiatives. those are cases that began to give one a sense of what the roberts court might be like. the next year, the 2007-2008 term, you can see what the press likes to call is ideological splits in the court. the biggest cases include the gun case, the guantanamo detainees case, the case of capital punishment for those who raped children. the biggest conservative wing, i suspect, is the seat of versus heller, striking down the gun law in washington, d.c. there was an important case in kennedy versus louisiana, another 5-4 decision dealing with the death penalty for rape

of a child. 2008-2009 -- commentators like to put labels on the court. that was the year people were talking about incrementalism or minimalism, that the court was going to step in a cart -- in a conservative direction, but step by step. examples would be the new haven firefighters course, result on statutory grounds, avoiding the difficult 14th amendment question. the other would be the northwest austin case, involving clarence under section 2 of the voting rights act of 1965. the court did not raise the 15th amendment question in that case. so the pattern was emerging by the following term, 2009-2010, the term before the present. the conventional wisdom had by that point become -- the press would have said there was a liberal bloc and a conservative bloc, each with four justices,

with justice kennedy as the swing vote. that is the pattern you saw in some of the important cases that term, like citizens united, the famous campaign finance case, mcdonnell versus the city of chicago, expanding gun rights to cities and states outside washington, d.c. that brings us up to the present time, which we will look at during the morning. it seems to me that let me put several generalizations on the table. we will see whether they stand up or not. i invite my colleagues to agree or disagree as they say fit. first, clearly, is the conservative trend in the court. the importance of alito replacing a car -- one political scientist did a study of the 44 justices who have sat since 1947. of the six most conservative justices, four still serving on

the present court. they are roberts, alito, scalia, and thomas. but it is clearly episodic. there have been results the go the other way. there were at the result with the detainees and i mentioned the case versus louisiana. secondly, i think you could argue there is more of the correlation than there used to be between a justice on the court and the appointing president of that court. there was a time one was struck by the deviations and idiosyncratic behavior of justice's like blackmun, souter, or stevens, who turned out to behave rather differently than what one might have expected when they were first appointed. it seems to me that iraq is now gone. it seems to me we can now find more predictability and behavior of justice's in terms of what you might have expected when they came to the bench. in part, i think that is the

fruit of the debate that went on going back to the reagan administration, when the reagan justice department had more of an agenda of the people there would like to see on the supreme court. thirdly, i would assert that judicial activism is not dead. we could spend all money -- all morning defining judicial activism. whatever means, we have a general sense of it. the warren court was famously activist in a liberal direction. it to the extent d.c. act division -- activism now, -- to the extent you see activism now, it is in the other direction. in the term that ended in 2009, if it was a term -- if it was a term of activism or incrementalism, i think it may have passed. there is the role of the chief justice. it seems to me history will probably record it is properly

called the roberts court. that has been a historical question. is it appropriate to call the court the court of the chief justice who normally leads it? the previous term chief justice roberts was in the majority, something like 92% of the time. that is more than any other justice in the court. justice kennedy holds an important role on the court. kennedy is a more conservative swing votes than o'connor was before. that seems to have made a difference in areas of abortion and race. changes on the court's left, when stevens left the court, i think, in many ways, he emerged in recent years this sort of moral and tactical leader of the more liberal wing of the court. the years have certainly seasoned his ability to play that role.

his departure leaves the question will someone step in and fill the void? we now have justice sotomayor and kagan. will they pick up the torch or what? the pace of oral argument has picked up. it is faster, quicker, tougher than it was 20 years or 25 years ago. it is notable that justice sotomayor and justice kagan are prepared to leap right in. justice sotomayor has been certainly. thomas has become, to me, one of the more intriguing members of the court because he seems

willing to reconsider any precedent, however old might be, no matter how long it has been around. we know justice scalia's role as well. justice alito is also emerging as an interesting member of the court this a high correlation of agreement in the voting patterns of the male members. we will be hearing about snyder vs phelps this morning. it was eight-one where justice alito was the lone dissenter. he will come to have his own voice on the court.

finally, i want to live on the table the question that has been talked about in the press and commentators --is the thomas court a pro-business court? it was argued last year, perhaps mistakenly, but one case was an invitation to corporations to pour money into politics. business interests may have been hardened by the decisions this term. the u.s. chamber of commerce certainly involve itself in these cases. they must have liked the at&t case of california where the use of standard form contracts will be made easier for

corporations. wednesday, this week, there were two cases where it drug companies would have liked the pre-emption case. you can take the whole still matter to be pro-business. but the other side of the picture has to be considered with cases with the discrimination cases where the court has been in favor of employees challenging -- saying that an oral complaint will do, not just a written complaint, expanding the definition of what one means by retaliation. these have been meaningful to employees. and the pre-emption cases did not all fall in favor of the businesses who favor it. finally, a case that the chief justice wrote involving --

concluded quite clearly that corporations do not have a personal right of privacy in cases involving freedom of information act. if you like the flavor of roberts opinion, that is a good one to read. we have a lot to talk about this morning. we have some very good people appear who are primed to go with it. we had thought about adding to our agenda this morning some discussion of the health care litigation which is now working its way to through several circuits. we will defer that, not try to take that today. maybe the next panel that meets two years from now may have something of the supreme court to talk about by then. having left that off the table,

there is still plenty to talk about. with those general fox to set the stage, we will proceed through major areas. we are not trying to do everything point we hope that what we do have to say will be of interest to you. we want to start out looking at some administrative law cases and also perhaps privacy and state secret cases that came down this term. adrian, would you like to pick up in that area? >> thank you very much. i want to thank the fourth circuit host for giving me the chance to participate. i think the administrative law part of the docket is always the most thrilling part of the supreme court term. maybe some of you may not initially see it that way, but i will try to win you over. to identify some administrative law principles that have emerged from the term as

winners, some that have emerged as losers, and one very important one whose status is now under a bit of a cloud -- let's start with of the winners. the major winter was the chevron doctrine. it expanded its empire even further. the remorseless expansion continues. and we will look at the treasury department and the taxing statutes. it was held that chevron supplies the governing standard for review of treasury department rules. along the way, the opinion displaced an old president beloved by tax lawyers called national muffler from 1979. the chief justice wrote in very strong and striking terms of that the factors in national for work irrelevant. he said that whether the agency has been consistent or inconsistent in its

interpretation is not relevant for chevron purposes. the antiquity of the regulation and whether it was enacted contemporaneously with the statute are neither here nor there. it is immaterial whether the regulation was prompted by litigation or not. and it is immaterial whether congress's delegation of authority was general or specific. this is a very robust version of chevron with very large muscles. i think that the chief justice's approach will have broader implications for the future. what is striking is the rationale the the chief gave for this. he said the main one was the intrinsic value of uniformity in federal standards of judicial review of agency action. he also mentioned agency expertise given the complexity of the tax laws. there is something missing here been had there is something

notably absent. the political accountability rationale for chevron, which, in its original formulation, said that presidential administration would enhance the democratic character of regulation through the electoral connection. i think it makes perfect sense to downplay the accountability rationale for chevron if the court is interested in it increasing the uniformity of federal standards of judicial review of agency action. the reason that makes perfect sense is that lots of the court's cases and cases in the circuits involved regulations promulgated by independent administrative agency like the federal reserve and the fcc. on the accountability rationale would have a hard time covering those cases because, at least in theory, the accountability

to the president of an independent agency is attenuated so the deliberate omission of the accountability rationale suggests to me that the court is very serious about tidying up judicial review of agency action under unitary powerful chevron framework. another conspicuous winner of the term was auer. it is deference to an agency's own regulations. two cases, the court referred to interpretations of agency regulation by the agency as strongly underscored. one of the term's most ambitious theoretical concurrences, perhaps, was

issued by and justice scalia in the top american case. he said he has come to doubt whether our difference is even constitutional. for us administrative lawyers, this is a big deal. it is part of the ordinary tool kit of administrative law. if it is unconstitutional, that would be big news. justice scalia said that it seems contrary to fundamental principles of separation of powers to permit the person, the agency, who promulgates a lot to interpret it as well. and he drives that rationale from an article by my friend and colleague john manning. all this puts me in quite an awkward position, having clerked for scalia and being john's friend and colleague. i find the argument quite and convincing and i want to tell

you why. i think it sweeps far too broadly. it sweeps far more broadly than the limited context of auer anyway. most agencies promulgate and interpret the rules. if the fusion of lawmaking and law-administrating of 30 is constitutionally suspect, then the great bulk of the aid minister of state is suspect. the main consequence, i think, would be to encourage substitution at the margin from regulation to simple case-by- case adjudication of ambiguous statutes. it is like using a hydrogen bomb to kill a mouse.

if we adopted the view, the state would have every incentive to switch to that. if we are worried about uncap agency discretion or something like that, that outcome is plausibly worse than a rigid and more agencies pass regulations and then get our difference for them. in any event, no other justice joined his concurrence in talk america. that seems to concur auer's court.l -- its status on the court. let me mention a clear loser from this term. besides national muffler, the other clear loser was the tenery principle.

it is against post talk rationalizations by agencies -- post hoc rationalizations by agencies. an agency tries to change its rationale during judicial review. that is a no-no. several decisions from the term were very relaxed about the prospect of post-talk rationalizations. in both chase bank and talk america, the agency's interpretation came in an amicus brief offered to lower courts are to the supreme court itself. the court simply said this reflects the agency's considered position. that was the formulation. principal from something like the role of resumption to an ad hoc consideration or the agency has taken a deliberate position.

it may come in a letter. for now, that approach is confined to the auer context. would it be possible to adopt the same approach on straightforward judicial review of agency action situations? we should watch to see whether it spreads to other domains here in this may be a real innovation in administrative law from the roberts court. finally, a crucial administration law doctrine that has been a drizzling cloud after this past term is the me doctrine that tells us when to apply chevron in the first place and has been a source of major controversies over the past 10 years in administrative law.

we have had some good moments in the past term, but also some bad moments. a good moment was that mayo did take it as a working framework to see if chevron applies. on the other hand, there were least 3, 4, or five bad ones. the intention with the emphasis on uniformity in federal review of agency action, a major rationale for mead was to taylor deference to variety, which is to have flexible applications to legal interpretations. it emphasized the need for uniformity of judicial standards of review. i think mead starts out with a strike against it.

all this broke out in the open at the oral argument in chase bank. mead had seemed to say that an informal procedure would not get their friends or my connected deference or was at best suspect. what agencies needed to do was informed there interpretations. several justices at the oral arguments said we cannot do both things. we can both do mead and auer deference. that is bad for mead. we had a two unanimous votes to that effect. what happens to mead in that case?

justice sotomayor dealt with it in this interesting way. it said nothing about it. there is not one word about mead in the opinion. i think that is bad for mead. if people are not talking about you or at least sometimes not talking about you, that is not a good thing. a second ominous point is that maybe mead is not consistent, but we are not sure that we got it right in mead any way. i am not sure who "we" is, but if it includes justice kagan, i could signal a shift. scalia's vote to a poll the position, sotomayor does not

think it is a necessary to discuss mead, i think there is still in question whether it will still be the law five years from now. it is under a cloud. >> i just wanted to jump in very quick way. all of these types of difference and so forth may strike a lot people in the audience as thrilling. i think the technical term for this is a snooze. i think they are very important because it is argument over these questions of difference in which the very idea of separation of powers and the rule of law are worked out in the context of the administrative state. i would like to at least maybe

cautioned against assuming that justice scalia's new campaign against auer differences over just because he lost this particular term. justice scalia is a very smart guy and he is very persistent. i remember it when he first introduced his campaign against the use of legislative history in ordinary and statutory interpretation. it seemed bizarre and i do not think he had any other supporters at the beginning. i would not be surprised if his critique of of auer de france -- and deference -- auer deference will gain adherents over time. i do think that it has a very important grain of truth to it. when a single body does both promulgate a lot and interpret the law, the rule of law is

over. the separation between law interpretation and lock promulgation is absolutely essential to the law having some independent integrity. maybe scalia's view would make things worse because it would induce agencies to engage in more activity on a case-by-case adjudication. that may be so, but i think there are good reasons why, over the past 50 years, agencies have not found case-by-case adjudication to be an effective way of asserting power. i think a return to separation between rulemaking on one hand and adjudication on the other is something that we should applaud. scalia is probably not right

that it is unconstitutional, but that it does tread on some constitutional powers may be right. >> if you found the former generation -- reading john locke and "the social compact" and the like, i think they would have brought up the adjudication principle. also the revival of federalism and the rehnquist court. in the 1980's, he was the lonely voice in the wilderness. he and others fanned federalism back into effect as a constitutional part of the

american edifice. what is the prospect we will see any resurgence of the non- delegation doctrine? it seems to have been dead and buried for such a long time. i do not sense any interest in the court to revisit that issue. do you think that the sooner the issue you're talking about this morning might force that? >> we have long and complex views on this. first, i disagree that the non delegation doctrine has original list foundations. if you look at the legislation passed in the first congress, it included five or six delegations that, today, we would think would blank check delegations to the president to do various things. in my view, the non-delegation doctrine is a late-19th century creation by lawyers anxious about the nascent the administrative state. that experiment lasted until the 1930's and then basically collapsed.

it shows no signs of revival. the non-delegation doctor leads a ghostly existence with people talking about it all the time, but it does not manage to by anybody. even justice scalia has written one of the most sweeping modern opinions upholding the delegation -- a case called whitman -- and he says he sees no prospect for it. if mike and i have a disagreement, it may be a productive one. i think the lessons of the last 50 years is that they're sensitive to changing incentives for substitution between rulemaking and adjudication. in the 1970's, when the court, in various decisions, increased

the benefits of rule making, then agencies engaged in more rulemaking. i suspect that, if the court somehow got the auer difference, then agencies would participate in more adjudication. >> thank you. i want to move now to the first amendment cases. it was a robust part of the docket. heather and mike respectively will take up some of the major cases. i have asked heather to think about the public finance case out of arizona. and also, heather will have something to say about snyder vs phelps, which was one of the headline grabbers of the term. once we have talked about those cases a bit, we will move on to

mike and talk about some of the other important first amendment cases on the docket. heather, may i ask you to drop in and start that out? >> sure. i want to thank you for inviting me. if you were thrilled with adrian's then minister of law decisions, fasten your seat belt current the first amendment decisions are the blockbusters this term. macomish is one of those that we are waiting for. this is a case involving the challenge to arizonas public finance system. if this challenge succeeds, a number of state financing systems may fall with it.

if the court writes broadly, finance systems across the country are in jeopardy. a publicly financed candidate is eligible to receive additional funds in arizona if his opposition outspends him. but the term "opposition," that is not just the candidate he is running against, but all the independent groups who are running ads on his behalf. this law was challenged on first amendment grounds. election law is the sex, drugs, and rock-and-roll of the first amendment. the one that the district court, but lost that the ninth circuit. it does not limit any expenditures.

therefore, there is only in limited burden competition for first amendment rights and they found that the statute was constitutional. a lot of the briefing in the case was devoted to one decision. pulled for political junkies, you will know that this is the millionaires amendment case. mccain-feingold had a position that had a limit when opponents were so financing their election. if anything, this is an easier case than davis. the millionaires amendment only allowed the publicly financed candidate to raise more money. in the arizona scheme, the publicly-financed candidates automatically gets the most funds. they have the most compelling facts. one of the candidates in the

case was running against three publicly financed candidates. so every time he raised $10,000, $30,000 appeared on the other side to oppose him. in many ways, the two sides have been utterly unable to find common ground. that is because they begin with a different premises. one side sees substantial expressive dimension to both contributions and expenditures and the other side simply does not. it is too crude to boil down the debate to slogans like "money is speech" or "money is money." nevertheless, for the past 10 years, the only middle ground that has been found has been to stick buckley vs. valejo.

the problem is this. no one admirers buckley. very few people think it was even close to right. so to allow the court to cobble together a majority, it has not helped build a common intellectual framework. in davis and macomish, in a petitioner's summary, they begin with a great anecdote when janet napolitano was running for governor. she pulled her upon the side and she thanked him for his fund- raising efforts. he had it fundraiser that raised $750,000. she got $750,000 in response.

she said, i am quite certain that i am the only democratic governor in the country that george bush held a fund-raiser for. just as kagan said, it seemed like the system promotes more speech all-around. that is a core problem in campaign finance. the justices cannot agree on the basic premise of the doctrine, no balancing test, no choice about the level of scrutiny that will bring agreement. whatever the results in this case, the doctrine will remain highly unstable going forward. this is not doctrine moving toward consensus, but a death match between two competing points of view. i am tempted to quote harry potter -- neither can live while either survive.

some of you remember there is another finance case called citizens united. the press has an entirely missed the significance of that case. in the arizonan briefing, it is confirmed. the press had told us that citizens united give corporations the right to speak. i will tell you that that is nonsense. corporations enjoyed robust speech rights before citizens united. indeed, they did not open the floodgates with citizens united. they open with a few years before that receive no press attention current at most, citizens united expanded the rights of corporations to be more specific about their independent expenditure.

to put it in crude terms and by way of example, before citizens united, corporations could run an ad that said senator x kicks puppies, call him and tell them not to kick puppies. now they can run an ad that says senator x kicks puppies. do not vote for him. that fact has been utterly ignored by the press. as you all know, when congress regulates under the first amendment, it has to have a good reason for doing so. the reason that congress has law invoked is corruption. quid pro quo corruption is when i give you money and you give me a vote. the donors are calling the tune. indeed, at times, the mere

appearance of undue influence and access was an appropriate route for regulation and that approach gave congress a great deal of room to regulate. citizens united seems to have cut back dramatically on that approach. it has returned us to the definition of corruption. we're back to quid pro quo corruption. while the press mourns the court holding when it overruled lawson, the one campaign finance case ever in the to the equality rationale, ingratiation and access are not corruption. the broad and nebulous view of corruption endorsed by the liberals allowed congress to regulate problem without ever

mentioning the word "equality." that is what was at stake in citizens united. while the press has missed this point, the courts have not been lower courts have begun to dismantle portions of the campaign finance system on these grounds. advocates have not missed the lessons of mukasey there. macomish is not ignoring it. given that quid pro quo corruption is the only run for regulation, why do we need more? why arizona even needs a public finance system? publicly financed candidates, they observe, are no less susceptible to trading of four gym bags full of cash them

privately funded candidates. this is why campaign finances so fine. they did have a case involving gym bags full of cash in arizona. what is the justification of public finance other than the now illicit equality rationale? the court does not need to answer that question. but how it answers that question, whether it's does it inmacomish or when it does it more directly in the future, it is not just public finance, but finance more generally. this may not be the case that resolved the question but it is likely to give us a hint as to which the direction will eventually take us. the second case i have is also one of the blockbuster cases of the term. it is snyder vs phelps. if there is every case to pull at the justices heart strings, it was snyder. mathews letter was killed while serving in iraq. at the funeral, a man named fred phelps and the rest of this was

borrow baptist church staged tickets involving a variety of despicable signs, homophobic slurs, silver in the death of american soldiers, anti-catholic attacks. was borrowed church routinely pickets of the funerals of soldiers because they believe that the american college of homosexually led directly to 9/11 and the casualties of the iraq war. picking funerals of private individuals have garnered westborough more attention than it deserves. a father sued the church and was awarded millions of punitive damages. the district court let the compensatory decision stand. if there was a case that must

have tempted the justices, it was this one. justice alito's vigorous dissent urged the justices to make an exception where private individuals are subject to personal attacks during a funeral or during other occasions that he turned intense emotional sensitivity. but the chief justice resisted the urge to carve out an exception. it reads like a dramatic first amendment case. the fact that all of this occurred at a private funeral did not make the speech any less public in nature in the view of the court. the picket was peaceful and in full accordance with existing time, place, and manner restrictions.

it was protected by the first amendment, not withstanding the despicable purpose. despite the straightforwardness of the opinion, there are signs that this was not the easiest of cases for the majority. while maintaining a steady the neutrality, the court notices that others may well find the message offensive end of an enjoyable value even in a robust marketplace. the court was very careful some of the analytic rabbit holes that it might have tumbled into had it written a broader opening. the court carefully classified the speech as mostly dealing with issues of public concern. that avoided the naughty questions involving some of the speech directed at snyder himself. for procedural reasons, the court had the luxury of ignoring the online diatribe public by westborough, which was not an option available to the fourth circuit. it requires us to tolerate the and tolerant, to maintain a free marketplace of ideas, even

for those ideas that are surely wrong. lee bollinger, a law scholar, says that the first amendment is important as much because it signals our willingness to allow despicable speech as for the rights of the speakers themselves. in his view, it is our capacity to tolerate the wrongheaded, even the intolerant that makes us who we are. snyder very much reads inbut snyder leaves open as much as it resolved. it reads as a simple case, but it may be deceptively so. the court's assessment of the fax is that this is predominately a matter of public concern and it failed to grapple directly with the speech directed specifically at snyder himself. those things enable the court to

write a clean opinion that left the side of the difficult questions about how far the first amendment is allowed to push us where we had more obviously private speech involving more obviously private harms. >> i want to thank the judges of this court and professor howard for inviting me to be here. i spent a very important year of my life in this court. it is good to come home to find in that it fit. with the campaign finance cases, the question i have for heather is what refers to what you call these so-called illicit equality rationale. i remember the or zero argument in davis. justice scalia denounced this idea in his inimitable way. he said what if we find out that

one candidate is more eloquent than the other? should we require that he speak with pebbles in his mouth? [laughter] i do not think any of us are inclined to require candidates to speak with pebbles in their mouth. is egalitarian, is this idea of not leveling the playing field making it less dramatically unequal? the concern is intuitive. those with a lot more money get to speak a lot more and drown out everyone else. i do not think the court will anytime soon accept this rationale. but i am interested in whether you think that is what is moving the court and what is moving a lot of campaign finance legislation, and whether you think there's something to eat normally. >> may i add a separate question related to that -- something to it normatively. >> may i add a separate question related to that? i notice to the lack of deference to congressional judgment.

but she did not say why the court is hesitant to defer. his reason is that, in the context of a campaign speech, the legislators who are writing the rules are players in the game and they and stand extremely well who wins and who loses from various regimes of campaign finance so-called reform. the essential problem is this. incumbents are in power. it is easy for incumbents to raise money for their reelection campaign in appropriately small contributions from large groups of interested people. it is difficult for an unknown challenger to be able to raise the money coming even to be able to compete. so there is a persistent suspicion that the efforts to make it more difficult to raise money for campaigns is really a disguise, not for egalitarian

concerns, whether they are right or wrong, but for incumbency protection. >> heather? >> in the equality verses corruption debate, i credit -- david strauss argues that the corruption concern has to be about equality for the following reason. as long as we assume that you give the money to the candidate of properly, not jim? full of cash, what you do in a campaign science cases that they can only give a certain amount of money to help the candidate win. it is not lining his pockets. it would be appropriate if you could calibrate and find it a good thing to contribute. if that is the case, why would we possibly worry about giving

money to help the candidate win? we have to say that if everyone has one vote, the do not all have the same amount of money. i think the quality rational does animate current even now, when legislators tried to pass campaign laws and they know that the quality rational is not allowed, they really fall into the trap of talking about leveling the playing field. those are the terms of signal the real motivation behind this. all of the election is ridden with its problems. the foxes are guarding the hen house. when that happens, they are not likely to do much to help the chickens. and we are the chickens. so what should courts do when they look to the regulations passed by legislators? as long as we have the system that we do, which is a partisan system where legislators passed

the law, i think the only thing to do is to give it a hard look. no campaign finance reform ever gets passed unless it is in the interest of legislators. that is a fact. you have to hope that, vocationally, the interest of legislators align with the interest of the voters. that is always true. legislators have no interest in serving their constituents. they want to pick their constituents. whenever you have campaign finance legislation, you have to give it a hard look to make sure that the incumbents are not serving their own interests, to make sure that one party is not using a seemingly neutral regulation to hurt the other party. these are routine problems. for that reason, i think it is a proper for congress and legislators to receive less difference than the usually do on these questions. >> i wanted to offer a few thoughts about snyder vs phelps.

it is one of the most important decisions. on the merits, i think the court got it right. i felt it was instructive for me and all of us to sometimes monitor our own emotional reactions as we read supreme court opinions. in my own case, the more angry and upset i got by the facts and what the church did, the more became persuaded that the court was right, that they are speech was constitutionally protected. i do not think this was it is primarily or very much at all about separating protesters from a father who wants to mourn the loss of his son in peace. i think the facts made clear that the church had every right to be where they were and in no way disturb the funeral. i think it was about suppressing a message altogether and i think the court was right to resist the repressive urge. i think snyder, like the steven's case that professor howard mentioned, illustrate a very interesting 8-1 split in this court where the first amendment cases and values

collide with norms of committee, norms of decency, norms of respect for basic human dignity. sometimes the dignity of non humans, animals, as well. i think there is an overlapping consensus on the robber court in these kinds of first amendment cases. i do not think it makes sense any more to talk generally about what it means to be a liberal or conservative in these kinds of first amendment cases. there's also one consistent dissenter. it eliminates what was going on in this case, particularly in the dynamic between the roberts and the majority opinion and the alito dissent. he has identified attention in these kinds of first amendment cases between the first

amendment as the guardian of our democracy and the common-law tort as the guardian of our community. there are times when these two values clash irreconcilably. in also illuminates to the extent that these two values rely on one another. respect for the first amendment and certain norms of communities. it does not undermine or restrict them. in order for the first amendment to robustly protect speech on matters of public concern, we require a community that values first amendment values and is prepared to defend them, even when a repressive verge is difficult to control.

i think the chief justice understands this in the opinion he wrote. for one thing, he enacts it. it is a very disciplined opinion. while acknowledging the suffering that met you snyder's father in door, it is nonetheless very disciplined and neutral about of the speech at issue. it is worth focusing on the last paragraph of the opinion. the chief justice wrote the following, very movingly -- speech is powerful, move people to action, move them to tears of both joy and sorrow, and, as it did your coming in click great pain. as a nation, we have chosen to protect even hurtful speech on public issues to ensure we do not stifle public debate. i read this as a reminder to all of us that the first amendment values at stake in this case rely upon the community who is prepared to indicate them.

>> i have one response about this division between public values. this is where i felt that the chief did not answer justice alito. justice alito said that we do not have to choose between them. we can separate them. we can talk about the speech that was directed at snyder alone. why not separate them and hold these guys liable at least for the purely private speech. i think there is an answer to that question, but roberts did not provide it. he did not say why it was necessary to figure out generally what the speech was about. i think it would have been a strong opinion had provided an answer to what i thought was a sensible lawyers point. >> i am not a first amendment specialist.

before that reason, my speech protective reflexes. i am unhappy with snyder for a couple reasons. nothing either of them has to do with emotionalism or repressive verge. one reason i am unhappy is the issue of the distribution of the cost of free speech. when people like lee bollinger say that this is the price we pay for the system of free speech, it is not a price that we pay, but the price that albert snyder pays or that that family pays. it was concentrated on one or a few people in cases like this. that distributive issue is a legitimate non-emotional ground for worrying about cases like snyder, i believe. >> the second point is that they slightly miscast the objection. sliders position, rightly understood, is that you can

speak on matters of public concern, but you d you have to hijack my son's funeral to do so? the church is saying that we will exploit you for publicity. and the attempt to stop that is not an attempt to stop them from speaking on matters of public concern. it is an attempt to say that you may speak on matters of public concern, but you have to do so in a place or in a time or in a way that does not hijack someone else's private concerns. i do not think that is a repressive surge or emotional trauma. i think it is a legitimate argument that should have been more squarely drafted. >> i want to, wanted to comment on this not because i disagree with the decision, but because it is deeply controversial character needs to be recognized.

we engage in this fog of free speech celebration and sometimes forget, among other things, how different the united states is from other parts of the world. in any other western country, this case would have lead to prosecution. it would have been described as a hate speech. a dutch parliamentarian was prosecuted he was acquitted, but he was prosecuted for speech criticizing islam that was far less inflammatory than that god hates fags speech that westborough baptist church in did in this country. in canada, britain, and other european countries, they would have been facing criminal liabilities.

i celebrate the fact that we have not gone down that path, but i think we need to recognize that this is really an american distinctive. but also wonder how far these principles of snyder will be oppressed. i think that the majority opinion in snyder depended upon a dichotomy that does not exist in fact. there are issues of public concern on one hand and targeted attacks on individuals on the other hand and to define this as falling in the first. with that cataloging all the examples, the principal ones that we see have to do with harassment on the basis of sex, race, sexual orientation, and so forth.

speech of this sort, up offensive racist, misogynist, homophobic speech, has a deeply political character. it is about issues of public concern no less than the speech i hear is. but is forbidden under public accommodation law in a number of context. just in the last few weeks, the federal government has come down on yale university under title 9 for failing to take aggressive action against some sophomoric fraternity pranks that took place at yale university that was offensive to female students. snyder vs phelps goes at great lengths to use offensiveness under the legal standard of the

first amendment. that is the standard being applied under harassment law. it is the standard applied at yale. it is enforced with a great deal of ruthlessness on american campuses today. how will we resolve this attention? are the ringing principles of snyder vs phelps going to crowd out the increasing efforts to protect people against offensive speech where the offensiveness is based upon the favored categories of race,

sex, religion, sexual orientation, and so forth? it is interesting that none of the opinions in this case recognizes that this is -- there is this huge domain of speech restriction based upon offensiveness that exists in this country. which principal will prevail? >> i have not read the amicus briefs. did they address this point? >> i have not read them. >> that is a profoundly important point. you have set up very nicely for me to pass the baton to you. >> just one general remark looking at not just this term, but the last several terms, is that free speech is alive and well in the supreme court. i would say that this is the

most consistently and strongly free speech protective court in american history. we see the court protecting our principles of freedom of speech, even in the face of very powerful concerns on the other side. last term, animal cruelty, this term this horrible speech in snyder vs phelps, and as i go into some other cases as well. i will begin with the one case in this term in which the court did not protect something that is arguably freedom of speech. that case is nevada commission on a fixed vs. kerrigan. -- that is nevada commission on ethics versus kerrigan. that is the exception not typical of the term. this had to do with accusal

rules for the nevada legislature. under these refusals, they legislate or is not allowed to vote. he is not even allowed to abdicate in favor or oppose legislation where he has a personal interest in the matter, in the particular facts. this was a challenge, so the facts did not really matter, but the particular facts are ones where this legislators chief campaign manager and his shoe supporter becomes a lobbyist and now is representing a party who has an interest in this litigation. the court holds in an opinion by justice scalia, joined by all but kennedy and alito -- it holds the statute is legal under the present amendment.

it is that voting and advocacy is first amendment protected and thus the nevada statute violates freedom of speech. the court said no. essentially it said no because voting is not speech. and the courts as the key point here -- what the legislation's about is the commitment of his proportion share of the legislature's power to the passage or defeat of a particular proposal. so it is really not speech. but this is, when the legislature votes, and exercise of power. it is governmental authority delegated to that person by his constituents. there is a certain amount of sense to that. that may be right. but kennedy and alito have concurrences that are

interesting and thought- provoking. it is how close the idea of voting is to expression. justice alito said that if we held a straw poll, nobody would the but ordinary people casting a vote in a straw poll is the way the express their opinion on a matter. he says so also with legislators. i am very interested in the application of constitutional history to constitutional cases. i cannot help but note that the speech and debate clause of the united states constitution clearly applies to voting. the speech or debate clause -- did our framers miss something that says now that voting is not speech at all? it is also interesting that the

freedom of speech, the phrase "the freedom of speech," in the pre-independence british constitution meant -- the only thing it meant was the right of members of parliament to vote and advocate for particular measures in parliament. that is what freedom of speech was all about. it is interesting that the very thing that was the core of the freedom of speech under british constitutionalism is not freedom of speech at all. and yet there is also a longstanding tradition of recusal rules. it seems almost inconceivable that they would be unconstitutional. alito and kennedy offered different ways of looking at. alito said it is speech but