properties in my county. solar panels may only be used for 20% host: we will have to leave it there. guest: 20% is a pretty big part of the mix. we will have a diversified energy makes no matter what we do. coal will be an important part of our energy future for a long time. we have to increase the amount that areind and solar part -- the amount of wind and solar that are part of the mix. guest: we take this issue seriously. we hope everybody has a chance to participate in it. the rate of return process the president has laid out is unprecedented and unlikely to

get the debate and the policies that address this issue. host: quick question before we leave. i think it is time for us to wrap up. we have been joined by a a member of the natural resources council. thanks for being on. we take you to west virginia. the chief justice will give his assessment of what happened at the supreme court. here is the event. >> a great tradition of this circuit. it will be moderated by professor howard. one of the dangers of doing something for so long and for professor howard to do it for so long is you forget how much of a contribution professor howard makes to this conference. i would like to highlight

professor howard. he is the american scholar, one who knows that thought alone does not ripen into trees. he has been involved in bringing constitutional governments around the world, from eastern europe to southern africa to asia and south america. ,f i may make a personal note and one that have professor howard to thank for, you are the chief architect of the constitution of the commonwealth of virginia. because of your work in your voice, we were able to amend those provisions of the 1902 constitution of this in fright -- disenfranchisement and those that held a lot of -- is back and help to the little boy to reach his way and find his way to the fourth circuit. prof. howard, thank you for your

great work in thank you for bringing this great panel. ladies and gentlemen, prof. of law and public affairs at the university of regina school of law, prof. howard. [applause] >> good morning to all of you. i might say at the outset that you do not have to worry about the virginia constitution. we are just across the border. that does not have the jurisdiction here. our plan is to review the decisions or the highlights of the most recent term of the supreme court, a term that began last fall and has just concluded. we have a star-studded panel. we have as good a panel as we have had at this conference. i will introduce them quickly. greenhouse.e linda many of you know her from her

years of covering the supreme court as correspondent for the new york times. she is a lecturer in law at yale law school. second to her right we have allyson. she has clerked for judge wilkins of the fourth circuit and worked for justice david souter. she teaches law at the college of william and mary. she is one of the rising stars in the legal academy. third to her right is john, who teaches law at northwestern university law school. he is a prolific scholar. he writes books the way most of us write letters. he has two books coming out. one on technology and democracy fromne on the originalism the harvard university press. next we have ted olson.

he served at one time as solicitor general of the united states. he has argued 60 cases before the supreme court including two cases of this current term. i am sure my fellow panelists will join me in thanking the chief judge and the judges from the fourth circuit who made us feel so much at home during this judicial conference. here we are at the eighth year of the roberts court. it is a courts we will be talking about only by way of snapshots from a few cases. it is always difficult to generalize. when can we say about the roberts scored? what might we say about it based on what the judges have done in this recent term. several questions of the kind i suspect might be on your mind.

the first is, how conservative is the court? some commentators characterize it in the conservative terms. some would say that it is the most conservative court we have had since the 1930's before the 1937 constitutional revolution. some would say that is something of a character and they point to liberal exceptions, cases such as the case decided this week, the defense of marriage case. most people would think this is a court that is somewhat to the rights of with the warren court was in the 1960's or even the berger and rehnquist court's. the second question is, what is the correlation between the positions of justices and the s whodent's -- president put them there?

teddy roosevelt's disappointment in the justice holmes. president eisenhower's discipline in earl warren and more recent examples. like harry blackmun and david souter. i think we do not see that sort of pattern anymore. by and large, at least across the board, there is much more of the correlation between what president -- the president thought they were getting and how the justice actually performed. is therd question pipeline debate about it. can we hang the label of judicial activism on the roberts court? that would take time we do not have, to take a party meeting of judicial activism. it basically means you do not like what the court did. if you do not like what they did, they must be a bunch of activist judges.

it is hard to get past that definition. sometimes, the roberts court has behaved as a minimalist score that years ago, when they decided the northwest and boston municipal case looking at the voting rights act of 1965 and avoiding a constitutional decision in that case. sometimes the roberts scored uses avoidance technique, such as standing in the proposition 8 case, sending that case back on standing grounds. in other cases, the court can strike back and be assertive. a in that -- exhibit category could be the citizens united case. fairly may debate the question of judicial activism.

there is the question of the relationship between the court and congress and political bodies and legislative bodies. generally, one can fairly argue that this court is less deferential to congress and the political bodies than one thinks they ought to have been. last year, the health-care case, downweighed in and laid with the majority of the court felt about the commerce clause, relative doctrines' we have not seen in a long time. we havek -- doctrines not seen in a long time. they also struck down section 5 of the voting rights act and the stock down doma. that interestsn the business community and the rest of us is, can you call the court pro-business? that is a lot of cases to look at. you could put them all together

simply. if you were judging the court from the perspective of the united states chamber of commerce, they would have to be pretty happy with this court. they have been on the winning side of the last couple of terms in every case they have filed a isef period of the chamber much more -- they have been on the winning side of the last couple of terms in every case they have filed a brief on. there are cases that seem to favor arbitration over litigation. there are cases in which the courts made it harder for plaintiffs to sue in the case of harmful drugs or workplace discrimination. there is a fair amount of evidence about which you might make some judgment about the court's view of business. is the court and ideologically divided court? we like to play the game of deciding labels on the conservative side.

on the liberal side, that is always risky because it may suggest judges are like politicians. that is a felonious assumption. it helps us think about the court. in this public -- particular term, almost one-third of the cases were divided 5-4. cases are decided that way, almost 25%. the four most conservative members are on one side and its most liberal members are on the other side. that was the case this week in the shelby county decision that struck down the coverage formula of the voting rights act. miranda case, an important self-incrimination case. there was a case that involved foreign surveillance, against 5- 4. there is that pattern. there are significant divergences from that pattern.

for example, unanimity. one tends to overlook how often the court comes down 9-1. in this term, they were unanimous in just about half of the cases, including cases in warrantlessnvolving on cars, cases --olving farmers charging john g. market regulation. casesare also -- regulation andt farmers. the proposition a case that came down this week, we found -- proposition 8 case that came down this week, we thought scalia joined justice roberts. a leto,homas,

sotomayor, and kennedy in dissent. annedyalito, kennedy in -- lead delaware and kennedy in dissent. -- alito and kennedy in dissent. people always wonder about justice kennedy. what role does he play in the core? he has replaced justice o'connor as the -- what role does he play in the court? there is no justice that is more often in the majority than justice kennedy. in this particular term, he was in the majority 80% of the time. importantee most cases, those involving affirmative action and the protein rights act of 1965 and same-sex marriage -- voting rights act of 1965 and same-sex

marriage, he was the only one in the majority in every one of those cases. beenof his leadership has pretty dramatic. we will long be parsing the doma case, the case we will be talking about this morning and what is justice kennedy up to there? those are some of the questions we might ask. i put them on the table as general thought as a way of getting perspective to our discussion of the roberts court. we have wonderful people lined up on our panel. we want to focus our discussion on a few cases. we make no pretense at being comprehensive. you cannot do that in a program like this. if we try to, very few of you would still be in the audience by the time we finished. it would be overwhelming. much better to take a few cases and try to air some thoughts about them.

we will pay particular attention to the marquee cases, the voting rights act of 1965, the shelby county case, the affirmative action case, and the pair of same-sex marriage cases, united states versus windsor. fewill make time for a other selected areas along with that. we want to start out with those particular cases. we have met and talked about it. we have parceled out our assignments. we have people to talk about any and all of these cases. we thought a division of labor might make sense. i was thinking we would start out chronologically. the voting rights act takes us back to 1965. the affirmative action case takes us back to 1978. the same-sex marriage case is a more contemporary kind of issue, emerging in more recent years.

finally, of those major cases, we want to say something about law and technology. we have in adjusting dna cases on the docking -- the docket. i would like to start out with the voting rights act case, the case back linda greenhouse will tell us about. linda? >> shelby county, alabama v. holder. it goes back to 1965. you could say it goes back to reconstruction and the enactment of the 14th and 15th amendments, which authorized congress to carry out the guarantees of equal protection and voting rights in those amendments by appropriate legislation. at the heart of this case is, did congress act appropriately in it enumerated powers?

in 2006, when it reenacted, for the fourth time, section 5 of the voting rights act, the pre clarence prohibition and did not provision --rance provision and did not change how you designate the covered jurisdiction. this was waiting to happen for some years. there was the northwest austin case of 2009 when a similar constitutional challenge came to the court. in that case, it was under the court's's mandatory jurisdiction. 's mandatory jurisdiction. in thewrote the statute course of the opinion to give the jurisdiction that have chance the challenge the

to bail out. there was no bailout for shelby county, alabama. you have to have a clean voting rights record for 10 years, which shelby county does not have. the question is, by right did shelby county bring a facia challenge. clearly, the statute applies to shelby county. a 5-4 decision, majority opinion by chief justice roberts. what the court does is declared unconstitutional section 4 of the coverage provision. on the little hand out of summaries of cases in which i ,rote the shelby county summary before the case came down this

week, i talked about the proportionality, suggesting that was the basis on which the court was going to act. that turned out not to be true. if i had to summarize the it.onale, i could not do the do not actually rely on city. it is kind of like, we finally ofe 5 votes to get rid section 5 of the voting rights act. everybody knows that congress will not be able to readjust the coverage formula. is pre-clearance provision dead in the water. the coverage today is based on decades old data and eradicated practices. the references to the first order voting discrimination

fatten -- practices, which are rare, if they exist at all. in justice ginsburg, she takes aim at second generation discriminatory voting actions that we saw in the last election. voter i.t.. -- id. used tofive has been laws.voter id this is where we are left. we have a statute that was reenacted by congress in 2006. the vote in the house was 390 against 33. in the senate, it was 98 against nothing. it raises profound questions with the court's stance congress.

they make up a doctrine to complain about unequal treatment of states under the coverage formula. it raises a question of activism. activist andidedly troubling decision. i know others want to weigh in and i will pause and we will have a conversation. >> i think the decision is not as troubling as linda does. think it is quite interesting that the chief justice does not use the modern language. inullough plays a large role the case. says isse -- this case that the court has to police things, at least to make sure the objectives the congress is trying to seek are not pre-

textual. in other words, they are not using discrimination for some other objectives. you have to show some evidence, some rational evidence that is related to the formula that is put down. given that it was 40 years old, that is not the case. it is important to make this a little more concrete about what i think is motivating the court and why you might think there is a pretext. politicians like to be reelected. the pre-clearance process makes for a much more static political process in the states. it protects incumbents from change, change in redistricting processes. in particular, the voting rights , with the pre-clearance

provision, by preventing changes, packs african american voters in one district and conservative-leaning voters in another district. that makes for a less competitive political process. we hear from political scientists that that is a huge cost to democracy. if you have people packed in different districts, you are up dating ono get information. we see, across the country, experiments with commissions to get at this problem. this is a pre-clearance process that gives thisincentives -- disincentives. if the congress gives certain evidence that this is necessary to protect against discrimination -- in this case,

it is hard to see because there is no updating on information. given the surprising fact that congress is land and named the time they are reacting. behavior in the south, that seems to be a hard thing to square with the objective of protecting obtain rights rather than doing these other kinds of objectives, which you may worry that politicians of both parties will come together and create a -- to create a duopoly that is in their interests. >> congress documented hundreds of discriminatory voting changes that have been blocked in real time under section 5. i think it is probably not the case that everything was just

going along great. i want to share one other thing. the courte 1990's, took aim at the use of section 5 districtingind of re you described, dismantling race- districting. that was a problem and we have been on track to eliminate that problem in recent years. >> suppose we were to judge this case by the standards of our originalsm and our-- ism. pass as has the power to program of legislation. would those tractors have thought of the case like the shelby county case? >> i will not hold myself out as

an expert on reconstruction-era history. my understanding is that congress did not trust the courts. they did not trust the states. itself theok it to power to pass appropriate legislation, enforcement mechanisms to carry out the guarantee of those amendments. the original understanding would and the first supreme court decision that interpreted the voting rights court's obligation is to cut congress a wide swathe. >> in the 1860's, if congress did not trust the courts, the court does not trust congress?

>> that is quite obvious. justice scalia invoked the fact that the reauthorization in 2006 was passed by overwhelming majorities and it showed political correctness. they could not have voted against it because the voting rights act is such a label or a title that nobody could hear be against it. damned if you do and damned if you don't. say threeust going to unusual things about this legislation and the case itself. number 1, it is an unusual piece of legislation in the sense that it is telling certain states that you must submit your

governmental decisions to the federal government for approval before you can make decisions with respect to polling places or districting or how you are going to allocate whether people are appointed be elected at large or in a particular district. it may happen in other circumstances. some of you may know better than i. thes very unusual for federal government to require state governments to submit a governmental decisions for approval in advance by the federal government or to the courts. secondly, the court talked about this concept of equal sovereignty. each state, unless there are strong reasons against it, with respect to their governmental functions, have the same rights and the same privileges and the same responsibilities. this legislation is unusual in the sense that is selected

certain states, not certain districts, to differential treatment in terms of governmental decisions. that has not happened often in the history of the supreme court. the third thing about it, which is an underlying theme, is that the differentiation between the states involved a stigma. it is a decision by the original congress to pass the voting rights act that certain states -- and they have ample evidence -- certain states were supposed -- suppressing the ability to voted by minorities. that is saying to the entire world, especially to the american people, these states are bad places. they discriminate and they must be put in the penalty box. the court was concerned about, is that going to go on forever? the political process allows people to voted for the voting

rights act. it is hard to vote against the extension of the voting rights act. it is almost impossible to change the process and pick other states for this on equal treatment. it is going to go on in perpetuity. how long will that on equal unequal treatment and that stigma and feeling that you are bad people? i am not making a judgment with respect to how this all came out. those three things are interesting themes. themes are interesting themes. >> it is certainly unique legislation. not updating the formula in 2006 the nature of the constitutional violation is a federalism one.

it struck me as i that there is no mention of the change in the federal relationship with respect to voting, with respect to the discriminatory voting that the 15th amendment unser's -- alters that relationship. the majority opinion does not grapple with that. i found that surprising to say the least. >> one last comment. >> there is this lapse in perpetuity. there is a bailout provision in the statute that the court made more robust in 2009. in fact, dozens of jurisdictions have bailed out since then, including a number of jurisdictions in the state of our agenda of, showing that in the last 10 years they meet the says terry criteria, showing that they have not had any voting rights violations -- they meet the criteria, showing that

they have not had any voting rights violations in the last 10 years. >> time to move onto the next major area. i want to take us now to the affirmative action area. fissured versus the university of texas. fisher versus the diversity of texas. but it was the highly anticipated affirmative action case of this term -- >> it was the highly anticipated affirmative-action case of this term. i do not think it was the game changer that people predicted. i think the long-term import of this decision has yet to be seen. there might be more that meets the eye. thecase concerned undergraduate emission policy at the university of texas at austin.

a student was denied admission in 2008. she says racial minority applicants with less impressive credentials were admitted ahead of her and she was denied admission on the basis of her race in violation of the 14th amendment. here is a quick sketch of what the admission policy looked like as ut. in the late 1990's and prior to 2003, ut did not use race in their admission process. usedused to grace -- they to grade and test scores. they used things like leadership competency service, did you come from a family with underprivileged socio-economic background? there is another important twist in ut admissions. the university grants automatic admission to in state residents who graduate in the top 10% of

their high school class. it was passed with the goal of increasing diversity. it had some success, but the numbers were not staggering. 4.5%003 freshman class was african-american and 16% hispanic. in 2003, the supreme court decides two cases concerning admissions policies from the university of michigan. those two cases together of health the use of race as a plus factor in admissions as long as it is considered part of a holistic view and does not look like a quota, -- . change in itsh a admissions policies. it implemented a new policy.

for the remaining spots to fill after the top 10%, the university had raced to the list of factors they would consider in that personal achievement index. it is still a factor among factors. it still supplemented rates and standardized test scores and where you were a cheerleader and all of those important criteria. it was not a sign of numerical value. there was not even a numerical goal they were searching for. graduate in the top 10% of her high school class, but she still had impressive grades and s.a.t. scores. residents who are in the ut freshman class come from the top 10% plan. she was competing for the remaining 5%.

she sues the university. the trial court in the fifth circuit cites gruder. a 7-1day of this week, in opinion reversed the fifth circuit. justice kennedy wrote the majority opinion. ginsburg dissented. thomas and scalia offered concurring opinions. the opinion was only 13 pages. was almost unanimous and it was straight to the point. justice kennedy reaffirmed that relative --he relevant precedent. then the court held that the fifth circuit did not apply the other case correctly. justice kennedy faulted the that

certification before applying a form of strict scrutiny that was too feeble and one that gave too much discretion to the university. he reminds us that there are two steps in strict scrutiny. the court has to be convinced that there are educational benefits from racial diversity that are compelling. concur kennedy said we to the university's judgment. the means chosen to meet that goal are relatively tailored to me that they did. for the second step, university does not and deference. that is where the fifth circuit aired. -- erred. strict scrutiny is not just a race-neutral alternatives. this is what was called the money auote from the opinion --

quote opinion. it imposes the alton burden of demonstrating -- alternate burden of demonstrating that scrutiny doesl not apply. theave instructions to sixth circuit to try again and take a second look to -- look at the strict scrutiny analysis. justice ginsburg says there is no such thing as a race-neutral way to enhance racial diversity. only an ostrich could regard the supposedly neutral alternative as race-unconscious. she agree with an older opinion of justice souter and we are better off when universities do not try to hide the ball. ?hat does fisher mean

i scanned the headlines this week. it seems like fisher was an inkblot test. there are three potential headlines. there is a little something for everybody. the first one is that fisher reaffirmed gruder. that is the first headline. that is certainly good news. gruder is good law. certainly, a lot of people thought that is how this case would come down. justice kennedy was a dissenter in gruder. the fact that he offers this opinion and there are five votes is no small news. that is big news. education lives on.in highe the second headline is that fisher changed gruder. the devil

is in the details. justice kennedy was faithful to gruder. he defines a strict scrutiny in a way that is demanding. i went back and read the third circuit opinion after efficient came out. the opinion discusses gruder at length. in discussing the standard of gruder. quotes one explanation of the reversal in fishery is that the fifth circuit got it wrong. ore fifth circuit -- extension of the reversal in circuits that the sixth got it wrong.

it makes strict scrutiny stricter than the strict scrutiny that gruder embrace. which brings me to my last headline. fisher is going to spawn litigation over gruder. one consequence is that it is going to stimulate affirmative action lycian to the lower court. you lower court judges out there is that you get to look forward to that. this is a case that was decided at the summary judgment states. at the end of the opinion, justice kennedy applies the summary judgment may not be enough for this diversity and other universities to satisfy its burden of showing that its policy is narrowly tailog inred. lawyer.ke a child

what kind of proof would offer to satisfy fisher? what kind of proof to you need ?o show you have to show you have tried it and it is not working. even though people say this opinion was a flop, i am not sure i agree. long-term, the there are implications that may be more significant for university and first meets the eye. >> who wants to jump in on this? john? >> i agree with what has been said.

kennedy is moving affirmative action to what his position was. his original complaint was he was not with justice scalia and justice thomas in saying this action was wrong. also consistent with justice kennedy's enthusiasm for robust he judicial review. we will review this. he simply move it without saying he is changing it. he is moving it to his position in gruder. the second question. is this going to make differen ce? as a legal realists, i am is skeptical. am skeptical. academic is the most bureaucratic objective. it is hard without a clear rule to strike down plans.

it is unclear even when you do .ave clear rules i do not think it is one to make a huge difference on the ground. >> i think what we saw in fisher was the tip of a big and not pretty icebergs. argued back in early

october, more than four months in neighboring. a 13 page opinion, which indicates a certain lack of stability. it was an aggressive grants. there was no conflict in the circuit at the time this case came up because gruder was the prevailing standard. the court reached out to take this case. se as a vehicle to do something. they were unable to do that something. gruder beon of shall reconsidered was not formally presented in the opinion. it seemed to be an invitation, but there was obviously not 5 votes for it. abigail fisher and shelby

county were both recruited by the same all said, called the project unfair presentation. >> with the fact the-- with that, we turn to two more of the marquee cases. they are the same-sex marriage cases -- the doma case and the proposition 8 case. we have ted olson to tell us

about those cases. he has more than a passing interest in them. >> it is a daunting thing to attempt to deal with these two cases, which involve so many issues that are important to our society and our culture and to our political life in a short period of time. i will see what i can do. the good news is -- from my standpoint -- i represented the two couples that brought the proposition 8 case involving california's8, constitutional amendment adopted by the people in 2008 that defined marriage. it said only marriage between a man and a woman will be recognized and ballot in california. the two couples that i

represented got married yesterday afternoon. the ninth circuit listed the state that had been in affect since proposition 8 when it into effect as unconstitutional. people immediately began to get married. the two female individuals that we represented were married personally by the attorney general of california. the two mails were married by the mayor of los angeles. thousands of other people. were married by the mayor of los angeles. veryill see pictures of happily married people. that is something that has impacted me throughout this case. individuals whose sexual orientation put them in a position where it -- where they will not be happy are

comfortable married to someone of the opposite sex can have a relationship with someone that they love who happens to be of the same sex. to what degree does the and our society owe them a status of equality when it comes to something as important as mayors. -- when it comes to something as important as marriage? same sex aref the entitled to be buried under the concert -- california constitution, the due process clause of the california constitution. the subject is very controversial. the opponents of that decision vote ofthe ballot a

november of that year. something like $100 million was spent by the opposite side to enact the proposition. shortly thereafter, the california supreme court held a challenge that it did not violate the california constitution, the manner in which it was put on the ballot. there was an issue about process. shortly after that, this case was brought in the federal district court in san francisco. not long after that, we had a child. the judge took evidence 12 days. we had expert testimony from throughout the world, experts institutions with respect to the history of marriage, the impact of discrimination, the stigma that might be affiliated with something in the constitution that treats certain people's relationships different than others. we had a witness that describes

how important marriage was in our society. marriage was so important that when the emancipation proclamation was pronounced, slaves flocked to get married because marriage was a symbol of their liberty and their freedom and independence. the supreme court of the united states, 14 times has recognized marriage as some think it describes as the most fundamental right that exists in our society. a matter of liberty, privacy, association, and spirituality. the arguments that were made in that case were based on the equal protection and due process clause. the arguments were that this is a fundamental right. it may not be denied to individuals who wish to marry someone of the same sex. it is taking away a fundamental right to be with the person they wish to have as a result of

their liberty, their privacy, their association rights. at the same time, it is discriminating against a class of individuals based upon their status, their sexual orientation, and the gender of the person they wish to marry. sexual discrimination on the basis of gender. the state is telling them they can only marry a person of this sex. versus it to be loving regina case of 1967 in which the supreme court held that it was case of 1967 in which the supreme court held to marrywas prohibited some of the opposite race. many states still prohibited that kind of mayors. the supreme court unanimously struck that down. those were the issues the

district judge decided. the proposition violated the constitution. the ninth circuit upheld it on a narrow grounds, the ground to being that the right had been recognized in the california and taken away from a class of people. then it came to the supreme court. procedurally, the wrinkle that ultimately involves the decision in the case is that the attorney general and the governor of california declined to defend the constitutionality of proposition 8. they were continuing to enforce 8. provisions of proposition the proponents intervened in the case. when it came time to appeal, the attorney general and the governor declined to appeal. the argument was made at that point that there is no standing

in the hands of the proponents. they have not suffered an actual concrete injury as a result of proposition 8. they were just like any other citizens who believed this was a measure and that should be a part of california law. the ninth circuit rejected that and the supreme court decided the case of backgrounds. not raisedners had the standing question because they had won in the ninth circuit on the issue of standing. the supreme court specifically asked the parties to address the standing question when it came to be at the states supreme court. they had a 5-4 decision written by the chief justice and held that the proponents of a ballot proposition to not have standing under article 3 of the constitution to take the appeal. therefore, there was no valid appeal from the distant court decision. the defense of marriage case

arises out of a statute that was passed overwhelmingly by congress. that tells you a little bit about how times have changed. in 1996, the issue of same-sex marriage began to appear on the horizon as a result of some hawaii and high -- other places. congress pass defense of marriage at, we will call its doma. a each state the right not to recognize a same-sex marriage that was performed and valid in another state. if utah did not want to recognize and provide benefits to a couple that had been married legally in massachusetts, they did not have to recognize that union. whaton 3 of doma redefined marriage meant and what spouse meant under federal statutes so

that only a man and a woman would be recognized as married for federal benefits and federal obligations. something like 1148 provisions in federal law provides benefits or rights to couples based upon your marital status. that was doma. it was challenged by edie windsor, had married her lifelong companion in canada. a return to new york where they were both residents. the canadian marriage was recognized as valid in new york because of legislation in new york. r's spouse passed away, and state tax was imposed. hundred thousand dollars because there was not a recognition that they were married under the defense of merit act. challenged the

constitutionality of doma. that came to the supreme court and that was the other decision of this last wednesday. there is a standing issue in that case, too. the attorney general and the president of the united states declined to defend the constitutionality of doma. they were continuing to enforce the prohibition and insisting the federal government not refund the tax back edie windsor thought she was entitled to because she thought she was married. the united states government did not defend doma in the federal court. a committee of the house of representatives appointed a lawyer to come in and defend the statute. the standing question in doma was whether or not, because the united states was no longer reallyto windsor, there

diversity? the supreme court was petitioned to take the case once it had lost in the second circuit with respect to the constitutionality of doma. was there adversity under article 3 or not? that issue is all over the opinions. the supreme court upheld the innding of the jurisdiction the case and said there was sufficient adversity because the united states still owed the money and the house of representatives where adequate representative to make sure there was sufficient adversity with respect to the legal issues. you have two important cases. the supreme court also had an earlier standing case involving the surveillance program. i guess we will get to that in a little bit.

the supreme court struck down an and othersournalists to challenge the surveillance programs on the grounds that they cannot prove they had been victims or subject of the surveillance program. the standing issue is important in these two cases and in the course of jurisprudence this year. case,fense of marriage the decision written by justice kennedy, again, a 5-4 decision, very intense dissent by justice scalia. there were three dissenting votes. justice kennedy -- i will make this brief. i know there are time constraints here. he spent a certain amount of his opinion describing how this was a federalism issue, that states had to intentionally been the one where marriage was defined. here is the united states government coming along and

imposing a definition of marriage on the states. he rendered a passionate decision objecting to the consequence of the discrimination imposed by the defense of marriage act in words that are very passionate. ins places same-sex couples an unstable couple of being in a second tier marriage. it demeans the couple whose relationship the marriage has sought to dignify by allowing the same-sex marriage. it humiliates tens of thousands of children now being raised by the same-sex

they make it more difficult for the children to understand these things. thatnds a signal to them ance this about how it was demeaning status. because they were a class of individuals who had no choice about their sexual orientation, their relationships were diminished. takes verylia strong objection. i will not mention those. you need to read this opinion. language and the response saying this is not

something that demeans individuals. it is the definition of marriage. the language is as powerful as i've ever seen it. i see them saying let's hear from the other panel. you say that substitution, justicetice scalia did, kennedy disavowed signing anything with regard to the constitutionality of state measures. there are 37 states left upper habit marriage between between persons of the same sex. notasically said we're deciding the constitutionality under the due process process and equal protection laws of those state laws that continue to limit marriage between a man and a woman.

we had done something caserently in another where the supreme court upheld the right of individuals to engage in either sexual contact without being subject to punishment. if this was a car -- we're not deciding whether states must recognize relationships between those people. justice scalia said what do you mean case ?here it you are saying it is the constitutional rights. how can you say that you are not also deciding the right to their relationship to be recognized by the state? .he majority disavows that

he says do not believe it. we have a repeat of that. he is saying we are not describing the constitutionality of those of a marriage between a man and a woman. justice scalia then takes passages from the opinion. never seen anything quite like this. it puts in the language of the state law and shows it is the very same language about the relationship between individuals of sexual orientation. you cannot distinguish of those statutes from what was struck doma.on dilm it raises questions about whether the kennedy opinion was written the way it was and whether the. he says do case was outstanding. there are all kinds of fascinating speculations. i think everything you said

is correct. ? itdo not listen to justice scal. this is about senators. this is about federalism. i think you could read the opinion not the way justice scalia read it and say what was the federal law undermining the dignity that was preferred by the state as opposed to just the dignity. i think it is to be seen which proved correct. >>do not listen to justice scal. this is about senators. this is about federalism. the take away is your clients are now getting married. importantpendently beyond the context in which it arose. two questions. do you think they add this to the correct? at the aim always to get the standing question, the the proponentsr

can then take over the state processes that the state chooses not to defend? import you think is the of the standing holding. >> the standing was always an issue in the case. filed by the proponents of proposition eight, they did not raise the standing question. the supreme court added that. was that there were four votes to take the case. why did they add that standing ? they decided unanimously. that was part of the california constitution that when the attorney general and the avernor was used to defend constitutional amendment they

would not be any difference unless someone had the right to statute.at there were issues of appropriate use of judicial power requiring someone to be inattentive and. this gave them the right to do it. statute. a similar issue had come up there. the supreme court had really resulted by saying it was a part of our constitution that there is official recognition of the opponents during those circumstances. the supreme court said this is a federal question. when the issue, when it was i thought the conservatives on the cord were interested in protecting themselves against a decision on the constitutionality that they foresee the possibility of these

to strike down proposition eight on equal protection and thought this might protect them so they could possibly convince justice kennedy. >> that may have been what was going on. was descendedy from the standing decision. they will all probably be answering this for years. we thought this is good news. >> i am not sympathetic to same-

sex marriage. this is a great criticism. this is not relevant then to our decision. a very plausible argument that this is as crucial. a basic to me a requirement is to articulate a rule of decision. when you go to the other basis, this is very far from the constitutional text i think legitimate the course power. the two authorities, one is subject to due process. it is never defined about how you can get out to due process.

there's no equal equal protection clause against the government. that is the principle of equality. those are the the obligations of oot its decision. quite apart from our policy disagreements. i think this -- >> i think this was as singular a failure as i have seen. >> wow. you heard it here today. theill not take a vote of

panel on that particular proposition. john, you get to pick up the next leave here. there are an interesting pair of cases. they both involve dna. they both raise questions about law and technology of which i know you have a particular interest. would you tell us about those cases? likes these are two very different cases. focus on the discussed -- the substance. they are extremely fundamental. one is about patent. the other is about search and seizure. intimate a few observations about what this may tell us about the way the court deals with technology. i consider this a matter of huge importance. technology driven by the relentless increase in ex financial power is accelerating across a very wide range of

biotechnology and energy. it'll generate all of these kinds of decisions. the court confronted to patent claims. the first was those that was women ations that put serious risk of breast cancer. they anonymously rejected the claims. a long held that interventions thatt include matters actually occur in nature. fear that would tie up tools for innovation. they rejected the argument that the amoco michael process they used to isolate this gene transform the dna into something that was passable. this is not about the chemistry.

it was about the information that was coded. it also held that complementary dna was passable. what is it? that includes only the information from a gene that actually creates be routine. the court labeled this synthetic. the dna does not occur in nature. it is thus able to be patented. there is a pretty thin line. naturallyprocess create the information that only focuses on the production of proteins. it is completely responsible for the sequence of information that so-called synthetic dna encodes. are valuable precisely because of their information. the court differentiates between

these patents by using an implicit standard to weigh the amount of work and money to bring this to usable form and using a monopoly to individual companies. the cost outweighs the benefits. the court said not so. a decision. it split it. dna.ext case also concerns it implicates that it comes from the core events. they are the issue. it is spread around through bodily fluids or hair. it is for this reason that he

says this is the most important fourth amendment case for a generation. as he sharply contested said taking dna was constitutional. he began by noticing that this is reasonable. he acknowledged that taking dna was a search. he said it could substantially outweighed the costs. it also advanced law enforcement legitimate interest in solving crime. it also exonerated will. was not so much greater than that involved. it's only focused on serious crime. it is not allowed the police very much discretion. he acknowledged

that ranting was all right. that was only true for dictation. there was no interest. they do not get around to sequencing the dna for a long time after they had identified the defender. the opinion of the court embraces a standard. they decide that it is reasonable. some say that it is not. it includes the protection of the innocent. not reallylia does talk about a standard. he applies a role he finds.

what can be done with an incident to an arrest. this comes with in -- within one of the six exceptions. that famous for arguing the rule of law is the law of rules. i think he is very much confident with that strong viewpoints. constantthink it is with the language of the constitution. the fourth amendment is quite unusually a standard but not a rule. as some cases suggest, at the court is more likely to read this as a standard if possible in dealing with kind of technology. before these can be radically , they may not be easily added to a pastoral role. a standard allows judges to update the law by self- consciously looking at the policy considerations beyond

standards and balancing them. should be noted that new information technology make standards more attractive. one of the row problems is it is hard to figure out what the rule is. now with new information and makes them more attractive. 1960s the actually had a standard to drive at a reasonable speed. it is not give anyone any notice. what speed to drive. what can happen in the car? the weather conditions and telling them what to dry. that is an indication of how this can make standards relatively more attractive. one other point of general interest i think emerges.

that newen thought kind of technology that are connected to search and surveillance are simply that that are the privacy and liberty. importantly recognizes that this is not so. it emphasizes that dna information can exonerate as well as leave the conviction. because of the power of dna to solve crime, there are fewer lineups with all of the possibilities of mistakes. fewer searches and intrusions to be authorized. in short, there may be less intrusion on privacy. in the tension between liberty and privacy on the one hand, at least sometimes it enables us to make a better trade-off.

>> i would like to elaborate a little bit and let back last term justice scalia prevailed in the gps case. was it a fourth amendment search for the police to place a -- device and checked him over the couple of weeks here it he took a concrete view. he said the framers would have regarded this as trespassing. said we are reaching the point where we have to step back and reevaluate the light of technology. i wonder if you have any reaction. >> i am much more sympathetic to has justice sotomayor o said.

to defineting a rule certain expectations from framers. i do not disagree that these can be relevant in understanding the tax. it is primary. this is not a series of rules. i think it is very amenable to what she suggests. we have to really look at the cost of privacy. think this is very much substantial. this on abate balancing. that will be the debate necessary going forward. rather than creating a lot of roles that will make increasingly less sense. what will re-going to talk about? >> we will. >> that is an important part of

this. we were thinking about the gps case which was involved in an interesting concurring opinion about justice scalia. he found that it was in the suspected drug dealers car she out a track it with warrant. how do get get original is out of that? we will get to the. cases. the cell phones were there are cameras everywhere. they have a case a couple years ago by heat measuring devices will over the guys home and

measured the heat that confirmed provided sufficient suspicion that there was marijuana growing inside the house is generating this heat. which wehe dog cases will talk about. the surveillance cases, billions of phone messages tracked or stored. all of this technology that the supreme court is having to deal with in terms of what does it mean in terms of the precedents. where are we going to find that standard? is it going to be something like reasonable expectation of privacy. whatever the heck that means. a raises the question about this. it was not so long ago. i think 96 is when they have their first case related to the

internet. it was this case. many and never access the internet. to bring inexpert from the library of congress. experts from the library of congress to speak of factual context of the communications. there is a learning curve that we are all climbing when it comes to technology. judges are climbing it to. >> today they're called law clerks. >> that is a nice point to segue. we have two cases for you dog lovers out there. one.win-win and lose

we cannot leave that off the agenda today. >> when they started talking about assignments i told him i was a junior member of the panel. there are actual dog cases. there are two cases that involve drug sniffing dogs. there is one year today. i attacked him in the hallway. they are trained to attack narcotics or bombs. there are similarities between the two cases. there are enough factual differences that i will recount them for you. the court decided about a german shepherd ar named aldo. the officer pulled over a truck with an expired license plates. the driver of the truck was clayton harris and he was visibly nervous and had an open can of beer. the officer asked if he could check the trunk of the truck.

harris said no. aldo overr brought for a free air sniff. that is a practice of allowing a exterior of thee car. it is can this is -- consistent with the first amendment. he signals that he smells strikes. -- drugs. he sits. that is between behavior. he concludes that he a probable cause to search the truck. he did not find any drugs there. aldo was wrong. he found a bunch of ingredients that are used to make meth. foris was you -- charged use the sudafed for methamphetamines. then he has a second encounter with aldo.

another stop. this time he is pulled over because of a broken tail lights. .ldo again alerts this time he is wrong. there's nothing of interest in the car. in court he asked to suppress the information found in the aldo was wrong twice a business are unreliable. on the hearing, they talked about this extensive training they had undergone. aldo had been certified. the trial court ruled for the state. the florida supreme court reversed. when a. alerts, the fact that he has been trained and

certified is not enough to establish probable cause. the state has to produce evidence, training, certification record, and performance record. how often has the job been incorrect? justice kagan delivered a unanimous opinion. she explained that the florida checklist is too inflexible of a way to prove -- to prove reliability and push too much emphasis on field performance where they can overstate a dog's false positive. perhaps out of alerted because harris had drug residue on his hands when he opened the door. there's a thing in the truck but perhaps it is not a good indicator that out though -- aldo's sniffer was not up to snuff. [laughter] there should be no inflexible 'saring to test a drug

reliability. a defendant could challenge the adequacy the certification and training. the field evidence could be relevant but not responsive. he is off the hook. featuresd case frankie, a different dog. he is not so let the. this is different. it picks up on some of the things you were speaking on. this concerns a home and not a traffic stop. heice were given a tip that was growing marijuana in his home. an officer and frankie were sent to the residence. the dock and the officer approached the front porch. smells since one of the and begin bracketing, tracking back and forth trying to find the source of the odor. he then sits at the base of the front door to signal he has discovered the source of the odor.

basis, the police get a warrant. they searched the house. frankie was right. the question was whether the drug sniff itself count as a search in the understanding of a fourth amendment. justice scalia writes and says it was. it was unconstitutional. it is very similar to the opinion he offered last term and jones, the gps tracking. propertyembraces the right and this is on the fourth amendment which he says supplements the reasonable expectation of privacy. he says a person's home and the immediate surroundings of the home enjoy special protection under the fourth amendment. it is the very core of the protection. that makes this case easy. the officers gathered information by physically .ntering and occupying his home

that place is constitutionally protected. the officers intruded upon it. the only real remaining question is whether the officers had an implied license to stand on the porch with frankie. it permits all types of visitors like a girl scout or trick-or- treaters to approach a home and knock and wait briefly and then leave. segovia says introducing a trained police dog is something else. we do not even need to get into expert haitians. -- they learned what they did by intruding on the property. wrote the dissent.

heplease could've lawfully approached the door and waited for the same amount of time if they have not been accompanied by frankie. he says it makes no sense that it is illegal because they were accompanied by a dog. been used in connection with law enforcement for centuries. it is not of the ordinary for .he public to expect their use it is different than the new technology. it is different. been around for years. he would not have labeled this search. unfortunately for frankie, six justices disagreed. >> the result is the dog can be right and still lose that right and still win. i wonder if it will cause them to start thinking about what kind of dog they bring.

onbe they should name it -- hunthan a tele- rather than atilla. we had a situation where people were phoning in bomb threats every afternoon of people would have to evacuate the building. on a gymhe dog alerted bag. we had to stand out there for another couple of hours while the big truck came. it turns out this drug sniffing .ob was a golden retriever it contained a bunch of tennis balls. [laughter] it is not perfect.

>> is anyone else have any dogs living stories to tell? -- spca time. he said he is more comfortable. he said it is somehow more clear. >> we have a few minutes left. can you take two or three minutes? i mentioned whether or not the roberts court ought to be thought as pro-business. it was complicated. i wonder if you could give us this. >> there are four class action cases. if you look at the business this is a pro-business

court because of various decisions involving businesses. i do not agree necessarily. are statutory construction cases. a lot depends on your federalism and things like that. usually these will come up in the context of antitrust cases, portions ofs, state action. discrimination cases, retaliation cases. three of these came out in favor of the defendant. the last of which was a case involving american express. the principal, the one that

cannot in favor of the plaintiff hell that you do not have to prove materiality with three's fact to members -- you did not have to prove materiality. this was a 6-3 decision. suggested if you looked at all these cases and look at the walmart case from two terms ago which the supreme court unanimously was very strict with respect to the , there was a similar decision today. i cannot remember the exact title. intersectsrea that with this came together in this american express case. it was an arbitration clause in the contract between american express and the establishments

that it does business with. it included an arbitration provision and an exclusion of class action and the way a merchant could bring a small case asserting that american express was violating the american express laws. he wrote a very interesting dissent stating that that if your anti-class action everything is a class action. the outcome of these cases is

not necessarily predictable. the court is looking very carefully at class actions. >> quick comments. thes not so much that court is a pro-business court. it is that it is an anti- litigation court. court is appropriate, the employment discrimination cases that came out this last week reinterpreting title vii as -- it is too complicated to go into. this was very reminiscent of the ledbetter case. perhaps the same thing might

happen this time. we do have a couple of minutes left. put one general question on the table. looking back at the comments i made at the outset about the country of the court in the process the court had, i was justice kennedy domaustice galena in the case. justice kennedy speaks of the theary rule in determining constitutionality of a law. scalia even by his standards had a scathing dissent. he said this is a draw dropping assertion of judicial supremacy. the constitutionality of a law. it envisions a supreme court he has enthroned at the

apex of governments. they are joining an issue on this. justice leah had voted to strike down the section four voting right act. >> i want to bring us to closure. the major decisions that we have talked about, what do they tell us about the collective o of what the courtss that we have talked about, what do they tell us about the collective o of what the courts they is in democracy.

it is interesting when you think about the individual cases. what is the court of two? what is going on to debate points like this? >> this is something i tell my students. no theory has a market on that argument about judicial restraint. i think it can be used by anyone they are upset at the decision to strike down an act of congress. it isot sure i believe something we can ascribe to the robert court. it is a rhetorical argument you could say when you're not in the majority. that might be kind of skeptical. >> i think there are fundamental differences. it is a rhetorical as something that is not well rooted. at least in someone

the area of the bill of rights that believes in an evolving constitution. he is going to do the evolution. the court might be a better institution. it is important to understand he is in many ways someone who believes the constitution should be moved ahead the abstract principles, sometimes that is that security. he is a left liberal. at least in the area of the bill of rightsh. at least in the area of the bill of rights that believes in an evolving constitution. he is going to do the evolution. the court might be a better institution. it is important to understand he is in many ways someone who believes the constitution should be moved ahead the abstract principles, sometimes that is that security. he still believes the court has this ability to see these that have evolved in society. this is very connected to his vision of the court. >> not on the docket would be unity opinions and cruel and unusual punishment cases.

they have been dealing with things like what sort of forshment you can make juveniles. it supports a cruel and unusual punishment which most see as an evolving standard. it could go on as a more general debates. do you want to comment? >> i think these have come out throughout history. one shocked when we got into the becomingo cases and the superintendent of whether the rule of law would apply at guantánamo. they did not expect that at all. we have to step up and show our hands.

it is important to keep rooted in the larger context in which these disputes emerge. that's always forms how we understand them. >> this debate about standing is about what cases can be decided by judges and what matters should not be in courts. the scalia dissent in the dome a goes backoma case where president washington was asking for an interpretation of the treaty. they wrote very politely back to the president that is not our business. we are not in the business of writing advisory opinions. it is interesting that he goes as far back as that. on veryy concerned

restrictive rules with respect to what matters belong in courts. once you acknowledge that it belongs there, you can decide it. if they cannot get their in the do not have the kind of powers if there is a wide for i.t. of wings. this is going to keep coming back. whose numbers are being collected at nsa. that case will come back again. more standingme discussion. it will be interesting. it is about the rule of law and the role of courts. >> it you watch oprah winfrey, they are suggesting you go home and find a good book to read. ours is somewhat different. appetite whetted your

to go home and read some cases. lawyers and judges do that all the time. we try to sit up there a lot of cases we could have suggested you write and eight out a few -- and pick out a few that must be reading when the time comes. thank you for having us here. thank you to the panelists for engaging in the conversation of the court. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013]

>> ladies and gentlemen, let's give our panelists a round of applause. thank you. let's give our panelists a round of applause. thank you. while we make this very brief transition of the stage, i would like to take this opportunity to thank you very much for allowing me to the i want to thank him for giving

me this wonderful labor of love. it is a privilege and an honor. thank you judges, members, and gases. -- guests. i would like to take this time to thank the panel. we have the responsibility for hosting. this year fell upon the commonwealth of virginia. him for giving me this wonderful labor of love. it is a privilege and an honor. thank you judges, members, and gases. -- guests. i would like to take this time to thank the panel. we have the responsibility for hosting. this year fell upon the judge raymond jackson, district court judge of virginia. the honorable judge hudson, district judge of virginia. jackson, district court judge of virginia. the honorable judge hudson, district judge of virginia. jaclyn and todd.

him for giving me this wonderful labor of love. it is a privilege and an honor. thank you judges, members, and gases. -- guests. i would like to take this time to thank the panel. we have the responsibility for hosting. this year fell upon the commonwealth of virginia. of course, our dean of all an officialutives, member of the committee. into the hardest working member in the circuit for making this can together is karen. these give her a hand. yet done a wonderful job. .- these give her a hand you have done a wonderful job. also recognizing the conference staff from the executive's office. kim, janice, the staffsa cook, of the office of the circuit

executives, the staff at the hotel, and the united states marshal office. frankie got so much attention. we did not mention mario who was our k-9 officer. thank you very much. .e are not quite ready there we are. [laughter] excuse me? i will tell you this. there's always some history. judicialhe 78th conference. this is the largest conference in the history of ours.

we are the granddaddy of them all. judiciald this idea of conferences. we have led the way. it is still very robust. very much. we need someone from south carolina to do some of the stories here. they are setting up the transition for the conversation with the chief justice. since we are in the great state of west virginia, they have said happy birthday. happy birthday.

a conversation with the chief justice. would you please help me welcome to the stage the honorable john g roberts junior, chief justice of the united states and the article j harvie wilkinson the third, united states circuit judge, fourth circuit. [applause] you always keep your audience waiting, yes. >> it is great to see you.

>> it is good to see you. >> thank you. >> even the not can it. i just wanted to have a few comments before i set down with judge wilkinson. think these conferences are very valuable. they give the members of the ranch and the bar a chance to get together and understand the differing perspectives they have a little better. iny were not as necessary earlier days when they reacted on a regular basis and could gain some insight through that normal interaction. but the time when they were arguing before a judge in england. i have three arguments

today. one of which is a complete thres today. one of which is a complete dead cinch winner. one of which is so-so. it could go either way. one of which is utterly frivolous. the judge said, by all means, begin with the strong arguments. the lawyer said i have no intention of telling you which is which. [applause] of course i cannot talk about the cases we just decided. this always makes me wonder why all of you are here. i will share a few things about

the port last year beginning with some statistics. we heard 37 cases out of the 8000 presented to us. we have five cases from the fourth circuit. this is quite a bit better than 72%. this is only reversed because it overruled one of our existing precedents. the decision was correct when circuit.cided by this it was a success rate of 50%. that is really quite good these days. we have 35 cases already set for argument. this is more than usual. as a result, i will be able to schedule a few extra cases in the fall. we will hear it rate of 50%. that is really quite good these days. we have 35 cases already set for argument. this is more than usual. as a result, i will be able to schedule a few extra cases in the fall. three names it several times. it might allow us to diesel up on the arguments. we will be able to get our work mad rush on the endone of the new cases is from the new circuit.

keep up the good work. . what a fantasy that is. we have the option of writing the order. it is promptly at 10:00 or taking a day off. time i reported on our

construction at the court. it indicated we were short -- close to completion. the project turns out to be an example of this is the idea that an arrow they get halfway toward the target every time i r construction at the court. second continually progresses. we never quite reach the target. this is how our construction project is going. we discovered. we discovered thiswe never quit. the way newton discovered gravity. we nearly landed on some people like newton's apple. we had to put scaffolding up in front of the court. you cannot even tell if is not a real building.

at least the visitors get a sense of what the building should look like without the scaffolding. the landscaping is an ongoing project. dug up you would think we were looking for jimmy hoffa or something. i did want to echo something the chief judge said last night. that is a tribute to the judge as the heads work of the administrative office. i prevailed upon him to agree to spend one year in the job. my plan was to entice him with the many sources of entertainment the job provides into staying longer. it worked for almost a full year, for which i am very grateful. tom leaves the post in the able hands of the judge from the district of columbia. tom wanted me to announce that

john begins his job officially on monday. ies and complaints should be directed to john. tom also wanted me to announce john's cell phone no. but i do not think i will do that. the service john is undertaking is emblematic of the service so many in this room provide to the judiciary in the case of judges above and beyond their obligations. the is in epitomized by chief judge that serves as the chairman of the executive committee of the judicial conference, an enormously important position for which i am very grateful. now i think i will sit down with jay and have a little talk. thank you [applause]

>> welcome. thank my colleague who judge gregory for his leadership in this wonderful and educational conference. 's year told ania conference. innow the commonwealth joins the appreciation of judge distinguished service and shares depreciation his colleagues have. thank you for all you have done to put this conference on. i want to say a word about chief and theaxler magnificent leadership he has provided to the fourth circuit. he is held in the greatest respect by all members of the court. we are lucky to have a chief judge of his caliber.

for being here. you have been through a gruelling term. i am sure you would love nothing better than to spend time with your family. the fact you have come to join a throng of lawyers and judges, we are ever so appreciative. i cannot begin to express the respect and appreciation with which you are held for of the judiciary for the dedicated service you have given us. it is a very hard job. we appreciate the warmth and dedication and sterling character of your leadership.

it is a pleasure to be part of a court system with you at the head. >> are like this conversation so far. -- i like this conversation so far. [laughter] do not let me interrupt. [laughter] >> you can interrupt any time you want. chief rehnquist was here for many years. when we did the supreme court review session, it always amazed thate music and poetry chief justice rehnquist new. he would begin each session with a quotation from sir thomas gray's elegy in a courtyard. em the caverns bear. waste flower is born to

desert aness in the ir. may be someflowers of the cases did did not merit the headlines or public discussion like some of the marquee cases did. they were nevertheless. --ortant in the lives of they were nevertheless very important in the lives of ordinary americans. i wonder if there were any blushing flowers in the desert from this last term that went unnoticed. >> there are always are. if you look at the cases we have come out of 77, there are maybe half a dozen people will be talking about at panel discussions and things like that.

some of the little ones can be fascinating. my favorite from the past question ofved the the admiralty and jurisdiction of what counts as a vessel. the way cases develop in the law, if you have things that do not fit comfortably into our category, it was either a floating home or in houseboat -- a houseboat depending on what side you are on. it was attached to the shore but could be disengaged and would towed.nd could be issue was whether it was a vessel or not. it is one of those things where a picture is worth 1000 words. it looks like a house that got swept into the ocean rather than a boat. the court did hold it was not a vessel.

we had a lot of fun looking at the different characteristics and posing interesting hypothetical at the argument. we had a bankruptcy case that was surprising. , it maye practitioners not have been as much of a surprise to them. there was a term in the bankruptcy law and had been for 150 years that applied when you were not entitled to discharge its debt in bankruptcy, when you defaultcation. i had not heard the word before. in jurisprudence, we often quote dictionaries to get a better sense of the meaning of a word. i was looking up in the dictionary to find what the word had to do with. defalcation. it was a surprise to all of us that the term had been around

for so long. there was a complete lack of coherent understanding about what it meant. i do not know if that tells as a .lushing flower or not >> is sometimes a relief to have these sorts of cases where you can get into them and be traditional lawyers and deal with the raw materials of wall without the volatile component that comes with some of the more controversial topics. i know that is true on the court of appeals. the matter intensely to the parties involved. impactmetimes have an that is in inverse correlation to the publicity that they receive. as much as i have enjoyed talking about the high points of law, at some point we will need to talk about money. has hit a sequester great many government programs

card. it has hit many public agencies and institutions hard. it has had a severe impact upon the federal courts. should a man or woman in the street care about the budgetary impact the sequester is having upon the federal judiciary? why is this an issue for somebody who is not a lawyer? this budgetary impact of increasing cuts are having on the federal courts. >> people who are not lawyers have a vital interest. the sequestered cuts are going

to the heart of the process. that is whether you are talking about courthouses, keeping them open, in terms of funding not just the the history -- the judiciary but the justice department. if they are not working, they are bringing cases. the cases get held up. the pace of justice which is already too slow in most cases is held up even more. specialy makes a pleading in the time of this sort. you should not cut our budget because of this, cut everybody else but not us. the judiciary does have a special case to make. we're less than 1% of the federal budget. you get a whole branch of government under the constitution for relative pennies. the idea we have to be swept along because it is good public policy to cut everybody -- i am not commenting on that policy,

but the notion we should be swept along with it is unfounded. the cuts hit us particularly hard because we are made up of people. it is not likely are the pentagon where you can slow a program or the other agencies. when we sustained cuts, people have to be furloughed or worse. that has a more direct impact on the services we can provide. the --ral, it is one to it is going to be a cold winter of austerity. we're going to have to bundle up. >> do you see any hope? will it get worse? >> i tend to be optimistic on these things. i hope we're able to make an effective case for why we need more flexibility than others. led byinistrative office

batesgan and after john are working hard with our appropriators to get them to go to bat for us. i want to say publicly i think the appropriators in congress are the best legislators since henry clay and in the webster -- and daniel webster. you can quote me on that if you like. [laughter] >> we may have touched on this before. there is of the recurrent subject of the hot bench. a hot bench is one asks a lot of questions. as someone who follows the court with the greatest interest, the supreme court bench seemed to get hotter and hotter. there are more and more questions coming from the

justices. are ableif the lawyers to get in a word in edgewise or whether the adversarial process has become one of more dialogue between the justices as opposed to the clash of views between the lawyers. i have the same concern at the court of appeals. the lawyers have spent weeks and .onths preparing their case the oral argument means everything to them. and sometimes come to court leave and feel like we have not gotten it out because we have been bombarded by questions from the bench. i know if the bench is too passive, they wonder if the

justices have prepared the case. exceptionally hot bench in historical terms on the supreme court. as a former advocate yourself, is this a good development? >> first off of, there are excuses. everyonesure understands this. we do not talk about cases before the argument. when we get on the bench, is the first time we start to get clues about what our colleagues thing. we are using questions as a way to bring out points we think our colleagues ought to know about. we do intend to debate each other through counsel. that is an explanation. it is not meant as an excuse. i think you are right. we do over do it. i do think the event has gotten more aggressive.

recent appointees have tended to be more active in questioning than the justices they replaced. there's nothing bad about either of them. it is just a fact. i have had to act as an umpire in terms of the competition among my colleagues to get questions out. they are not being rude, but you do not always pick up in the acoustics the fact that one of your colleagues is already asking a question. i do think we have gone too far. we have talked about it a little bit. we try to make sure we do not prevent a lawyer from reserving argument time for rebuttal by asking questions when he is trying to sit down. it is too much. i do think we need to address a little bit. i do think the lawyers feel cheated sometimes. it is nice for us to get a good feel about where everyone else is. it also would be nice for them to have a chance to resume their

argument. -- the chance for them to present their argument. i am sure i am as guilty as most from time to time. i remember one time i told my colleagues let's not interrupt the lawyers when the white light is on signaling they have five minutes left. i found myself asking questions when the white light was on. you get wrapped up in the dynamics and forget to ease up a bit. of a personalt question. for years before you went on the bench, if you were one of the most distinguished of public advocates in the nation before the court of appeals and a large number of cases, your arguing before the supreme court. do you miss your former life occasionally? anyou have the impulse to be

attorney again? ofyou miss the satisfaction that? you were so good at it for so many years. you had to leave it all behind. if it were the day decline or paying the bill, i would jump over the side of the bench. if it were the day that a client was paying their bill, i would jump over the side of the event. when i became chief justice, i found out i had no idea i was as good as people tell me i was at the time. i think the judges would say the same thing. you miss it. i miss the competitive edge. on the court, we do not win or lose. you have a particular position you think is the correct understanding of the constitution. one of your colleagues may have a different view. internally and through memoranda. the court goes one way or the

other. i never felt i lost a case or that i had won a case. we were both working to the same end. we ended up where we into that. as a practicing lawyer, you do when or lose. you have to make the call to the client because it does not want to hear that we hope the court reached a resolution. they want to know whether they win or lose. it does give an edge to your work. it is a wonderful bar at the court these days. it was when i was practicing as well. you tended to be on the same side as your fellow appellate practitioners in some cases and on the opposite side in others. you were able to work together well. i enjoy it. i have no great desire to go back. >> sometimes i feel like writing a letter to losing lawyer to say i know you lost the case, but you gave the better argument.

court. it is not moot that would be of small comfort because you cannot take a letter to the client. >> it is a funny business because we are not picking the best lawyer. you are right. i know the best argument i ever thought i gave was for a losing cause and vice versa. the worst ever did happened to .e the right side of the court -- the worst i ever did happened to be on the right side of the court.te >-- >> i would like to ask about the membership and composition of the court. when one looks historically at the court and their past you get chief justice william howard taft.

he was a former president of the united states. you get chief justice charles hughes who was a former presidential candidate. at one time, i think the supreme court had three former united states senators with hugo black and harold burton. ll was atice powe former president of the bar association. there. marshall was a chief litigator was theood marshall chief litigator for the naacp. before coming on the court, they were giants of public life. now we have a situation where the immediate past experience of the court's membership with the , theyion of justice kagan all come with sometimes

extensive experience on the court of appeals. do not get me wrong. i love court of appeals judges. when the supreme court draws from this narrow band of the immediate prior experience whether we're missing something in terms of the court's ability to relate to some of the larger .spects of american life appealset a former court judges whether it becomes more technocratic as opposed to those in times past. is this a danger? >> your very delicate the way you phrased this. you have william howard taft who

was a president. earl warren was a governor. then you. [laughter] i like to the beginning of the conversation better. to be enormously significant what you are saying. you have courts that were made up of governors, senators, people like felix frankfurter, different backgrounds. moreght be accurate to say prominent statesmen. it was an historical anomaly kagan justice taken -- you have entirely of people who had been on federal appeals courts before.

that has to have an impact on the work. i do not know yet if it is a positive one or not. if you think the job of the supreme court is trying to apply the law to particular cases, maybe it makes sense to have a court of judges. if you view it as more in terms --playing a political world role as part of the political process, maybe the way a constitutional court in european countries does, maybe it makes sense to have people who have been active in the political realm. it has to be saying something about the role of the court in terms of what the make of this. you see in the arguments as well. we have a very good bar. the present legal arguments. if you go back and look at briefs filed in the warren era,

brushaint with a broader in terms of social policy and concerns. it reflected the audience there were in front of. people can and should debate whether that is a good development or not. i think one consequence is it is probably a good development if you have a sense of what type of issues should be presented to the supreme court. a different sense of weather is good or bad if you think different type of issues should be before the supreme court. , the all interrelated background of the judges and the issues presented. it is an interesting development people need to think about. >> having a broad experience in elective life or high public office -- elected life or high

public office is no guarantee one will be successful justice. black was one of the great justices. . two other senators with whom he served that i do not think anyone with sabre great justices. it is hard to draw a correlation. >> if you have been a president or senator, you have a particular way of looking at issues, matters of public policy. if you have been a judge on the court of appeals, you have a different way of looking at it. you have to decide what type of questions you think the court should be deciding and if they call for people who have one way of looking at public policy as opposed to technocrats. i do not think that is the right word. but a more focused way of dealing with the law. you may think there is a mismatch between the type of

questions the court is being asked to decide and the personnel that have to decide it. you can resolve the tension one way or another. it is not a coincidence or happenstance you have a court that looks so different from what it looked like in the past. >> one of my favorite parts of youconversations is to ask -- i think it is one of the most fun parts for the membership. before we head off into the summer. we're all interested in getting relaxation and reading some good books and seeing some good movies. we're always interested in what books you have been reading and what movies he might recommend -- you might recommend. people are interested as to what we should put in our suitcase to

take to the beach. what are you reading these days? >> i mentioned a little while ago we already have 45 cases that for the fall. [laughter] to be seen as endorsing any book. i picked one of the other day i have not begun to read. it had a very good review in the "wall street journal." remember thean nevenot author or the title. it is about the most significant 20 battles in world history. the author began with the romans carrying all the way through iraq. it looks nice. it gives you 20 pages about the particular battle and an overview of the history in general of that time. that is what i will be reading on the plane.

>> very good. from the questions audience? we're running short of time. we would be happy to take a question or two from the audience if you have one for the chief justice. >> good morning. my name is dana moore. i graduated from moscow at a time when the women were scarce but the bourbon was plentiful. i have a suggestion that he read a book written by professor larry gibson. he will give you a sense of what the path to greatness looks like and what makes for a great justice. >> thank you very much. "young thurgood." play and one-person cannot remember the actor who did it.

thurgood."t called " it was a spectacular performance. son show thatper went through his life from youth until the end. tone or posture that convey the notion of ongoing time. , grippingonderful performance. they were talking about turning type show.hob and i hope that they do. >> do we have a final question for the chief justice? >> you have talked about a hot bench. for the the best ways lawyer at the podium to handle the bench effectively and be able to make his or her case?

what would be the tips you would give that practitioner? .> it is difficult you do have to try to keep track of the questions. i remember one case i was arguing. somebody would ask the question and somebody else would jump in before you could answer. a third one before you could answer. asked me avens question. before i could answer, one of his colleagues jump in with another question. before i could answer that, another question. i have been told you should try to go back and catch up. i did. i answered the best i could the third one. in the second one. i was feeling very proud of myself and turn to justice stevens and said i do not think i have an opportunity to answer your question. he had a very warm smile on his face. i was smiling back at him and realized i had forgotten

completely what his question was. i mumbled something about the case and his smile faded. [laughter] thing you cannot do is show any kind of impatience. sometimes the most effective thing is to stop talking for a while instead of trying to get something in while everyone else is talking. if you stand there, the justices will realize there is somebody who is supposed to be speaking who is waiting for us to get finished. if you are the lawyers and the justices are bouncing questions off of you, if you do not play along, it is hard for them to keep it up. next term, there will be nothing but lawyers standing there saying nothing. [laughter] it is a challenge. it is worth trying different

things. scoldingost quietly the bench for not giving bill lawyer the time he or she deserves. it might be effected. that you remain seated while we adjourn the conference. may we also express our appreciation for the wonderful visit of the chief justice to the fourth circuit court of appeals. i cannot tell you what a pleasure and honor is to have you with us. >> thank you. appreciate that. [applause] well done. thank you very much. [applause] [captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute]