they would have an obligation of determining who is a good driver, a bad driver, a safe driver. i understand their business needs for wanting that information. if it is available, i cannot blame them for doing it. >> what kind of response have you gotten from your colleagues on this? garnered some support lately. some people look at and they look at the way i did. we have to figure it is a joke. it is science fiction, a million years away. that is why the releases are put out. attached copies of the patented cell. i did make up these quotes are these examples. this is out of an official patent fired -- filed by a major corporation.

the problem is, a lot of this information, they just do not know it. i think you could want on the street today and cap the shoulders of hundred people, and my guess is 95-97% do not know that they have these in their cars right now. or how it could be used against them. until people know it, they really cannot have an honest discussion about it. >> what about when it comes to the tracking? have you looked at those issues? >> a lot of these things people already know. most people know that when you turn that gps device on, you can be tracked on a cell phone. i do think that the whole invasion of privacy is a subject long overdue for a discussion. i hope these bills will twitter that to have these discussions. these, i came aware

of other devices i didn't even know about. i hope that they wonder what is it that we as americans want to do about sharing our information with the government, or sharing information with companies? i think that discussion will be a good one. it is overdue. we might come to the conclusion that i disagree with. at least it will be a thoughtful we have that participated in. the silence is deafening. >> do you have bipartisan sponsors question the >> we do in the. i just had to people, we were having a vote, they said i heard about this bill. could you give me on this bill. more like of information than is anything else. >> did you introduce these prior to the revelations about the nsa? >> i have been working on it for 3-4 months.

the black box bill was introduced for the last four years. something like that. >> we have been talking with was a democrat massachusetts. he sits on the financial services transportation infrastructure, and ethics committees in the congress. they key for your time. -- thank you for your time. [captioning performed by national captioning institute] http://twitter.com/cspanwj >> next, what we have learned from studying first ladies. later, we talked to the founder of the witness protection program.

>> what did we learn from studying the first ladies? whoscussion with authors have written books about presidents and first ladies. -- form was held at the age the george w. bush presidential center in dallas. [applause] >> what a treat it is to be here. mrs. bush, so good to see you. an old friend from many years in washington. these two women are out of the great tradition of the women who come as the adjuncts -- a really dumb term -- to the men who often make trouble, and the women make it better. [laughter] the ad that anita read, the

united states is an equal opportunity employer -- not until a guy has to do all those things. then we will see. the truth is that people are so ignorant about the roles of first ladies and the jobs that first ladies have done throughout our history. our panel is designed to try to shed some light and reduce some of that ignorance it is there is an idea -- she is an expert on eleanor roosevelt -- there is a sense that before eleanor roosevelt, first ladies were sitting around and attending to the tea. that could not be further from the truth. ever since eleanor roosevelt, there is a sense of not really being clear on who was doing what. mrs. bush, you always complained

that when your husband was elected, people said to you, are you going to be barbara bush or hillary clinton? >> i would like to be laura bush. >> which you are and have been wonderfully. there's always that they goes on. i read that betsy truman realized that coming in after eleanor roosevelt, eiffel like munro. -- i feel like munroe coming in after madison. cat, both of us have written about -- you have written about the martha washington. we know she was active politically and in terms of policy. lobbying for the benefits of the veterans she had been to camp with for eight long years.

the revolution. abigail adams probably a row break their upbringing civility a role breaker for bringing in the civility. dolly madison was a figure in american politics. people don't have a good sense of. >> i have to say something else about martha washington. she was a very nice lady. mary washington not so much. [laughter] she would not disagree that she did not have a taste for the role. she said she felt like a prisoner. a state prison. she acknowledged right away there is something going on and she understood the american experiment was more than just politics or politics in a different way. she began right away even though she did not care for it and

would rather be at home at mount vernon, she began wondering about protocol. she began to establish different protocols. the founders understood it is not enough to have a constitution and a set of laws, we had to remake life in an american way. people talked about an american manner. abide manners, they did not mean cups or a way of treating each other. she went toward that. as you pointed out among abigail adams not so much. she was much more of a traditional, and political partner to her husband. [laughter] sadly, with a pointed to her influence in politics the extradition laws. it was not until a dolly madison to washington in 1801 that we

begin to see a real political animal as first lady. she did have a taste for the job. she establishes so many things we connect with the first lady. the social sphere, the connection to the white house, the role of the charismatic figure. i must say, i sympathize with everybody who followed her. she just sat so much up into place. >> essentially remained first lady after her successors came in. she rolled over washington for decades. >> i was drawn to her because she was so famous. i did not understand that. i grew up in philadelphia. i watched those "charlie brown christmas specials." i made a dolly madison on the

martha stewart show. martha stewart kept slapping my hand. i kept wanting to talk. >> she lived long enough to be photographed. i began to understand as first ladies have a capacity for personifying if they so choose. this is the pattern in american women and politics famous are not. there are two things. one is that our women, real people who do things. then there is this secondary capacity of being a personifying figure, charismatic figure. many a first lady has realized they are larger than life. that is something dolly figured

out. she becomes a figurehead for her husband's administration. james is not terribly charismatic. the very short. he also did not have that capacity. she made at white house into a symbol. although this is happening in 1808. she does not know that. in 1814, the british is going to bring the capital city. all the work she put in to help the public identify with this house is a call to the white house under her terms is going to pay off. is going to -- it is going to do the surge of nationalism. >> you have written about all of the first ladies. did you see them carrying this theme through? >> they made it their own. i have to say, i love cat and

this the first time we have spoke together in public. she has never heard me say this. what you have done to set the tone for all of us is really remarkable work. you have not gotten enough credit for it. [laughter] i would say that if i could tweak that a little bit and bring it brought up to today. what these women have done, have shown amazing encourage because they are, -- calm when the country is going crazy. there is no other word for it "crazy." there is interruption in partisan politics after dolly. we are breaking into politics which is a jugular sport which i

thought we had gotten rid of if i may be personal for a moment. >> and that period they were. >> they were shooting each other in the halls of congress. they were pulling out the guns and shooting each other. if you were looking at if it was a war with the native americans or american indians. whether it is the civil war. i am going counter historically. or the war of 1812. where you have huge economic depressions where the country is literally falling apart and there is no cash. there is no common currency between states. there is no sense of a union at all. what these women do regardless of the period they are in, have done what you have done, i do

not know the adjective for it. beautifully. what you did was you listed us up -- lifted us up -- [applause] you did. and you cannot write that in a job description. and you sure cannot go into the role expecting that to be your job. nobody told eleanor roosevelt she was going to be in a fox hole. nobody told her she was going to fly in an aircraft and spend five weeks on 17 islands in wartime and have her air drums shattered and go deaf in one ear. she is flying through shooting ballistics -- missiles. you cannot prepare for this. >> once she did that, the general had been hesitant for

her to do that saw the huge and different she made in troop morale. >> just like martha did. >> he said please come back. >> they went on record in both the press and the memoirs and say it was the single biggest miscalculation of the war was to oppose her visit. you cannot train for that. we can talk about policy and politics. you think to me that is so remarkable about the women who have assumed this position but how much brains they have. stamina that is beyond imagination and a willingness to rise above it and just to do it. my beloved pet summit with: a pity party. that is it. -- pat summit would call it a

pity party. >> grace coolidge said you just do it. she had not been part of her husband's political party. he had excluded her. he became vice president. she is in washington. >> that is right. what he do you just do -- and what you do when the war is not on and there is not a crisis? when i look at the grace and there are two people i will mention, mrs. hoover and mrs. bush as well. what they did was education. very, very often. they turned to that. you had somewhere in her case who was the first first lady who graduated from a coed school.

the university of vermont. she had a bit of professional training to teach the deaf. that was incredible. >> when she starts to date cal, maybe you can teach the mute to hear. [laughter] >> she had a marital challenge. an introverted president. the deaf and blind him that he no were not as today. people looked away. disabilities awareness test. she brought them into society. helen keller came to the white house. that was an important moment for the deaf and blind that the first lady would recognize them and integrate them. she had a great personality.

she could draw out anybody. she was the opposite of the president she made that her work. mrs. hoover, who loved reading and enabled leaders and reading. she was head of the girl scouts. she was always ending how to train up. -- thinking how to train up. lou contributed to that. i know this at stanford. she brought her readers to the white house. i was reading a store. when her back was out and she had to lie down, there were people from the mountains who do not know how to read. she was so sick but she received them upstairs because she knew it was important for them to be the first lady even if the first

lady was not doing too well. she said what do you read? here is what i read. read the great works. she was always there. in the background for president hoover and with scouting. scouting is wonderful. i noticed at with mrs. bush. i am a reader, too. when i was observing the book festival and the literacy project and to have another librarian there. to send that signal in our time is so important. people who read the books are that are able to handle the emergencies that we just spoke. >> that is absolutely right.ny e

experience as you said of you are going to do this and then a life happens as with september 11, mrs. bush. i want to come back to that. on the theme of education, even there can be something different than you would expect. mrs. johnson, she was always interested in education. with the great society and the war on poverty and all of that, people came forward what you need is early childhood education. we know we really need early childhood education. she started head start. it turned out not to be so easy. >> i love this i never get to talk about it. [laughter] >> i follow instructions. books -- >> when a congresswoman let me interview her, we were talking about different policies

and i cut by education. and she started telling me the story about how headstart got into -- implemented. the program had been conceptualized, the money had been authorized, but they were coming down to the wire, it had not spent the money yet. it was either spend the money or lose it. what mrs. johnson dead was called -- did was call mrs. ford. the three of them went to blair house. they had phones put in for the himee of them. himthey called every minister and every bus driver they knew from the campaign trails because they had one week to get the program up and running. what they did was, we will use these buses, the churches and different schools will lend us their buses and that is how

headstart money first and got spent and the kids got to the classrooms. there is a point to this. ingenuity, paying attention, and bipartisanship, and friendship focusing on an area of expertise that is good for the country. it is a model that we can all follow. >> i wanted to get to that part of bipartisanship especially. i had the great honor last summer a speeding and mrs. ford's funeral which she asked me to do and told me what to say. [laughter] she wanted me to talk about that time when every bite was together. dolly madison did that. thomas jefferson would only have the federalist one night and the republicans another night. she brought everybody together

even when they were really imparts in battle. they discover they cannot skip her dinners because that is what and that was where everything isand that was where everything happened. they had to show up. >> to both of you, i am speaking because i'm a professor and there will be a test. why do we study first ladies? we do not do it just because it is nice. and not just because they are there. by looking at the work of women and women who are spouses of presidents, we see things and we pay attention to things we would not if we just paid attention to the officials there -- sphere, press releases. psychological politics, eleanor roosevelt is contributing to psychological politics which may be the only politics there are. it means how people feel about how they are being ruled. they feel that way from the

messages they get from their leaders. what these women did was send these messages about how they were rolling. -- ruling. the dirty little secret of american history. from the beginning, we americans have had a fascination with aristocracy. the american revolution against himthe king. and that was power, world see that we knew. when it came down to legitimize his brand-new nation that nobody was sure was even going to work, they wanted to have aristocracy. we had this crazy moments where john adams is a going to call george washed it my supreme highness. -- george washington my supreme highness. we do not, thank goodness. we call him mr. president. his wife became a lady

washington. then there was queen dolly. she answered that need for legitimacy and authority that we needed. getting back to this idea of bipartisanship. >> it was always a tug-of-war which every first lady has gone himugh.him him him him himyou have to be elegant enough and glamorous enough and not just personally. people do look up to and see the sense of loyalty. also down-home enough so you do not alienate people in this society.him and himmartha washington knew that. when she arrived in new york, as much as she loved her second and silks, she arrived wearing -- >> she had a lovely white gown. dolly madison did it the other way. she combined lavish outfits,

pink satin and a crown -- [laughter] >> tiara. she had a down-home quality and sweetness. this what i have to say about dolly madison. there was not a word for bipartisanship in the early republic. these were people spout one party should rule and anybody else was a traitor. there were two groups of people who thought that. they do not have a sense of working together which was quick to be the hallmark of a democracy was two parties in it. somehow dolly madison understood the system would be to bring people together and make them behave and let them begin to see each other as people of good heart. >> that's was necessary at the time and we were limited to some degree now -- and we are living get to some degree now because washington did not exist.

we were in the boarding houses with people who thought exactly like them. andy do not have the ameliorating discussions with other people who may not be exactly like minded except for in social settings. >> dolly madison's -- she is famous for redecorating the white house. every body, every member of the government, their families, visitors, diplomats could gather one place. that is amazing. before her white house, there was another place in washington where everybody could meet. >> amity, in talking about this i alluded to mrs. bush's situation.

education was what she thought she was going to be doing to briefing the education committee when the first airplane hit the andwhen the first airplane hit the trade towers. and then life changes. all of a sudden, another set of issues come out. the women of afghanistan and the world. >> and that is right. you look at the situation and your risk fund and just to turn on a dime. that's amazing thing we watched mrs. bush do. women were important to democracy in the middle east. something other people take up later -- picked up later. at the bush center, with a big emphasis of women in democracy. i want to talk about grace. she did not expect to be the president's wife.

their status was pretty low in washington. when coolidge was vice president, they were stuck at the willard. she loved animals. she cannot have them. the glitches were like the roosevelt. -- coolidges were like the roosevelt. she only had a rat. they were already talking about a vice president he cuts coolidge had not worked out.in sadly, she is in the white house. she is waiting outside the white house for mrs. harding to be ready to leave. to negotiate that, the prison before has died and the widow is there and you want to show respect for the widow. they did that beautifully. mrs. harding wanted to leave and then she did not.

there was another week at the willard. they were extremely gracious. how to handle when a president dies and you come in. theodore roosevelt. and what to do when she is there. what the letters her sorority sisters. should that i am like -- she said i am a alice in wonderland. she rose to it. she understood this is not about her. this was about service. when you see that it is a role and not about you, that is all right. another time, we are going to talk about how that clashes with your marriage. the glitches -- the coolidge's, the president and the first lady, they had a terrible thing happen which is their son died. he got a blister on the tennis

court and died within about eight days. >> he was 16 years old. >> just before we got antibiotics. if had been 20 years later, he might would have been saved. >> i was telling amity, i was doing a panel recently and a man stood up and said because of this death, his mother always told him not to wear dark socks because his mother out -- thought the sox did him in. a whole generation was done in. >> how do you mourn in the white house? she knew she had to mourn for the public. for the president. she wore not black but white in morning the following year. she showed how to mourn in the white house. she became a most important

symbol. many, many people lost their children. if you read the letters the papers of mrs. randolph, her secretary. he find that nearly every letter they came to the white house upon the death. they unified her with a great part of the country. >> even given that, the white house wrote that she was called sunshine. >> she was the extrovert to the introvert in the marriage. >> they called him smiley. >> it was a joke. andthat'll constrained that they cannot to mourn if they were not the first couple. one of her ways they were covered and demonstrated leadership what they did not cry in public. it was a different conception. they did not go on any television show. they did not talking anyway. she wore white.

she didn't many activities with children, both of them. what else did she do? she did exercise. you develop a ways. she had a secret service man who was with her who had laid tennis with her son who had been there for the tragedy who helped on did a spruce tree and bring it into the white house to place on the ground. she liked mr. haley. he was important to her. president coolidge was a gymnast a jealous man. she was a beautiful woman. one of the most beautiful. she could wear any color. her complexion was like that. when they were in south dakota, she and mr. haley went for a walk. they were in our late. they got lost. the president transferred her secret service man away.

he did that because he wanted to avoid scandal. he never let her do anything that would bring scandal upon the white house. the story was that calvin was cool -- cruel. mr. haley was a highest man. was nothing going on. the secret service men had a -- absolute worst upshot of their marriage. it was an extraordinary marriage. all of his important friends came together, there was no andsidential library. inthey said we will raise money for your papers. it was led by clarence barron of andit was led by clarence barron of the wall street journal. calvin said all right, you can raise the money but let it be for a cost that i wanted to be for. they did.

they raised $2 million. it is about as much as others have raised for this. a large amount of money. resident coolidge took that money and did not really use it for his papers. he gave it to laura's -- grace's most important project which was the clark school for the deaf in massachusetts where she had taught it was so important. they devoted much of that money to the clark school. and all of the years after, he knew he might die soon him and he had a bad heart. all the years after, she had her project and an important educational institution backed by the friendship of the glitches -- coolidges. >> i was thinking as him and he

was talking. the business of coming in after a president has died. there was not a worse example that than poor mrs. johnson. the sense of tragedy in the nation. handling that is not an easy thing to do. >> and yet she did it. the nation had not just lost the president, they lost a first lady they were fascinated with. with the exception of beth truman following eleanor roosevelt, there is not a bigger contradiction in the public's mind between jacqueline kennedy

and lady bird johnson. the country is lucky sometimes. i think we were exceedingly lucky that lady bird was able to build on jackie's work, but may get her own and expanded in a way that really helped the country. what we saw was, we saw the gut wrenching funeral. we saw john john saluting. i remember being pulled out of a very republican, very evangelical school. to be pulled into the hallway to be told the president had died. as the only democrat in the

school, it was hard for me both ways. especially in the south. what to see lady bird, who understood not have to be a grandmother, but how to be strong and how to comfort and how to lead at the same time and not just lead in the public, but lead behind the scenes. >> if i could talk about the politics of the office. what she was so masterful at doing. she is from texas. i am from memphis. we are in the biggest legislative battle of the 1960s. they will take the 64 civil rights act, which i think never would have passed if john kennedy had not been assassinated and lyndon johnson

would not have been president. there is no doubt in my mind. >> it would have passed eventually. >> it would be at least a decade, maybe longer. lyndon johnson is knocking heads the way the -- the only way that lyndon johnson can knock heads. lady bird is doing the exact same thing with grace and tact. lyndon could do this and have every piece of dirt known to humankind -- [laughter] and then you have lady bird reaching out afterwards and calling the feathers, keeping her own tally on how the votes were going at the exact same

time that she is knowing how to balance. she is knowing how to do had starts. she has tremendous relationships across the aisle. that is something we do not realize. i have always been struck by the affection between you and senator kennedy. eleanor roosevelt was very close to john foster douglas. the reason we have -- you would never think they were friends. what lady bird was able to do is to clearly say to the country without saying it, i am not jackie. i miss jackie and i mourn for you, but our country is in a crisis. we are in the height of the cold war. we have just come down from the

cuban missile crisis. we have barely recuperated from the bay of pigs and now we have birmingham. how are we going to deal with this? she was able to be political and to do policy behind-the-scenes in a way that was nonconfrontational, that could help soothe the political feathers that her husband had not just ruffled, but plucked. i think there are times when it is just a fluke. we get lucky. she knocked it out of the ballpark. >> let's talk about the politics a little bit. we talk about dolley madison bringing people together, but she was also campaigning for her

husband. making clear that he should be the next person elected. catherine adams was the complicated person. after abigail adams died, she would write letters to john adams, gossipy letters about what was going on in washington. she wrote one letter saying, it is my vocation to get john quincy adams elected. give a sense how even at the beginning, the politics was very much part of what the women were supposed to be doing. >> i have to plug a book that is not mine.

it is interesting what the women were doing. we understand this idea of process. with catherine adams, it becomes clear that john quincy adams begins running for president as early as 1818. >> if you think this one is bad, 1818, james monroe was still there. >> the corrupt bargain, which will be on the test after this. it is this moment of right before the election of 1824 when apparently the upright john quincy adams makes a deal with henry clay. >> nobody has a majority in the electoral college and it goes to

the house of representatives. jackson had want the majority of the popular vote. the assumption was that jackson would win. it became jackson, adams, clay. clay was the fourth, jackson, adams, crawford, clay. clay is out of the running. he is a very powerful member of congress. >> who is going to get his vote? stories are very puzzled. somehow john quincy adams promised henry clay secretary of state for his vote. how could this john quincy adams, who spends all of his life disavowing any ambition about politics, how could he stooped to this kind of politicking?

we do not know the answer to that until we look at what catherine adams is doing. from 1818, she instituted the social program every tuesday night, bringing people and to washington. -- into washington. she has a great line, mr. adams, john quincy adams goes over my calling cards every day as if they were a battle plan. when you look at what she is doing, this historic mystery is solved. it was their wives who acted as campaign managers. >> we get to the house of representatives, adams wins. all of those men had been entertained by adams. one of them went back to his

boarding house where he promised where he would not vote for adams on the first ballot. they will not let him sit down to dinner, because they are very mature -- [laughter] one of them writes to his wife, everyone says his wife made him do it. >> she instituted something -- she would hold these parties ever tuesday night, but you would be invited for the season. you did not have to go overnight, but you better not show up anywhere else at anybody's party. she acted almost as a whip. >> she had a big boss.

>> i want to get to you in a minute. franklin roosevelt did not want to go to the convention. he wanted to be drafted and named by acclamation. this was breaking the president. >> what happens is they are pretty confident that fdr is going to be drafted for the unprecedented third term. if i can say this on c-span, when all hell breaks loose. that is when the coalition unravels. the field team are frantically calling the president. the president says, if i cannot have wallets, i will not run.

he has already -- she is sitting there at a card table writing out what he is going to say. they called eleanor, and she flies to the convention. with no prepared speech, no speechwriter, no nothing, walks into the convention and is absolutely pandemonium. it makes today's conventions look like everybody is falling asleep on cough syrup. >> they are. [laughter] they are not choreographed for tv, there are no huge aisles. it is such pandemonium that the inpeople with her want to pull her back off the podium. she says no, in the shortest

speech in the history of either the democratic or republican convention, says this is no ordinary time. that really calms the convention down. i am watching the clock. in 1928, when al smith, the governor of new york, is the first catholic to seek the nomination. the party bosses would come to fdr and leaned on him heavily to run for governor, which he is not expecting to do for another couple of years. remember that the nation still very much notice that this man has battled polio and he cannot stand unassisted.

he has these 10 pounds of steel on his leg. what eleanor roosevelt did, remember i was never political before lucy. what eleanor did was help work with the women of new york state to build a grassroots campaign system which totally restructures the politics of new york. if i knock on your door and you say, i have questions about farm parity. ini will write down on my car if i cannot answer it. if you give me another question i cannot answer, i will write it indown on the card.

i am not talking about robo calls, i am talking about respectful one-on-one, what do you care about?in that says to al smith, we must have fdr on the ballot because youhis wife is more well known among the party faithful and upstate voters than anybody in the history of the state. so they understand what they have to do, but they understand why they want to do it and they understand why it is important in the way that advances their husbands careers. >> this sense of being in the public, the public person. i was struck that will rogers love sure, which -- loved her.in an>> always about helping always

all followingabout putting herself ansecond at great cost. i am thinking about politics.ini am thinking about politics. mrs. adams, mrs. roosevelt signing the next campaign. andsigning the next campaign. in ashe wanted to make it clear she did not know what he was inplanning ahead for running for anthat extra term in 1928. youcalvin coolidge was enormously popular. he could have run for anotherin anterm in 28. she made a blanket in the white inhouse that has a square for anhouse that has a square for each month left.

when the president said, i do not choose to run, a senator was over for lunch and she said the equivalent of knock me over with a feather. if you look at her writings, there was another mother she was thinking of and that mother was the mother of charles lindbergh. he was doing something truly dangerous. grace found that -- it is not modern style or what we would do, but she did it well. for that, we admire her.

maybe it was helpful for the country to have a change in leadership after our time, this idea of going back because we are an important leader, coolidge did not like that. let the country do without one. a first lady last supported another style of presidency. >> she has felt this sense of tremendous duty. this was the wife of the president of the united states. >> in that way, she was similar to eleanor. you are playing a role and it is hard, but it is of value to the people. when they were out of the white

house, she wrote poetry about her son. she wrote a book. they were happier that they were out of the prison. during the period -- i am playing a role and it is incredible work. >> martha washington, even after george is out of the presidency and even after he died, everybody still keeps coming to mount vernon, right? when one of the emissaries from adams says we want to bury george washington at the capital. i do not want to do that, but i am so accustomed of putting my duty in front of my desires.

does that go with the territory? >> yes, i do. i was wondering if you would let me say something about why we studied first ladies. >> can i just say one thing? [laughter] eleanor carried a prayer in her wallet that i think really encapsulates. dear lord, lest i continue my complacent ways, help me to remember that somewhere someone died for me today. if there be war, remember to ask and to answer, am i worth dying for? >> goosebumps. >> 40 seconds. >> what have our first ladies given us? from martha washington to laura bush, they have given us an alternative model for politics.

one that centers on civility. we can draw on that modern of politics. we can look to this model and be assured. >> and love our country enough to do it. >> do you want to say a final word? >> thank you so very much. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] in an ladies will begin on monday, september 9. all episodes of the first season are available online at www.c- span.org.

>> tomorrow, american history tv commemorates the 150th anniversary of the battle of gettysburg. the 24th michigan belong to a large organization that had become famous throughout the army is the iron brigade. enter the patient for being hard fighters. -- they had a europe tatian for being hard fighters. they had a reputation for being hard fighters. over 115 survivors of the 24th michigan who are wounded or captured here return to this spot for the dedication of their monuments. the major of the unit was the speaker on the dedication day. as he looked out over the

assembled veterans, he grew quiet and said this. " the whole story has not been told. much of the planning has been omitted. dead lips could be unsealed, what larger testimony might be spread upon the pages of history." >> live coverage tomorrow begins at 9:30 eastern. we will take your calls and tweets. 8:00, the commemorative ceremony , followed by candlelight

procession. we will end with peter carmichael taking your calls and tweets. >> next, a conversation with john roberts. then a panel reviews the recently completed term of the supreme court. a discussion with the founder of the witness protection program. [applause] >> supreme court chief justice speaks in west virginia. the supreme court wrapped up its 2012-2013 term this week. the chief justice's remarks are about 40 minutes.

>> great to see you. >> thank you. i 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. they were not as necessary in 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. he said i have three arguments 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 it was decided by this circuit. 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 three names several times. it might allow us to diesel up on the arguments. we will be able to get our work done without a mad rush on the end. what a fantasy that is. one of the new cases is from the

new circuit. keep up the good work. we have the option of writing the order. it is promptly at 10:00 or taking a day off. last time i reported on our construction at the court. it indicated we were 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 second continually progresses.

we never quite reach the target. this is how our construction project is going. we discovered. we discovered this 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. this time we put a really delightful scrim over the front that is remarkable.

you look at it in a certain light and you cannot even tell it 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. things are so 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 judge hogan for his work as the head 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. any inquiries 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. that is in epitomized by the 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. i want to thank my colleague who judge gregory for his leadership in this wonderful and educational conference. this was virginia's year told a conference. i know the commonwealth joins in the appreciation of judge gregory's distinguished service and shares the appreciation his colleagues have. thank you for all you have done to put this conference on. i want to say a word about chief judge traxler and the 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. thank you for being here. you have been through a grueling 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. >> 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 me the music and poetry that chief justice rehnquist new. he would begin each session with a quotation from sir thomas gray's elegy in a courtyard. many a gem the caverns bear.

many a flower is born to waste its sweetness in the desert air. some of the flowers may be some of the cases that did not merit the headlines or public discussion like some of the marquee cases did. 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 turned involved the question of the admiralty and jurisdiction of what counts as a vessel. the way cases develop in the law, you have things that do not fit comfortably into a category, it was either a floating home or a houseboat depending on what side you are on. it was attached to the shore but could be disengaged and would float and could be towed. 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. i am sure practitioners -- it may 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 are guilty of defalcation. 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 blushing 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. they sometimes have an impact 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.

i know the sequester has hit a great many government programs card. it has hit many public agencies and institutions hard. it has had a severe impact upon the federal courts. why 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 sequester 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 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. everybody makes a special 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. in general, 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. the administrative office, led by tom hogan and after by john bates, 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 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. i wonder if the lawyers are able 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 months preparing their case. the oral argument means everything to them. they sometimes come to court and 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. this seems an exceptionally hot

bench in historical terms on the supreme court. as a former advocate yourself, is this a good development? >> first of all, there are excuses. i am not sure everyone understands this. we do not talk about cases before the argument. when we get on the bench, it is the first time we start to get clues about what our colleagues think. 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 the chance 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. >> this is sort of a personal 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, you were arguing before the supreme court. do you miss your former life occasionally? do you have the impulse to be an attorney again?

do you miss the satisfaction of that? you were so good at it for so many years. you had to leave it all behind. >> if it were the day that a client was paying their bill, i would jump over the side of the bench. 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. you debate 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 ended up. 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.

too bad it is not moot court. 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 i ever gave happened to be on the right side of the court. >> i would like to ask about the membership and composition of the court. when one looks historically at

the court and their past experiences, 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. then justice powell was a former president of the bar association. thurgood marshall was the 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 exception of justice kagan, they all come with sometimes

extensive experience on the court of appeals. do not get me wrong. i love court of appeals judges. i wonder 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 aspects of american life. if you get a former appeals court judges whether it becomes more technocratic as opposed to those in times past. is this a danger? >> you were 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. it has to be enormously significant what you are saying. you have courts that were made up of governors, senators, people like felix frankfurter, different backgrounds. it might be accurate to say more prominent statesmen. it was an historical anomaly before justice kagan you have entirely 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 of playing a political 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. they present legal arguments. if you go back and look at briefs filed in the warren era, they paint with a broader brush 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 whether it is good or bad if you think different types of issues should be before the supreme court. it is all interrelated, the background of the judges and the issues presented. it is an interesting development people need to think about. >> having a broad experience in elected life or high public office is no guarantee one will be a successful justice. hugo black was one of the great justices.

there were two other senators with whom he served that i do not think anyone would say were 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 our conversations is to ask you 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 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] i do not want to be seen as endorsing any book. i picked one up the other day i have not begun to read. it had a very good review in the "wall street journal." of course i can not remember the author or the title. it is about the 20 most significant 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. are there questions from the 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 law school 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."

i saw the one-person play and cannot remember the actor who did it. it was just called "thurgood." it was a spectacular performance. it was a one-person show that went through his life from youth until the end. it was changes in the tone or posture that convey the notion of ongoing time. it was a wonderful, gripping performance. they were talking about turning it into an hbo type show. and i hope that they do. >> do we have a final question for the chief justice? >> you have talked about a hot bench. what are the best ways for the 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. justice stevens asked me a question. before i could answer, one of his colleagues jumped 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. then the second one. i was feeling very proud of myself and turned to justice stevens and said i do not think i had 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] the one thing you cannot do is show any kind of impatience. i have found 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. it is almost quietly scolding the bench for not giving the lawyer the time he or she deserves. it might be effective. >> may i ask 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] >> the supreme court term ended

this week. ander solicitor general former new york times supreme court correspondent join a panel of legal scholars in west virginia. will discuss the major cases from this term. this is about an hour and 45 minutes. >> good morning, ladies and gentlemen. it is my pleasure to introduce our panel. to most historic panel review the most recent ending of the supreme court term. 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. if 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 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. first we have linda greenhouse.

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 and one on the originalism from 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 presidents who 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 the president thought they were getting and how the justice actually performed. the third question is the 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. exhibit a in that category could be the citizens united case. you 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, they weighed in and laid down with the majority of the court felt about the commerce clause, relative doctrines we have not seen in a long time. they also struck down section 5 of the voting rights act and the stock down doma. another question that interests 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 brief period of the chamber is 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 particular term, almost one-third of the cases were divided 5-4. most 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. there was a 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 melding -- involving warrantless dog sniffs on cars, cases involving farmers charging -- john g. market regulation. there are also -- cases involving market regulation and 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. we had thomas, alito, sotomayor, 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. in the three most important 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. some of his leadership has been 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. we will make time for a few 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 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- clearance 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 mandatory jurisdiction. they rewrote the statute in the course of the opinion to give the jurisdiction that have brought the challenge the chance 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. there was 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

wrote the shelby county summary, before the case came down this week, i talked about the analysis in 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 rationale, i could not do it. they do not actually rely on the city. it is kind of like, we finally have 5 votes to get rid of section 5 of the voting rights act. everybody knows that congress will not be able to readjust the coverage formula. the pre-clearance provision is dead in the water. the coverage today is based on decades old data and eradicated practices. the references to the first order voting discrimination

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 id. section five has been used to block voter id laws. 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 about the court's stance with congress. they make up a doctrine to complain about unequal treatment

of states under the coverage formula. it raises a question of activism. this is a decidedly activist and 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. i think it is quite interesting that the chief justice does not use the modern language. mccullough plays a large role in the case. what these -- this case says is 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 act, 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 less likely to get up dating on 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. given be better 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 duoploy -- 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. back in the 1990's, the court took aim at the use of section 5 to do the kind of redistricting you described, dismantling race- conscious redistricting. 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 regionalism and our-- originalism. congress has the power to pass a 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. congress took it to itself the power to pass appropriate legislation, enforcement mechanisms to carry out the guarantee of those amendments. the original understanding would have been -- and the first supreme court decision that interpreted the voting rights act said the 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. you are sort of damned if you do and damned if you don't. >> i was just going to say three 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. it is very unusual for the 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 treatment -- 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. -- 3 themes are interesting themes. >> it is certainly unique legislation. not updating the formula in 2006 was and i decision. 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. the case concerned the 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. they used to grace -- they used 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. the 2003 freshman class was 4.5% 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 " tough -- like a quota. ut respond with a change in its 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. fisher did not graduate in the top 10% of her high school class, but she still had impressive grades and s.a.t. scores. 90% of texas 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. on monday of this week, in a 7-1 opinion reversed the fifth circuit. justice kennedy wrote the majority opinion. only justice 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 gruder was the relative -- 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. justice kennedy said we concur 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 ratio -- racial scrutiny does not apply. it gave instructions to the 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. what 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. affirmative action in higher education lives on. 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 view, it quotes gruder. one explanation of the reversal in fishery is that the fifth circuit got it wrong. the fifth circuit -- or extension of the reversal in

fisher is that the sixth circuit 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. lucky for 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 tailored to the compelling interest. think like a child lawyer.

what kind of proof would offer to satisfy fisher? what kind of proof to you need to 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 difference? as a legal realists, i am is skeptical. -- i am skeptical. diversity is the most academic bureaucratic objective. it is hard without a clear rule

to strike down plans. it is unclear even when you do have 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. >> i think what we saw in fisher was the tip of a big and not

pretty icebergs. cases 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 as a vehicle to do something. they were unable to do that something. the question of shall gruder be 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 proposition 8, california's 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. -- the two males were married by the mayor of los angeles. you will see pictures of very 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 constitution and our society owe them a status of equality when it comes to something as important as mayors. proposition -- when it comes to something as important as marriage? individuals of the same sex are 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 put on the ballot a vote of 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. we like it to be loving versus regina case of 1967 in which the supreme court held that it was virginia case of 1967 in which the supreme court held that it was prohibited to marry 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 the provisions of proposition 8. 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. the petitioners had not raised 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 activity in high -- hawaii and other places. congress pass defense of marriage at, we will call its doma. section 2 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. section 3 of doma redefined what 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. when edi windsor's spouse passed away, and state tax was imposed. several hundred thousand dollars because there was not a

recognition that they were married under the defense of merit act. edie windsor 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

actors to windsor, there really 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 standing of the jurisdiction in 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 effort by journalists and others 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. the defense of marriage case, 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. this places same-sex couples in 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 couples. the law in question makes it

more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and their daily lives. it sends a signal to them that since this about how it was a demeaning status. because they were a class of individuals who had no choice about their sexual orientation, their relationships were diminished. justice scalia takes very strong objection. i will not mention those. you need to read this opinion. the passionate 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, what justice scalia did, justice 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. he basically said we're not 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 differently in another case 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? 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? the 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. i've 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 down on doma. it raises questions about whether the kennedy opinion was written the way it was and whether the case was outstanding. there are all kinds of fascinating speculations. >> i think everything you said is correct. do not listen to justice scalia.

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 going on 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. >> the take away is your clients are now getting married. it is independently important beyond the context in which it arose. two questions. do you think they add this to the correct? was the aim always to get at the standing question, the question whether the proponents can then take over the state processes

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

would not be any difference unless someone had the right to defend that statute. there were issues of appropriate use of judicial power requiring someone to be inattentive and. this gave them the right to do it. a similar issue had come up there. i thought 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 granted, 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. justice kennedy was descended 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. it makes a very plausible argument that this is as crucial. it seems to me a a basic 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 protection clause against the government.

that is the principle of equality. those are the obligations of the court to root its decision. >> i think this was as singular a failure as i have seen. >> wow.

you heard it here today. we will not take a vote of the 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. they both focus on the substance. they are extremely fundamental. one is about patent. the other is about search and seizure. i will 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 for mutations that put women at serious risk of breast cancer. they anonymously rejected the claims. a long held that interventions do not include matters that actually occur in nature. they 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. a natural process naturally 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. these 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 the cost of using a monopoly to individual companies. the cost outweighs the benefits. the court said not so. i call this a decision. it split it. the next case also concerns dna. 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. it was sharply contested as he 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. the privacy was not so much greater than that involved. it's only focused on serious crime. it is not allowed the police

very much discretion. justice scalia 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.

justice scalia does not really talk about a standard. he applies a role he finds. what can be done with an incident to an arrest. this comes within one of the six exceptions. he is famous for arguing that the rule of law is the law of rules. i think he is very much confident with that strong viewpoints. i do not think it is constant 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 different, 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. it 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. back in the 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. it is often thought that new kind of technology that are connected to search and surveillance are simply that that are the privacy and liberty. they 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 gps 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. justice sotamayor 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 what justice sotomayor has said.

he is creating a rule to define 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. i think this is very much substantial. one can debate this on a 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 could track it without a warrant. how do get get original is out of that? we will get to the dog cases.

so it can retract later on. all of this technology that the best at the supreme court has to go with, what does it mean in terms of the president sent where willy's -- where will we find that standard. or it will be reasonable expectation of privacy, whatever that means in cities incredible world.

>> i think was in 1996 come a case related to the internet, a first amendment case. at that time, many of the justices had never accessed the internet. it did not know how to use the computer. . they came over from a library of congress. so there is a learning curve .hat we are all climbing today, those experts are known as law clerks. >> we have two cases for you dog lovers out there.

one and basically win lose one in a split decision. doug stiffing. dog sniffing. >> 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-- i passed 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 first case the court decided about a german shepherd 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. the officer brought aldo over i am notee air sniff. making this up. that is a practice of allowing a dog to sniff the exterior of the car. it is consistent with the first amendment. he signals that he smells drugs. i think that is the trained behavior. he concludes that he a probable cause to search the truck. he did not find any drugs there. aldo was wrong.however, he found a bunch of ingredients that are used to make meth. he was charged for 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. aldo 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 chapter. because aldo was wrong twice, his sniffs 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 when a dog 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 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 aldo's sniffer was not up to snuff. [laughter] there should be no inflexible

set to test a drug's 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. the second case features frankie, a different dog. he is not so lucky. this is different. it picks up on some of the things you were speaking on. this concerns a home and not a traffic stop. police were given a tip that he was growing marijuana in his home. an officer and frankie were sent to the residence. frankie and the officer approached the front porch. the dog since one of the smells 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.

on the 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. he again embraces the property 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 entering 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. scalia says introducing a trained police dog is something there is no implied license

to stand at the door with a trained police dog. we do not even need to get into expert opinions. they learned what they did by intruding on the property. dogs have been used in connection with law enforcement for centuries. it is not of the ordinary for the public to expect their use. it is different than the new technology. it is different. dogs have 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. maybe they should name it hun rather than atilla. we had a situation where people were phoning in bomb threats every afternoon of people would have to evacuate the building. one day the dog alerted on a gym bag. we had to stand out there for another couple of hours while the gym bagck came. was blown apart. it turns out this drug sniffing

dog 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? i am wonderingime. his approach to the fourth amendment to does that mean he is more comfortable with fourth- year -- the first year are pretty principles? >> 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 cases, this is a pro-business

court because of various decisions involving businesses. i do not agree necessarily. they 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, class actions, state portions of 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

you did not have to prove materiality. this was a 6-3 decision. one 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 requirements, there was a similar decision today. i cannot remember the exact title. the other area that intersects 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 sheefully at class actions. went on to explain that this is so much more of a class-action case and shouldn't have come out on the basis of that.

justice ginsburg is a student of several procedure. so the outcome of these cases is not necessarily predictable along the standard ideological lines. but the court is looking very carefully at class actions. looked at the management in what happens in the civil process in our courts di. >> quick comments. >> is not so much that the court is a pro-business court. it is that it is an anti- litigation court. where the court is appropriate, the employment discrimination cases that came out this last week reinterpreting title vii as 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. i want to 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 struck between justice kennedy and justice scalia in the doma case. justice kennedy speaks of the primary rule in determining the constitutionality of a law. scalia even by his standards had a scathing dissent. he said this is a draw dropping assertion of judicial supremacy. it envisions a supreme court standing 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. looking at the major decisions that we have talked about, what do they tell us about the collective of what the courts job is in democracy. it is interesting when you think about the individual cases. what is the court of two?-- what

is the court up to. 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 in dissent when they are upset at the decision to strike down an act of congress. i am not sure i believe it is something we can ascribe to the robert court.and not to other past courts. 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 not a surprise as something that is not well rooted. he is really someone 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.-- sometimes that is of skier. and kennedyt liberal. is not a left liberal. he is a libertarian. he still believes the court has this ability to see these principles 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 punishment you can make for 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 guantanamo cases and becoming the superintendent of whether the rule of law would apply at guantanamo. they did not expect that at all. that was a moment when the majority of justices felt that

there was a power issue at stake here and 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 doma case goes back where president washington was asking for an itterpretation of the treaty. was in a case. -- it wasn't a case. 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. he's very concerned on very restrictive rules with respect to what matters belong in courts. once you acknowledge that it belongs there, you can decide it.if it can get there in the door, then you can't decided and judges don't have quite the power they have if they are allowed to consider a wide variety of things. this is going to keep coming , whiche clapper case was the standing issue in the surveillance case, now that we have learned more about the surveillance program and his numbers are being collected at nsa and maryland and so forth, that case will come back again. we will see some more standing 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.

i hope we whetted your appetite to go home and read some cases. lawyers and judges do that all the time. we try to sit up there a lot of -- we try to sift through a lot of cases we could have suggested you write 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] >> it is criminal to me that i had to authorize my financial people to ride a check for 400 $54 million coming little bit

more than a a month ago, to extend our contract with the russians to continue to carry our cruise to the international space station for 2016-2017 because we have not blotted out the american capability with our commercial crew program. we are not halfway there. my job is to-- try to persuade the congress that the plan is good and that we will be efficient users of the taxpayers money and i have not in successful in that yet, but i am working on it. as i have told every member of congress, $821 million in the -- budget is >> more with nasa administrator sunday night at 8 p.m. on c- span's q and a.

tomorrow, american history tv on c-span3 commemorates the 150th anniversary of the battle of berg. the monument behind me is the money meant for the 24th michigan infantry. it belongs to a larger organization that had become famous throughout the army as the iron brigade can it had a reputation for being pretty hard fighters. it brought 496 man onto the field. as of them will remain here casualties. , on michigan day at gettysburg come over 115 survivors of the 24th michigan who were wounded or captured here he turned to this spot for the dedication of their monument in the major the unit was the speaker on that dedication day. as he looked out over the assembled veterans, he grew a little quiet and then he said this. withes have been written

the l of gettysburg is the sole topic, but the ulster has not been told. the living may have given their version of what they did and what they witnessed here. dead lips could be an seal, which are in larger testimony might be spread pages of history. , what rare unsealed and larger testimony might be spread across the pages of history. we will end the day at 9:15 with peter carmichael taking your calls and tweets. use twitter to stay up to date

on this weekend's activities and submit questions for our guests. >> now a discussion with the founder of the witness protection program. he was a guest on washington journal. this is about 35 minutes. post: on mondays at this time, we look at your money, how federal dollars are spent and how services work. gerald shure joins us from philadelphia and he is the founder of the witness protection program. thank you very much for being with us here in we read about the witness protection program and we hear about in novels and on television shows. ?hat is it in real life in reallife -- guest: life, it is taking individuals who are in danger.

they might wind up being killed if testifying. so we needed a mechanism where we could put witnesses on the witness stand and make sure that they would survive after they testified. when was it created and what was your role in it. as a young child, i heard my father talking about organized crime interfering. in the garment business in new york seder -- in new york city as a labor negotiator.

he used to come on to talk about how it interfered with negotiations. through high school i got interested in organized-crime and began to research it and continue through college. i was fortunate after law school i went into private practice and sell a fellow named bobby kennedy being appointed. i went on to my wife -- home to my wife and said how would you like to explain to washington? she said you think you can get a job? i said i do not know. she said fly out monday and find out. i got hired. i was assigned to work organized crime in new york city. for the older listeners you might remember the name joe valaci, the first member of the what we later learned from

him was the cost nostra. the first person to tell us who are the members, and the first really cooperating witness in the organized crime. i began to work with him. i began to work with other mobsters in new york. it occurred to me we need a mechanism to protect people if they're glad to testify. my colleagues were assigned elsewhere in the country running into the same experience. it occurred to me we need a system where we can take an individual who is willing to cooperate and immediately relocate the person and their family. host: what was done funding to the prior of the wit -- prior to the founding of the witness protection program? what happened to them and their families? guest: what happened was the local police or local agents, or drug enforcement agents, they would almost chip and and move someone from one place to another.

what there was not was a system where they could pick up the telephone, call washington, say i have a witness in office and are willing to testify, what do i do with them? we will say we can have that wind is protected as of now.-- that witness protected as of now. we needed to develop a mechanism where we not only could move the family, but then what do you do with the family after they have moved out of town? what this program did was establish a mechanism where the prosecutor, agents could make a single phone call and have this whole process begin to work.

host: talking about the federal witness protection program with the founder of gerald shur. here are the numbers to call if you'd like to share your comments or ask the question -- our guest co-authored the book "witsec." the cost of the program in 2012 was $9.7 million. here are details. new identities and documentation. they also get financial assistance for basic living expenses, we will medical assistance and living. how much help do these people get to start their new lives? how much is hands on and at what point are they put on their own?

host: it is hands -- guest: it is hands on from the beginning. the moment you agree to testify we would have a witness security inspector who is in the marshals service come to you and explain to you how the program works. at the same time the federal prosecutor would make the request of my office, office of enforcement operations -- i should say my old office because i am now retired, but they would make a request of my office to say that we have a witness, here is the pace we want them to testify and here is how important their testimony is and how many other witnesses we have been the case. we could make and a valuation as to whether or not the witness is really important.

at the same time the deputy marshal explain the program. at the same time we would have a psychologist to a psychological examination over -- for everyone over the age of 18 to determine whether or not they would be capable, fit in, handle the regulations and commit a crime in the future? are they likely to be violent? all of that would come back in the psychological report. we would have the evaluation of the headquarters of the federal investigative agency. not only the field office giving a judgment, the office at headquarters, fbi headquarters. whatever agency is involved in the investigation. they would submit information. my point is, as a considerable amount of data is submitted before the judgment is made to

totally disrupt a family and move them from one city to another. host: gerald shur mentioned he started his career as an attorney in corpus christi, texas. he served as a trial attorney in the racketeering section of credit -- recruited under robert kennedy. and as he mentioned, he is retired. joining us from philadelphia this morning. our first calller on the independent line. caller: i was calling in regards to when the witnesses goes into the program for life and it becomes difficult -- i will give an example. i'm howard stern fan. host: what are the rules and requirements for staying in the program? what is the code of conduct?

guest: this is a voluntary program. the witness can choose to enter or not enter the program. the witness can leave the program any time they choose to. they could say i do not want any more to do with you, i am on my own. there are rules that are set down. the witness can choose if they the witness can choose to leave at any point in time. they must look for a job. we will help them look for a job. they must stay out of trouble. they must not communicate with people back home, which can be very difficult when you tell a teenager who is in love that they cannot communicate with their boyfriend or girlfriend back home. there are certain set of rules they must follow. if they find that too difficult, they can drop out at any point they want.

at that time any financial assistance we give them will stop. i mention the financial assistance. that is based on a formula depending on a number of people in the family in this city in which the people are located. so a person living in corpus christi may get less money than a family living in new york city if we relocated them there because of the differences in the cost of living. this is not a reward program and should not be confused with that. only enough money to get by on until we're able to find employment for the witness. host: anthony, a democratic calller from new york. caller: my question is into degrees. one would be you seem to be an expert in organized crime in new york. have you not noticed -- just

since the kennedy era there seems to be an infiltration of organized crime, or the money and influence in government. i was wondering if you could step but said the box and comment on that. also, with this new wikileaks, mr. snowden, aren't they basically whistleblowers? they seem to be bringing forward violations of the constitution. i think young men are trying to rise to the challenge of pointing out to the american people that we're being led down the path of -- host: you are going little bit off topic. guest: i can, with this respect.

i do not think -- there are about 2.5 million federal employees. i do not think the government's secrets should be dependent on each individual employee deciding on their own whether or not they should provide a secret to the rest of the world. for example, if a person went to decide we will give a new name and address of every relocated witness in print that in the newspaper, that would be highly dangerous and lead to the deaths of witnesses and their family. so i draw the line at individuals on their own deciding to go public with information that is classified. i do not think we want several employee deciding that. host: a woman in her 30's named jackie taylor shared her story

of being a child and put into the witness protection program because her father was in hell's ingels and turned witness. know you can't comment on particular cases, but as she shares her childhood experience in talks about the challenges she faced, we have questions on twitter. radical dallas writes how young how old was begun this person to be put in protection? guest: we are now dealing with grandchildren in the program. the program goes back 1970 or a couple of years before that. there was an official act of 1970 that started the organized- crime program officially. we are dealing now with children and grandchildren. those children are affected to the extent that they may have to supply background information for employment or security clearance.

they can call upon the federal government on the witness security marshals to give them assistance in any obstacle they may encounter. host: they could go forward with their lives with that documentation? guest: yes, they would have complete documentation. we ran an undercover wedding aarly on in the program. witness's child wanted to get married. the witness insisted on having a wedding and insisted on inviting friends from the old neighborhood, precisely the people that might want to kill them to the wedding. we went ahead and told him he would -- that would be all right

as long as it was done under our conditions. he arranged for a hotel and ceremony. all the guests were invited to a hotel. when they got to the hotel they found out they were at the wrong place where we had buses and united states marshals put on buses. we were driven to the wedding where it really occurred and driven back to the hotel. they never knew the new name of the person and never knew where the wedding was going to take place. that way we kept them secure. i should point out early on before week -- before we forget, a good portion of the program involves prisoner witnesses. today over the past several years more people entering the program are prisoners who have agreed to cooperate. there are certain prisons around the country, and they serve their term, could be five years,

10 years, and when they are ready to be released, there is consideration given a good to-- given again, whether or not they are still in danger and then they would be relocated like any other witness. host: gerald shur was quoted in a story from cnn saying he works with someone about to receive witness protection eligibility. when you ask them their favorite place in the united states and they say hawaii, that is where you do not send them. were they ever going to exotic destinations they always wanted to visit? guest: most people entering the program are very apprehensive and should be apprehensive. i asked the marshals service who worked with the witness is very

early on to tell them this will be an extremely difficult process. just transferring from one city to another, those are difficult processes for people to go through. not being able to see grand not anymore.-- not being able to see grandma anymore. not being able to attend a funeral of a relative or visit someone in the hospital. those are extremely we lay that out ahead of time. and what they also know is they will survive. the marshals service has not lost a single witness in the almost 40 years or so that this program has been operating. so they will survive. we tell them after a year or so they will adjust. occasionally there are problems

along the way like a child wanted a car and told the parents that if you do not give me the car, i will go out and tell everyone who you really are. we addressed that problem by having a dental check between-- by having a gentle chat between the witness security officer and a child. but there are difficulties just in a normal transfer in a normal life and you compounded with the fact that you have to be looking over your shoulder for several months until do are comfortable with the fact that no one is koin to find me.-- that no one is going to find me. and that is the object. getting the witness to the point where they do not look over their shoulder. host: david is our next calller. independent falls church, virginia. caller: good morning.

as a government to reach a government attorney, i was involved in the program back in 1970's. one of the problems we encountered is he and his wife and daughter were issued said security cards in sequence with the numbers were in sequence, which created a security problem for them. i was wondering if that issue has been resolved since then. guest: i happen to be familiar with the case. i think we have slightly different facts about it. it was not a mother and father. they were in laws being relocated, and we were told by the sun and all but the in-laws i thenever be working.-- son in law laws would never be working. it was the very first case we had where we obtained social security cards and we had help of another agency to secure so- -- to securecards.

social security cards. since the in-laws were not born to be working, he secured-- since the in-laws would never be working, he secured consecutive numbers thinking it would never be a problem with it. ultimately the sun and lot put it in false names on of business he was running and used their social security numbers and cause them to be disclosed. that is a non issue and has never come up again. host: gerald shur co-author of book fromhis is a 2002, inside the federal witness protection program. our guest is the founder of the witness protection program. we're looking at the federal program and how it is funded and what it does. next calller. caller: good morning. this is my first time hearing about you.

i am a retired investigator in louisiana. i was part of the witness protection in louisiana. we did this under the local district attorney's office. i find that they have a lot of flaws with the witness program. they had a lot of troubles with victims and witnesses because they would promise them certain things to get the case solved. i found they were wasting a lot of money. how do you control the spending as far as getting the witness to court? guest: every witness that enters the program was signed a memorandum of understanding.

it is a document that lays out everything the federal government will do and will not and will not do for you. the witness knows ahead of time how much money they will receive for a time of up to six months. they know what kind of assistance they will receive it so long as they are willing to make efforts to find a job and cooperate with the service and ultimately testified. we do not have many programs in the federal system now and have not had for many years. the first year or two a lot of things were new. for example, one of the very first witnesses we were taking into the program, i mean the first five witnesses.

we were sitting in my office and i said to the deputies, we ought to take into an area where we can show him -- where we can show him a house. we should show him a house and show him what it looks like. then when he is transferred elsewhere and someone says where you from, i can say annapolis, maryland. that is the set up. the with this is driven -- the marshall says where should we take him? drive him past my house. i give them my address. we say to the witness and wife, this is where you're going to live. red brick house, colonial. the white says what, live in a ?- and the wife says, what me live in a house like that? never.

sometimes the witnesses are a little difficult to deal with. i mention that to my wife and she said maybe we should consider moving. the witnesses did move. they lived elsewhere. they lived elsewhere. they did live happily ever after. host: the last calller talked about witnesses entering the program. how are victims dealt with compared to people who enter the program who are themselves criminals? >> we have very few innocent people entering the program. well over 95 percent are people who have been involved crime. either have committed a crime or knowingly dealt with criminals, like bribing someone. i would say probably 2-3% of the 8000-9000 people have entered the program are truly innocent people.

for them it is even more difficult than it is for the other witnesses who are gaining some benefits and that they have been involved with crime. maybe they have gone to jail and are being released afterwards. maybe they have gone probation and are being rowboat -- and are being relocated. for the innocent person it is extremely difficult. on the other side, what happens if we do not relocate them? they cannot testify. you get to a horrible choice of having to ask someone to testify, take a murderer or murderers off the street and the sacrifice of having to move to another community. host: roy the next calller from louisiana in morgan city. caller: i have a question.

my question is do people get relocated to countries are outside of the and i did states? guest: we tried that on one or two locations. -- one or two locations. i did not like relocating people outside of the united states. for one thing, if they needed assistance, who were they going a foreign country, they stand out. obviously they will speak out. so as tended not to relocate people or want people relocated of said the united states. one or two occasions it was done and it was successful. not something we would ordinarily do.

host: independent line. go ahead. caller: what a fascinating subject. thank you very much, c-span. aren't you it a great deal of personal danger by disclosing this information? guest: i could -- if i could find an effective design to discuss this week i am wearing, i would use it. i am not in danger because the number of years that have gone by, i do not know where anybody is hidden. there is no information i can supply to anyone. there was a time when we were in danger, and in fact, my wife, there was a plan to could not my wife at one time. my wife is a school teacher. a colombian narcotics gang --tended to kidnapper or me. to kidnap her or me.

so that i would supply information about where a particular week -- a particular witness was relocated. as i indicated, i never knew where witnesses were relocated. that was by design so i could never give up the information. i was in my office and received a telephone call one day. there is a table full of agents from different federal agencies. there was a plot and indicated that was his purpose. a personwas teaching. had been arrested who had my name and address in his phonebook and indicated that that was his purpose. i immediately called the school and called the principal's office, got my wife on the phone and said to hurt someone will come out to see you shortly, go along with what they say. talk to you later. that was the conversation, and she understood.

a few moments later a deputy u.s. marshal, a young lady she appeared to be, recent college graduate, showed up of the school. went to my wife's classroom and from there they went to the principle and the deputy explain to the principle the situation and said they believed there was no danger whatsoever and the school. the danger was going to and from the school and therefore the deputy with like to state my -- stay with my wife and the school while class is were on. -- while the classes were on. my wife refused to leave. she said she owed to much to the children. the marshals service agreed to have this young person served as her students assistant and a tie.

the principle put out the story that the bomb in helping -- that the woman helping was a graduate who decided whether or not she wanted to go into teaching. so only the principal knew the true story. what nobody realized it she always wore a long jacket because she was covering her gun. my wife recalls a phone call that she received on her cellphone in which my wife hears her say to the boss, i cannot copyright now, i am busy grading say to her boss, no, i cannot talk right now because i am busy grading papers. i will give back to you. we were in a witness protection program ourselves for a time. i continue to work. deputy marshals would follow me part of the way, call me on my cell phone and tell me i was not being followed and then proceed to my home. we temporarily moved to a hotel outside of the place we were living so could not be found there.

that went on for two months. there were occasional baby jurors. -- there were occasional dangers. my teenage daughter picked up the phone and she was asked the question, have you ever thought about death? we recognize who the person was and i had a chat with him the next day in my office. the chap was very simple. i said you have now become my daughter's insurer and you should feel very comfortable when she gets home safely, because if she falls down and gets hurt on the way, you are the one i will hold responsible. host: this was someone in the program? guest: this was someone in the program. host: our guest is gerald shur if you would like to ask our guest questions, republicans --

arizona. gerry, a democrat. go ahead. caller: i have had experiences twice where they went off the witness program, and both of them ended up dead. mainly because they had trouble handling their new locations. at one time i'd think it was trying to be a little too brave. one had to do with -- both of them were drug smuggling. they actually tried to kidnap my aunt to keep him quiet. he finally came back. within a month he was dead.

that was all there was to it. the other one was a name you might be familiar with, i used to fly a whole lot, and here in here in arizona i met a man by the name of various seals. -- barry seals. i will get off the phone and let you answer that one. you should be familiar with it. guest: i do not speak to specific cases, but i can tell you this, all witnesses are offered secularist -- if psychiatric assistance. if we see something that would suggest they should see a psychiatrist, we arrange that. if they wish to on their own, we arrange that also. witnesses are told when they see a psychiatrist that is the one person they may tell their entire truth of the background because we feel that is necessary for them to receive

the kind of help they need. host: a twitter question asking if the clients's debts follow them? guest: all witnesses are expected to pay what debts they owe. we asked them to list out what they owe. we asked them to make payments on those. they are responsible for the debts they have incurred before relocation. in the event that a creditor wishes to sue the witness, we have our arrangements by statute and by practice in which the creditor can file suit against the hidden witness and actually filed suit against that person and treat them just like any other debtor would be treated.

so we can do that safely. it keeps the witness alive and lets the creditor receive whatever legal rights they would have. host: one more call in pennsylvania. caller: on 9/11, we have learned that there has been a lack of communication and cooperation between state and local -- host: is this having to do with the witness protection program? we're almost out of time. caller: lap of the time? we are out of time. i see. think you. host: the calller touched on coordination. guest: coordination is excellent in the witness protection

program. you were dealing with so many federal investigative agencies and the coordination is absolutely excellent. that is why there is the success rate of not a single witness in this program that has been killed that has followed the rules in the 40 years of operation. so the coordination is excellent. information is passed freely from one agency to another when it affects a witness in the program. host: gerald shur founder of the witness protection program. now retired. guest: i would like to point out one more thing, the benefit of the program, and that is tens of thousands of criminals that are in penitentiaries' now as a result of this program. for the 10,000 or so witnesses and the program. there are tens of thousands of defendants that have been onvicted.

that would otherwise be out on the street committing crimes hearing so the program has proven to be extremely beneficial in all types of cases, from terrorism to counterfeiting to murder, etc. .ost: thank you very > >> tomorrow, john thierry and jim manley on the week in washington, including the passing of immigration legislation in the senate. what the house might do and the voting rights rulings and gay marriage. and david savage reviews the recently completed supreme court term and notable cases. washington journal live at 7 a.m. eastern on c-span. >> next, a conversation with -- with court justice

supreme court justice john roberts. after that, the chance to see a discussion with the founder of the witness protection program. >> tomorrow, on american history tv, it commemorates the 150th anniversary of the battle of eddie's birth. the monument behind me is 24th and fifth -- 24th michigan infantry. it had become famous as the imb grade -- the aggregate. 496 men onto the field. 363 of them will remain here as casualties. on michigan day at gettysburg, over 115 survivors of the 24th michigan who were wounded or captured here returned to this spot for the dedication of their monument.

the major of the unit was the speaker on that dedication day. as you look over the assembled veterans, he grew a little quiet and then he said this. volumes have been written with the battle of gettysburg is the sole and only topic, but the whole strain has not been told during much of the planning and more the doing has been omitted. the living may have given their version of what they did and what they witnessed year, but, oh, if the dead lips could be unsealed, what true and larger testimony might be spread upon the pages of history. >> 150th anniversary of the -- of the battle of gettysburg.

>> now, supreme court chief justice ron josh and john roberts at the judicial conference in west virginia. the supreme court wrapped up 2013 session. -- chief justice's remarks they are about 40 minutes. >> it is good to see you. thank you.

thank you very much. you need not having very i am not going to give a speech. i just want to give a few comments before i sit down with judge wilkinson for our conversation. i think these conferences are very valuable because they give the members of the bench and members of the bar a chance to get together and you perspectives. in earlier days when the judges and the reuters interactive on a regular basis, they could gain insight in that normal interactions. like the time the barrister was before a judge in england and he said, i have three arguments today gave one of which is a complete dead since winter for my side. wine is 50/50 and one is utterly frivolous.

the judge said, by all means, begin with the strong argument. said, all i don't intend to tell you which is which. [laughter] of course come i cannot talk about the cases we just decided. the opinions stake for themselves and it always mix me wonder why all of your here. but i will share a few things about the work in the past year, beginning with some statistics. out of the cases petitions that were presented to us and we disposed of those cases in 73 signed opinions. we had five cases form the fourth circuit. rate of 60%,rsal quite a bit at her than the average of 72% gave if you look a little deeper, it is better

than that. it is a success rate of 60%, which is quite good these days. we have 45 cases already set for argument in the next term of the court, beginning in the first monday of october. that is very unusual. i will be able to do if you actually cases in the fall. . none of the new cases is from the fourth circuit. so keep up the good work. we did have some exciting change at the court this year. on mondays come away have

announced our new orders for the .eek and had oral arguments the press corps asked us if we could move up the release of the orders until 9:30 so they would have the chance to consider those without having to miss any argument time. hard to come up with a reason to say no. but i could not and we made that change. the reporters now have the option of writing about the orders that they see at 9:30 or pending arguments probably -- probably at 10:00 or taking the day off. the last time, i reported on her construction of the court to i indicated we were close to completion. it turns out to be an example of zeno's paradox, which is a narrow the gets halfway toward the target every second, continually progresses, but

we'll never quite reach the target. that is apparently how are our construction project is going. this year, just as we thought things were wrapping up, we discovered we had very extensive damage to the exterior of the building caused by weathering, and wein, birds discovered this pretty much the way newton discovered gravity. everything started falling off the building, nearly landing on some people like newton's apple. so we have to work on that. it will take another year before that is finished. this time, we put a really delightful scrim over the front. certain at it in a light and you cannot even tell that it is not the real building. at least the visitors get a sense of what the building should look like without the scaffolding.

the landscaping was an ongoing project. things were so dug up that you thought we were looking for jim inhofe. want, before sitting down for the conversation, to echo some thing that was said last night. it is a tribute to judge hogan for his work as head of the administrative office. mentioned, ie prevailed on him to stay for one year on the job. it worked for almost a full year. for which i am very grateful. tom leaves the post in the able hands of john bates from the district of columbia. he begins his job officially on monday and any inquiries, complaints should be directed to

john. tom also wanted me to announce john's personal cell number so that he can be -- so there would be no confusion about that, but i don't think i will do that. [laughter] this isundertaking emblematic of the service that so many of these people in this room provide to the judiciary in the case of judges above and beyond her obligation. that is epitomized here by chief justice racks are who is the chairman of the executive committee to do so conference, nor mislead important position for which i am very grateful. and now i think i will sit down jay and have a little talk. thank you. [applause] >> welcome. i first want to thank my fine

colleague, joshree, whose leadership in this wonderful and informative and educational conference that we have just had, this is virginia's year for holding the conference. i know he shares the appreciation of his colleagues. thank you for all you have done to put this conference on. about want to say a word judge traxler and the magnificent leadership he has provided to the full circuit. he is held in the greatest respect by all of the members of the court and we are lucky to have the cheese joe: of his caliber. chief, thanks for being here. you have in through a grueling term.

i'm sure you would love nothing better than to leave immediately and spend some quiet time with your family and the fact that you have come to join a throng of lawyers and judges, i are ever so appreciative. am told -- i cannot begin to express the respect and affection with which you are held throughout the federal judiciary for your dedicated service that you have given us. we appreciate the warmth and dedication and sterling character of your leadership and it is a pleasure to be part of a federal court system with you at its head. >> i like this conversation pretty good so far. [laughter]

duringet me interrupt [laughter] >> you can interrupt any time you want. chief justice rehnquist came here for many, many years. you clerked for him. when we did the supreme court review session, it always amazed and the poetry that chief justice rehnquist new. he would begin each session with a little quotation from sir thomas gray in a courtyard. i think the lions went so many -- the lines went some many a gem, the darker and thousand caves of ocean bear, so many a flower is born to flesh unseen and wasted the desert air.

the blushing flowers that were blushing unseen were the supreme court cases over the past term that maybe didn't garner the headlines or merited the broad public discussion that some of the marquee cases did. they were nonetheless extremely important in the lives of ordinary americans. i wonder if there are any blushing flowers out there in the desert from this past term that went unnoticed. >> there always are. if you look at the cases we peoplealf a dozen that will be talking about it the panel discussions and things like that. -- the litteres r ones aretle

interesting. broadw has a very definition of what a vessel is good you have something that seems to fit not comfortably in either category. depending on which side you are on, which was either a floating home or a houseboat. that wasresidence attached to the sure more or less permanently, but could be disengaged and would float and could be towed around. the question is whether it added as a vessel or not. it is one of those cases where the picture is worth a thousand words. if you look at it on the water, it looks like a house that was what into the ocean somehow rather than a boat that is underway. the court did hold that it was not a vessel. so we had a lot of fun with it, looking at the different characteristics and posing a lot of hypotheticals.

we had a bankruptcy case that was very surprising. for practitioners out there, it was not as much of a surprise to them. it was a law that you are not entitled to a discharge of a bankruptcy when you were in default. i had not known the word before. in our jurisprudence these days, we often quote dictionaries to get a better sense of what the meaning of the word was.

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 blushing 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. they sometimes have an impact 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. i know the sequester has hit a great many government programs card. it has hit many public agencies and institutions hard. it has had a severe impact upon the federal courts.

why 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 sequester 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 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. everybody makes a special 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. in general, 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. the administrative office, led

by tom hogan and after by john bates, 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 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. i wonder if the lawyers are able 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 months preparing their case. the oral argument means everything to them. they sometimes come to court and 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. this seems an exceptionally hot bench in historical terms on the supreme court.

as a former advocate yourself, is this a good development? >> first of all, there are excuses. i am not sure everyone understands this. we do not talk about cases before the argument. when we get on the bench, it is the first time we start to get clues about what our colleagues think. 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 the chance 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. >> this is sort of a personal 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, you were arguing before the supreme court. do you miss your former life occasionally? do you have the impulse to be an attorney again? do you miss the satisfaction of that?

you were so good at it for so many years. you had to leave it all behind. >> if it were the day that a client was paying their bill, i would jump over the side of the bench. 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. you debate 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 ended up. 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. too bad it is not moot court. 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 i ever gave happened to be on the right side of the court. >> i would like to ask about the membership and composition of the court. when one looks historically at the court and their past experiences, 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. then justice powell was a former president of the bar association. thurgood marshall was the 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 exception of justice kagan, they all come with sometimes extensive experience on the court of appeals. do not get me wrong. i love court of appeals judges.

i wonder 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 aspects of american life. if you get a former appeals court judges whether it becomes more technocratic as opposed to those in times past. is this a danger? >> you were 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. it has to be enormously significant what you are saying. you have courts that were made up of governors, senators, people like felix frankfurter, different backgrounds. it might be accurate to say more prominent statesmen. it was an historical anomaly before justice kagan you have entirely 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 of playing a political 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. they present legal arguments. if you go back and look at briefs filed in the warren era, they paint with a broader brush 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 whether it is good or bad if you think different types of issues should be before the supreme court. it is all interrelated, the background of the judges and the issues presented. it is an interesting development people need to think about. >> having a broad experience in elected life or high public office is no guarantee one will be a successful justice. hugo black was one of the great justices. there were two other senators

with whom he served that i do not think anyone would say were 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 our conversations is to ask you 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 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] i do not want to be seen as endorsing any book. i picked one up the other day i have not begun to read. it had a very good review in the "wall street journal." of course i can not remember the author or the title. it is about the 20 most significant 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. are there questions from the 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 law school 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." i saw the one-person play and cannot remember the actor who did it. it was just called "thurgood." it was a spectacular performance. it was a one-person show that

went through his life from youth until the end. it was changes in the tone or posture that convey the notion of ongoing time. it was a wonderful, gripping performance. they were talking about turning it into an hbo type show. and i hope that they do. >> do we have a final question for the chief justice? >> you have talked about a hot bench. what are the best ways for the 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. justice stevens asked me a question. before i could answer, one of his colleagues jumped 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. then the second one. i was feeling very proud of myself and turned to justice stevens and said i do not think i had 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]

the one thing you cannot do is show any kind of impatience. i have found 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. it is almost quietly scolding the bench for not giving the lawyer the time he or she

deserves. it might be effective. >> may i ask 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] >> the supreme court term ended this week with decisions on the voting rights act and same-sex marriage. now linda greenhouse and join date anil of legal scholars in

white sulfur springs west virginia. at the fourth circuit court of appeals judicial conference to discuss the major cases from this term. this is about an hour and 45 minutes. >> 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. first we have linda greenhouse.

if i may take a personal note and one that i have heartfelt and to thank you for his that you are the chief architect of the present constitution of my commonwealth of virginia. because of your work, we have been able to amend the decisions of the 1902 constitution of this entrance my .en -- of disenfranchisement and perhaps a boy from petersburg, virginia would have the opportunity to retell the things he could and find his way by the grace of god to the fourth circuit hearing i thank you for your great work and thank you for bringing this great panel. professor gentlemen,

ae howard. >> good morning to all of you good i might say at the outset that you don't have to worry about the virginia constitution because 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. first we have linda greenhouse. 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 and one on the originalism from 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 blows me away to find out how mature the court has become. it is a courts we will be talking about only by way of snapshots from a few cases. it is always difficult to generalize.what 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 president's -- presidents who 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. the third question is the 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. [laughter] 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--

a minimalist court 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. exhibits a -- exhibit a in that category could be the citizens the court could have easily decided that on statutory grounds. but they reached out on others to decide on a constitutional decision there. you 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, they weighed in and laid down with the majority of the court felt about the commerce clause, relative doctrines' we have not seen in a long time. this week -- doctrines we have not seen in a long time. they also struck down section 5 of the voting rights act and the in those cases,. you don't see much difference to congress. another question that interests 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 brief period of the chamber is 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. most 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 it was voting rights act. very important in a self- incrimination case, a 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 melding -- involving warrantless dog sniffs on cars, cases involving farmers charging -- john g. market regulation. there are also -- cases involving market regulation and 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. we had thomas, a leto, sotomayor, and kennedy in dissent.

aklito and -- 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. in the three most important 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.

some of his leadership has been 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. if we tried to, very few of you would still be in the audience by the time we finished. it would just be overwhelming. we just want to air some thoughts about them. we will pay particular attention to what i would call marquis cases, the voting rights act,

the shelby county case, the affirmative action case, and the same-sex marriage cases and the perry case. we have time for a few other selected areas of law with that, but we want to focus on these particular cases. we have talked about it. we have were sold out our assignments -- we have parceled out our assignments. i wanted to start with -- inking chronologically. voting rights takes us back to 1965. moresex marriage is a contemporary kind of issue, emerging in more recent years, and finally, with those major cases we want to say something about law and technology. we have interesting dna cases on

the docket this term. i want to start out by having a look at the voting rights act, the case that linda greenhouse will tell us about. linda? , introduced the voting rights act by singing goes back to 1965, and you could say it goes back to reconstruction and the enactment of the 13th and 14th amendments which authorized congress to carry out the equal protection for voting rights with appropriate legislation. part of this case is appropriately within its enumerated power. in 2006 and it reenacted for the fourth time, i believe, section five of the voting

, it took the position and is same time -- and at the same time did not change section four of the voting rights act, which defines how you designate the covered jurisdictions. so, this case was an accident waiting to happen for some years. for four years and particular. mentioned the northwest case in 2009 when there was a similar constitutional challenge that came up to the court. that was under the court's mandatory restriction. someone tipped toed right to the verge of calling section five unconstitutional and must fail to do so, basically rewrote the statute and of course, it was the court's opinion to give the jurisdiction to a district in austin a chance to bailout.

there is no bailout for shelby clean. they have had a voting rights record for 10 years in shelby county. one threshold question there was, by what right therefore did shelby county bring the challenge to the statute? clearly the statute applies to shelby county. that was part of justice ginsburg's dissenting opinion, the five to four decision, the majority opinion by justice roberts or read what court does is declare unconstitutional section four of the voting right -- the voting rights provision. we have a handout of summaries on the cases, on which i wrote the shelby county summary before the case came down this week. i talked there about the analysis, the congruence and proportionality, suggesting

those were the terms under which the court was going to act. if i had to summarize the rationale, actually i could not do it. they do not actually rely on the city of bernie. it is more of kind of, well, we finally have five votes to actually get rid of section five of the voting rights act, even though it's not specifically section five, everybody knows ablecongress will not be to readjust the coverage of the preclearance provision. that is dead in the water. -- chiefce roberts justice robert said that this is a stunt decades old data. the reference there is first order voting discrimination practices, which can we are very rare if they exist at all.

inch justice ginsburg takes the dissenting opinion the obstacles we saw in the last election -- voter id, the block to some voter id laws, changing the early voting patterns. things we all read about in the last election. they were left with a statute that was reenacted by congress in 2006. the vote in the house was 390 against 33. the senate was 98 to nothing. it raises really profound questions about the court's stance toward congress, deference to congress. it makes up a doctrine called people state sovereignty to complain about the unequal treatment of states under the

coverage formula. it raises a question of activism. i think this is a rather decidedly activist and troubling decision, and i know others want to weigh in. so we can have a conversation about this. is notink the decision as troubling as linda does. and i think if you go back to my college versus maryland. i think it's interesting that the chief justice uses modern language but mcculloch plays such a large role in the case. what mcculloch says is the court has two police things, at least to make sure that the objectives that congress is trying to seek our pretextual. in other words they are not using, in this case, the used

to prevent up check dose -- other objectives. to showt says you need some rational evidence that is related to be formula that is put down. i think it is important to make -- alllittle bit more editions like to be reelected. the preclearance process actually makes for a much more static lyrical process in the protects incumbents from change -- change in redistricting processes and in particular, what the voting taxts act tends to do is -- liberalving

leaning african-american voters in one to certain republican leaning voters in another district. that is a huge cost to democracy when people update information more in the middle. and if you talk to different districts, you are less likely to get updating on this information. we've seen across the country, some experiments with the missions and things of that sort to get at this problem, but if there is a clear -- preclearance, that goes to the nature of state sovereignty. of course, if the congress gives evidence this is necessary to protect against discrimination -- but i think in this case it's hard to see given that there is no updating of information and given the rather surprising facts congress

is lengthening the time they are -- given theiving concededly at her behavior in the south. that is a very hard thing to swear with the objective o rejecting voting rights rather than doing these other kinds of object is, which you may all worry that politicians of both parties will come together and create a duopoly that is in their interest but not the american people. >> congress documented hundreds of discriminatory changes that had been locked in real time. probably not the case that everything was going along great. i will mention one other thing. the challenge to reno in the

1990 fell. opinion tooknor's aim at the challenge do redistricting that you described and began a process of race conscious redistricting. to the extent that that was a problem, i think we were on track to alleviate that problem in recent years. , if we were to judge this case by the standards of original is him and go back to ask, what do you suppose congress had in mind when they propose to the country they , itfied the 15th amendment gives the authority to pass appropriate legislation. >> i would not presume to hold myself as an expert on reconstruction era history, but

my understanding is that congress did not trust the courts and it did not trust the states. , theess took to itself framers of the 14th and 15th amendments, the power to pass appropriate legislation, enforcement mechanisms, to carry out the guarantees of those amendments. i think the the firsting -- supreme court decision that interpreted the first iteration of the voting rights act, that the court's obligation is to cut congress a very wide swath -- anderpreting interpreting whether the legislation is appropriate. >> if in the 1860's if congress the courts, could you say that shelby county is a court that does not trust congress?

>> it is a court that does not trust congress. he could say that very well. politicalhe kind of correctness -- of course they could not vote against it. the voting rights act was such a label, a title nobody could dare be against. so, you know it is dammed if you do, dammed if you don't -- damned if youdo,. don't. say three veryo unusual things about this legislation and the case it's .lf -- -- itself number one, it is telling certain states you must submit your governmental decisions to the federal government for approval before you can make decisions with respect to polling places or districting,

how you are going to allocate whether people are going to be elected at large or in their district. may happen in other circumstances. some of you may know better than i. but it's very unusual for the federal government to require state governments to submit governmental decisions for approval in advance by the federal government or to the courts. talked about court this one sucked of the equal sovereignty, that 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. so, this legislation is unusual in the sense that it is certain states versus certain districts. preferential treatment in terms

of governmental decisions. that was an interesting theme. it has not happen very often in the history of the supreme court. the underlying, theme, is the differentiation of the state involves a stigma. it is a decision by the original congress that passed the voting rights act that certain states, and they had ample evidence to prove it, certain states were suppressing voting rights for minorities. that is saying to the world and especially the american people, these states are bad places and they must be put in the penalty box, so to speak. and i think the court was concerned about, is that going to go on forever? this was mentioned before -- it is hard to vote against an extension of the voting rights act.

it's almost impossible to change the process and pick other states for this on differential, unequal treatment, so it's going to go on in perpetuity and how long will that treatment and stigma of you are discriminatory, you are bad places, you are bad people -- i think, i am not making the judgments. think those three things are interesting themes and mark this as very differential kind of legislation. i would point out it is certainly unique legislation. and perhaps not updating the formula in 2006 was an odd decision. of the nature of the constitutional violation you're according to the court is a federalism one. and it struck me odd that there is no change or to respect to

voting with respect to discriminatory voting. the opinion -- the majority opinion really does not grapple with that. i found that surprising. >> one last quick comment. of course, there is a bailout opinion. in the dozens of jurisdictions have ailed out since then, including a number of jurisdictions and the state of virginia showing .here are statutory criterion so that is kind of an answer to the conservative outlook. it's time to move onto the

next major area, having talked about the voting rights act. i want to go to the affirmative action area, fisher versus the university of texas. we've all been watching that. highlyer was the anticipated affirmative action decision of this term when the court granted that this case is going to be a vehicle for change in the constitutional treatment. i do not think it was the game changer that people predict did. however, i think these long- was predicted. abigail fisher is a white texas resident who is denied admission in 2008.

she said that minority residents with less impressive potential's remitted ahead of her. sketchtshell this is the of what it looked like at u t. 1990, they did not explicitly consider race. they used something called a personal achievement index which is a holistic measure of soft variables, leadership, commuter service, did you come from a family with an unprivileged background? pursue it to state law, the automatic grants the top 10% of

their class. it had some success. 16%2003 freshman class was hispanic and 14% african- american. in the supreme court decided to classes deciding admission policies at the university of michigan. and they upheld the use of race as long as it was part of a holistic measure. so you teach responded to these opinions with the change to the admission policy. it decided the undergraduate class lacked diversity particularly within certain majors and classes and thus implemented a new policy. added race.rsity

it was still a factor among factors the university said. were you a cheerleader, all of those important criteria. it was not even in america will value. fisher did not graduate in the top 10% of her high school class, but she still had impressive grades and s.a.t. scores. 90% of texas 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.

on monday ofs -1 opinion reversed the fifth circuit. justice kennedy wrote the majority opinion. only justice ginsburg dissented. justice kagan by the way was recused. 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 gruder was the relative -- relevant precedent. then the court held that the fifth circuit did not apply the other case correctly. justice kennedy faulted the that -- the fifth circuit were applying a form of strict

scrutiny that was too feeble and conferred 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. justice kennedy said we concur 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

ratio -- racial scrutiny does that is where the court stopped. it did not say whether you'd see met this burden. it remitted it back to the fifth circuit with instructions to start again, take a second look. 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. what 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. affirmative action in higher education lives on. 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 view, it quotes gruder. one explanation of the reversal in fisher is that the fifth circuit got it wrong. the fifth circuit -- or extension of the reversal in fisher is that the sixth circuit 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. lucky for 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 tailored to the compelling interest. --ink like a child lawyer. think like a trial lawyer. what kind of proof would offer to satisfy fisher? what kind of proof to you need to 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 difference? as a legal realists, i am is skeptical. -- i am skeptical. diversity is the most academic bureaucratic objective. it is hard without a clear rule to strike down plans. it is unclear even when you do have clear rules. i do not think it is one to make a huge difference on the ground.

there is not a very strong originalist argument. i think there is compelling evidence for that, but until that happens, until there's a very strong argument routing the prohibition of affirmative action in the constitution, if that can be done, i don't think it will make a huge difference on the ground. >> i think what we saw in fisher was the tip of a big and not pretty icebergs. cases 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 as a vehicle to do something. they were unable to do that a couple of the justices mentioned with evident this may -- evident dismay the question of shall gruder be 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 outfit

called the project unfair presentation.this is movement litigation. this is not fisher waking up one moment inking, i am going to sue the university of texas area this is not shelby county saying, let's challenge the voting rights act. this is managed litigation. and it's not going to stop. >> 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 if i may turnhem. to you, ted. >> 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 proposition 8, california's 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

atfect as unconstitutional. 3:00 pacific time yesterday afternoon, 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. -- the two males were married by the mayor of los angeles. you will see pictures of very 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

constitution and our society owe them a status of equality when it comes to something as asortant as mayors.-- important as marriage. proposition 8 came three months after or four months after the concluded in 2000 individuals of the same sex were entitled to be married under the california constitution, the due process clause of the california constitution. the subject is very controversial. the opponents of that decision put on the ballot a vote of 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 trial. 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. we like it to be loving versus regina case of 1967 in which the supreme court held that it was virginia case of 1967 in which the supreme court held that it was prohibited to marry some of -- it was a violation of the constitution to prohibit someone from marrying someone of a different race. at that point some 30 or 40 states had prohibited marriage between interracial couples. at the time of the loving case, 13, 14 states still prohibited that kind of marriage. 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 the provisions of proposition 8. 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 rt of lifornia law. the ninth circuit rejected that and the supreme court decided the case of backgrounds.-- on that grounds. the petitioners had not raised 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 activity in high -- hawaii and other places. congress pass defense of marriage at, we will call its doma. section 2 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. section 3 of doma redefined what 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. when edi windsor's spouse passed away, and state tax was imposed. -- an estate tax was imposed. a several hundred thousand dollars because there was not a recognition that they were married under the defense of marriage act. edie windsor 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 adverse to windsor, -- was really diversity? there really adversity?

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 standing of the jurisdiction in 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 effort by journalists and others 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. the defense of marriage case, 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 heat are very passionate. wrote a very can -- very passionate opinion. this places same-sex couples in 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 couples. the law in question makes it more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and it since a lives.

signal to them and people in the community that there marriage is less worthy. because they were a class of individuals who had no choice about their sexual orientation, their relationships were diminished. justice scalia takes very strong objection. --will not mention those. there are two other dissenting opinions. i will not mention those. you need to read this opinion. the passionate 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, what justice scalia did, justice kennedy disavowed signing --ything with regard to the deciding a thing with regard to the constitutionality of state measures. there are 37 states left upper habit marriage between between persons of the same sex. he basically said we're not 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 differently in another case 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? 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? the majority disavows that. he says do not believe it. justice a repeat of that. kennedy 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. i've 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 it's a verya. passionate opinion and very interesting. it raises questions about whether the kennedy opinion was written the way it was and whether the case was outstanding. there are all kinds of fascinating speculations. >> i think everything you said the chief justice right separately -- no, no, no. do not listen to justice scalia. 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

going on 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. >> the take away is your clients are now getting married. it is independently important beyond the context in which it arose. two questions. do you think they add this to the correct? was the aim always to get at the standing question, the question whether the proponents can then take over the state processes that the state chooses not to defend? what do you think is the import -- ofe standing holding.

the standing holding in your case? >> the standing was always an issue in the case. when this was filed by the proponents of proposition eight, they did not raise the standing question. the supreme court added that. our reaction was that there were four votes to take the case. that's what it takes to grant up petition. -- grant a petition. why did they add that standing question? they decided unanimously. that was part of the california constitution that when the attorney general and the governor was used to defend a constitutional amendment they would not be any difference unless someone had the right to defend that statute. there were issues of appropriate use of judicial power requiring

someone to be inattentive and. -- in there to do it. and the california constitution gave them the right to do it. a similar issue had come up there. i thought the supreme court had really resolved it 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 granted, i thought the conservatives on the cord were-- on the court 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 was the linchpin -- who is always the linchpin in these things, to go along with the standing position as onosed to us -- an opinion the merits. that may have been what was going on. justice kennedy was descended from the standing decision. they will all probably be answering this for years. we thought this is good news.the conservatives are really worried about the decision on the merits and they were protecting themselves by putting the standing question back end. >> i am not sympathetic to same- sex marriage. thes is a great criticism. opinion seems to be very

troubling as a matter of craft. ofbegins with a discussion federalism and says, that's not really relevant to our decision and you have two justices into cents making very plausible argument that federalism is crucial or not crucial. it seems to me a a basic 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 --gitimate the course power. legitimate the court's 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 protection clause against the government. that is the principle of -- that has been read

into by the court. even if we agree that should be done, what is the basis to understand this equality principle that comes of course, with the reconstruction amendments as ruling out the kinds of moral considerations that are central to the debate. i do not think the court shows the principle of equality and those and those are the obligations of the courts to root its decision in the text of the constitution quite -- quite apart from our policy disagreement. i'm sorry to say that i think this opinion was as significant a failure as i've seen in the history of the supreme court. >> wow. you heard it here today. we will not take a vote of the

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. they both focus on the substance. they are extremely fundamental. one is about patent. the other is about search and seizure.i will talk about them and end with 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-- exponential power of computers is accelerating across a very wide range from biotechnology to energy. it'll generate all of these kinds of decisions.

the court confronted to patent two patent claims. the first was those that was for mutations that put women at serious risk of breast cancer. they anonymously rejected the claims. --long held that interventions inventions do not include matters that actually occur in nature, because they fear that those kinds of patents would tie up tools for innovation. they rejected marriott's argument that the the chemical process they use to isolate the gene transforms the dna into something -- they rejected. myroad's --cted myriad's argument that the chemical process they used to isolate the gene transforms the

dna into something they could patent. at 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. a natural process naturally 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. both patents on the full gene and the complementary dna 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

the cost of using a monopoly to individual companies. the cost outweighs the benefits. the court said not so. it splits it. [laughter] dnanext case also concerns on the constitution's fourth amendment. their issue is that police can take a dna sample persona rest of for a serious crime. source become a powerful . beh everyone's dna, it can spread around through bodily , this is the most important fourth amendment case for a generation. they c c