by the time we finished. it would be overwhelming. much better to take a few cases and try to air some thoughts 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 docking -- the docket. i would like to start out with the voting rights act case, the case back linda greenhouse will tell us about. linda? >> shelby county, alabama v. holder. it goes back to 1965. you could say it goes back to reconstruction and the enactment

of the 14th and 15th amendments, which authorized congress to carry out the guarantees of equal protection and voting rights in those amendments by appropriate legislation. at the heart of this case is, did congress act appropriately in it enumerated powers? in 2006, when it reenacted, for the fourth time, section 5 of the voting rights act, the pre clarence prohibition and did not re-clearance provision -- 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's mandatory jurisdiction. -- 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 fatten -- practices, which are rare, if they exist at all. in justice ginsburg, she takes aim at second generation discriminatory voting actions that we saw in the last election. voter i.t.. -- id. 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 whetg r 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 nefits 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 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. 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 dos the tip of a big and not not think it will make a huge

difference. click justo make a point, this was the tip of a not very pretty eyes were. there is this 13 page of any in which i agree is the case that lacks a certain stability. it was an aggressive grant. there is no conflict in the search gifts. the court reached out to take his case as a vehicle for doing something. it was 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 tey

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. and in.

you heard it here today. we will not take a vote of the you a you a you panel on that particular proposition. john, you get to pick up thein ajohn, you get to pick up the room and a and aere.a and a and a there are an interesting pair of a a a cases.youcases. a they both involve dna.you they both raise questions abouta law and technology of which i know you have a particularis a and a a concerted a a a

--s is an is a litmus in relentless increase. biotechnology. the first case is the association for molecular pathology. 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.

says this is the most important fourth amendment case for a generation. hewas sharply contested as 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. courtinion of the 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. that famous for arguing 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. theome cases suggest, at 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 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 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. talkat will re-going to 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. arecell phones were there cameras everywhere.

yearsave a case a couple ago by heat measuring devices will over the guys home and measured the heat that confirmed provided sufficient that there was marijuana growing inside the house is generating this heat. we have the dog cases which we will talk about. the surveillance cases, billions of phone messages stored.or all of this technology that the supreme court is having to deal with in terms of what does it mean in terms of the precedents. where are we going to find that standard? is it going to be something like trespass or reasonable expectation of privacy. whatever the heck that means. >> a raises the question about

this. it was not so long ago. i think 96 is when they have their first case related to the internet. it was this case. many and never access the internet. they had to bring in experts from the library of congress to speak of factual context of the communications. there is a learning curve that we are all climbing when it comes to technology. judges are climbing it too. >> today they're called law clerks. >> that is a nice point to segue. we have two cases for you dog lovers out there.

they win-win and lose one. we cannot leave that off the agenda today. >> when they started talking about assignments 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. attacke trained to 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. an pired licenses.over a truck

the driver of the truck was clayton harris and he was visibly nervous and had an open can of beer. couofficer asked if he check the trunk of the truck. harris said no. the officer brought aldo over for a free air sniff. 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. he sits. that is ben behavior. he concludes that he a probable cause to search the truck. he did not find any drugs there. aldo was wrong. he found a bunch of ingredients that are used to make meth. 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. talkedhearing, they about this extensive training they had undergone. aldo had been certified. the trial court ruled for the

state. the florida supreme court reversed. when a. alerts, the fact that he has been trained and certified is not enough to establish probable cause. the state has to produce evidence, training, certification record, and performance record. how often has the job been incorrect? justice kagan delivered a unanimous opinion. she explained that the florida checklist is too inflexible of a way to prove 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 sharing to test a drug's reliability. a defendant could challenge the adequacy the certification and trnithe 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. thes very similar to opinion he offered last term and jones, the gps tracking. propertyembraces the right and this is on the fourth amendment which he says supplements the reasonable expectation of privacy. he says a person's home and the immediate surroundings of the

home enjoy special protection under the fourth amendment. it is the very core of the protection. that makes this case easy. the officers gathered information by physically entering and occupying his home. 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 else. we do not even need to get into expert opinions. they learned what they did by intruding on the property.

justice alito wrote the dissent. he could've lawfully approached the door and waited for the same amount of time if they have not been accompanied by frankie. he says it makes no sense that it is illegal because they were accompanied by a dog. 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. hune they should name it 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. forad to stand out there another couple of hours while the big truck came. sniffingout this drug

job 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? this is spca time. >> he said he is more comfortable. >> he said it is somehow more clear. >> we have a few minutes left. can you take two or three minutes? thentioned whether or not 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

carefully at class actions. >> quick comments. >> is not so much that the 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. courtisions a supreme standing he has enthroned at the apex of governments. ony are joining an issue this. justice leah had voted to strike down the section four voting right act. >> i want to bring us to closure. decisions the major 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 going on to debate points like this? >> this is something i tell my students. thateory has a market on 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. 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. he is 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 guantánamo cases and becoming the superintendent of whether the rule of law would apply at guantánamo. they did not expect that at all. we have to step up and show our

hands. it is important to keep rooted in the larger context in which these disputes emerge. wet's always forms how 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 interpretation of the treaty. they wrote very politely back to

the president that is not our business. we are not in the business of writing advisory opinions. it is interesting that he goes as far back as that. 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. this is going to keep coming back. whose numbers are being collected at nsa. that case will come back again. we will see some more standing