[laughter] what's the most conservative macklemore song? no. i want you each to name either a politician or a writer who if you had to pick someone to have a profound impact on the future of conservatism/the republican party, pick a person presumably not yourself. [laughter] >> i'm willing to say i will probably be the least influential writer on the republican party like ever. all of my ideas are basically electoral death. but -- david brooks. very much. [laughter] >> credibility shot. >> one person who gives me hope at this point is mike lee. who is first of all a senator who doesn't think he's running for president which is just a wonderful thing in american life and very rare. but he's also a person who is shaping a conservative vision that makes a lot of sense to me and i think it would make a lot of sense to a lot of people. >> i think the most important

policy innovation coming from conservative politicians right now is on criminal justice. and revisiting the idea that it is a good idea to massively incarcerate people, especially for nonviolent crime. i think there are a number of southern governors who have been doing good things on that, including mississippi and ouisiana and north carolina. >> i would say that the most influential writer or politician that we will have in this generation will be the one who makes conservatism accepting of modern society and modern social issues, again leaving abortion aside. maybe that's a politician, maybe it's a writer, we'll have to see. but that person has not yet emerged. >> jim, a gentleman of the manhattan institute, is a guy who is always going to be a niche product. he's not always going to capture the hearts of the massive but he's a guy who really gets the idea that markets are

fundamentally about decentralized trial and error. they're actually really important. and that the right really ought to be the party of experimentation. and i encourage everyone in this room and everyone watching to read him. >> he's had some major pieces. >> he's got a lead piece in the next "national affairs." >> thank you for that. >> thank you very much, guys. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014]

>> in a few short months, capitol visitors center will be complete the -- completed. and then the work of this congress will be described to future generations. visitors will view an introductory film entitled "out of many: one." i said that solutions to problems cannot be found in a pool of bitterness. the framers expected the floor of this house to be a place of passionate debate, a place where competing ideas and philosophies clash, a crucible where many ideas can be blended together to forge a strong nation. but this floor should also be a place of civility. and mutual respect. and a place where statesmanship and not just electoral politics

guide our decisions. president reagan was right. there's no limit to what we can accomplish if you don't mind who gets the credit. eight years ago i broke with tradition and gave my inaugural speech from this microphone and the well of the house and not from the speaker's chair. i did so because i said my legislative poem is here on this floor, with so many of you. and so is my heart. sitting in the speaker's chair is an honor i will always cherish but i believe there is actual even greater honor. it is one that each of you share with me. it is bestowed upon us by the citizens of this country, one by one, as they go into the voting booth and elect us with their sacred ballot. it is the honor of raising our hands and taking the oath as a

member of this house of representatives and then to sit at one of these benches. so, on january 4, i'll be privileged to rejoin you on these benches where my heart is, here on the floor of this great house. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] >> find more highlights from 35 years of house floor coverage on our facebook page. c-span, created by america's cable companies 35 years ago and brought to you today as a public service by your local cable or satellite provider. >> in a few moments, the kalb report hosts supreme court justices scalia and ginsburg. the bipartisan policy center will focus on how to reform congress to make it less partisan and more efficient. and then we'll re-air the manhattan institute discussion on the future of conservatism nd the republican party.

on the next "washington journal," we'll focus on research into unmanned aircraft commonly referred to as drones. beginning with brian fung, technology writer for "the washington post." we'll also take you live to virginia tech, one of six federally certified research and testing sites. our guests include john greene, interim executive director of the midatlantic aviation woolsey.ip and craig now, supreme court justices antonin scalia and ruth bader ginsburg are guests on the kalb report. the two justices talk with former cbs and nbc news reporter

marvin kalb for an hour and a half. >> from the national press club, this is "the kalb report," with marvin kalb. >> hello, and welcome to another edition.

our program tonight, 45 words, a conversation about the first amendment with supreme court justices antonin scalia and ruth bader ginsburg. it would be an honor obviously to have one supreme court justice as my guest, but have two is indeed a very special privilege, especially these two, who generally represent ontrasting opinions on the court, and yet they are great friends who dine together, travel together, love going to the opera together. they inspired a new opera called "scaliaginsburg." they are like the old days when political differences would not stop a friendship. ustice scalia is the longest-serving justice.

appointed by reagan in 1986, he is called an originalist, meaning he believes the constitution ought to be interpreted more or less as the founding fathers meant for it to be interpreted. you want change, he says, change the legislature of change the law. his job is to interpret the law. justice ginsburg was appointed to the supreme court by president bill clinton in 1993. her view is the constitution is what has been called a living document, meaning it changes as society changes, one linked together. tradition and precedent matter, but they do not determine her udgment. both justices have devoted their lives to the law, teaching, democracy, and freedom.

we are going to discuss freedom of the press, but let's start with what the concept of freedom means. its origin, its meaning, at the time of the revolution, and its eaning in today's america. i have always been fascinated by the fact that the first commandment of the 10 commandments in the bible and the first amendment in the constitution both stress the central importance of freedom. the first commandment saying i am the lord thy god who brought the forth out of egypt, out of the house of bondage, and thou shall have no other god. the first amendment guarantees freedom of religion, of speech, of the press, of the right to legally assemble, to petition the government for redress of rievances. justice scalia, in your view, is there a link between the first

commandment and the first amendment? did one possibly inspire the other? >> oh, i doubt that. >> ok. > i think our constitution was inspired by the traditions of the common law, and i think what our framers meant by the freedom of speech, for example, was that freedom of speech which was the birthright of englishmen at the time. i do not think it had anything to do with moses. i think what freedom meant at the time was the absence of constraint, the absence of oercion. so freedom of religion, for example, meant that you could not be constrained to contribute to the support of a church that you did not believe in. you could not be disabled from

holding certain public offices because of your religion. absence of coercion. and i think it was the same for freedom of speech. >> justice ginsburg, your view? >> marvin, this is the one question you told us you might ask us. i was puzzled by it, because as i read the 10 commandments, the first four of them are not about freedom, they are about human obligations to god. thou shalt have no other god before me, no graven images, keep the sabbath holy, everything, obligations that people owe to the almighty. but i also mentioned to you that your question comes at just the right season, because this is assover, and the passover is

indeed a celebration of the liberation of a people, and there are many words in the jewish texts that celebrate freedoms. i would take the passover service rather than the stern first four commandments as advancing the idea of freedom. >> i knew i would be wrong -- i knew that to start with. >> you thought you'd be wrong on the law, not on theology. >> what i would like to get at is what your senses that the people who wrote the constitution had in their minds when they talked about freedom. you mentioned common law. common law was not explicit about freedom. many different interpretations were there, and what i am trying to get at is before we get into the specifics of freedom of the

press, i would like to know what the concept meant in your understanding. >> i do not think the common law was that diverse as far as what every aspect of freedom consisted of. the freedom of speech was very clear that did not include the freedom to libel, that you could be subject to a lawsuit for libel. and that type of coercion was not considered incompatible with the freedom of speech. now, some aspects of it i suppose we were more vague, but some things were pretty clear. >> and, justice ginsburg, the concept of freedom is very prominently featured in the constitution. it is right there in the first amendment. and the writer tom paine had a simple explanation. he wrote, "it would be strange indeed if so celestial an

article as freedom should not be highly rated." it does seem to me, and i will get back to this again and again i think, that if you are going to feature the concept of freedom right up there at the top, you have to have had something in your head about the importance of freedom to what it is that you are doing at the time it was beginning to build a democracy. >> there's a point justice scalia made in his opening remarks. he said he sees this first amendment as protection against constraints, government constraint. and there i think our expression of the first amendment is quite different from the expression in the declaration of the rights of man, the french document. the first amendment is saying hands-off, government. it does not say everyone should

have the right to speak freely. that is what the declaration of the rights of man says. everyone shall have the right to speak freely. that's not what this has. t is congress shall know all -- congress shall make no law prohibiting the freedom of speech or press. it's directed to government and it says government, hands off. these rights already exist, and you must not touch them. >> i'm sorry, please. >> it should not be painted as the foundation of the american democracy, this concept of freedom. do not forget the bill of rights was an afterthought. it was not what they debated about in philadelphia in 1787. a couple of the states that ratified the constitution made it clear that they expected there to be a bill of rights added, but it was added in 1791,

on the proposal of the first congress. what they thought would preserve a free society was the structure of the government. that is what they debated about in 1787. and if you think that is false just look around the world. every foreign dictator in the world today has a bill of rights. it is not a bill of rights that produces freedom. it is the structure of government that prevents anybody from seizing all the power. once that happens, you ignore the bill of rights. keep your eye on the ball. structure is destiny. >> the eye on the ball being keep your eye on the structure of the government. >>our structure is so different from that of most of the world. there are very few countries that have a bicameral legislature of a genuine one, including england. they do not really have a real bicameral legislature.

the house of lords cannot do anything. laughter] when they pass it a second time t becomes law. none of the parliamentary countries that have a separately elected president, the chief executive of all the countries in europe is the tool of the parliament. there is never serious disagreement between them. when there is, they kick them out. they have an election and appoint a new tool. i mean, we are so different from the rest of the world, and it is that it has more than anything else preserve our liberties. you would not want to live in most of the countries of the world that have a bill of rights which guarantees freedom of speech and of the press. you would not want to live there. >> i have to disagree with my colleague in that respect. >> i'm glad that you can do it. >> i do not think the rest of the world is regarding our legislature at the current

moment as a model to be ollowed. and, second, however it was understood at the beginning, yes, the structure of government was to protect our liberties, but there was always the idea of -- think of our first great document, the declaration of ndependence. also, it is true that the great protections that the press now has came rather late. the first amendment was developed in a serious way around the time of the first world war that began. the freedom we enjoy today, to speak and to write, was not a big-ticket item in the supreme court until rather late.

>> well, it was a big-ticket item mostly because until the middle of the 20th century, it was not thought to bill of rights applied to the states. it was only a limitation on what the federal government could do, not a limitation on what the states could do. that is why we never had until the middle of the 20th century these cases about whether you can have a creche in the city square, a menorah, maybe a santa claus on top. we do not have any of those silly cases. it was only when the bill of rights was imposed upon the states that we begin to appen. a lot of the restrictions on speech that would be imposed by states would not have been thought to violate our bill of rights, maybe the states bill of rights, but not ours. >> i'm wondering at the time

that the structure of government was set up close to 200 years ago, what is it that the founding fathers had in mind when they thought about freedom and one definition advanced by john stuart mill i found very compelling, but i do not know whether that is whether they had it in mind. he spoke about absolute freedom of opinion and sentiment on all subjects, practical, speculative, scientific, or theological. i am wondering whether that is what madison and monroe had in mind at that time, or whether they had a more narrow vision of freedom. justice ginsburg? >> i would not call it narrow, but there are no absolute rights, even though you read the first amendment it sounds that way. it says, shall pass no law. of course, there are laws that congress can pass.

so the idea of an absolute right i do not know any right that does not have limitations. >> even at that time in the minds of the founders? >> i think so. >> explain why in the first amendment after listing the freedom of speech, the founding fathers found it necessary or wanted to add four crucially important words -- "or of the press." freedom of the press is what they were talking about. why did they add that phrase? why was it necessary, justice calia? >> it is a natural addition. it means the freedom to speak and to write. it was not referring to the institutional press, the guy running around with a fedora hat with a sticker that says "press," i am not sure that they need to refer to the institutional press in those days. the freedom to speak and to publish.

and that clause has been interpreted, not to get any special prerogatives to the institutional press. it gives prerogatives to anybody who has a xerox machine. >> what do you mean, institutional press cannot forgive me? what does that mean? > i mean those organizations whose business is writing and publishing -- nbc, cbs, you. >> i like that. >> one idea we did not take from england was the office of the ensor, who censored books, and that was part of putting in this protection of the press, and we have never had it in the united states government and office of he censor.

people in england and the ntinent think of verdi and having to bring his opera gloves. >> oh, you have to bring opera into it. >> was it understood that there ere limitations? >> yes, on speech and on oral speech and written speech come up with. i told you, libel laws were one thing. >> what about the press at the time? what were they thinking about at that time? >> i do not know that there were any special rules applicable to the press. the press did not have to get permission of a censor to do publish, but neither did anybody else. >> and some very important figures, like thomas jefferson. >> yes, indeed, and it was interesting that jefferson spoke

very highly of the press before he became president. but while he was president he spoke about it as a polluted area, and you cannot believe anything in new newspaper. >> one thing that epitomizes to me the importance of freedom of speech is in the ballot for america, the right to speak my ind out. that is america to me. >> i think if you had to pick -- and you probably should not have to -- but if you had to pick one freedom that is the most essential to the functioning of a democracy it has to be freedom of speech. because democracy means persuading one another and then ultimately voting and the majority rules. you cannot run such a system if there is muzzling of one point of view. so it is a fundamental freedom

in a democracy. much more necessary in a democracy than in any other system of government. i guess you can run an effective monarchy without freedom of speech. i do not think you can run an effective democracy without it. >> on this matter of press freedom, john adams wrote that mankind cannot now be governed without it, nor at present with it. and it seems that the idea of a free press has always been a problem for a succession of american presidents, but in a broader sense, do you feel we could have endured as a democracy from then till now without the free press? what do you think? >> i do not think so. i think the press played a tremendously important role as watchdog over what the government is doing and

keeps the government from getting too far out of line, because they will be in the limelight. so, yes, there are all kinds of excesses in the press, too, but we have to put up with that, i think, given the alternative. >> justice scalia, you want to comment on that? > i agree with that. >> it is hard to keep the freedom of the press because there are many people who do not like what the press is ublishing. there was a cartoon around -- just after the revolutionary war, and it shows a tory being arted off by the police, and the caption is, "liberty of speech to those who speak the speech of liberty." so the right to speak against

government, against what is the prevailing view of society, is remendously important. >> including the right to speak against democracy. do not forget that. some of the biggest fights are whether freedom of speech includes freedom to speak against freedom of speech or against democracy. it's flawsble that it does. we have rejected that view. communists were entitled to say this democratic system does not work, let's get rid of it. >> that took a good while for that idea, because there were laws against anarchy and edition. >> it takes us perhaps i think to the 1964 ruling of the supreme court on "the new york times" v. sullivan. you spoke about libel.

in this particular ruling, very specific regulation -- that is the wrong word -- but concepts are written into this ruling. would like to read what justice brennan has said because i think it deserves to be quoted as often as possible. "public discussion is a political duty, and it must be uninhibited, robust, and wide open and may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." you were mentioning this in a sense a moment ago. i am wondering, justice scalia, if this kind of an issue were brought before the court today, at that time, in 1964, i believe the court's ruling was a

unanimous vote and what would happen today? >> i do not recall whether it was unanimous. i'm not sure it was. >> it was, it was 9-0. but i stand to be corrected. >> even so it was wrong. the issue is not whether it is a good idea to let the institutional -- i'm sorry, to let anybody -- what the case holds is if you are in public figure and it is a matter of some doubt what it takes to become a public figure -- but certainly any politician is a public figure -- if you are a public figure, you cannot sue somebody for libel unless you can prove that effectively that the person knew it was a lie. so long as he heard from somebody, it makes it very difficult for a public figure to in a libel suit.

i think george washington, i think thomas jefferson, i think the framers would have been appalled at the notion that they could be libeled with impunity. when the supreme court came out with that decision, it was revising the constitution. it might be a good idea to set up a system that way and new york state could have revised its libel laws by popular vote to say, if you liable a public figure, it is ok, unless it is malicious. but new york state did not do that. it was nine lawyers who decided that is what the constitution ought to mean even though it had never meant that. that is the difference between ruth and me between a living constitution. she thinks that is all right and i did not. >> the situation did not exist

in 1787 or 1791, that the court confronted in "times" vs. ullivan. it was a sheriff who said he was libeled in an advertisement in "the new york times." it was in the midst of the civil rights era, where libel laws could be used as a way of squesming the people who were asserting their freedom. i think that "times" against sullivan is an issue of major ignificance. i will say that the lawyer who argued that case for "the new york times," a great constitutional law scholar, when

the story is told, we won, we won unanimously, the response was a little hesitant. he said that it is great for "the new york times," but what about all those -- i do not know -- papers that do not have high standards? but i think that "times" against sullivan is now well accepted, and i quite disagree with my colleague. i suspect that if the founding fathers were around to see what life was like in america in the 1960's they would have agreed with that. >> so you would have voted for it? >> god, yes, she would have oted for it. >> i will not say anything more about it, because this is a case

we are going to hear next week, i think. a state has passed a law that says thou shalt not make false tatements in a political campaign against any candidate, any ballot initiative, no false statements in the elections. the questions that the court will face is, is that statute prohibiting false statements in political campaigns -- is that constitutional? >> what are we going to expect on that? >> decision by the end of une. >> there is another decision. i don't remember where justice scalia was, but it was the alvarez case, the man who

lied about having the medal of honor. it was called something. >> something valor. >> stolen valor act. >> before we get into that, i ould like to take a moment now to remind our radio, television, and internet viewers and listener that this is "the kalb report," and i'm discussing freedom of the press with justices antonin scalia and ruth bader ginsburg. i want to point out that there is a new report out by an organization called reporters without borders, very highly regarded. the u.s. has experienced a profound erosion of press freedom in 2013, dropping 14 points to number 46 in global rankings. reporters are a little nervous these days, and they like to feel that they have friends.

i want to know in your judgment whether reporters are right in considering the supreme court today as a friend of the concept of freedom of the press. justice scalia? >> you want me to say no to that? [laughter] of course, everybody on the court believes in freedom of the press. there is some difference as to what that means, ok? as to whether it means, for example, that a member of the press, no matter what the national emergency may be, need not disclose his or her source. that is a question that has not come up before us, and i think it is very -- a very interesting and not necessarily -- not a question with a clear answer. so you can believe in freedom of the press and still have fun disagreeing. >> i would like to know how it was determined that that was --

that 46 was -- i was just thinking of the tradition in england, which holds to this very day, that -- the press can't report about ongoing trials. >> and they can libel public figures. >> since 1964 and the sullivan-"new york times" case, it's very difficult for anyone to libel a reporter on this issue. what i would like to get here is something that is current and very important to a lot of people in this country. i suspect the court is going to face a number of major decisions in the area of government surveillance, the national security agency, the nsa, it's newly disclosed activity, and

all of the problems of whistleblowing journalism. it is worth noting the "washington post" this week won a pulitzer prize for his reporting on edward snowden and the nsa leaks. i would like to start by asking you do you think they deserve the prize? justice ginsburg? >> that's a question the journalists in the audience are much better equipped to answer that i am. >> i don't read "the post" so i have no idea what they got the prize for. [laughter] >> i do, including the announcement at the bottom of the first page where it says what's coming up this week. it was announced as an event. >> they are very proud of that. i didn't get to it before, do you believe snowden is a whistleblower or traitor?

>> i don't -- that's not part of what i worry about, really. that is a policy question, not a legal question. i stay out of that stuff. >> it's also possible, is it not, that the question you raise could come before the court. >> that is possible. >> and we are not at liberty to preview. >> i appreciate that. let me ask the question from another angle. [laughter] >> he same question, you are to get the same answer. [laughter] >> but i'm going to try it anyway. [laughter] if somebody were to say to you that what i'm doing, you may

disagree with, i don't mean you personally, you may all disagree with, but i am doing this because i feel a moral obligation to do this. i feel deep in my heart my country is doing something wrong and i have an opportunity to change that. >> so did the germans who killed jews. is that the criteria? whether you honestly believe what you're doing is good? you have an obligation to form your conscience according to what is right. that's the issue. the issue is whether it's right, not whether you believe it. i'm sure hitler was very sincere. >> but the idea of it being right, you mean right according to the law as established? >> in the context you have what it, in the context, right according to -- >> some moral judgment. >> to the 10 commandments. [laughter] >> we brought up the point

before about hateful speech. there was a case some many years ago involving the town of skokie, illinois, where many holocaust survivors live and do not see party decided they were going to take that town for the demonstration. the case never came to the u.s. supreme court, but other federal courts said the demonstration is going to be peaceful, there will be police detection, we don't anticipate any violence. this group wants to march, we hate what they say, but we believe in their freedom to say it. >> but that doesn't mean it was good for them to say it or write for them to say it. it sometimes annoys me that when someone has made outrageous statements that are hateful, somebody says, sometimes the

press will say he's just exercising his first amendment rights. like they are muscles, the more you use them, they are the batter, and it doesn't matter what purpose you are using them for. you can be using your first amendment rights and it can be abominable you are using your first amendment rights. i will defend your right to use it, but i will not defend the appropriateness or manner in which you are using it now. that could be very wrong. >> justice scalia, praised by some and criticized by others for his decision the flagburning case. i imagine you thought the act itself was reprehensible. >> i would have sent that guy to jail if i was king. [laughter] >> but by your ruling, he had the right to burn the flag?

>> that's what the first amendment means. you have your right to express her contempt for the government. it doesn't mean by burning a symbol that meant so much to so many people that it was right, but he had the right to do it. >> justice scalia, at a recent event in brooklyn, your recorded as saying the supreme court should not be deciding matters of national security and you are quoted as saying "the supreme court does not note diddly about the nature of the threat -- >> did i say diddly? [laughter] >> it's truly stupid the court will be the last word on it." did you say that? >> i probably did. i certainly believe it. [laughter] >> i don't think we have a choice. the court doesn't decide whether to pick this area and straighten

it out today. there are petitions for review and if there is a law the government says was violated and the other side says no, the government can't engage in that kind of surveillance, if that comes to us, we can't run away and say we don't know much about that, so we won't decide it. >> this related to the fourth amendment, not the fifth amendment. the fourth amendment which prohibits unreasonable searches and seizures. the first time my court had a case involving wiretapping, it held the way the fourth amendment reads is the people shall be secure in their persons, houses, papers and effects. against unreasonable searches and seizures. and the court said quite raab early about commerce asians are

-- quite properly, conversations are not persons, houses, papers and effects. wiretapping may be a bad thing, states have laws against it, but does not violate the federal constitution, all right? about 20 years later, during the war in court, we did a 180 degree turn and said there are penumbras and emanations and conversations are covered by this vague right of privacy contained in the constitution. that is the living constitution, changing what the text said and what it meant. the consequence i was pointing out in that, the consequence of that is that now the institution of the government that is going to decide is -- this highly significant nsa question about what information can you get by wiretapping?

the institution that will survive that is the institution least qualified to decide. it will be my court. it is a question of balancing the emergency against the intrusion, when the emergency is high enough, you can have a higher intrusion. that's why we all get searched when we boarded airplane. that's a terrible intrusion. we know nothing about the degree of the risk will stop nothing at all. the executive knows, the congress knows, we don't know anything and we are going to be the one to decide that question. >> so what do we do in the case comes to us? before you answer that, i would like to remind everybody in the wiretapping case, the argument that wiretapping was not an unreasonable search or seizure, there was a very strong opinion

the other way by justice brandeis. if i were on that court, i would have voted the way he did. i would like to know how justice scalia distinguishes that kind of intrusion by the government. from the decision you made in the heat in missions case, the helicopter that was flying over roofs to test the level of heat because if it was of a certain heat, maybe marijuana plants were growing. helicopter never touched the roof, and yet you said that was a violation of the fourth amendment. that was an unreasonable -- >> because the people were not being secure in their houses from unreasonable search.

that is protected by the fourth amendment. >> you can wiretap someone in their house? >> if you have to break it to their house to wiretap, yes, but if you listen to conversations in the phone booth, intruding upon the right of privacy -- >> we don't have to worry about that anymore. there are no more phone booth. [laughter] >> you are right about that. >> we've gotten away from the fifth amendment, haven't we? >> let's stick with the fourth amendment. i don't know much about it and i acknowledge that up front, but my question is could data that is considered important by the media or by the government stored in a computer or stored in a cloud somewhere be considered effects?

>> that's very perceptive and i thought about that. >> if you thought about that, doesn't it follow that the u.s. government would not be able to justify its nsa surveillance program and therefore conceivably could be in violation of the constitution? no, because it's not absolute stop as ruth said, there are very few freedoms that are absolute. your person is protected by the fourth amendment on the but as i pointed out, when you board a plane, someone can pass his hands all over your body. that's a terrible intrusion, but given the danger it is guarding against, it's not an unreasonable intrusion. it can be the same thing with acquiring this data that is regarded as if that. that's why i say it's foolish to have us make the decision

because i don't know how serious the danger is in this nsa stuff. >> does the supreme court have the ability to pick up the phone and call somebody at the white house and say i have a question? >> absolutely not. >> absolutely not. [laughter] we are at the mercy of whatever people happen to bring to us. if they don't ring it to us, we don't know it. >> and we cannot make a decision based on something outside the record of the case. the parties and their lawyers have to know everything, have access to everything we will fact her into our decisions. i don't know how many times i would love to call so and so -- >> call your husband in a tax case? marty was one of the best tax lawyers and the country. >> but we can't do that because the parties aren't there.

those have access to the same information, so we are hemmed in by the record of the case and the court cannot resort to information the parties do not have. >> i want to ask you the same question i asked justice scalia about the data, the storage in computers and linking that to the word effects, and if that justifiably points to the effects, doesn't that follow justifiably that they government is in violation of the constitution by this government surveillance program? >> an argument could be made, certainly. but it is not an argument that either of us could answer. i think justice scalia said we can't answer it at all, but we will answer it if we have to. but we can get questions in the form that you pose them. we get a concrete case and not an abstract question.

what can the government do? >> i would answer that one. that is persons, houses, papers and effects, not conversations. >> you could not answer it in the abstract. >> certainly not. >> can we expect the supreme court to rule on the nsa issue? >> it depends. it will be in a federal district court in and go to the court of appeals. we do have the luxury of not having to decide rings and till they have been decided by other good minds, five judges in the federal trial courts and courts of appeals. >> and it's not our responsibility to shake of the executive and make sure they are doing what they're supposed to were shaping the congress.

that's not our job. our job is to prevent people from being harmed. if nobody is being harmed, we don't get into the matter. even if someone is harmed, and less he comes to us, we don't have any self starting powers. we are at the mercy of whoever wants to bring a case or whoever doesn't want to bring a case will stop ruth and i visited india one time a long time ago. the indian supreme court -- india has a bill of rights which says the apex court, their supreme court will assure the preservation of the liberty set forth in the bill of rights. that court interpreted that to mean that if they are sitting around on a sunday reading the bombay times and they see the police commissioner -- >> mumbai. [applause] >> i don't say that and i won't say mumbai.

we have an english word for it. they say the police officer is holding people without charge. that court will on its own summon the police commissioner to give an account of himself. our court cannot do that. it's only when people bring problems to us. but you can't do it because that's the way it's always been done or there is a rule? >> the constitution limits us to actual cases in controversy. there are courts around the world that do answer abstract general questions. constitutional courts have been set up, the constitutional council in france, that will preview a law if a certain number of deputies questioned the consistency of the bill with

the constitution. the council will look at the bill, just look at the words of the bill, decide whether it's compatible with the constitution, and if the council holds it isn't compatible with the constitution, then the bill never gets enacted. that kind of judicial preview is foreign to us. >> let's talk for a minute or so about televising hearings of the supreme court. other courts do permit television. why not the supreme court? justice scalia? >> when i first came on the court, i was in favor of it. i have long since changed my view on that. those who want to do it say they want to educate the american people.

if i really thought it would educate the american people, i would be in favor of it. indeed, if the american people watched our proceedings from gavel-to-gavel, they would be educated. they would come to realize that although now and then we do these sexy cases, should there be a right to abortion of a should there be a right to suicide, should there be a right to this or that, most of the time, we are not contemplating our naval, engaging in this broad, philosophical, ethical search. most of the time, we are doing real law. we are doing the internal revenue code, the bankruptcy code, really dull stuff. and nobody would ever again come up to me and say justice scalia, why do you have to be a lawyer to be on the supreme court question mark they think what we're doing is looking up at the sky and saying should this right or that right exists. they could guess that as well as i can. now, the problem is for every person who watches us from gavel-to-gavel, there will be

10,000 who will watch a 15 or 30 seconds takeout on the nightly news and i therein to you, that will not be characteristic of what we do. it will be man bites dog. so why should i participate in the miseducation of the american people? >> what about your feelings? >> there's another factor. if you are televising, everything is unfolding before the camera, if you are dealing with an appellate argument, if you would come to our chambers at the moment because we start sitting on monday, you would see cards with reefs and briefs and briefs. the oral argument in court is

fleeting. it's only 30 minutes a side. i don't know how many hours we have spent preparing, reading what had gone on in the case before they got to the supreme court, reading the briefs that the parties filed and then many friends of the court who want to be heard on questions of importance to them. so the notion that an appellate argument is a contest between lawyers and the better one will win is a false picture of what the appellate process is. >> so you would be, as justice scalia, opposed to televising? >> i think it's probably inevitable because there's going to be so much pressure for it and because other courts do it. but i would be very much concerned with mis-portraying what an appeal is.

it's much more important than the our total in court. >> in the couple of minutes we have left, i want to ask a question -- you have both been great buddies for a long time. when did you meet and what were the circumstances? >> he doesn't know. [laughter] >> go ahead, ruth. >> when did you meet? >> we were buddies on the d c circuit. >> that is when you met? >> i met him for the first time when he was giving a speech to some unit of the aba. must have been administrative section. it was on a case that had recently been decided by the d c circuit. it was about --

>> we were both academics. >> it was the vermont yankee case. he was against it and i was listening to him and this agreement the good part of what he said. but the way he said it in an absolutely captivating way. >> as you know, composer eric wang who is with us tonight has produced an opera called "scalia ginsburg." to beautiful music, you are both locked in a room and you're unable to get out unless you agree. scalia says, oh, ruth, -- can you read? the constitution says absolutely nothing about this, to which ginsburg replies, how many times must i tell you, dear mr. justice scalia, you are

searching in vain for a bright line solution but the beautiful thing about our constitution is that like our society, it can evolve. are you two ever going to agree on big issues and still maintain a friendship? >> we agree on a whole lot of stuff. ruth is really bad only on the knee-jerk stuff. [laughter] she is a really good textualists. where the text is there, she's terrific. she's obviously very smart and most cases, i think come a we are together. i think we are together in a lot of criminal defense cases, of holding the rights of the criminal defendant. ruth and i are quite frequently in dissent from the court's decision.