you can be a grade school teacher, a cdo, -- ceo, a community organizer, a tv producer, a sitcom writer, a novelist, and some of those may sound far fetched, but i have law school graduate friends who have done each of those things and even in this group, who left the profession all together, each credits law school and lawyering with a good chunk of their success. but not withstanding all the choices you will ultimately have, i federal reservantly hope -- fervently hope you will keep faith with the law, that you will keep on a legal path, and why do i say that? because there are so many people yet to serve. there are so many causes yet to champion. there is so much justice yet to achieve. and who better to achieve it than you? and why do i say that? because the power of your degree gives you a degree of power that few possess, fewer know how to use, and still fewer know how to

put to good purpose. you will have opportunities to improve your community and country that others can only dream of. and that is something to behold. especially at this moment of just starting out, at this moment of commencement. so here's an observation since i'm in northern california. with silicon valley just a stone's throw away, this university is one of the top feeders to that tech and start-up mecca. i'm told by the dean up to 25% of you may go work and counsel the great bay area entrepreneurs of our time, following in the footsteps of one of your alums larry. it does occur to me that each of you is in some ways like an individual mini start-up. you have yet to turn a penny of profit. but you really, really swear you

will have income soon. you don't even have a business license yet, but you claim to have a plan. you haven't provided any substantial good or service, but you are said to have much promise. and like any start-up worth its salt, you're celebrating with an over the top public launch. [laughter] preet: in this case, a gigantic outdoor greek theater. but perhaps most importantly you are surrounded by deeply supportive investors who believe in you and will trumpet to everyone they know that you will succeed. you can click for that. -- clap for that. [applause] preet: if i could pause on the silly analogy just for another second. you know, there are reasons for america's enchantment with the tech and start-up culture, and it does not, i think, have to do only with the gargantuan profit potential, though there is much ceg, vinny.

i think it has to do also with the spirit of unbridled optimism and daring, the spirit of energy and passion. it has to do, i think, also with the faith in possibility and attraction to the pioneering spirit. never mind that most new ventures fail. each silicon valley success story can be seen as another example of the enduring notion of the american dream. and that is something very special. but often i wish we had more of that optimistic and visionary spirit in our own legal community and in our own legal and government institutions. because the law needs risk takers, too. the law needs entrepreneurs, too. the law needs dreamers, too. and no matter what you decide to do in the law, i hope you find a way to inject some of that spirit, because an idealistic lawyer can not only achieve the

american dream but open up that dream to other people also, to the disenfranchised, to the downtrodden, to the discriminated against. you know, it's certainly impressive when someone figures out how to deliver advanced technology to your wrist, but what about when someone figures out how to deliver justice to your life? a driverless car? well, that seems downright magical, but don't ever underestimate the promise of your own profession, the noble profession you embark upon today, because the law practiced with hope and idealism can lift people up, too. it can inspire wonder, too. the law, if wielded well, can work a type of magic, too. you think the iphone is elegant? you think a tesla is beautiful? what about the truth inherent in the argument that separate but

equal is inherently unequal? [applause] preet: what about the argument that seeks to give every american the right to marry anyone he or she loves. [applause] preet: what is more elegant and beautiful than that? your commencement speakers last year were david buoys and ted olson. they and so many others who have fought battles for equality have done so much for the modern era than any other tech pioneer spawned by silicon valley. and so -- well? [applause] preet: and so the law has always had pioneers, too. but we need more. more pioneers for justice, pioneers for equality, pioneers

for fairness, and i hope you find ways to add yourselves to their ranks. and to do that, you must, from time to time, take heed of some of those watch words of silicon valley. embrace risk, think different, think big. and there is no one in a better position than you to make a difference. there is no one better situated to preserve liberty, promote equality, and prevent cruelty than the person who is genuinely dedicated to becoming both a master and a servant of the law. and sometimes all it takes is one person. i believe that to be true. one person, one lawyer armed with courage and a well-drafted complaint can bring a misbehaving industry to its knees. one lawyer, armed with a searching mind and an obsession for truth, can right a wrong. one lawyer, armed with an idea and a vision for justice, can plant the seeds for a long-lasting movement for reform. and one lawyer, motivated by

conscience, guided by principle, and empowered by training, can set an example for a generation of future lawyers. the thing to remember always is this -- the law can have great assist, but it needs help from human lawyers who are willing to help. the law is not self-actualizing. google may be developing a driverless car, but there will never be and can never be a lawyerless legal system. and that is as it should be. you know, a business plan is in the execution. a joke is in the telling. a sheet of music is in the playing. and so it is with a system of laws. now, there is probably some cynics somewhere who may think that when i suggested a moment ago that even one person can make a difference, that's just overblown rhetoric. that's just commencement cliche. i assure you it is not.

it's the truth and it happens all the time in ways big and small, and so i want to end with a short story, and it's a true story. it's about a woman named kathy watkins. kathy watkins was arrested on february 16, 1995 for the murder of a livery cab driver in the bronx, new york. she was convicted by the local district attorney's office along with several others. she got 25 years to life. but here's the thing. kathy watkins hadn't committed the crime. kathy watkins was innocent. she had always proclaimed her innocence, but no one had ever believed her. no one believed her, that is until in 2012 an investigator in my office, former nypd police officer john o'malley, happened to come across evidence that cast doubt on her conviction.

he was one person, and what a difference he made. there is no radio serial or hbo special about john o'malley and about that case, but he quickly took on the task of reinvestigating the murder. he didn't have to. it wasn't his case. and he had a thousand things on his plate already. but he studied the facts, he read the trial transcript, and he interviewed new witnesses. and on the strength of that reinvestigation, backed up by prosecutors from my office kathy watkins was released from prison in 2012, and her conviction formally vacated by a judge. 17 years later -- 17 years later -- she was finally free. and so one person can make a difference, but there is even another lesson to this story. the power of hope and possibility.

you see, kathy watkins, even though she did not belong there, had chosen to rise rather than to rot in prison. she had taken classes as an inmate through merrimount manhattan college, but she could only take a few per semester, so it took her 11 years to get her bachelor's degree in sociology. but she got it. she had done so well that she was named to the class speaker at the ripe old age of 41. and in 2009, before all these events transpired, she attended her own graduation ceremony behind prison walls, addressing fellow graduates who all wore prison garb under their gowns. and would you believe it if i told you that this wrongly convicted woman, this wrongly imprisoned woman, after 14 years of seeing every plea of innocence fall on deaf ears,

after fully three years before she had any hope of release that she delivered that day a message of optimism and possibility and hope? you know what she said? she said "even though these walls can restrict our physical movement, they cannot restrict our imagination, nor our connection to the outside world. oh -- world pured." you know what else she said? she said "one person can make a difference. let that difference start with you." three years later, a stranger named john o'malley proved her right. so i say to the class of 2015, don't let anyone ever tell you you can't dream, that you can't hope, that you can't change the world. don't take it from me, take it from kathy watkins. one person can make a difference.

let that difference start with you. thanks and congratulations. [ applause ] [captions copyright national cable satellite corp. 2014] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> the brookings institution here's tomorrow from suzanne google thought about challenges facing the u.n. and her role of advising the organization on global and international affairs. that is live at 1:30 p.m. eastern on c-span three. >> monday night on "the communicators," a discussion on

technology issues and patent legislation before congress. >> 97% of the people who are sued by patent trolls have to settle because they do not have the $3 million to defend themselves. 97% of them settle and an average of $300,000 to the patent troll. they are locked up under what is called an mba, a nondisclosure agreement -- nda, a nondisclosure agreement. >> the new congress seems excited to have legislation on the topic and we will speak to as many congressmen as possible to discuss the issues of what is the best way to allow entrepreneurs to defend products. any of the demand letters that currently exist would be problematic. >> it has to do with closing the

courthouse door to those who create and make it difficult for them to use the courts to enforce their property rights. that is the big divide. that is the hurdle we will have to overcome. >> monday night at 8:00 eastern on "the communicators" c-span2. >> and that would look at the supreme court and whether there should be changes to our operates. a group of law professors discusses the court room ban on cameras and whether terms should be limited. this is part of the national constitution society convention in washington. it is one hour and 45 minutes. >> everybody is here from the breakouts. so welcome to the program in

which we hope to end the afternoon with a bang and discussed whether the supreme court is a failure. [laughter] >> and if so, what can be done about it. this is being recorded by c-span so you may find it in any random hour of the day or night for the next five years. [laughter] linda: before introduce our distinguished panelists i have to go through my marching orders. one of which is introducing myself. i'm linda greenhouse. i teach at yale law school, a member of the acs board and are happy to be a member of the acs board because i view our mission as helping to grow and to sustain the next generation of progressive lawyers. and i have been delighted to see how many students there are and members of the lawyer chapters

so that's why we are -- that's why we are all here. but we have a diverse panel. not everybody is necessarily on the same page and that's a good thing. cell phones, please mention cell phones must be turned off, ok. done that. [laughter] linda: ok. we will have about 20, 25 minutes of q&a at the end, that is to say start in about 20 minutes past five and to be cards and you can use the cards will be collected. if audience members would like to tweet about the session or the national convention experience, the twitter handle, official hashtag is #acs15. and the social and is approved for cle credit. for more information you should consult the blue cle handout in your convention bag or the staff. ok. so we're going to take i hope a kind of outside the box response

to our topic of whether the supreme court is the failure and by the question we don't mean doctrinally, we mean structurally. we mean, we don't necessarily mean the problem the supreme court is that one justice decides every important case. we may agree that's problematic but that's life. but there are many things we can talk about in terms of the supreme court's institutional functioning, the nomination process, the confirmation process, various other aspects of the wavy justices -- way god justices -- wave justices -- way the justices collectively or individually approach their work. what i've done rather than ask people to give us a little piece

of the talk to start us off is i'm going to throw out the question to a very distinguished panelists, who i almost forgot to introduce. the question of, just to name one thing that they think indicates whether or not the court is a failure and what they would like to do about that and will have a discussion in the next person. so in the order in which they are going to speak, which is not the order in which they are sitting. so on the far right is larry kramer who is a former dean of stanford law school and he now runs the hewlett foundation in the bay area. to my left, which is not where you would usually find him seated is nelson from george mason law school. at the far left is the founding dean of the law school at uc irvine. and to his right is elizabeth who is the chief counsel of the constitutional accountability center. and justin driver on my immediate right from the university of chicago law

school. and so these are all very distinguished constitutional scholars and we are very lucky to have them here. so i'm going to start with larry. is the supreme court a failure and in what way, if so? what would you like to do about that? larry: i have a talk i give call ed why should you hate the supreme court, although it's too long for this. whether the supreme court is a failure depends on how you define success. from my perspective is different because it is way, way, way too much power. the amount of power that has been given is insane within the democratic -- linda: you wrote a whole book about that. larry: i did. one solution would be take away their power. since that would not be easy, for a variety of reasons, there

should be some balance for accountability on the other side. so there are independent provisions built into the constitution but we pile on to that and million more as though any attempt to make them sort of the heat to anything that happens outside the court is bad. i will talk about two of those just very quickly. one is the lack of transparency on the way the court operates is shocking and extreme and ridiculous. that cuts across the board whether you are talking about their ability to take i pay -- high paid junketts without having to disclose them to anybody. their ability to decide themselves on discipline and when they will and will not recuse themselves across the board. such as the lack of television coverage in the court which, of course, they oppose precisely because they really don't want too many people to see exactly what goes on, and on and on. so that would be one space. you can have a lot more

transparency in what the court does and how it operates which what i think change public perception into usable without in any way actually significant ly undermine implausible motions of judicial independence. because it is 50 will have this power, we put on the court, i hope those of justices out of their because this would be a little insulting. i'll preface by saying i wouldn't put myself on the court either but if you're going to give people this kind of power the fact of the matter is all the important cases the court decides, the ones we care about, and make it an important addition, literally by definition the long run's outcome. what's going to take a going to take a class when she done the legal analysis and did you go one way or the other, what's going to take it that last little bit? we used to put people on the court who have done things in life, had real experience and real accomplishment, who would then senators or governors or cabinet officials, who have had

responsibly for making decisions in the political route and see what the consequences were. and with that comes experience and wisdom. take people like that and remove them from the partisan context and they can bring that to bear on decisions where they have to do that last little bit. when we made the supreme court more important we shipped away the ability to put anybody on the court to whatever done anybody like that. in order to get on the court you have to basically have been nothing other than a technical legal expert and have not done anything got that. and of course the problem is that when the long runs out exactly what it is the people have to bring to bear also runs out and they have nothing else to bring so they fall back on what you would expect which is ideology and supposition. and that is what you see. i think the last justice from my perspective who had a kind of experience to bring to bear was justice o'connor. you saw that in the way that she decided cases.

very distinctly, whether you agreed with him or not. and so we need that kind of wisdom. i do not know how you do this because it is a cultural thing but what we do not need of a quarter people who have only ever been technical lawyers. particularly the ones we get i will never been anything other than technical lawyers -- once we get an outlet never been anything other than technical lawyers. people who have real experience in the world the court will afe fect. larry: one other measure -- linda: one other measure of that is what they said to clinton on potential nominations to ask the nominee if they never made it to the court were to the op-ed get into the "new york times." by that measure ruth ginsburg was publicized. i am not sure of anybody else.

but your points, larry, you make to w kinds of points. -- two kinds of points. one on the transparency with an undertone of ethics. and then on the work product and who do we put on the court. those are quite different points. and maybe we can discuss them separately. and less on the transparency point i think you made a couple of different points. that is an old issue. one can debate and it has been debated for many years. we can put that aside for the minute. you mentioned judicial ethics and junkets and things. is that a problem? the do disclose their finances like every other federal judge and they do hold themselves bound by the code of judicial

ethics. as i understand it the reason as a formal matter the code does not apply to the justices even though they abide by it is because who would judge the justices right? do others think that these are problems that indicate that the court is falling short? let's just look at the ethical part of the transparency. larry: again, just to be clear about it on. it is not so much that you pointed anything that would make a difference. it is more about the overall culture of the court and the sense that they have that we can do what we want or there is nobody that will watch what we do. when i take jacket aftershock it paid by whatever the sponsor -- drug it after drug it -- paid by whoever -- junket after junket paid by whoever.

it is a pervasive culture and not a particular rule in the narrow sense. linda: is there sort of a corrupt culture at the core? larry: it is not corruption, it is excessive independence, not having to worry or care. if you will not take away judicial supremacy which i will do, what can you do to give them some sense that they have to be accountable to the world outside that is what transparency means. >> under the think it is a corrupt culture. i think one of the great things about the federal judiciary is that really are there allegations of corruption. i think, though, that what larry says is right. the rules that apply to other federal justices should apply to supreme court justices. i think it is wrong to be the to just be justice to decide if they can recuse himself or herself. i think the procedure should be

changed so that others are making the decision. linda: who would make the decision? >> i think we could create a panel of federal court of appeals judges. i do not like the idea of being submitted to other justices because i worry then they will just afford to each other. -- defer to each other. it troubles me because there are cases were justices are participating even when there are serious questions and we all know it is just left to that justice to decide. related to that justices are often related to recuse themselves for fear of leaving the court with a 4-4 split. i see no reason why we cannot allow the three living former justices to sit in one justices are reduced. -- that would -- when justices are recused. linda: with your idea of an outside body, how would that

work? every case would be vetted? >> when there is a motion to recuse it should be submitted to somebody other than that justice. who that body as i am less interested in. i do not like the idea that a person is a judge of himself or herself. and we have had instances where there were serious motions to recuse and the justices said, no, i think i am going to be fair, i am going to stay here. when the spying case was decided in the early 70's, was a motion to reduce justice rehnquist because he participated in the issue when he was the assistant attorney general of the united states. he said he thought he could be fair. the instance in which justice that we went hunting with the vice president of them participated in a case where the vice president was involved. he said he can be fair. i can give other examples. it is better when there are questions to submit them to

somebody other than the justice. >> i do think it is possible to larry's comments side-by-side and think about the way that justices are ubiquitous figures at law schools and on c-span. and the one place that we do not see them is in their oral argument capacity. and i do find that distressing and difficult to explain. it seems like justices before they join the court are often attracted to the idea of televising the proceedings in the court and as you say, linda it is a shopworn argument that we need cameras in the courtroom but why hasn't it happened? it seems that the justices are going to go around and give talks and they should be seen in their capacity and i do not think that it is because people would be embarrassed about the proceedings of the court. i think that the justices asked good questions.

i do not think that they have anything to sort of fear by allowing cameras in the courtroom. if the argument is that it is about justices or the lawyers are going to play to the galley, i think that is something that already happens. i think it would be wise for the justices to let cameras in the courtroom. i do think there's a serious argument against it. >> can anybody think of an argument against that? it's -- that? the justices themselves make the argument that they are concerned or comments would be taken out of context or something like that but we have the audio of the comments and that doesn't

really seem to have that much. i would say it is perhaps the middleground between the argument against having cameras in the court is at least to have live audio of the argument. i think that would help especially we see in some cases very high profile cases of attempts -- and the marriage case spirit they released them earlier but still later that day. those who are members of the bar know that typing audio in the lawyers lounge if there's overflow for the supreme court lawyers bar section. it seems technologically easy for them to do that. i think it would be a very good middle ground for the court to adopt if it wants to make itself more transparent and i think that's only to the good of the american people can be more engaged and more knowledgeable about what the court is doing. >> i think the current system is actually more problematic in that from time to time the court will acknowledge that there's a major case and to put out the same day audio which puts the court in an odd position of identifying the important cases. let's assume every case they grant is important. >> what's the difference between hearing the audio immediately after the argument with c-span putting still photographs of the justices and lawyers and

watching it live two hours earlier? there is no distinction. >> for having to put to the john oliver dog reenactment, you know? [laughter] >> is that better? i don't know. the dogs are cute. >> i have a little bit different view on this. larry said one of the problems with the justices is as they think they can do anything they want. and i think to the extent that that's true it's a much worse form of corruption than any of the things we've been discussing about recusals and televising the proceedings. >> and do you agree agree to speak with you ought to agree to speak what do i agree speak what do you think there's a problem they can do anything they want? >> yes. >> all right. [laughter] >> now you are supposed to say which we do about it. >> yeah, i do have some ideas about that. and i could kind of give a little bit of background. i went and read all of the transcripts, the confirmation hearings of the last four justices.

and when they were asked what they thought the role of the judge was i found what they answered and you couldn't tell the difference between the answers if i went into judy -- if a read them, you could not tell the difference. they all said exactly the same thing, that the job of a judge is to apply the law to the facts. my personal views on anything have nothing to do with being a judge. it's a very constrained law. but the most striking cases where president obama's nominees, both of them were asked the president said it's all about your heart. that's a really important part of being a judge and that's why he picked you. and they said i don't agree with it. both of them said i don't agree with that. so they say and all of the senators seem to agree on both sides of the aisle that's what the job is supposed to do. i think it's not completely impossible that they could do that a lot more than they do now.

there was reason i saw a report, talk that elena kagan gave at a law school where she described the conferences. and she said the only two kinds of conferences. one are the ones about the big pages that make the front pages, -- page of the "new york times" and those conferences are very short. nobody discusses the case of all. it to say how they're going to vote, and i guess she said they all think if they explain to discuss the case with each other they just i know each other, so what's the point? but then she said to our long conferences and those are about the cases that nobody except lawyers who specialize in the field is paying attention to purchase it often does go on for quite a long time, and they spend their time trying to figure out what the right legal answer is and they don't come in with subtle views and they try to work it out. so my proposal would be that

congress do a few things to encourage more long conferences and fewer short conferences. and i have four proposals which i worked up with my colleague, regularly come and i regularly come and post it to conclusions without getting into the recent. first, congress can require all the opinions of the supreme court majority concurring and dissenting to be anonymous. and affect universal opinions. but that would include the concurrences and the dissent. second they could expand the jurisdiction of the court. right-wingers often go for the jurisdiction stripping ideas cut it down and let them do less. i would say let them do more. and there's a no longer just a -- no longer used statutory mechanism by which courts of appeal can certify a question of the supreme court. they think the courts, the lower

courts need more guidance. the supreme court doesn't like to be told which cases they should here so they never ever take and accept certification. so my proposal would be for every sort of grant on a federal question case they have to take one certify to some a court of appeals. that will give them more opportunity to try to deal with the issues at the lower courts actually think they need guidance on. the third thing i would do is take away their law clerks, they have a very pernicious effect on the culture there. >> that would break the hearts of the people -- [inaudible] [laughter] >> the law clerks have a pernicious influence. that is to the extent they serve a valuable function in doing research. that could be assigned to the office of library and of the court and results of the research within be shared with all the justices, not just little research projects aimed at a particular justice.

is clerks are librarians -- these clerks are librarians and they wouldn't be allowed to draft opinions at all. write their records suggest is to write their own opinion would have some of the beneficial effect of term limits because -- [laughter] if you actually had to do their own job we would have, we would have fewer justices who stayed in the saddle pass the time when they can no longer mount the horse. [laughter] and my last suggestion would be we bring back the circuit riding. that was from 100 years, they were required to do circuit riding by congress even though they hated it. they finally managed to get rid of it and bring it back. they have plenty of time during the summer. they can spend a little us time in the alps and more time sitting on some of the lower court doing real judicial work. and i think these are all marginal changes, very modest proposals. [laughter]

they won't give us the perfect court. that would only happen if they gave us eight more justice thomases. [laughter] >> so these are wonderful blue sky proposals that actually you, you and craig have an article in which i've assigned it to my students every spring in a course about the court. i went into the very end of the term so they have formed their own views and to present him them with yours and i think it's one of the favorite assigned readings of the whole semester. >> i'm often good for a laugh. [laughter] >> so anonymous, anonymous opinions. for some of the european courts, take a different approach but i think approach the same problem, is they don't allow dissenting opinions, right? so you could have anonymous opinions that would speak for

the entire court without concurring or dissenting opinions. have you e writing a new article about that? >> no. i wouldn't do that. i understand the european judicial culture is quite different from ours. i actually think dissenting and concurring opinions can serve a valuable purpose. partly disciplining the majority by presenting competing arguments, partly by informing the bar about disagreements within the court. what i think making them anonymous would do, consisting --insisting upon anonymity would curtail a lot of the showboating. you know, many opinions nowadays are not written for lawyers to get written for "the new york times," written for casebook editors, and there's a lot of stuff in my view, just doesn't belong in judicial opinions in many of the opinions of the justices. and that's not partisan or an

ideological thing. anyone who follows the court at all knows know who i'm talking on both sides of the ideological divide. >> so the dissenting and concurring opinions would also be unanimous? >> yes. they would be anonymous, right. >> does anybody have any reaction to that? >> i think that, i think having authored opinions is important because if we had anonymous opinions i think would make the transparency problem that larry mentioned perhaps even more pronounced. because i think it's important to be able to say justice scalia authored this opinion and it is in contrast to these the other thing is that justice scalia has authored or coined. i think that's an important part of precedent and also allowing

the public to hold justices accountable for it they deviate from precedent. and from their own stated views before. so i think that nothing to do that would be harmful. >> i think that was larry's point. how does the public hold them accountable? where is the accountability? it's like tenure. >> i'm not saying they are necessarily very sensitive to public outcry but i think if one does take seriously one's role as a jurist you want to be seen as principled and then not. if you just sort of willy-nilly decide according to your particular preferences as to the outcome indicated that i think they would be a sufficient outcry as we've seen cases where i think it's been important to hold justices and say, you voted this weight in this, and you should vote this way in obamacare, and you should do

that before you get if you don't then maybe it's motivated by politics. that is as opposed to a principled statement of the law. >> if i could just respond. ultimately, the way to hold the supreme court accountable is through presidential elections and the senatorial elections. who we elect the for president in 2016, especially if there are two terms,come is likely to fill for vacancies on the supreme court. there should be no issue in the 2016 presidential election more important than supreme court -- >> i got to say, that statement which is sort of true and it's got a lot, it's insane, right? something has gone seriously wrong with your democracy when the statement that is made is what we really need to worry about when we choose a president and our members of congress is who we are going to put on the supreme court. that is just, this is not critical of you because i think it's a good statement and it's a really clear statement of what the core problem is. i mean, i would get rid of the law clerks for exactly the reason that you mentioned. what do you have to make them -- accountability, the court is conscious of its own south

--the core is conscious of where we've set those limits is so far out there that they could go really far. so the question is what are the devices you can have to reproduce some symbols of modesty with respect to the views as compared to the use of us if we disagree with them? and so as i said i don't think that's incorrect but it is just what kind of democracy is that like, what kind of unaccountable branch do we have here because our democracy is great except for things that are important. those things have to give to the oligarchy and that seems crazy to me. larry: the question is are we as society better off having an institution like the supreme court and the federal judiciary largely insulated from accountability to define the meaning of the precious rights and the constitution? while i am critical of the history us to quickly as a society are better off with that kind of institution. >> we have debated this a lot.

we are not better off and we didn't have that until very recently and they have not -- actually what always amazes me is the progressive audience should hold these views so much more strongly than conservative ones. the cross -- because across american history, the court has been a reactionary institution far more often and in whatever ways than anything else has ever been. >> when i think of the people i have represented throughout my career, a homeless man before the supreme court, the guantanamo detainees, to say that we are not good have the courts available, when was the last time a state legislature adopted a law? >> where are you living, they are doing this all the time now? this delusional capture that a brief and very exceptional period of history has put over

the whole of american history. all of the progressive reforms and criminal justice that took place both in the run-up to the 1950's in the 1960's, and there were quite a few of them. we tend to only focus on the things the supreme court did without paying attention to the parole. the supreme court does that. you have to really do take the long view and not say to the people that you represent, you were a lawyer during that period , but if you have to look at the course of american history, it is really hard to justify the court is a progressive institution. in my view, i don't care in one way or another. i actually believe in american democracy. larry: i think it has been a

pernicious development that the justices have felt compelled to stick with their own personal presence. it used to be that the -- precedence. it used to be that the precedence was with the court and often times, very commonly, as a court decided an issue, the justices who were in dissent simply accepted that precedent and the president of the court. in recent decades, we have seen an increase in this idea that each justice has to be consistent rum case to case. linda: [indiscernible] larry: that's right, and that contributes to the court behaving less like a court. people can change their opinion for political reasons, and people do that anyway. there has not been a justice in modern times that has not been able to hire a law clerk who

does not have this. >> i agree with nelson on the idea that justices should not here -- should not change their mind, it seems to cause them great pain to say that they changed their minds. and then they have to offer elaborate explanations as to vote against what they're doing. i think it would be better if people got away from that and if they could explain as to what would have led them to change their mind, that would be advantageous. i actually think that one of the way we hold justices accountable is to have them sign their names to the opinions themselves. we can identify someone who writes their opinion in 1896 or someone who wrote an infamous opinion on behalf of the supreme court. i think it is helpful to

identify a particular justice, and i am not sure if it is actually possible to have anonymous opinions anymore based on the sophistication of computer databases and certainly knowing who wrote the opinion. that gets rid of the law clerks problem, right? it was not all that long ago when i was a law clerk, but i think locke irks -- think law clerks or at least capable of not so much the drafting of opinions but instead being of the voice of a younger generation. many justices are in their 70's and 80's and many cases come before the court involving technological issues and i think it is incredibly value for the justices to have someone in their chamber where they can have someone to talk to. so it would be very important to keep them, i think.

>> it would be a funny and hilarious election process for people to bring that to bear. i've got a lot of students at stanford who i would say why don't you pick them can afford them about technology come on whatever the issue this. law student who did really well in law school -- i probably should not have been a clerk either. linda: your mention of the age of the justices and the need or the utility of bringing young voices into their chambers of course raises the whole topic of life tenure. so i think there's a lot to discuss about life tenure. i would just throw it out and see would like to get rid of it? >> i would. i favor 18 year non-renewable term limits for supreme court justice. in part it's life expectancy thankfully is a longer than it was in 1787. clarence thomas was 43 when confirmed to the court in 1990 and i don't want to sound ideological, but elena kagan and

john roberts were both 51 who confirmed. imagine that these three justices state until they are 90. the age of justice john paul stevens step down. -- stevens when he stepped down. that's too much power to exercise by a single person for too long a period of time. also too much and now turns on the action of history. richard nixon had four vacancies in his first two years as president, jimmy carter had no vacancies in his four years as president. 18 year non-renewal terms would mean every president would have a vacancy every two years but i think that would be far better. linda: does anyone want to take that on? >> i don't have any objections to term limits, 18 might be too long two might be better. larry: you could have rotating circuit judges serving on the supreme court for two years at up time. >> i think i am opposed to term

limits and here are arguments against them. one is the constitution of the united states. article three, section one which talks about the justices assuming that we would be able to have a constitutional amendment, which i think would he required to bring that about which i think would be incredibly unlikely. but i think the cost of that for the supreme court justices -- if there is turnover every two years, that would have the justices to have even greater incentive to have a greater argument of hearing a case or not hearing a case. some of our most distinguished justices served for more than 30 years. think about chief justice john marshall who wrote some rather important opinions that shape our constitutional universal well after he had been on the court for 18 years.

i think that would also be true for all of her wendell holmes. -- oliver wendell holmes. i do think it incentivizes justices to think about what they are going to do after they leave the court. that seems like a mistake to me. earl warren who was the attorney general in california during the internment of the japanese-americans during world war ii, he later joined the supreme court, and he was able to vote the way that he did because he did not have to think about the next election or what was going to come after leaving the court, so that is to say that there is a real virtue on having people go to court and knowing that that is the last position they are ever going to hold in their professional lives.

>> and they say would require a constitutional amendment. i'm skeptical. i think it would require a constitutional amendment but here i may disagree with justin. when rick perry ran for -- and not worry about the court veering too far away, and then the question is, i don't inc. a justice would have too much trouble finding a job after stepping off of the court, that the confirmation process would have to change obviously, but it obviously would if it was every two years. that would bring the stakes down

for any appointment. linda: i think one question to justin's concern is about with regular turnover, there wouldn't be such an incentive to put the very young justices on the court, so i think we could make an argument that the framers view was that service on the supreme court would be kind of a capstone and not something that would come early in somebody's legal career. we want to talk a little bit more about this, because people may not be completely up on the various proposals of that are circulating. we will leave aside that two years, but looking at the 18 years, there is at least an argument that could be done without a constitutional amendment if somebody got life

tenure on the supreme court, but the actual active job of serving and working day today as a justice -- day to day as a justice would be for the nine most junior people of the group? >> they say would require a constitutional amendment. i'm skeptical. i think it would require a constitutional amendment but here i may disagree with justin. when rick perry ran for president he proposed just what i have suggested, 18 nonrenewable positions. maybe it becomes more plausible. i've spoken to a lot of audiences about this and it's interesting, on the rare occasion i get interrupted with applause, it's proposing 18 year non-renewable limits so i think it's -- [applause] i didn't do that on purpose last night but i

-- i did not do that on purpose. but it would take time to build that support but i don't think it is a possibility here -- an in possibility here -- an impossibility. >> you mentioned you were concerned about the confirmation process in the hearings into whether i guess people who support the 18 year term is that, that would mean every president would get two nominees. so that they would avoid that kind of interest that problem that fate would befall upon the lucky president of the unlucky president like jimmy carter who had none. so would be an expectation of regularity that might lower the temperature and lower the stakes

somewhat in the confirmation process. is about something that appeals to you? larry: well, lowering that appeals to me. i think the high temperatures that occur at supreme court confirmation hearings are something fairly will probably be contingent on the fact that we are somewhat looking at a divided court. that is a more important factor in driving these things. >> i am not sure it would lower the temperature at all, because part of what raises the temperature is the fact that these very high profile, very important cases gets to the court in the first place, which goes against larry thinking that this is a bad thing in his initial premise. i am not entirely sure what we get out of the term limits.

i think a perfect example of counterpoint to the idea that justices who spend a longer time on the bench and don't do their best work or they don't feed into current society, justice ginsburg is the notorious big at the end of the year, she's getting tattoos on her arm. [laughter] >> we have had some of the best defense -- descent -- dissetnts. a lot of these things come by, some of the accident of the cases come up with you have which justices.

you have this thought experiment what would happen if we had the 18 year term limits. it comes to conclusion that ruled the way would've gone the other way. >> what you get get is this. i will say he i can state with some sense, the term i clerked the last term of chief justice burger, six of the justice or in her 80s. i would say they were not all there. it was not a law clerk stepped in and get what we want a. we didn't. in a way that might've been better. what we did is we would extrapolate from the past eventually thought they would want to go and it was not sustainable to say i don't want to go there. and you do see this, you see a lot of the elderly justices become exaggerated version of their younger selves in their later years. so again you can't do this by anecdote exactly but on balance think about the important things that you might want to construct we own lives. who do you want? do you want somebody with the ability who has -- whose

abilities are unquestionably declining or people who are at the peak of their powers? there is no reason this should be different. >> one part of that has to be the lochner court. those 40 years were a terrible failure that did damage to people and society, and in large part that was because the justices remained on the court for far too long. i think the advantage of the 18 year nonrenewable term limits is a same we will have new justices come on the court but still give 18 years, which is a long time to make a mark on the constitution. >> now is that year of clerking is that what gave you the view that judicial supremacy is overrated? >> absolutely. i worked for judge friendly the

year before it was great, and that i clerked at supreme court and it was terrible, i was angry for the entire year. some of it was the aging issues and none of it had to do with the ideological stuff. it was suddenly sitting inside of that bubble and realizing what an incredible bubble you were in. you have the complete awareness of real consequences and i didn't come out of the court. it took me a long time to get to the views that i got to, but nelson was one year behind me and we had this argument at the time, and i was a staunch defender of judicial supremacy at the time and he was not back then. it took a long time to come around and a lot of it was because of the kinds of arguments that erwin makes.

there is a really hard judgment to realize there are benefits of the unaccountability and the question is, how much do we need? we have gone away farther than we need to, in my view. there is some notion that the court is not anything other than the 800 pound gorilla than what it is, and we do not need to be quite so afraid of doing things then getting a better and making them more aware and so forth. >> how old was judge friendly when you clerked for him? >> he was 82. he was just extraordinary, one of the smartest human beings that i have ever met. he had begun to decline, but he was just at such an amazingly high level. i used to think it must have

been amazing to see him when he was in his 40's and 50's. >> he decided not to stay on the court until his powers were completely gone. >> yeah. linda: i have a some of your recent work, your view is that the court hasn't necessarily been [indiscernible] enough. i want to give you a chance to talk a little bit about that. >> sure. i think that the supreme court has fallen down in vindicating the constitutional rights of marginalized decisions. some people would say that is because the supreme court is fundamentally indic -- and mentally incapable of defending those rights, and that it is just too fragile and institution.

when it comes to vindicating those rights, it makes it much worse. it has to come to the rescue of marginalized groups, and you hear this all the time with the respect to roe versus wade and furman versus georgia, the capital punishment, and even brown would say that there is a seventh grade conception of the court coming to the rescue of racial minorities and that is an accurate -- in accurate. -- inaccurate. i think that oversimplifies brown, the north wasn't quite the land of racial enlightenment that we sometimes pretend, but the court does have the capacity to vindicate rights, even for very unpopular groups. if you think about kennedy v. louisiana from 2008, decision involving capital punishment for individuals who rape children,

the court says that's unconstitutional, can't do it. >> this is based on a mistake in fact right -- mistaken fact right? >> yes. if you polled people they would say it is not a great surprise that the majority of them with a yes, you can affect capital punishment on those sorts of people. and more than 80% of people believe there should be a law against flagburning. nevertheless, the supreme court steps in and in validates those measures -- in validates -- invalidtesates. those measures. the supreme court hasn't done a good enough job because it lacked the capacity to think and that is because of the personnel on the court.

one of the appointments from oral war and, which was one of the beginnings of the modern supreme court in 1963 through justice alito's nomination in 2006, there were 23 justices confirmed to the supreme court 17 of those justices were appointed by republicans, only six were appointed by democrats. of the 17, 10 of those appointments happened in a row. and so when one thinks about what the supreme court is capable of doing i think it is a mistake to only look at a sort of history and not think about what the supreme court could do going forward. i do really worry about people who are in law school today constantly hearing to not file a lawsuit and instead go to the public square, i am encouraging people not to go to the statehouse. that there are some people for whom going to the courthouse is

the only option. that is where the court has stepped in and successfully vindicated rights, and there is no reason to think that it is not an incredibly powerful institution. citizens united is a perfect example. i understand he regret that power, but it is a powerful institution. the question is, what is that power going to be used for? linda: nelson, you mentioned when you were talking about the decision about acting, just to play off of what justin was saying, is it -- what is the court? if you had to identify? larry: i guess a kind of monster. [laughter] larry: it really is two courts. i think what justin -- justice kagan said at this law school talk is that there are two courts, the political court and the legal court.

and for a variety of reasons the legal court is smaller than i think it should be, and the political court is much bigger than i think it should be. maybe if they had different justices up there in accordance with my view of how to interpret the constitution, i would feel differently, and would be fine to have a political court, that i don't think so. >> i strongly disagree. i think the assumption of that statement is such a thing as a law apart from value choices. it is just impossible. when you are dealing with the constitution and dealing with a document written in an open textual language, what is cruel and unusual punishment? what is due process of the law? there is no way to decide that without a value judgments. there are is also the idea that

no rights are absolute. there was no protection for sensitive ideas, there is no balancing what we call them in all levels of scrutiny. even with a rational basis review, the court will decide if there is legitimate government issues -- interest. so the court has to ask if there is a legitimate reason for gays and lesbians from marrying, and the answer is there is no legitimate government reason. but still -- [applause] >> my point is that all of these are legal questions, all of them require a value choice. there is no way of adding value new full judgment. there is a mistake to say there is two courts, one political and one legal, because it is all legal, and it all involves value choices. linda: there is social science research that indicates that the

public understands that, so that although there is a political culture that forces judicial nominees to say, as nelson said, my job as a supreme court justice is to apply the laws and the facts, the public knows this is not true and they are ok with that. you can hold two thoughts. in a way, the public seems to want judicial nominees to say that, and let's assume they would be not required to say that, but the public understands that judging is a value inflected task. elizabeth, i have not given you enough chance to weigh in here. elizabeth: i don't know if the public is necessarily ok with the court acting like just another political entity. linda: that is not what i was saying. elizabeth: yeah, but i think the justices have thoughts and

experiences and so forth, and maybe getting an increase diversity -- and increased diversity of experience with more public defenders and fewer prosecutors and more folks who have been in public interest and not just folks who have been in law firms helps. i think the idea of the court as johnston at mentioned, as a protector of rights, is something that we shouldn't overlook. the idea that you can achieve things in the court and through this political process is incredibly important. today is the anniversary of loving v. virginia. i think this is really important to note that even if the court is not necessarily leading on these things, but certainly

there are cases that will not, without the court telling them, recognize these constitutional rights. i think that is a really important role of the court as justin mentioned. >> what is bizarre is to have the impossibility of having any nuance within this debate, and i don't mean this debate, but the debate that we are having in society at large. on the other hand, there is a big difference in the relative mix in a when you take a case and when you decide based on that, because there are also legal considerations. i think 20 years ago, 30 years ago, 40 years ago, it would've been a strange time. so what tells you is that something has gone seriously wrong, and the thing that has gone wrong is that we seem incapable of saying that the court should have a role, but now we enable them to do anything they want.

at the time that brown was decided, there was no idea of judicial supremacy that had been established yet, and there was even a pushback at the time. what made this work is that the court did not have a role, it was the legislation that you would get in the mid-60's with the civil rights act. it was a popular political movement that had nothing to do with the court. to be engaged in the political sites is important -- so the question is, we don't have to say that the court is going to be our protector of rights, and no matter what you do, we have to protect their authority because someday we hope that maybe they will do something we like. i remember robert post join me when the court decided, what is it called, pierce and myers, and they said, seed, we are not

always conservative, here is a liberal one. again, that will go both ways. this is not whether you are a liberal or a conservative to be at so the question is, can we have a system what we -- where we had throughout the majority of american history, and can we have a device in which we can pushback? -- push back? who did this in american history, jefferson jackson lincoln. it is only in the last 50 years where we have moved to the position where judicial independence means that any of those decisions are clearly constitutional and any of those devices that are such a threat is something that we cannot do it. we need to be balance and realize that the pushback can come from both ways.

before brown, there was a citizens united, and what about the day after bush beat gore when gore came out -- bush v. gore when gore came out and said that he had lost, this would not have happened before. so it is that dynamic that we need to be aware of. so we do need some devices. i think it is good to talk about what they are. but we have moved in our public debate so far from that. right? honestly in my view, it is depressing sometimes, but my fans are well federer and newt gingrich. it is a left-right thing but when you have one person on one side and one on the other, something is wrong. [laughter] >> but when challenging judicial supremacy is so fringe-y. something is wrong.

>> we should not leave this story off in the 1930's, we have to think about the 1950's and brown, and there was pushback, as you say, and there was the communist manifesto where a group of southern congressman got together and offer their own constitutional interpretation. it was an incredibly legalistic document and one can use that to stand for the proposition that judicial supremacy may not have been so widespread, but that makes a lot of people uncomfortable when they take the constitution in their own hands. i think the notion of judicial supremacy was also brought up with the southern manifesto and when they responded and said who are you all, your constitution does not challenge the supreme court and eisenhower said something to that effect.

many newspapers from around the country said the same thing. it is not surprising that given our motto: -- our modern historic moment where we say, i don't care what the supreme court says, i am going to go ahead and do it. >> that was true when jefferson was president as well. there has always this bend this debate -- there has always been this debate. so pick who your conservatives are, but the progressive position was always in favor of democratic authority, and after brown, it takes time. the left slips and the right doesn't. so the debate flips, and suddenly for the first time in the 60's, the debate questions how you interpret the constitution. the stakes are so high, and that was the new solution.

the dominant position shifted because the left went from what my perspective is was a shortsighted action and now we have an agreement from left to right, and now the court should tell us what our rights are and what the constitution should mean, and now we have to wait for someone to die or retire or get tired of the job or amend the constitution or undo what they've done. linda: what seems to me on the various jurisdictions there seems to be liberals who wanted various ideas of standing and all of a sudden, basically any plaintiff, like the plaintiffs in king v. burwell were as sketchy as they come. [laughter] linda: let's not question their standing, let's not question the

standing of abigail fisher, and the prongs of the standing doctorate -- doctrine. >> there you have to separate the litigants from the court decision to i don't understand why the university of texas didn't question abigail fisher's standing. i don't know why it didn't happen in king v. burwell. in terms of the supreme court, i just want to be clear. think of the last standing case from the roberts court, it was clapper v. amnesty international, and it was 5-4 that no one was willing to challenge federal law giving the national security agency to intercept communication with foreign countries.

nsa doesn't tell people when it is intercepting communication, so there is a terrible decision when it comes to standing, and it is very restrictive, and that is the most recent one. linda: when some of you all were clerking, the court took about as -- took about twice as many cases or even more. some of the things i have hearing, it sounds like they are taking too many cases. what do you think? is the court taking too much? >> no, i think they are not taking enough cases, they are just taking the wrong types of cases. there are lots of important decisions that need to be resolved. a professor did a study of the court's granting practices, and what he found is there seems to have been a cultural shift on the court away from an obligation to resolve circuit

splits. they can always find some way of saying well, this is not a true split, and if i recall correctly, he said the justice white was the last justice on the court who really took that obligation to clarify the law where the circuit split would occur and he would take that obligation seriously. he suggests with a lot of data that that is pretty much gone now. i do think that is unfortunate. they should take more cases that actually involved more law and less politics without suggesting that you can have a purer version of either one ever. >> i don't think it that -- that it matters. there are technical legal cases that need to be resolved and they have that expertise both as judges and with their law clerks. linda: but you want to get rid of the law clerks?

>> well for any reason, because it is the second batch but whether there is 80 cases or 150 cases, there are four or five that makes us debate this, that is why we are here, that is what we care about. so i don't think you are going to affect the fact that there are these moments of issue where the supreme court has assumed and always has in its role of resolving issues and i don't think much would change from 75 to 150. larry: i agree it would not change much, it would be a marginal change. linda: but you think every circuit split would be -- larry: i think it would be impossible, but i would point out that there was a time when the supreme court decided hundreds of cases every year with no law clerks. linda: and with no opinions. larry: but they decided the

cases though. they decided the cases. they were acting like judges. that is not an impossible thing for them to do. linda: are there any kinds of cases that the court is ducking or failing to take note of that they should take? larry: second amendment cases. [laughter] larry: they recently denied cert in a dissent from justice thomas and justice scalia. linda: anybody else? >> every time there is a constant, there is a case where there is a real circuit split that requires a solution, and then it is denied. this year, the court had oral arguments in 68 cases. before that it was 65, which was

the smallest number in any in my lifetime. in the 1980's, the court was deciding 160 cases a year. i think there are cases where there are splits among the circuit, and the justices are just not taking them. i think the pernicious consequence of a smaller docket is that the opinions increase and i don't think that has led to better analysis or better opinions. elizabeth: in defense of -- there was criticism about opinions may be not being written for lawyers, but i think it is interesting and in long opinions, that is one of the rare opinions where we do have some transparency from the court for the public. and if that is the way where the public generally gives information for what the supreme court is doing, i get is a way that is both interesting and

understanding for the public. i think that would be a good thing. i think there are cases involving criminal defendants that the court is not necessarily taking, and i don't think that is necessarily because they are not interested. i remember the day that the court granted the case about the destruction of fish and whether that amounted to evidence destruction, and so they denied the position that there was a circuit split on whether you can have a nonunanimous jury sentence a person to life with hard labor. i think that is a clear constitutional violation and i wish the court would have taken that. i think the court to not -- does not take these because they are not sexy and there is not interest behind them, but they have incredible constitutional value. >> one area that i would identify as involving cases that the court should take more of that the court seems to be

reluctant to take on would be in the context of student rights in elementary and secondary school contexts. the court has not heard any of these in the last six terms during the roberts court. one involved a strip search and the fourth amendment and one involving students beast -- student speech. it seems not to want to get involved and there are a lot of discussions about how the supreme court is ill-equipped to get involved in this arena but i think they shy away because some of the cases are incredibly contentious. when we think about our schools, we think about who we are as a nation. but i think the effort to stay out of that is misguided. the supreme court should be able

to deal with these cases effectively. linda: can you give me examples of cases that are being denied in the area? >> one of the major issues in the area that the circuit courts are at odds about is speech that happens outside of the school context. on a home computer, say, or in some other way that ultimately comes back into the school. so that does not fit into the traditional docket category, so that is one of the major issues. there is a case involving religious speech by students, about homosexuality, and these are really difficult cases, but they are common in the circuit courts as well. so the court seems to not want to get involved. there was a case the court denied this term involving students wearing the american flag rule in the ninth circuit,

and being told that was impermissible. the context was on the day of cinco de mayo and this was seen as a sign of rebellion and maybe even -- so there was a very decisive kind of case -- that was a very decisive case in the lower courts. but the supreme court would not step in and get involved in this area. >> i have no opinion on this. i don't. this is one of those areas where i don't think i know enough to really say. linda: you had mentioned court stripping as a valid way of constraining the court if the public so desires. the most recent occasion but i can think of for that was when some people in congress got concerned that the court relied too much on "foreign law."

there was a house resolution that was passed, i think not with the expectation of a result of a serious piece of legislation, but as an expressive protest that the court and any justice or judge who decided "foreign law" should be impeached. so it has kind of come down to that. but what about court stripping as a constraining a mechanism? >> what would stop congress from adopting an unconstitutional law, even a blatantly unconstitutional law and preventing the supreme court or even the lower courts from reviewing it? if we do that, then we have lost the supreme court that marbury v. madison created. you talked about the possibility

of budget cutting, and if the kansas supreme court decides in a particular way that the if anything is a violation of the separation of powers, it has to be that. >> i am not calling you simpleminded, i hate it when people do that, but this is a way of thinking about these matters. again, the idea with these devices is once it israel's stick, you sell them, because the court is acutely aware -- and once it happens you have them, because the court is acutely aware of it. it is actually an 800 pound gorilla in politics. they play a judicial role in a judicial way, but there is a difference between -- i had a

talk with justice buyer. it was clear that he took pride, with pride in it, and that struck me that, yes, we want your independent judgment,, so the way democratic politics actually works is these things become the point of engagement where these issues are fleshed out. when i think about the manifesto, you did not end wrong. it provided the ground where we had the public engagement that produced along with a lot of political activity the civil rights act of 1964, and that was so much better and such a better solution, and you do not get that when the court is deemed to be a shutter on politics. in never really completely shuts it off, but the way it works, it is not just whether or not they

agree or disagree with the outcomes, it is that they feel entitled to disagree. i treat my boss differently when i disagree with him or her that how i treat my employees when i disagree with them. this will affect the way things operate. we have got some reasonable responses, the marshall accord, it pulled back, and probably to the benefit of the country pulled back in the introduction of all of these kinds of bills so it is not the ideal way of doing it. i think the europeans have better ways. this is just what our contribution is. when our constitution was written, they put strong issue in there, the english common law

not being able to come in and saying, he is guilty, i want him convicted. so the term limits, super majorities, there are devices you can use. these are the ones you can have. i think i would say that i would rather have them than nothing, because if you have nothing, then you have discord. >> i went to pick up on what larry said. part of your comments reflected that things are actually kind of working now. we do have these push back from the other branches, and we have when congress does not like what the supreme court has done, there is a better position. it helps the law. we have the president able to say after citizens united to the american people in the state of the union address this decision has deleterious effects, and it is a problem, and he is speaking to the american people in the

way that he is empowered and entitled to do so, so i think when i think about this question about whether or not the court is a failure or not, part of it is self-interested. i have devoted my career to litigating in this. if i thought it was a failure, i might not just get out of bed in the morning. in many ways, it is not a failure, and part of that is because it is the independent judiciary that our founders put in place instead of some of the english model. it was not as independent. and legitimacy of the institution is reflected in the fact that even when they disagree with it, they say i disagree with the decision. i am going to stand by it, and in some ways, that is an institutional success, i would say, when you are looking at it independent judiciary.

and acting with the law and not just politics, no one has said this more than chief justice roberts, saying he does not want the courts to be just another political entity. i think we have a lot of instances, even in the roberts court era when that was not true. reaching out to something that they have to decide, and this is another major test, when you have scholars from across the ideological spectrum saying there is no reason to rule for the challengers, that is certainly a question of whether they will follow law or politics and i think that is selling to watch to see if the court is a failure, but i think that would be a voice of optimism to say it is not. we may disagree with a lot, but i think institutionally it is not a failure. looking at the constitution and individual rights.

>> our conversation has brought quite a few good questions, so maybe i will turn to those in our last 15 minutes or so. one question is are there lessons or reforms from state supreme court's that could inform the federal supreme court? >> i will give an example. many of states have a merit system for their justices, but i think any president could create it. a president could create a commission bipartisan, to say he wants names two or three at least, and promises to either pick from those names or ask for dish no names. as an example, a tremendous success, so sailor parent pick to someone to be on the alaska supreme court, who brock obama put on the ninth circuit, and he thinks she is one of the most

liberal that he has put on the ninth circuit. i think i could make the argument from federal appeals that they are certainly among the most diverse and american history, and i think he might have done that to the supreme court had he only had a supreme court vacancy. any president can have a merit commission. >> and a response to that, or any other ideas? >> i have one question, which is would be merit system lead to a potential nomination of what larry was speaking about earlier, the public figures, the senators, other folks who have played an important role, and would instead lead to a more traditional way of judges on the courts of appeals being with the supreme court, because like larry, i am drawn to the old model, and it is hard to imagine this, whether or not earl moran

would have been on anyone to selection team. -- earl warren would have been on anyone's selection team. i guess that is one concern. >> including life experiences and political experiences, and merit does not have to be so narrowly defined. and ruth bader ginsburg. with other members of the court. i think it could produce another, like hugo black from the senate, and i think it depends on how we define merit. maybe creating the process would create a discussion about what we mean by merit and that would be a good thing. host: here is another question. we have talked about the feelings of the appointment lifetime tenure system, and that the majority of states have elected judges, and many have term limits.

the statements are subject to attack ads especially with regard to being soft on crime. what is the answer to judicial impartiality? this is to reflect on the dangers of the system and we certainly have seen in the state courts -- and wisconsin is one of the mess that was created of their in the recent judicial election and the unseeded -- unseating of the judge. does anyone have any thoughts about that? elizabeth: i think i agree with justice o'connor, that is a pretty bad idea to elect judges.

i think it also, to me, raises in my mind why some folks who criticize it want to make it more like the democratically elected ranches. i can't imagine right now, and i know we want to take a long view but i cannot imagine people saying with all of the problems of the roberts court that it should be more like this congress. like that is a good thing? it doesn't seem like it to me, and i think it is something we need to keep in mind. >> that the say something to that. they were trying to nation that people in control of the common law would be somewhat subject to the control of the democratic process.

an interesting thing, once you have judicial elections, it establishes itself as regularized, and they get picked up in the federal courts much later in the post-construction era, so there is an irony there about where this comes from. but the notion of accountability there are forms different ways to produce accountability and the amazing thing about the founders when they constructed the constitution is they thought this through very carefully, and each has a different ale out. the long term, -- had different bailouts. i do not know if we want the supreme court to be elected the way congress is, but that is not to say we should go to the other extreme. the other thing i would say because i get this other pushback also is, congress, are you serious? do you agree with that? we are spending $50 million at my organization just to figure

out how to make that better. the solution is to fix that. turning your lawmaking over to an oligarchy. linda: fdr tried to add more justices to the supreme court. would that solve problems or create problems? we have had nine justices throughout the 20th century. there is nothing in the constitution that tells us how many justices congress should designate. we have the right size on the court? does it matter? >> i think it matters, but you can manipulate. when lincoln gets elected, they increase the size of the court. when johnson gets elected, they shrink the court. and then they increase it again. those kinds of manipulations.

fdr was completely successful, but you have to look at it not in isolation, but as part of a package. you would not have it today, because people were saying the kinds of things in the 1930's would be shouted down, and that is why, yes, there is some pushback. president obama makes this one little offhand comment, and he gets slammed by everybody, left to right. how dear you criticize the supreme -- the congressional debates. the congressional debate around the new deal. it doesn't exclude the possibility of judicial review, but it also does not assume the court having a say over the meaning of the important provisions of the constitution. linda: maybe as related, what does the court look like if senate confirmation was nor longer required? of course, required by the constitution, but setting that

aside? what about the blue sky idea of just getting rid of the constitutional approval? larry: it would look more like congress. >> if there was no senate confirmation required? i think we've got to remember historically in the 19th century, 20% of presidential nominations were rejected by the senate almost all on ideological grounds, and in the 20th century and even this century, confirmation battles occur when the senate is of a different political party than the senate. virtually never will the senate rejected a nomination of the president and the senate is the same political party as the president. it is when the senate and the president are of different parties that you have this, and then i think you have a very important check. i think it is completely appropriate hundred i think of the senate rejected robert was

rejected precisely because of his ideology, anything to others who reject because of their ideology. one of the checks that is built into the system is the confirmation and what happens is when the president and the" party. -- can't different political parties. melissa: right now from disintegrated to hit someone in the supreme court #: -- elizabeth: right now you have it is a possibility of the constitution is an interesting thing to think about. >> i think in the supreme court

had the power and authority it has now the confirmation would not change all that much because you would still have the political controversy that happens outside. in which you do and have this pressure, that it is not like presidents would make the appointments, and nobody would care to do anything about it, so you would largely have the same debate unless someone did something about the power. >> along the lines, harriet miers was briefly nominated, and then they rose up as one and said, not over our dead bodies. that was a real phenomenon. it is possible that the senate confirmation process itself intimidates some people who may otherwise be attractive judges. obviously, governor mario cuomo was a very serious contender, and i do not know what made him back out. it is possible the kind of scrutiny that one is subjected to through that process does

make some people say thanks but no thanks. linda: is it possible that the court's law is not enough power, especially in enforcing its decisions? case in point, what can be done to keep other alabama state officials from refusing to comply with the marriage equality provision? so the court cannot carry out its orders, as we are reminded in history. should it have some kind of enforcement power to mark -- enforcement power? elizabeth: if it was more undermined, i think that would be a problem. when marbury was decided, it was not a given that the court ruling would be followed, and so

it goes into one of my reasons were saying that the court as an institution is not a failure. >> i think it does not need any more enforcement power because it has the lower courts to enforce these things. >> all of the departmental debates had taken place. with a judgment in a political case. lincoln ignores dred scott in every other context. and it becomes a situation of who is going to stick to their guns the longest and then you get the kind of political deliberation that the constitution intended. linda: should the pool be reformed? i guess eight of the justices pool their clerks to do the

initial vetting of the 8000 or so positions that come in every year and make a recommendation as to which are worth taking further or which would be subject to the default rule, which is that if nobody is interested they are just denied, so the pool came about in the 1970's and has been subject to various kinds of criticism ever since. does anybody think this pool presents a problem that needs to be reformed? >> i think it is partially responsible for the smaller docket. it used to be that every perdition -- petition was read by nine. now, it is read by two law clerks one for justice alito who is not participating, and i think this is a problem. i think it would be better to have one read by nine then by

two. >> i have one comment to that. i assume it is still the case and was certainly two years ago that there is a strong norm in favor of denying this among sick cream -- supreme court clerks. the justices decide that that was and him provident grant, you are not a very popular person. this feeds into it. i think it is a serious problem one that would obviously disappear when the clerks disappear. and when i clerks, there were a lot of justices. i can say with a fair amount of confidence that a lot of them would just read the question presented. without looking at all of the underlying petitions. linda: i think this will be our last question.

you mentioned some dissatisfaction with the number and types of cases taken by the court. do you think this is an area which could be improved, such as a quota, or having a third-party entity have some say in which cases are granted, so there are -- there are variations of this. a recommendation over the years which kind of came up in the early 1980's, when chief justice burger thought the court was drowning in work. it is maybe less salient today. >> it is interesting that when chief justice roberts, before he joined the court, was very interested in increasing the size of the docket, and since he has become chief justice, that has not happened. we usually hear him talk a little bit more about why that is. i suspect if there were a quota

that the effect of that would be for one much higher, they would take some of the cases that they currently handle in summary fashion and have a briefing on those, even though i am sure the justices would be incredibly irritated by having the argument when they are -- i do not think a quota is going to come, and i do not think i am attracted to it. it seems ought. linda: -- it seems odd. linda: you see the calendar of days for argument, days they are going to be on the edge, and the one thing they really hate and fear is a day on the calendar when they have no cases. that has happened, and they are very unhappy when that happens,

so i think we see a phenomenon, the last time to grant cases in the regular order to be heard in april, at the last of the term, it is a lot easier to get a case granted in january then it may be in november whatever, so that is one kind of impetus and i once made the suggestion to some members of the court that if they would only cancel the april arguments and then carry over the cases granted in april, they would be carried over until october, and they would have a much better flow of cases, and they would not have this problem of having to expedite the briefing schedule in october in order to shoehorn cases onto the january calendar, and i was told, yes, we hear you, but we could not do that because the public within think that we were not working hard enough.

so should there be a third outside court? a third party? to inform them of the kinds of cases they must take that they are not taking? elizabeth: i think there is something interesting that could be looked at from the court. you have the cases where the cases have lawyers, and then you have the informal docket, and it is very rare for a case from the one docket to be granted, and i think that is partly because the justices assume, and i think there is some merit to that that if they are there on the case, then some eager supreme court lawyer would have taken the case pro bono and gotten the case of that way, but i think in the lower courts, you have panels that will look at some of these cases, and especially if they are not going to be heard

for argument by recommended decision and through the counsel for the court, and i think that is something to think about for the court, when you have largely prisoner appeals that get overlooked, because they are not written in the way that the court is generally used to seeing it, so having an administrative body like we have in the lower courts might be a source for the supreme court. linda: to make a recommendation, not to make a finding? elizabeth: exactly. >> one thing that concerns me about that is that i think there is an increased number of instances where the court is offering opinions without the brief oral argument, and i worry that such a proposal would make that more common and i think it is a terrible development, because you know there is an enormous difference with the brief on the merits.

the petition is all about convincing the court this is worth hearing, a split among the circuit, and the other is about convincing the court this is not the right vehicle, and when the courts decide that, about what they need for a judicial decision, there has been a lot more of that in recent years. i feel this would increase it further. linda: i think that is a very good point, and going back to larry's initial point about the lack of transparency, if there is a lack of transparency, it is a binding, decisional judgment off of the list, which is problematic for exactly the reasons that you said. >> and it is a summary judgment. not that it was pro-curia. linda: noticing the case is up

for its merits, and i think we do have to stop and remind people that there is a perception down the street, just a block south of here, in the direction of the white house, as the afl-cio headquarters, beginning at 6:30. please have your convention name tag with you for admission, and with that, i thank everyone for your attention and thank the panel. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2015]

announcer: the director of cardiology at the women's college in boston on the advances in heart surgery and the progress being made in the understanding of heart health. dr.: this actually is a vowels -- valve that is imprinted onto this catheter which is being introduced into the diseased valve, and it will be positioned with the balloon being inflated, and a new vowels will be placed inside the old house at five stenotic vowels -- the old ca lcified stenotic valve and this is the replacement of a diseased aortic valve in a way that does

not require open-heart surgery so we are trying to become smarter about predicting who will get the disease. this is the most protective way and then following up over a longer period of time, so we are trying to harness the progress of the human general research project, which has now been in existence for more than a decade with what can be driven by the giants of the industries, like google, for example, and information about sociology demographics, where you live where the railroad tracks are what is your likelihood of getting diabetes on the basis of your educational background, and what is your likelihood of developing something like diabetes or hypertension when you live in a certain part of a

city when you have less access to the right kinds of food or a lack of access to information about the kinds of sodium. announcer: tonight at 8:00 p.m. eastern and pacific on c-span's q&a. in answer: next washington journal, a look at the week ahead in congress, including what is next for trade legislation that was blocked in the house last week area and then a new york times reporter talks about the future of digital currency, known as did coin. we will also take your calls and look for your comments beginning live at 7:00 a.m. eastern on c-span. and the 2016 presidential race and yesterday's campaign launched by former secretary of state hillary clinton. host: and now we are joined by two political followers. we will start with josh kr