but polling in south korea shows that they identify japan as a greater threat than china. or what does it look like in the world when korea unifies? we have seen high tension in europe right now. nato as its -- at its highest point of alert because of what if -- what russia is doing there. it's when you look at defense spending, only five nato members have even met the minimal target of defense spending. their overall defense spending has exley gone down in the last couple of years. the point in all of this is become look at these trends, you can look at these technologies, and place it in pathways for. there are multiple futures that might happen. in "ghost fleet" what we do is basically try and run with that and explore one if. what are the consequences of that? and hopefully entertain people.

host: >> on the next washington journal, terry jeffrey and elanor clift discussed the current state of the american dream in light of court rulings and race issues. then the term's big supreme court decisions and your comments. washington journal live at 7 a.m. eastern on c-span. >> we are partnering with our cable affiliates as we travel across the united states. join us this weekend as we learn about the history and literary

life of omaha, nebraska. one of the first advocacy groups fighting for racial equality began their. re. >> it had the tradition as the city if you were black, you needed to keep your head down and be aware you are not going to be served in restaurants and stay in hotels. when the club began their operation, the idea -- the term civil rights was not used. they termed at social justice. the idea of civil rights was so far removed from the idea of the greater of the community of omaha or the united states that they were operating in a vacuum. they were operating without a net. there were not support groups, not the prior experiences of other groups to challenge racial discrimination and segregation.

>> we look back to the union pacific and how the construction of union station helped omaha's economy. >> one of the premier railroad companies was founded with the pacific railway act. it combines several railroad companies to make union pacific and they were charged with building the transcontinental railroad. so they started here. west and central pacific started on the west coast. they met out in utah. that is really what propelled us even further. we become that point of moving west, one of the gateways to the west. >> see all of our programs from omaha today at noon eastern on c-span 2 and sunday afternoon on c-span 3. >> the supreme court term ended

this week with major decisions on health care redistricting and same-sex marriage. next correspondence from the washington post, the new york times and the l.a. times talk about those cases, the rulings and their own experiences covering the court. this is an hour and a half. >> welcome. thank you for joining us. i'm arthur spitzer. i work at the legal director of the local office of the american civil liberties union, but i am not wearing that hat. i'm wearing my hat as a former member of the committee of that

section of them bar. our tahnkhanks to our hosts in our room. thanks to marcia tucker, the firm's technical staff are making the arrangements. thanks to c-span for covering us again this year. if you have any problem with the back of your head being on c-span, you can take this opportunity to slither off to the side. it is not being broadcast live. you can watch the video on the c-span website starting sometime tomorrow. many thanks to my former aclu colleague chris, the executive producer of this show, coordinating many of the requirements of the d.c. bar. our main sponsor on this section concentrates on matters involving court administration and rules, the relationship

between the bench and the bar in all aspects of the lawyers relationship to the profession. the section focuses on improving access to justice for everyone in d.c. it is one of 20 sections of the d.c. bar. 15 other sections are cosponsors of today's program. they are listed on your program. the sections carried on most of the bars work. they cover most areas of legal practice. if you are member of the bar and not involved in this section, we encourage you to become involved. if you are an aspiring member, we encourage you to remember to get involved after you graduate law school and a couple of years. on a personal note, if you are not yet a member of the aclu, you can sign up at www.acullu.org. we will be privileged to hear

this afternoon from a panel of journalists who have been covering the supreme court for a total of 112 years. i will issues them in order of seniority. on my right is tony morrow. he has covered the court since 1979. first for gannett and usa today. he joined the washington times in -- washington legal times in -- [laughter] the washington times does not cover the court. and continues as supreme court correspondent in 2009. david savage on the right has been with the los angeles times since 1981 and covers the court since 1986. in recent years, he has been covering the court for the chicago tribune. he is the latest edition of congressional quarterly's guide to the u.s. supreme court. joan is an editor in charge for

legal affairs at retuuters. her most recent book is the rise of soanya sotomayor published last year. she is the author of biographies of justices kennedy, scalia and friends as they o'connor. -- france's day o'conncis day o'connor. this year, she was a finalist for the pulitzer prize in explanatory journalism. i will ask her to tell us about that later. on her left is robert barnes who joined the washington post as a reporter in 1987. since then, he has been deputy national editor, national political editor and the metropolitan editor, but he decided to return to reporting in 2000 five and began covering the supreme court in

he realized he did not need three years in law school to not practice law. [laughter] >> on my far right adam, who took over the new york times supreme court beat seven years ago, but he has a much longer history with the times when she first joined as a copy boy in 1984 after graduating from college. he then went back for a law degree in. in 1988 in 1992, joined the legal department advising the paper and representing it in litigation. a decade later, he became a reporter covering legal issues. his work has also appeared in

the new yorker, vanity fair, rolling stone and other publications. his spring, he served as marshall of sprint -- supreme court. to hear a decision appointing a guardian for don quioxote. glasgow about that later -- i will ask him about that later. another panelist told me she was homesick and unable to leave the house, so we will be without her this year and hope to see her again next july. this is not a panel of litigators analyzing case law. that are lots of those you can go to all we will talk about some case law but our plan is to talk about the court as an institution and collection of individuals and about covering the court as journalists. i plan to save some time for

questions and answers. there are two microphone set up. if questions occur to you during the program, please jot them down and i will give you a heads up when it is time to go to the mics. finally, -- i was going to say they should be evaluation forms but they are not. to be the reminder you just got, check your e-mail in the next couple of days. you will get an e-mail asking you to fill out an evaluation form. we really appreciate it if you do. we read those evaluations and make changes on how we run this program based on those comments. so to begin, last term ended with hobby lobby which was a very complicated decision with multiple issues and opinions, but this term ended with what seemed to be much more straightforward -- same-sex

marriage. obamacare, yes. confederate flag license weights,plates no. in my being flip about that or did you find the big cases easier to report on this year than last year? david? david: well, there were a lot of big decisions and fairly easy to report. there was not a lot of complexities and divided votes. it is very nice because in this era, adam and bob and i talk about all the time -- we have to file stories within a few minutes, particularly with the health care, gay marriage -- i have done it long enough when i can remember i can actually read the whole opinion, listen to what the just -- what the justices said.

now, you have to move very quickly. fortunately, the outcomes were clear. the holdings were very similar. not a lot of complications. it was written within 10 minutes so we are grateful to the court. [laughter] arthur: another thing i noticed was how match -- how much the front page decisions were spread out over the month of june. this was for the most part one leading decision per decision day. on june 1 was the abercrombie & fitch head coverings. june 8 was the jerusalem passport. june 18 was the license plates. june 22 was the california raisins and then obamacare and same-sex marriage and death penalty each on a separate day. sometimes it were many front-page decisions on the same day. do you think that was a complete

accident or the court has some interest in spreading those high-profile decisions around to make your job easy or to get better coverage of each decision? tony? tony: i think the court is not very interested in making life easier for us by spreading things out. i think the only exception may be they decided not to hand out same-sex marriage and affordable care act on the same day. that they realize that our heads would've exploded. they did not want to see that. apart from that, they are quite adamant about saying -- they just released the opinions when they are ready. i don't think they spread it out. there is a classic story -- prior to justice william rehnquist, after one day in june after we all got seven or eight

opinions on the same day hundreds of pages, we went to him and said could you please spread them out? he said, well, why don't you just save some for the next day? [laughter] tony: it shows great understanding of how journalism works. i think the new chief may be a little more sensitive to this, but maybe other people have different views. i don't think they really care that much. arthur: i thought that she had to have some fun maybe at our expense of the end of the last day. there were three decisions that were big in all of which we knew would be writing about. when he finished, he said i have two retirements to announce and i felt like i was going to throw up for a second. it was justice scalia's secretary and someone else. [laughter] bob: it was not quite what would've made our day horrible.

>> we had these pretty big decisions and they decided to take a bigger for an -- big affirmative action case and then when we were done, they let abortion clinics -- those are five legit stories. >> the very biggest cases do not come on the last day which typically is the pattern. i cannot remember another term where the case that was most awaited did not come at the end. hobby lobby it was going back to 1992. typically, the hardest stuff comes at the end. there we were on the thursday of last week getting the obama health care law case and then friday getting same-sex marriage. fortunately, everyone up here was ready for that but we had mentally thought if they were going to end on monday, maybe that would come on monday. it goes to show we may be ready no matter what. sometimes really big decisions

will come before the last day. >> it feels like the grand finale of the july 4 fireworks and then boom, boom boom. >> last year, many of you reported and we talked about how the justices had a greater proportion of unanimous decisions than they had for decades. about 65% and how it was affecting opinions that have fallen from 52% the year before to only 31%. we talked about whether chief justice roberts was making good on his comments to be a unifier. this term, just the opposite. unanimous decisions were down to 40%. there were 68, more than twice than last year. is the chief losing his magic powers or what is going on? bob? bob: i think it is every term is different and that is what we have learned all the time.

the issues that are presented to them are what really is controlling about how they do things. we all said last year that even though there were a lot of unanimous decisions, they were not really manifest. they were -- unanimous. they were unanimous in the judgment, but not the reasoning. the court was just as divided by ideology as it was this year. i think that really has to do with what is up for them to decide every term. >> if the justices were to take the same cases each year, we would have a better time measuring them year-to-year, but i think the statistics may be misleading just like so many people talk about their was as liberal tilt this year. it was the nature of the cases. next year, we will up here be saying the conservatives did it again. as bob mentioned, how broadly they were rule.

if they are going super narrow, they will get more unanimity. you will find in the details more split. >> there has been talk about the liberals being more disciplined this year and falling in line with a single majority or dissent and not having a lot of concurrences. i think that is -- that was notable, but most justices don't feel that way. justice alito once said -- i asked him why he writes dissents when he could have just joined or why he writes concurrences when he could've joined the majority. he said it is like somebody coming to your front door and asking you to sign a petition.

would you sign it if you don't believe in it? they all feel like they have the responsibility to say their own piece about important cases. arthur: you think that goes for the same-sex marriage case? there was a line in the scalia dissent that even if he wanted to achieve that outcome he would hide his head in the paperback before joining the formulations of justice kennedy. [laughter] tony: justice kennedy's majority opinion, he installed the institution of marriage. he says it is unique. fulfillment for those that find it an essential for our aspirations that yet justice kagan who has never been married

signed the opinion. i wonder if she thinks marriage is essential to her profound hopes and aspirations. justice sotomayor who was married signed the opinion. and, what i thought was the most interesting was actually not putting his head in the back but what he said about even as the price to be paid for a fixed vote, he would not join such an opinion. what we have always heard from the justices is they don't trade votes. they expect their own views and so was he lifting the curtain? >> no way because kennedy was the one who wrote it. he would have been the fifth more conservative member but as we all know this is kennedy's area of the law. he is not a reluctant fifth to sign-on to with the liberals on gay marriage. justice ginsburg at the american constitutional society addressed

the trading boat idea and says it does not happen. [laughter] >> you can imagine a decision on would people join the kennedy opinion. they would write separately in a little more legally. >> is inn't that interesting that there were no concurrent opinions or talking about marriage is not the only way to find personal the film it -- fulfillment. >> justice ginsberg talks a lot about her mother-in-law and she said maybe it helps to be a little deaf. [laughter] >> negative felt that it was already a 5-4 decision, something as momentous as same-sex marriage, you would like to have as many votes as

possible. so, trying to dilute it further with concurrences or cap approvals -- half approvals wishes stick with the majority. -- let's just stick with the majority. >> john roberts said in his dissent if this institution was good enough for the carthaginians and the a ztecs, who are we to change it? i thought it satellite a setup for stephen colbert. the aztecs, what the? [laughter] i thought they were known for human sacrifice not family values. it turns out you can fight in international law. [laughter] >> speaking of expecting ones opinions justice thomas wrote

31 opinions which may be a record. 37 total opinions and 19 dissents. 11 concurrences. . he obviously is a believer in not trying to petition and expressing his own views. i wonder do you have any ideas on why he is writing so much? is he trying to make up for never asking questions? how do these separate opinions how you cover the cases? >> i think justice thomas has always been a contrarian who lets the go zone way. -- always goes his own way. he always viewed himself probably as i think for myself and go my own way. the entire time he has been on the court, he devoted a lot of effort -- every year, he writes some very long separate dissents making a completely different

view on why the voting rights act is wrong or whatever or rights a lot of the separate short dissents. i think it is keeping him him to say i'm going to have my own say. >> i thought was interesting -- he often writes that he does not think something is constitutional and is not going to give up on it. he will make that point again and hope others will eventually come to his point of view. it is kind of interesting when the affordable care act, justice kennedy joined the majority in the not right -- and it did not write that he thought people act was unconstitutional. >> in addition to writing dissenting and occurring -- concurring opinions the have sometimes expressed it orally. i think they were for oral the

fences -- four oral defenses. in your coverage of the case, do they get more column inches from your editors? is that something you focus on? >> i think they are worth noting. that is why some of us go upstairs for the announcement of the opinions. in case a dissent is read, it would add some drama. you kind of get to see the demeanor of the justices. i think the last day of the term when the announced the death penalty case, there were two dissents read and justice scalia wrote, read from his concurrence

which a lot was responding to justice breyer's dissent. those are all very unusual. they were so better and deeply felt -- bitter and deeply felt that it was an awkward feeling in the courtroom and there was no way to capture that if you were not there. i think those really are important to cover. >> you get a picture of what the individual justices think the importance of the decision is because they have to -- it is a 38 page written decision and they figure out what to read from the bench. a couple of the justices would give us the written rendition for later which is very helpful. and, i think tony is right, you get to see the drama and the highlights.

you can see whether a justice sitting next to the one who was reading hold back or does not. one of the better moments of the announcement in the affordable care act case when justice john roberts read about 10 minutes saying the law is upheld. you did it with much more vigor and confidence this time around then 2012. i think we talked about it at the end of the -- in july 2012, the chief was on the zigzag saying i don't like about it and this is what i like about it. it was very complicated how we did the competing rationale and there seems to be hesitant since the she business -- and she business about how he resented it. you could hear the conviction and competence of where they were at. he picked up the sixth the boat

from anthony kennedy to have the majority and he basically said look congress -- problems, that is not why we are here. we are here to see what congress had is their intention. to read his dissent and he is sitting right next to him because you know by order of seniority, so scalia is going on and on trashing with the fellow next to him in the center chair has just done and then he reminds everyone up with the chief i done back in 2012 to uphold it and he said we might as well s call it scotus care. and then he says that, that is the only time that the chief gives a little bit of a grin. [laughter] and he says, give scalia a little bit of credit, but that's it. >> advocate the way several of you covered the case in the next days paper who do the daily reporting and they were talking about difference.

let me ask you why you chose to write the way you did. david, in the very first sentence of your report, you say the first half of the sentence says the supreme court cleared the way for them to continue using the lethal drug cocktail but the second half of that same sense ends, were too liberal justices open the door to have a challenge for the death penalty. bob you do not get to the dissents until the fourth paragraph of your coverage and adam, you got to in the second sentence which is also the second paragraph but then ended your story with a quote from justice alito and the majority and the other two -- david ended more from the dissent and bob your story ended with several instances of botched executions

which one might say leaned more toward the dissenters viewed than the majority vote. let me just ask, why did you make those choices? whoever wants to start. >> i will go ahead first. that is one of those cases where there are clearly several different ways to write the story. there is a 5-4 vote, oklahoma wins the lethal injections can go forward. just prior delivers a very longest and same for the first time, joining with jonesburg saying that the death penalty is unconstitutional. i thought it was really interesting formulation which was that he said what we have learned over the last 20 years is there a lot of people who -- but we have learned over the last 20 years is that there a lot of people who are innocent. it takes 20-30 years on average before anyone is executed, so he said, we could speed up the

process but increase the likelihood that we are executing an innocent person, or we could allow these appeals to go on forever in which case there is no actual death penalty system in this country. and so i concluded, it simply cannot work. it was a really interesting dissent. i went back to the office -- though in the web works you can write to her three different stories during the day. i think the first story i wrote basically, oklahoma wins but when i went back to the office i said, you know? i think this will be potentially more interesting and more significant because it really sets the stage for a much broader attack on the constitutionality of capital punishment which may take two or three years out. to give a long answer to your question, by the end of the day, i tried to say both in the lead and that is why. >> i think that analysis is

exactly right in the setup of my piece sort of in the same order. it is significant enough question, can they use a particular execution drug? but that is not a decision for the ages. it did give rise to an interesting and bitter dispute between the five justices, the majority in the form the dissent. but the fact that we have, as we do periodically, have more senior and liberal justices say i am not doing this anymore. i'm not going to tinker with the machine of death anymore, is the more lasting peace of this particular decision. and then you asked why i ended with the lido, i sort of thing the weight of the piece does have to a knowledge with the majority is doing. alito is not always quotable, but in this case, he said something quite interesting that moved off of the description of the crimes for which they have been put on death row for. that was my thinking. just to illustrate there is no

perfect or ideal way to do it. things are going to be slightly different than most of us are in pretty much the same place. in fact, when i look at my story in the morning and david's story and bob' s story and most tories, they look alarmingly similar. [laughter] they often have a similar lead a similar first quote. newspaper work, in a way, is a fairly narrow craft. >> we actually differed on the outcomes -- should you be concerned that we actually differed on the outcomes? [laughter] >> they are both wrong. [laughter] because what you really found from that was that there are seven justices who did question the constitutionality of the debt annotate -- of the death penalty and what i thought was starring in this was that it was narrow but i think the end of mine was unequivocal directed that states could experiment with lace to execute people -- with ways to execute people on the court was not what you the

wake of that. obviously, as you say, i think that put it that two of them dissented. i thought it was interesting that the other two didn't, but it was especially interested and i do not have a good answer for justice said the mayor, who i think out of all the justices is the most questioning of the death penalty and whether it is fairly carried out, maybe it means that it has been a mean more later if she does that. maybe that would have chosen some sort of momentum rather than the minority of the justices who feel that way? what i thought that was an interesting part of it, too. >> now that i hear your reasoning, i would sooner put my head in the paper bag. [laughter] >> i -- justice alito made a point about the difference between what justices breyer differed in saying and what sotomayor was insane and he was

suggesting they may be on the same side. i should mention that i don't write our daily stories the way these reporters do but i will often write a sidebar or some sort of analysis these. i did a separate on the two senior liberals call for re-examination of the death penalty and i did have to be aware of how long i have been covering this thing because a member distinguished in 1994 when harry black and said, i shall no longer to go with the machinery of death, and i was around in the late 1980's when it was just -- justice are good marshall and brendan a lone dissenting from capital punishment saying, that they categorically were against that. that is the last time we have had something like that. the fact that inspired and breyer was busy they would go that way -- the fact that ginseberg and breyer said they would go that way we need to review it.

it was not until he got off the bench that he called for stronger -- >> but some need to answer the question about some of it is if you are 20 years, you are always reviewing last-minute stays of execution, on vacation, pulled out of the opera, having to vote on these things. liberals would say, there is no reason to who lives and dies, at some point, you probably get the queasy feeling in the pit of your stomach. >> i agree with that. there is a very good piece about the weirdness that i sent war in a note i think there is one other thing that would catch your attention and it is the issue raised earlier. suppose year after year you have been had to approve of last-minute request or some sort of question about an appeal and a death penalty case and you said, there is no ground for further appealing, and then you learn may be reading in a

newspaper or whatever, that that fellow was innocent. i would -- to speak for myself, i would find it -- wow. i sort of would feel as a justice, it is our responsibility to get these right. imagine if you'd then learned that you turned it down a lot of appeals for somebody who said we need more money to investigate this will look into that and you said, there is no grounds for that sort of appeal. data, you read it, you turned it down and then you learn that the person was innocent. i would have thought, i cannot -- if that happened once and then again, i would think -- i cannot trust this system. do you want to clear the way for somebody to be actually executed at 11:00 at night when you have actually had experienced last year in the above for that and the able for that that? that some of these people were innocent i think that is one of the things that may change if you over time. >> speaking to your question about why justice sotomayor did

not join -- she wrote such a strong dissent on about what was going to be done with these prisons more or less burning them at the stake that she may be did not want to distract attention from that message by putting her voice with the other two on this broader question. does that make sense? >> it could be. as i say, i don't know why she wouldn't. the oral argument in this case was the most contentious i have seen in my short relative time at the court. it was really nasty and there were brilliant -- you saw how deep the divisions are among the justices on this issue. this is the one where they answered each other and kagan

brought up the burning from the inside and alito answered her and they were not waiting for the advocates to say anything and the chief justice finally gave more time to the advocates saying to a degree that is unusual, even for this court. we have not let you talk, so he gave them some more time to talk . i think there were some really bad feelings among the justices about this case, about this drug and about this issue, and i think we will see that come up more and more. >> do you remember how it came up? you know this, bob this was a really unusual situation because in january, for these oklahoma murderers had this appeal to raising this question. one of them, the guy named warner, was about to be executed . on a thursday night, they allowed warner to be executed with four dissents. then the next week, they essentially granted his case.

they granted the case of the three remaining murderers. i thought, there is a way to have an unhappy workplace when five of you let the guy get executed and four of you did want to grant the case. if you tell from the beginning there was a real divide on this one. >> didn't there used to be a custom of a courtesy six vote for a stay in these kind of cases? and that disappeared this year? >> i even remember when it was called the gentleman's fifth before there were women on the court. but yes, since you need four justices and five to grant a stay, if there were not enough votes for a stay, somebody would come over so that the person would not be executed while his case was going to be hard. and you are right.

that seems to have disappeared. we don't know exactly why this happened in this case. some people have said the papers were not properly before them but it does -- it is not pretty to have somebody executed and then giving the green light to the execution and then a few days later they grant in the kc was part of. >> -- in the case he was part of. >> to think it made any sense for prior and ginsburg to call to bring challenges to the death penalty in this court? i suppose they know anthony kennedy better than any of us, but hasn't he been a complete hardliner of criminal punishment issues since the day he got to the court? >> on the death penalty, he has been in the lead and cutting back on categories of people and categories of crimes that are

death penalty eligible. it also goes a little bit to the point -- to the point jones made a while ago, the status quo is we have the death penalty. putting this question on the agenda it will not make it any worse from a liberal perspective, so if you can get your votes to put something on the agenda, maybe you could get the fifth vote, maybe you probably do not make life as for your side. >> what if your view is that this is a legal challenge, it would be four or five views in the making that who knows who was going to be on the court in for five years from now? i think it was -- it is not something that changes in six months but breyer was basically saying there should be a broader , well-thought-out challenge to capital punishment across the board. >> i posed the question for anti-death penalty advocates how do you stop some one

somewhere in the country from filing that challenge tomorrow to the supreme court? i think the answer is probably you cannot. >> that seems like a question for you, art. [laughter] >> we try. thousands of lawyers around the country with cases may do not listen to me. responding to my own question about justice kennedy. one thing he did his term that surprised i think everyone was his concurring opinion about out of the blue on solitary confinement. did any of you pick that up and write about it? >> it is not out of the loop actually. he has talked about that before. art: but it was out of the blue in that case. joan: it has been a concern of his. it may be his interest a little bit in international issues that

he has stepped back from issues to say to call us into these problems and i thought that was an example even though it may not have been the best case and it did get attention. in the media beyond just the case itself. >> because there is an issue where someone really ought to bring a case because if you know kennedy is leading your way there may as well be five votes. >> i did write about it and there is apparently a case of virginia or south carolina and one of these attorneys told me art, and a lot of these states, people are automatically sentenced to solitary confinement on death row. in other words, you don't have to do anything bad or be particularly judged to be particularly dangerous, it is like an automatic matter. kennedy quoted all sorts of literary figures saying, this is in effect a fate worse than death. i thought it was a really interesting -- that is one of the things about this term that i don't recall -- so many people

writing separate opinions, dissents, taking some big dude that is speaking really toward a broader, legal audience and setting the stage for future cases. >> and then they gave rise to a response from justice thomas and this was not one of his early five-page attacks, it was a paragraph in which he said, these people's living quarters are much more spacious than their victims'. which struck me as verging on inappropriate. did any of you express directly or sort of indirectly by quoting someone else's opinions about that rejoinder? >> i certainly would not judge it inappropriate. he wrote several opinions, dissents, i guess, concurrences where he went in great length and talked and told the story of the victim and what the victim's

family, the devastation of this murder. thomas is the was, we are deciding a very abstract, ethereal question of an appeal 20 years down the road and we sort of scrapped the victim in this corbel murder and i would be the last one to say it is inappropriate to write that. i thought it was a different important perspective. joan: he included a picture of the victim and one of the cases, to, as far as the opinion. again, i think we are seeing different ways that the justices , they are not speaking to each other but to the public, calling attention to things that are important to them. >> to your question art, this is not some legal reasoning that needs an outside perspective. i think the average reader can draw his or her own conclusion. >> joan, you wrote a story about

10 days ago about the justices style when they announced the decision. you said it was the sum, an artform. can you talk a little more about what what you wrote and why that was a worthwhile story? joan: when you are up there, they have a distinct approach to how they want to view their opinion and actually, justice thomas does not speak from the bench. sometimes, he makes a couple jokes and you get a little of his personality in it. the justices aren't a group that have traveled a long way from the days of justice byron white who used to read like a sentence and say, and you can find it in the opinion when you read it. they tell more of a tale. justice kagan really likes to talk about the facts behind the case and both she and the chief justice have sort of a nice, come here and listen to me, my

story, way of approaching up for the spectators in the courtroom. justice jamesburg takes a lot of time -- ginsberg takes a lot of time with her reading. she hands out what she says in events for those of us who are reporters of "directly. just think of the suspense in the room. we don't know exactly what opinions are coming on what day. when the chief says, the justices will now announce that opinion in 1442, you are like, oh, my gosh. are we going to see what kind of direction it will take by virtue of who will read it. for example, that happened that texas housing case roman numeral chief said it was going to be justice anthony kennedy. he is in the middle and could've gone anyway and it was really heightened by which side he would take and that was unusual for him to say, i will essentially decide with the liberals and uphold its expansive reading of the fair housing law. some of these justices play

along and make it more of a tale getting to the combination, the climax at the and with whether they have said yes or no. >> just a postscript to what they're saying about the opinion announcements. from what she said, i think we could all agree that it would sure be nice for the public to be able to hear them or those opinion announcements. the court has a special disdain for that because they sometimes allow the audio of the oral argument to be released fairly soon afterward but the oral -- but the audio of opinion announcements they sent to siberia and they are not public until months later when the national archives assess his gun . the reason -- processes them. the reason for that is unfairly clear. past justices and current justices have said sometimes they hear fellow justice

announce an opinion that they were part of and they think and gee, whiz, i did not agree to all that stuff. the opinion announcements are not distributed to the other justices in the majority, so that sometimes the justices was sort of put their own spin on their majority in and they will go off script sometimes and justices then end up afterwards saying if i had know what he or she was going to say, i would not have joined the majority. i think for that reason, they do not want opinion announcements or the audio to be out there quickly and be treated by offset the sort of official summary of what the opinion is.

>> i was just going to say that sometimes there is no suspense when they announce. justice alito began one, i can't remember the defendant's name, but the defendant said that he would take care of his girlfriend's two children and he centered to be a prostitute in washington, d.c. it does not take a bloodhound to know how that one is going to come out. i don't think. >> actually, when ever the announcement of justice alito has an opinion in the case, it's like that. [laughter] >> that was certainly clear in the death penalty case. >> there are even instances that some justices are listening to the announcement and inks, i did not sign on to that. there was an instance when justice thomas was announcing his own opinion and he came across a line that he was not sure he had signed on to. [laughter] it was about synthetic drugs and that assaults and he said, i have no idea what that sentence means. [laughter]

-- and that solves and he said i have no idea what that sentence means. [laughter] >> you write for lawyers, how does that affect in the way you cover the court from others? does that affect what you cover and how you cover it? >> not as much as you might inc.. -- might think. my previous paper was "usa today" so there is sort of a dramatic difference between the coverage there and where i am now. mostly in terms of length. when i first started "usa today ," this was before joan went there, a 600 word story was really long. you would summarize the supreme court decision in 600 words or 400 words and that is a challenge. but still even now that my audience is mainly lawyers at the national law journal, not every real estate lawyer knows

about security's law a criminal offense defense lawyers don't know -- you still have to use plain english as much as you can . although i can sort of -- i can use habeas corpus and not have to define it in every story, so there are some advantages. >> you had a chance to write the story this year. >> i think it was the saga of howard shipley, the lawyer who was the first time in years when the court threatened to discipline a lawyer for usurped position that he wrote. to make a long story short howard shipley filed a position in a patent case which that is already a challenge to make

understandable but it turned out that his client, a german industrialist who was not an english speaker, insisted on writing the brief, the petition himself. when the lawyer said, you don't really need to change this, he said, no. and the lawyer decided to go ahead and sign filed the petition. anyway, it was complete gibberish. it was almost illegible of their acronyms and all sorts of things he would never want to subject to a generalist court. and the court threatened to discipline him for it. make a long story short, howard shipley hired a man who was able to fend off the discipline and the supreme court discharged the

order related issue a warning -- but they did issue a warning that lawyers have to use plain english in their petitions and they also cannot delegate the task to the client. it just seemed like an incredible story. a nightmare client telling the lawyer, you must do it this way. there was tough debate about it. other lawyers said well, you know, the client does not rule. the lawyer has to -- ethically have to file the petition or file whatever document that is understandable and you cannot just let the client rule. i also had the chance to interview the client. i e-mailed him on and off chance that he might be willing to talk to me. we met in person at the national

airport and he was on his way back to germany. he said how terribly sorry he was and he would never write a brief again. [laughter] happy ending. >> i don't remember this happening before, but it happened this time. the court granted a certain petition for a guy suing the city of baltimore. they are proud of the fact that they have this thorough process and all the clerks back at over the briefs and the user petitions and check them out. you remember the grant less than one out of 100 something grant him and no one was able to find him. for months. they could not find him. i would have thought one clue was that this is an unusual situation. he said he bought his house in baltimore for $900 and they knocked it down without telling him. i know prices are not high in baltimore -- [laughter] but $900?

to make a long story short, they cannot find them and they dismissed the case. >> and he hires paul clement. [laughter] >> this one did not work. there were not having him back after all that. i talk to a lawyer for one of the legal clinics who said, we should have just said we were representing him and taken the case. the guy was gone. >> in addition to a brief that was written in half german, like the one you wrote about, the court itself has had them opinions this year that seemed to be pushing the edge of legal writing a little bit. in the eighth against the united states that kagan cited dr. seuss "one fish, two fish, red fish, bluefish" as legal

authority for the proposition of a tangible object. and in the spiderman comics and quoted from them. is the court just getting more informal across-the-board? is kagan an outlier on this? is that change in the atmosphere around their? >> the chief justice seems to be picking up a little bit in that writing style. in the case decided monday, he raised "what chumps!" there is a delicious twitter feed and i will send you the hashtag but justice scalia made up "jiggery pokery" and is that exists? >> yes, i think it does. >> but anyway, there is a

twitter feed that says he should write the name and title of children's books. [laughter] >> justice scalia also took center stage a little when he said he was outraged -- said when you are outraged, just consult the nearest hippie. [laughter] that is sort of another hashtag too >> also showing his age. do we have hippies anymore? >> i thought it was interesting, too, that chief justice did that in the same-sex marriage dissent where he was talking much more directly. he said do not celebrate the constitution. it was a very, sort of direct message in a way that i don't think i have seen him use both. and that does seem a little

kaganesque. i also think part of the russian to kagan was she is a junior justice and she won't get the affordable care act decision. she will have fun with what she gets. >> don't you think if you are telling law students or whatever to who to follow as writers, i think john roberts and kagan are just terrific. both of them clear, easy to read sentences. sometimes they are funny sometimes humorous, whatever, but both of them are very good writers. that really shows up in the first part of the decision where they lay out the facts and lay out the legal principles. when you haven't read them, you actually understand what is going on. which you don't -- which you cannot always say about supreme court opinion. >> speaking of not necessarily understanding, there is a category of questions that i have tried to ask every year on the panel and i cannot exactly ask this year because there was not a good example but i thought i would use on from last year as a way to get the question. how do you cover, especially in

five minutes, a case where the end of the filibuster agrees like this? scalia j announced the judgment and delivered an opinion parts one and two which are for the court. robert zhejiang kennedy k joined that opinion as well. thomas and alito joined parts onea and to be one. -- and 2b2. alito filed an opinion from a dissenting in part which thomas joined. and you have got three minutes to write something, how do you manage? that was from last year, the utility or regulation for the epa case. >> that is the one i would like to get to tomorrow. [laughter] >> you do your best to report the bottom line and then you have to go through that. i remember ages ago, there was a

rendition where everyone was going for this part and this part and david kind of disappeared. there were no parts he ended up with. but happened to him? [laughter] that actually, usually there are a couple of terms like that but there are not one that we need to report immediately or so fast. it takes time to figure it out. this is such a reading job. able to think of what kind of reporters we aren't washington d.c., and so much of our feed has to do with taking out a yellow highlighter and going to the opinion carefully. >> the scary part is the one we remember from three years ago in the help care case where john roberts writes the opinion that says "this a lot and the court cannot be upheld under the congress laws -- congress klaus." and in -- and in another section, it can be held up and there is potential for all of us to rush forward with the long story and there was nothing like that i can recall this year. >> i thought the thing this year that was tough and i don't know

the answer, maybe you guys do, but i don't think anyone has the answer yet. the epa case of this year where it did not exactly strike down these toxic emissions regulations. it did say that they had adopted them improperly by not considering cost but that they do not have to go back and do the hole cost-benefit analysis, so they sort of scented back to the lower court. i think until the lower court acts, it is a little hard for any of us to know exactly what that decision means for those regulations. >> the other thing about that one, we had to worry about that. lawrence gurley he was writing it had to figure out how much and what kind of a blow it struck for these regulations. the majority itself said exactly what bob was just repeating that

they were not actually striking them down. they were saying, go back to the lower courts and decide if they can stand forth elena kagan in her dissent struck down. so you are like, hmm? but it is the majority view that prevails not the dissent's version of what the majority did. >> and the complicated case like that which had to do with how epa regulates power plant emissions differently from how it regulates other stationary source omissions, that is about as much as i can tell you about it, but how much preparation do you guys do in advance so that you sort of know the underlying law? you know how the epa went about making its regulations? how much of a head start can you get on stories, especially in technical cases like that? >> you try to be ready in all of them. the whole point of the job is to spend months of preparation and anticipation of this crazy work. the environmental cases are

easily the hardest. the court tends to be less excludable in those cases and in other cases, but you do what you can to get ready. >> it always feels like final exam in college. you spent the whole semester studying this or that and then regurgitated all at one time in the last week of june. the good thing about a case like that though is we get a chance to look at it mostly when it comes up to be granted and then it comes up three months later during the argument, and then three months or four months after that, you have to write about it. i did try to immerse myself in that. as you know, the epa and clear air clarifications are very complicated, but it is the case. by jim comes around, you have a good sense of the bottom line -- by the time june comes around, you have a good sense of the bottom line. this regulation was 25 years in the making. congress had voted -- here is a list of 886 hazardous air

pollutants, go study them and regulate them. whether it is appropriate or necessary for the public health. not think that would take 25 years, but the clinton administration spent a long time doing it and they had the regulations ready to go and clinton left office and george w. bush came in and they pulled the regulation back. there was litigation, the court said, no, you really do have to do this and obama's people came in and started the regulation and they propose the regulation and in 20 tough, it is supposed to go into effect this year and the supreme court says, sorry, you should have considered cost in the beginning. try again. that is the short version. >> the other thing is my story run along with the byline of the environment and debris specialized expertise to the subject. >> i think as you probably heard all of us say a little bit, the preparation and this sort of study is what makes these reporting jobs different from

any other reporting jobs. i did a lot of other things and it was red that i would ever leave work that i had not talked to somebody on the phone. now it is quite common that i leave work without having talked to anyone on the phone because all i have done is read and read briefs and read the decision below and try to familiarize myself with it so you can then ask an intelligent question. it really is an incredible amount of sort of getting ready and getting up to speed. it is what makes the job of fantastic job and that you learn about all these really interesting issues that if you are in some other feed, you would just be doing that. learning about all these issues really makes the job, i think, so fascinating. >> sounds like you almost did go to law school. [laughter] >> you would not like to be

covering donald trump on the campaign trail? [laughter] >> whenever i hear about adam's downward spiral of his career, it makes me think it was a good decision not to go to law school. >> people are often quite surprised to learn that there was no advanced word on what decision will be coming down which day. just how much, what do you know that the tourist sitting in the back of the courtroom doesn't know and when do you know it? >> all we are told is whether it is a regular day or the day. regular means -- or a heavy day. regular means for opinions or fewer and a heavy day -- >> we don't exactly know what that means. [laughter] >> when i first started coming to court, they would tell you there are free decisions -- there are three decisions come in today but they stopped at the close of one day and said three decisions and only two came out.

and we knows reporters started sniffing around to find out what happened to the third, so they shut down and made it more general. the court -- not every court keeps it a secret as to which decisions are going to come out on what today. the california supreme court for example, will give you the public days notice of which cases are coming up. i have heard two theories on why the court does not do this. one is they want to protect their right to pull back a decision at the last minute so that they say same-sex marriage decision is coming out tomorrow and it doesn't, that would cause of speculation. the other one is they have concerns even the announcement

of the exxon valdez case is coming up tomorrow, that will cause the markets to fluctuate on exxon mobil stock and they do not want to do that. speculation could happen anyway. so those are the two theories. >> we do know by process of elimination what is coming on the last day and they are very sophisticated people in the pressroom, from who i am not one, who tried to gain who was writing the decision based on who was sitting. >> i like to say great things about the court that goes unappreciated and i think some of us we know is -- i think the court is one of the last institutions in washington that plays it straight and does not leak opinions in advance. it gives everyone the same opinion at the same time and do with it as you may.

over the years, over the decades that i have lived in washington with each administration, news has become more political. for example, the white house does not almost announce anything. that has not been leaked to a certain group of reporters who will put it out in a more favorable way. and every one of the agencies does that. when the attorney general is going out to give a speech on some legal topic -- this most recent attorney general and the attorney before that, i do not want to point to one administration or the other they would say look, the attorney general is going out to san francisco to give this speech. you are a fairly cooperative and good reporter, we will give it to you but we will not give it to her or him. now, that creates, in my view, a sort of built in corruption in

the news business which is if you want to be on that in and get copies and alerts of announcements, you have to write fairly favorably about the secretary of defense or the attorney general. if you write critical stories about them, they will say, we will not alert you, we will alert him. i think that creates -- i am glad i do not have to participate in that because you basically would say, if you are a reporter, do i really want to give the agency a hard time for this announcement? because next time i will be screened out and my competitor will that the story and i will look bad. i really think the court has this very old-fashioned and i think very good system that they put out the opinions at 10:00, the give it to everybody, they do not leak. you do not read the weekend before that the supreme court is owing to do something and sources have told the blah, blah.

i think that is one of the great ways they handle the news. >> i mentioned when i introduced you, joan, you read the published biography of justice so the mayor. what sort of access did you have to hurt? but limits did she put on that access? how did she like the book? >> this was not a biography like i did on scalia and it was more a political history of how she ended up getting the nomination and the trajectory of her ride match the trajectory of latinos in america. i did a lot on the confirmation process. i found out a couple of interesting facts, including that she and john roberts had crossed paths back in 1991 when she was first nominated to district court and she was actually in the eighth w bush administration and ran the screeners. that is how they first met. i also found that a little bit

about how she was positioned along the way and relevant to the fisher case that we have coming up. found out a little bit about the back story of how she worked behind the scenes in the first time with the justices and they considered the affirmative action case brought by abigail fisher. it was a little bit different and she allowed me to come talk to her. she would not let me use what she said -- she would let me use what she said that it cannot be quoted in terms of specific interviews with specific times i did with justice scalia, when you think of justice o'connor justice scalia, and justice so the mayor, human not think it is going ok with the most unfettered access. it was a little bit of a hybrid between o'connor and cscalia. 9 >> not only have we had a biography of justice scalia, we have a play.

fit all of you guys see that i want to get a mini review? bob? bob: i thought the actor who played him was astounding. there were times, if you closed your eyes and listened to him it was like you are in the courtroom and hearing sculley's voice from the bench. -- hearing scalia's voice from the bench. he captured him. i enjoyed the play. my only sort of coral was that i thought the setup -- world was that i got the setup of hiring a liberal clerk, i thought she was so incredibly rude to him that there was no way anyone would have hired someone who had been so rude. not just scalia. i thought that setup was -- i thought it was good, i enjoyed it. >> in addition to apply, we now have an opera that is going to have a world premiere one week from saturday. sculley and -- scalia and

jonesburg -- ginsberg. >> someone called and said, do you normally cover opera? >> i did write a story about a lot of my colleagues writing similar stories about this. a wonderful, interesting couple relationship that they have been good friends since way back in the early 1980's. i have gotten a lot of interesting e-mails about this story because i thought on one hand, one really good part of washington that you do not see any more that is they have been friends together, they are on opposite sides politically ideologically, but they really have a warm feeling for each other. it goes way back. in this the family, it is

personal. they have traveled together, they can joke together. scalia said, ruth's feminist friends made fun of her because we were on this elephant and she was sitting behind me and she leaned up and said well, it is -- i was told it was a matter of distribution of weight. [laughter] they really sort of our entertaining together. the truth is, they have absolutely opposite views on legal matters and it does not seem to change. they talk right past each other. scalia will be talking and ruth ginsburg can say that argument does not work and he will say, ruth we are not going to agree on this. i just got they were a lot of fun to write about. as far as the other, ruth ginsburg sent me the libretto and it is just wonderful to read. the man who did this has footnoted all of it with actual citations of their statements. scalia is singing about how a

few justices are blind and you find things in the constitution and he gets imprisoned for excessive dissenting and then ruth ginsburg breaks through a glass ceiling to arrest him -- to rescue him. anyway, i have not seen it yet. it is july 11 and 19 what it sounds -- maybe i will switch to covering operas. [laughter] >> i think the line that i got from reading your story was that the composer of the opera said that a lot of what he heard scalia saying dissenting from the bench reminded him of the rage arias in italian operas. that sounds very good. >> p was a music major at harvard and yale and then went to law school and he actually says he was reading these the sense and he said, here is an operatic character. that was the origin of the opera. >> now that we are in a theatrical mood, you served as the supreme marshall, did that

give you a new perspective on the supreme court of the united states? >> all it did was make me into a hypocrite for taking part in this kind of frivolousness. [laughter] >> i'm not sure everyone knows what i was talking about. >> the justices are out and about constantly. one of the things they like to do is have mock trials where real supreme court argued -- advocates argue fake cases about hamlet or on quixote. this was a case where tom goldstein and carter phillips two leading supreme court advocates, argued about whether don quixote needs to be committed before with ginsburg, breyer, or the deceit circuit -- or the washington, d.c., circuit. you know, there are cheap laughs . they raise money for the shakespeare theater. i don't know what the hell i was

doing there. [laughter] >> but you did a good job. >> yes. >> joan, i also mentioned that you were a finalist for the pulitzer prize this year. i saw you did not get it. [applause] it was for a series called "the echo chamber" and why don't you tell us what that was about. joan: we mentioned a couple names repeatedly today including paul clement and carter phillips and tom goldstein, who added just referred to. i think all of us, many of you and us, have noticed that we have had so many repeat players over the years coming up before the justices and having success with their decisions, we decided to do was actually try to measure this. our data team went back to 17,000 petitions and isolated on 66 lawyers who had a remarkable success rate. going back over one decade, we found that fewer than 1% of

these lawyers had 43% of the cases it for the justices, and that 50 want of these 66 lawyers had deep, corporate ties. we were looking at who these people are, why they are so successful before the justices, and that raised the question of whether the justices have added a new criterion to their decisions on which cases to take and whether they goes to the merits of the lawyers arguing not just the merits of the case, so we were able to do a lot of data work. then i went and interviewed the justices about this saying, are you leaning toward repeat players because of their skills and expertise and possibly ignore it lawyers who are not as polished but do have very good cases on the merit for getting granted? he basically said, we like it the way it is. we are a professional court. we like the professionalism of these repeat layers. we think it is important that we have the highest quality

lawyering possible and across the board, liberals to conservatives, felt this was the way it should be. after the series ran justices scully and kagan happened to be onstage down in louisiana, and someone in the audience asked about this writer's series and they said, that is true. we said it, we like it. we thought it was important to at least let people know what happens of their and tell the truth is your chances are better with one of these folks who cost a lot of money. >> and what they are doing is pro bono. >> which they tend to do when the case is taken. the heavier lift them that oral argument stage because you are competing with thousands of cases each term. the justices themselves say, we know a good case and we are not missing issues. it is a really good, important issue and it will be back. >> do have a sense of what it

cost to hire one of these guys for certain issue? >> yeah, -- [laughter] yeah, some of these lawyers especially the group we have out there now practicing your former solicitors general, they can charge a thousand or more per hour for the time spent on usurping edition's and even to do a meeting can be five figures. in some cases referred to, somebody might do a pro bono if they think they have got a good chance and they will then have the opportunity to argue before the justices. the phenomenon of the lawyers drifting toward certain high-quality lawyers has occurred at the same time that the docket was contracting, that they are hearing fewer and fewer cases. the skill of these very high-priced lawyers who can come in at very high hourly wages, or in some cases somebody could charge a flat fee like $50,000

or $100,000 for a runoff, and it varies by term. again, they are trying all different ways to get the attention of these justices who have thousands of cases before them and at the same time, they seem to be reluctant to want to wade into any areas that they do not feel a particularly sound. we did not mention this, but i know all my colleagues know about the new relisting cases to make sure they really, really want to grant the case. in the past, they would get all the petitions and then decide, what do we want to grant? and then they would grant, but now they are holding over that decision for another week to decide, do we really want it? because the clerks are at risk and the justices are risk averse they do not want to take the case that they feel is perfectly teed up. >> i guess they had a few experiences in recent years when they granted only later to dismiss it because they found some flaw procedural flaw, or

something like that. there seems to be a check on that. i thought i would leave sometimes for question. we have 10 minutes left, so those of you have questions, i will not calling you at your seat, you have to go to a microphone so c-span can hear what you have to say. yes? [indiscernible] >> you have to sit back or look for work [indiscernible] have you trained your eye to look for things? [indiscernible] >> a great legal writing guru. it depends. there are two kinds of cases. there is the kind you have to

write immediately and there are good words to look for, affirm or reverse. [laughter] and then my predecessor linda greenhouse gave me good advice. if you have more time to recover start with the dissent. it is somewhat say what is really going on. if you are looking for a quart and no better place to look, look at the beginning and the end of the opinion itself and various sections. >> i think that is true. the and seems to be what they sum up a little bit and that is the place to look for a quote if that is what you are doing. at the end of this term, all three of us, all four of us, all five of us who had to write right away, stay downstairs rather than going to the courtroom. but the good thing, if you can go to the courtroom, is that you do hear a summary of the holding in the case. so you have got that in your mind pretty clearly. you know how the court case came out, you know the reasoning.

so as adam says when you get downstairs, you can quickly look at the dissent to see what the other side of the issue was. it is very helpful if there is a time to go upstairs, let them explain it a little bit before you have to get down. i do confess to people who have read my story online right after it happened, that does not mean i read the opinion. it only means i have gotten enough that i can write this piece. >> i will just say for myself, we are downstairs, they pass out the copy of the opinion at 10:00 and six, justice kennedy will read the opinion of so-and-so. i take it, i hold a personal check to vote because that really, whether it is 5-4 nine-zero opinion, and then i checked the syllabus for the main headings with the main holdings. as adamson, you want to know the affirmative reverse. check the dissent quickly to see

if they say, this is a big decision or outrage, and then look -- start looking with a yellow pen for quotable lines. you say at the beginning sometimes the and, but at the same time, i like to listen and my example here, what justice kennedy is saying upstairs because that helps in reading it helps at the same time. i would like to think in about 60 seconds or 90 seconds, i have sort of decided what i should go right. -- what i should go write. >> my question stems out of the earlier question with regards to comments on the solitary confinement case. i feel like weather, it is inappropriate depends on whether you feel it is inappropriate. it depends on your familiarity with legal issues. i question is, how do you deal with writing this in a journalistic viewpoint with knowing that you are dealing with a lot of range of

familiarity with the law as well as knowing these are certain things people may latch onto? anybody? >> i am not sure that kind of a site is a legal point. i am not sure he is making a legal point. i think he is . making a personal point. >> have you seen any sense from the court whether they way that war or less than the used to? >> the data seems to show that

this court is no more active than earlier courts across the dimensions of overturning precedent in striking down legislation. only time, and this turned no different. >> let me ask you final question or two about the future. i saw in my e-mail this morning that someone from the links on -- billings, montana had gone to trial for his polygamous marriage. is this issue going to be before the court in a couple of years? does justice kennedy's opinion tell us how they are going to rule on that? >> chief justice went on about that to some link i thought.

will it be before them in a couple of years, i doubted. the will be a lot going on in the lower courts about this. i think there is a polygamist marriage case that is pending. i think we all believe that the next round of this will be about religious exemptions and bakers and florists and what these state laws do that say that people do not have to perform some of these tasks that they do not want to aid in same-sex marriages. it seems to me that is probably the next wave of things. >> the thing you see over time is that these big changes in the law are a long time coming.

only after there has been a big switch in public opinion. the big example was the right to bear arms back in the 1970's. warren burger made fun of that. over time the nra and the whole notion that the second amendment was not about militias but about a right to bear arms became so much a part of the public's understanding that by the time the supreme court took it up, it seemed no surprise that the rules yes it does. the notion of gay marriage, it would have been a surprise and a shock in the 1980's and 1990's. by the time they finally did it commissions not new news or us very -- for us. not everybody agreed but it is always a mistake to say that the logic of this opinion means that. we will now 10 years or 20 years

from now what it means but it will be a wild for polygamy comes back. >> famous last words. >> on that note we are on a few seconds from our 90 minute window. thank you for coming and i hope to see you next year. [applause] [captioning performed by the national captioning institute, wiich is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2015] >> one of the cases heard by the court had to do with mandatory sentences work on crime. under the armed career criminal act felons faced with a 10 year maximum sentence are faced with a 15 year midsentence with three previous convictions.

this oral argument from april is an hour. chief justice roberts: we will hear reargument today in case 137120, johnson v. united states. ms. menendez. menendez: good morning, your honor. mr. chief justice, and may it please the court. the residual clause of the violent felony definition of the armed career criminal act is 14 unconstitutionally vague because

it's text and structure do not set out with clarity what predicate offenses fall within its coverage and what do not. its vagueness is proven by this court's inability after repeated efforts to discern a meaningful and replicable interpretive framework that will guide lower courts. justice ginsburg: ms. menendez just to clarify, you are contesting only the residual clause, not the rest of the statute. so if the statute ending with it lists burglary, arson or extortion or involves the use of explosives, you're not attacking enemany of that. it's just the residual clause; is that alderson reporting

company 4 official 1 correct? ms. menendez: that is correct, your honor. and we believe, in fact, that the other 4 portions of this statute shed some light onto why the 5 residual clause is -- that the other portions of this statute shed some light on why the residual clause is unconstitutionally vague. for instance, the other portions of the definitions tight qualification for violent felony status directly to the elements of the offense in question. the force clause requires that the use of force for the attempted use of force be an element of the offense. the burglar arson, extortion and use of explosives that your honor references are determined by reference to the elements of the offense. a categorical analysis. justice alito: now, i know that we are asked to argue this

vagueness issue that when you here before you did and think that the statute was vague as applied to your client. as i remember, your argument was it is clear that your clients do not fall within the residual clause, largely because he was convicted. the offense--at issue is a possession offense and he argued that none of the specific offenses listed is a possession offense. ms. menendez: you're correct your honor, that when we met here last time we argued that alderson reporting company it is probably not included for the reasons you mentioned as well as others. justice alito: so if it's not plainly included, why do we have to get to to this issue at all? why should we reach out to decide a constitutional question?

ms. menendez: certainly, your honor. the fact that we believe it's clearly excluded seems to be at odds at the opinion of the opinion of the solicitor general of the united states. and eighth circuit court of appeals and other courts. the fact that something that seems obviously not to fall within the plane definition but is still home to all within the definition by numerous courts reveals the vagueness of the residual clause. justice alito: but we get almost every case that comes here involves a dispute among the lower courts about what something means, about with the constitutional rule is what the statutory interpretation should read. so the mayor fact that there is a disagreement about this, that shows is unconstitutionally vague? ms. menendez: this goes far beyond their disagreement, your honor.

i can think of no other instance in which the court has endeavored so many times in so few years to answer precisely the same question, not merely interpreting the same words, but asking each time whether a single offense satisfies those five words. justice alito: in in james, in 2007, we held that the residual clause -- we set the residual clause is not unconstitutionally vague and insights, and thousand 11 we reaffirm that. can you give me other examples of instances in which the court has overruled a constitutional holding that has been twice reaffirmed within a period 13 of a vase years -- of 8 years?

has that happened frequently? ms. menendez: your honor, i think i don't have a case at the ready for the question but what i can say is what does it happened frequently is that this court has to grapple with such frequency and is still unable to create an interpretive framework. the heart of thehis is in part workability. precedent that remains workable in useful but applies guidance to the lower court and deserves greater deference. and with due respect to this court understandable hesitation to declare the state should unconstitutionally vague, that president is simply proven to not be workable. justice alito: well, do you think the issue is whether the statute is unconstitutionally vague or one of those courts and of the statute. the basis of the vagueness

argument? justice alito: can can a statute be vague simply because this court messes it up? menendez: your honor, that is not the case in this case it i do not know whether it is possible for a statute to be rendered fake by poor to perdition, but in this case the vagueness and here is in the text and operation and health. this course repeated efforts to discern a user will interpretive framework hasn't caused the vagueness, but they proved the vagueness. justice kennedy: suppose that you had a state court meeting of judges for sentencing and they agreed that, within their discretion to impose a maximum that they would impose a greater sentence if the defendant had a rap sheet, some previous offenses which created a potential risk of physical injury to another.

now this is within their mandatory discretion, i understand that. would you say that for judging, that that is bank? -- vauge? that they would be better off not saying it at all? menendez: your honor, i think that judges are tasked with deciding and case before them so -- kennedy: no, no. my hypothetical is the judges say as a sentencing matter, as a matter of policy in this jurisdiction, we will increase your sentence if you committed an offense that categorically less is that poses a serious potential risk of injury physical injury to another. do you think that by judging? menendez: i'm never going to presume to accuse a judge of judging poorly but -- justice kennedy: no, it's a hypothetical. you can say it's bad; it's a hypothetical.

menendez: i think that that goes beyond the task of judging, your honor, into the task of legislating. to decide that as a -- justice kennedy: well, you you don't think judges should give reasons for what they do? menendez: absolutely, your honor. i think the difference is -- justice kennedy: you absolutely do think they should give reasons for what they do? menendez: yes, your honor. justice kennedy: and you say that this is a vague reason that this is that reasoning, bad judging? menendez: the part of your hypothetical that troubled me, your honor was the idea that the judges would get together and make policy decisions unfettered to an individual case.

justice kennedy: well, judge s meet all the time on sentencing policy. they educate each other about what sentence is and a announce the policy to say in this court we want all members of the bar to know that if there's a rap sheet, prior convictions that have an offense which categorically is a serious risk of physical injury to another with the sentence. do you think that bad judging? menendez: i think that's verging into legislating and i think that -- justice scalia: can can they do that, as a matter of law, not just as a matter of recommending to their fellow judges? can the reverse one of their fellow judges if the fellow judge does not a dear to that? i've never heard of such a

thing. justice kennedy: the hypothetical is that -- justice scalia: i agree with you, sounds like legislation to me. it's a hypothetical that is fanciful. justice kennedy: do you think it's bad judging for judge to say what his policies going to be for future cases? menendez: yes. i think that a judge should assign each case on the facts before them. justice breyer: well, wait. there are a lot of states that have guidelines and there legislated and their committees that decided, there are judges on the committees. so i don't know that--going to hope us, or at least not me, too much. i have counted up the number of lives and so for the near briefs and the others presented to us and adding in the cases i think generously on the basis of what is decided that you resented to us there are split. --over it.

-- that is over a time of 20 years, or 15 years. there are literally really, there are hundreds of different crimes, thousands perhaps by the time you get to this. so i can't, i don't know how to decide whether this is a lot or a little. i'm genuinely see on this because it is perhaps just a few. i mean after all of her statute is in surgery of or maybe it is a lot. help me. menendez: yes, your honor. two things, your honor. i think first of all that more than the number of splits is the fact that each of this court's efforts seems to answer the question before the court that has a very difficult time answering any of those questions. i think even -- justice breyer: well, is there

an example that you can think of where that was a basis for holding a statute unconstitutional? menendez: your honor, in the fakeness cases that we've cited one of the things often discussed by the court is that it wasn't amenable to a useful interpretive framework that it is a being consistently applied by the lower courts. justice breyer: i've never heard of that is a criterion. i mean the common law had a message. i don't know and even had crimes you know. there were common-law crimes. we have statutes. the government cites many which is such words as risk of harm or reckless or these words likely have here, serious risk or risk of physical harm. they cited a lot. there are other statutes that of all words like that. are we holding all these unconstitutional? menendez: absolutely not, your honor. justice breyer: i know.

i understand you think that. all i need is help. menendez: i'll answer your first question and then turn to the focus -- justice breyer: no, that is only the question that i have. the first one is the menendez: one. your honor, in addition to 18 the number of splits and whether it is a lot or a little, 14 is and was amount of times for this court to have to weigh in to resolve an unsettled will question. the exact same question your honor, not a variance on a question, but precisely the same question. but i think we shall also take instruction from lower courts and what they are saying about their struggle. we have cited half a dozen

circuits and these are season jurists to describe this as anything from a black old to impossible to meaningfully inconsistently imply. so we're not just talking about counting the number of disagreements. we're also talking about a completely unworkable framework. justice kagan: well, ms. mendez is, suppose this is connected to justice breyer's question. do you think that there's some core that everybody in fact does agree upon? in other words, that there are some offenses which people just say, well of course that fits within the residual clause? it's not the kind of thing the greatest splits, it's not the kind of thing that great controversy, that there's a core of agreement as to what it means and that all the trouble is occurring on the margins? menendez: your honor, the margins here are somewhat bigger than the core that even if we are able to agree on a small number of things that i clearly

fall within the center, the fact is the vast majority -- justice kagan: what do you think is in the core? menendez: your honor, i think 25 kidnapping might be in the core. a kidnapping that does it fall within the force clause, which many would do, might be in core. but your honor i what's more instructive is that the fact that so many things that the government even suggested are easy cases, the examples that they give on pages eight and nine of their brief on closer examination, they're not that easy. for example, child abuse. now it's true that one circuit or will or circuits have held that child abuse counts, but the spencer case which examined a florida statute of a child abuse founded did not count. justice kagan: the government says that to declare statute the facial evade all its application century facially vague. and a guess you're contesting

the standard because your many that at least one thing you can together kidnapping, that there would be publication that would be appropriate, is that right? menendez: your honor, i think that it's important to look at where the government standard of 21 has to be a vague -- standard is to be vague in every imagined application they come from. it comes from flipside v. hoffman estates, which dealt with licensing and financial fines, and more importantly where everyone agreed that the conduct in question was clearly in the core. this is different in all three respects. this deals not only with an onerous sentencing penalty but a mandatory one where congress has acted to take discretion away. justice scalia: well, you're not answering question. the question is whether you agree with the government that so long as there's something that clearly within the core, it is not vague trade do you agree

with that or disagree with that? menendez: i do not agree with that, your honor. i think that unworkable. justice scalia: i suppose you could have a statute that criminalized annoying conduct right? in accordance the government that would not be a because there's some stuff that is clearly annoying? menendez: yes, your honor. [laughter] justice scalia: so that's a perfectly good statute according to the government, yes? justice ginsburg: what do you do with all of the statutes that are cited in the appendix of the governments reached that they say uses such language as serious risk of physical injury to another, the same words that are used here except the says potential. what do you -- the government suggests that all the statutes of be vulnerable under your reading. menendez: thank you, your honor. the the term "serious risk" is

not on trial here. none of those with the, perhaps, possible exception, we 7 believe, of the two described on the first page come even close in operations or function to what the residual clause does. in almost every one of those cases it's either part of a limiting definition, it's subject to an additional limiting definition, or it's one of several elements which help narrow the conduct. justice kennedy: or or is it also that in most of the statutes that were cited, it depends on the facts of the particular case? is the opposite of the categorical approach. menendez: and that is a very important distinction, your honor, absolutely. justice scalia: which means it's up to the jury and juries, you know, don't don't have to be 21 clear. they can be vague. menendez: well, juries are routinely tasked with the

question of something whether some individual conduct, not an abstract imagination of conduct, but actually what the defendant did constitutes a serious risk. that, combined with the fact that it is usually part of a much narrower statute, prevents those from being vague. in addition, your honor, with respect to your question, not one of those statutes, not one has given rise to the expressions of frustration from lower courts. the disagreements. justice breyer: yes. but then look, you've got that. but it's not that it cannot be. there is something odd about the statutes is causing the problem and i can put my finger on it and what you've done is simply out that courts have had point difficulty with it. while that isn't enough, i don't think. why? the words seem clear enough.

what is it about this that's led to this difficulty? it certainly isn't a problem to identify many cases where there is a serious risk of physical harm. but there's something that's given rise to this, and i haven't yet been able to articulate it to to myself. you have thought about it more than i. menendez: i've thought about it a lot your honor. i think there's several things that give rise to the confusion. one is the fact that it asks judges to answer an almost impossible to answer question. they have to imagine whether an offense in the abstract and frankly, in its ordinary case, presents a substantial risk. how to even select the ordinary case is something the statute gives no guidance about. and what degree of risk is required, where to get the information regarding the risk;

it's completely imaginary and subjective. justice alito: suppose the question of whether it's a serious potential risk of physical injury to another were factual question submitted to the jury to be determined on the basis of what your client did. would that be unconstitutionally vague? menendez: your honor, i think that would go some direction towards solving the problem because it would require fact specific analysis by the jury. justice alito: is that a yes or a no? menendez: i think that if it still had i think that would avoid the vagueness problem your honor. justice kagan: i mean, it would create other problems, wouldn't it?

i mean, we be trying to do this based on 20-year-old convictions and often on questions that nobody had an incentive to argue or litigate. what is that, thus the reason we went down this road isn't? menendez: and your honor points out a very good point about why i hesitate to think that is a solution. it's an unworkable solution, but might get around the vagueness if the parties were entitled both to argue it to a jury and to relitigate the specific facts. but i don't think anyone is imagining that recidivist statute could function that way in the courts. justice alito: well, i wasn't asking about a recidivist statute. i was asking about a statute that imposed a particular penalty for possession of of a sawed-off shotgun.

and it says someone convicted under a statute that has this language in possession of the sawed-off shotgun has just occurred. do you think that would not be unconstitutionally vague? menendez: if the jury was asked in this offense to decide whether that possession present tilde substantial risk with foldout i don't think it would cause the same problems, your honor. i think another thing that is inherent in other parts of the violent lme definition of constructive about what's wrong with this one is that when it requires a question via element of the offense, as with the force clause or for instance, burglary you need to look at the elements of that predicate offense to determine whether it qualifies. justice alito: well, congress was trying to do something here and some may think it is a good thing to do, some think it is not a good thing to do, it is a legitimate thing to do. that is to impose an enhanced penalty for people who -- felons

who possess fire items -- firearms and have a record of prior convictions for certain categories of offenses and help the residual clause is held to be unconstitutionally they, is there any of the way the congress could accomplish that end? menendez: yes, your honor, i i think there is. i think one solution would be to tie the risk to the elements. for instance you can keep the same words but add in has an element, the creation of serious potential risk, and anything that did not what follows is not congress could simply add as an enumerated offense. justice alito: why does that solve the problem, has an element of the creation of a serious risk? menendez: because then what against, defendants and judges would only have to look at the criminal code of the state that has the predicate