i thought my childhood dream. i got into the aerospace business. designer and worked in the industry until it pre-much died -- pretty much died because of regulations and what have you. to my point, i said, what could i do say to my fellow americans to describe the situation i think we are in? you have to go back to when i was working in aerospace. i would go on job assignments and i ended up in cumberland, maryland. there was a position across the border in west virginia. i can't tell you what i did. i had a security guard that i became acquainted with who would walk us to our car at night. we got into a conversation about america and where it was going. she said something that i will

never forget. she said, mr. davis. we live in america. i know, they have the classes, the rich, middle-class, and poor. she says the way things are going, you're going to look up one day and there is still going to be the rich, but there is only going to be the poor and the puddle. i chuckled. what are you talking about? she said you heard me. they are the people who wait for something in the mail to save them for another month before our the folks who used to be in the middle class but now, it is a rat race. one fork in the road and you are in a ditch. the rich, she says the rich, they have money. they can hang in and hold on.

that is how i feel it has transpired for me. i was doing quite well in aerospace. we all know how that ended in california. i bought my first house at 23 years old and that is the only thing that is saving me. living in inglewood, you hear about this football team moving back. that is what i'm went to get by on. i will sell my real estate when it spikes. i have got to leave the state. that is the only way you will have any sort of quality of life when you retire. inglewood, california. what do you hear? >> that reminds me of survey work we did where we asked people if they felt like it was more important to be financially secure or to move up the income ladder. 92% of americans said they were just more interested in financial security, financial stability. i think that underscores all of the conversation we are having today, the idea that families still feel like they have that

-- don't have that kind of stability. more than trying to get ahead, a lot of americans are trying to tread water. his comment about retirement security resonates considering research shows that one in five americans don't think they will be able to retire. they don't have any plans for. they don't think they can afford it. >> from a washington post article that you wrote in 2014. the stock market is soaring. the unemployment rate is finally retreating after the great recession and the economy at a -- added 21,000 jobs last month. all of that growth has done nothing to boost pay for the typical american worker. average wages haven't risen over the last year after adjusting for inflation. real household median income is still lower than it was when the recession ended. make no mistake, the american middle class is in trouble. could you write that? >> i think the figures would be different and i would be marked

-- a little more optimistic. i would love to point out that, i think you will have skipped it -- scripted this. that story was about aerospace in california. in downey, california, and the decline of a rocket plant and a town waiting for something else to come along and replace it. very much like what our caller just described. downing was not lucky enough to get an nfl team. today, the situation looks better for the middle class. it doesn't look great. it is nowhere near where we thought it would have been after a typical recession. we didn't have a typical recession. we have seen little bits of wage growth like we talked about. we have seen sustained job creation over the last year and a quarter since that story ran. we have seen a bit of a take up, a ton,h not the time --

and consumer confidence, people's optimism. presidents obamas rating is going up. we are still not in a good place. when you look at the long view, it is rough. even looking at the longer view of this administration, i talked to vice president biden about this a couple months ago. they asked to be judged on how well the middle class is under their watch. by the judgment, they have failed. the vice president said it is a fair criticism, and we think we would have succeeded more if congress had passed part of our agenda for the middle class. the typical american family still makes less today than they did when the recession started. that is mind-boggling. >> margaret in dover, new hampshire. good morning. >> i think the gentleman stole my thunder when he talked about the rich, the poor, what i was going to name my book was the

haves, the have-nots, have-nots, and the had. >> give is a quick snapshot of your life. >> i'm the daughter of a swedish immigrant who came here at 17 and the -- by the time he was in his 50's, we had a nice business and with a fifth grade education, was on the bank board. i have a university degree. i have been a social worker, a personnel director, a union organizer, and i have spent my life, early life as a republican. i am a big fan of bernie sanders right now. >> do you feel as secure economically today as you have throughout your life? >> this is the worst. [laughter] i have inherited a home after taking care of an elderly mother for a decade. it needs paint, the chimney cleaned, all kinds of work.

i need a car. it goes on from there. i consider myself lucky because i can have three good meals a day. and a roof over my head. host: erin courrior. >> a lot of our research has focused on how people if they come from a low income background are able to move up into the middle or even be on the middle. the things most impactful for that movement included things like post secondary education, even the neighborhood in which someone lives, and also having a second earner in the household. that is something that i think a lot of americans field and used -- feel did not use to be the case. they can recall their parents being able to survive with one

earner and a stay-at-home parent and they were still considered middle-class and could take vacations and the research more and more is showing the need for that second earner, that second source of income coming in to a household to move a family of -- up the income ranks. all of these pressures across, a post secondary education, a need for more than one income, point to the challenges so many american families are facing as they try to get by. >> have you done better than your parents? >> that is a great question. i am focused on whether i am financially secure just like everyone else is focused on whether they are financially secure. >> have you done better than your parents? >> i would love to ask my parents that question. i think i have done as well as my parents. my parents worked really hard to make sure that both are -- both boys to go toeir

college. they did for us to go to college. i feel incredibly blessed my that. my father is probably laughing at me. i have written a couple of articles about how their generation has destroyed america. my parents personally have and wonderful in that regard. my dad is a lawyer, my mom is a librarian. small town oregon, solidly middle-class, upper middle class in our town. i think they have a son who is a newspaper reporter and a son who is a tenured professor. i think both their boys would say we are doing as well as her parents had hoped for us. i also think that makes me rare among the kids i went to high school with. that many of their parents had better paying manual labor jobs in town that allow them to have a solid middle-class living and several of those kids are not able to do as good, good paying work even know they are just a skilled with their hands as their parents.

this is a constant research frustration of mine and question. what happened in america that the talents of those classmates of mine aren't utilized in the same way as the talents of their parents. that is another part of the middle-class identity that we have. it is not just am i making as much money as my folks, it is do i have the same sense of fulfillment from the work that i do being valued that they have? >> this article and jim tankers newspaper this morning by jacob. obama unlikely to meet his goal on manufacturing jobs. what percentage, how many manufacturing jobs have left the united states? and in what time period? >> that is outside of the scope of our research. one thing i want to take a stab at, especially based on what jim just said is this idea of upward

mobility across generations. what the data on that makes clear is that the vast majority of americans do have higher income than their own parents did. 80% do. when you look at whether that increase in income is enough to ung ofhem to a different r the economic ladder, that is where the story becomes more of a glass half empty and we see a full fifth of americans have higher family incomes than their parents did but have actually fallen to a lower rung of the income distribution because others around them might the -- be having larger income gains. when we think about whether people today are better off than their parents, it is important to think about both of those things at the same time. not just whether people have higher levels of income, but also whether they have made any progress claiming the income ladder over a generation. >> elaine in eagle river, alaska.

>> good morning. >> can you hear me? >> are you middle-class? >> i would say so, we are. >> what is middle class in eagle river, alaska like? >> the earlier caller mentioned a loaf of bread being two dollars for a loaf of bread. up here, it is six dollars for a loaf of bread. the amount of income you need up here is higher. what i would like to bring to the table, some optimism. my husband and i have been married almost 23 years. we started when we first got married. i don't know if anyone, if you have heard of dave ramsey. he has a program, a baby step program for what he calls financial peace.

that is what we did. we didn't make very much money when we first got married. i was in school for physical therapy. my husband was making $1600 a month as a second lieutenant in the military. we saved and lived according to the principles, very similar to the dave ramsey financial peace university. it is so true. it truly works. the government is not going to solve our personal problems. it is us taking personal responsibility and maybe not having that five dollar latte and saving. it does pay off. i just want to bring some optimism to the table. the middle-class is very achievable, but we have to be intentional with our money and with our lives.

>> the bulk of entitlement program spending goes toward the middle-class. this is the center on budget and policy priorities. article in the washington post. >> at least -- we have done some research looking at this with interest on which portion of the budget is mobility enhancing and how much of that investment gets spent at different parts of the income distribution. because of the tax code, particularly around things like the mortgage interest eduction and incentives for putting money in retirement accounts and other very smart mobility enhancing type investments, what we are left with is that the vast majority of low income americans don't read any of the benefits of that mobility investment. middle and upper income americans get the vast majority of those tax benefits. one of the things we would love to see, particularly a group of bipartisan advisory board

members to our project had suggested was thinking not about whether the government needs to spend more money to enhance economic mobility, but maybe just think about the ways in which that money is targeted so that lower income families who are the ones who are the least likely to experience economic mobility over a generation are receiving more of that mobility investment. >> we're listening. >> good morning. for the benefit of young folks, millennials, so we can get a better perspective, could your panel please compare and contrast obama's first seven years compared to what reagan's first seven years? these same people who are complaining about the economy, they are the people that voted for obama twice in a row. the lady from new hampshire, i don't feel sorry for you.

i worked my butt off. i have two jobs and i drive for uber. i'm not ashamed to say that it i was taught don't have a kid unless you can afford to raise a kid. don't get married in less you can afford to provide for your wife and whatever. >> do you consider yourself middle-class? >> yes. i worked my butt off. >> have you done better than your parents? >> yes. my dad is retired military. >> do you think you have had the same opportunities as your parents? >> we are all given the same opportunity. that is what the united states is all about.

>> we have to leave it there, ed in fayetteville, north carolina. we have 30 seconds to put a final period on this conversation. >> i am struck by the range of people that we have heard from today. the frustrations, despair, and the optimism. that is a nice cross-section of what i hear from middle class folks are in the country. >> aaron curry are with pew charitable trust. thank you for being on the program. c-span's washington journal is live every day. coming up saturday morning. how washingtonss and congress is addressing student loan defaults. we will release latest job numbers. --rded to relocate an entire

it is the first such grant of its kind. finally, we will take a look at the advanced placement government exam with teachers connee and daniel larson. be sure to watch c-span's washington journal beginning live at 7:00 a.m. eastern. join the discussion. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] former on c-span, supreme court justice. they discussed their legal careers. of legacyiscuss the of antonin scalia. on this weeks's newsmakers,

puerto rico governor who will talk about the government debt crisis. newsmakers, sunday at 10:00 a.m. on c-span. the tv has 48 hours of nonfiction books and authors every weekend. productivity isn't that there team national black writers conference in brooklyn, new york. our today coverage features today discussions. also with race and gender with cora daniels. and black writers in the digital age. peter owner ofar

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>> at a judicial conference, discussedd kagan their careers and the daily life of the supreme court justice. this is from the seventh circle of judicial conference in chicago. it's 15 minutes. >> let me begin by offering our thanks and are welcome to our two circuit justices. each of them has generously given back the time to be with us this evening. i'm very much looking forward to this conversation.

justice stevens, let me start with you. you joined the supreme court in 1975 after being confirmed unanimously by this tenant. the world changed quite a bit over those 35 years. do you think the supreme court also changed either in the .ature of the cases is au think the court constant. let me say when brave thing. i just want you to know that he was a very good caddie.

he caddied for me more than once. to answer your question, i am whonded of byron weight says every time there is a new justice on the court, it is a different court. changest summarize the in terms of timing. it is a different institution. and that is the most important change that whatever occurs on the court is the appointment of a new justice. i should say that i am happy is a veryccessor

excellent justice. elena i never disagreed with her. they could've been 4-4. they struggled to keep the case alive. >> how has the court changed? is that they do a much better job of managing their docket. they don't take twice as many cases. it is now good at managing its docket.

every court is different. went?ny justices came and how many new courts to do have to face? >> i'm not sure. it was a lot of change. you been on the court not quite as long.

we are looking for does animal bursary in the future. we had typewriters that are not hooked up to a thing called the internet. you just create text directly. how has technology changed in the way they do its work. kagan: can i also say something about being up here with stevens. the last time we were in public together was six years ago.

it's a special thing to get a phone call from the president saying he would like you to be on the supreme court. is a special thing that you know you're going to be the successor. honor and that makes it quite extraordinary. time about all that john stevens accomplished in the seat that i now hold. you are an inspiration to me and everything that i do. [applause] kagan: so technology. it is changed but maybe not as

much. about 25the court years after a clerk. in this 25 years, and information revolution has taken place. we don't do typewriters anymore. messengers that literally walk memos around the building. ok. the inanity hear any of that. could people here the justice? now it's on.

when institution made of all people over 55 really is? we do our best. we have to understand technology and handle a lot of important cases. it is good that we have clerks who are young and do constructive things. the most important thing might clerks do for me is they tell me what snapchat is our something. i understand that.

i have been known to check with my son who is sitting right here orut twitter or instagram something like that. another interesting contrast is both of you have spent some time in working in other branches of the government. kagan was be solicitor general of the united states. justice stevens served as associate counsel to the sub committee on the study of monopoly. it would be interesting to know how those experiences outside of the judiciary affected your understanding of what the courts youand do you think it gave a useful perspective compared to those who just sort of went

straight to judicial work. i thought about this since you asked me. that was probably one of the most important parts made in education. i think in that kind of work, you get a feel for legislation that is not available in any other source. fact thatpreciate the the legislative process is very different from most other processes you are involved in. i think steve has the same filling.

i cannot can down specific examples of things. it really helped me a great deal and understanding what goes on in the law. i remember one time i explained in one detail what might happen with legislation down the line. things -- one of the things he said to me was let judges let's let the figure it out.

i think i got a feel for that back. legislatureof the really look on the judges as allies. i feel the same way about congress. i must confess that in recent years congress has become much more adversary than they were when i was working there. it sounds to me that you did not end up as a skeptic about legislative history. is that right? do you have a different view on ?hat # stevens: i have a different view. that the debate about

legislative history was basically nino against the world. i'll think there's anyone on the court except clarence thomas on even consideris the extreme position that nino took. extraordinary and the manyrson do not cited to avoid a debate that is unnecessary. he specifically mentioned sam alito.

sampler put this in the opinion and need no tried to persuade him to take it out. sam's of the legislative history was very relevant. caseto probe really in the and he sort of march the difference between those who are firmly against it. i really think there are very few judges were not persuaded who do not rely to a certain extent on legislative history because it does help us understand what congress is intending to do. i feel very strongly about that. what about you justice kagan? you have moved across the street so to speak. has that helped you kagan:.

is this working now? the thing you have to know about these things is you should always have the green light on. [laughter] ok, so we've got it. them couple of different jobs in the federal branch. solicitor general was great preparation. those solicitor general does is think about the supreme court. the 15 months i was solicitor general was entirely focused on the docket and the justices and what they were thinking. your whole job is to try and convince these nine members of the court. my first year or two i used to think all the time. it used to convince members of

the court. that,.han that was really great preparation for me coming onto the court. i thought it was an amazing year . it is one of the best legal jobs in america. i've spent five years earlier in the white house. have a drive relationship to what i do now. but i think i learned an enormous amount there about how and a largeorks part of what the supreme court thinks about. many of our cases are trying to make sense on how government works and what it's doing and what it's trying to do.

i think that background, not in a direct way, but has given me a direct understanding from the inside. it does help quite a lot. that is that a very grand level. what are your thoughts at a most -- more granular level? sotomayor,ception of no one has really been down in the trenches doing trials. the current court is a very cerebral group. they have been a dean of the law , yetl or solicitor general hasgovernment -- court opinions orndous

other cases. do you think the court should be doing that? do you think the court should leave those detail things to the rules committee is? then: that is between courts and the rules committee. there are a thousand things that we do every day that we have to learn. not about -- not all this come in in every area. that is in the pellet heavy group. -- appellate heavy group. being in this job, you just have to commit yourself to learning a lot and certainly everyone gives us their opinion. not just the parties.

and a lot of these cases, we get many briefs. we have the materials that are necessary. i think it is something a future president might think about in terms of new members of the court. long as we're there, we have to do as well as again. you, let me ask those of you mentioned amicus brief. we debated over which ones are useful. do you read his brakes? do you find them useful. kagan: i can't say that i read everyone every single page.

i have my clerks read every single one and every page. they tell me which ones to read and i read those. a lot of these cases i will slip through. some of them are not worth reading. they are repeating the arguments. sometimes they do bring factual knowledge to the table. a different way of looking at the issue. sometimes it can be just adding facts in a way that might be helpful. .h, now i understand

they run the gambit i think. our approach is anyone can submit anything. i think it works pretty well. host: when you think justice stevens? stevens: my views are very similar to elena's. brief.that xp i do not as a regular matter amex briefs. i think my sense is the same as yours. we had a program this afternoon about a topic on

active discussion. do you think the supreme court or any court should be looking at facts that the parties do not put into the record? is that out of line. you learn a little bit about the case from outside sources. it is not part of your plan. recall any factual matter. that he didn't have other access to. when you think about looking at the internet? kagan: i think you have to be

careful. -- wenot think that's bring our own knowledge base to the table. you have to be careful. stevens: when think this reminds me of is in the indiana voting rights case. i thought there was material on the internet that was not in the record itself. i very clearly remembering my own concern about trying to decide whether the losing party had proved their case. i thought it was not in the record. i learned outside the record.

question should i rely on my own research or on the record. i thought i had a duty to confine myself to what the record did through. -- proof. we ended up with an unfortunate decision. was though i think the case decided. host: that's very frustrating as a judge. we all do have to live with this. would you do it the same way again? i think i would. that's a tough question. i don't know for sure. noti think the record is support the decision that the plaintiff is maintained.

there were two different majority opinions in the case. he wrote one of the best positions outside the record. that is a very good question. host: part of it is how you break the opinion to. he wrote on the record before us. i'm not sure how you can get people to read opinions carefully. host: you just mentioned a minute ago that the need for the supreme court of the united states to assimilate fast amounts of information virtually across every subject imaginable. that youever wished

had tools available to do that? am i going to plunge in and do the best i can. district court can appoint a master. it certainly sounds as are should be ways to channel information. when you think of those alternatives, i cannot come up with a any veteran better than the ones we have. i can't come up with a better solution than just to say we brief fromept amicus

all newcomers. we will try to assimilate the information that is available to us. i guess i'm a little bit tactical that i could do any better. are you more inclined to write narrowly? i think it's important to have some humility. dore are some things we where we look around the table and look at how it is changing. i think that does indicate the people and to all this that this is a good way to take it really

piece by piece. and to give us an opportunity to learn more. host: are they real or whatever. maybe a step at a time. areas especially in these , whether it's patents or first amendment questions. it is creating different kinds of legal issues. where there is a sense we should be humble about what we know and don't know. answering the of question that gives you more flexibility and capacity to adjust.

justice kagan just mentioned the fourth amendment. all the facts and circumstances kind of areas. that makes it difficult for lower courts to look at a new what kind of a line are they going to be on. what are we going to do with air overflights?ane what is the next step? is there anyway that is supreme court can be more clear than that? stevens: i still believe that onges have to decide cases

the preceding itself. it strengthens the judiciary when they go outside the record and do their own independent research. i think that the process is one.ally when the apertures -- adversaries create the facts that support their views. let me turn to a broader view. recently justice breyer , "the court and the world". experienced -- express certain few courts. there was a debate that was

going on while you were on the looking to foreign law at all. serve as a reference. did you have a view about that? stevens: several times. looking at foreign policy as a integrityintellectual is no different from other judges looking at state laws across the country. you can learn about legal issues. there is no reason in the world at what they look do in nebraska or -- and not in south america or someplace else. it seems to me that is wrong.

there is no reason in the world why a judge should not look at any place else. if the president may shed light on what the judge is working on at the time. i think criticizing judges for using foreign law is unwise. host: what about you justice kagan? controversynk the about looking at foreign law is narrower than people might think. a lot of the book is about using international law and foreign law where nobody would think we should do anything else. the controversy over looking at foreign law arises in the

context of a few constitutional the twoth particularly cruel and unusual punishment. i think it is narrower than that. it is more than there are a few look to law people foreign practices and foreign laws and others not. on the one hand, i agree with john that you should never close yourself off to torturous information. i'm not going to read law review articles. the people who make a fetish of this are wrong to do so. hand, there is something serious about the that we have our own constitutional system.

that one can go about and pick and choose from any country that you happen to like on any given occasion, that would be a quite wrong way to talk about the law.opment of american i think there is some ground to be skeptical about some uses of being -- thes picking and choosing of it as being outside the tradition of american constitutional. would you say that even in where of the 200 196 ofes in the world, them have some view.

does this matter? kagan: it is something to notice but. lawyers do athink good job of calling international materials to the courts. kagan: i think that you do get a significant amount of information on foreign practices. host: again, a little bit on outside sources. our friend at the seventh circuit who is not here tonight. hase richard poster published diversion past.

he says they are rapidly drifting apart. do you think he is right or agree with chief justice roberts that people in the academy are writing arcane and useful things. basically, our legal scholars, is it useful to you. times?t helpful at very often the log and what happen in hyde park. i understand that.

there is merit to the notion that you can stumble across some very important stuff when you go through law reviews. it is like anything else in the law. you do the best you can with what's available. tremendous variety to answer. we thought this might be the theme of the conversation. it's a nice modest the in. at the harvard law school, they wrote these things. gail --uch as el but --

yle but they do that. i don't have time today. what would your advice be to people who are aspiring legal i think it isan: a mistake that all legal academics have to write for the court. i often but sometimes find but if iat are useful were to say to my faculty, this is the audience. you have to be writing to the supreme court of the united states, it would not be something -- a smart thing to tell us. faculty might think about

writing to legislatures. aboutaculty might think writing to other departments in the university. to be in touch with sociologists. and so forth. nt faculty , differe have different audiences and i think that that's a good and appropriate thing for law schools. and i don't think, you know, his idea that there's this divergence between law schools and legal profession. this is not a new thing, right. people have been talking about 30 years. judge edwards wrote 25 years ago or something like that. i actually think it's gotten etter, i don't think it's gotten worse.

so i think it's good that law diverse places where people write two different things to different audiences and i think within that very diverse field, there are people ho will think about the kinds f questions that we have to decide and who will writ some useful things in that respect. so i think this is not a kind of academia woes me, falling short. be know, they shouldn't clerks for law judges, right. their ouldn't think of jobs that way, i don't think. host: do you find empirical legal research helpful, or do you think there's enough of it going on by anybody? sociologists, by political scientists, by law faculty? and ce kagan: as a law why who to hire, i think some of the

most interesting work in the empirical of nature now and people are coming up with fascinating things about how the legal system works in various fields. host: yeah, i think it's very too.resting so justice stevens, your memoire "five chiefs" is something we've all enjoyed reading and is something that i think makes the wideraccessible to a much audience and justice sotomayor memoire for that. how t raises the question, does an individual justice, or how does the court communicate broader public? is it just through its opinions? it through speeches? is it through books? are there limits that you would recognize? of course, the principle method of communication is through opinions, and i think that's as it should be. i think -- because i wrote my retired, but i

ia's book is a very good book and written by her xperiences and is a very valuable book to read but others, of course, nino has statutory construction and other valuable things, but the why's primary ob is to decide cases, and the extra curricular writing is a function of how much time might e available for that activity and, of course, everybody is -- has different problems in that regard. but the more writing like that, i think, is fine. host: so you mentioned at the very outset justice byron white, who famously, when he left the court, burned all of his papers said, my ounds and

opinions are what i had to say. that was what i'm leaving behind. is that what you plan to do? or is that -- justice stevens: no, i've already given my papers to the library of congress, and i think they should be available in due course. >> did you keep everything? stevens: i kept a lot of stuff. -- i'm doing ow another book right now, and i original ve my yellow draft of chevron. [laughter] justice kagan: wow. sure e stevens: i'm not anybody wants to read my handwriting. host: you'd be surprised. should - i realize we wrap this up, but let me ask both of you, i'll first ask justice kagan. what would you do for fun, and what was your advice -- if you hope ny time for fun, i you do, and what advice would

you give to young lawyers today? justice kagan: we have great summers. so i work awfully hard from mid-september through the end of june, but we have these terrific fun.rs, so we have some gosh, i like to travel in the summer. i'm a baseball fan. i go to lots of groupies. novels mount of reading and things like that. important to even -- it's important to be able to get away sometimes and refresh. it's like that for most people, have to giveu just yourself a little bit of down time. host: and what about for the young people who have tremendous pressures, from their law firms, it? r has but do it anyway. what about you, justice stevens?

you were telling me about swimming. -- started ns: i play golf. i like to swim in the ocean and i like to swim in florida, provided i have a big strong person nearby to help me get out of the ocean, which is a problem as you get older. but there's a vast difference after the spare time you've retired and when you're when course, because you're on the -- when you're in time urt, you have spare during the term. of course, i'm not sure i can peak during the present circumstances because wrour work load is about half -- [laughter] -- so i really can't. elena kagan: believe me, i know that, when i clerked on the

court. and now there are about 80. i always tell my clerks. oh, when i was young, we walked 25 miles to the school bare foot, you know, so i always feel like that. gosh, i know what it was to work and you guys don't. justice stevens: that's true. you were a little earlier, when heavier.en host: we just had to do it for a year. year ally did it year in, out. justice kagan: it was probably justice than a clerk. justice stevens: it's a serious term.em during the one of the questions that sometimes comes up, well, now arguments, hearing so you apparently have nothing to do, but the truth of the time of , the busiest he year is the time after you finished hearing argument. and sometimes you produce opinions like the one that came this morning, that are

totally unintelligible. [laughter] justice kagan: i'm glad i didn't write that one. [laughter] justice stevens: normally writes very longitudinal. and it's not just the opinion. it's the whole case. there are cases in which i thought the perfect solution on this case would have been we eight, four going one way the other.ing creating the monstrosity. [laughter] >> tell us what you really think. [laughter] host: well, i should thank both much.u so justice kagan. [applause] justice kagan: i'm stepping on this is not the first time john has told me what he really thinks. [laughter] john and i have offices that are

pretty near to each other, and i get instant messages from him when i vote the wrong way, you know. [laughter] host: i'm glad he's keeping you on your toes. justice stevens: she hasn't had since i can e that remember. host: well, thank you so much to coming, for for participating, for sharing your thoughts with us. we are really privileged to have you here today. thank you. [applause]

>> in both iraq and afghanistan, i helped both countries with their constitutions, being sort agreement tator and on key issues among iraqis and is ans, the influence considerable, i have both state and government very anxious to meet with you when you ask for a meeting. announcer: sunday night on q&a. ambassador to afghanistan, iraq and united discusses his memoire, my journey through a turbulent worl. >> we saw the extremists, such zakawi , exploited it, although we corrected it towards i was of the period

there, the surge, reaching out by building up killing them, bringing about security, violence was way down, but we left and when the vacuum was filled by rival regional powers pulling iraq part, the violence escalated and we have isis now. announcer: sunday night at 8 eastern on c-span's "q&a." campaign bus 2016 made a visit during the primary, stopping at washington and jefferson college and harrisburg rea community college where officials and hole politicians our coverage. visitors were also able to share about theghts with us upcoming election. and at the end of the week in we ington, pennsylvania,

honored seven ninth graders for the student cam competition. a special thanks to our partners for their help in coordinating these visits. studentcam.org. ow, a discussion about the legacy of the late justice antonin scalia. a meeting at the university of california berkeley federalist society. this is an hour and-a-half. ew welcome to the berkeley society's final gathering for this academic year. justice antonin scalia legacy. copresident of the chapter and we're very gracious for your kind support you've given us throughout this year.

you've meant so much to us. we're indebted to our distinguished panelists who have come together to celebrate the distinguished legacy of justice scalia. tod today, we are joined by the following. today's event is also dedicated o justice scalia, the justice of the supreme court of the united states for nearly three ecades, one of the longest tenures on that institution. as an occasion, marking one of on the ice's milestones court, chief justice roberts' colleague says since chief justice roberts came on the same. it's not been the elena kagan remarked the yesterday will go down in history as one of the most transformational supreme court justices in the nation. is views on interpreting text have changed the way all of us talk and think about the law. all interpretation, and its

subspecies, originalism and constitutional construction, his principled and courageous in area after ts area of american law and his decency provide a paradigm to which all jurists may desire. i had the great good fortune of meeting the justice when he came to the oxford union. we were all of 22 years of age, but even then, we appreciated soul, and the heart we had amidst us. the justice often acknowledged opinions, te his particularly his dissent, for contemporary law students and young lawyers. he has inspired several generations to think and reason critically and to maintain civility and generosity of spirit. our four distinguished jurists with us today, practitioners, academics, a former solicitor of texas, knew the justice presently, three who clerked for

him, and one who clerked for ustice scalia's friend and larence thomas, whom justice scalia called brother. ms. miles is a litigation partner in the san francisco office of munger, tolles, olson. her practice is in complex litigation. he is one of the national law journal's august women lawyers. for many years, she has been california's top women lawyers and is a female bar broker. ms. miles served as a law clerk or justice scalia from october 1989 and judge douglas ginsburg. graduated magna cum laude from harvard law school in 1988, a.b. from d her '92 as well. nd we also have a visiting

fellow at the hoofer institution of stanford and visiting professor of law at that university's law school. he received his law degree with high honors from the university of chicago law school. during his time as solicitor general, mr. mitchell argued before the supreme court of the federal ates, the courts of appeals, and the supreme court of texas as well trial courts. after graduating from law chool, mr. mitchell was a law clerk who judged fourth circuit nd for justice scalia during october 2002. he served as an attorney advisor oic in the justice department from 2003 to 2005. ramsey rofessor michael of the university of san diego. clerked for justice wallace in the ninth circuit and justice scalia in october 1990. he practiced law in watkins, joined the san diego school of law faculty in 1995. he teaches and writes in the areas of constitutional law,

foreign relations law and international business law. e was awarded the law school's university professorship of the 2012-2013 academic year. jd earned from stanford. are y and not least, we fortunate to have dr. john eastman who is the professor of service at unity chapman's school of law and also dean as the schedule's from 2007 to 2010. he is the founding director of constitutional jurisprudence there. prior to joining the school of 1999, he served as a law clerk to justice thomas term 1996 in the fourth circuit. he earned his j.d. from the university of chicago law school where he graduated with high honors. federalist society for law and policy studies is a group of conservatives and libertarians interested in the current state of the legal order. it's founded on the principles exists tourrent state

preserve freedom, preserve powers, and it's the duty of the judiciary to say what the law is, not what it should be. first, we will hear from our panelists, and i will pose a few questions about justice scalia's legacy and tenure. will entertain your questions. let's begin. >> i am christy miles. when justice scalia joined the court, i was still in law school. during those years, harvard was critical legal studies and other deconstructionist theorys and seemed like a law blur of fuzzy thinking, policy considerations and multibalancing tests. controversy law like wise process oftle on the contract language or applying the rules of language in more considerations of fairness, equality of bargaining power and similar issues. statutory interpretation was not a subject at all. it was simply not at harvard. already by the time i graduated

in 1988, justice scalia had begun to have an influence on hau thinking, even in -- law schools. disagreed sors who with him, which in our case made up most of the harvard faculty, assigned his opinions, if nothing else, because they were compelling statements against which the professors could then present their views. century later, justice scalia's legacy in law just as s undeniable, his legacy on the court. as justice kagan explained in the second annual antonin scalia lecture at harvard in november year, justice scalia has brought about a revolution in law ay law is taught in schools. before justice scalia, she said, law school was done through the and n law method textualism, whether statutory or constitutional was simply not curriculum. now she notes more legal thinkers consider the words the the starting t as

point and sometimes the ending point of the analysis. make that last point because in chambers, justice scalia used to rail against opinions that expression, we begin as always with the text of the statute. used to say, what do you mean you begin with the text? and end with the text? when i started my clerkship, ustice scalia had begun the process of trying to persuade the other justices to rethink approached legal analysis. he frequentlylar, issented or concurred on statutory interpretation in statutory interpretation cases where the court had adopted an approach that used policy, fairness or worst of all, legislative history. ometimes, justice scalia in those days would write a single paragraph opinion refusing to join either a paragraph or a foot note in the majority opinion because it cited some house report or statement by a

senator on the senate floor. view, the only legitimate authority as law was the law by both houses of congress and signed by the resident, not a passage snuck in through a legislative report anounounced on the floor in a way that could be used to manipulate the statute. these stringent materials he words were made to make others.- spoken by even enterprising lobbyists. he insisted that the text be followed despite counter ailing, economic or social commendations. despite he said justice stevens' dissent and despite the clear trend in both amendments to the relevant statutes and the regulatory development, there

was toward deregulation, the core of the doctrine remained in the tatute, and he said it's that skeleton we're construing. said.st read what it justice scalia was relentless words prevailed. we'll get to some particular but later in this talk, this meant two things. this meant on the one hand, if enumerated in the constitution such as the confrontation clause, the fourth amendment, protection against nreasonable searches and seizures, he would enforce the opinions by other justices or other social developments that made the right inconvenient to enforce. ikewise, in the case of unenumerated rights, such as, again, sorry, the other first ted rights, the

amendment, which i think we'll talk about in greater detail later, but if a right implicated the first amendment, justice scalia would be lining up with liberal justices to enforce it. with respect to unenumerated rights, justice scalia felt equally, if the right was not articulated in the text of the constitution it couldn't be imported into the constitution through some creative use of the for example,lause, which provides certain rights -- a person shall not be deprived of certain rights without due process. the substantive due process jurisprudence has allowed justices to read rights into the constitution that could not -- of which a person could at all.eprived justice scalia couldn't count on that approach, which was textual.counter so in sum, justice scalia had a on the way both law professors, law students, on hand, and the other justices on the other, look at law.think about

as justice kagan said in the same comment that was just quoted, in addition to saying that he was one of the most oursformational justices of nation, she said that his views on interpreting text have all of us think and talk about the law. that, i think hopefully, -- get a chance to talk about the legacy. what does it mean for the future? i think this kagan will be someone who can carry that textual text forward in the future. it will be interesting to see how this plays out in the court over the next couple of decades to the extent to which justice scalia's legacy in the law schools among students, such as many of whom being present here, affinity tohat same intoext forward as they go the legal profession.

myles.thank you, ms. mr. mitchell. if you weren notes, to pick up any supreme court statutory opinion from the 1960s or '70s, you will see very extensive reliance on legislative history. today in supreme court opinions, you see legislative history ing ussed mostly in dissent opinions, if at all. text instructions have become supremet in the way the court interprets statute. at the same time, justice scalia's tenure on the court has been less transformative in the field of constitutional law. it's clear that a majority of the supreme court still subscribes to the living constitution mind-set that produced decisions such as roe same sex de, the marriage opinion from last terp, the same thing. kennedy, it's over tax, it departs radically from the original understanding of the fourth amendment and rejects

rules.orts to the why was justice scalia's time on the court and his advocacy of textualism, originalism and formalism so effective and nfluential in the area of statutory construction, but seemingly less transformative in law.field of constitutional i think that's one of the key questions surrounding justice scalia's legacy. there's many possible answers one can give. i want to suggest a couple in my remarks today. first, i think one of the reasons for this disparity in scalia uence of justice on the way the supreme court approaches law is the fact that so much of the constitution by hadtime he got to the court already been interpreted, in previous supreme court rulings, employ textualist or originalist methodologies. withat fact, when combined the supreme court's strong decisive norms, makes it difficult for any member of the court, especially someone who's espousing meaningful textualism

to reconstruct established documents that the supreme court has already made. new ated reason is that constitutional provisions are seldom enacted and that deprives justice scalia and others on the court of others to apply their dominant methodology, textualism and original meaning it new constitutional provisions that down by the ed baggage of earlier court rulings. opinion in at the hell heller, which interprets the second amendment, the majority stevens' ustice dissent argued primarily based of the istorical text constitution and the meaning. that's somewhat unusual but the few d amendment had very prejudice in interpreting that. when you see a provision lika reach the court during yesterday skl's time, text and original stage even center for nonoriginal jurists. when there's so much water under he bridge, it's much more of a

challenge for justice scalia and fellow textualists on the court. 30 years of justice scalia on the court, that's because they're political appointment. to be sure the president and the senate care about legal qualifications and their accountability of the people demands they take that into account. at the end of the day, the lookingt and senate are for jurists are looking for ulers who they approve and to influence the judicial process do not care whether their political goals are confident with the text or the original meaning of the constitution. as a result, we have jurists this appointed through process that do not regard tax or original meaning as the touch proper constitutional interpretation. so this may be an inevitable onsequence of having a constitution that provides for the political appointment of supreme court justices, but i don't think it's inevitable and

i don't think we should regard it as inevitable. the political seduction of lly tutional law ultimately depends on a legal culture that accepts the idea of a legal acceptable as an approach to judging. if the legal academy and the organized bar and the norms of insisted on n fidelity to constitutional tax, denounce the judicial creation of atextual onstitutional rights as illegitimate or lawless, then the president and the senate jurists.unable to find it would be akin it trying to find a supreme court appointee advisory issue opinions. it can't be done because there's legal enched norm in the culture that federal judges are not supposed to do that. active ard as an dissertation, something that exceeds the proper and legitimate role of the judiciary. instead, the legal academy and the organized bar not only rulings that laud

create constitutional doctrines that have little or no of the on to the text fundamental charter of government and this in turn involves interest groups, jurists and other agendas from he bench, either conservative agendas, affirmative action, or agendas.and progressive justice scalia may not have anquished living constitutionalism on his time on the supreme court but the challenge he threw down remains unanswered by any member of the current supreme court. ere's the challenge he threw out. if the meaning of the constitution changes and evolves does the then why supreme court get to impose its preferred interpretation of the of us? tion on the rest if we have a living onstitution, why shouldn't the political branches disregard the supreme court's past announcements and adopt new interpretations of the constitution that they think superior? that preme court tells us

the constitution's meaning changes and evolves, yet it own precedence and interpret this supposedly evolving document are fixed and immune, until, of course, the supreme court gets around to overruling them. those stances are in considerable tension with each other. f the underlying law is a morphing and changing thing, then there is no basis for the demand obedience to purport to t, that have a document that is in flux. those are up for grabs as much ution itself is. if we continue to prop dpat the of a living constitution -- of what that evolving document means, or if there is a reason why the supreme court constitutional ronouncement is wholly read, the justices on the current court have not yet provided one.

host: thank you, professor mitchell. ramsey. >> thanks very much. real quick on what you just said. i would say not only have the justices provided one, but neither have academics provided one. thank you very much to the law and to the berkeley federal society for having me with all and i agree the things that my analysts have said. said.llow panelists have but i'm going to take a little different attack. i'm going to tell lib a little anecdote that tells something about scalia as a person and his legacy at the end. here's my anecdote. so scalia was much of a hero of law school was in ver sincy read his dissent in marches versus olson, the great separation of powers case that we may talk about later. perhaps one of the single most influential thing i read in law schedule, i may add. it was such a great honor to go

to wish to be his law clerk, and it, a bit overwhelmed by but i came in the first week and it was in the summer. much to do ve that in the summer so it was fairly light but we had one opinion left over from the previous term that hadn't been quite finished up. when i got there, the justice said, look, we've got to get this done. i want to you do a couple of things on it, and get it on my esk and we'll get it out of here. so i did. i came in on that saturday that week, actually saturday morning. did the things he'd asked me to do. he wasn't in the office. so i just went in his office and put it on his desk. and then i decided i was done. and i went out for a bike ride. cell phones have in those days, so i was out of touch for a couple of hours and back to my house, we did have an answering machine. when i got back to my parm, parm -- parm, there was about a message, seemed like

20 minutes. where are you. help.d your i can't believe you're not here and so forth. this is bad. so i rushed into the court. corner.ght around the i was still in my biking outfit. that was probably a mistake, in retrospect. in any event, went in, reported to the justice. he was furious. further lecture followed about how he expected his courts to be available and how he specifically told me we were going to get the opinion done. i thought he meant in the next couple of weeks but apparently he meant that day. so i apologized the best i did not t the justice want to take apologies real well a little ured me further and sent me off. i went back to my office, put my head down on the desk and figured i'd completely blown it and i couldn't believe this was the way my courtship was would never and he forgive me. so i was sitting and about 20 mood,

minutes later, justice came in. had the draft opinion in his hand. he was chuckling. came over to me, poked me in the arm like that, said hey, i added another zinger. isn't this a great one? he showed it to me. of course i told him, it was the i'd ever heard. he said yeah, yeah, this is pretty good. great opinion. he slapped me on the back and said here, do a couple of more hings on this, finish this up, get it out, great job. i'm really happy with it. and he went back to his office. at the time, i was a little bit relieved, and at the time i thought, well, not too much more i might survive, and this guy is a little more goes.l. we'll see how it he never mentioned that again to me. forgot it.r guess the time, again, i

i wasn't as impressed by it, besides from the fact i still had a job. but later in retrospect, as i've grown up. at the ly 24 years old time. as i've grown up and had y own kids, and thought more about this in retrospect, i saw just that more than he was a little mercurial, although he was. thought of y -- he us like his own kids, and he treated us the way that i would now when one ids of my own kids made some big mistake. you want to let them know, right, that look, this is not acceptable behavior. but at the same time, you can't that it so hard depresses them and takes the energy out of them. so you give them a little hard you treat them just like you always would, like they were your kids. really know, he did -- he treated us like we were part of his family, part of family, and i came to value that so much through the rest of the time that i was courtship and then

throughout the rest of his life had the pleasure to interact with him. so i think when you ask about legacy, cy, part of his a large part of his legacy is that have all of us been touched by him and have been made so much the better for that. in just two minutes then maybe i'll say one thing about the law legacy.his and it follows up on something earlier.stin said when i was in law school, thinking and conservative legal thinking generally was really focused on the idea of judicial restraint. it was a reaction to the warren court, to the excesses of judges making up their own ideas about what their laws should be. it was that of courts should step back and not interfere with the political branch

branch. legacy part of scalia's is that we don't think so much anymore. nd morrison versus olson symbolizes that because it was the case of the independent ounsel where all of the judges were defined and creating the statute, except for scalia, he 8-1 early on in his tenure in the court and he said no, that's not what the because the says, constitution vests the executive ower in the president and paraphrasing, but not by much. it doesn't say some of the executive power. it means all of the executive power. and that include the power to control independent counsel denied.e statute stood for for on

him was the idea that not just the court should interfere when branches doesn't warrant, but it should interfere when the political branches warrant. that limitation infused by the court. it was not the role that revious conservatives had emphasized but it was an active role when the constitution warranted and i think that now taken for granted but it was not taken for granted efore he came on the court and before he made statements like his dissent in morrison versus olson. so i think that's perhaps not the thing he's most remembered or, but i think it's a very important part of his legacy. host: professor eastman. eastman: i was not

but rk with justice scalia justice thom. we'll get to the minor disagreements and judicial philosophy between the two because i think it's some of the most interesting things that occurred on the court in the last generation. but before i get there, i want to talk a little bit about the legacy. i'm a co-author of a constitutional law text book. those things can be pretty dry. justice scalia's opinions find greater presence in most constitutional law text books than any other justice on the court. maybe saved for john marshall, in the history of the court. and i think there are two reasons for that. the impeccable logic of his reasoning forces logic and ront the analytical skills we're trying to teach in law schedule. those are very good schools. to c of his opinion help us advance that pedogogical tool,

but they're also so much fun. justice scalia, i think in the rder citizenry, is best known for his quips. this court has been mistaken for a bit of spite. not be nd state would such a difficult subject that religion were as the court to be, somehinks it voadvoekz that can e indulged in secret, like pornography in people's homes. these things under his knife, yesterday ginsburg, praised him not so much for the language sometimes ut for forcing them to make their own opinions stronger. i think the most memorable one is that it was a love i e to justice ginsburg, if were to ever join an opinion like that, i would hide my head in a bag. united eme court of the states has dissended from the

mory to the john aboriginal fortunes of the fortune cookie. that is what makes him so fun to ead but it's the logic of the impeccable reasoning that make him such a long-standing pedogogical tool and also has had a transformative effect everybody else is talking about. i've had my own anecdote with him and he loved the of his tual sparring role in the court but also his role as teacher. i remember some years ago accident we invited him to give a commencement speech at my law chool, chapman, and the invitation got lost in the mail. this was when the anthrax scare on. going and i bumped into him one day visiting justice thomas's chambers, said we never got a decline from you. i want to come out, just not graduation. what do you want me to talk about? i said justice scalia, you can talk about whatever you want. he looked me right in the eye and said eastman, you're wrong

about lockner versus new york so lockner i'll talk about versus new york. i said that's great. 100th ar is the anniversary of it. why don't we reenact it. you can play chief justice. and we had a wonderful exchange due process.antive he said what do you get due process out of it. i said it's law. he said where do you get that. i said one day your successors n the court won't like that, siis, ero.ne was he said where did that come from. i said i think the state of sicily, your honor. point to be may about the nature of the constitution. y the way, one side on there, when alberta fell was handed down last year, oftentimes when former boss justice thomas has written his own opinion, i'll start with his see on because i want to what he said and he said

something in that opinion about 14th rd liberty in the amendment means protection against government interfering with you walking in the streets and other things or from working up or manufacturing materials of growth, like lockner raising bread and justice scalia opening, and he's coming around to joining the lockner view but i found out that he and justice thomas himself joined chief justice thomas's dissent, which the fundamental point and minor disagreement in udicial philosophy between justice scalia, which i think warrants our attentions for a role ong time, is on the of the principles of the declaration of independence and constitution, he whether it's filling in the understand ard to words like public guarantee or privileged immunities or the principles as

justice thomas says are inherent n the constitution, and this fight has been around ever since calder versus bull and justice iradel and justice chase disagreed on exactly the same terms. it's been around since the lincoln douglas debates when those terms.d on yesterday scalia stakes out his in a on most forcefully case dealing with parental rights and grandparents rights, may think they're unalienable rights and i think they're right to be protected but i don't think i force the rights to believe rights unalienable if they're not enumerated in the constitution. a tice thomas responds in very short opinion in adderand facility t with the government when there's not a specific clause that deals with the federal government, the clauses on equal protection, what have you, textually only applied to the states. he said this violents the

principle of equality that is inherent in our constitution and proposition, he cites simply the declaration of independence, paragraph 2. g back and forth on that issue between the two of them, that somehow involves the issue of lockner as well, and this comes to the forefront, i visibly, in their disagreement on the grounds to getting to the outcome in the second amendment case incorporation of the second amendment to the states, in mcdonald versus city of chicago. justice scalia had written personal right to keep and bear arms that operates federal government via the second amendment. then they're confronted with states. apply to the justice scalia from the conservative side of the bench, he most vocal opponent of substantive due process ever on criticrt, the most vocal of lockner is given the opportunity to apply the second mendment to the states vi at privileges immunities clause

where the legislative history of that constitutional provision was quite clear that that was one of the core things they intended, or accept the existing precedent of the court, this substantive due process he otherwise criticizes, and he went the process route, leaving justice thomas alone on that. i think there's a lot of fruit we can gain nquiry by looking at those areas they don't often always agree on the outcome but sometimes got there by different routes that are ery telling and worth our inquiry. thank you so much. host: thank you so much, professor eastman. nd thank you all for your brilliant and mauving moving statements, anecdotes and mag namity. a famous commentator, not a just e scalia alli, said after d.c. versus heller was decided, we are all originalists now, she said.

professor mitchell opined on some of these issues and heller, of course, established an individual right it bear arms under the second amendment but remarkable also because both the scalia majority and dissent tevens' resorted to the original public meaning. e could have some short answers on that, as short as a complex answer could generate. >> sure. mers can make answers. that thurgoodnion marshall wrote in the 1970s that fewer than 12 f persons and he argued based on originalist evidence that the jury trial and the sixth amendment required 12 persons because that was the original meaning. it's nothing new to see justice dissent.

and so everyone's an originalist to this extent. everyone thinks the original meaning counts for something. i'm not aware of anyone either in the judiciary or legal academy who thinks original eaning of a particular is absolutely entitled to no weight at all. ame, i don't think there's anyone who is an originalist in the opposite direction, meaning the original meaning is nothing else can be considered, such as very decisive or other types of consideration. it's hard to answer your question. everyone thinks original meaning is considered in interpretive texts, even nonoriginalists, but the most e time even john ic originalists like ork realize you have to reach originalist. for example, no one thinks the declare ourt should against paper money. it's something that's been and the r decades

reliance interests are too great. host: thank you. professors. professor: let me add to that. i think there's more to this. i suspect had it not been for justice scalia on the court and our ransformation of importance of originalism, we would have seen an entirely different opinion in heller. it would have balanced the public's interest and the threat had ns and we would have all of these brandized briefs from both sides about what the risks were. as it more beneficial to have gun control or lesbeneficial. that would have been the end of the matter. aybe this would have been some glancing nod at the text of the wouldn'tmeaning but it ave been wholesale front to back grappling with that fundamental question. yesterday scalia has become much more dispositive 50 years.d been for

kristin: i do think also that it's optimistic that justice calia has had an influence in causing the court to move more towards originalism. i think as one can be cynical do ity yes, justices will when it's their purpose but i'm optimistic in looking to see what happens going forward. just to use an example, though, which uphelda case riginalist, meaning of the confrontation clause. what does it mean to be confronted by the witnesses sixth you under the amendment. does that mean that it's okay to introduce out of court statements as long as they comply with well established hearsay exceptions or otherwise re deemed reliable by the court? and there, you had an array of justices joining an opinion that went back in a truly originalist fashion, went back and analyzed confrontation the

clause. this was an issue that was kicking around my term. we had a couple of cases where other way on the meant itnesses who were to be protected by not having them sit in the courtroom and ee the person that they were accusing of the crime. they could testify by video or a screen. nd the court upheld those procedures over justice scalia's original dissent. in a way it was good to see where you me around had a significant majority including some of the liberal justices adopting a different view. one thing i want to clear up. of the negative articles written by justice scalia following his death was written by jeff tubin in the new yorker. some of you guys may have seen that. negative retty article. eff tubin was a classmate and friend of mine. i was disappointed because i intellectually't

honest with what he described as calia's quote unquote originalism which he described in the sense that we have to decide what the disclaimers originally thought they wrote the constitution. which other panelists can allude to this. it has to do with the words that were written, the text of the provision, looking at crawford is a good example nwhat those words would have meant to juratives and members of the public and lawyers in the day nd the time that they were written. it's different than saying what hes alexander hamilton think was doing in writing these words and, of course, jeff tubin then says, well, you know, he therefore dismisses the exercise because how could these people have thought about things that were new? like like, you know, imaging technology that gets used to, invade the interior of

a house and figure out what was there.on in which is what we're going to talk about, where the justices ed the majority of the court and the originalists result was hat the fourth amendment protects homes, people in their homes, and that means home, the privacy of the home. even if new technology that the ramers never would have even known existed would have been used to figure out from the sidewalk what might be going on home. the so anyway, that's just a couple of those in light opinions where you see not only justice scalia, but multiple alongs of the court going with this methodology, i'm optimistic that there's going to there even on the onstitutional side. >> just real quick from the academic perspective, i've always agreed you can use originalist arguments if they get you where you want to be.

i think what's different at -scalia is that it is east credible and recognizes a plausible position to hold, that textualism and should be decisive in the sense that it should lead you to results even when you don't want to get to those particular results on policy grounds. and in that kind of view of originalism, at least when i was in law school, that kind espouse that kind of view on originalism when i was in law school, people would look at you like you had three heads, or worse. i d then, i wouldn't say -- think it's a great overstatement to say we are all originalists mean it in the sense that you think that originalism should be decisive, at least in the absence of precedence or some other thing that originalists would recognize as counter vailing, i don't think we're originalists in that way. but some of us are, but we can

be, and even within law schools. school hin the law professorship. -- whenreason that it's i said -- when i told my parents was going to go be a legal academic, they thought it was a bad idea. they said you're just not going o be able to survive there, because you just don't have the values they have and they're not going to accept you. been true.sn't originalists have a seat at the table as one of my colleagues said. the case that the originalists dominate but it's also not the case that we're driven underground and i think to a very large extent that is scalia cy of justice because justice scalia made it impossible to say that marginal or as a unimportant thing to consider, the way i see it laying into -- his legacy playing into the academic

conversation, which i think plays over to some extent in the broader legal culture as a whole. host: thank you, professor ramsey. thank you all. i'm pleased ms. mylex s mentioned the marilyn versus craig. cared very much about his personality humility honesty, required him to decide case after case for flag deskraecrator esecrators, texas versus johnson. he said in a different setting, king, i would opinion them but i'm not king. lately, ohio rd, versus clark, reliability test, test, referred to as that flabby test for criminal efendants who have been unlawfully searched. agencies, strative even though he was one of the

earliest editors for a magazine had tried to who bond versus sband, united states. opinions form the opinions? ms. myles: the second flag decided my was term. texas versus johnson was the before ie that came up '88 term and the trying to fix the problem court ad created in texas versus johnson. at the time johnson was decided, 48 out of 50 states prohibited the burning of the united states flag as a means of protest. that was essentially what all the statutes said, and the court, in an opinion by justice brennan, justice scalia didn't

write opinions in either texas versus johnson or eichland, the one that came up in my term, but he joined the other one, which was quite extensive, along with marshall, blackmon, and kennedy. what brennancalia, understanding n of the first amendment that went back largely through court it anent, i wouldn't call original opinion by justice brennan, but nonetheless it historical meaning of the first amendment as the beginningexfounded it with justice holmes various up to in leading cases the adoption of the view, that if words or expressions are made at the core hat's of what is protected by the first amendment. texas ally, the logic of versus johnson wasn't that complicated. it was really the setting that some of the

justices and for a lot of members of the public that can't can't even protect the united states flag? the fact is, the statute was written to prohibit the conduct only when it was as a form it was really, frankly, an easy case for justice scalia under existing first amendment precedent. he did say that if it were up to me, i would put in jail every sandal wearing, scruffy bearded who burns the flag. but, he said, i am not king. perfectly fine for the state to the prohibit me from putting my hand out the window while driving a car but what the state can't do is putting mys ifm out the window when i drive a car. he said it would have been fine if the state or congress prohibited flag burning altogether