and it is the way when a leader leads a society and that is where they continue. we have refugees. we have others there. what do we do about education for these kids? sec. pompeo: when the king was here, i spoke with the president on this very issue as well. there were a couple ideas on how we might do it and how the united states along with others might provide funding to those schools at the end of august. those kids are not doing something we don't want them to do or we don't have the wrong folks underwriting it. you know the challenges with that have frankly been mismanaged and poorly led and corruption for quite some time. we are trying to find a mechanism with the objectives you describe. >> you can watch all this online

at c-span.org. we will leave the last little bit here and take you live to a discussion on the supreme court , am, which just wrapped up discussion in washington with a number of reporters that covered the report, including robert barnes. this is live on c-span. the brains behind this .peration [applause] mull hauser. an hour moderator at the center of table. [applause] i want to take a minute to you us.alk to you about

we are the only bar association with advancing public interest law and similar practice. being a washington counselor of lawyers member allows you into a great events like this, but allows you to be a part of lawyers of all sectors brought together by this, cause of helping others. if you are not already a member, please join. you can sign up online or on your way out of the event today. i wanted to quickly note for those who are social media savvy that we will be live tweeting it . we are using the #scotus press. with that, i will turn things over to our moderator, the legal director of the aclu for the district of columbia. [applause] thank you very much. although those of you in the room have cards of our speakers the peoplee, for

watching us on c-span, and thank you to c-span for covering us again this year, i'm going to do a short introduction in order of how long they have been covering the court. on my far right, tony mauro, who 1979vered the court since and most recently for the national law journal. about written four books the court, including the companion book to this years c-span series on landmark supreme court cases. thed savage has been with los angeles times since 1981 and covering the court since 1986 and in recent years with "the chicago tribune." he is the author of the latest guide to the supreme court by the cq press. bob barnes joined "the washington post" in 1987. he has been a national editor and the metropolitan editor, but

returned to reporting in 2005 and began covering the court in 2006. adam liptak on my immediate right took over the new york times beat 11 years ago, but he has a longer history with the times, which he first joined as a copy boy in 1984 after graduating from college. after getting his law degree, he returned as a lawyer in the times legal department. a decade after that, he became a reporter covering legal issues. me onuse sitting next to the other side is a reporter and independent contractor with scotus blog. until recently, she was the editor. i think my mic has gone off. she was one of its two cofounders. before turning to full-time blogging, she served as counsel in more than 200 merit cases at

the supreme court and argued there a couple times. amy and bob is a reporter and producer for cnn politics covering the supreme court and other legal issues and guiding its coverage on supreme court cases. before joining cnn, she cover the court for abc news going back to the bill clinton era. unfortunately joan, who is on your programs, is represented by the empty chair at the end of the table. she has been for many years, but was pulled off to an urgent assignment today. we can only guess what it might have to do with and is not going to be able to join us. this is not a panel of expert lawyers, although most of them are. our plan is to talk about the court as an institution and as a

collection of individuals and about what it's like to cover the court as journalists. we do plan to save some time at the end for questions so you might be thinking about the questions and being ready for them at a quarter of 2:00. to begin, when supreme court bang herpamela cowpens gavel on wednesday morning and said the court was in recess until the first monday in october, most of us thought that the big news from the court was finished for the term. at 2:06 p.m. that afternoon, i got in the mail from "the washington post" that justice kennedy was retiring. at 2:01 p.m. come i got the same thing from "the times" and the same thing from nbc. got to me post" first, i will start with bob. did you know this was coming? when and how did you find out? robert: thanks for having me.

how about now? is that better? at first, thanks for having me. it wasnow wa coming? we were all suspicious. like everyone else, we thought there was a chance. we had all written a story that said justice kennedy retires and had it edited that morning. it didn't happen while they were on the bench. there was a feel. i was one of those who did not think he was going to retire until the beginning of this week. i started to think by some of the things the court was doing, putting off some cases that i thought they might except for next time, i thought maybe they weren't sure if justice kennedy would b the back. we were all sort of on high alert. down, ie decisions came

usually go back to my office after writing the sort of first version of things. there was a weird vibe. there were a lot of closed doors that were not usually closed. it's a sort of made me think something was up and then it was like a fairly dramatic moment aids justf a sudden started rushing out of the public information office holding these pieces of white paper and we all knew exactly what that meant. that is how we found out about scramble was the usual to get online. were you all still at the court in case something happened or did someone have to turn around on the bay bridge? [laughter] >> i had gone home actually. bobowing up on what

said, we should have had a little dead giveaway and we will talk about the process in which the court announces decisions and where different members of the press are, but some of the reporters in the courtroom that day said that mrs. kennedy was there along with three of the kennedy grandchildren. amy: i think that should've been assigned. i had spent the night before -- i had the kennedy retirement piece ready for a couple of months and i spent the night before working on my justice thomas retirement piece. there's a little bit of an echo chamber in the supreme court press corps. people looked at pictures with him and the vice president and said that's it, he's retiring instead. arthur: david? david: if you people are here for insight, i think you've come to the wrong place because i thought if we had this lunch at the end of may and somebody had

said, do you think justice kennedy is going to retire, i think some of us would say there's a lot of rumors to that effect, but he's not going to. thehought it pointed to decisions of gerrymandering and masterpiece cake, which neither had been correct. i was thinking about doing a term end of story. i assumed justice kennedy was probably not going to retire. when we left the court, i thought the chances were very slim. the only good thing i did in the last month was go up to the court at one of the social event where they invite some of us upstairs. some of the justices were milling around and talking. justice kennedy was there with his wife and he's a great storyteller. he had five or six reporters listening to him talk. mary, ando his wife, i said i'm concerned about these rumors about your husband retiring. she said, he's been here for more than 30 years.

we'd really hate to see him go. she said, he did 12 years on the appeals court. [laughter] and then we started talking about the grandchildren. i thought she wants him to retire. she said he hasn't made the decision yet. i went back to the office and immediately started writing a story to be ready to go. been clueless most of the year, but fortunately i was saved by that one conversation. arianne: i was there. and i was tinkering with my justice kennedy doesn't retire story. and i was playing around with that lead. i said to my editor, you know? i'm not ready for that. looked that every time the opinion came out, what do you think, i was about 50-50. i was interested in a little tea

leaf that did not get attention. wasn'tas one case i paying attention to and kennedy wrote the separate opinion in it. he was calling for the court to revisit something called chevron , which happens to be how you it interesting to me wisely choosing this opinion to write that. is he trying to tie a lot of those around it and why this opinion and something that i would expect something more from gorsuch then kennedy, but i had both stories ready to go. i was 50-50. arthur: tony? tony: i also had a prewritten story and i had seen some tea like mrs. kennedy showing up at the court that morning.

remembered thurgood marshall when he retired that it was the final day of the term, but he was not announced during the session of the court. he decided to tell his colleagues afterwards. sometime in the early afternoon was when the announcement came out. theought it was possible same thing would happen with justice kennedy. i wrote a story of an atmosphere piece about the court that morning. theinal sentence was kennedy watch is not over yet. for what's that worth, which is not much, i was at least thinking that it was going to happen. arthur: so did justice kennedy's colleagues know when they were on the bench that morning and kept their poker faces or did they find out roughly when you

did? any idea? >> i believe the press release put out said he informed his colleagues that day. arthur: adam, you've got a front page story in "the times" this morning about the white house's quite campaign to get justice kennedy to retire going back almost to inauguration day. one of you tell us about that -- what it took to put that why don't you tell us about that and what it took to put that together? adam: it was one of president trump's most dearly sought wishes. he arrived in office with a vacancy with justice scalia's death giving him the opportunity to put one justice on the court, but it was a one-for-one conservative swap. what he wanted to do was shift the balance of power on the court and almost from the moment he got there, they were angling

for that second seat. they knew that justice kennedy was 80 at the time and knew he was considering retirement so they did everything they could. they were very smart about it. however ineffective the trump administration has been in other realms particularly administratively, the judges have been very effective. the very fact that they put justice gorsuch on the court was telling because justice gore gorsuch is a kennedy clerk and might reassert kennedy that has legacy would be secure. for talk of the next vacancy, the two names floated in the white house -- what do they have in common? both kennedy clerk's. donald trump praised kennedy -- wholesomely in a lieu of what he called justice roberts, an absolute disaster.

there was a connection between the trump and kennedy families. justice kennedy's son was a banker that worked with donald trump. he apparently moves in the same circles as donald trump sons. at ivanka trump showed up the court last year at the invitation of justice kennedy. it did look like this was a concerted and effective effort to charm justice kennedy off the court. i believe justice kennedy said he retired when he won to spend more time with this family, but he did not the tray any reluctance to stepped down under president who cuts a different profile that justice kennedy, who is sort of a little abstract, mild-mannered, very civil, not qualities you associate with donald trump. but he didn't hesitate and that may have been a consequence of what looked to be a very well executed plan. ariane, he did a story

last night about -- you did a story last night about white house counsel and the likely timetable for announcement based on people you have been talking to. roleus about don mcgann's and how soon we can expect a nomination. not only did the conservatives have big wins during this time, there were more dozen cases where the conservatives one, but it was a huge win for the trump administration, starting with the travel ban, which was sweet indication for the president who had lost the load on earlier versions. this week there was an interesting lower court opinion that not a lot of people paid attention to, but has to do with nationwide injunctions. that is when a court1 block something863 patches for the block something not

just for the plac plaintiff for country.o they are nervous about these nationwide injunctions being put in place. big wins for the trump administration coming out. keep in mind that is gorsuch in the 5-4 side. what's interesting to look at is done again, one of the earliest members of the trump administration. way back in the campaign, he decided with the federalist society to make judges a priority, supreme court and lower court judges. he really push their working through the senate majority leader and chuck grassley and pushed an unprecedented number of judges through. you really saw what happened there.

you saw the travel ban and the lower court ruling in their favor. i think they come out of this ash this opportunity now adam said to really shift things and the white house is assembling a team that a super successful with the gorsuch nomination. they are hoping to announce the name of the next nominee as early as july 9. you never know if that's going to happen, but that's a pretty ambitious timeline. the democrats, on the other hand, this is their worst nightmare and a lot of wasted they are gearing up themselves a little bit of disagreement on how to go at this.

are you going to block hearings ? they're looking at away to combat the list. list.all it #ditched the they're putting a focus on roe v. wade and what might happen and put a focus on the affordable care act and the trump administration's recent brief, saying they would not defend key portions. some are feeling a little bit flat-footed knowing that after the garland nomination fell apart. i will summer before the presidential campaign. i look at politics through the prism of the court. i was a little surprised they were not keeping up with that .rumbeat about garland to some people thought he was too much of a consensus candidate.

now they are seeing these opinions coming fast and furious and their gearing up for a big fight. the question is how much can they do? david, you have actually been on the seat long enough that you covered justice kennedy's confirmation hearing in 1987. and you cover the unsuccessful nominations before that. you have covered every single confirmation fight. what can we expect the summer? i do remember the confirmation battle as you mentioned. justice kennedy's nomination was preceded by reagan nominating judge bork. that was a disaster. i remember actually interviewing judge bork. that was back before supreme court nominees were put away in

the closet. but are not allowed to talk orton gave me an interview. -- bork gave me an interview. then judge ginsburg was nominated and that was a disaster also because it turned out to smoke marijuana's -- he smoked marijuana as a harvard law school professor and that was a no-no back. when anthony kennedy was nominated, it was almost like an anti-climax. here's this plain-vanilla guy from sacramento. as i recall, it was a fairly smooth hearing. i think people were exhausted and just wanted to get it over with. david: what i remember from that time is that then and now there's a big difference between certain republican nominees.

bork was a guy who spent his sort life criticizing the of liberal court of the 60's and 70's. he was opposed to a lot of the civil rights decisions, certainly roe v. wade. bork was a guy who was a lifelong critic. if he got on the supreme court, he was going to change a lot and overturn a whole series of presidents. -- precedents. , alia was the same thing hard edge, heart conservative, let's overturn. kennedy was a different person. he was a conservative guy. he came up in the reagan administration when reagan was governor. he's a catholic, conservative, pro-court, but he had none of that passion that says i'm going to, and sweep aside the 1960's and 1970's and overturn. e was much more of a temperamental moderate, status quo conservative.

there are not a lot of moderate republicans left in washington. that's what we are losing, the last of the sort of moderate republicans. the really great likelihood is the trump administration is not moderateseek out a republican of the anthony kennedy mold. they are going to seek out somebody who is a much more committed conservative and much more willing to go back and say these earlier decisions were wrong. is certainly in that category and we got to the constitution right and overturn them, so i think that is where they are headed. arthur: is anyone willing to hazard a guess? if they do that, will they lose to republican votes in the senate? question iseresting not that they will necessarily nominate someone who is going to say that or has said that in the past. with neil gorsuch, he looked at

his lower court opinions and what he has written, he had not written anything about abortion or the second amendment. i did a panel last fall and this was after just one sitting. he joined the court in april. one of the panelists said that it turns out the federalist society to him a lot better than his former law partner's. finalists when trump nominated gorsuch was william pryor from alabama, who called roe v. wade an abomination, they will not put someone like that of. they will put someone up who may have a lot of confidence, but for whom, it will be hard to point to something to point to his or her background that gives democratic senators something to work with. arthur: anybody else on this topic? let me ask then with justice kennedy's retirement, how do you think he would like to be remembered as a justice?

do you think that is how he will be remembered as a justice? any thoughts about that, bob? robert: i guess i don't know exactly how he would want to be remembered. perhaps if he did, it would be some sort of defender of liberty and dignity and civility, which are words that come up a lot with him. i think what he will be known for more than anything is gay rights. he wrote every opinion, every positive opinion on gay rights for the court, topped by same-sex marriage. clear inis legacy is that way. ist's interesting about him

that because he is on that side of that issue, but he also wrote citizens united, which is at least in my experience talking to groups about the least popular decision that any audience ever talks to me about ., he has a mixed legacy. the interesting thing is we expect judges to sort of call them as they see them each case at the time, and yet there has always been frustration from both sides about kennedy that neither the liberals nor the conservatives could really count on him and that he was always in play and that he was always the one that they were sort of trying to angle for. that's you could argue the lack of a firm philosophy or you could argue that it is someone who does take them case-by-case. arthur: any other thoughts about

that? or i can move back to more familiar territory? with fiveended consecutive workdays of frontpage, closely divided decisions. sales tax on internet sales, cell phone tracking, free speech for crisis pregnancy centers, racially discriminatory legislative districting, attorney fees for a employee unions, the travel ban, and even a 5-4 antitrust decision with a very energetic oral dissent by justice breyer. there were at least four other decisions during those five days. how do you manage to cover all that or do you even try? can sendhe post" backup reporters because they are here in town. do you have any backup or are you one man baseball team? david: i'm a one-man -- i do it myself.

usually there is one big case of a day or maybe a second one. i could do to stories. if you want the fourth or fifth best case of the day, you need to go somewhere else. [laughter] >> the court won't admit to this, but it's pretty good about spacing the cases out so we typically don't have to handle more than one real blockbuster a day. arthur: do you think they do that for your benefit? [laughter] i remember the chief justice accommodated us. the press wanted it, but for any other reason, i cannot think of it. arthur: you are our tv reporter. how fast do you need to get on the air after decisions come down at 10:00? ariane: it depends. >> they cut us off down here. [laughter] ariane: it depends where we are

and the term. in the last week, we have an entire team that works on it. we get quickly onto a conference call and get cracking as quickly as we can. this term -- i'm thinking the last week -- we didn't have one of those tangled opinions that we have had before. those are the ones where you look at it and think uh oh, what's going on here? i can think of vote counts that were not exactly what i thought they would be, but i did not feel like we had one where we thought, whoa, what have they done? we have had that in the past as there was an affirmative action case. and maybe a little bit with masterpiece cake shop, the case about the baker. that was closely tailored to the case at hand. you have to look at that.

that was a little bit easier this time i would say, particularly in the last couple weeks that are so crazy. arthur: the point that she is making is a really good one because there is such a pressure to file things quickly. we can write one or two different versions of the story and take 30 seconds or a minute to say file this. it's a great opportunity for making a fool of yourself because you can save the court struck down this. you push that button and then go wait a minute. david: it's an interesting scrambling toof read the opinion and check the votes and make sure they actually did one of the two things you thought they might do and then push the button. it's a fun, hectic time. >> what david said is sort of

the dirty secret of our profession. we do pre-write these stories. ap and wire services used to do that all the time. tony: pencil press, the newspaper reporters -- and david remembers this too -- we would get the opinion at 10:00 and then we could peru'se them and have lunch at the court. sometime in the afternoon, we would wander back to our office and write the story. that just isn't possible now. you would have to have it out within 10 minutes. i don't think there is anybody really who could do it at less be than that and get away with it -- speed than that and get away with it. there is a tremendous an errorty of making

like this. [laughter] >> i think it's on. tony: hello? wrong. you can get it sometimes a footnote on page 43 is really important and you are not going to get to that in 10 minutes. so it's just part of what we have to do now. arthur: thanks. i look for examples of the kind e was talking arian about and i can usually find one every time. in april.one at the end of the syllabus, they gave a lineup of who wrote what. here's what came out concessions gainst them you -- concessions against dimya. justice kagan gave the opinion

of the court with respect to part one, b,, four, and five. with opinion and are spaced apart 2 a.m. for a, justice gorsuch filed an opinion concurring. chief justice filed a dissenting opinion. justice thomas filed a dissenting opinion. that was 96 pages worth of opinions. it comes out in a little booklet that looks like a short novel. , how farr 10 minutes do you get? you are seldom going to go wrong with saying 5-4. [laughter] the one i remember being worried about was the sports

gambling case. there was a law in 1992 that said states may not authorize sports betting, but there was a second provision that said individuals may not license, sponsor, promote sports gambling . they were challenging the restriction on the states. the court agrees it is unconstitutional to hamper the states like that, but the government said all well and good, but nonetheless sports betting is illegal because there is another provision of the law that says individuals may not do it. david: i don't know about the rest of you guys, but i was worried about writing a story that says supreme court legalizes sport betting, but actually they didn't. anyway i always think there's a certain number of landmines that you are worried about walking right into in the cases. i don't know about the rest of you, but my pre-write for the more complicated cases look like the choose your own adventure books we all read when we were little.

you can try to game out after the oral argument to different paths the case can take. there's only so much you can do. in the partisan gerrymandering case out of wisconsin, the idea that they might dismiss it for lack of standing was not a huge surprise, but the result in the maryland case was more of a surprise. there is a danger that you have this pre-write, but you don't want to make that the narrative for the story. you have to read the decision and make sure you are actually reporting what it says and not what you thought it was going to say. ariane: going back to the first case, already you had to look and see who was where and what's the vote count. that was interesting, too, because that was one of the earlier cases. justice gorsuch cited with the liberals. have a arguments, you tea leaf about that.

scalia, does not like vagueness, particularly when it comes to criminal defendants. we sort of knew there was a good chance here that gorsuch would go with the liberals, but that would not mean he was changing his jurisprudence. in fact, it was a move where he was following in the footsteps of justice scalia. i wrote that. you had to put that pretty high up because people were thinking, who is justice gorsuch? this is his first term on the bench. is he going to be a solid conservative or not? after i wrote it come i got a note from one of my bosses saying -- and i do not think identity enough job -- saying what is this? he sided with the liberals. it was very interesting. there were those things on deadline that you have to look for. and that instance, you can be prepared for it because you knew it might come. just when you were talking about

that case, it brought me back to that. in addition to writing in-depth analysis on your own blog, you often help to cohost the live blog on scotus blog, which is actually online as things are happening. and -- i can't even bring my apple watch into the courtroom because they are afraid i might report something. how do you manage to do that? comedy people are listening in? -- how many people are listening and? in? no electronic devices allowed in the courtroom so you have to go up and listen to the opinions being announced. there's something to that to see whether mary kennedy will be there on the last day of the term. they can add a level of nuance seeing how the justices react to each other while the opinion is

being read from the bench. one of the most vivid memories i have of being in the courtroom was when i was in the bar section as a lawyer back in 2003. it was the last day of the supreme court's term. we expected to see the decision in lawrence versus texas, striking down texas is a ban on consensual sex between two adults. this was a case because we knew it was the last day, we know it was coming. -- thef thoug lawyers lawyers and the gay-rights community was sitting in the bar section. as justice kennedy was reading the announcement from the bench, talking this is a matter of fundamental human dignity, the tears are pouring down the faces of some of these lawyers. another memory was the decision .n a case is reading sotomayor

her very sharply written dissent from the bench, the other judges are visibly uncomfortable. there looking around at the crown molding. justice was recused because she had been a solicitor general when the united states filed a recent case. she was the only one who looked happy to be there at the time. [laughter] you can have that level of nuance where you can be in the public information office. it's quite a scene, especially on big announcements days at the end of the term. there's an unwritten protocol for who stands where as the opinions are handed out at 10:00 when the marshall bangs her gavel. the audio comes on in the public information office. justice alito has our opinion on number 17 whatever of janus versus american federation of municipal state employees. they start handing out the opinions.

, theolks really in a hurry wire services reporters, grab the opinions and turn around and literally run out of the room. we all know to stand out of the way. if you are not there on a regular basis, you don't necessarily know that. , they got reporter body slammed the other day. someone lost their shoe. the day they announced their travel ban, having learned from this experience, one of the wire reporters turned around and said to a reporter standing at the doorway between the public information office and the pressroom, he said you probably don't want to stand there. she laughed because he thought he was joking. other said no really you don't want to stand there. in the scrum, somebody said did somebody lose issue? a shoe? [laughter] i go back to the pressroom and start trying to decipher it. who wrote the opinion, which will usually tell you a lot? what was the vote?

you try to start pulling out the money quotes from the decision. rite justices w introductory paragraphs that are more helpful than other justices. this is the question and this is our answer. sometimes you really have to wade through and see what people say and then turn to the dissent. we have had as many as a million people on the live blog back when they announce the decision in the affordable care act case. that was usually a one-off. good numbers, but nowhere close to that. arthur: who is first on the line? who gets the opinion first? amy: the wire services folks. arthur: and do the rest of you sort of have a regular alphabetical order or custom or do you elbow each other around? >> it's a little bit of a free-for-all, but the rest of us

are more civilized. [laughter] >> one thing we have talked about this sort of the difficulty in translating a decision. often we are faced with translating something that happened that is not a decision and we don't have much guidance on. i mentioned before when the court did not take a couple of cases that were follow-ups, one was this case from the state of washington where a florist is basically in the same situation as the colorado baker was. she said she serves all people, but she won't do wedding flowers. that case have been waiting for the court to act on. it andrt could not take the washington courts ruled against her. the court could leave it in place. the court could accept it for the next term. the court could send it back in

light of their decision that masterpiece, which really did not say much at all about the facts of the case or how the lower court should now decide that case. so they decided to send it back. it's always in one sentence. there's no explanation for that. that is where sometimes when we read about the court, we read about it in sort of a form of educated speculation. editor's will often say to me, who said that? i say i do because there's no one else to say. sometimes you have to decide some things on your own about what the court's actions might mean and sometimes you might be wrong. one reason i like to go watch the decision days in june is the possibility of oral dissent. in this term, there were six. one byjustice ginsburg,

sotomayor, one by justice kagan, and four by justice breyer. >> check your math. arthur: my math is wrong. i think that is the most since the 2012 term. in the last couple of terms, there were only two or three. is this a random variation or is there another explanation? how much is the fact that a judge chooses to do an oral dissent affect your reporting of the case? >> i would just like to point out that three plus four is seven. [laughter] arthur: i'm glad i'm a lawyer. >> what a know it all. [laughter] i think it's a consequence of a fantastic route on the left. the left lost and lost and what do they do? they are dissenting from the bench. it's an unusually high number. i think most of us noted and

the some fo formula in side of profound disagreement, justice breyer dissented from the bench. adam: none of us go upstairs anymore. we are not able to convey the drama that some of us had colleagues in the courtroom. again i wasn't there, but justice sotomayor's oral dissent from the bench was very strained. >> let me help cnn with technology. [laughter] ariane: i was not up in the courtroom. i wish i were. our amazing colleague at cnn was up there. i did not have to be up there to hear the pinched tone of elena kagan on that unions case.

mad and that really struck me. i did not even have to see it. i heard it coming through the audio. the scene that you all missed that you cannot hear was the day that the antitrust case came down. the court-martial didn't realize that justice breyer was going to do an oral dissent. she bang the gavel to say that the court is adjourned until tomorrow. justice breyer was adjusting his microphone. the chief had a sort of stand up and wave everybody to sit back down. everybody was laughing. justice breyer started out with a big grin, saying i realize it's only an antitrust case, but some of us think it's important. [laughter] justice thomas, who just delivered the majority opinion and who sits next to him, had this and norma smile on his face and was lasting -- enormous smile on his face and was

laughing at justice breyer's joke. and then brian delivers an opinion basically saying that thomas had swallowed the snake oil that the lawyers were selling. ariane: breyer was an antitrust law professor. when we realized that justice breyer was reading a defense from the bench, the reaction was you got a be kidding me. arthur: people often say the whole court really changes with every change of personnel on the bench. is that consistent with your observation? if so, how has the court changed with the new justice this last year and a half? or is it just that there is a new justice? amy: justice scalia was either credited or blamed depending on your perspective on the hot bench. if you go back and listen to when justice ginsburg was an

advocate before the court and she gets the talk for 10 minutes straight without interruption, so i think a lot of the lawyers are little bit jealous. replacing justice scalia justice gorsuch -- i think on the one hand he is quieter. during the janice case where everyone knew he was a swing vote, he did not ask any questions at all. he can sometimes be a fairly active questioner and sometimes relatively quiet. the one thing that justice gorsuch tends to do is that he will really press a point in the way that some of his colleagues don't. he could be trying to make a point with a lawyer, trying to get the lawyer to concede something. i'm thinking here of a colloquy he had with michael driven, the deputy solicitor general and the cell phone privacy case, trying to press the point that the criminal defendant had a property interest in the cell phone record that his service provider had.

if you have ever seen michael friedman argued, he is incredibly well prepared. there is no way that justice gorsuch was going to get him to back down. he had some unique views on the laws. i heard justice kagan talk about this when she was the junior justice. at the conferences, they go around the table and vote. as the junior justice, he is the last justice who gets the vote. this is his way to talk to his colleagues. he has some unique views on the law that he will press at some length, but i think there are different motivations going on. arthur: adam, you wrote the other day that justice gorsuch had turned in the most consequential freshman performance by a member of the spring court in living memory -- the supreme court in living memory. how so? adam: that's a good sentence. [laughter] we talked about the one case in which he joined the liberals.

in 14 others, he provided the decisive vote going the other way. that in everyt single one of them that justice merrick garland would've gone the other way. he was also notwithstanding some reports of friction with other justices entrusted with very big cases. the biggest business case of the term was the workplace arbitration case epic. junior justice is weight years to get a decent assignment. this was the second assignment. chief justice roberts trusted sophisticated a and sound opinion that would keep the five conservative votes. he also hit the bench with a lot of self-confidence. as amy was saying, he has a lot of well formed, idiosyncratic views. he is writing a lot. it's got to be the reason why in issuing only 59 signed decisions and argued cases, the lowest

number since the civil war or something, they nonetheless took forever to get them out. that was in large part because there was a lot of separate writing and a lot of that was attributed to justice gorsuch. amy: just a minor data point to had a it adam said, he case. there were 15 5-4 decisions and he wrote the majority opinion in five of them. the lines of how many 5-4 decisions there were, last term a year ago, the court was unanimous more than 57% of the time. this time that dropped by 20%. they were unanimous only 34% of the time, quite a dramatic change. with relatively few exceptions, splitg 5-4 decisions along party lines, the party of the president who nominated the justice -- the travel ban, the union dues, voter registration, the employment arbitration case.

is the court becoming as politically fractured as the rest of washington or are they individuals calling them as they see them? >> yes to the first. they are becoming as fractured as washington. a lot of the cases they took this term that caused this big fight where they took conservative challenges to laws in liberal states. ,he janice case, for example something like 22 democratic leaning states have these laws that allow for agency fees. the other 28 states have right to work laws. the supreme court took a challenge to the democratic state laws and overturn them on a 5-4 vote. david: the five republicans voting to overturn the democratic law the four dissenters. the masterpiece cake shop case was a religious liberty challenge.

21 states of state civil rights laws that say if you run a business, you must provide full and equal service for all customers, including gays and lesbians. mississippi does not have that law. texas does not have that law. california, the west coast dates, illinois has that kind of law. they're taking that first amendment challenge to take a cut out of a democratic states law. there were quite a few cases. there was a california law that says these crisis pregnancy centers have to put up a little notification that says whether or not you have licensed people on staff. they struck that down. you can't tell people that you do or do not have license medical professionals on staff? that was a first amendment violation. i think part of the real divide this term was the cases they took up. it was split very much. they had the voter purge case from ohio.

ohio has a fairly aggressive move to remove voters from the rolls. guess what the vote was? i follow this from a distance. i would predict the five republican appointees would see it one way. it's a fairly complicated statute. the four democratic appointees would see it that other way. and you would've been right. a lot of that is what's going on this year. ariane: i think that's right and the 2016-2017 term may not be the best one to use as a point of comparison. for most of that term, they only had eight justices. a lot of their decisions were like let's get along and issue a narrow decision. the cases that they would of been hearing during much of that term for cases that they had agreed to review when there may have been uncertainty about when they were going to get a new justice and who that justice might be. amy: in the weeks and months

after justice scalia's death in february 2016, they were not taking much in the way of cases. the ones that they took were pretty uncontroversial. i thought -- i thought that there were some examples or i can think of one at least where i think they sort of put aside .heir differences a little bit on the partisan gerrymandering case, for instance, where kagan thatd with the rest to say this case needed to go back for more work, but then she used that to write a very, very long concurring opinion that basically laid out how you could bring a successful case against partisan gerrymandering and made

the case against partisan gerrymandering in that opinion. i think it ended up sort of being more effective by doing it that way then it would've been if she had done it as a dissent. they areometimes strategic about those kinds of things. >> i think bob is quite right. the decision was unanimous, but that's a little misleading because it was clear that there were four votes. forn represented for votes people ready to do something about partisan gerrymandering. if gorsuch was not on the court, that would've been five votes to do that. >> i don't think it's necessarily right on friday. you know what i mean? when that opinion came out monday -- >> being right for four days is pretty good. [laughter] >> i think bob was correct to say the day that opinion came out that elena kagan was saying we passed on this case because

of standing grounds, but there's still a good argument for here's how we go forward on partisan gerrymandering in the next case. that's not going to happen. the trump appointee is not going to be a fifth vote to strike down partisan gerrymandering. john roberts thinks it's inherently political. there is no way to say it's too political. it's political and we should stay out of it. that's what's going to happen. there's not going to be a 5-4 decision striking down partisan gerrymandering. i'm not completely sure this is apropos. if somebody talked about how sharp justice kagan's dissent was, and i think she feels very strongly about the union fees, but a lot of what was going on in janus was also a battle over the idea that courts should not lightly overturn this just because they thought it was wrong. i think we will be hearing a lot about starry sizes.

roe v. wade just to give you one small example. , which on that note means a lot to us and maybe not the general public, you look at she went hard on that issue. why are we overturning the precedent here? why are we doing that? it's interesting because in the travel ban case, justice sonia and try torought up make the link. that and says to that's not fair. to me a little bit out of nowhere, he overrules it. on one side that i felt like kagan was talking to the chief and you had that tension between sotomayor and the chief.

that was very interesting. does anybody think the chiefs paragraph was written after he had drafted the >> of course. [laughter] >> he said so. he refers to it. unusual was the united states changed its position in four important cases, arbitration, the voting rights case from ohio, the union dues case and a case about judges are officers of the united states who have to be appointed by the head of the agency. did this annoy the court? if it annoy them, did it annoying in the make a difference? certainly did not annoy

them enough to make any difference because they won all the cases. it was interesting. this used to be something to chief justice was very tough on the solicitor general's office duringthe previous -- the previous administration. >> still not working. >> lost all communications. [laughter] and, he did not bring it up very much, this term when the other side was -- now that the tables have been turned on that, justice sotomayor at one point they call out the solicitor general and said, by the way, have intensity changed your position this term? beset three. i think -- he said three. i think it was actually four.

it is not surprising a conservative administration changes its position to a conservative position and then has it upheld by a conservative court. >> i don't really think the court should get that upset. administration position was based on his 1977 decision that the majority then overruled. sg's office will say it is wrong, they will disagree. kagan, recovered and eventually gave, talk. elena kagan being -- coming from the solicitor general's office gets the talk with another former solicitor general. i think it was before this came out and she talked about how serious it was. her tone was like it is a big

deal. i thought that was interesting. part and parcel of what is going on in washington where the norms of behavior are sort of shifting. people said we never did it that way or you are not supposed to do that like. nobody says you can't do it that way. it just becomes more partisan. addition -- hello. in addition to -- [laughter] decisions,rting on the covert world arguments. you can be upstairs on day when they are not handing out decisions. where the any highlights of this term in the oral argument. anything that might have changed the outcome? any takers? tony? >> there was -- i don't know they changed the outcome but there was one rather interesting

one where chief justice roberts really got angry. primarily at justice breyer, but principles ofl on how cases are supposed to be argued. the city of hayes versus bond, day criminal case. justice breyer was asking the lawyer about some factual case.ation about the the lawyer said, this isn't in the record but -- he was starting to answer the question and robert said, wait a second. , you is not in the record are about to tell us get he just as much -- just the same as if somebody came in off the street and told us this is what

happened. it was really kind of tense. the lawyer coped with a very well. did not note quite what to do a justice breyer said he don't have to answer that question. presumably because chief justice roberts was so angry. roberts said he can answer the question but take notice, i will not take any -- i will not give any credence to what she is going to say because it is not in the record. it does not sound like an issue to get really angry about but that is if anything chief justice roberts feels strongly the case so, anyway, lawyer fored and the the defendant haven't dealt with

this, the chief justice's anger, she won because it was the lower court case that was upheld. >> it's also the case for people read about the oral argument and that everyone went online to find examples where all the justices had gone online and on their own research in various cases and cited in their opinions. there was plenty of fodder. don't put extra evidence into the oral argument. the briefs are full of them and they are routinely cited. >> i'm curious what some of you think about this. one interesting phenomenon in the court is soanya sotomayor talks a lot in the argument. justice breyer is the other one who halfway through says, i'm confused as to what this is about. he talks for a while and doesn't ask a question.

justice sotomayor talks a lot. sometimes when she doesn't that it is a conservative side or whatever, she will keep talking and basically the council starts the answer in she will talk right over them and keep talking and keep talking. she had some really long dissents at the end. she seems to be speaking to the wider world, getting a message out to the wider world. it doesn't look very effective inside the court. kennedy and roberts will sit back. roberts is tempted in her up and say everybody should ask questions and give the -- she sort of filibusters. i'm curious what the rest of you think about that. she is playing a different game than a lot of the other justices at world arguments. -- oral arguments.

>> i think it is also true for dissents. she gets very good feedback from her crowd about it. itis not clear how effective is as a matter of legal strategy and jurisprudence, whereas elena kagan it was not far from sotomayor ideologically plays a much more strategic game. >> i think you saw this in the truck versus hawaii dissent. -- trump versus hawaii dissent. you have riordan kagan with the kagan. bryer and the majority relies on this exemption and waiver provision but we're not sure how effective -- if it's actually an option for people who are trying to come to the united states. it was the sotomayor-ginsburg dissent that was strong, talking about this is a muslim ban. >> the travel ban argument was my favorite moment where she justice breyer, one and at get

gets too many questions try steve martin time. she tries to give extra time to enough to get you is a lot of questions. the sg's extra time on the travel ban argument. neil cudgel gets up. the mark of a good argument is just as the red light comes on become to your closing statement and you landed like your figure skater. the chief justice says you can have five more minutes. [laughter] >> i forgot that. compiles the fabulous statistics at the end of every term. looking at the one for this term, total questions for argument. 124 average total questions for argument. two permitted in a 60 minute argument. how can anybody answer a question?

>> amy is dealing one who is an argument. >> whenever teaching i talked about somebody got up and responded. he began with a traditional mr. chief justice, may it please the court. he got the word "the" before justice sotomayor asked him the first question. i think that is why the lawyers who are youwyers regularly are so good because they managed to answer the justices questioned and we then -- weave in their arguments. if you going second to try to address with the other justices have asked during your opponent's argument. >> you can tell when someone is a newcomer. they will come to the court and given opening sentence and say i have three points to make. as soon as they make it to one,

for the next 15 minutes -- sometimes justice kennedy would say could you get to that second point now. the idea is you will get three points, no, that is not going to happen. >> is an amazing talent. there is a fellow named tom goldstein that the talent you did mention. when setha time waxman was giving an argument. three justices asked him questions at the same time. he just sort of stood back and said whoa. betty answered each question in order -- then he answered each question in order like it was the easiest thing in the world. tom does that as well. sometimes -- i would have fainted if somebody

did something like that. some lawyers have fainted through history during oral argument. it's an amazing skill. >> i don't know if it is true that there is a story about a lawyer who argues before the court that he practices. if you and your sentence and pause and the justices asked the question, he practices causing in the middle of the sentence so as not to give them the opportunity to jump in. >> one thing this points out, it is hard to write really fast. the quality of the efficacy of the court is just fantastic. the questioning is fascinating. the justices are very good lawyers, able public servants. they are not typical of washington public servants these days. it is a real pleasure to cover it. >> another statistic that caught my eye and the scotus blog pact askedey keep track of who

the first question at oral argument and how often. i thought it was remarkable. the first questioner this term, justice ginsburg, 54% of the argument she was the first questioner. justice sotomayor, 17%. between the two of them 71% of the time one of them was asking the first question. that turns out to be pretty consistent going back. last term, 52% of the time first question. the term before, 61% of the time. two terms of for that in the same range. i had noticed watching that. is that an obvious phenomenon you have seen that i just wasn't aware of? is there some reason why they feel the need to be the first one out-of-the-box so often? >> i got the impression justice ginsburg,-- justice there are a couple of things she wants to get clear right away. she always has something she is

unclear about. it is not a part of the argument. she is saying before we get into this, does this mean -- she wants something to be clarified. >> especially if it is something to do with procedure. she is the court's civil procedure maven. if there is a flaw that makita corp. from getting to the merit, she is the one that will identify at first. >> there was a study that -- it's a little controversial, but it says the female justices are more apt to be interrupted. perhaps that's why they want to go first. >> we will try to get to questions in a few minutes see you could be thinking of your questions. i wanted to ask tony, he wrote a piece last week wanting out the court's opinion in the maryland gerrymandering case. the court basically said we are not ready to think about this case. it did nothing to resolve the gerrymandering issue, but you pointed out it did something

else useful. it reminded practitioners and others in chambers opinions still matter. what are in chambers opinions and what are they still matter? >> i like to write about the dusty corners of the supreme court practice. that is one of the dusty as ones.-- dustiest they are written by a single justice for the court. it comes up when lawyers have a stay they want or an extension of time. they will petition the justices who oversees the circuit from where the case comes from. it used to happen all the time where the justice would hear the lawyer's argument in chambers. or by brief. he or she would come up with a short opinion to resolve the

case. now those sorts of cases -- petitions are usually handed off over to the entire court. there are very few in chambers opinions that occur now. this,is a rich history of including this great story that lawyers wanted and in chambers opinion from justice william a douglas, except he was not in chambers. he was out in the woods in washington state. justice,ked out to the made their case in person to justice douglas. he said that he pointed to a stop and said -- stump. he said come back tomorrow, my opinion will be on this tree stump.

they came out and he did issue an opinion than i what they wanted to do -- denying what they wanted to do. the gerrymandering case, had to do with a preliminary injunction and the fact it had been filed six years the redistricting map had been established. there is not much precedent on cited inthe court chambers opinions from justice marshall and justice kennedy. it is a little historical note. you can read all about it at the law review. they have taken over the gathering in chambers opinions and publication of in chambers opinions.

that is it. mic is working, how will he answer the questions? give one to the floor? >> [indiscernible] ok. if someone has a question, why don't they reserve hand and i will repeat it? >> i heard allender shoots -- alan dershowitz on npr is that he would not be surprised if ruth ginsberg resigned because of what has been 5-4 decisions are about to become 6-3. what does the panel thing about that? >> alan dershowitz speculated rick bader ginsburg might resign soon because 5-4 opinions are about to become 6-3 and what does the panel thing about that? >> the chances of her getting donald trump chest the filters he is zero -- the chance to fill

her seat is zero. [applause] >> is that a consensus? >> i think that is why justice is regardedrainer as the most important person in america. [laughter] it calls to mind what thurgood marshall used to say. when people wanted him to retire. he would say just propping up and keep on going. -- prop me up and keep on going. >> every court rules on aspects of presidential power. this next court in the next couple of terms will rule on intensely personal business conduct and other conduct of a president that will appoint the next justice in a way that is more personal -- talks about more personal behavior than official conduct another president's previous conduct and

campaign behavior interacts with his official role. shaping thethat nomination fight in terms of democrats bringing up the conflict of interest issue that is perhaps a little bit more n behavior?a nixonia have you see that shaping the nomination fight in your experience? >> the question for people who might not been able to hear done here is do we think the panel thinks the nomination process is going to be changed in some way by the possibility that whoever appointshe president will be sitting in judgment on questions involving president trump's personal behavior. anybody? >> it is a fairly abstract -- not of -- i am not a political reporter. it's a fairly abstract question to try to sell to the democratic base. i think if they are trying to

come up with a winning strategy, roe v. wade is probably just going to be a much more compelling argument for the democratic base in terms of its simplicity. >> with the new opening do you see the court changing the 5-4 decisions that kennedy good to actually change? which cases the see that happening? >> do people think the weather court handles it is going to change? decisions the 5-4 that kennedy was a proponent of. in, iscalled 6-3 coming the court willing to change started us isi -- change? >> there is a lot the court condemned before -- they could

look at something like roe v. wade and not overturn it. but really hamper it, cut back. there might be an appetite to do that. you would not see for instance it being overturned, but at the end of the day it can be very weakened. that is an intermediate step they could take in a case like legacy --t kennedy's if you look at kennedy's legacy. sandra day o'connor saw her legacy cut back a great deal. if it could be anthony kennedy next year and to see what happens would be fascinating to get his perspective on that. >> i would not be surprised to see affirmative-action overturned by a new court. it is sort of hanging barely there anyway. justice kennedy's embrace of the university of texas' plan was so

limited, i don't think a conservative majority would have qualms about overturning that. >> you look back at justice o'connor's opinion in the michigan affirmative action case where she set a 25-year lifespan for that. that was in 2003, 15 years ago. chief justice roberts -- the new swing vote with justice kennedy's retirement considering he is an institutionalist and the damage he is done by 5-4 decisions? > does the panel thing chief justice roberts might moderate his views in order to avoid -- the goals of the court's institutional reputation? i'm not sure that the great summary but it will do. >> you are quite right.

he is an institutionalist. he cares about the authority of the court. he's also an increment the list. he's also not particularly old, 62. he is a conservative. he will move the court to the right. >> with respect to touching on roberts saying about civility, what do you see from the last term? did you notice he was deviating from that? i read articles about that. but even the others have proceeded at, there was less of a focus on civility and dignity and more about deciding what the right. -- with the right. >> well, i have read several times and i will read many more times his concurrence in the travel ban case. i'm not exactly sure what the message was he was trying to send. i think he was getting at that.

i think he was saying, look, the president has broad powers here. but the president has to follow the constitution. that is sort of where i am going. maybe that was the message he was trying to send. >> we cut all m -- we have had all male questioner so far. every go. >> [indiscernible] going forward in a more conservative court, releasee the court going in terms of the administrative state and curtailing the administrative state? i'm curious specifically for easy substantial curtailment coming. >> david? >> you are right. they will curtail the ministry of state. -- the administrative state. i'm chevron doctrine --

assumed that will rise of decision and the next year or so that basically overturns chevron. that howard to judges rather than agencies active. i remember back in the 70's. scalia likeeo -- chevron, we went judges to decide all these things. you should defer to the executive agencies. the right has really changed on that, particularly when obama was president. they did not like the ferry to the obama administration. judges should decide this, not agency bureaucrats. i think that is one. the other is the case of decided at the fcc. administration's briefs for interesting. they want to push the idea that these people are presidential appointees subject to removal by the president. we don't want judges who are just there on merit.

they wanted the court to say they are subject to removal at the political. there is sort of one officer will know of in that situation, a guy named mueller who was appointed under regulation that is a good cause for removal. i think that is another area. they decided they case very narrowly but i think they will push on the idea of saying we want more political control and political accountability in the agencies. >> [indiscernible] breyer wrote in a certain i'll and death penalty -- cert denial in death penalty cases. any thoughts about that particular comment by justice breyer? >> a question about justices who publish denials -- the sense

from denial of certiorari. and purpose does that serve especially some dissent by justice breyer in death penalty cases. --very often it's an attempt sometimes they are circulated internally to persuade people to change their votes. tois often an attempt savoring is another case like this, we are interested. death penalty cases are a special case. they are an artifact of dissent from a couple of years ago. justice breyer thought maybe he could get the court to reconsider once and for all the constitutionality of the death penalty. that was a lost cause even with kennedy on the court. now he could write as many the sense of denial as he wants and the court will not overturn it. i was going to say sometimes you see -- especially in the

death penalty's, these dissents from the niles by a rotating -- of denials by a rotating cast of liberals. sometimes you think what is one liberal join this one but not join this one? it takes four to grant cert. they don't want to say we will take this case because they know how it will turn out. it is a good way to sort of send the message out about what they are upset about. as that of said, hope for a better case or whether we give one thattter chance -- would give them a better chance. >> it is really hard to hear a lot of what you're saying in the corner. they are asking really good questions and answers are making great points. could you projects more so the whole room can hear? >> we will try. >> i'm glad you have a sense of humor.

someone sent meaning of this morning saying it was adam liptak and is incredible -- it is he credible? [laughter] so i wrote him back and said -- >> that's not an answer. am i thought it would put them off long enough. justice ginsburg wanted present the court in a nonpolitical fashion. that was a well researched article. the exchange between trump and kennedy was in reference to his son. charting of the kennedy clerk. reaction, howur it makes you feel.

>> we talked about this at the , about whether the trumps administration's attempts to get kennedy off the court, did a shaped my confidence in reality and the political system? think it happens all the time. the fact that justice kennedy's son had business dealings with president trump, i don't know of that itself tells you anything. it's worth noting. but the kennedy cases are middle-aged men who have gone on to have careers. i'm glad you stood up for my credibility. lbj was more active in trying to

get people off the supreme court. >> you can come back next year when we promise to have a working sound system.

them are look at the supreme court's recent term and the future of the court continues this afternoon from west virginia.

that starts at 3:30 p.m. eastern . you can find it streaming live, online at c-span.org and on the free c-span radio app. >> the c-span buses traveling across the country. the bus stopped in fairbanks alaska asking what is the most important issue in alaska. >> i think the most important issue to me is while our society thinkto be building up, i that our nation is built on diversity -- on immigrants and diversity. that's creating great divide.

we should be focusing our onblem-solving skills something more important, not because ofdifferent how our differences would make us great. >> particularly along the united states we have a misconception -- it's important for the public to understand and our federal government to work harder on making our policy a bigger issue. >> i am a dentist here in fairbanks. i came up here from michigan, dental health is a very isortant issue, whether it

in the cities where there is no access to care facilities. we just finished the mission of mercy. a lot of the treatment is donated here. offers a greatth treatment in the areas. everybody -- of fairbanks, alaska.

i was raised a moderate republican. i worry about the future of our country. it seems like there's no room for moderation anymore. we have is conflict and nothing gets done in our political parties. i would like to see some changes in that respect. how we arey about standing. we are looked at as problem solvers. that is changing, but not for the better. those are my issues. >> we will feature our visit to alaska. listen on the

c-span radio app. the supreme court released a ruling in janice versus american federation of state county and municipal employees council 31. the case centered around a child support cell -- child support specialist for the state of illinois. agency fees were deducted from his paycheck in accordance with state law. the court struck down that state law to support the union's message and politics. we will bring you the oral argument in the case. it's about an hour.