might let the advocate answer a question won third prize in the course of the 30 minutes they are up there. -- question once or twice in the course of the 30 minutes they are up there. it will take her a while to master. >> [unintelligible] i wondered if we can say when justice ginsburg came on the court, statistics now show she voted with the much less often on grant cases than her predecessor. the court is now firmly in the habit of deciding fewer than 80 cases every term, whereas the one i was in middle age the court was deciding twice that number.

can we expect that justice sotomayor will want the court to become involved in more cases or will she rests on this kind of semi-retirement schedule that they maintain now? [laughter] . . >> if you just think about how the term of plays out, the whole notion that you would end up with 24 cases in april, many of which were important, that you had to get out no matter what by

the end of june, is a remarkably difficult situation to put yourself in. for the one-year that i was clerking, june was a horrible month. the court made a good switch to hear arguments -- more arguments in october. he will work better if you give yourself a little bit more time. as an advocate, you know that if you are in their march and april, the likelihood is good the court will try to figure out an easier way to resolve those cases. my suggestion to you is to try to get your case in october or november. if you want is superficial at

the tee, get in there in march and april. i don't think there is any way to predict that any individual justice will respond justice white was great. he also told you when he thought the court erred in not granting cases, which as a protect -- as a practitioner, it is great because at least somebody noticed we had something to do here. and the lack of satisfaction that comes from a one-line tonight is palpable. the voice on the other end of the foam is always a little overwhelming. there is no way to know at this stage. the for summer for a list does not show me with great -- fill me with great optimism that there will be a huge influx of cases. >> the court just released its december calendar and there are no afternoon arguments scheduled even though the accord has nine

cases that were still left on scheduled when the calendar came out before the additional 10 were granted on september 30. the court goes into the january session with 19 cases, which is seven more than the usual maximum, if so the front end loading was very front end and its top loading. it does not look like we will have a terribly busy term. john stevens once told me that this is not a job that involves heavy lifting. apparently does not because john is 89 and he is still lifting with great regularity. let's talk a little bit more, if we can, about what we anticipate from the participation of justice sonia sotomayor in conference. we know that justice scalia has always been frustrated because there is not enough discussion

in conference. when the court selected the new cases on september 30, that was the announcement day, the proceeding day they had a conference that they supposedly had before them 2000 cases of which they chose 10. it lasted between 9:30 and about 10:08, i think, which demonstrates nothing more than efficiency perhaps of the old world war two mussolini variety but at least we move forward and we got 10 new grants. perhaps they will recess for the summer. let's talk about sonia sotomayor. she had some reputation on the second circuit of having sharp elbows. do we expect she will have sharp elbows in the conference or was that a misnomer? >> let me take a swing at that.

i think that is a wonderfully sexist thing to say, and i don't mean you. it came up during the hearings. there was the suggestion that because she was very tough in the second circuit, in oral argument, that that somehow merited some special versio description out of the ordinary. i think we are already seeing early signs that she is somebody who prepares extremely well. she works extremely hard and i think that will likely be the case. and she is not shy. i think she will be quite prepared to express herself, whatever that might entail. the notion that somehow because she asks tough questions that that merits some kind of less than positive description does not do her any service. i think, in fact, -- i think she

is a tremendous asset that she happens to be very tough. she holds people against a very tough standard. >> i completely agree. i thought nobody calls john roberts a bully, and he is tough on the bench, too. i agree that questions about her being a bully or just simply sexist. i don think there was any other way to look at that. another way she is going to have an effect on this court in conference and on the bench, and i think this goes to michael's point about being a real world the judge, it is hard to say that when they have been on the federal bench for 16 years. one of my questions that maybe we can get to it is are we ever going to have somebody who does not have a 16-year record to

scrutinize ever again? notwithstanding, i think one of the real world qualities that she brings to the table, and i am always reminded of justice scalia saying conference is different when thurgood marshall is in the room. it is just different when ruth pater ginsburg is in the room. i think it really, really matters that there is a hispanic woman in the room. i think it will have a fax that we will never know about. i do not think that is inconsequential. you cannot measure that but i think if it is terrifically important that her story is now part of what the court hears about. >> i agree with all of that. she was a district court judge, the only person on the supreme court that has ever tried a case. justice alito has some experience as a lawyer. that is something i think she will also add to the court.

i think she is pretty much what she seemed to be in the hearings, which is serious, sober, i do the facts, i do the lot. bill looked to me for grand theories. i will take one step further. i think that is the nominee we can expect to see from president obama for the rest of the nominations he gets to make. the central for a central fact about this administration and maybe this sort of period in this history is that moving the supreme court is not a priority for the democrats and not a priority for president obama. they can accomplish what they want to accomplish if the supreme court stays where it is.

their priorities are health care, climate change, energy. abortion, as long as the corps stays where it is, that is fine. affirmative action, pretty much the same period from president obama's point of view and his advisers, why do we need to expend political capital confirming someone to the supreme court who is either -- has views that are pushing the edge or will sort of cut across a person who is interested in doing something big? why should we spend capital on that? we have other priorities. i also think there is an asymmetry here because the republican party agenda is more focused, not a comment on anything. if you think about what the republican party is interested in, abortion, affirmative action, guns, property rights,

federalism. those are court issues. i think it is sensible for the republican president to think if i have to take a hit to get somebody on the core that will move it, that is what i will do. it does not mean -- i think there will not make the choice to push the envelope in appointments. >> david, the prevailing wisdom in washington -- it is not the most of this quality that prevails there regularly. the prevailing wisdom in washington is that when the next nomination, when the next seat becomes available, it will go to a non-judge, that is janet the peloton know, the secretary of common security and former governor and attorney general of arizona. i don't know how strongly to

credit that speculation but that would look to me as a rather significantly bold stroke to bring a different kind of professional diversity into the court. >> i think it would be. i agree with this idea that we will get more and more experienced judges. it is not a way to snap the supreme court. i think an apartment like janet the public,, she has a record in public life. it does not as if people will not know what to expect from her and she will come across as scary for the people who might oppose her. her public life is rather conservative for a democrat. >> before we moved very far toward the point where neal getrs nervous, can we look at

the possibility when john stevens the parts during this tomb or whether or not is another one? who will work on anthony kennedy after john paul stevens is gone, and will that be sonia sotomayor? >> everybody looks at me. can i look this way? i have never been quite persuaded that working on anthony kennedy will necessarily produce one kind of outcome or another. he marches to the beat of his own drummer. i do think that justice sotomayor will not be shy about talking to people about issues. that has been a lost art for some strange reason. whether or not that has an effect, i could not say. i want to come back to the point about a non-sitting judge being

nominated. one of the things that the president can clearly do is set the terms of a confirmation proceeding and recast the dynamic in this proceeding spread this is something that the president mused about. historically, more than half of the supreme court justices were not sitting judges at the time of their nominations. if the president wants to change the dynamic, go with somebody who is not a sitting judge but has a certain type of background in political life is one way to do it. it becomes much easier for them to say like chief justice roberts said when he was -- the hearings have an entirely different dynamic. that kind of person brings a different perspective. if you are having a conversation on the court in the sense that

people are persuade a ball, adding that different perspective makes it a more in reaching discussion. >> just as a check on how you approach this, you may want to remember that between chief justice roberts and justice alito, there was another nominee, someone who was not on the bench. it was a nomination that did not go successfully. there is a risk. the advantage going to a judge is the track record could you understand what kind of decisions are being rendered. the idea of transitioning from one life style into being a justice on the united states supreme court is not that easy to accomplish. it while i personally think there is a lot to be said to

find somebody not on the bench to sit on the court, i can understand why there is some reluctance to jump too quickly in that direction as well. >> i would obviously not generalize too much about the nomination of justice breyers. imagine for example a senator being nominated. that person becomes very well- known in the united states senate. somebody who has had a rich, long public life like janet napolitano -- >> i am not comparing them. i am just saying there are risks. to go off the bench and drift away. obviously there are people who would be easy, i hope, to get confirmed that are in not -- who are in not -- who are not in that direction. if you look back at other justices, their track record on the bench was exceedingly thin.

justice souter was on the court for a while. those were very short opinions, pretty straightforward, and did not give much insight into what he thought about major [unintelligible] >> doesn't this go back to what david said about how scripted this is? the script is so tight now. we talk about cases and you talk about when you have years and years of cases to talk about, and then the script goes, was that an activist decision? that is all there is. what do you talk about janet the public tunnel? do you talk about her speeches? i am sorry. this script is so -- >> that was unscripted by the way. >> it is just so hard for me to imagine under this totally

crabbed piece of theater that we do to have a conversation that is not about, even if your record is then we can talk about that and then talk about griswald again. at least we are talking about cases. i don't know what that confirmation hearing under this universe we live in looks like. >> we have to go back to 1971 to have some recollection of what that might be. it is a very different thing. if you want to change the dynamic, this is one way to do it. we can predict the nature of some questions. speeches will produce some problems. we can predict some of those lines of the analysis. but we can also predict that the person might be able to say quite credibly that i fully appreciate the difference between legislation and judging

because i have been involved in at least the former. that is a very different thing. it might be the kind of change that the president wants to try. >> i am being convinced that maybe we are overdoing the extent to which -- it is the first time it is ever happened to me. john roberts was not a judge for that long and most of the questions did not concern his decided cases. thomas was not a judge for very long. with justice suiter, it was a state court record. a lot of the questions of this theory in constitutional me carry questions, to what extent are you down to the framers understand [unintelligible] for people who do that for a living, that is a boring question for people who have

real jobs. what do you make of that question? are there any enumerated rights? things like that. i have a script. the court has said that will be the script. >> we have reached the point where we want you to join the conversation. we have about eight minutes or so to ask some questions. anybody want to fire away at any member of the panel? >> you all mentioned above the obama administration did not want to expend political capital to maybe come up with a strong liberal to maybe go back and forth with scalia and whoever. but by the same token, the republicans, and obviously it

someone who was privy to what was going on, did not want to make -- expend political capital either. in light of everything that has happened, would things have been different if the confirmation hearing was in september and the vote was in late september like it was with roberts, o'connor, and i want to say suiter, in that they did not do the hearings in the summertime. they waited until september. has the landscape changed enough that political capital might not have been expended if this thing -- >> did the calendar make any difference? >> the amount of time that goes by between that time of the nomination and the hearings began. that is the critical period. if the hearings to happen until september, [unintelligible]

that is the problem. there is a longer period of time that goes by and that can be a problem because that is the period in which people's opinions become shaped. the administration has generally short in that time period. i think it is more important how much time has to go by between the nomination and when the hearings began because it has to do with lining up people and creating that dynamic. the longer that goes, the longer you leave in nominee out hanging subject to whatever possible problems might arise from the internet or any other places that rumors might get spread. i actually think we have this myth that we perpetuate that everything changed after the bork. i think that is a myth. bork was the exception that

proved the rule. the year before bork was nominated, we had another judge who basically said nothing in his confirmation proceedings. the norm has been for nominees to say very little for the shortest truthful statement you can. bork tried to change the process and he failed. things reverted back to the way they are. what it means is that i think we can expect people will want to shorten that time on the president's side and went to lengthen i. >> in the vice-presidential debate, joe biden was asked. he talked about the supreme court confirmation and what the role was. he was very proud of the fact

that he as the chairman of the judiciary committee led the opposition, at least that is what he said. sarah palin obviously did not know anything about it because she did not have an answer. >> obviously, one thing the vice president is talking about is that the senate shifted control so he became chairman of the committee. if you look at the broader canvas, the patterns remain the same. >> do we have another question? over here. >> [inaudible] i was wondering if it is possible that obama himself did not have the courage to explain fully what he meant in the first place. he was not interested in the

generic empathy, that is if it is a corporate case, i really feel like what it is like to be a ceo. will you be empathetic to the labor union member? if he had said -- if he said when he talks about and if the, this court is too favorable to corporations, it is not favorable enough to unions, is a rich man's court, if they had more empathy for the people that i really cared about and democrats really cared about, this would be a much better country. what if he said that instead of retreating into i am really not saying that the result would be any different or saying if there are winners or losers. it is a nice thing for a judge to feel things. >> i think that goes right to david's point. i think obama does have a

slightly conflicted view of the role of the courts. i think he does hold in his heart the notion that the court has some responsibility to minority groups. i think his larger world view of the courts is not bad. i think this was argued a couple of weeks ago. he really thinks the course should not be the engine that drives -- he believes in the political branches. to say that is to sound like bill brennan. he is not that guy. what we are seeing now is the fallout of this sort of this still notion that clearly in his view the roberts court is doing something wrong but there is no word for it because we do not have a way of talking about it. i think it is that disjunction that plays out. i think this is a failure to have an ability to say what the roberts court has done in its

views toward certain classes of people that course traditionally protect is wrong. but we don't know how the say that sphere. >> [inaudible] i would like to complain about justice sonia sotomayor's handling of the hearing. >> the handling of -- >> that is to say -- >> [inaudible] >> she got what we wanted but she disappointed me by failing to engage in the issues without sending off [unintelligible] souter did it brilliantly. i am older than you are. >> [unintelligible]

[laughter] >> now that was a hearing. >> without going too far, it was very engaging. >> let's give someone a chance to respond to that. >> i sat through the hearings. i agree. i thought he handled himself extremely well. it it was a different situation. he was facing a democratic senator. the democratic senators were suspicious of republican nominees. you might remember that when souter first nominated, the talk from the democrats is that he was a hard-core right winger but they found a guy with no record that betrays his hard-core right wingedness.

he really had to convince them that he was not that guy. sonia sotomayor is in a totally different position. she just has to make sure that she does not blow it. when you are in that position, why in gauge the issues? if you were her counselor, and she came to you and said i would like to take a stand and by golly when i said i was a wise latino, i was telling the truth. should i say it? your best advice as a counselor is no. why would you do that? why buy that kind of trouble? it is in the structure of the confirmation process. and >> this is the point with the university of carolina sports analogy comes into play. the four corners offense. you protect your leave you got it. no reason to open yourself up to

unnecessary inquisitions. >> this observation is getting boring at this stage. >> if you are the nominee, boring is good. >> ladies and gentlemen, we thank you for your participation. [applause] we are going to move directly into the next couple of decades. if you would just day in your seats, we will move right ahead. thank you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009]

>> we are live at the college of william and mary law school for a supreme court preview this evening. already tonight, a moot court panel. this discussion you just heard on the sonia sotomayor and her impact on the high court. still to come, a forum on the future direction of the supreme court. that should be starting in a few moments, live on c-span.

>> ladies and gentlemen, the hour is late and our topic is opaque. before we begin, i would like for the record to read what then senator obama said during the campaign to planned parenthood, so we will know what the exact

statement was. "we need somebody with the heart and empathy to recognize what it is like to be a young teenage mom, the empathy to be poor, gay, disabled, or old." that was his statement. i will not editorialize by saying what is so wrong with that? [laughter] our topic is the court in 2020. we could ask how is the constitutional law under the accord is likely to change between now and then? what are the issues that may come before the court in the period between now and 2020? either imposed upon the court as an unsolved responsibility by the nature of circumstances or issues which the court itself would have some inclination to reach out and decide.

we don't know the composition of the court, at least those when the minority and majority will change from now until then, in 2017 when the new president is put in office even president obama has a second term. in 2017, -- there may not be changes in composition. we are going to look at the nature of the issues. think about the kinds of strategies that one might want to undertake to influence the direction of the court. what strategies should advocate, scholars, particularly the solicitor general employ between now and 2020? should you, for example, as a solicitor general, except the structure of existing law under the civil war amendments where congress can act only on

proportionality and congruence or should you challenge that paradigm so it does not becomonr are due risking that it become set in stone or do you challenge it or use some combination of both? what are the issues? let me begin with a lightning round by asking everybody to identify in a moment or 21 issue that you think is likely to be important in the next 11 years. the excellent new dean of the new law school. >> it was close to october 1998. the two main things that we could not have foreseen had we been together in 1998 was three justices leaving the bench.

since september 11, those have been dominating issues. if i would have predicted what we know now, i would say campaign finance. there are five votes on the court to likely say corporations have the right to spend an unlimited amount of money in election campaigns. five votes to say [unintelligible] corporations have the right to contribute unlimited amounts of money to the candidates of their choice. five votes to say any limit on campaign contributions other than disclosure requirements by late the first amendment. if that is right, that would mean a dramatic change in all federal, state, and local elections. probably toward insignificance anything else the court does. >> paul clement will soon have his 50th argument before the supreme court. what is yours? >> mine would be kind of in some

respects a pedestrian pick given the for-looking nature of the court in 2020, which i think it is going to be the way that new technologies are going to influence the court's decision making. i think that will be true from everything -- for everything from fourth amendment cases. i think the court is going to have to understand and decide what reasonable expectation privacy is in our laptop, are hard drive, and a number of issues there will be challenged to apply doctrines to technologies that the justices probably do not understand all that well. i don't think it will be limited by any stretch to constitutional law. this term, for example, the court is going to tell us a little bit about business methods which will tell us a lot about how software is protected. issues like that in business cases, intellectual property

cases, would be an important part of the court's docket in 2020. >> pam karlan is an outstanding courtroom advocate. what do you think? >> to pick up on something that both erwin and paul pointed out, a huge part of the docket is statutory interpretation. it has been many years since we have had a spate of brand new legislation before the court but i think there is going to be a bunch of economic legislation and a bunch of health-care legislation. the court is going to have to interpret all that. how to read those statutes and how to interpret them i think will come up. >> michael mcconnell has been a professor and an advocate before the court and a judge of the united states court of

appeals before returning to the academic life. michael, what do you think? >> iowa tend to assume that issues come to the court in response to major changes -- i tend to assume that issues come to the court in response to major changes. the most uncharted territory for the next 10 years is how to deal with arbitrariness and abuse of power through the means of government ownership of economic enterprises. this is something we have never seen on such a large scale in the past. this is going to affect such things such as administrative law weekend to evaluate exclusively governmental action through the prism sets of regulation and adjudication. the most important acts of governmental power are not going to be regulation and adjudication by things like casting shareholder votes and

firing ceo's and picking up the telephone and saying if you do not do x, y, or z, you are not going to get the bailout that you need. it is going to present a range of administrative law, constitutional issues, and others that we simply have never seen before. >> since the founding of the country, race has been this nation's tragic flaw. racial issues on not any less important today. there are four justices on the court who want to radically change the law here and say that the constitutional requires color blindness. justice kennedy has never voted to uphold any affirmative action program since he came on the court 22 years ago. i think there are five votes on the court to overrule a case and even more radical changes when it comes to allowing the government to engage in that.

>> does anybody want to add to the agenda quickly? >> another issue that lisbon is going to be facing in a number of different contexts and not just the next 10 years, maybe the most important constitutional question for the next quarter-century, is the reach of the treaty power. i mean this pacific -- where we have ratified a vaguely worded treaty, standing for all kinds of nice-sounding principles. there is some international body attached to that treaty that gives it a controversial interpretation. are we going to be bound even if it is contrary to our own constitutional processes? for example, federalism. even if it poses an obligation

or a limitation on states, that the federal government does not have a right to or even if it violates other principles like freedom of speech,, etc. >> any particular reason why you think those issues might arise now? wjy now? >> we have had treaties but not of the same kind recently. i hang around universities and these are some of the ideas. it seems an inevitable process of globalization. there are concrete reasons to expect the legal systems of the world to converge, and a lot of people who have interest in seeing that happen.

it happens in europe also predict in very surprising ways. >> let me pull back a little bit and look at the nearer term future. it is possible that the replacement of justice o'connor by justice alito will turn now to be one of the most significant shifts, far more than we may have seen before, or more than one can imagine with even the three justices on the progressive side being replaced by the nominees of president obama. i'd like to look in the near term assuming that the majority on the court with justice kennedy stays where it is predict where my that go? let me focus the question by saying when the nomination process started over justice sonia sotomayor, a number of rather conservative senators were raising the question that we do not want any judicial activist. that was going on during the

time of the end of the court's term when the issue was conservative use of the judiciary to evaluate losses, either campaign finance, a gun regulations, racial remedies, the series of issues where one might look into the near future and see that, is it true that the debates are likely to center around affirmative uses of the court or at least litigants seeking the court to -- and national laws on campaign finance, guns, regulations, challenges to national health care legislation -- is that going to change the dynamics? anybody? >> judicial activism is, you

know, i think the phrase that fits the description that john harvey lee gave as a pale green redness. judicial activism does not have meaning as a term. it is meeting -- it has meaning to the public but it does not have meaning to the people that actually watch the court. in some ways i think we will have an inversion of the structure of conservatives and liberals of the last half century. that is, i think we are moving from an era in which red state federalism was up in the court to now an era of blue state federalism so there will be a liberal programs passed by various states and they will be arguing whether they have the ability to pass it last term. it was a harbinger of this. i think we are going to end up with lavender state federalism, a bunch of states that are going

to enact statutes or have already done so that involve same-sex marriages. i think it is very interesting in that sense, predicting by 2020 what is going to happen. the case that ted olson has filed in california will likely get to the supreme court by then. a lot of these arguments are going to shift ground in that sense, or potentially shift ground. >> michael, let me ask you because you have written and thought about religion and the law for a large number of years. this is an area where the court has not, since justice o'connor left, has had a major case. it had a review that affirmed your position. the court has not yet really encountered a decision which

would raise a very fundamental issue of whether government officials can actively promote religion, that is to say justice o'connor was the deciding vote. her position was private -- public prayer -- what could the shift be like if the opinions of justice scalia and thomas and previous chief justice rehnquist was to become to now have a majority on the court? >> if you take a long view back to, say, the late 1970's or middle 1980's, the supreme court has become much more coherent on issues on religion in most areas. it used to be that the interpretation of the establishment clause was flat

out inconsistent with the pre- exercise clause. in the most important religion cases, it may very little sense. since then, they have moved largely to a view, with respect to benefits, especially financial benefits, that religious institutions can participate in the neutral basis as long as there is no favoritism. that is a major retreat. they have largely said, with respect to regulation or bad things for religion, that the state may constitutionally regulate or impose such penalties or burdens as long as they do not discriminate. those two principles come into conflict sometimes in very specific cases but very broadly have eliminated the huge battleground that used to make religion cases so deeply

incoherent. there is another area, which is government speech or symbols, things like 10 command and cases and so forth, people care a great deal about this. i think that there is no really intellectual coherent position on the table. the court does not come close to it or closer to it. i think they have tried to diffuse the issue as much as they can, and i am thinking particularly on the brace of 10 command meant cases years ago -- commandment cases a year ago that have a specific quality to them, at least as i read justice breyers' controlling opinion. he says if the symbol has been

all around for a long time, which i take it to mean that prior to our culture war, so it has a pedigree that is not tied to what people really care about, and if it has a remotely plausible secular orientation to it that it is going to be ok. that might be right, that might be wrong as an original matter. but i think it lowers the temperature. it does not make of the cases go away but i think it makes for less histrionics. i think they are going to continue to work on the details of that. it seems to me a much more stable arrangement then they had 25 years ago and i do not see any real prospect that it is going to change in many ways. >> you argued one of the major 10 commandments cases. do you see far more substantial

endorsements? >> i think michael tremendously under estimates the affect of replacing justice o'connor with justice alito. justices repeatedly took the position that the government should be found to violate the establishment clause. establish a church or coerces suspicion or financially favors one religion over another. they did not have five votes for that position. with roberts and alito, there are now five votes for that. the supreme court is likely to say that religious symbols on government property to not violate the establishment clause. during a previous case, it involved a six-foot high commandments monument. justice kennedy told me if your client does not like the 10 commandments monument, why

doesn't he look the other way? there were four justices that would have allowed it. i think there will be five that will allow religious symbols. when the accord last out with the issue in 2000, there were four justices who said the government should be able to give money to parochial schools even if it is used for religious indoctrination as long as it does not discriminate among religions. that would be a dramatic change in the law. i think there are now five votes to go that far, to overrule the lemon test. >> you can say that with that voice but that is not a big change. [laughter] the idea that when resources are being given out, that they be given out on a neutral basis, and it does not matter whether they went through indirect form or direct form, it is a trivial distinction. it is a trivial distinction.

>> pual and then pam. >> i think i agree with the strains of both what the judges are saying. what i would say it is, i am not sure that there is going to be quite as much change as he thinks. i think he has identified one area where there will be some change, in the public displays area. there is a certain quality to the decisions, maybe solomonic in the sense of the word to the 10 commandments displays. the really big 10 commandments displays are ok and the small ones are not, that does not

portend to be a real stable prudence. i think that is an area right to be revisited. i think there will be five clear vote to save those displaced are constitutional. that said, i am not sure that there are going to be five votes to overrule lemon. the supreme court, at least, does not pay much attention to lemon. lemon is something that only low records have to deal with for the most part. to me the most interesting possibility, looking at this kind from a 10-year out lens, there may be something of a convergence between the court's establishment clause standing prudence and its underlying [unintelligible] what really matters for the

justice kennedy when it comes to the establishment clause is coercion. in the absence of coercion, in the absence of some individual who is coerced, in those cases, it will be harder and harder to identify a plaintiff that has appropriate standing. in that sense, the establishment clause standing cases that have proceeded on one trend and the establishment clause substantive cases may actually come and converge around this idea of coercion. >> two things in what you said i think are very important if we step back and ask where the court is going, one of these is the question to the extent to which the court make changes to overruling cases as opposed to expressly overrule and lines of doctrines. this is an area where i think more conservative members of the court are at some division on another. that is, in the last case, you

had justice scalia with a really colorful language about pummeling it a little bit, punching a pit in the jaw, left it bleeding in the gutter, but they will not kick it to death. the court has been a little schizophrenic on if they are going to frankly overrule things or if they are going to circle and ruled them or, with another line of doctrine. the closing of the courthouse. i think that is a major trend over the last couple of years in a variety of areas. standing law, pleading -- in some ways, the big sleeper case from last year was what we are not seeing used in cases that do not involve 9/11 or actions as an explanation why and employment discrimination case should be tossed out. i think those are very -- i think those are two fundamental things looking forward about the