i don't know if day one of the supreme court's new session is jam packed with over fifty cases one case in particular is getting most of the attention president obama's affordable care act so will our nation's highest court respect precedent or turn to activism. what drives the world with the growing use by politicians who makes decisions to break through or through who can you trust no one who is your view with noble mission read see where are we heading state controlled capitalism is called satchels when nobody dares to ask we do our tea question more.

go back to the big picture i'm sorry coming up in this half hour the supreme court is back in session with the. cases on the agenda clearly one that could set the tone for the twenty twelve presidential election that's in store for obamacare and once upon a time a right wing think tank supported obamacare well they don't really take. nation is indeed a flip flopper when it comes to health care in the united says. so are. the

day marks the start of the supreme court's new session and on the docket this year over fifty cases that it could have sweeping effects on life in america from now until june of next year the high court is expected to rule on issues concerning police tracking suspects in vehicles with secret g.p.s. devices permit of action for right immigration laws even new needed to on television course the biggest showdown with some are calling the elephant in the room this session will be a ruling expected next year on the constitutionality of president obama's affordable care act but all this info a backdrop of a twenty two of election season and this could be one of the most significant supreme court sessions in the history of this nation for a preview of what to expect i'm joined by brian siebel director of justice programs

at the alliance for justice brian welcome thank you for having me thanks for joining us we've got affirmative action immigration health reform all the stuff on the agenda all very contentious left right political issues are we going to see a whole bunch of five five to four decisions is this always may some of those cases are not yet officially on the docket i mean the affordable care act has not yet been taken by the court most recently of the obama administration and the state a.g.'s both filed a petition to have the oh the affordable care act heard. so and there is this case from the sixth circuit which actually went support of the law held with the. conservative justice there upheld the law in a two to one decision that cases potentially before the court and this one from the eleventh circuit is florida is it unusual the department of justice the administration would ask the court to see to hear a case so they last know it no i know i know that that's not unusual right ask. but

is it unusual that they would ask and the court would not respond quickly well it's it's likely because there's now a split in the circuits that the court is going to take this although there's been some talk that they'll find a way to duck it because of the election implication does it take for the for the grand well. it depends on when it comes in there for their calendar the six circuit cases ahead of the eleventh circuit case the florida case and it's probably going to be november or december before we know for sure but given the fact that one court upheld the law and one court struck it down it's likely that the at least it will decide this term can you break down this police track in g.p.s. case i know there was a huge debate back twenty thirty years ago about whether your car was your private space that had to do with it became before the court that had to do with police stops for dui tests when there was no presumption of guilt or nope nope no evidence

of you know driving while under the influence is this an extension of all that logic or what this case is what so brought about this case is they put the g.p.s. device in the car and then tracked it for several weeks and without a warrant so essentially you know it's it's much more invasive than than previous. government surveillance efforts and that's that's what's really at issue here can they just put a g.p.s. device on anyone's car and track you wherever you go for weeks at a time. before the moment talks about you know in your person's property correct but it also i think it weighs you know the invasiveness of the search as well is the is it issue and this this case it's a much broader search that has been done in the past might there be an extension from that case to cookies tracking us across the internet at some point. well

certainly i imagine there's already a lot of tracking you know through the internet yeah but i just wonder if that ever make its way into you know the courts yeah i think the yeah no i think these teams like the old ones yeah well you know a lot of people are tired of calling this the big brother case you know this is this is one thousand nine hundred four finally making its way to the supreme court and will the court find this to be you know an unreasonable search and violation of the fourth amendment right now they have fifty cases on the docket correct typically this point in time there's around seventy five well that the overall term was going to be about eighty it's been eighty for the during the roberts over so do you think that they're leaving some space for obamacare or is this not just a matter of matter of course you know t. cases take time to get there they're being decided now and then the file the circuit touche and then it takes a couple of months to go through the briefing of that they do the arguments through next spring and then they close by june so it's just

a matter of normal you know like the immigration case that you mentioned in the in the preview that case is also yet to be decided as to where they're going to take it although it's i think almost certain that they will win same thing with the affirmative action case that you mentioned these are all cases that are almost certain to get on the docket but they're not there yet today the case very big case argued today about medicaid the douglas case which we wrote a report on that case that was all about whether medicaid recipients in california could sue the state of california which had said it's really cut the rate of medicaid below what the federal standard allows so the they basically want to sue the state of california to comply with the federal standards and the issue is not really whether the state of california violated the federal standards that's actually given the issue is whether or not the plaintiffs can use the supremacy clause to bring a suit in the first place and if they can't be. and essentially it would give an

incentive for a lot of states to just suddenly ignore medicaid and start cutting medicaid benefits there's this the use of protocol as saying that a war is supreme law of the land yes and so this is been used over and over again as a basis for suits against states that are not following federal standards but the on the other hand are on the other side of the argument and the other legal side but the other kind of pop culture side is the tempers who you know kind of want to ignore the supremacy clause well that's the problem is that frankly if you if this case were if california if it were to win this case. it would allow you know this kind of know if occasion wave that's been going on in the country they would just say well we don't have to fall over civil rights laws from a voting rights and who's going to enforce it if it's only the federal government the federal government is you know basically understaffed and you know. and frankly

the only thing that health and human services could do would be to would drop medicaid money from california which would hurt the very people who are bringing this to the people who are essentially not going to get the same level of care the same opportunities for care if medicaid is paying out much less than private insurance would or medicare would or other service very very quick question friends we're out of time. the next my sense is that the next president is probably going to replace several justices your sense of the age and health and probability of retirement of justice as well i mean the you know justice ginsburg you have talked about because she's had health issues and the conservatives on the court have been there for a very long time and it's going to swing well it's hard to know when the next justice is going to come up but certainly it's critical the presidency is critical given given to the nominated in five years a long time for people who are in their seventy's. yes brian thanks very much thank

you appreciate your being here with is such a question during this supreme court session will be just what kind of court does justice john roberts preside over is it to be a court that respects legal precedent or a court that engages in judicial activism or in his confirmation hearing roberts talk about the important precedents. i do think that it is a jolt to the legal system when you overrule a precedent. precedent plays an important role in promoting stability and even handedness it is not enough and the court has emphasized this on several occasions it is not enough that you may think the prior decision was wrongly decided that really does and yet in the citizens united decision last year the roberts court overturned a century of election law in america to affirm that money is a form of free speech and declare that corporations both domestic and foreign and spend unlimited amounts of their corporate treasure chests to influence american elections so with a slew of politically charged cases on the agenda this year just how dangerous

could the roberts courts judicial activism be and so this nation and is it about time to reform how the high court does business nearly as a senior attorney with the institute for justice he joins me now to talk more about this issue of judicial activism. thank you. the first of all you wrote a piece for the wall street journal saying that judicial activism regarding judicial activism summarize that yeah if you did your activism is a meaningless those were in terms of substance but it's a very powerful powerful rhetorical device that in my opinion it's designed generally to undermine the ability of the court and the willingness of the court to say no to government we have a constitution that provides important limits on government power and it turns out actually that the courts very rarely enforce those limits and almost never say no to government in comparison to the total amount of laws and regulations that government passes ok so here's the constitution can you point out to me and here.

where it says the supreme court has the right to strike down it was unconstitutional it's not it's just a part of our tradition that's been part of american history for almost two hundred years ok in that case then can you name for me a part of the marshall core part of them are you know three during the first twenty years of the existence of this country one case where the supreme court struck down was being unconstitutional no but i don't think that's an impressive it working can you name a second case in the entire thirty five years of john marshall sitting on the supreme court i mean this is a well let me ask you that only case was marbury do you think of the supreme court saying you shouldn't be able to put a gay person in jail just for being gay in lawrence v texas they think that was an illegitimate act of judicial review i think it was a great decision i personally believe that the supreme court does not have the authority to strike down laws made by congress and passed and signed by the president and i grew thomas jefferson on this in fact he said first of all article three section two of the supreme court or of the constitution the supreme court shall have apologists jurisdiction both as the law in fact subjects that we subject

such exceptions and under such regulations as the congress shall make. it's not time for congress to start saying to the supreme court things like. you know no more political decisions or clarence thomas your wife can't be allowed in and you would be deciding cases i don't think so i think would be very dangerous because if you think about it every time a different political party got the upper hand in congress they would simply remove the court's jurisdiction from some issue they care about that's exactly what's happened in the court well in time the court swings one way or the other you know whether it's in seventy three phyllis schlafly and i agree on that it's clear there is and there's actually a fair body of folks out there who are saying marbury was wrongly decided judicial review is wrong because this is the of the constitution i mean if you go back to the federalist papers federalist seventy eight alexander hamilton the judiciary from the nature of its functions will always be the least dangerous of the political rights of the constitution they can make no act. resolution whatsoever

the simple view of the matter so just several important consequences of provides incontestably that the judiciary is beyond comparison the weakest of the three departments of now right now with the power to strike down laws passed by congress and the president you've got nine guys in robes who are not elected who are acting like they're the kings of america tell me what's right about that well that's your premise and i reject that premise i think that the supreme court of the finest hours of the supreme court and then when they said no to government they said no for example like in dred scott well that's not a hurricane but a civil war to reverse the result of that case but if you want me to use an example of the supreme court brought us a civil war well you know what brought us to civil war was the belief upon the part of some people in this country that you could own another person we didn't pass an amendment thirteen to member to say no to that do you think the supreme court civil war that i said resembles what you thought supreme court should not be able to enforce the thirteenth amendment prohibiting slavery that is beyond the states because rest the court has no enforcement mechanism i mean this is what hamilton was it has the force of more of a behavior and a number

a moral authority is not enforcement action and force mechanism is in the executive branch and you know that the supreme court is the most highly regarded branch of government a recent survey because the average american has no idea what you and i disagree you know obviously there was a poll by rasmussen that said that only seventeen percent of the people in this country think that the federal government has the consent of the governed meanwhile the supreme court is polling sixty percent or better approval ratings wise as we should continue to allow the supreme court to strike down laws passed by elected representatives who are doing what we want signed by our president who we elected when they're not elected because the polling because we have a constitution that provides important limits on government our in the constitution to say this framework in strict gun laws you're not asking the question i just heard the proposition i just said it's not in here it is are you seriously saying you don't think it should be on your to read your review seriously saying i should not be do you think the state of texas should be able to put a person in jail for having gay sex i think your state of play if the state of texas does that the people. rise up eventually and say no but they did and in fact

in a while but they did the they would have and the case the fact the matter is that they did in the case of the civil war and this only rose up against the supreme court i think that's a pipe dream to be honest with you we have segregated justice in this country well mike i'm sure you do for there wasn't there was a time in america when when the idea of not having segregated schools was a pipe dream there was a time in america when the idea of women voting was a dream there was a time in america where not owning slaves was a pipe dream i think marbury was wrongly decided by the judicial review and judicial supremacy are wrong and that then that the and the supreme court should be as as hamilton wrote in seventy eight and eighty federal seventy eight and as the constitution says subordinate to congress well listen we're just going to have to agree to disagree on that i think that one of the most important parts of our polity no serious person that i know thinks we should get rid of judicial review because of what would come with it and what we see in the past i think the supreme court i think they completely got it wrong when they said for example we can put japanese citizens in prison during world war two on

a hunch that they might be enemy agents my wife's grandparents were in those camps and i think it was a dark day for this country when the supreme court allowed that to happen what you're saying is that you don't trust the people in mass to court jefferson that you would rather trust nine guys who are the wiser orders because that's the law you're saying that well that was the debate during the constitutional convention about judicial review which was debated at the constitutional convention i'm saying we have a constitution as you measure listen lee not put into the constitution i'm saying we have a constitution that is essentially a rule book for a government in this country and just as we are not allowed a constitution just as what we would not allow a kitchen or to call his own bowls or strikes we would never allow congress to decide the constitutionality of its own laws it would be crazy you let your next congress do that it's called elections it's the will of the people that's not the way it works ok they were going to leave it there thanks for dropping by trying to balance our was a. very interesting conversation seven years after he left the presidency thomas jefferson lamented about. state of the supreme court in an eight hundred sixteen

letter to his friend samuel kercheval he wrote the judiciary the judges of the highest courts are dependent on none but themselves and a government funded founded on the public will this principle operates in an opposite direction and against that will we have made them independent of the nation itself they are irremovable but by their own body for any depravities of conduct and even by their own body for the imbecility imbecilities. it's time to take our supreme court judges and in fact all judges in america and make them accountable to the people just as jefferson the band who wrote the declaration of independence desire let's end the judicial monarchy in america and bring back our democracy. coming up when the high court rules on obamacare next year the heritage foundation will likely ask the court to strike down the health care law ideally take place why the supreme court should even bother listening to these flip flopping right wingers.

what drives the world the fear mongering used by politicians who makes decisions you could recreate through get through to the maid who can you trust no one who is you you would have global machinery to see where we had a state controlled capitalism it's called saturates when nobody dares to ask we do our tea question more.

crazy alert who put that there are scientists in yorkshire a puzzle that are coming across a thirty foot beach the whale sure beached whales are a common occurrence of nature but this one is truly bizarre considering the whale was found in the middle of a grassy field more than eight hundred yards from the shoreline even stranger this particular species of whale a sea whale is rarely ever seen there's only been one sea where se i see real sighting over the last twenty years let alone seen a sea will in the middle of a grassy field eight football fields from the water some scientists support for their own theories or free piece of high tide to a waterspout the lip of the whale out of the sea and earle that out of the land and had to explain the unusual phenomena but i subscribe to the theory that whales are officially flying which means that herman cain might actually win the republican

nomination. during this new session the supreme court is slated to hear a number of very important cases but one in particular outweighs all the others and that's the constitutionality of president obama's affordable care act as republicans and derian lee refer to it the bombing here the issue at hand is whether or not the individual mandate provision that requires most everybody to purchase health insurance is or is not constitutional as in can the government force someone to buy health insurance carrier the the center for american progress

if all nine justices remain consistent in how they've ruled on similar cases and there are at least seven votes in the high court in favor of president obama then again this is one of the most highly politicized supreme courts in the history of this nation and they will rule right smack dab in the middle of an election season and justice clarence thomas' wife has made over one hundred fifty thousand bucks lobbying to repeal health care reform and school it goes duck hunting with cheney who hates obama and alito has essentially call obama a liar in front of the world during the state of the union address so anything can happen but before the supreme court showdown kicks off is already another showdown underway this one between the white house and the right wing think tank. the heritage foundation earlier this year the heritage foundation a think tank that will likely file a friend of a corporate if calling for obamacare to be repealed gave us a glimpse of their position in a scathing write up on their website saying the laws individual mandate was

intended to compel all americans to enroll in a health plan to lower the nation's uninsured rate but the war not only fails to accomplish its main goal it infringes upon americans basic constitutional rights its mandate is unprecedented it is considered to be the laws most controversial provisions. strong words what's curious is that the heritage foundation says that the individual mandate is unprecedented and what's curious about that is that mitt romney the republican who put in place its own individual mandate as governor of massachusetts said it was originally heritage foundation idea the idea for a health care plan was applied alone to here it is friday should a great conservative think tank helped out that i've told the truth but one of the very first people who came up with the idea to mandate it that years and years ago it was a good thing it was paid if they could serve it if idea to say you know what people

have responsibility for kerry put it so that they can jump in on this discrepancy last week white house press secretary jay carney said this about the heritage foundation's connection with the individual mandate. governor of massachusetts just the other day the idea for a health care plan in massachusetts was not mine alone the heritage foundation a great conservative think tank helped on that i'm told that newt gingrich one of the very first people who came up with the idea of the individual mandate is that years and years ago that's when the governor of massachusetts describing the individual mandate and why it's not a policy we sort of agreed and that's when the heritage foundation went nuts tweeting it carney carney stop misrepresenting heritage's position on obamacare and they wrote another editorial on their website saying for our occurred and hopefully for the last time we wanted to make it crystal clear to the white house that we think obamacare is unconstitutional and very very why it's so someone

isn't telling the truth and it's a huge mitt romney in the white house or it's the heritage foundation but luckily for everyone here tonight i'm going to set the record straight i'd like to submit for the record this piece of evidence from one thousand nine hundred ninety. by the heritage foundation and titled assuring affordable health care for all americans which goes on to say many states now require passengers in automobiles to wear seatbelts for their own protection but neither the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness under the heritage plan there would be such a requirement. it seems pretty cut and dry carriage plan but in case the jury needs a little more convincing i'd also like to submit this piece of evidence for the record from one thousand nine hundred two another report written by the heritage

foundation entitled the heritage consumer choice health plan in it heritage wrote their plan would require all households to purchase at least a basic package of insurance unless they're covered by medicaid medicare or other government health programs the report then goes on to say the heritage plan would institute reforms to smooth the transition to the consumer based national system again that's a national system not state or local but a national system heritage foundation's words not mine not only that republicans co-sponsored two pieces of legislation in a member of one nine hundred ninety three that pushed an individual mandate just as heritage laid out and when bill president bill clinton produced his own health clara care plan in one thousand nine hundred four republicans led by newt gingrich offered their counter proposal that included you guessed it a heritage foundation type of individual mandate so why is it that the heritage

foundation is suddenly declaring that an idea that they came up with is unconstitutional it's unlikely the constitution suddenly changed since one thousand nine hundred two could it be just because president obama proposed it. i don't want to put words in their mouths so i'll let heritages own spokesperson set the record straight maybe he has a go. this is a state issue you're confusing state police powers state power as with national federal power as well because it is not i've got the heritage lectures i actually have the documents that you guys put together a heritage talking points in eighty nine they called for a national a national. mandate in seventy two they called for a national mandate and when romney do they applauded it stayed. here and then the heritage foundation a very clear. the individual mandate federal level is unconstitutional they followed and made his prove if you already voted out since one. it's

a great question i'm not sure there is if he is not sure unfortunately that's not going to be good enough for a jury i mean you know they were for it before they were against it. well but now there's a lot for it so you can't do that anyway so so it seems to me the only reason why the heritage foundation switched from creating the individual mandate to now claiming that it's unconstitutional is because barack obama decided to take their policy it looks like the jury has finally reached a verdict the heritage foundation is a flip flopper. and that's the big picture for tonight for more information on the stories we covered visit our website to tom hartman dot com free speech dot org and argue dot com to check out our two you tube channels the ones that tom our production this entire show is also available as a free video podcast on i tunes and we have a free to our own i phone and i pad app in the app store you can see this feedback on twitter at tom underscore our friends on facebook at tom underscore our blogs

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