>> charlie: welcome to our program. tonight, the supreme court of the united states. it is the first monday in october. the day that the court traditionally begins its new term. we'll take a look at the court with adam liptak of "the new york times" and jeffrey toobin of "the new yorker" magazine and cnn. >> i think roberts is very, very conservative and he's trying to push the court in a conservative direction across the board. this is a guy on a mission. and i think he's doing it in an honorable way, he's doing it -- with you know, within the rules -- but i don't think there is any mistaking what he's doing there. so -- so -- i mean -- that -- that suggests no disrespect for the institution, it just tells us what he's up to. >> so we're five years into the

roberts court but a little a little bit of a misnomer to talk about the roberts court. before, thereof 11 straight years with no shifts in personnel, the second longest period in united states history with a constant, static court and now, boom, we have a new chief justice, chief justice roberts, followed by justice alito followed by justice sotomayor last year and today for the first time we saw justice kagan on the bench. that's a lot of change, mostly not consequential change because the switches tended to be ideologically one for one with the one exception of justice alito for justice o'connor which did shift the court to the right. >> charlie: all about the supreme court. next. >> funding for "charlie rose" was provided by the following. ♪

>> charlie: additional funding provided by these funders. >> and by bloomberg. a provider of multimedia news and information services worldwide. captioning sponsored by rose communications from our studios in new york city, this is charlie rose. >> charlie: the united states supreme court began its new term, today. for the first time in its history, three three women on the bench. all eyes will be on new member justice elena kagan but because she was president obama's solicitor general she will refuse herself from cases. those cases include support for religious schools, illegal

immigration, violent video games and the role of d.n.a. evidence. almost half the cases devoted to business with implications for contractors and telecommunications companies. joining me is jeffrey toobin, senior legal analyst with cnn, also a staff writer for "the new yorker" magazine, from washington adam liptak, supreme court correspondent for "the new york times," writing a series of articles about the supreme court in "the new york times." i am delighted to have them this evening. what happens between the end of one term and the beginning of another term, called the first monday? >> they take it easy. the supreme court, in addition to being a great job, is kind of a cushy job. they do about 70 or 80 cases a year. do the math. 70 cases divided by nine justices divided by four law clerks apiece, it's really, compared to many other judges in the country, not all that demanding in terms of time. it's very intellectually

demanding. from when the court shuts down, basically the first week in july until september, that building is pretty close to empty of justices. you really don't see them there. a lot of them travel to europe. they teach. justice kennedy always teaches in salzburg. justice scalia is often in europe. justice ginsburg too. justice breyer was on a big book tour this year. >> charlie: more about that later. >> so they clear out, and it's -- it's -- >> charlie: when do the clerks come in? >> it varies by chambers but usually, over the summer, they will overlap with the old clerks for several weeks so they can be trained and basically, what the summer is mostly preoccupied with is reviewing the petitions for certiorari -- the requests for the court to hear cases that stack up over the course of the summer, and basically, the clerks learn the system, because the court gets, i think, 7,000 cert petitions a year -- >> charlie: 7,000? >> and only grants about 70 or

80 so basically, it's learning how you identify the handful of cases that they will take. >> charlie: when will they hear the first one? >> today. >> charlie: today. >> that's the first monday in october, and that's -- what the first monday in october means is it's the day that oral arguments begin. >> charlie: oral arguments every monday? how often are oral arguments? >> they go a couple days a week. two, three days a week. adam can help us. adam -- >> charlie: adam, help us understand this. >> they go monday, tuesday, wednesday, one week monday, tuesday, wednesday, the next week, then they take two weeks off so they work six days a month in terms of hearing arguments. >> that was different in the 1980's. in the 1980's, when i first followed the supreme court as a law student they were following 150 cases a year, now they only hear two arguments -- still two arguments a day, two hours in the morning with rare exceptions. >> a rare afternoon argument but not so uncommon a single argument, so as jeff is suggesting it's not a heavy

lift. when chief justice roberts was still a young lawyer in the reagan administration he wrote a funny memo saying that only school children and supreme court justices get the summer off. >> and that's looking awfully good to him him -- awfully good to him now, the summer off. >> charlie: you have written articles about the roberts court. tell me the overview of the roberts court with the addition of the new associate justice. >> so we're five years into the roberts court but it's a little bit of a misnomer to talk about the roberts court because it keeps changing. before chief justice roberts came on there were 11 years with no shifts in personnel -- the second longest period in united states history with a constant, static court, and now, boom, we have a new chief justice, chief justice roberts, followed by justice alito, followed by justice sotomayor last year and today for the first time we saw justice kagan on the bench, so that's a lot of change, mostly not consequential change because the switches tended to be

ideologically one for one with the one exception of justice alito for justice o'connor which did shift the court to the right. >> charlie: do we still believe that justice kennedy is the crucial vote on most issues coming before the court? or is that more said than done? >> without question, it's -- in the contested cases, the advocates train all of their arguments on justice kennedy because he's going to be the deciding vote. >> we've had swing votes before. in the 1970's, it was lewis powell. in the 1980's and 1990's it was justice o'connor to a certain extent but never in recent history has there been a justice as powerful today as anthony kennedy is -- the court is so polarized -- we don't know how kagan is going to vote although we assume she will vote similarly to stevens the and the other three. >> while justice o'connor was

the swing justice, she would be very incremental, moderate, pragmatic. when justice kennedy is in, he's in all the way, so if he's on your team he will push the argument to the extreme, so he's instrumental in that sense too. >> charlie: what does that mean, "push the argument to the extreme"? >> justice o'connor would rule narrowly, would rule on this particular case and maybe not give the lower courts a lot of guidance, or give them a balancing test that different judges would apply differently. justice kennedy will say, for instance -- you know, in a full-throated way in citizens united, that corporations and unions have first amendment rights to spend in candidate elections. that could have been decided narrowly. it was decided broadly. >> i think citizens united in a classic example of what adam is talking about because the facts of citizens united were so peculiar and so narrow relating to this obscure nonprofit organization using this bizarre technology that's hardly used at all, you could have simply

decided that case involving nonprofits using this one -- and instead, he wrote this opinion saying corporations can spend freely in any election, anytime, anywhere, and i think adam's right, that's the anthony kennedy way. >> charlie: on that particular point, it so bothered the president of the united states that he took note of it in a state of the union message. >> well, it's really one of the great moments in recent supreme court history that didn't even take place at the supreme court. it took place at the state of the union where you had the president, in a very unusual move, criticizing the court directly to their faces. what he was really doing was talking about legislation to correct the supreme court opinion, but it actually -- it certainly came off as criticism of the court. >> charlie: and even raises a question as to whether the court should be there for the state of the union. >> john roberts -- >> justice alito made it more vivid by seeming to mouth the

words "not true" and to preempt jeff's point, a few weeks later john roberts answering questions in a law school said that the whole occasion had turned into a political pep rally, making him wonder whether he should attend at all. >> charlie: do you expect a decision that the supreme court will no longer go to the state of the union? >> certainly not stephen breyer. stephen breyer makes a point of going every year, this was true even before this and not just because he's selling books, this is a longstanding principle of his and suddenly it's going to be very interesting. there were six at the last one. how many show up this time? and frankly, i am somewhat sympathetic to roberts' position although i probably don't agree with it, it is awkward -- a lot of what goes on at the supreme court -- at a state of the union is political partisanship and you can see them squirming in their seats. if the president pays tribute to the troops, they all clap. but if the president says, "we need to cut taxes," they don't

clap. so it's awkward -- >> they have to kind of coordinate. they look at each other to see if they're on the same page instantaneously to decide if something is nonpartisan enough that they can clap for it. it's tough. >> charlie: is the court opening up in terms of this sort of relationship between the justices and the public? >> i would say a little bit. going back to the 1950's, william o. douglas wrote a series of memoirs that were some -- quite political, but after that the court was pretty quiet for a while, and chief justice rehnquist, he did write books. they were pretty careful to steer clear of contemporary political debates. >> charlie: but you could talk about either music or basketball forever. >> that's right. justice sotomayor is writing -- is writing a memoir. i think they are opening up a little bit. this week, they announced that they're going to release the audio of transcripts -- audio of oral arguments at the end of

each week. that was sort of two steps forward and one step back, because they also said they weren't going to release same-day audio of the high-profile arguments the way they used to, so i think they're struggling with it, but when in doubt they restrict access. >> i would love to see a kind of lincoln-douglas thing between scalia and breyer. >> well, that show, they do take on the road once in a while. they'll go to a law school or historical society and they both have their talking points and each time, even though they know woos coming they manage to drive each other crazy. -- what's coming, they manage to drive each other crazy. >> charlie: while we're talking about this behavioral business on the court, who are the friends on the court? who are the best buddies? who gets along with whom? >> one great pair, and a surprising one to many people is justice ginsburg and justice scalia, ideological opposites, very close friends. jeff, am i right that -- you wrote that the day after justice ginsburg's husband died, she was

on the bench to