it was at the end of the term, the chief justice said nice words about martin ginsburg. >> it was the day after he died, yes. >> and justice scalia was weeping. they spend their new year's eve together. they're very close. >> they're big opera fans. they are all very pol ielt. they don't spend a lot of times together. one of the big rehnquist things at the court is that good fences made good neighbors and more often than not they do not spend a lot of time together off the bench. it's interesting sometimes to ask -- to ask them, "did you read breyer's book?" i don't think a lot of them are reading breyer's book. >> charlie: why not? >> you know, they -- >> charlie: have they heard it before? >> they are very respectful of each other's personal space, to use a term none of them would use, and i think justice breyer and justice o'connor had a real alliance on the court, but i don't think they did a lot of socializing off the court. i think the ginsburg-scalia

relationship is much more the exception than the rule. >> people think that they roam the hallways and trade votes and back-slap and so on, and it's really not that kind of institution at all. it's really akin to nine little separate law offices, each with four clerks busily working on the cases. they communicate with each other by writing. to the extent they persuade each other, it's not through charm so elena kagan's famous ability to bring the harvard law school faculty together, no small thing, may not translate directly to this kind of thing where to the extent you're going to forge alliances it's not on the force of your personality it's the ability to say things that might attract someone else's vote. >> charlie: you know elena kagan well. >> i do. >> charlie: what should you expect of him? >> i think you should expect that her views will reflect the who appointed her. i think she's a conventional

democrat. she is someone who was very proud to be the solicitor general in this administration. was proud to work in bill clinton's white house. i think -- you know, she will be pro-choice. she will be pro-affirmative action -- i say this assuming, because i have never had a discussion with her about it -- i think she will be -- she will believe that the government has the constitutional ability to try to solve problems, but she will also, i think, push back against individual rights claims against the government. i wouldn't be shocked if she ruled in national security areas in favor of the government as opposed to individuals. but i am guessing to a certain extent. >> she was on the bench today, sat in the first argument, of recused from the second and that's the kind of pattern we'll see a lot of and it was, god knows, a boring and mundane if not trivial case but she was in the mix, and she was completely at ease, asked very smart,

pointed questions both sides, didn't show her hands but knew the intricacies of the bankruptcy code on a question i'm sure was quite new to her and did a good job. >> charlie: justice sotomayor. wahave we seen so far about her, where she's -- what have we seen so far about her, where she's settling in and expectations? >> no surprises. she voted extremely consistently with two of the liberals, breyer and ginsburg. the one area people feared she might have consistency from a position because she was a prosecutor, she was pro defense. her first major dissent was on a case on the miranda rights, so she is -- the story is not surprising, her writing is generally a little flat and uninspired and one hopes, perhaps, that justice kagan, who is an academic wrote in a more lively, conversational style might give us something better. >> charlie: whose writing is the

most inspired? >> oh, i have a very clear opinion on that. john roberts. >> charlie: really. >> john roberts is a great writer. i think he is an elegant stylist. i think if he keeps going he's going to be the best writer on that court since robert jackson who to me is the best writer in the history of the court. >> charlie: same robert jackson who was a prosecutor at nuremberg. >> who served on the court in the 1940's and 1950's, i am a big fan in my recent article about stephen breyer in "the new yorker" i quote a sentence that roberts wrote in a fairly obscure case, but it was so elegant and turned so well that i won't botch it by trying to quote it but i'll just say it was awfully good. >> he went on to quote justice breyer in juxtaposition and it was not flattering. >> i did do it on purpose because breyer is -- perhaps this is a little nasty -- i said he writes in a sort of judicial powerpoint, "ifrt first, second,

third" he's -- "first, second, third" he's a bright guy but he's not a stylist. >> charlie: who other than justice roberts would be second place for you, adam? >> justice scalia, very lively, entertaining writer, particularly good in dissent, if he writes a consent you are going to be confident he has not overlooked any shortcomings of the majority opinion and he's got a kind of pricklier, more polemical way of writing than roberts does. i agree with jeff that roberts is a very fine writer. then the list stops. i couldn't point to anybody else. >> it's pretty -- >> charlie: somebody once said there is nobody in second place. >> it's a tough race for second, yeah. >> charlie: how is justice roberts doing as a chief justice? >> remember that he's got just the one vote. >> charlie: right. >> and he doesn't have a lot of power beyond some power to assign opinions. i think he's well liked inside the court as an administrator. that he's fair. that he assigns things in a

sensible way. i think what we saw last term, he turns out to be in the majority more than any other justice, he takes that away from kennedy because he's trying hard, i think, to find exon ground with people, that there is a category of case that is he really cares about -- campaign finance. gun rights. the exclusionary rule. and on those he will push very hard. but in a whole variety of other cases i think he's trying to find common ground. he's trying to avoid 5-4's, and he does care about the institution probably more than any other justice. he very much wants the institution to be held in high regard. >> charlie: ok. not suggesting that justices think about personal ambition, but following up on what you said, if you want to be a powerful justice, look at anthony kennedy. that's where you want to go. >> yes, but these are principled people and these are really big issues, and i think they -- they all stand for something -- i mean, i would differ a little with adam on -- on roberts, but

i think roberts is very, very conservative, and he's trying to push the court in a conservative direction across the board. >> charlie: ok. >> this is a guy on a mission. and i think he's doing it in an honorable way, he's doing it -- you know, within the rules, but i don't think there is any mistaking what he's doing there. so -- so -- i mean -- and that -- that suggests no disrespect for the institution, it just tells us what he's up to. >> charlie: yeah. >> others have done the same thing. >> he may be right, and time will tell, these are the kinds of things when you make a point someone comes up with three cases that may push the other way but the chief justice did join with the liberals plus kennedy a decision on juvenile life without parole -- striking it down. although his decision -- his opinion was on narrow grounds -- he joins a case on federal power involving sex offenders where he joins justice breyer. he was the only justice to join every part of justice ginsburg's opinion casting doubt on the

convictions of jeffrey skilling and conrad black, so but i don't fundamentally disagree with jeff. very conservative but also he's a young man, and this is a long-term play. >> charlie: in general, give us a sense of what is the basic debate between the members of this court. >> well, i guess -- >> charlie: as blocs. >> if you want to talk about individual rights, which is i suppose what people care about the most, whether it's abortion, affirmative action -- what we mean by conservative, what conservative means in a legal context is applying the bill of rights in a narrow way. saying that -- since there is no such -- there is no reference to the word "privacy" in the constitution, there is no right to privacy in the constitution. liberals feel that the terms should be defined expansively and that they should be defined differently over time.

that the constitution was designed to reflect modern conditions, so if school segregation was legal around the end of the civil war when the 14th amendment was passed, brown vs. board of education was still right in 1954 because the world had changed. >> charlie: beyond that, how does the division reflect itself in federalism? in federal-state questions? adam. >> there it gets complicated because you get some splits on the right. we lost two big states-rights opponents when rehnquist and o'connor left the court, scalia and thomas still are generally in that direction. you don't have as much sympathy for states rights from roberts and alito, who basically are creatures of the executive branch. so on some of those questions, the clean divisions start to fall away a little bit. >> i think that's right. >> charlie: ok. there is also this question about this court. too many of them came from the

same schools. >> it's unbelievable. it's crazy. six harvard and three yale. i'm proud to have gone to harvard law school, but it's just ridiculous. how can you have a court like that in the united states? >> i'm a little disappointed that we only have the three. >> it's not right. they're very heavily centered toward the east coast and they come from a very narrow band of lawyers. we used to have supreme court justices who were governors, attorneys general, a kind of bureaucratized judiciary who come up very much through the very highly credentialed ranks without the judicial world or the world of real people so we don't have diversity of the kind we had a century ago. >> in 1954, brown vs. board, eight of the nine justices had never been justices before, that was the first time that all nine

justices were federals appeals justices. i'm not saying eight of the nine should be, but there should be senators like hugo black, people who have broader experience. >> if the best we can say is that elena kagan hasn't been a judge, although nominated to the d.c. circuit, she basically might as well have been because she very much lives in the world. >> charlie: she was a part of the system that leads to appellate decisions. >> correct. >> charlie: all right. so let's talk about -- first, one -- justice alito. where would you -- i mean, any surprises from him? i'm only taking the three most recent. >> we should listen to what presidents say when they talk about the supreme court. president bush said, "i want to appoint justices in the mold of scalia and thomas." that's what he did. and yes, there are a handful of opinions where justice alito differs from thomas and justice scalia but just a handful. he's very conservative across the board. >> charlie: adam? >> i would even say that he --

you wouldn't think this was possible, but he occasionally finds territory to the right of roberts, scalia and thomas and he will not follow them when occasionally there are parts of the constitution that scalia and thomas really think help defendants and they may not like the result but it's in the constitution, the confrontation clause, for instance, they're going to follow that theory even if it results in something that might not comport with their policy preferences, alito is not in that mold. he will take -- >> adam is married to a great veterinarian. another peculiarity of justice alito's view is that he appears to love cats a great deal because there was a case last year, a very rare case that was decided 8-1 about these horrible films on the internet and elsewhere where they kill cats and torture animals, and the justices decided 8-1 that those films were actually protected by the first amendment, but justice alito said no. he was too pro-cat.

>> charlie: what was his argument? >> that this conduct was illegal. that portraying illegal conduct -- and the others were saying that's ok. prosecute the illegal conduct, don't prosecute the expression about it. >> charlie: justice -- >> right, but a very pro-congress has the power, he said, to outlaw some kinds of speech even when it's pure speech, even when it's a video of something that the person making it didn't participate in, maybe it's a bull fight that's illegal to do in spain, the sale of that bull fight, because bull fighting is illegal here in the states would violate this law and justice alito could live with that. >> charlie: it was my impression that the conservative wing of the court always basically said if it's not in the constitution then it's -- it may be unconstitutional. some piece of legislation. but my understanding was their argument was frequently that the legislature went too far, point one. point two, justice breyer, at this table and others, have

shown a certain deference to what the congress does and respect. are those two ideas in conflict? >> well, i think -- >> charlie: not my words but -- >> the words that get to what you are talking about are judicial activism. >> charlie: right. >> because that was a traditional epithet flung at liberals. >> with some justification -- >> charlie: and at the warren court. >> and at the warren court. telling police what to do, telling states they can't ban abortion, telling states they have to integrate their schools. but what we have seen in recent years is conservative judicial activism. telling congress, "you can't ban -- you can't regulate campaign finance the way you thought. you can't -- state legislatures, city councils -- city councils, you can't ban gun control." you have the conservative wing telling democratically elected branches what to do.

>> judicial activism is often in the eye of the beholder but one way of looking at it is did the court overturn legislation, is it stepping into the shoes of the congress or state legislature, did it overturn its own precedent and what we're seeing with the roberts court is they're not doing it any more than earlier courts did but when they do it, they do it almost uniformly in a conservative direction. >> charlie: what's the court going to hear? >> we have a couple of good first amendment cases coming up and they follow in a way about this animal-cruelty case jeff was talking about. one of them involves protests at military funerals and whether the father of a fallen marine who is having the worst day of his life now has to live with protesters saying really crazy things. this is a small church from topeka, kansas, that has the view that god hates homosexuals, god hates american tolerance of homosexuality and therefore, god is killing our soldiers abroad. and they're protesting with this kind of stuff around a funeral. this case reaches the supreme court -- >> the technical term is they

are wack jobs. it's horrible, anyway. i'm sorry, adam, i didn't mean to interrupt. >> no problem. and i think lunatic might be another word to cross the mind but nevertheless a free speech issue because i don't think anybody seriously disputes that you could draw a buffer zone around this kind of really sacred moment and not allow anybody within that zone, and these guys did follow all the local laws. what happens here is the father of the fallen marine sues, wins $11 million for intentional infliction of emotional distress and that gets thrown out by an appeals court on first amendment grounds saying, "listen, we can't let jurors decide which speech is so bad, so unpopular that we're going to allow it to be punished. maybe you can do this neutrally through a law, through a generally applicable law but you really want to allow people to sue over the intense grief -- i don't doubt that this father had, so that's a case that's really going to be lively at the court and better yet, the

pastor's daughter is arguing the curch's side of the case in the court so that has all the makings of the train wreck. >> charlie: is she a great appellate lawyer? >> we'll see. >> charlie: well said. thought i would check. >> there is no evidence so far that she is, but you know -- rookie appearances are sometimes very impressive. >> charlie: it's her moment, isn't it. >> one of the problems i remember lewis powell used to say that the thing about argument in the supreme court is, like, a lot of people just want their day in court and they're going to come up there and argue no matter what even if they're not qualified to do it, and sadly, one of the things in recent years that has gone on is there is sort of a professional supreme court bar, now, where there are a lot of -- john roberts was sort of the king of it when he was in private practice -- but it has limited the number of absolute train wrecks which were entertaining to watch, if not very edifying.

>> at the argument this morning, i talked about for a second justice scalia got a little frustrated with the lawyer in front of him. he was asking friendly questions but the lawyer wasn't getting it. he didn't realize these were questions meant to help him. he finally said, "counsel, i'm trying to help you." >> charlie: help you clarify your position for god's sake. what else should we be looking for in the upcoming term? >> i have to say -- i'm going to disagree with adam. i think these are not -- there are not a lot of real big -- there are two issues hanging out there that are huge, that are immense, that are going to define this court and they're not there yet to the court. >> charlie: they are? >> they are whether health care reform is unconstitutional or not. and same-sex marriage. those cases are both heading to the supreme court and they will be career-defining cases for all the people up there. >> charlie: in other words, how you -- being almost -- >> go to the court every day. >> that's true. >> if you do this for a living, you find yourself interested in a lot of the other stuff.

>> i'm sorry, adam, but -- i plead guilty to that. >> you're right. over the horizon, there are for sure huge groundbreaking cases. you may or may not be interested if california can stop video game stores from selling violent video games to minors but to the likes of me that's a pretty good case. >> charlie: why is that a good case? hold on. we'll come back to same-sex marriage. why is that a good case for you? >> because it's another great first-amendment issue. the court has really, so far, said that it will allow the government to ban or restrict sexual materials. it's never taken that concept and applied it to violent materials, and if it's going to make that significant shivent, that really has a lot -- significant shift, that really has implications for movies and books and all kinds of stuff and also the image of tease justices, not all of whom are young trying to figure out what a video game is or works like is also not -- >> charlie: i'm voting with adam on this.

he's right. >> also, one of the fun cases last year was when they were all trying to figure out what a text message was because that was -- "what is that, like near the internet? what is that?" they eventually got it, i think. >> charlie: we need a new nomenclature here. >> that's right. >> charlie: what else. the third case. even though you don't find them startling. adam? >> let me sort of follow jeff's thought a little bit, because sometimes, the cases they hear now will tell you stuff about cases they'll hear later. and they're looking at one arizona immigration law now. >> charlie: ah. >> that will almost certainly tell us something about that arizona immigration law everybody knows about, about what police can do when they stop people they suspect of being illegal immigrants. this case is about whether businesses can be subject to extreme penalties if they hire illegal immigrants, and the same clash between federal immigration law and policy and state law in the same state of arizona is in play there, so that case will be interesting in

itself, but will also give us some pretty good guidance about what happens when that very controversial arizona law reaches the court. >> and i think another thing that's interesting about that arizona case is that it puts two conservative goals in conflict with each other. because this -- this is a court in a range of cases is very sympathetic to businesses. they don't like to see businesses sued. they are highly unsympathetic to plaintiffs' lawyers and personal-injury lawyers but here you have a law -- but it also is a court that believes in government power and believes in police power, so here you have a law aimed at policing companies for hiring illegal immigrants, so it will be interesting to see where the conservatives go in that case, because several -- they're in a conflicting situation there. >> it's also one of the cases you mentioned at the outset, charlie, where elefa kagan will be sitting it out which gives -- elena kagan will be sit it out

which gives rice rise to the possibility of a 4-4 split. we're going to have about 25 instances this year where people can go to a lot of effort, the court will spend a lot of time reading briefs, hearing arguments and if there is a 4-4 split, we're basically done. >> charlie: there seem to be a lot of businesses cases coming up this time. or is that usual and i didn't -- >> that's always the case. if you look at who has the money to sue and take a case all the way to the supreme court, it's very -- it's very expensive business to litigate in a district court, in the court of appeals and then file a cert petition, so -- you know, businesses have -- you know, big stakes in a lot of these cases including a lot of the non-high-profile cases about what can be -- what material is subject to discovery -- stuff that's not very sexy, but very important. >> and they go to the specialists jeff was talking about -- the dozen or so, 15,

lawyers who really turn up at the court all the time are very good at persuading the court to take a case which is the bigger battle -- as you were saying at the outset, 7,000, 8,000 petitions a year, they take 70 of them, you have one in a hundred chance but if you go to one of the leading members of the supreme court bar and your business can pay for that, your chances go up significantliment we have a couple of good business cases coming up -- significantly. we have a couple of good business cases coming up. whether corporations have personal privacy rights under the freedom of information act. it's not quite as scary as some people might think because the statute itself says persons include corporations and yet saying that at&t in that case has personal privacy rights is going to drive the same people who don't like citizens united nuts. >> charlie: just for the benefit, since you have opened that, what -- i'm remembering my training in law school as well -- what's the characterization

of a corporation as a person? >> well, a lot of the right -- a corporation is a legal entity that has a lot of rights like an individual does. just speaking of freedom of the press. a lot of the people were so outraged about citizens united. all of us agree that "the new york times" has the right to protect itself in the first amendment. that cnn does. so corporations have always been given certain rights. the question is how similar -- but no one suggests that corporations can vote. >> charlie: right. >> they can't be sent to prison. they can be fined. they can receive service or process so they can be sued. for hundreds of years, corporations have had some rights like citizens, and some rights not. so the idea of treating them like individuals is not totally novel. >> charlie: the other business case -- i'm not sure which you were referring to as nasa vs. nelson, which is contractors and whether the government can ask potential employees about past

drug use. adam, what's that about? >> so these are -- these are scientists and engineers at the jet propulsion labs at caltech who are not -- they don't work on military projects, they work under contract with nasa, they don't have security clearances and they were going about their business when, in 2004, the bush administration thought post-9/11 they would extend background checks that federal employees have to go through to contractors like these folks, and remembering oppenheimer and what went on in the mccarthy era, this is not something they wanted any part of. they didn't want to answer questions about drug use, about counseling, they didn't want to sign forms that would allow the government to visit their landlords and former employers and so on, but that said, the level of background checks that's contemplated here is something that lots and lots of public and private employees put up with and i have a feeling that this is one of those cases coming out of the ninth circuit that the court took to reverse

and i have a feeling that these scientists and engineers are probably going to have to make a choice between their jobs and being subjected to those searches. >> charlie: and how about siracusano? >> i think matrix is the case where the question is in a pharmaceutical setting you get enough reports of adverse impact, at some point does that become so material to shareholders who might buy and sell shares in your company that you have to report it to them? the idea being that no individual report is important enough but does there come a point where, in the aggregate, it becomes important enough? then there is a great state-secrets case they took the other day. they have been turning back state-secrets cases who say they have been sent abroad to be tortured. when they get to the supreme court, the supreme court is not interested. but two military contractors who don't want to give back to the

government $3 billion said "we would have built your stealth aircraft except you wouldn't give us the classified information." the government says, "that's not right but we can't tell you why. state secret." that case, the court has taken. that interesting state-secrets case reaches the court in a corporate setting. >> charlie: you once said on this show you thought that hillary clinton would be the president of the united states and her first supreme court appointment would be barack obama. >> i did say that. so sue me, ok? no, i still think it's a good idea. >> charlie: the point here. >> i'm sorry. >> charlie: the point is, does president obama think like a judge? does he think like a law professor? is that something that is a defining quality of him? >> you know what? i think one of the complaints that the left has about him is that he is not as interested in legal issues as they thought he was. >> charlie: ah. >> for example. one of the great mysteries of

the obama administration is why they have been so slow to fill judicial vacancies. there have been two vacancies on the d.c. circuit -- the second most important court in the country -- for the entire obama presidency. he is just now -- hasn't done it but he's announced his intention to fill one of those appointments. also -- and he wrote this in his book -- he is someone who believes that political change comes from politics. from elections. he is not someone who believes that political change should come from the courts in a way that sort of the heroic liberals brennan and marshall did. so in that respect, i don't think he thinks like a liberal lawyer -- at least like a lot of liberal lawyers. >> charlie: the argument goes, adam, jump on this because it's an interesting and comes out in bob woodward's book. >> a year ago jeff wrote an astute piece that he doesn't go to the courts for change.

he thinks he's going to get change through congress and through executive action and that -- that -- that is not unusual in the modern left. that the left doesn't want to lose the gains that they achieved in the warren court years but is no longer looking to the courts to advance its agenda. >> charlie: there is also this, though, that many people say that there has been a delay because he takes such a hands-on interest in judicial nominees because he cares about the court system. >> i -- >> charlie: you don't buy that at all, do you? >> i don't buy that. yes, i have heard something like that as well but no nominees to the d.c. circuit in almost two years, that's not because he's just sitting there reading their briefs. it's baffling. it's baffling. i think you had a change at the top -- at the white house counsel's office. >> charlie: right. >> i am -- i -- maybe adam has a theory. i have no idea. >> charlie: i don't know why he made that change.