alito said that you feel like a when youant up there are sitting while everybody else is standing andlapping. the justices sit and they keep their hands quiet. so it is not their favorite venue, i would say. particular, this pope's messages might have been something that some of the justices did want to talk about. things,o talk about two there are things i want to talk about. one of the things is age, the justices and how old they are right now. you can see on the screen that withart at the top ginsburg, and we go down, alito is 65, so to me or is 61, john roberts 60, and elena kagan is 55. what does that say to you in the history of covering the court? tony: well, the median age is younger than some of the justices of the courts that i have covered before. 2010, justicel stevens was on the court and he was 92. brian: and he is still alive? tony: he is still alive and i think he regrets having retired because he is still very, very active mentally and keeps pining about what the current court is doing even though he has left the court. ,ut it does also tell me that and this is someth

you can see on the screen that we start at the top with ginsburg, and we go down, alito is 65, sotomayors 61, john roberts 60, and elena kagan is 55. what does that say to you in the history of covering the court? tony: well, the median age is younger than some of the justices of the courts that i have covered before. you know, until 2010, justice stevens was on the court and he was 92. brian: and he is still alive? tony: he is still alive and i think he regrets having retired because he is still very, very active mentally and keeps pining -- opining about what the current court is doing even though he has left the court. but it does also tell me that, and this is something i have been writing ever since i started covering the supreme court, that the supreme court really should be a big issue in the presidential campaign. now you have four justices in their upper 70's or 80's going into the next term of president. for actuarial reasons, it seems possible, likely, perhaps, that at least one or two justices will depart in one way or another. in those four years. so, the public really shoul

>> there is none, justice alito in, my view. i know there was argument a moment ago about the suggest that someone else committed the crime. we crited the initial brief in supreme court, they id he doesn't question the seriousness of the aggravaters either. hit focus as on proportionality review, which is not at issue here but is another benefit of the florida state. >> can i ask you a couple of questions on this? >> yes >> number one, when ever have we said that a jury waiver on an issue is based on the lack of a challenge by a defense attorney? don't we require waivers of jury trials to be explicit and by the defendant and him or herself in? when someone is waiving the jury trial altogether, absolutely and there would be structural error even if there was no objection. ut the court has held that aprendi was subject to harmless error. >> we take plebty of appeals where people are saying assuming this state of facts, i'm entitled to x and then when they go back down they argue that those, that thatsumption is wrong. why isn't th

>> probably the last, justice alito. when the court characterized substantive rules most recently -- >> is there's a different between much less likely and much, much less likely? >> i would butt it in words the court used previously. the court said previously that a substantive rule creates a significant risk that the person is serving a sentence that's not appropriate for that person, maybe not even legally available for that person. did not say absolutely conclusively proves it. it said "significant risk." in contrast, when the court has talked about procedural rules, rules that govern the manner in which a case is adjudicated. it has said that the likelihood or potential for a different outcome is speculative. i think, if you put this case on the speculative significant risk axis, this case falls in the significant risk domain precisely because of the reasons why the court said it was deciding miller. the reasons why the court decided miller had to do with the reduced culpability of youth and the capacity of youth to

and so as justice alito, as you were saying, the difference between a substantive and procedural rule under teague is not whether it's very likely or very, very likely to result in a new outcome. it's about whether the new rule categorically removes the power of the state to impose a category of punishment. that's what a categorical rule does. that is not what miller does. right? miller may express an expectation about the way that miller hearings will come out. and that may or may not come to pass in the future. who knows? right? we can point to cases where criminal defendants have had miller hearings and have still received life without parole. and i can point to several in particular from the state of louisiana under its new miller procedures. but the point being is that the idea of changing outcomes, which is what the united states' entire argument depends on, is built into the procedural side of teague and not the substantive side. the substantive side is about -- >> i think not, i think by your own definition this fits on the substantive side. you said you categorically remove a

scalia has said that, and alito said that you feel like a potted plant up there when you are sitting while everybody else is standing and clapping. the justices sit and they keep their hands quiet. so it is not their favorite venue, i would say. but i think, in particular, this pope's messages might have been something that some of the justices did want to talk about. brian: to talk about two things, there are things i want to talk about. one of the things is age. we have a list of the nine justices and how old they are right now. you can see on the screen that we start at the top with ginsburg, and we go down, alito is 65, sotomayor is 61, john roberts 60, and elena kagan is 55. what does that say to you in the history of covering the court? tony: well, the median age is younger than some of the justices' courts that i have covered before. you know, until 2010, justice stevens was on the court and he was 92. brian: and he is still alive? tony: he is still alive and i think he regrets having retired because he is still very, very active mentally and keeps opining about what the curre

michael dreeben: probably the last, justice alito. when the court characterized substantive roles -- justice: much less likely or much, much less likely? michael dreeben: the court has said that the substantive rule creates a significant risk that the person is serving a sentence that is not appropriate for that person, maybe not even legally available. it did not say absolutely, conclusively, it said significant risk. in contrast when the court has talked about procedural rules, rules that govern the manner and was -- in which the case is adjudicated, it said the potential for a different outcome is speculative. if you put this case on the speculative significant risk access, this case falls in the significant risk domain, precisely because of the reasons why the court said it was deciding miller. the reason why the court decided miller had to do with the reduced culpability of youth and the capacity of youth to mature, change, and achieve a degree every -- rehabilitation that is consistent with something less than the most harsh sen

wrote the opinions one whether abud should be overruled and alito said the reason the court was noterruling abud vg was because it had not been decided, having said that, i will add the disclaimer that i s thought exactly the same thing when the supreme court granted review to consider the validity of fraud on the market ought presumption a few years ago andd everyone thought the court was o going to overrule the case, adopting that presumption for securities fraud cases and yet the court didn't.ence. so i make that prediction with some, but not total, confidence. as to the fisher case, you knowb it's hard to say how significant that case is going to be as a practical matter. precisely because it does unit involve a challenge to a very particular aspect of the university of texas at austin's affirmative action program. it is a hybrid program, and if some sense, it's got some distinctive character ickes. i think the things to watch for in the case are going to be ng y first, the extent to which the court says anything about the degree of deference that an institution gets for its def

>> probably the last, justice alito. >> muchless likely or much, much less likely? >> the court has said that a substantive rule creates a significant risk that the person is serving a sentence that's not appropriate for that person. maybe not even legally available for that purpose. did not say absolutely conclusively prove it. it said significant risk and in contrast when the court has talked about procedural rules, rules that govern the manner in which the case is adjust -- adjudicated it is speculative. precisely because of the reasons why the court said it was deciding miller. the reasons why the court decided miller had to do with reduced youth and capacity of youth to ma sure change and achieve a degree of rehabilitation that is consistent with something less than the most harsh sentence available for youths who commit murder, terrible crime but still the harshest sentence for the worst of the worst, which was, in fact, what the louisiana said amended statutes to conform them to miller. life without parole should be reserved to the worst offenders who commit

alito drifts slightly to the right, roberts slightly to the left. liberal,is not taken a he is still a very conservative justice. the probably because he is the chief justice, he is also influenced by his responsibilities to the institution. and that may cause him in some cases to take a more moderate tack. host: we will see that in some of the big cases coming up this term. in terms of blockbuster cases, are there going to be more this term the last term? guest: it's hard to predict. usually there are 20 cases decided i 54 votes. -- decided by 5-4 votes. of the 70 or so, maybe 15 or 20 are that closely divided. and of those, they are not always the same five and not always the same four. but mostly they are. four liberals, for conservatives, justice kennedy in the middle. if the supreme court takes up the issue of abortion, a high-profile issue this term. what are the potential cases that that issue could involve? guest: the leading case comes out of texas. they haven't taken yet. they haven't had an abortion cases 2007. this is a case where taxes

bush appointees for alito and roberts started essentially identically the same place and toledo trip slightly to the right. robert slightly to the left that that's not to make him a liberal. he's still a very conservatives is the probably because he's the chief because he's a chief justice p. is also influenced by his responsibilities to the institution and that may cause him in some cases to make a more moderate stance. >> host: of course we will see that in some of the cases coming up. in terms of watt buster cases very divisive cases either going to be more this term than last term and how do they compare? >> guest: is a little hard to predict. usually there are about 20 cases decided by 5-4 votes. of the 70 or so, maybe 15 or 20 are that closely divided and of those 5-4's they are not always the same court but mostly they are which is to save for liberals, for conservatives and justice kennedy in the middle swinging one way or the other. >> host: imagine one of those closed cases would be if the supreme court takes up the issue of abortion certainly could be a high-profile issue

>> there is none, justice alito, in my view. and i know that there was some argument a moment ago about the evidence suggesting that someone else may have committed the crime. we cited in our initial brief in the florida supreme court where they said without any contention, there is a two-aggravator case. it was especially heinous, atrocious or cruel. he doesn't question the seriousness of those aggravators either. his focus, instead, acknowledging all that, was proportionality review, which is another benefit of the florida system, that the florida supreme court reviews everything for proportionality. >> can i ask two separate questions on this? >> yes. >> number one, whenever have we said that a jury waiver on an issue is based on the lack of a challenge by a defense attorney? don't we require waivers of jury trials to be explicit and by the defendant him or herself? >> when someone is waiving the jury trial altogether, absolutely. of course that would be a structural error even if there were no objection. this goes more to th

. >> so justice alito, let me separate out what i am calling the selection decision, that is he weighing of ags and mis and the elements where all the elements of capital murder have been found beyond a reasonable doubt by a jury and therefore when the sentencing jury is done you are eligible for the death penalty, leaving aside the eighth amendment question whether the constitution then equires the jury to make the intensely moral judgment about whether the penalty should be life without parole or death, assuming that a judge can do that, so long as the jury is t told that its input, which is how the florida supreme court has put it, is -- so long as they are not told that it's advisorly, so long as they're told that you as the finders of fact have to find beyond a reasonable doubt that this capital crime was committed which includes the following elements, including one of the two specified aggravaters, the constitution is it satisfied. the caldwell problem is an eighth amendment problem. it was an eighth amendment case and in caldwell, i mean what the jury is told here if, the system

bush appointee, the chief justice and justice alito by some political science measurements are the most pro-business justices in the last half century. and this term we're going to see them go after class actions and i don't think class actions are going to look very good afterwards. >> and labor unions. >> they don't like labor unions at all there is a big case out of california about public employee unions where it could cripple their able to get money from public employees. which would hurt the democratic party a great deal since public employee unions -- >> how about criminal justice cases. >> this court, i don't think has huge differences on criminal justice. you know, they-- sonio sotomayer has taken it upon herself to be kind of the guardian of the criminal docket and to be the chief monitor-- . >> rose: wasn't she a prosecutor. >> she was a prosecutor but in a jurisdiction in new york that is a lot more liberal than the rest of the country. and she, i think, is taking a particular interest in that subject. but by and large, this is a pro law enforcement court. and you don't see

in dissent in that case, justice alley -- alito recalled a prison release program in california in the 1990's. although efforts were made to release only those prisoners least likely to commit violent crimes, that attempt was spectacularly unsuccessful. during an 18-month period the philadelphia police arrested thousands of prisoners for committing 9,732 new crimes. those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, 2,748 thefts, not to mention thousands of drug offenses." close quote. i wish it weren't so. i wish we could have these programs. and i've seen them since my time in law enforcement in 1975 as a young prosecutor. and year after year people have come forward with plans that sound so good, and they had been tried before that. but they worked not nearly as well as people promote. trust me, if there was any quick fix, it would already have been done all over of america. people don't -- states don't want to spend money on prisons. but the truth is that people who tend to be criminals tend to continue to be criminals p and comm

they are hoping at the thatation of sam alito, they will prevail. i'm hoping and thinking they may not get a majority. host: cases we will be hearing a lot about this term. we want to hear from viewers. what are the cases that are going to be important to you this term? up first in virginia. for democrats. good morning. thanks for taking my call. we are part of the problem because we are divided. judges can see what is going on out there. is ted cruzi have criticizing judge robert but he's not criticizing tentative. -- kennedy. that if youealize judge like this all the time, then we should have term limits for the judges. can definea judge marriage, i don't know what judge can be. because i have the law that a god tells me that something is not acceptable. so i'm not denying people their rights. but we do have to respond sometimes for god. you make a decision, you make a decision that you are not going to make one person happy. and you make one person unhappy. and that's not -- going to let carrie severino jump in on the issue of term limits. is an

terms of the fourth amendment and saw a similar shifting in thinking this the concurring of justice alito and sotomayor in the jones case in 2012 when they recognized a gps monitoring device on a car raised fourth amendment issues qualitatively different than the classic plain view situations. i always feel compelled when i menses jones case to admit that i actually was the criminal chief that had proved the attachment of that gps device on mr. jones' car. as i say, it seemed like a good idea at the time. [ laughter ] and he was by the way a drug dealer. but we are -- i think we're certain to see certain evolutions of legal doctrine and policy relating to policy privacy in the homeland secure area. as technology makes it easier and less expensive for dhs and other government agencies to collect and analyze more data there will be a greater focus on how it's collected, how it's used, how it is tored and how long we keep it. at some point an increased reliance will lead to new restrictions. i don't think it is safe anymore for the government to just say as a legal defense, that the data at

they are hoping at the thatation of sam alito, they will prevail. hoping and thinking they may not get a majority. host: cases we will be hearing a lot about this term. we want to hear from viewers. what are the cases that are going to be important to you this term? up first in virginia. for democrats. good morning. thanks for taking my call. we are part of the problem because we are divided. judges can see what is going on out there. is ted cruzi have criticizing judge robert but he's not criticizing tentative. -- kennedy. that if youealize judge like this all the time, then we should have term limits for the judges. can definea judge marriage, i don't know what judge can be. because i have the law that a god tells me that something is not acceptable. so i'm not denying people their rights. but we do have to respond sometimes for god. you make a decision, you make a decision that you are not going to make one person happy. and you make one person unhappy. and that's not -- going to let carrie severino jump in on the issue of term limits. is an i th

think of robert bourke, the justice alito hearings, think how he made mince meat out of paul ryan in last debate and yet, he has remained himself into this lovable grandfather figure. this other thing is his gaffes. dan quayle must be hitting himself in the head with golf clubs right now. joe biden is far more gaffe prone, but it becomes lovable when it was biden and a sign of idiocy with dan quayle. to me it's remarkable he has played this media game brilliantly thus far. charles: we'll see if it's enough to lure him into the race officially. >> thanks for having me. charles: to this explosive growth in drone sales, the potentially deadly collisions now the subject of a major house hearing today. congress increasingly concerned that government rules are so weak that drones could collide with an airplane causing it to crash. of course, elizabeth mcdonald is here with more liz: the house hearing is underway right now. the f.a.a. has not come out with rules on drone use. they're going to punt it into march of next year. the headline, f.a.a. is really concerned according to the f.a.a.,