i want to play a clip from justice breyer. he is talking about the courts reasoning in korematsu and compares it to decisions about guantanamo. it is very much in the news. justice breyer: they thought that, well, we can't get involved. it's the military trying to protect us from invasion. now, we run the war or roosevelt runs it, and we cannot run it. we have to let him do what he wants. now going back to the guantanamo question, what i think is the very, very difficult and very important question in this area is, is there a role for the court to protect basic individual human rights, guaranteed in the constitution, in time of war without turning the constitution into a suicide pact? it is not a suicide pact. the president and the congress have to have and they do have in the document, adequate power to protect the country. does the court just get out of the way and say no, it is some one else's job, or does the court make some effort to reconcile these two competing and opposite necessities? in guantanamo, they tried the lat

let's listen to justice breyer. >> they thought that, well, we can't get involved in this. is the military trying to protect us from invasion. now we run the war or roosevelt runs it. and we can't run it. so we have to let roosevelt do what he wants. now to go back to your guantanamo question, what i think is the very, very difficult and very important question in the area is there a middle way. is there a role for the court to protect basic individual human rights guaranteed in the constitution in time of war without turning the constitution into a suicide pact. because it's not a suicide pact. and the president and the congress have to have, and they do have in that document, adequate power to protect the country. so when these two things conflict, does the court just get out of the way and say no, it's somebody es's job. or does the court make some effort to reconcile these two competing and opposite necessities. in guantanamo they tried to latter. i want the public who reads it, i want people to understand what it is that the court did. and i say there, which i firmly b

>> with this caveat, justice breyer. >> because you agree that this case is like ring, not this case, but any case in which they recommend life? >> not any case, your honor. >> i would like to know your caveat. what is the caveat? i'm on pins and needles here. >> the caveat is this. >> i am too. >> there are multiple ways that a defendant in florida can become eligible for death. one is in this case where it's determined at the sentencing phase because of the finding within the jury's recommendation. in other instances, it can be -- a person can become eligible before the sentencing phase either because they have a prior violent felony conviction or a contemporaneous conviction. if someone murdered two people and were convicted of double murder, that person at the guilt phase has been found eligible for the death penalty. at that stage, then in your hypothetical, justice breyer, if that sentencing phase jury recommended life, the judge could override it without violating ring. now, i will tell you that as a matter of florida state law, the judge in that circumstance would face an exac

the justices- stephen breyer, joined by ruth bader ginsburg- noted that the risk of executing an innocentson remains great, that factors such as race, gender and geography make the death penalty arbitrary. that the decades long delays between sentence and execution defeat the goals of deterrence and retribution, and that death sentences and execution are becoming increasingly unusual, down almost 70% in the last 15 years. >> i recognize that we are a court, not a legislature, but the matters i have discussed are judicial matters. they concern the infliction of an unfair, cruel and unusual punishment upon individuals at odds with a specific constraint that the constitution imposes upon the democratic process. >> reporter: the country appears to be slowly but inexorably away from capital punishment. if so, the supreme court may not be too far behind. >> woodruff: the justices also heard a case looking at the issue of online privacy. for more on both cases, we turn to marcia coyle of the "national law journal," who was at the supreme court today. welcome back, marcia. let's talk first about

scalia's cost, justice breyer does not just reject the death penalty he rejects the enlightenment. and then last term in the blockbuster cases case regarding same-sex marriage, scalia's characterized the majority opinion as containing the mystical aphorisms of a fortune cookie and the conclusion was it be averted joined an opinion his opening lines were written as kennedy's work i would hide my head in a bag. actually scalia's has written one of the great prophetic decisions of modern times. i don't think he meant it that way. a few years ago in the winter case, remember that was where the woman's partner died and the irs refused to give her the spousal deduction and so she paid it and then sued and the court upheld her. i think it was 6-3 and kennedy wrote the majority opinion. kennedy tried really hard. he really did, to and the decision in terms of federalism i.e. marriage has always been up to the states so if the state says the marriage is significant degree majority is about to this great depression but scattered and among other things were allusions to equal protection and s

. >> reporter: a number of the justices seem to agree, alain that kagan, quote: stephen breyer said therosecutor gave 40 different reasons to strike african-americans from the jury: but georgia's deputy general added quote: there's widespread agreement that racial discrimination in jury selection is pervasive nationwide, and no matter what the justices decide in this case, it is unlikely to solve that problem. some critics say the only way to eliminate, discrimination is to get rid of pre-emptive challenges. >> if we're serious about ending race discrimination in jury selection then you have to eliminate presumptive strikes, because as long as you can strike for any reason except race or gender, there's no way to know. >> reporter: and that undermines confidence in the judicial system, and the idea of a fair trial by a jury of one's peers. >>> some say it is a bad game of red light green light. chicago's red light program nets millions of revenue, but some are calling it legal corruption. ♪ >>> seattle is declares a state of emergency over the issue of homelessness. officials are callin

so that would go for roper, graham, justice breyer's sedition or which crimes. if somebody's in jail because they were accused of being a witch, the state has no finality interest of keeping that person in jail. by the same token if the punishment is death for a juvenile, the state has no finality interest in doing that. so leaving the punishment on the table is crucial. if it doesn't take it off, it's not substantive. the second policy reason for teague is avoiding the adverse consequences of retrial. and we think miller is even more clearly not substantive under that standard because categorical rules apply retroactively because they don't carry the adverse consequences of retrial. they don't make you go back and redo the trial and unearth old facts and drain state resources and come out with a distorted -- distorted retrials. miller, by its nature, envisions a fact-intensive hearing that considers multiple characteristics at the time of the trial. >> you don't have a distorted new trial if you just grant a parole hearing. >> that's right. that's right. but th

that is why you have seen ginsburg and breyer confirmed by overwhelming majorities as opposed to bork being rejected. after bush was elected, there was a dramatic turn of events, mostly led by then people who were in the minority, and lead, i think, by senator schumer giving speeches about the fact that ideology got to play a more to play a moreht important role in the selection of judges. it has become more politicized and that time. particularly for the supreme court and circuit court judges. not so much for district court judges. >> is this a good or bad thing for the country? grassley: bad. >> why? grassley: this is bad for the country. because i think that if you go 200 years without the selection of judges and approval by the supreme court, i mean approval by the congress being so political, we got along pretty good for those 200 years. tags and other question about the selection of supreme court justices, throughout history it has not always been necessary for supreme court justices to be lawyers. you yourself are not a lawyer. unusual but not exclusive. these days, is it absol

quote: justice steven breyer said the prosecutor gave 40 different reasons to strike african americansrom the jury, quote: but georgia's deputy attorney general argued the notes don't show that, adding, quote: through's wide-spread agreement that discrimination in jury selection is pervasive nationwide. and no matter what the justices decide in case, it's unlikely to solve that problem. some say the only way to get rid of discrimination is to get rid of pre-emptive strikes. >> as long as you can strike for any reason except race or gender, there's no earthly way to know. >> reporter: and that understand mines con if ied -- confidence in the judicial system. now the bias in jury selection can cut both ways. prosecutors disproportionately try to reject or strike jurors who will african american while defense attorneys tend to do that with jurors who are not black. >> lisa have there been studies about bias in jury selection? >> there have been. there are studies that have looked another decades of trials. in louisiana it found that prosecutors struck about 45% of black jurors. and in phi

. >> reporter: a number of the justices seem to agree, quote: justice steven breyer said the prosecutore 40 different reasons to strike african americans from the jury, quote: but georgia's deputy attorney general argued the notes don't show that adding: there's widespread agreement that racial discrimination and jury selection is pervasive nationwide, and no matter what the justices decide in this case, it is unlikely to solve that problem. some critics say the only way to eliminate discrimination is to get rid of everyo everyone -- pre-emptive challenges. >> if we're serious about any race discrimination, you have to eliminate pre-emptive strikes. >> reporter: and he says undermines confidence in the judicial system and the idea of a fair trial by a jury of one's peers. the buys in jury selection can cut both ways. studies show that prosecutors disproportionately use their challenges against jurors who are black, while defense attorneys disproportionately use their challenges against jurors who are white. >> what is the significance of the fact that the supreme court took this case? >

several justices seem skeptical of that argument, justice steven breyer saying that any reasonable person would see this as discrimination based on rails rails. ,. >> elizabeth: justin gray reporting there. a new report out claims disabled workers were overpaid years. the government accountability office reports that money went to people who earned too much money to qualify for disability or those who had already returned to work. social security was able to recover some of the money, but more than a billion dollars of that was lost and it was found to be the agency's fault. >> complete mismanagement. nobody is watching how the money is going out, no one is really, quote unquote, responsible for the errors, no one gets fired, there are no consequences. >> elizabeth: an email says that social security officials said the overpayments represent a very small percentages of the total payments made each other. auditors recommended automated reporting to reduce overpayments, and better oversight of work reports and waivers. >> mark: the new speaker of the house is raising eyebrows with his sleep

i mean, if you assume the premise of justice breyer's question, which is that there is a constitutionaliolation in keeping somebody in prison for some conduct that can't be criminalized, the state has set up a collateral review mechanism. we're not asking it to set up a new mechanism that it hasn't had before. it has a collateral review mechanism. and the only question is whether it's going to comply with federal constitutional law in that collateral review mechanism. >> and the other question is whether that issue of retroactivity is itself a federal constitutional issue. if it is, obviously there is jurisdiction. if it is not, i would submit there is not jurisdiction and that the proper remedy is federal habeas. if i may reserve the remainder of my time. >> thank you, counsel. mr. plaisance. >> mr. chief justice and may it please the court. miller versus alabama established a new substantive rule prohibiting mandatory life without parole for juveniles which should be applied retro actively. this court has jurisdiction to hear henry montgomery's claim because the louisiana supreme cour

and leaving aside our eighth amendment point in our brief that followed on justice breyer's concurrencering, this is all about the eligibility, not the determination of what sense of place. and you have held that the existence of a specified statutory aggravating factor is a condition. it is an element of capital murder, and it is, i statute and florida supreme court decision, an element of capital murder in florida. indian apodaca itself, which as justice thomas pointed out in mcdonald, is an extraordinarily unusual case, even there, six justice indicated that a simple majority rule would not pass muster. i mean, we need, when an assignment is made to a jury in a case to decide beyond a reasonable doubt the existence of an element, however the state defines the element, we need substantial reliability that the jury actually perform those functions. and in this case, again, in this case, if it were true that the sentencing jury was actually determining death eligibility, which it is plainly not, as we point out, the eighth amendment would certainly be violated under caldwell, because fl

rehnquist, scalia, thomas, you had a solid block of pretty much four reliable liberals, ginsberg, breyeruter, who crept left before finally lurching left and by 2005 is solidly in the liberal block. you had two swing justices so-called swing justices o'connor and kennedy. i would prefer to call them weather vane justices because they swing with the prevailing political and cultural winds. they had conservative instincts in certain respects but did not have consistent coherent or judicial philosophies. you have two conservatives four liberals and two swing votes. and then substitutions. i lay out the little lineup card. substitution of roberts for rehnquist. that is pretty much a wash. you have a generally mainstream, for the most part consistently conservative jurist, replacing a another mainstream consistently conservative jurist. the switch from roberts to rehnquist basically ends up being the same. the material change i agree with mike and with jan is that of sam alito for justice o'connor. in some sense that is a little unfair. like a double switch in baseball. they came in at the sa