justice kennedy is very concerned about the interests of children. and one of the central questions is are children better or worse in straight or gay marriages? and the opponents of gay marriage say we have to preserve marriage for straight couples because kids need all the help they can get. the support of the gay marriage say that makes no sense to withhold those benefits from the children of gay couples since after all, they can adopt in california whether they're married or not. so they can have parents. the question is whether they'll be in will hely recognized marriages. the fact that kennedy was focusing on that, that he was thinking about not about the parents but the kids, he may recognize the right to gay marriage as many people expect. >> before i let you go, i want to get your impression. we're getting this audio in and we'll play as much as we can within this hour. what has struck you, at least from what you heard today, and the preliminary analysis? we won't know until june though. >> well, if the court does decide the case on the meri

. >> that was justice kennedy -- that was the question that justice kennedy raised in those arguments. >> the left wants to pretend that this is really about black voter access or battle access among minorities . it isn't, paul. and with gerrymandering, creating seats in congress, that's what the left wants to preserve by continuing section 5, no longer anything to do with black voters disenfranchised. >> paul: and you were reporting that the conservative justices were very critical, skeptical and maybe near to overturning it. how did you see it? >> yeah, i think that's right. dan mentioned obviously that justice roberts questioned very closely whether or not that racism still exists in the south, but also, notable was that justice kennedy said at one point that these fa formulas may have been appropriate at one time, but times have changed and that's the key take away was the justice's awareness that those formulas bye no longer be appropriate. >> paul: do you think this decision will hang on justice kennedy as so often many of these cases do? >> i think so, i think the justices pret

what is less expected and therefore more interesting is hearing justice anthony kennedy, the swing vote, right after that happened, a few moments later, interjected himself, going out of his way to kind of smack justice scalia's argument out of the water. >> on the other hand there, is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. there are some 40,000 children in california according to the red brief, that live with same-sex parents. and they want their parents to have full recognition and full status. the voice of those children is important in this case, don't you think? >> everything justice anthony kennedy says in most cases, but also in a case like this, is watched very, very closely, because justice kennedy is often seen as the pivot point, the swing justice between the court's conservatives and court's liberals. we have some experts on deck tonight to help us out with what all of this means. but before we get to them, because of the importance of justice kennedy, i want to play one more moment of the case today. a mom

we were all watching justice kennedy for two reasons. one is it did seem the other four went into their corners pretty quickly and he's written the two most important gay rights rulings the supreme court has ever put out. you have to watch him. he's key. >> the other thing is, even before the justices took these cases, back in december, when they announced that they were going to hear both, we already sort of suspected that it would be very predictable for them to do what lower courts had done in doma. as i said earlier, no lower court has said that the section three denying benefits to same-sex couples that are allowed to heterosexual couples are strutional. it would be very predictable for the court to do that one. but to say this court, this conservative-leaning court to say for the first time that there's this national constitutional right to same-sex marriage, so it was in some ways surprising that they took both of the cases together. and so that kind of threw people. and then all the hoopla voundsing this threw people. but the tru

whether they should have even taken this case at all and in particular justice kennedy got to it early the chief justice did. >> right. the very first question was from the chief justice. it had to do with whether the defenders of proposition 8 have what we call standing to defend it. do they have a right, do they meet the requirements for defending proposition 8, the federal requirements? that's a really key question because if they don't have standing to defend it, then the case may well be dismissed on standing grounds. >> woodruff: marcia, looking ahead if that were to happen, what happens to proposition 8? >> well, if there is no standing, then the court is likely to vacate the lower court ruling that struck down proposition 8. that leaves in place a federal district court judge's injunction against proposition 8 and then there will be a battle over whether that injunction still stands, what the scope of the injunction is. >> woodruff: we've got time to worry about that later when we know what the court rules. so the attorney defending proposition 8, his name is charles cooper. he

it might be if justice kennedy is only willing to -- to write an opinion that deals with federalism, might have four justices saying it is unconstitutional because of equal protection one justice saying it is unconstitutional because of federalism so it would be unconstitutional, but it would leave in limbo some of the equal protection questions and sexual orientation. >> cenk: all right. professor nan hunter thank you so much for joining us. >> thank you so much. >> cenk: do you know since 1966, the bottom 90% of america, has gained $59 in democrat. isn't that amazing? just $59. when we come back, we'll tell you how much the top 10% gained. it is jaw dropping. (vo) the answer in a moment. brought to you by expedia. expedia helps 30 million travellers a month find what they are looking for one traveller at a time. ♪ >> cenk: welcome back to "the young turks." recently there has been a lot of talk about income in'quality in this country. david cay johnston has been writing a lot about it. but one other video has really gone viral on this that has caught everybody's at attention. it was

justice kennedy may not agree. seemednnedy and roberts to be very attracted to this federalism argument. i do not buy the federalism argument. i'm not sure. i like the equal protection argument. credentialegal or we could have this sort of way station on the way to an eventual, political resolution >> we always wonder whether amicus briefs are having an effect. one of them that seems to have caught justice kennedy's eye is by professors leon katz and harvey mansfield, saying that social science is newer than cell phones and the internet and -- they haveholars points they want to make. their research is sometimes not very rigorous. justice kennedy was swayed, it seemed,. what would you have said? >> to me, that was my biggest disappointment. there is an extraordinary and one-sided record in part based on the important trial that occurred in which both sides had any opportunity they wanted to bring witnesses, cross examine, call evidence, and at the end of the trial it was clear that the social science data, the evid

and i think that's exactly why justice kennedy doesn't want to go there. because if they do go, as some justices today indicated that they were willing to say that the federal government can't make these distinctions, well, if the federal government can't make these distinctions between same sex and opposite sex couples, then how could the states? i think justice kennedy frankly isn't ready to go there. one other point that he made today, the -- remember who's defending doma. it's the house republicans. the obama administration has decided the law's unconstitutional. so their lawyer here today, paul clement, was defending it. he reminded the court of why congress passed it. it's because hawaii -- this was back in the early '90s. hawaii's supreme court was considering it might recognize same-sex marriage. he said congress did not want to have a situation where if one state allowed same-sex marriage, then all the other states would have to. well, that's a separate part of doma. it's not under attack. what justice kennedy said is the result of the way doma sta

>> because as so often with justice kennedy much as i admire him i'm like what? what does that mean? i don't know what that means to tell. >> rose: andrew is here to explain it to you. >> well, the difference between roe. have wide is that abortion actually remains a divisive subject in the country, among the young as well as the old and it's dealing with a much more profound moral question-- life and death. this is not as -- i don't want to demean the importance of marriage, i think it's crucial. so the question is, is the court actually going to -- are things moving so fast that i'm wrong? the court should seize this moment and will actually crystalize a moment and put in the clarity and i can see kennedy -- you know, he's going retire at some point. this is the civil rights movement of our time. if he were to rule and be the key case in making this such a grand decision that will be a huge legacy for him. and also scalia has already conceded this. he conceded it. he said "if you agree to the premises of lawrence v. texas you've conceded the case to gay marriag

justice kennedy i think will clearly be the swing vote on this issue.stion implies he would overturn doma or at least the part of it, as fred indicated. where the federal government is weighing in on what marriage is. but there is another choice. there is an off-ramp here. it would be wise if they took it. the procedural issues here are very, very complicated and unique. it's unusual for the congress to represent measure in the court, rather than the administration. so i think kennedy and the justices could easily rule that they have no standings, the issue is not before the court properly. look, if the issue is public opinion radically changed, which it has. in the 17 years or so, since doma was passed then it will be reflected in the congress as it always is ultimately. doma will be overturned in the congress which is where it should be. and then you won't have a sense of people saying well, it was done by the nine rogueed eminences on the court unilaterally. not a matter of ticktock, but a matter of democratically resolving the issue. that is the way

. >> now, even justice kennedy openly expressed that maybe the court was acting too quickly on the issue. listen to this. >> and the problem with the case is that you're really asking, particularly because of the sociological evidence, like for us to go into uncharted waters and you can play with that metaphor. there's a wonderful definition. but you're doing so in a case where the opinion is very narrow, basically that once the state goes halfway, it has to go all the way or 70% of the way. and you're doing so in a case where there's a substantial question on standing. i just wonder if the case was properly granted. >> sean: and tomorrow the highest court in the hand will take up the defense of marriage act, a ruling by the way on both expected in june. joining me now with reaction from the center for law and justice, jay sekulow and political analyst juan williams. i listened to the testimony, i like to listen to the stuff, jay, fascinating. >> good. >> sean: right out of the gate it was all about standing, standing, standing, and the idea that there was no precedence for the court as

justice kennedy and i guess two more words, justice kennedy. genuinely frightened of the fact that the only remaining rationale he could support in the supreme court was the 50-state solution. he seem afraid of going that far. he said the california only solution, the ninth circuit did was rubbish. he said standing, they had standings to get into court. he did not lying the solicitor general's eight state solution that would knock down the bans or would elevate same-sex marriage in the states that provide everything but marriage. so all that was left were the 50 state solution. he seemed freaked out by that and he decided maybe we should just dismiss this case that we should have never taken it in the first place. >> there has been a lot of talk about justice kennedy's remarks. that he may want to dismiss the case, as you said, being freaked out by the 50-state solution. there was word that justice ginsburg may also be uncomfortable with the 50-state solution even though she is likely amenable to expanding gay rights in general. she had previou

. >> the supreme court's potential swing vote, justice anthony kennedy, warned same-sex marriage case was bringing the court into "and chartered waters." he questioned whether the court should have even taken the case. >> my problem with the case is you are really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters. you can play with that metaphor. so in a caseing where the opinion is very narrow, basically, once the state goes halfway it has to go all the way or 70% of the way. you are doing so in a case where there is substantial question on standing. i just wonder if the case was properly granted geico justice samuel alito also expressed reservations about overturning proposition 8. >> traditional marriage has been around for thousands of years. same-sex marriage is new. i think was first adopted in the netherlands in 2000 rid so there is not a lot of data about its effect. it may turn out to be a good thing. it may turn out to not be a good thing as the supporters of proposition 8 apparently believe. >> justice sonia sotomayor que

justice roberts seemed to be a bit ambivalent on whether or not to join the liberal justices, but justice kennedy justice alleyia and sal -- scalia and i'm guessing silent justice thomas -- we just don't know. ultimately justice kennedy is really going to hold all of the cards here. and i don't think if the four liberals will follow him. but the only other option was a 50-state solution. and he seemed really freaked out about that. >> michael: so if they do rule on standing where does that leave any ban on gay marriage in california then? >> if they junk the case on standing that gets rid of the 9th circuit opinion, and then goes back down to the district ruling, where the judge said it violated equal protection, due process, and extends same-sex marriage to the entire country. he is only one district judge in one district of california so this is something that a lot of legal experts are confused about, and this will probably be the talk of the town if the justices rule on standing. >> michael: that's really fascinating, and i think the supreme court always confuses a lot of people. tell me the

justices. particularly kennedy. i also think you saw in some of roberts' biting comments. i think it's actually weighing heavy on him, too. i don't think he wants to be one of the last justices to stand against equality. i think that's one of the reasons you see some tension there. but we did not see the five justices that we need that would say, all right. we're ready to treat sexual orientation like race or gender. that may have to come for another day and another case. >> stay tuned. we will keep following this case. thanks so much, thomas roberts and jonathan turley. >> thank you. >> absolutely. thank you. >>> next, north dakota has oil, it has gas, it has jobs. and what it needs is women. but why are they not attracting them? stay with us. >> i'm only 41, by the way. >> yeah. he's only 41. he's a stuffy young man. and while the autopsy here says that republicans need to do a better job of reaching out to black people, brown people, and women people -- ♪ you know my heart burns for you... ♪ i'm up next, but now i'm singing the heartburn blues. hold on, prilosec isn't fo

as justice kennedy said, 1100 statutes and it affects every area of life.hatould be diminishing the state has said is marriage. you are saying, no, the state says there are two kinds of marriage. the full marriage and the sort of skim milk marriage. >> skim milk marriage. >> when i was getting my bagel and coffee this morning, i asked for whole milk. for the first time in a long time. i think what she is talking about, in america we do not have second-class citizens nor should we have second-class marriages. and that is exactly what the so- called defense of marriage act does. >> supreme court justice anthony kennedy is seen as a possible swing vote in the case. wednesday, he expressed skepticism about the legality of doma. this is kennedy questioning paul clement, the attorney defending the defense of marriage act. >> it applies to over 1100 federal laws i think we were saying? quite a bit of an argument that if it is a tax deduction case, which is specific, if congress has the power and can exercise of for the reason it once. i suppose it can do that. whi

you tell me. >> in both cases, justice kennedy, again, is the man in the middle.g vote. i agree with a lot of this. i do believe that the end of the day the irony here is that the supreme court acted like it did not want to hear either case. they accepted the right of appeal but the mark trying to find reasons to get out of it. at the end of the day i think that doma has a serious problem of survival, and i think that justice kennedy is the swing vote. he talked about not only the equal protection it's to the tenth amendment point that these are things that usually left to the state. it's a problem with a landing pad will be. lou: we will find out what the differences. we will find out what the differences between shearson colorado refusing to enforce federal gun-control laws and the president refusing to enforce laws like the immigration laws in the country. what is the difference? oh, yes, and doma, not defending it? give me a break. we'll be back with "dobbs law." ♪ ♪ lou: we are back with heather and seth. the supreme court ruled that police cannot bring a dru

and the one that's going to be the key here, is justice kennedy.e didn't want to take up that discriminates against gays. so, likely opposition in the prop 8 case, kick it back saying that the people appealing it don't have standing because the state is not defending its law. the effect of that would be that the ruling would stand and california would have same-sex marriage, but have no legal precedence and no effect on other states. >> paul: let's go to the federal statute and justice kennedy, who raised a question about that law on federalism grounds, that is the tension between state and federal power. let's listen. >> you are at real risk of running in conflict with what has always been thought to be the essence of the power which is to regulate marriage, divorce. >> paul: dan, is the federal government trying to regulate marriage with doma? >> well, that's the argument that they're trying to define marriage. >> paul: is that regulating it at the state level? >> they regulated it with doma because they felt they had all of these 1100 federal st

. >> as justice kennedy said, 1,100 statutes, and it affects every area of life. and so you are really diminishing what the state has said is marriage. you are saying no, state, there are two kinds of marriages, the full marriage, and then the sort of skim milk marriage. >> well, afterwards, edith windsor said it went beautifully and that her late spouse, thea spire, would be pleased. >> today is leak a spectacular for me. a lifetime kind of event. i know the spirit of my late spouse is right here watching and listening and would be very proud and happy of where we've come to. >> well today's case came just a day after oral arguments on california's proposition 8, california's same-sex marriage ban. justices both liberal and conservative, seemed reluctant yesterday to use it as a basis for sweeping national change. this case, doma, could be just the opposite. senior analyst jeffrey toobin joins us, he was inside the court. i know everything comes from the caveat that the supreme court could surprise us, but you think that doma is in trouble, the majority of justic

what is interesting about these two cases is that justice kennedy, who really is the linchpin in these two cases, was really not very interested in the e quality argument. what did interest tampa -- what was that thetamphim federal government would not recognize marriages in states where they are legal. the government has always allowed states to define marriage. why canis the case, california not define marriage as between a man and woman, which is a of the case now -- which is the case now? >> i stand in defense of oba in this. you can have a view that a law is unconstitutional, but you do have a duty under the constitution to faithfully execute the laws. i think obama was right in not deciding that just because a law is unconstitutional, he thinks, and that he is not going to enforce it. it is not his call. it is the high court's call and you wait until you get a ruling. >> i know a very smart person who says that the solution to this problem is to take the word marriage out of the lot and just use the phrase civil unions. >> i have been married 47 years, and she is absolutely right

the words of justice anthony kennedy, he and his colleagues are in unchartered waters and we'll know in a few weeks how far they're prepared to go. steve kingston, bbc news at the u.s. supreme court. >> for more on the cases heard the past two days, i spoke a breathe time ago with adam, a supreme court reporter for "the new york times." adam, i know reading the tea leaves of the supreme court is a very inexact science but based on what you heard today, do you think edith windsor could win her case? >> is he has reason to be optimistic. the second day was much easier to get a fix on the first. there did seem to be a majority of the justices who were uncomfortable with the idea that the federal government and the united states should deny federal benefits to people married in the nine states where same-sex marriage is allowed. that's of course a much smaller, more moderate and much less ambitious question than the one the court considered yesterday which is whether states that don't have same-sex marriage should be required as a constitutional matter to have it. >> sticking with today'

the other one was by justice kennedy. the other one was by justice roberts very recently in the demonstrations of military fit -- demonstrations at military funerals. they both said the same thing. they said, we don't like what these people did. as a matter of fact, what they did and their beliefs are abhorrent to most americans, and to us personally, but unless we protect their rights, all our rights are in jeopardy. and that is why the concept of a constitutional democracy is so important and must be preserved, but is not understood today. it is not understood by many americans. why? it is not that hard to understand. we live in a democracy. a democracy is supposed to be governed by a majority opinion. so, why isn't the court just governed by whatever the majority of people think? the answer is that that is what is also called mob rule. a constitutional democracy is one that protect everyone's rights, even those who are the minority. that is a concept that was discussed in the federalist papers, which i know we all read

justice kennedy talked about the children of same sex couples and how they were waiting to hear on how the court would rule. >> david, thank you. >> joining us now to look at this -- is a law professor. i now we aren't going to know anything until june but what do you have as a take away? >> i thought it was very important that a number of the justices, asked a lot of questions about if the sponsors to proposition 8 are valid parties and if they are valid representatives of the voters. if there are three or four or five justices who think that the proposition 8 sponsors don't have standing then they could end up not deciding on the merits. association i won't be surprised if that happens based on what was said before and about what -- i have been thinking this for a couple years and it was kind of confirmed today. >> what you did see today but the questioning, does it tell you they could rule in a more broader sense or a more narrow sense. >> if they decide the sponsors lack standing that would be pretty narrow. that would send the case back to the trial court and the coupleless who fi

that is the brief that most influenced kennedy and only influences justice anthony kennedy that will be the fifth brief. that brief for sure did play a part. >> mike, stick with us. i want to bring in msnbc thomas roberts outside the court. thomas, we heard a lot from bill clinton recently because he was sort of overseeing a lot 6 this legislation back in the '90s in doma's don't ask don't tell. he said recently he had sleepless nights over those pieces of legislation. he wrote an op ed defending where he was in his mind. doesn't seem to jive with the new york times reporting about bill clinton urging john kerry in 2004 to come out against gay marriage. but you know, that's okay. we can take him at his word. now, do you think history is going to judge bill clinton, 50 years from now, for doma and don't ask don't tell, as sort of acceptable within the span of the moment? or do you think we will look back and see those as serious bliets on his record? >> a you you point out, i think history will look back to think that was acceptable at the time for what was in front of president clint

>> reporter: just like the comment from justice kennedy.cautioned that the court is wading to unchartered waters. he said at one point that he is not sure the case is properly before the court. there are technical issues about the standing to the party of the dispute and several justices signal they may not get to merits of the case. >> shannon bream outside the supreme court. thank you so much. >> same-sex marriage is a game changer. democrats support president obama and not in lock step with his support of same-sex marriage. other democrats changed their mind. chief washington correspondent james rosen looks at democrats on the issue. >> they have been falling like dominoes lately. prominent democrats who opposed or quivcated on gay marriage now voice support for it. the ranks include the former president of the united states who signed the law that preserved for the last two decades the state's rights to decide the issue for themselves. >> yet a rally stageed by the national organization for marriage revealed there are still constituenci

kennedy's questioning today? i quoted your article, which was not that favorable to the justice. but notwithstanding that, how do you view his questioning and his position today? >> well, that article was just meant to suggest it's rare that kennedy finds a problem in national life that he's not willing to consider on constitutional terms. and in that sense, i think the gay marriage side should be encouraged by kennedy's questions. because he got the central point in their brief. they said it doesn't make sense to deny marriage to gay couples because of children, because in california as in many states, gay couples can already adopt whether or not they're married. so these children exist. these are real parents with real children. and kennedy understood, you are demeaning them. you are denying them social acceptance in ways that could be harmful to them. in other cases involving a woman's right to choose abortion, kennedy's been very concerned about the real world effect of these laws on women's dignity. the fact he's concerned about the dignity of children is very significant. >>

is she making the states' rights point that justice kennedy was making as well? ng there? >> she is. and, you know, it is so interesting, the questions the justices ask are often campaign speeches to try to get their colleagues on board. that speech was very much a pitch to justice kennedy, because justice kennedy is someone who believes very strongly in states' rights. he believes that there are areas of state power, that the federal government has to stay away from. and in this argument, he expressed repeatedly that he thinks marriage is one of those areas that belongs to the states. states make the rules on marriage, and doma is an interference with states' rights and thus unconstitutional, and the four democratic appointees, ruth ginsburg, the most senior, wanted to try to bring him along and that question was a way of trying to bring him along on that. >> it is interesting you talk about how it is a campaign pitch. just because you write the book on the supreme court decisions, explain to us who don't follow it as closely, what happens. now that they heard th

it sounded like justice kennedy wouldn't support constitutionality of doma. >> amy, do you think you heard clues to any surprise votes in the last two days? >> the surprise vote may well have been in proposition 8. there's some doubt about whether the court in that case will get to constitutionality of prop 8 at all. this was something that i think a lot of people thought maybe they added on, this question of whether or not the sponsors of proposition 8 had a legal right to defend proposition 8 when the attorney general of california and governor of california weren't going to do so. they thought this was the justices dotting their i's and crossing t's. it was a question and a little role reversal, the court's four more liberal justices maybe trying to stave off an actual ruling on the merits seemed to support the idea that the sponsors of the initiative couldn't come into court and defend it, and it seemed like the chief justice might be sympathetic to that position as well. >> elizabeth birch, amy howe, howard dean, thank you for joining me. >> thank you. >>> coming up, new police

justice kennedy was interesting with the facts placed before him. >> scott: there is the fact that he could be the key vote. >> when i listen to the argument tapes, i will want to see what justices kagan and justice roberts and briar. they could be instrumentalist bellwethers. they might be ready to take this step. >> scott: step of going beyond california? >> let's not forget invalidating the law in the biggest and most important state in the country on grounds that you try to limit to california, but have a way of creeping out is not a trivial thing. >> scott: we live in the bubble here in the bay area and to prop 8. how big a deal is it? vik, we shouldn't assume that they will strike prop 8 down. >> we shouldn't assume that. it would be the first federal ruling in favor of same-sex marriage if they were to do it. the california specific quality is of an opinion that might be written is under cut by the fact that california is often a bellwether for other states. >> scott, you mentioned national opinion polls. it is very regionalized. it is not as if there will be same-sex marriage

as a young attorney you received kansas and i was put and to extend justice kennedy coming you had thegraduates on your staff there. i'm not sure, justice breyer if you have or have not to be it's a good time to think about it it always good to have a jayhawk on your team to beat ivan to talk about the allocation of resources beyond the supreme court if you might help in that regard to your testimony on the 1% of the entire judiciary budget is the supreme courts, city and 99% are the bulk of the expenses and the challenges we have in our own federal courts making sure that they are properly funded and that they don't have backlogs were it is an important component of what we are trying to do here. i note some courts have heavier caseloads seven others. they have continually had to have the of the caseload and they are having a struggle to be able to resolve that. we discussed this a little bit earlier when you were here and i wanted to return to this topic again. as we are looking at the sequester and as we are looking at certain things that are going to affect how the judiciary handle

. >> well, i wanted to be sure to respond to that, justice kennedy, because i would hate for the court to have the impression that all the rules go out the window. that's not the case. what we're talking about here is a sniff that would allow the police to go to a detached and neutral magistrate to say that, we have probable cause >> fine >> to get a warrant. >> but don't ask me to write an opinion and say, oh, we're dealing with contraband here, so we don't need to worry about expectation of privacy. there is simply no support for that because caballes cited jacobsen, and jacobsen was where the contraband fell out of the package and it was in plain view. so that just doesn't work, at least for me, in this case. >> well, the reasoning in contraband -- in jacobsen, though, the court said that the rationale, the reason for its decision in place, is because when you're talking about people's reasonable expectations of privacy, they have both a subjective and an objective component. so it's not just that you want to keep something private, it's that you need to have a legitimate expectatio