[laughter] >> fair point, justice scalia. i think a jury could be instructed to the typical age group of minors playing these games. >> why wouldn't you say a video game that appeals to the morbid interest of those 18 or under, let's take 18, and it's not suitable in the community for those 18, and it has no redeeming importance of any kind, no serious literary artistic, political, or scientific value of those 18, that at least as to those you can't sell it without the parent. the parent can buy it, but the child can't. you can't tell a 12-year-old something that would be horrible for an 18-year-old. are we willing to accept that if necessary to make this okay on its face? >> justice, breyer, absolutely. >> could i take you back to justice scalia's original question about deviant violation? i read your briefs, and all i found you said is clearly covered by the statute and presumably the statute applies to more than one video game, so what else does it apply to? how many video games? what kind of video games? how would you des

[laughter] >> fair point, justice scalia. i think a jury could be instructed to the typical age group of minors playing these games. >> why wouldn't you say a video game that appeals to the morbid interest of those 18 or under, let's take 18, and it's not suitable in the community for those 18, and it has no redeeming importance of any kind, no serious literary artistic, political, or scientific value of those 18, that at least as to those you can't sell it without the parent. the parent can buy it, but the child can't. you can't tell a 12-year-old something that would be horrible for an 18-year-old. are we willing to accept that if necessary to make this okay on its face? >> justice, breyer, absolutely. >> could i take you back to justice scalia's original question about deviant violation? i read your briefs, and all i found you said is clearly covered by the statute and presumably the statute applies to more than one video game, so what else does it apply to? how many video games? what kind of video games? how would you des

[laughter] >> fair point, justice scalia. i think a jury could be instructed to the typical age group of minors playing these games. >> why wouldn't you say a video game that appeals to the morbid interest of those 18 or under, let's take 18, and it's not suitable in the community for those 18, and it has no redeeming importance of any kind, no serious literary artistic, political, or scientific value of those 18, that at least as to those you can't sell it without the parent. the parent can buy it, but the child can't. you can't tell a 12-year-old something that would be horrible for an 18-year-old. are we willing to accept that if necessary to make this okay on its face? >> justice, breyer, absolutely. >> could i take you back to justice scalia's original question about deviant violation? i read your briefs, and all i found you said is clearly covered by the statute and presumably the statute applies to more than one video game, so what else does it apply to? how many video games? what kind of video games? how would you des

justice scalia has refused to recuse himself. and they can make those decisions. for recusal. >> the other justices that have stumbled into these controversies recently, include justices scalia and thomas. it was reported they were at secret meetings organized by the head of coke industries, which, of course, funds political groups like americans for prosperity and freedom works. those aren't spouses of justices, those are actual justices. is that against the code of conduct they're supposed to use that says they shouldn't themselves engage in political activity? >> it is against, in my view, the traditional code of conduct. they're not supposed to be participating in fund raising for political organizations. not supposed to be just paid for members of political organizations. i think some of these definitely cross the line. justice alito just in the news about participating in a fundraiser and he simply said this isn't a problem. it is a problem. and past justices have refused to cross that line. and i got to tell you, i think the directions, really, it's hard no

[laughter] >> fair point, justice scalia. i think a jury could be instructed to the typical age group of minors playing these games. >> why wouldn't you say a video game that appeals to the morbid interest of those 18 or under, let's take 18, and it's not suitable in the community for those 18, and it has no redeeming importance of any kind, no serious literary artistic, political, or scientific value of those 18, that at least as to those you can't sell it without the parent. the parent can buy it, but the child can't. you can't tell a 12-year-old something that would be horrible for an 18-year-old. are we willing to accept that if necessary to make this okay on its face? >> justice, breyer, absolutely. >> could i take you back to justice scalia's original question about deviant violation? i read your briefs, and all i found you said is clearly covered by the statute and presumably the statute applies to more than one video game, so what else does it apply to? how many video games? what kind of video games? how would you des

what justice scalia does say is permissible and in fact is necessary. as i read it is to read the statute as a whole rather than just a language that sounds really ambiguous. >> all 1300 pages? >> all 1300 pages. that is real work but somebody has to do it. and then to see if the statute written as a whole provides barbour framework that limits the power of use. >> okay, well gillian you said something that really made my ears pop up, which was he mentioned that in this mix of institutional reformation and creation, there was her role for the states in regulating and one of the hot issues that we are dealing with every day, whether it has to do with commerce or with a state of arizona is the question of preemption. >> as a result of what you might find in national security crisis? that's the first question. the second one is, are there not examples of, you might say, intelligence or sources of knowledge about financial crisis is that are widely dispersed outside of the government, versus the amount of knowledge that is contained within the government, o

you don't see people saying justice scalia should interpret the -- >> host: well, italian-americans don't have the same history that black americans -- >> guest: again, being a student of history as justice thomas is and reading his opinions, i find that they are some of the best -- i mean, i'm also a recovering lawyer -- they are some of the best written opinions based in history. and if you look at his affirmative action cases and some of his opinions from there, people made assumptions about him, they made assumptions about me, and that's why i've written "acting white," that people make certain assumptions of people of color acting or dressing a certain way that when you look behind the substance, you find there is substance. and you look bewind what is perceived to be a tilt towards people based on ideology or the color of their skin. you find it's based on law or fact, and that's what we need to move towards. >> host: there's one thing i can agree with juan williams on and that is this is a must read. "acting white: the racial slur, the curious history of a racial slur." this has be

you don't think people say justice scalia should interpret the constitution for italian-americans or ruth bader ginsburg's -- >> host: atoll and americans don't have the same history -- >> guest: being a student of history as justice thomas is and reading his opinions, i find that they are some of the best written opinions based on history and if you look at the affirmative action cases and some of his opinions from their, people made assumptions about him and assumptions about me and that is why i've written black and white, people make certain assumptions of people of color acting or dressing a certain way that when you look behind the substance that you find that carries substance, and you look at what is perceived to be a tilt towards people based on ideologies or the color of their skin and find it's based in law and fact and that is what we need to move towards as opposed to judging people based on the color of their skin. >> host: there is one thing i can agree on and that is this is a must read. [laughter] acting white the racial slur the curious history of a racial slur. this

as well as a champion of the non-delegation doctrine that justice scalia put in the american trucking case which i would consider to be deleting non-delegation case kohl even in sweeping road tour of the schemes we have never demanded sedges provided a determinate criteria for answering questions like how much regulating is too much? a statutory grant of authority under controlled substances act for example allows the a.g. to criminalize possession of decision of drugs when it is necessary to avoid an imminent hazard to the public safety. nor do i think it constitutionally automatic to the degree across as a very explicit and already established line in president that an inferior reporting to the treasury secretary and not subject to senate confirmation for example was in the world of a car czar or as i prefer to call it an autocrat or pay czar. secretary geithner was accountable. we may disagree with this decision but he was accountable and i believe the constitution leaves some latitude in defining these relationships. the second i want to make is the following. there isn't any epis

you don't say justice scalia should interpret for i italian-americans. >> but they don't have the same history. >> guest: and again, being a student of history as thomas is and reading his opinions i find, and they are some of the best written opinions in history and if you look at his affirmative-action cases, people made assumptions about him and me that is why i wrote acting white because people dress in a certain way that when you look behind the substance, you find there is substance and you look what this a tilt toward people based on ideology or the color of their skin but that is what we need to move toward as opposed to judging on their skin. >> host: one thing i agree is that this is a must read a. acting white for about. this is disturbing but hopeful and the lightning i have enjoyed it very much. >> guest: i have as well. thank you. >> very special opening presentation of the 27th annual miami but their international at miami-dade college i kindly ask you turn off your cellphones. thank you. and now it is my pleasure and honor to introduce a the co-founder of the book fair

justice scalia wrote in his consent if we can't outlaw gay sex?t, we won't be able to outlaw masturbation. i'm serious, he wrote that here, we just had a republican, christine o'donnell, in delaware on the anti-masturbation ticket. the republicans have come full circle. the next election, the number of gay americans voting for the gop should be 0%. gay voters, wake with up and smell the hate. they are not on your side. >> are the democrats on their side? >> well, you know, as you see them back pedaling from don't ask, don't tell, you wonder, right? but the reality is that people who are pushing the repeal of don't ask, don't tell, of course, are democrats. >> if you were to look at all of the issues to which democrats have been looked to, financial reform, health care reform, dealing with the military and the wars and disappointed on over and of other and over, why would

justice scalia immediately said. >> brown: violent fair he'll tale. >> he said grim fairy tales are ofteniolent. another justice said what about rap music? the lyrics are very violent? she said cartoons like bugs bunny have a violent impact on children. >> brown: it's interesting. they're talking about how do you define violence. the law has or does tryo define it. they're questioning whether that is too vague. >> exactly. in fact, the state's attorney said the way to sort of cabin this is to apply the standard that the court has approved for prohibiting the sale of sexually ex-police explicit materials to minors. is it patently offensive by community standards? does it lack any serious literacy or political or scientific value. does it appeal to the morbid interest of minors. >> brown: to be clear here california faces a very high bar because it's asking for an exception to the first amendment. >> exactly. justice kennedy in particular told this attorney that there is today a social consensus about what is sexually offensive material. there have been many court decisions about that. but

. >> any of the remedies you are discussing with justice scalia involves this court in a highly intrusive exercise of the court's power, let's talk about priorities. we usually talk about substance first and remedies second. is it logical for us to say that because the remedies are so intrusive that we use rational basis scrutiny, and because the remedies are so difficult, we are going to use rational basis scrutiny. is that a rational way to proceed? >> i don't think so. the court has traditionally said the question of a right and whether or not there exists an opportunity to make a claim and the remedy for it are and litically distinct -- >> it says the remedy can complicate it. the court is not set up to do that. wescott said the court can go one way or the other way. it is there as a temporary legislation. it goes back to congress to do would it will, but in the interim we need a solution. >> that is correct, and certainly congress can do that. the solicitor general brief makes it clear that what was being balanced here are concerns about statelessness on the one hand and connection t

. >> just to follow up on justice scalia pose a question, if this system were set up exactly as it is now, but contributions to sto's are deductible, you would have no problem? >> contributions to sto's are deductible from one's income tax. >> right. >> we would not have a problem with that. >> the difference is that arizona set up a system where you have a tax credit instead of a tax deduction. >> of course. >> that would be true if the top marginal rate were 90%? >> yes, it would be true even if the top marginal rate were 90%, which will never happen in arizona. [laughter] >> the federal rate has been that high at times. >> i understand. that is still charity. if the top rate is 90%, when you give that money, it is your money. you can use it for anything you want. even if you are in the 90% bracket, you are giving some of your own money. you are engaging in charity. the constitution permits the government to subsidize private charity. if the government will subsidize private charity, it cannot leave religious charities out. that is the dividing line. if the government is subsidizing

for 30 years he was the only catholic on the court. 1936 until justice scalia joined him. a stream so extraordinary now. but 30 years he was the only catholic. he was stereotyped from the beginning. this happy leprechaun. he was a small -- not a tall guy . he was a very personable man. very friendly. it was genuine. you see stories from his confirmation describing a jaunty irishman. is very much how his replacement was character and stereotyped as a fiery latina. unfortunately that stereotype stock. it played into his second notion . how he did his job as a justice. there was this notion that he was this irish or boss. going through the hallway, shaking hands, making deals, slapping backs. he deeply resented that idea. in many ways rightfully sell. his success was not due to the fact that somehow he was a politician working the room with all. he was an extraordinary consensus builder. he had extraordinary skills. interpersonal was only a piece of it. he also had an extraordinary gifts at a time when there were moderates on the court unlike today where it is pretty sharply

you don't see justice scalia interpreting the constitution for italians. >> host: they don't have the same history as african-american that continues. >> guest: again, being a student and reading his opinions, i'm also a recovering lawyer, but there's some of the best written opinions based in history, and if you look at his affirmative axes case and the opinions from there, people made assumptions about him, assumptions about me, and that's why i wrote acting white that people make assumptions of people of white dressing and acting a certain way that when you look behind the substance, there is substance and look behind a what is a tilt towards people based on ideology and skin, but you find it's based on law and fact which is what we need to

justice antonin scalia sided with free speech. some of the grimm's fairy tails are quite grim.you going to ban them, too? but supporters of the law say video games are different. >> these are interactive. so you have the minors actually being the ones manning the guns and soliciting prostitutes. >> reporter: but the video game industry argues the government has never restricted violent content, unlike sexually explicit materials, and it's too late to start now. jan crawford, cbs news, the supreme court. >> couric: there's still no cure for the common cold but there's a way to reduce your chances of getting one, that story is next. everything pops with pringles cracker stix. they believe with olay you can challenge what's possible and gave us their good housekeeping seal. for smooth, firm, younger looking skin shape up in the shower with olay total effects body wash. the new healthcare law gives us powerful new tools to fight it.... to investigate it... prosecute it... and stop criminals. our senior medicare patrol volunteers... are teaching seniors across the country... ...to s

what justice scalia does say is permissible and in fact is necessary. as i read it is to read the statute as a whole rather than just a language that sounds really ambiguous. >> all 1300 pages? >> all 1300 pages. that is real work but somebody has to do it. and then to see if the statute written as a whole provides barbour framework that limits the power of use. >> okay, well gillian you said something that really made my ears pop up, which was he mentioned that in this mix of institutional reformation and creation, there was her role for the states in regulating and one of the hot issues that we are dealing with every day, whether it has to do with commerce or with a state of arizona is the question of preemption. hour. [applause] >> this is wonderful. this is the 48 anniversary of the epa, and we are kicking off the epa, the environmental protection agency, taking a week to talk about how it is one of the greatest movements in american history which is the environmental protection movement itself. lisa jackson happens to be a long time and your friend

on the grounds that justice scalia turned false. court had decided that the writ of habeas corpus as it existed in 1789 would have reached guantanamo bay and could be invoked by alien enemies captured abroad. that ended part one of the opinion. but now another huge question loomed. if the courts of the district of columbia circuit, district and the court of appeals, had jurisdiction, but did the jurisdiction entail? what rights did the detainee's have? that was a question the courts had to decide. we did in the side, we didn't have to reach it because we said the written didn't extend to guantanamo because the writ of habeas corpus can't be suspended if the congress put as an alternative something that gave rights more than the detainees were entitled to. as of the question came down to whether that alternative review in the court of the tribunal, combat said that this -- status was a substitute for habeas corpus and this again was an awful question, one that the supreme court never considered in trying to answer the question what w

. >> let me put it to you in this week, justice scalia. suppose the government in this case get the money to the stos directly itself, the sto's then gave up the scholarships. would it be constitutional for the sto to say to a parent who comes asking for a scholarship or you catholic? if you're not, we will give you a scholarship. >> perhaps not, but you have -- you have an intervening to read or contributor. and it's the person who is making the decision of whether to give to a religious or nonreligious organizations; it isn't the government making the decision. >> nope. it's not a parent, by the way. >> and that was the same thing in zelman. >> it's not a parent, but we, in answer to justice kennedy's question before. parents under this program are not about to get contributions for scholarships for their own children. the people who get the -- who can claim the tax credit, the person who gets the scholarship cannot be a dependent of the person who gives the -- >> suppose they change 14 when it ruled that the stos was held was they said

ted is followed by ken starr, now president of baylor, robert bork, just scalia -- justice scalia, judgerandolph, vice president cheney and chief justice roberts and judge aoed difficulty jones and judge douglas ginsberg. we are pleased to have the honorable dennis jacobs to follow these lecturers to the platform. examples the chief judge of the u.s. court of appeals for the sebcond circuit. he was appointed in 1992 where he served since including as chief judge since 2006 his education was masters in english listen at the advanced age of 21 from n.y.u. where he completed everything required but a ph.d. for the dissertation. then the law school stole him. he received his j.d. in 1973. from then until the appointment to the court of appeals he spent his lal career litigating on commercial matters where he became a partner in 1980. in addition to being deeply versed in the law, judge jacobs has a superb reputation across the philosophical board for fairness and quality of his work. he doesn't stop with the law. given his lit remember background he -- literary background he reads widely and

his inaugural lecture was followed by kenneth starr, justice scalia, judge randolph, vice-president cheney, and chief justice roberts. we are, today, very pleased to have the hon. dennis jacobs to all of these lectures. judge jacobs is the chief judge of the u.s. court of appeals for the second circuit. president bush appointed him to the second circuit in 1992 where he has served as chief judge since 2006. his education includes a master's in english literature at the advanced age of 21 from nyu finished everything required except the dissertation before his phd. he spent his entire legal career litigating on commercial matters. he became a partner in 1980. in addition to be deeply versed in the law, judge jacobs as a superb reputation for fairness and for the quality of his work. he does not stop with the law. not surprisingly, given his literary background, he reads vary widely and has a great love for music. perhaps more surprisingly, i understand he has a large personal knowledge about catastrophes ranging from the titanic to earthquakes. however, the rumor that the democrats after th

rennie of the remedies are discussing with justice scalia involves this court in a highly intrusive exercise of congressional power, let me just ask you this as an analytic matter or a matter of logical priorities. we usually talk about substance first, remedy second. teasing is permissible, logically, for us to say the remedies here are so intrusive that bears on our choice of whether or not we use intermediate or rational basis scrutiny and because the remedies are so difficult were going to use rational basis, is that a logical way to proceed? >> i don't think so. the court has traditionally said the questions are right and whether or not there exists an opportunity make a claim and the remedy for it are analytically distinct. >> it also says that the remedy can't be complicated. the court is not set out to do that. therefore, wescott said it could go one way or the other way. you can't do any fine-tuning because it's there as a temporary legislature that all goes back to congress to do what it will be assisting the interim. >> that's correct. certainly congress to do that. the solicitor

seven members of the united states supreme court chief justice rehnquist and kennedy, o'connor, scalia, soother and briar. these seven justices also objected to the florida court decision to add hundreds of votes to the tally. it was held unconstitutional by seven of the supreme court's nine justices. only stephens and ginsburg descended. it also said it was finished by giving gentle guidance. the election must end. florida's law must be obeyed. george w. bush was going to be the 34 president of the united states. i dialed governor bush at the mansion in austin. he answered in his pajamas and he was in bed reading as i had been. i told him congratulations mr. president. his television was off. he hadn't yet heard the news. he turned on his television. which was set to cnn. to hear correspondence reading the decision starting with the defense on the back page, not the majority opinion. he had no idea who was going on. the president elect was listening to both cnn and me. i continued to insist it was good news. he wasn't convinced even after he switched to nbc. after several minutes he s

i think the answer is partly for the reasons that you eluded to and justice scalia mentioned, we don't believe a court can grant citizenship, and that should inform the remedy, but for the people who have been granted citizenship, i think the solution would be to invalidate the one year resident -- >> why don't we grant that remedy when it doesn't do this petition any good whatsoever? it's a remedy that doesn't remedy? i'm not in the habit of a bill that doesn't provide relief. >> i suppose the court could decide that at the out-- >> if the reason it doesn't grant the relief is unusual in this case. it doesn't grant him release because of the third party standing. he doesn't care if they are treated equally or not, he just wants to claim the benefit of citizenship. the person who gets belief is if it were the father because he's entitled to be treated equally. the relief this person is asking for is not to be deported, and the problem is complicated by the case of third party standards. >> right. i agree with that as well which gives all the more reason for the court to be conscious in

the lecture is followed by ken starr, now president of baylor, roger boar, justice scalia, judge randolph and chief justice roberts and judge edith jones and judge douglas ginsburg. we are very pleased to have the hon. dennis jacobs to follow these lectures to the platform. judge jacobs is the chief judge of the u.s. court of appeals of the second circuit. president bush appointed him in 1992 where he has served as chief judge since 2006. his education included a master's in english literature at the advanced age of 21 from n.y.u., where he completed everything required for a ph.d.. then, the law school stole him. he spent his entire legal career litigating on commercial matters at the firm of simpson thacher and bartlett. he became a partner in 1980. in addition to being first in the law, judge jacobs is known for fairness and equality of his work. it does not stop with all law. not surprisingly, given his literary background, he reads very widely and has a love for music. perhaps more surprising in, i understand he has a source of knowledge about catastrophes raging from the titanic to

. >> let me put it to you this way, justice scalia. suppose the government in this case gave the money to the s.t.o.'s directly to itself. and the s.t.o.'s then gave out the scholarships, would it be constitutional for an s.t.o. to say to a parent who comes asking for a scholarship, are you catholic? if you're not, we won't -- >> perhaps not but you have -- you have an intervening parent or contributor. and it's that person who is making the decision of whether to give it to a religious or nonreligious horg it isn't the government making that decision. >> it's not a parent -- >> and that was the same thing in zelman. parents under this program are not allowed to give contributions for scholarships to their own children. the people who get -- who can claim the tax credit -- the person who get the scholarship cannot be a dependent -- >> suppose they change one rule and the rule that the s.t.o. was this, they said we will give you tuition if you otherwise qualify for your child to go to the school that you wish to go to. and if if you are

whether of justice should have an interpretive philosophy to guide the justice in deciding constitutional questions. she notes that scaliais said to be at text decider and others tend to be natural law. the students asked have these labels have affected your career as a judge and whether the supreme court can overcome the tendency to attach the labels to the court order judges when their decisions are announced? >> i do not have an over as -- overarching interpretive philosophy that in every case this is our am going to analyze it. some of the adjectives do not make any sense. i have never understood living constitution. they must be demean the constitution. [laughter] the question is how do you interpret the powerful words on paper? i am certainly focused on the text, as a lot of us do. as a lot of the cases we have already heard argued in this term show, it is not a lease easy to figure out what the words mean. cases always come up that do not seem to fit in the categories that congress enacted into law, but i do not have an over- arching philosophy. i do not think we are given free rein to modify or adapt or alter wha